8–06–04 Friday Vol. 69 No. 151 August 6, 2004
Pages 47763–48128
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i II Federal Register / Vol. 69, No. 151 / Friday, August 6, 2004
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Contents Federal Register Vol. 69, No. 151
Friday, August 6, 2004
Administration on Aging Commerce Department See Aging Administration See Foreign-Trade Zones Board See International Trade Administration Aging Administration See National Oceanic and Atmospheric Administration NOTICES Grants and cooperative agreements; availability, etc.: Committee for Purchase From People Who Are Blind or Aging Services Network Integrated Care Management Severely Disabled Program, 47931–47932 NOTICES Procurement list; additions and deletions, 47863–47864 Agriculture Department See Forest Service Committee for the Implementation of Textile Agreements NOTICES Antitrust Division Textile and apparel categories: NOTICES Caribbean Basin Trade Partnership Act; short supply National cooperative research notifications: requests— AAF Association, Inc., 47958 Woven, 100 percent cotton, flannel fabrics, 47915– DVD Copy Control Association, 47959 47916 IMS Global Learning Consortium, Inc., 47959 Defense Department Information Storage Industry Consortium, 47959 See Army Department See Engineers Corps Army Department See Navy Department See Engineers Corps NOTICES RULES Environmental statements; availability, etc.: Publication of rules affecting public; requirements and Air Force Memorial, Naval Annex Site Arlington, VA, policies, 47766–47771 47916 NOTICES Environmental statements; record of decision: Employment Standards Administration Fort Benning, GA; digital multi-purpose range complex, NOTICES 47916–47917 Minimum wages for Federal and federally-assisted construction; general wage determination decisions, Blind or Severely Disabled, Committee for Purchase From 47960–47962 People Who Are See Committee for Purchase From People Who Are Blind Energy Department or Severely Disabled See Federal Energy Regulatory Commission
Centers for Disease Control and Prevention Engineers Corps NOTICES NOTICES Grants and cooperative agreements; availability, etc.: Environmental statements; availability, etc.: Human immunodeficiency virus (HIV)— Wilkes-Barre, PA; Wyoming Valley Levee Raising Project, River State, Nigeria; mother to child transmission of 47917–47918 HIV; prevention products delivery, 47932–47936 Environmental Protection Agency Citizenship and Immigration Services Bureau RULES RULES Air quality implementation plans; approval and Immigration: promulgation; various States: Employment authorization documents; issuance District of Columbia, 47773–47780 Correction, 47763 PROPOSED RULES NOTICES Air programs: Agency information collection activities; proposals, Ambient air quality standards, national— submissions, and approvals, 47937 Fine particulate matter and ozone; interstate transport Temporary protected status program designations; control measures, 47828–47830 terminations, extensions, etc.: NOTICES Somalia, 47937–47940 Air programs: Ambient air monitoring reference and equivalent Coast Guard methods— RULES Nitrogen oxide reference method and particulate matter Drawbridge operations: equivalent methods designations, 47924–47926 District of Columbia, 47771–47773 Environmental statements; availability, etc.: NOTICES Agency statements— Agency information collection activities; proposals, Comment availability, 47927 submissions, and approvals, 47940–47941 Weekly receipts, 47926
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Meetings: Meetings: FIFRA Scientific Advisory Panel; cancelled, 47927–47928 Natural gas storage inventory information; enhanced Water pollution control: reporting; technical conference, 47922–47924 Total maximum daily loads— Colorado; water quality limited segments and Federal Highway Administration associated pollutants, 47928–47929 NOTICES Agency information collection activities; proposals, Farm Credit Administration submissions, and approvals, 47978–47979 PROPOSED RULES Farm credit system: Administrative expenses; loan policies and operations, Fish and Wildlife Service funding and fiscal affairs; disclosure to shareholders; RULES capital adequacy risk-weighting— Endangered and threatened species: Capital standards and requirements, 47983–48006 Florida manatee; protection areas— Additions, 48114–48127 PROPOSED RULES Federal Aviation Administration Endangered and threatened species: RULES Critical habitat designations— Airworthiness directives: Colorado butterfly plant, 47834–47862 General Electric Co., 47763–47765 Florida manatee; protection areas— PROPOSED RULES Additions, 48101–48114 Airworthiness directives: NOTICES Boeing, 47802–47806, 47808–47816 Agency information collection activities; proposals, Fokker, 47806–47808 submissions, and approvals, 47948–47949 Endangered and threatened species: Federal Communications Commission Recovery plans— RULES Hungerford’s crawling water beetle, 47950–47951 Common carrier services: Scaleshell mussel, 47949–47950 Satellite communications— Space station licensing rules and policies, 47790–47795 Practice and procedure: Food and Drug Administration Maximum forfeiture penalties; inflation adjustment, RULES 47788–47790 Public Health Security and Bioterrorism Preparedness and Radio stations; table of assignments: Response Act of 2002; implementation: Various States, 47795–47796 Food facilities registration NOTICES Industry guidance; questions and answers, 47765– Agency information collection activities; proposals, 47766 submissions, and approvals, 47929–47930 NOTICES Meetings: Federal Deposit Insurance Corporation Endocrinologic and Metabolic Drugs Advisory Committee, 47936 NOTICES Agency information collection activities; proposals, submissions, and approvals, 47930 Foreign-Trade Zones Board NOTICES Federal Emergency Management Agency Applications, hearings, determinations, etc.: RULES Florida Flood elevation determinations: S.B. Marketing Worldwide, Inc.; foreign-origin apparel Various States, 47780–47788 products processing (apparel printing), 47864– PROPOSED RULES 47865 Flood elevation determinations: Louisiana, 47865–47866 Arkansas, 47832–47834 Ohio, 47830–47832 Forest Service NOTICES NOTICES Committees; establishment, renewal, termination, etc.: Meetings: National Fire Academy Board of Visitors, 47941–47942 Olympic Provincial Advisory Committee, 47863 Disaster and emergency areas: Resource Advisory Committees— Arkansas, 47942 Lassen County, 47863 California, 47942–47943 New Jersey, 47943 South Dakota, 47943 Health and Human Services Department See Aging Administration Federal Energy Regulatory Commission See Centers for Disease Control and Prevention NOTICES See Food and Drug Administration Agency information collection activities; proposals, submissions, and approvals, 47919–47920 Homeland Security Department Environmental statements; availability, etc.: See Citizenship and Immigration Services Bureau Weaver’s Cove Energy, LLC, et al., 47920–47921 See Coast Guard Hydroelectric applications, 47921–47922 See Federal Emergency Management Agency
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Housing and Urban Development Department Personal computers, monitors, and components, 47956– NOTICES 47957 Agency information collection activities; proposals, Polyethylene retail carrier bags from— submissions, and approvals, 47944–47946 Various countries, 47957 Grants and cooperative agreements; availability, etc.: Shirts with pucker-free seams and methods of producing Homeless assistance; excess and surplus Federal same, 47957–47958 properties, 47946–47947 Meetings; Sunshine Act, 47958 Public and Indian housing: Housing assistance payments (Section 8)— Justice Department Housing Choice Voucher Program and Moderate See Antitrust Division Rehabilitation Single Room Occupancy Program; See Justice Programs Office fair market rents, 48039–48099 Reports and guidance documents; availability, etc.: International Building Code; Fair Housing Act’s Justice Programs Office accessibility requirements, 47947–47948 NOTICES Meetings: Indian Affairs Bureau Global Justice Information Sharing Initiative Federal NOTICES Advisory Committee, 47959–47960 Liquor and tobacco sale or distribution ordinance: Yurok Tribe, CA, 47951–47952 Labor Department Interior Department See Employment Standards Administration See Fish and Wildlife Service NOTICES See Indian Affairs Bureau Agency information collection activities; proposals, See Land Management Bureau submissions, and approvals, 47960
Internal Revenue Service Land Management Bureau PROPOSED RULES NOTICES Income taxes: Committees; establishment, renewal, termination, etc.: Controlled foreign corporations’ subpart F income; U.S. Resource Advisory Councils— shareholder’s pro rata share; determination guidance, New Mexico, 47952 47822–47828 Environmental statements; availability, etc.: Labor and personal services; source of compensation, San Juan County, CO; proposed ski area; resource 47816–47822 management plan amendment, 47952–47954 Environmental statements; notice of intent: International Trade Administration White Pine County, NV; White Pine Energy Station, NOTICES 47954–47955 Antidumping: Cased pencils from— China, 47866 Maritime Administration Cut-to-length carbon-quality steel plate from— NOTICES Japan, 47866–47867 Coastwise trade laws; administrative waivers: Floor-standing, metal-top ironing tables and parts from— BEAST, 47979–47980 China, 47868–47869 Individually quick frozen red raspberries from— National Highway Traffic Safety Administration Chile, 47869–47875 NOTICES Non-malleable cast iron pipe fittings from— Agency information collection activities; proposals, China, 47875–47876 submissions, and approvals, 47980 Pasta from— Italy, 47880–47887 Turkey, 47876–47879 National Oceanic and Atmospheric Administration Persulfates from— RULES China, 47887–47891 Fishery conservation and management: Sebacic acid from— Atlantic highly migratory species— China, 47891–47892 Pelagic longline fishery; correction, 47797–47798 Stainless steel sheet and strip in coils from— Northeastern United States fisheries— France, 47892–47900 Atlantic bluefish, 47798–47801 Germany, 47900–47905 NOTICES Mexico, 47905–47911 Agency information collection activities; proposals, Tetrahydrofurfuryl alcohol from— submissions, and approvals, 47912–47913 China, 47911–47912 Marine mammals: Meetings: Taking and importation— Environmental Technologies Trade Advisory Committee, Mexico; yellowfin tuna and tuna products harvested in 47912 eastern tropical Pacific Ocean; affirmative finding, 47913–47914 International Trade Commission Meetings: NOTICES Shrimp issues and options, 47914 Import investigations: Permits: Ear protection devices, 47955–47956 Marine mammals, 47914–47915
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Navy Department Tennessee Valley Authority NOTICES NOTICES Environmental statements; notice of intent: Agency information collection activities; proposals, Naval Air Station Key West, FL; airfield clear zones and submissions, and approvals, 47978 storm water drainage systems restoration, 47918– 47919 Textile Agreements Implementation Committee See Committee for the Implementation of Textile Postal Rate Commission Agreements NOTICES Meetings; Sunshine Act, 47962 Transportation Department See Federal Aviation Administration Securities and Exchange Commission See Federal Highway Administration RULES See Maritime Administration Securities: See National Highway Traffic Safety Administration Short sales, 48007–48031 See Surface Transportation Board NOTICES Securities: Treasury Department Short sale price provisions; suspension of operation, 48031–48038 See Internal Revenue Service Self-regulatory organizations; proposed rule changes: American Stock Exchange LLC, 47962–47963 Boston Stock Exchange, Inc., 47963–47965 Separate Parts In This Issue Chicago Board Options Exchange, Inc., 47965–47967 New York Stock Exchange, Inc., 47967–47970 Part II Philadelphia Stock Exchange, Inc., 47970–47971 Farm Credit Administration, 47983–48006
Small Business Administration Part III NOTICES Securities and Exchange Commission, 48007–48038 National Environmental Policy Act; implementation, 47971–47976 Part IV Housing and Urban Development Department, 48039–48099 Social Security Administration NOTICES Part V Privacy Act: Interior Department, Fish and Wildlife Service, 48101– Systems of records, 47976–47977 48127 State Department NOTICES Clean Diamond Trade Act; participating countries eligible Reader Aids for trade in rough diamonds; list, 47977–47978 Consult the Reader Aids section at the end of this issue for Meetings: phone numbers, online resources, finding aids, reminders, International Telecommunication Advisory Committee, and notice of recently enacted public laws. 47978 To subscribe to the Federal Register Table of Contents Surface Transportation Board LISTSERV electronic mailing list, go to http:// NOTICES listserv.access.gpo.gov and select Online mailing list Railroad operation, acquisition, construction, etc.: archives, FEDREGTOC-L, Join or leave the list (or change Wheeling & Lake Erie Railway Co., 47980–47981 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.
8 CFR 274a...... 47763 12 CFR Proposed Rules: 607...... 47984 614...... 47984 615...... 47984 620...... 47984 14 CFR 39...... 47763 Proposed Rules: 39 (6 documents) ...... 47802, 47804, 47806, 47808, 47811, 47814 17 CFR 240...... 48008 241...... 48008 242...... 48008 21 CFR 1...... 47765 26 CFR Proposed Rules: 1 (2 documents) ...... 47816, 47822 32 CFR 519...... 47766 33 CFR 117...... 47771 40 CFR 52...... 47773 Proposed Rules: 51...... 47828 72...... 47828 73...... 47828 74...... 47828 77...... 47828 78...... 47828 96...... 47828 44 CFR 65 (2 documents) ...... 47780, 47786 Proposed Rules: 67 (3 documents) ...... 47830, 47831, 47832 47 CFR 1 (2 documents) ...... 47788, 47790 25...... 47790 73...... 47795 50 CFR 17...... 48115 635...... 47797 648...... 47798 Proposed Rules: 17 (2 documents) ...... 47834, 48102
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Rules and Regulations Federal Register Vol. 69, No. 151
Friday, August 6, 2004
This section of the FEDERAL REGISTER PART 274a—CONTROL OF and follow the instructions for sending contains regulatory documents having general EMPLOYMENT OF ALIENS your comments electronically. applicability and legal effect, most of which • Mail: Docket Management Facility, are keyed to and codified in the Code of § 274a.12 [Corrected] U.S. Department of Transportation, 400 Federal Regulations, which is published under I 1. On page 45557, in the first column, Seventh Street, SW., Nassif Building, 50 titles pursuant to 44 U.S.C. 1510. amendatory instruction 2d is corrected Room PL–401, Washington, DC 20590– The Code of Federal Regulations is sold by to read: ‘‘Revising paragraph (c), 0001. the Superintendent of Documents. Prices of introductory text;’’ • Fax: (202) 493–2251. • new books are listed in the first FEDERAL Dated: August 3, 2004. Hand Delivery: Room PL–401 on REGISTER issue of each week. the plaza level of the Nassif Building, Richard A. Sloan, 400 Seventh Street, SW., Washington, Director, Regulations and Forms Services DC, between 9 a.m. and 5 p.m., Monday Division. DEPARTMENT OF HOMELAND through Friday, except Federal holidays. SECURITY [FR Doc. 04–17971 Filed 8–5–04; 8:45 am] You may examine the comments on BILLING CODE 4410–10–P this AD in the AD docket on the Internet 8 CFR Part 274a at http://dms.dot.gov. FOR FURTHER INFORMATION CONTACT: [BCIS No. 2152–01] DEPARTMENT OF TRANSPORTATION Mark J. Bouyer, Aerospace Engineer, (DOT) Engine Certification Office, FAA, Engine RIN 1615–AA63 Federal Aviation Administration & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803– Employment Authorization 14 CFR Part 39 5299; telephone (781) 238–7757; fax Documents; Correction (781) 238–7755. [Docket No. FAA–2004–18758; Directorate SUPPLEMENTARY INFORMATION: In July of AGENCY: Bureau of Citizenship and Identifier 2004–NE–24–AD; Amendment 39– 1999, an uncontained failure of a Immigration Services, DHS. 13763; AD 2004–16–07] turbine stage 2 aft cooling plate ACTION: Interim rule: correction. RIN 2120–AA64 occurred on a GE CT7 turboprop engine. An investigation indicated that the SUMMARY: The Department of Homeland Airworthiness Directives; General electro-discharge (EDM) machining of Security (DHS) published in the Federal Electric Company (GE); CT7–2D1 the cooling airholes caused microcracks Register of July 30, 2004, an interim rule Turboshaft Engines. in the walls of the airholes that could which amended the DHS regulations propagate through the turbine stage 2 AGENCY: Federal Aviation governing issuance of Employment cooling plate and result in an Administration (FAA), DOT. Authorization Documents (EADs). The uncontained engine failure. We issued interim rule contained an error that is ACTION: Final rule; request for AD 2002–01–03 to prevent an corrected in this document. comments. uncontained failure of turbine stage 2 aft DATES: This correction is effective July cooling plates in GE CT7 turboprop SUMMARY: The FAA is adopting a new 30, 2004. engines. In October of 2003, the airworthiness directive (AD) for GE manufacturer informed us of a similar FOR FURTHER INFORMATION CONTACT: CT7–2D1 turboshaft engines. This AD problem with GE CT7–2D1 turboshaft Jonathan Mills, Residence and Status requires replacing certain turbine stage engines. This AD requires replacing Services, Office of Program and 2 aft cooling plates, part number (P/N) turbine stage 2 aft cooling plates, P/N Regulations Development, Bureau of 6064T0P02. This AD results from an 6064T07P02, with serial numbers (SNs) Citizenship and Immigration Services, uncontained failure of a turbine stage 2 GFFN****, GFFP****, GFFR0*** Department of Homeland Security, 425 aft cooling plate in a GE CT7 turboprop through GFFR7***, GFFR81** through ‘‘I’’ Street, NW., ULLICO Building, engine. We are issuing this AD to GFFR89**, GFFR8A** through Third Floor, Washington, DC 20536, prevent a similar uncontained failure of GFFR8G**, GFFR8H92 through telephone (202) 514–4754. turbine stage 2 aft cooling plates in GE GFFR8H99, and GFFR8H9A through CT7–2D1 turboshaft engines. SUPPLEMENTARY INFORMATION: GFFR8H9N. Asterisks represent any DATES: This AD becomes effective Need for Correction subsequent number or letter that follow August 23, 2004. the root SN. This condition, if not As published in the Federal Register We must receive any comments on corrected, could result in an on July 30, 2004 (69 FR 45555), the this AD by October 5, 2004. uncontained failure of turbine stage 2 aft interim rule amending part 274a ADDRESSES: Use one of the following cooling plates in GE CT7–2D1 contains an error that is in need of addresses to submit comments on this turboshaft engines. correction. proposed AD. • FAA’s Determination and Requirements Correction of Publication DOT Docket Web site: Go to http://dms.dot.gov and follow the of This AD I Accordingly, the publication on July instructions for sending your comments Although no aircraft that are 30, 2004 (69 FR 45555), of the interim electronically. registered in the United States use these rule that was the subject of FR Doc. 04– • Government-wide rulemaking Web engines, the possibility exists that the 16938 is corrected as follows: site: Go to http://www.regulations.gov engines could be used on aircraft that
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are registered in the United States in the personnel concerning this AD. Using the Adoption of the Amendment future. The unsafe condition as search function of the DMS web site, I Under the authority delegated to me by previously described in GE CT7 anyone can find and read the comments the Administrator, the Federal Aviation turboprop engines is likely to exist or in any of our dockets, including the Administration amends part 39 of the develop in GE CT7–2D1 turboshaft name of the individual who sent the Federal Aviation Regulations (14 CFR engines because they are of the same comment (or signed the comment on part 39) as follows: type design. We are issuing this AD to behalf of an association, business, labor prevent an uncontained failure of union, etc.). You may review the DOT’s PART 39—AIRWORTHINESS turbine stage 2 aft cooling plates in GE complete Privacy Act Statement in the DIRECTIVES CT7–2D1 turboshaft engines. This AD Federal Register published on April 11, requires replacing turbine stage 2 aft 2000 (65 FR 19477–78) or you may visit I 1. The authority citation for part 39 cooling plates, P/N 6064T07P02, with http://dms.dot.gov. continues to read as follows: SNs GFFN****, GFFP****, GFFR0*** We are reviewing the writing style we Authority: 49 U.S.C. 106(g), 40113, 44701. through GFFR7***, GFFR81** through currently use in regulatory documents. GFFR89**, GFFR8A** through We are interested in your comments on § 39.13 [Amended] GFFR8G**, GFFR8H92 through whether the style of this document is I 2. The FAA amends § 39.13 by adding GFFR8H99, and GFFR8H9A through clear, and your suggestions to improve the following new airworthiness GFFR8H9N at the next disassembly of the clarity of our communications with directive: the gas generator turbine rotor assembly you. You can get more information 2004–16–07. General Electric Company: at an FAA-approved overhaul facility, about plain language at http:// Amendment 39–13763. Docket No. but not to exceed 5,000 cycles-since- www.faa.gov/language and http:// FAA–2004–18758; Directorate Identifier new. www.plainlanguage.gov. 2004–NE–24–AD. FAA’s Determination of the Effective Examining the AD Docket Effective Date Date You may examine the docket that (a) This airworthiness directive (AD) Since there are currently no domestic contains the AD, any comments becomes effective August 23, 2004. operators of this engine, notice and received, and any final disposition in Affected ADs opportunity for public comment before person at the DMS Docket Offices (b) None. issuing this AD are unnecessary. A between 9 a.m. and 5 p.m., Monday situation exists that allows the through Friday, except Federal holidays. Applicability immediate adoption of this regulation. The Docket Office (telephone (800) 647– (c) This AD applies to General Electric Company (GE) CT7–2D1 turboshaft engines Docket Management System (DMS) 5227) is located on the plaza level of the Department of Transportation Nassif with turbine stage 2 aft cooling plates, part We have implemented new Building at the street address stated in number (P/N) 6064T07P02, and serial numbers (SN) starting with GFFN****, procedures for maintaining AD dockets ADDRESSES. Comments will be available GFFP****, GFFR0*** through GFFR7***, electronically. As of May 17, 2004, we in the AD docket shortly after the DMS posted new AD actions on the DMS and GFFR81** through GFFR89**, GFFR8A** receives them. through GFFR8G**, GFFR8H92 through assigned a DMS docket number. We Regulatory Findings GFFR8H99, and GFFR8H9A through track each action and assign a GFFR8H9N installed. Asterisks represent any corresponding Directorate identifier. We have determined that this AD will subsequent number or letter that follow the The DMS docket No. is in the form not have federalism implications under root SN. These engines are installed on, but ‘‘Docket No. FAA–200X–XXXXX.’’ Each Executive Order 13132. This AD will not limited to, Sikorsky S–70 helicopters. DMS docket also lists the Directorate not have a substantial direct effect on Unsafe Condition identifier (‘‘Old Docket Number’’) as a the States, on the relationship between cross-reference for searching purposes. (d) This AD results from an uncontained the national Government and the States, failure of a turbine stage 2 aft cooling plate Comments Invited or on the distribution of power and in a GE CT7 turboprop engine. We are issuing responsibilities among the various this AD to prevent a similar uncontained This AD is a final rule that involves levels of government. failure of turbine stage 2 aft cooling plates in requirements affecting flight safety and For the reasons discussed above, I GE CT7–2D1 turboshaft engines. was not preceded by notice and an certify that the regulation: Compliance opportunity for public comment; 1. Is not a ‘‘significant regulatory however, we invite you to submit any action’’ under Executive Order 12866; (e) You are responsible for having the written relevant data, views, or 2. Is not a ‘‘significant rule’’ under the actions required by this AD performed within arguments regarding this AD. Send your DOT Regulatory Policies and Procedures the compliance times specified unless the actions have already been done. comments to an address listed under (44 FR 11034, February 26, 1979); and ADDRESSES. Include ‘‘AD Docket No. 3. Will not have a significant Cooling Plate Removal FAA–2004–18758; Directorate Identifier economic impact, positive or negative, (f) At the next disassembly of the gas 2004–NE–24–AD’’ in the subject line of on a substantial number of small entities generator turbine rotor assembly at an FAA- your comments. We specifically invite under the criteria of the Regulatory approved overhaul facility, but not later than comments on the overall regulatory, Flexibility Act. 5,000 cycles-since-new, replace any turbine economic, environmental, and energy We prepared a summary of the costs stage 2 aft cooling plate, P/N 6064T07P02, aspects of the rule that might suggest a to comply with this AD and placed it in with SNs starting with GFFN****, need to modify it. the AD Docket. You may get a copy of GFFP****, GFFR0*** through GFFR7***, We will post all comments we GFFR81** through GFFR89**, GFFR8A** this summary at the address listed through GFFR8G**, GFFR8H92 through receive, without change, to http:// under ADDRESSES. GFFR8H99, and GFFR8H9A through dms.dot.gov, including any personal List of Subjects in 14 CFR Part 39 GFFR8H9N, with a cooling plate that does information you provide. We will also not have a SN specified in this AD. post a report summarizing each Air transportation, Aircraft, Aviation (g) After the effective date of this AD, do substantive verbal contact with FAA safety. not install stage 2 aft cooling plate, P/N
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6064T07P02, SNs GFFN****, GFFP****, Follow the instructions for submitting 17, 2004, guidance and responds to GFFR0*** through GFFR7***, GFFR81** comments on the agency Web site. additional questions about the interim through GFFR89**, GFFR8A** through • E-mail: [email protected]. final rule on registration. The guidance GFFR8G**, GFFR8H92 through GFFR8H99, Include Docket No. 2003D–0545 in the is intended to help the industry better and GFFR8H9A through GFFR8H9N into any subject line of your e-mail message. understand and comply with the engine. • FAX: 301–827–6870. regulation in 21 CFR part 1, subpart H. Material Incorporated by Reference • Mail/Hand delivery/Courier [For FDA wishes to highlight one issue (h) None. paper, disk, or CD-ROM submissions]: clarified in the fourth edition of the food Division of Dockets Management, 5630 facility registration guidance, the Related Information Fishers Lane, rm. 1061, Rockville, MD appropriate designation of a U.S. agent (i) GE CT7–TS Alert Service Bulletin 72– 20852. by a foreign food facility. Since the A0032, dated June 11, 2003, provides Instructions: All submissions received interim final rule published, several additional information regarding the must include the agency name and individuals have notified FDA that, disassembly of the gas generator turbine rotor assembly. Docket No. or Regulatory Information although listed in a facility’s registration Number (RIN) for this rulemaking. All as its U.S. agent, the individual had not Issued in Burlington, Massachusetts, on comments received will be posted agreed to serve as the facility’s U.S. July 29, 2004. without change to http://www.fda.gov/ agent. Question 14.20 in the fourth Jay J. Pardee, ohrms/dockets/default/htm, including edition clarifies how FDA will handle Manager, Engine and Propeller Directorate, any personal information provided. For the registration of a facility when the Aircraft Certification Service. detailed instructions on submitting agency is notified that the individual [FR Doc. 04–17755 Filed 8–5–04; 8:45 am] comments and additional information listed as the facility’s U.S. agent BILLING CODE 4910–13–P on the rulemaking process, see the disagrees with that designation. ‘‘Comments’’ heading of the FDA is issuing the guidance entitled SUPPLEMENTARY INFORMATION section of ‘‘Questions and Answers Regarding the DEPARTMENT OF HEALTH AND this document. Interim Final Rule on Registration of HUMAN SERVICES Docket: For access to the docket to Food Facilities (Edition 4)’’ as a level 1 read background documents or guidance. Consistent with FDA’s good Food and Drug Administration comments received, go to http:// guidance practices (GGPs) regulation www.fda.gov/ohrms/dockets/default/ § 10.115 (21 CFR 10.115), the agency 21 CFR Part 1 htm and insert the docket number, will accept comments on this guidance, but it is implementing the guidance [Docket No. 2003D–0545] found in brackets in the heading of this document, into the ‘‘Search’’ box and immediately, in accordance with Guidance for Industry: Questions and follow the prompts and/or go to the § 10.115(g)(2), because the agency has Answers Regarding the Interim Final Division of Dockets Management, 5630 determined that prior public Rule on Registration of Food Facilities Fishers Lane, rm. 1061, Rockville, MD participation is not feasible or (Edition 4); Availability 20852. appropriate. As noted, the Bioterrorism Act requires covered facilities to be AGENCY: Food and Drug Administration, FOR FURTHER INFORMATION CONTACT: registered with FDA by December 12, HHS. Melissa S. Scales, Office of Regulations 2003. Clarifying the provisions of the ACTION: Notice of availability of and Policy (HFS–24), Center for Food interim final rule will facilitate prompt guidance. Safety and Applied Nutrition, Food and registration by covered facilities and Drug Administration, 5100 Paint Branch thus, complete implementation of the SUMMARY: The Food and Drug Pkwy., College Park, MD 20740, 301– interim final rule. Administration (FDA) is announcing the 436–1720. As noted in previous notices availability of a revised guidance SUPPLEMENTARY INFORMATION: announcing the availability of guidance entitled ‘‘Questions and Answers for food facility registration, FDA I. Background Regarding the Interim Final Rule on continues to respond to requests for Registration of Food Facilities (Edition In the Federal Register of October 10, clarification of the registration interim 4).’’ The guidance responds to various 2003 (68 FR 58894), FDA issued an final rule by providing guidance in a questions raised about section 305 of the interim final rule to implement section question-and-answer format. The agency Public Health Security and Bioterrorism 305 of the Bioterrorism Act. The is maintaining all responses to questions Preparedness and Response Act of 2002 registration regulation requires facilities concerning food facility registration in a (the Bioterrorism Act) and the agency’s that manufacture/process, pack, or hold single document that is periodically implementing regulation, which require food (including animal feed) for updated as the agency responds to facilities that manufacture/process, consumption in the United States to additional questions. The following four pack, or hold food for consumption in register with FDA by December 12, indicators are employed to help users of the United States to register with FDA 2003. the guidance identify revisions: (1) The by December 12, 2003. On December 4, 2003, FDA issued the guidance will be identified as a revision DATES: Submit written or electronic first edition of a guidance entitled of a previously issued document, (2) the comments on the agency guidance at ‘‘Questions and Answers Regarding the revision date of the guidance will any time. Interim Final Rule on Registration of appear on its cover, (3) the edition ADDRESSES: You may submit comments, Food Facilities.’’ The second edition of number of the guidance will be identified by Docket No. 2003D–0545, this guidance was issued on January 12, included in its title, and (4) new by any of the following methods: 2004, and the third edition on February questions and answers will be identified • Federal eRulemaking Portal: http:// 17, 2004. The guidance announced by as such in the body of the guidance. www.regulations.gov. Follow the this document entitled ‘‘Questions and instructions for submitting comments. Answers Regarding the Interim Final II. Comments • Agency Web site: http:// Rule on Registration of Food Facilities Interested persons may, at any time, www.fda.gov/dockets/ecomments. (Edition 4)’’ is a revision of the February submit written or electronic comments
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to the Division of Dockets Management A. Background PART 519—PUBLICATION OF RULES (see ADDRESSES) regarding this AFFECTING THE PUBLIC guidance. Submit a single copy of In the April 7, 2004, issue of the electronic comments or two paper Federal Register (69 FR 18314), the Subpart A—General copies of any mailed comments, except Department of the Army issued a Sec. that individuals may submit one copy. proposed rule to revise 32 CFR 519. 519.1 Purpose. Comments are to be identified with the This final rule prescribes procedures 519.2 Explanation of terms. and responsibilities for publishing 519.3 Responsibilities. docket number found in brackets in the 519.4 Designation of Rulemaking heading of this document. The guidance applicable Department of the Army Coordinators. and received comments may be seen in policies, practices, and procedures as 519.5 Statement of compliance. the Division of Dockets Management required by statutes. It also delineates 519.6 Submission of publications for between 9 a.m. and 4 p.m., Monday responsibilities for complying with this printing. through Friday. regulation, the Regulatory Flexibility 519.7 Regulatory review. III. Electronic Access Act, 5 U.S.C. 601–612 (E.O. 12866), and Subpart B—Information To Be Published in the Congressional Review Act (CRA, 5 the Federal Register Persons with access to the Internet U.S.C. Chapter 8), within the 519.8 General. may obtain the document at http:// Department of the Army. The 519.9 Information to be published. www/cfsan.fda.gov/guidance.html. Department of the Army received 519.10 Requirements pertaining to the Dated: August 2, 2004. responses from two commentors. No information to be published. 519.11 Incorporation by reference. Jeffrey Shuren, substantive changes were requested or 519.12 Exceptions. Assistant Commissioner for Policy. made; however, we accepted and 519.13 Procedures. [FR Doc. 04–18057 Filed 8–4–04; 8:45 am] incorporated administrative changes to 519.14 Effect of not publishing. BILLING CODE 4160–01–S the final rule to put all verbs into the Subpart C—Inviting Public Comment on present tense and to adopt a consistent Certain Proposed Rules and Submission of way of expressing requirements, Petitions recommendations, and discretionary 519.15 General. DEPARTMENT OF DEFENSE actions. 519.16 Applicability. 519.17 Procedures when proposing rules. Department of the Army B. Regulatory Flexibility Act 519.18 OMB Control Number. 519.19 Consideration of public comment. 32 CFR Part 519 This rule has been reviewed under the 519.20 Procedures when publishing Regulatory Flexibility Act, 5 U.S.C. 601– adopted rules. 612, which requires the preparation of RIN 0702–AA40–U 519.21 Submission of petitions. a regulatory flexibility analysis for any 519.22 Cases in which public comment is Publication of Rules Affecting the regulation that will have a significant impractical. Public economic impact on a substantial Authority: Sec. 3012, Pub. L. 84–1028, 70A number of small entities (i.e., small Stat. 157, (10 U.S.C. 3013); sec. 3, Pub. L. 79– AGENCY: Department of the Army, DOD. businesses and small governments). The 404, 60 Stat. 238, (5 U.S.C. 552). ACTION: Final rule. Department of the Army has determined Subpart A—General that this rule will have no significant SUMMARY: The Department of the Army economic impact on small entities. § 519.1 Purpose. is revising our rule concerning the This part prescribes procedures and publication of rules affecting the public C. Paperwork Reduction Act to incorporate requirements and policies responsibilities for publishing certain required by various acts of Congress and The Paperwork Reduction Act does Department of the Army policies, Executive Orders. This revision also not apply because this rule does not practices and procedures in the Federal incorporates changes to program impose any information collection Register as required by statute, and for proponency and policies within the requirements that require the approval inviting public comment thereon, as Department of the Army. This rule of the Office of Management and Budget appropriate. This regulation implements finalizes the proposed rule that was under 44 U.S.C. 3501, et seq. portions of the Administrative published in the Federal Register on Procedure Act (APA), 5 U.S.C. 551; D. Executive Order 12866 April 7, 2004. Freedom of Information Act (FOIA), 5 U.S.C. 552(a)(1), as implemented by 32 DATES: Effective Date: September 7, The Department of the Army has CFR Part 335; Regulatory Flexibility Act 2004. determined that according to the criteria (5 U.S.C. 601, et seq.), as implemented ADDRESSES: U.S. Army Records defined in Executive Order 12866, this by 1 CFR Chapter 1; Congressional Management and Declassification rule is not considered a significant Review Act (CRA), 5 U.S.C. Chapter 8; Agency, ATTN: AHRC–PDD–RP, 7701 regulatory action. Executive Order 12866 of September 30, 1993; and DODD 5025.1, DOD Telegraph Road, Alexandria, VA 22315– Brenda S. Bowen, 3860. Directives System. Army Federal Register Liaison Officer. FOR FURTHER INFORMATION CONTACT: Ms. § 519.2 Explanation of terms. List of Subjects in 32 CFR Part 519 Brenda Bowen, Army Federal Register (a) Rule. The whole or a part of any Liaison Officer, Alexandria, VA at (703) Department of the Army Statement 428–6422 or Mrs. Brenda Kopitzke, Administrative practices and procedures. (regulation, circular, directive, or other Alternate Army Federal Register Liaison media) of general or particular Officer, Alexandria, VA at (703) 428– I For the reasons stated in the preamble, applicability and future effect, which is 6437. the Department of the Army revises 32 designed to implement, interpret, or SUPPLEMENTARY INFORMATION: CFR part 519 to read as follows: prescribe law or policy or which
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describes the organization, procedure, Chief of Staff, G–1 (DCS, G–1) to ensure and Navigable Waters, and Title 36, or practice of the Army. the regulatory requirements and Parks, Forests, and Public Property of (b) Federal Register. A document functions are properly executed. the CFR, subject to the terms of this published daily, Monday through (b) The ASA (CW) submits the annual part. Friday (except holidays), by the Office Regulatory Plan and semiannual Unified (2) Submit a copy of published final of the Federal Register, to inform the Agenda of Federal Regulatory and rules (and certain analyses related to the public about the regulations of the Deregulatory Actions to the AASA as rule, as appropriate) to both Houses of executive branch and independent required by Executive Order 12866 and Congress and to the General Accounting administrative agencies of the U.S. 5 U.S.C. 601, et seq. Office (GAO), per the CRA. Government. The Federal Register (c) The DCS, G–1 develops policy and includes Presidential proclamations, direction for the Rulemaking Program (3) When submitting rules codified in Executive orders, Federal agency for the Department of the Army. Titles 33 and 36 of the CFR, USACE documents having general applicability (d) The U.S. Army Records may coordinate directly with OFR (in and legal effect or affecting the public, Management and Declassification lieu of RMDA) but must otherwise and documents required to be published Agency (RMDA) is responsible for comply with the provisions of this part. by Act of Congress. policies concerning Department of the In determining the applicability of this (c) Code of Federal Regulations. The Army announcements and rules regulation to its rulemaking activities, annual codification of rules published (proposed, interim, and final) published Army Civil Works rulemaking by each Federal Agency. It is divided in the Federal Register, and for ensuring proponents may replace ‘‘RMDA’’ with into 50 titles representing broad subject Army compliance with this part. The ‘‘USACE,’’ wherever it appears in the areas for each Federal Agency and these RMDA will— text of this part. titles are further subdivided into (1) Assist the officials listed in Table (f) The officials listed in Table 1 of Chapters, Subchapters, Parts, and 1 of this section in the performance of this section (hereinafter referred to as Subparts. Army documents are their responsibilities. proponents) are responsible for: published in Title 32, National Defense, (2) Represent the Army in submitting (1) Ensuring maximum practicable Title 33, Navigation and Navigable to the Office of the Federal Register participation of the public in the Waters, and Title 36, Parks, Forests, and (OFR) any matter published per this formulation of Army rules that affect the Public Property. (The Federal Register part. public by allowing public comments in and the Code of Federal Regulations (3) Submit the annual Regulatory Plan proposed rules. Where deemed must be used together to determine the and semiannual Unified Agenda of appropriate by the Army proponents, latest version of any given rule.) Federal Regulatory and Deregulatory the public should participate in (d) Closed Meeting. A meeting that is Actions to the AASA as required by consensual mechanisms, such as closed to the public. Executive Order 12866 and 5 U.S.C. negotiated rulemaking. (e) Open Meeting. A meeting that is 601, et seq. (2) Determining which matters within open to the public. (4) Submit a copy of published final rules (and certain analyses related to the their areas of jurisdiction must be § 519.3 Responsibilities. rule, as appropriate) to both Houses of published in accordance with §§ 519.8 (a) The Administrative Assistant to Congress and to the General Accounting through 519.14, and for submission the Secretary of the Army (AASA) acts Office (GAO), per the CRA. actions specified in §§ 519.15 through as the regulatory officer and has (e) The U.S. Army Corps of Engineers 519.22. oversight of the Army Federal (USACE) will— (g) Legal officers and staff judge Regulatory Program and Unified (1) Represent the Army in submitting advocates supporting the proponents Agenda. The AASA coordinates with to the OFR only those Civil Works will provide legal advice and assistance Assistant Secretary of the Army (Civil Program rules (proposed, interim, and in connection with proponent Works) (ASA (CW)) and the Deputy final) codified in Title 33, Navigation responsibilities contained herein.
TABLE 1.—RULEMAKING PROPONENTS
Official Area of jurisdiction
Administrative Assistant to the Secretary of the Army ...... Immediate Office of the Secretary of the Army and the Office of the Administrative Assistant. Director of the Army staff ...... Elements, Office of the Chief, U.S. Army. Head of each Army staff agency ...... Headquarters of the agency and its field operating and staff agencies (including the Installation Management Agency (IMA)). Commander, MACOM ...... Headquarters of MACOM and all subordinate activities and units. RMDA ...... All other Army elements not covered above.
§ 519.4 Designation of Rulemaking telephone number of the designated for each rule or general notice for Coordinators. individual. The designee will perform inclusion in the Federal Register. The officials listed in Table 1 of the following duties: (c) Coordinate with Publication § 519.3 will designate Rulemaking (a) Ensure that all rules and notices to Control Officers to ensure submission of Coordinators to perform the duties be published comply with the Federal Statements of Compliance required by prescribed by §§ 519.15 through 519.22 Register format. § 519.5. of this part for their areas of functional (b) Transmit material to RMDA (d) Notify RMDA (AHRC–PDD–RP), responsibility. At the time of (AHRC–PDD–RP) and provide RMDA 7701 Telegraph Road, Alexandria, VA designation, RMDA (AHRC–PDD–RP) with the name, office symbol, and 22315–3860, when a regulation will be informed of the name and telephone number of the action officer published in the Federal Register
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becomes obsolete or is superseded by Subpart B—Information To Be economy; productivity; competition; another regulation. Published in the Federal Register jobs; the environment; public health or safety; or State, local, tribal governments § 519.5 Statement of compliance. § 519.8 General. or communities. In order to ensure compliance with The Administrative Procedure Act, as (2) Create a serious inconsistency or this part, no rule will be issued unless amended by the Freedom of Information otherwise interfere with an action taken Act, requires that certain policies, there is on file with RMDA (AHRC– by another agency. practices, procedures, and other (3) Materially alter the budgetary PDD–RP) a statement to the effect that information concerning the Department impact of entitlements, grants, user fees, it has been evaluated under the of the Army be published in the Federal loan programs or the rights and provisions of this part. If the proponent Register for the guidance of the public. obligations thereof. determines that the provisions of this In addition, various statutory and (4) Raise novel legal or policy issues part are inapplicable, such nonstatutory authorities, as applicable, arising out of legal mandates, the determination will be explained in the may require certain actions and studies President’s priorities, or the principles statement. be performed in conjunction with the of Executive Order 12866. (i) Open, partially-closed, and closed § 519.6 Submission of publications for publication of the regulation. In general, printing. this information explains where, how, meetings that require members to take and by what authority the Army action on behalf of the Army where When Army-wide publications or performs any of its functions that affect such deliberations determine or result directives are transmitted to the the public. This subpart describes what in the joint conduct or disposition of Director, U.S. Army Publishing information must be published and the Army business. Meetings will be Directorate (USAPD) for publication, the effect of failing to publish it. published a minimum of 15 calendar DA Form 260 (Request for Printing of days prior to date of meeting or as Publication) or other transmittal paper § 519.9 Information to be published. prescribed by the appropriate statute. will contain a statement that the In deciding which information to Sunshine Act meetings are published in directive has been processed for publish, consideration must be given to compliance with 5 U.S.C. 552b(e)(3); publication in the Federal Register or the fundamental objective of informing attendance at these meetings may be that it falls within the exempted all interested persons of how to deal restricted for reasons of national category. USAPD will not publish any effectively with the Department of the security or for reasons indicated in 5 rule unless this statement is on DA Army. Subject to the exceptions U.S.C. 552b(c). Notice of Sunshine Act Form 260. A copy of DA Form 260 may provided in § 519.12, information to be meetings must be published at least one currently published will include: be submitted to RMDA (AHRC–PDD– week prior to the date of the meeting (5 (a) Descriptions of the Army’s central RP) in lieu of the statement required by U.S.C. 552b(e)). and field organization and the § 519.5. (j) Notices of establishment or renewal established places at which, the officers of advisory committees in accordance § 519.7 Regulatory review. from whom, and the methods whereby, with their directives, statutory and/or the public can obtain information, make nonstatutory authority. (a) Proponents of Army regulations submittals or requests, or obtain (k) Public information collection will participate in the regulatory process decisions. requirements in compliance with the and adhere to the regulatory process as (b) The procedures by which the Paperwork Reduction Act (PRA, 44 prescribed in this regulation when Army conducts its business with the U.S.C. 3501 et seq.) reviewing their existing publications. public, both formally and informally. (l) Descriptions of particular This review will follow the same (c) Rules of procedures, descriptions programs, policy, or procedures in procedural steps outlined for the of forms available or the places at which detail such as— development of new regulations. forms can be obtained, and the (1) Decisions and ruling; (b) In selecting regulations to be instructions as to the scope and contents (2) Grant application deadlines; reviewed, proponents will consider of all papers, reports, or examinations. (3) Availability of Environmental Impact (d) Substantive rules of applicability such criteria as: Statements; to the public adopted as authorized by (4) Delegations of authority; (1) The requirement for the regulation. law, and statements of general policy or (5) Issuance or revocation of licenses; (2) Costs and benefits of the regulation interpretations of general applicability and to include both quantifiable measures formulated and adopted by the Army. (6) Hearings and investigations. (to the fullest extent that these can be (e) Documents that confer a right or (m) Each amendment, revision, or usefully estimated) and qualitative privilege on a segment of the public or repeal of the foregoing. measures. have a direct or substantial impact on the public or any significant portion of § 519.10 Requirements pertaining to the (3) The type and number of the public. information to be published. complaints or suggestions received. (f) Documents that prescribe a course The following procedures will be (4) Burdens imposed directly or of conduct that must be followed by completed before submitting rules/ indirectly by the regulation to both the persons outside the government to avoid regulations for publication— public and other government entities. a penalty, or secure a right or privilege. (a) An economic analysis (EA) of the proposed or existing regulation. The EA (5) Elimination of inconsistent, (g) Documents that impose an obligation on the general public or should assess the effects of the incompatible, overlapping or members of a class persons outside the regulation on the State, local, and tribal duplicative regulations. U.S. Government. governments, and the private sector. An (6) Length of time since the regulation (h) Rules (significant) that may: EA threshold of an annual effect on the has been reviewed for scientific, (1) Have an annual effect on the economy of $100 million or more has technological, economical, or economy of $100 million or more or been established for all regulations administrative changes. adversely affect in a material way, the (Executive Order 12866.)
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(b) Regulations containing collection (2) Codes of ethics issued by Department of the Army or by the of information requirements will be professional organizations; and, Department of Defense. forwarded through the DCS, G–1 (3) Forms and formats publicly or (b) A rule issued at the installation (DAPE–ZXI–RM) to OMB prior to privately published and readily level that affects only the people near a publication as a proposed rule in the available to the person required to use particular post does not ordinarily apply Federal Register. In addition, the them. to the general public, so the Army does proponent will address any collection of (d) Proposals for incorporation by not usually publish it in the Federal information comments filed by the reference will be submitted to RMDA Register. Director, OMB, or the public in the final (AHRC–PDD–RP) (by letter) giving an (c) It is not necessary to publish in the rule. identification and subject description of Federal Register any information which (c) Statutory and nonstatutory the document statement of availability, comes within one or more of the authorities mandate regulatory review of indicating the document will be exemptions to the FOIA, 5 U.S.C. all Department of the Army proposed, reasonably available to the class of 552(b), as implemented by AR 25–55, interim, final, and withdrawn rules/ persons affected, where and how copies para. 3–200. regulations. The results are published in may be purchased or examined, and § 519.13 Procedures. the semiannual Unified Agenda of justification for the requirement to Federal Regulatory and Deregulatory incorporate by reference. The request All matters to be published in Actions. Under the requirements of will be submitted to RMDA (AHRC– accordance with this part will be regulatory review, the proponent will PDD–RP) at least 25 working days before submitted to the RMDA (AHRC–PDD– notify RMDA (AHRC–PDD–RP) when— the proposed date for submission of the RP) in the proper format prescribed in (1) Drafting a regulation that would incorporation by reference notice for the § 519.17. As provided in § 519.3(e), affect the public. Federal Register. The 25-working day Army Civil Works proponents who are (2) Reviewing regulations for revision period begins when RMDA receives the proposing rules for publication in Titles or rescission. request. 33 and 36 of the CFR may submit the (3) Rescinding a regulation. (e) RMDA will consult with the required documents directly to the OFR but must otherwise comply with the § 519.11 Incorporation by reference. Director, OFR concerning each specific provisions of this part. (a) Incorporation by reference allows request and will notify the proponent of the proponent to comply with the the outcome of the consultation. § 519.14 Effect of not publishing. (f) The proponent will submit to requirements to publish regulations in Except to the extent that a person has RMDA (AHRC–PDD–RP) a general the Federal Register by referencing actual and timely notice thereof, the notice upon approval from the Director, materials published elsewhere (e.g., Army cannot require the general public OFR to the proposal for incorporation materials that may be purchased from to comply with, or be adversely affected by reference. the Government Printing Office (GPO) by, a policy or requirement, as (g) Requirements for updating or depository libraries or are available determined in § 519.9, until it is material incorporated by reference: for review at Army installations). published in the Federal Register. Incorporated material has the same force (1) An amendment to the CFR must be and legal effect as any other properly published in the Federal Register. Subpart C—Inviting Public Comment issued regulation. Before a document (2) The proponent must provide on Certain Proposed Rules and can be incorporated by reference, the RMDA (AHRC–PDD–RP) a copy of the Submission of Petitions proponent must determine that it is incorporated material, as amended or available to the public (see 5 U.S.C. revised, to submit to the OFR. § 519.15 General. 552(a) and 1 CFR Part 51). (3) RMDA will notify the Director, Public comment must be sought on (b) Material is eligible for OFR of the changes. certain proposed rules which are incorporation by reference if it— (h) The proponent will notify RMDA required to be published in accordance (1) Is published data, criteria, (AHRC–PDD–RP) within 10 working with § 519.9. All regulations affecting standards, specifications, techniques, days if the rule does not go into effect the public will be forwarded to RMDA illustrations or similar materials. or when the rule containing the (AHRC–PDD–RP) for review and (2) Is reasonably available to and incorporation by reference is removed. coordination with OMB. This subpart usable by the class of persons affected § 519.12 Exceptions. sets forth the criteria and procedures for by the publication. inviting public comment before (a) The Army shall not publish rules (3) Does not reduce the usefulness of publication. the Federal Register publication system. in the Federal Register that: (4) Benefits the Federal Government (1) Involve any matter pertaining to a § 519.16 Applicability. and members of affected classes. military or foreign affairs function of the (a) These provisions apply only to (5) Substantially reduces the volume United States which has been those Department of the Army rules or of material published in the Federal determined under the criteria of an portions thereof that: Register. Executive Order or statute to require a (1) Are promulgated after September (c) Incorporation by reference is not security classification in the interests of 7, 2004; acceptable as a complete substitute for national defense or foreign policy. (2) Must be published in the Federal promulgating in full the material (2) Involve any matter relating to Register in accordance with § 519.9; required to be published. It can, Department of the Army Management, (3) Have a substantial and direct however, be utilized to avoid personnel, or public contracts, impact on the public or any significant unnecessary repetition of published including nonappropriated fund portion of the public; and information already reasonably contracts. (4) Do not merely implement a rule available to the class of persons affected. (3) Constitute interpretive rules, already adopted by a higher element Examples include: general statements of policy or rules of within the Department of the Army or (1) Construction standards issued by a organization, procedure or practice. by the Department of Defense. professional association of architects, (4) Merely interpret a rule already (b) Unless otherwise required by law, engineers, or builders; adopted by a higher element within the the requirement to invite advance
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public comment on proposed rules does a proposed, interim, or final rule, as § 519.20 Procedures when publishing not apply to those rules or portions applicable. adopted rules. thereof that: (e) If no action has occurred within 1 (a) After careful consideration of all (1) Do not come within the purview year of publication, the proposed rule relevant material submitted, the of paragraph (a) of this section; will be considered for withdrawal, proponent of the rule will make such (2) Involve any matter relating to a unless the proponent provides revisions in the proposed rule as military or foreign affairs function of the justification to RMDA (AHRC–PDD–RP). necessary in light of the comments United States that has been determined If the proponent determines that the received. under the criteria of an Executive Order proposed rule must be withdrawn, the (b) If it is impractical for the rule or statute to require a security proponent will submit a document to proponent to finalize the rule after the classification in the interests of national RMDA (AHRC–PDD–RP) to be comment period, due to extensive defense or foreign policy; published in the Federal Register unresolved issues, the proponent will (3) Involve any matter relating to withdrawing the proposed rule. The publish a document withdrawing the Department of the Army management, withdrawal of the proposed rule will be proposed rule. (c) The proponent will prepare a personnel, or public contracts, e.g., reported in the next edition of the preamble for publication with the final Armed Services Procurement Unified Agenda. Regulation, including nonappropriated rule. The proponent will discuss in the fund contracts; (f) Civil Works projects under the preamble the comments received in (4) Constitute interpretative rules, ASA (CW) will submit updated and response to the proposed rule and the general statements of policy or rules of proposed Unified Agenda items to decision to accept or reject the organization, procedure or practice; or AASA. comments in the revision to the (5) The proponent of the rule § 519.18 OMB Control Number. proposed rule. Preparation will be in determines for good cause that inviting accordance with guidance contained in public comment would be Each rule OMB reviews under the the Federal Register Handbook on impracticable, unnecessary, or contrary Paperwork Reduction Act is assigned an Document Drafting. to the public interest. This provision OMB control number which becomes its (d) The original and three copies of will not be utilized as a convenience to identifier throughout its life. the preamble and revised rule will be avoid the delays inherent in obtaining § 519.19 Consideration of public comment. forwarded to RMDA (AHRC–PDD–RP) and evaluating prior public comment. in the proper format. The RMDA will See also § 519.22. (a) Following publication of a notice then prepare the required certification of proposed rulemaking, all interested and submit the documents to the Office § 519.17 Procedures when proposing persons will be given an opportunity to of the Federal Register for publication in rules. participate (60 days) in the rulemaking the form of an adopted rule. (a) A description of the proposed rule through the submission of written data, (e) The proponent will provide to will be forwarded to RMDA (AHRC– views and arguments to the proponent RMDA (AHRC–PDD–RP), a copy of the PDD–RP) for regulatory and OMB of the proposed rulemaking concerned. final rule, a completed OMB Form review. The RMDA will provide a (b) If the proponent of the rule ‘‘Submission of Federal Rules Under the Regulation Identifier Number (RIN) used determines that it is in the public Congressional Review Act’’ (available at to identify and report the rule in the interest, a hearing or other opportunity http://www.whitehouse.gov/WH/EOP/ Unified Agenda to the proponent once for oral presentation of view may be OMB and http://www.gao.gov), and a OMB has approved the rule for allowed as a means of facilitating public concise statement about the rule within publication in the Proposed Rules comment. Informal consultation by 14 days of publication date in the section of the Federal Register. telephone or otherwise can also be Federal Register. The proponent will Proposed rules that have unresolved utilized to facilitate presentation of oral identify whether it is a major or a issues will not be published in the comments by interested persons. All substantive/nonsignificant rule, its Federal Register. hearings or other oral presentations will proposed effective date, significant (b) The preamble and the proposed be conducted by the proponent of the issues of interest, and a cost-benefit rule will be prepared by the proponent. rule in a manner prescribed by him/her. analysis of the rule, as applicable. The Preparation of the preamble and the A hearing file will be established for RMDA will submit a copy of all final proposed rule will be in accordance each hearing. The hearing file will rules to both Houses of Congress and the with guidance contained in the Federal include: Government Accounting Office (GAO) Register Handbook on Document (1) Public notices issued; per CRA. Drafting. (f) Army Civil Works rulemaking (c) Public comment will be invited (2) Request for the hearing; proponents, when proposing rules within a designated time, not less than (3) Data or material submitted in governed by § 519.3(e) of this regulation, 60 days, prior to the intended adoption justification thereof; may forward the documents prescribed of the proposed rule. (4) Materials submitted in opposition in paragraphs (d) and (e) of this section (d) Rulemaking proponents will to the proposed action; directly to the OFR. Army Civil Works submit the original and three copies of (5) Hearing transcript; and proponents are responsible for the proposed rule and the preamble in submitting a copy of the final rules to (6) Any other material as may be the prescribed format to RMDA (AHRC– Congress and GAO in accordance with relevant or pertinent to the subject PDD–RP). The RMDA will ensure that paragraph (e) of this section. the approved rules comply with matter of the hearing. executive and legislative requirements, (c) There is no requirement to respond § 519.21 Submission of petitions. and have the necessary coordination either orally or in writing, individually Each proponent of a rule will grant to with OMB prior to publication. Upon to any person who submits comments any interested person the right to submit OMB approval, the RMDA will certify with respect to a proposed rule. The a written petition calling for the and submit the documents to the Office proponent of the rule, however, can do issuance, amendment, or repeal of any of the Federal Register for publication as so as a matter within his/her discretion. rule to which this part applies or would
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apply if issued, as specified in § 519.16. DEPARTMENT OF HOMELAND of the United States, state and local Any such petition will be given full and SECURITY government vessels, commercial vessels, prompt consideration by the proponent. and any vessels in an emergency If compatible with the orderly conduct Coast Guard involving danger to life or property; of public business, the appropriate between 9 a.m. and 12 noon and official may, at his discretion, allow the 33 CFR Part 117 between 1 p.m. and 6 p.m. from May 15 petitioner to appear in person for the [CGD05–04–028] through September 30; between 6 p.m. purpose of supporting this petition. and 7 p.m. from May 15 through RIN 1625–AA09 After consideration of all relevant September 30 if notice is given to the bridge tender not later than 6 p.m. on matters by the proponent, the petitioner Drawbridge Operation Regulation: the day for which the opening is will be advised in writing by the Anacostia River, Washington, DC proponent of the disposition of any requested; and at all other times, if at least eight hours notice is given. petition, together with the reasons AGENCY: Coast Guard, DHS. ACTION: Final rule. CSX proposes to remotely operate the supporting that disposition. This opening and closing of the CSX Railroad provision does not apply to comments SUMMARY: The Coast Guard is changing Bridge across Anacostia River in submitted on proposed rules in the regulations that govern the operation Washington, DC, from the Benning Yard § 519.19. of the CSX Transportation (CSX) office, one mile away. In the event of failure or obstruction § 519.22 Cases in which public comment Railroad Bridge across Anacostia River, is impractical. at mile 3.4, in Washington, DC. The of the motion sensors, laser scanners, final rule will eliminate the need for a video cameras or marine-radio (a) Whenever a rulemaking proponent bridge tender by allowing the bridge to communications, the CSX Railroad determines for good cause that inviting be operated from a remote location. The Bridge would not be operated from the public comment regarding a proposed final rule will maintain the bridge’s remote location. In these situations, a rule would be impractical, unnecessary, current level of operational capabilities bridge tender must be called and on-site or contrary to the public interest, he will and continue to provide for the within 30 minutes to operate the bridge. prepare a brief statement of the reasons reasonable needs of rail transportation When rail traffic has cleared, a horn supporting this determination for and vessel navigation. will sound one prolonged blast followed incorporation in the preamble to the DATES: This rule is effective September by one short blast to indicate that the adopted rule. The preamble and 7, 2004. CSX Railroad Bridge is moving to the full open position to vessels. During adopted rule will then be published as ADDRESSES: Comments and material open span movement, the channel outlined in § 519.20(c) and (d). received from the public, as well as traffic lights will flash red, until the documents indicated in this preamble as (b) Alternatively, the proponent may bridge is in the full open position to being available in the docket, are part of request RMDA (AHRC–PDD–RP) (by vessels. In the full open position to docket CGD05–04–028 and are available letter) to adopt and publish in the vessels, the bridge channel traffic lights for inspection or copying at Commander Federal Register a separate rule will flash green. Except as provided in (obr), Fifth Coast Guard District, Federal exempting from the prepublication 33 CFR 117.31(b), the opening of the Building, 4th Floor, 431 Crawford notice provisions of this regulation draw to vessels will not exceed ten Street, Portsmouth, Virginia 23704–5004 those specific categories of rules that the minutes after rail traffic has cleared the between 8 a.m. and 4:30 p.m., Monday bridge. rulemaking proponent has determined through Friday, except Federal holidays. that public comment would be During closing span movement, the FOR FURTHER INFORMATION CONTACT: unnecessary, impractical, or contrary to channel traffic lights will flash red, the Waverly W. Gregory, Jr., Bridge the public interest. The request to horn will sound five short blasts, and an Administrator, Fifth Coast Guard audio voice-warning device will RMDA will contain an explanation of District, at (757) 398–6222. the reasons why the proponent believes announce bridge movement. Five short SUPPLEMENTARY INFORMATION: that a particular category of rule or rules blasts of the horn will continue until the should not be published in proposed Regulatory History bridge is seated and locked down. When form for public comment and a legal the bridge is seated and locked down to On May 17, 2004, we published a vessels, the channel traffic lights will review by the proponent’s servicing notice of proposed rulemaking (NPRM) continue to flash red. legal office. If RMDA in coordination entitled ‘‘Drawbridge Operation This change will save operational with the Office of Army General Regulations: Anacostia River, costs by eliminating bridge tenders, Counsel, agrees that public comment Washington, DC’’ in the Federal maintain the bridge’s current level of should not be invited with respect to the Register (69 FR 27872). We received no operating capabilities and continue cited category, the proponent will adopt comments on the proposed rule. No providing for the reasonable needs of and publish a separate rule in the public hearing was requested nor held. rail transportation and vessel Federal Register exempting such rule or Background and Purpose navigation. rules from the requirements of this part. This separate rule will include an CSX, who owns and operates this Discussion of Comments and Changes explanation of the basis for exempting movable (vertical lift-type) bridge, The Coast Guard received no each particular category from the requested changes to the operating comments on the NPRM for the CSX provisions of this part. procedures for the drawbridge. The Railroad Bridge and no changes are bridge has a vertical clearance in the being made to this final rule. [FR Doc. 04–17998 Filed 8–5–04; 8:45 am] closed position to vessels of eight feet at BILLING CODE 3710–08–P mean low water and five feet at mean Regulatory Evaluation high water. Currently, 33 CFR This rule is not a ‘‘significant 117.253(b) requires the bridge to open regulatory action’’ under section 3(f) of on signal: at all times for public vessels Executive Order 12866, Regulatory
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Planning and Review, and does not effect on State or local governments and it is not a ‘‘significant regulatory action’’ require an assessment of potential costs would either preempt State law or under Executive Order 12866 and is not and benefits under section 6(a)(3) of that impose a substantial direct cost of likely to have a significant adverse effect Order. The Office of Management and compliance on them. We have analyzed on the supply, distribution, or use of Budget has not reviewed it under that this rule under that Order and have energy. It has not been designated by the Order. It is not ‘‘significant’’ under the determined that it does not have Administrator of the Office of regulatory policies and procedures of implications for federalism. Information and Regulatory Affairs as a the Department of Homeland Security significant energy action. The Unfunded Mandates Reform Act (DHS). We reached this conclusion Administrator of the Office of based on the fact that this final rule will The Unfunded Mandates Reform Act Information and Regulatory Affairs has have minimal impact on maritime traffic of 1995 (2 U.S.C. 1531–1538) requires not designated it as a significant energy transiting the bridge. Although the CSX Federal agencies to assess the effects of action. Therefore, it does not require a Railroad Bridge will be operated from a their discretionary regulatory actions. In Statement of Energy Effects under remote location, mariners can continue particular, the Act addresses actions Executive Order 13211. that may result in the expenditure by a to their transits because all aspects of Technical Standards the current operating regulations remain State, local, or tribal government, in the essentially the same. aggregate, or by the private sector of The National Technology Transfer $100,000,000 or more in any one year. and Advancement Act (NTTAA) (15 Small Entities Though this rule will not result in such U.S.C. 272 note) directs agencies to use Under the Regulatory Flexibility Act an expenditure, we do discuss the voluntary consensus standards in their (5 U.S.C. 601–612), we have considered effects of this rule elsewhere in this regulatory activities unless the agency whether this rule would have a preamble. provides Congress, through the Office of significant economic impact on a Management and Budget, with an Taking of Private Property substantial number of small entities. explanation of why using these The term ‘‘small entities’’ comprises This rule will not affect a taking of standards would be inconsistent with small businesses, not-for-profit private property or otherwise have applicable law or otherwise impractical. organizations that are independently taking implications under Executive Voluntary consensus standards are owned and operated and are not Order 12630, Governmental Actions and technical standards (e.g., specifications dominant in their fields, and Interference with Constitutionally of materials, performance, design, or governmental jurisdictions with Protected Property Rights. operation; test methods; sampling procedures; and related management populations of less than 50,000. Civil Justice Reform The Coast Guard certifies under 5 systems practices) that are developed or U.S.C. 605(b) that this rule will not have This rule meets applicable standards adopted by voluntary consensus a significant economic impact on a in sections 3(a) and 3(b)(2) of Executive standards bodies. This rule does not use substantial number of small entities. Order 12988, Civil Justice Reform, to technical standards. Therefore, we did This final rule will not have a minimize litigation, eliminate not consider the use of voluntary significant economic impact on a ambiguity, and reduce burden. consensus standards. substantial number of small entities for Protection of Children Environment the following reasons. The final rule will provide for the CSX Railroad Bridge We have analyzed this rule under We have considered the to operate remotely and mariners will Executive Order 13045, Protection of environmental impact of this rule and continue to plan their transits in Children from Environmental Health concluded that under figure 2–1, paragraph (32)(e), of Commandant accordance with the existing bridge Risks and Safety Risks. This rule is not Instruction M16475.lD, this rule is operating regulations. an economically significant rule and would not create an environmental risk categorically excluded from further Assistance for Small Entities to health or risk to safety that might environmental documentation. The final Under section 213(a) of the Small disproportionately affect children. rule only involves the operation of an existing drawbridge and will not have Business Regulatory Enforcement Indian Tribal Governments Fairness Act of 1996 (Pub. L. 104–121), any impact on the environment. A we offered to assist small entities in This rule does not have tribal ‘‘Categorical Exclusion Determination’’ understanding the rule so that they implications under Executive Order is available in the docket where could better evaluate its effects on them 13175, Consultation and Coordination indicated under ADDRESSES. and participate in the rulemaking with Indian Tribal Governments, List of Subjects in 33 CFR Part 117 process. In our notice of proposed because it does not have a substantial Bridges. rulemaking, we provided a point of direct effect on one or more Indian contact to small entities who could tribes, on the relationship between the Regulations answer questions concerning proposed Federal Government and Indian tribes, I For the reasons discussed in the provisions or option for compliance. or on the distribution of power and responsibilities between the Federal preamble, the Coast Guard amends 33 Collection of Information Government and Indian tribes. CFR part 117 as follows: This rule calls for no new collection Energy Effects PART 117—DRAWBRIDGE of information under the Paperwork OPERATION REGULATIONS Reduction Act of 1995 (44 U.S.C. 3501– We have analyzed this rule under 3520). Executive Order 13211, Actions I 1. The authority citation for part 117 Concerning Regulations That continues to read as follows: Federalism Significantly Affect Energy Supply, Authority: 33 U.S.C. 499; 33 CFR 1.05–1(g); A rule has implications for federalism Distribution, or Use. We have Department of Homeland Security Delegation under Executive Order 13132, determined that it is not a ‘‘significant No. 0170.1; section 117.255 also issued under Federalism, if it has a substantial direct energy action’’ under that order because authority of Pub. L. 102–587, 106 Stat. 5039.
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I 2. Amend § 117.253 by revising Dated: July 26, 2004. must take action on SIP revisions paragraph (b) to read as follows: Sally Brice O’Hara, containing new and/or revised Rear Admiral, U.S. Coast Guard, Commander, regulations as being part of the SIP. On § 117.253 Anacostia River. Fifth Coast Guard District. May 22, 1997 (62 FR 27968), EPA * * * * * [FR Doc. 04–18017 Filed 8–5–04; 8:45 am] revised the procedures for incorporating (b) The CSX Railroad Bridge, mile 3.4. BILLING CODE 4910–15–P by reference federally-approved SIPs, as (1) The draw of the bridge to be a result of consultations between EPA operated by the controller at the and Office of the Federal Register (OFR). Benning Yard office shall open on ENVIRONMENTAL PROTECTION The description of the revised SIP signal: AGENCY document, IBR procedures and (i) At all times for public vessels of ‘‘Identification of plan’’ format are the United States, state and local 40 CFR Part 52 discussed in further detail in the May government vessels, commercial vessels [DC101–2029; FRL–7791–9] 22, 1997, Federal Register document. and any vessels in an emergency On December 7, 1998 (63 FR 67407), involving danger to life or property. EPA published a document in the (ii) Between 9 a.m. and 12 p.m. and Approval and Promulgation of Air Federal Register beginning the new IBR between 1 p.m. and 6 p.m. from May 15 Quality Implementation Plans; District procedure for the District of Columbia. through September 30. of Columbia; Update to Materials In this action, EPA is doing the (iii) Between 6 p.m. and 7 p.m. from Incorporated by Reference following: May 15 through September 30 if notice AGENCY: Environmental Protection 1. Announcing the first update to the is given to the controller at the Benning Agency (EPA). material being IBR’ed. Yard office not later than 6 p.m. on the ACTION: Final rule; notice of 2. Adding a § 52.470(e) which day for which the opening is requested. administrative change. (iv) At all other times, if at least eight summarizes the non-regulatory actions that EPA has taken on the District of hours notice is given to the controller at SUMMARY: EPA is updating the materials Columbia SIP. the Benning Yard office. submitted by the District of Columbia (2) The CSX Railroad Bridge shall not that are incorporated by reference (IBR) 3. Making corrections to the chart be operated by the controller at the into the State implementation plan listed in § 52.470(c), as described below: Benning Yard office in the event of (SIP). The regulations affected by this a. District of Columbia Municipal failure or obstruction of the motion update have been previously submitted Regulations (DCMR), Title 20— sensors, laser scanners, video cameras by the State agency and approved by Environment. This title is added to the or marine-radio communications, In EPA. This update affects the SIP chart. these situations, a bridge tender must be materials that are available for public b. Chapter 1 (General), second entry called to operate the bridge on-site. inspection at the National Archives and for Section 199 (Definitions and (3) Except as provided in § 117.31(b), Records Administration (NARA), the Abbreviations)—In the ‘‘EPA Approval opening of the draw shall not exceed ten Air and Radiation Docket and Date’’ column, the date format is revised minutes after clearance of rail traffic. Information Center located at EPA from ‘‘May 9, 2001’’ to ‘‘5/9/01’’. (4) A horn will sound one prolonged Headquarters in Washington, DC, and c. Chapter 2 (General and Non- blast followed by one short blast to the EPA Regional Office. attainment Area Permits), Section 204— The entry in the ‘‘Title/subject’’ column indicate that the CSX Railroad Bridge is DATES: This action is effective August 6, is revised. moving to the full open position for 2004. vessel traffic. During open span d. Chapter 2, Section 8–2:720—The ADDRESSES: SIP materials which are movement, the channel traffic lights entry in the ‘‘State Citation’’ column is incorporated by reference into 40 CFR will flash red until the bridge is in the revised to read ‘‘Section 8–2:720(c)’’; the part 52 are available for inspection at full open position to vessels. In the full entry in the ‘‘Comments’’ column is the following locations: Air Protection open position to vessels, the bridge revised. Division, U.S. Environmental Protection channel traffic lights will flash green. e. Chapter 4 (Ambient Monitoring, Agency, Region III, 1650 Arch Street, (5) A horn will sound five short Emergency Procedures, Chemical Philadelphia, Pennsylvania 19103; the blasts, the channel traffic lights will Accident Prevention and Conformity), Air and Radiation Docket and flash red, and an audio voice-warning Section 400—The entry in the ‘‘Title/ Information Center, U.S. Environmental device will announce bridge movement subject’’ column is revised. Protection Agency, 1301 Constitution during closing span movement. Five f. Chapter 5 (Source Monitoring and Avenue, NW., Room B108, Washington, short blasts of the horn will continue Testing), Section 500—The entries in DC 20460; or the National Archives and until the bridge is seated in and locked the ‘‘Title/subject’’ column are revised Records Administration (NARA). For down. When the bridge is seated and in to read ‘‘Records and Reports’’. information on the availability of this locked down position to vessels, the g. Chapter 5, Section 502.18—In the material at NARA, call 202–741–6030, channel traffic lights will continue to ‘‘EPA Approval Date’’ column, the date or go to: http://www.archives.gov/ flash red. _ format is revised from ‘‘May 9, 2001’’ to (6) The owners of the bridge shall federal register/ ‘‘5/9/01’’; the text in the ‘‘Additional code_of_federal_regulations/ provide and keep in good legible _ Information’’ column is removed. condition two board gauges painted ibr locations.html. h. Chapter 7 (Volatile Organic white with black figures not less than FOR FURTHER INFORMATION CONTACT: Compounds), all entries except for six inches high to indicate the vertical Harold A. Frankford, (215) 814–2108 or Section 710—In the ‘‘EPA Approval clearance under the closed draw at all by e-mail at [email protected]. Date’’ column, the Federal Register page stages of the tide. The gauges shall be SUPPLEMENTARY INFORMATION: The SIP is citation is revised to read ‘‘64 FR placed on the bridge so that they are a living document which the state can 57777’’. plainly visible to the operator of any revise as necessary to address the i. Chapter 7, Section 701.1 through vessel approaching the bridge from unique air pollution problems in the 701.3—In the ‘‘State citation’’ column, either upstream or downstream. State. Therefore, EPA from time to time ‘‘701.3’’ is revised to read ‘‘703.13’’.
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j. Chapter 7, Sections 708 and 713— 5. In the tables found in § 52.470(c) government and Indian tribes, as The entries in the ‘‘Title/subject’’ and (d), renaming the column heading specified by Executive Order 13175 (65 column are revised. entitled ‘‘Additional Information’’ to FR 67249, November 9, 2000). This k. Chapter 8 (Asbestos, Sulfur, and ‘‘Additional Explanation’’. action also does not have federalism Nitrogen Oxides), Section 805—In the EPA has determined that today’s rule implications because it does not have ‘‘EPA Approval Date’’ column, the falls under the ‘‘good cause’’ exemption substantial direct effects on the States, Federal Register page citation (65 FR in section 553(b)(3)(B) of the on the relationship between the national 81369) is added and the word ‘‘Type:’’ Administrative Procedures Act (APA) government and the States, or on the is removed. which, upon finding ‘‘good cause,’’ distribution of power and l. Chapter 9 (Motor Vehicle authorizes agencies to dispense with responsibilities among the various Pollutants, Lead, Odors, and Nuisance public participation and section levels of government, as specified in Pollutants), Section 904 (Oxygenated 553(d)(3) which allows an agency to Executive Order 13132 (64 FR 43255, Fuels)—In the ‘‘EPA Approval Date’’ make a rule effective immediately August 10, 1999). This action merely column, the date format is revised from (thereby avoiding the 30-day delayed approves a State rule implementing a ‘‘May 9, 2001’’ to ‘‘5/9/01’’ and the effective date otherwise provided for in Federal standard, and does not alter the Federal Register page citation (66 FR the APA). Today’s rule simply codifies relationship or the distribution of power 23614) is added. provisions which are already in effect as and responsibilities established in the m. Chapter 9—A companion entry to a matter of law in Federal and approved Clean Air Act. This rule also is not Section 915 (‘‘Section 999— State programs. Under section 553 of the subject to Executive Order 13045 Definitions’’), inadvertently omitted at APA, an agency may find good cause ‘‘Protection of Children from the time that EPA approved the where procedures are ‘‘impractical, Environmental Health Risks and Safety District’s national low emissions vehicle unnecessary, or contrary to the public Risks’’ (62 FR 19885, April 23, 1997), (NLEV) program, is inserted into the interest’’. Public comment is because it is not economically paragraph (c) chart. ‘‘unnecessary’’ and ‘‘contrary to the significant. n. Chapter 10 (Nitrogen Oxides public interest’’ since the codification Emissions Budget Program)—In the only reflects existing law. Immediate In reviewing SIP submissions, EPA’s ‘‘EPA Approval Date’’ column, the notice in the CFR benefits the public by role is to approve State choices, Federal Register publication date and removing outdated citations and provided that they meet the criteria of page citation for EPA’s approval action incorrect chart entries. the Clean Air Act. In this context, in the (12/22/00, 65 FR 80783) is added to the absence of a prior existing requirement entries for Section 1001 through 1013 Statutory and Executive Order Reviews for the State to use voluntary consensus and Section 199. Also, the Federal A. General Requirements standards (VCS), EPA has no authority Register page citation for EPA’s to disapprove a SIP submission for Under Executive Order 12866 (58 FR approval action (66 FR 55099) is added failure to use VCS. It would thus be 51735, October 4, 1993), this action is to the entry for Section 1014 (NO inconsistent with applicable law for X not a ‘‘significant regulatory action’’ and Budget Trading Program for State EPA, when it reviews a SIP submission, therefore is not subject to review by the Implementation Plans). to use VCS in place of a SIP submission Office of Management and Budget. For o. Appendices—Appendix 3—The that otherwise satisfies the provisions of this reason, this action is also not entry in the ‘‘Title/subject’’ column is the Clean Air Act. Thus, the subject to Executive Order 13211, revised. requirements of section 12(d) of the ‘‘Actions Concerning Regulations That p. Appendices—Appendix 5 (Test National Technology Transfer and Significantly Affect Energy Supply, Methods for Sources of Volatile Organic Advancement Act of 1995 (15 U.S.C. Distribution, or Use’’ (66 FR 28355, May Compounds)—In the ‘‘EPA Approval 272 note) do not apply. This rule does 22, 2001). This action merely approves Date’’ column, the Federal Register page not impose an information collection State law as meeting Federal citation is revised to read ‘‘64 FR burden under the provisions of the requirements and imposes no additional 57777’’. Paperwork Reduction Act of 1995 (44 requirements beyond those imposed by q. Title 18 (Vehicles and Traffic)— U.S.C. 3501 et seq.). This title is revised to read ‘‘District of State law. Accordingly, the Columbia Municipal Regulations Administrator certifies that this rule B. Submission to Congress and the (DCMR), Title 18—Vehicles and will not have a significant economic Comptroller General Traffic’’. impact on a substantial number of small r. Title 18, all entries except for entities under the Regulatory Flexibility The Congressional Review Act, 5 Chapter 6, Section 604 and Chapter 7, Act (5 U.S.C. 601 et seq.). Because this U.S.C. 801 et seq., as added by the Small Section 753—In the ‘‘EPA Approval rule approves pre-existing requirements Business Regulatory Enforcement Date’’ column, the date format is revised under State law and does not impose Fairness Act of 1996, generally provides from ‘‘June 11, 1999’’ to ‘‘6/11/99’’, and any additional enforceable duty beyond that before a rule may take effect, the the Federal Register page citation (64 that required by State law, it does not agency promulgating the rule must FR 31498) is added. contain any unfunded mandate or submit a rule report, which includes a s. Title 18, Chapter 99—In the significantly or uniquely affect small copy of the rule, to each House of the ‘‘Comments’’ column, an entry is added. governments, as described in the Congress and to the Comptroller General 4. Amending § 52.470(d), for the entry Unfunded Mandates Reform Act of 1995 of the United States. EPA will submit a ‘‘General Services Administration (Pub. L. 104–4). This rule also does not report containing this rule and other Central Heating and Refrigeration Plant have tribal implications because it will required information to the U.S. Senate, and West Heating Plant’’, in the ‘‘EPA not have a substantial direct effect on the U.S. House of Representatives, and Approval Date’’ column, by revising the one or more Indian tribes, on the the Comptroller General of the United Federal Register publication date format relationship between the Federal States prior to publication of the rule in from ‘‘Sept 30, 1999’’ to ‘‘9/30/99’’, and government and Indian tribes, or on the the Federal Register. This rule is not a adding the Federal Register page distribution of power and ‘‘major rule’’ as defined by 5 U.S.C. citation (64 FR 52654). responsibilities between the Federal 804(2).
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C. Petitions for Judicial Review Dated: July 15, 2004. in the Federal Register. Entries in Thomas C. Voltaggio, paragraphs (c) and (d) of this section EPA has also determined that the Acting Regional Administrator, Region III. with EPA approval dates on or after provisions of section 307(b)(1) of the June 1, 2004 will be incorporated by Clean Air Act pertaining to petitions for I 40 CFR part 52 is amended as follows: reference in the next update to the SIP judicial review are not applicable to this compilation. action. Prior EPA rulemaking actions for PART 52—[AMENDED] (2) EPA Region III certifies that the each individual component of the I rules/regulations provided by EPA at District of Columbia SIP compilations 1. The authority for citation for part 52 continues to read as follows: the addresses in paragraph (b)(3) of this had previously afforded interested section are an exact duplicate of the parties the opportunity to file a petition Authority: 42.U.S.C. 7401 et seq. officially promulgated State rules/ for judicial review in the United States Subpart J—District of Columbia regulations which have been approved Court of Appeals for the appropriate as part of the State implementation plan circuit within 60 days of such I 2. Section 52.470 is amended by as of June 1, 2004. rulemaking action. revising paragraphs (b), (c) and (d), and (3) Copies of the materials Thus, EPA sees no need in this action adding paragraph (e). incorporated by reference may be to reopen the 60-day period for filing The paragraphs are revised to read as inspected at the EPA Region III Office at such petitions for judicial review for follows: 1650 Arch Street, Philadelphia, PA these ‘‘Identification of plan’’ 19103; the EPA, Air and Radiation reorganization update actions for the § 52.470 Identification of plan. Docket and Information Center, Air District of Columbia. * * * * * Docket (6102), 1301 Constitution List of Subjects in 40 CFR Part 52 (b) Incorporation by reference. Avenue NW., Room B108, Washington, (1) Material listed as incorporated by DC. 20460; or at the National Archives Environmental protection, Air reference in paragraphs (c) and (d) was and Records Administration (NARA). pollution control, Carbon monoxide, approved for incorporation by reference For information on the availability of Incorporation by reference, by the Director of the Federal Register this material at NARA, call 202–741– Intergovernmental relations, Lead, in accordance with 5 U.S.C. 552(a) and 6030, or go to: http://www.archives.gov/ Nitrogen dioxide, Ozone, Particulate 1 CFR part 51. The material federal_register/ matter, Reporting and record keeping incorporated is as it exists on the date code_of_federal_regulations/ requirements, Sulfur oxides, Volatile of the approval, and notice of any ibr_locations.html. organic compounds. change in the material will be published (c) EPA-approved regulations.
EPA-APPROVED DISTRICT OF COLUMBIA REGULATIONS
EPA State citation Title/subject State approval Additional effective date date explanation
District of Columbia Municipal Regulations (DCMR), Title 20—Environment Chapter 1 General
Section 100 ...... Purpose, Scope and Construction .. 3/15/85 8/28/95 60 FR 44431 Section 101 ...... Inspection ...... 3/15/85 8/28/95 60 FR 44431 Section 102 ...... Orders for Compliance ...... 3/15/85 8/28/95 60 FR 44431 Section 104 ...... Hearings ...... 3/15/85 8/28/95 60 FR 44431 Section 105 ...... Penalty ...... 3/15/85 8/28/95 60 FR 44431 Section 106 ...... Confidentiality of Reports ...... 3/15/85 8/28/95 60 FR 44431 Section 107 ...... Control Devices or Practices ...... 3/15/85 8/28/95 60 FR 44431 Section 199 ...... Definitions and Abbreviations ...... 4/29/97 7/31/97 62 FR 40937 Section 199 ...... Definitions and Abbreviations ...... 4/29/97 12/7/99 Definitions of the terms: Actual 62 FR 68293 emissions, allowable emissions, begin actual construction, com- mence, complete, major modi- fication, necessary precon- struction approvals or permits, net emissions increase, new source, potential to emit, shut- down, and significant. Section 199 ...... Definitions and Abbreviations ...... 12/8/00 5/9/01 Definition of ‘‘carrier’’. 66 FR 23614 Section 8–2: 702 ...... Definitions; definition of ‘‘stack’’ ...... 7/7/72 9/22/72 7 FR 19806
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EPA-APPROVED DISTRICT OF COLUMBIA REGULATIONS—Continued
EPA State citation Title/subject State approval Additional effective date date explanation
Section 8–2: 724 ...... Variances ...... 7/7/72 9/22/72 37 FR 19806
Chapter 2 General and Non-attainment Area Permits
Section 200 ...... General Permit Requirements ...... 4/29/97 7/31/97 62 FR 40937 Section 201 ...... General Requirements for Permit 4/29/97 7/31/97 Issuance. 62 FR 40937 Section 202 ...... Modification, Revocation and Ter- 4/29/97 7/31/97 mination of Permits. 62 FR 40937 Section 204 ...... Permit Requirements for Sources 4/29/97 7/31/97 Affecting Nonattainment Areas. 62 FR 40937 Section 206 ...... Notice and Comment Prior to Per- 4/29/97 7/31/97 mit Issuance. 62 FR 40937 Section 299 ...... Definitions and Abbreviations ...... 4/29/97 7/31/97 62 FR 40937 Section 8–2:720(c) ...... Permits to Construct or Modify; 7/7/72 9/22/72 Requirement for operating permit. Permits to Operate. 37 FR 19806
Chapter 4 Ambient Monitoring, Emergency Procedures, Chemical Accident Prevention and Conformity
Section 400 ...... Air Pollution Reporting Index ...... 3/15/85 8/28/95 602 FR 44431 Section 401 ...... Emergency Procedures ...... 3/15/85 8/28/95 60 FR 44431 Section 403 ...... Determining Conformity of Federal 11/6/98 6/5/03 Actions to State or Federal Im- 68 FR 33683 plementation Plans. Section 499 ...... Definitions and Abbreviations ...... 3/15/85 8/28/95 60 FR 44431
Chapter 5 Source Monitoring and Testing
Sections 500.1 through 500.3 ...... Records and Reports ...... 3/15/97 8/28/95 60 FR 44431 Sections 500.4, 500.5 ...... Records and Reports ...... 9/30/93 1/26/95 60 FR 5134 Section 500.6 ...... Records and Reports ...... 9/30/93 10/27/99 64 FR 57777 Section 500.7...... Records and Reports—Emission 9/30/93 5/26/95 Statements. 60 FR 27944 Section 501 ...... Monitoring Devices ...... 3/15/85 8/28/95 60 FR 44431 Sections 502.1 through 502.15 ...... Sampling, Tests and Measure- 3/15/85 8/28/95 Exceptions: Paragraphs 5.11, 5.12 ments. 60 FR 44431 and 5.14 are not part of the SIP. Section 502.17...... Sampling, Tests and Measure- 09/30/93 10/27/99 ments. 64 FR 57777 Section 502.18...... Sampling, Tests and Measure- 12/8/00 5/9/01 ments. 66 FR 23614 Section 599 ...... Definitions and Abbreviations ...... 9/30/93 10/27/99 64 FR 57777
Chapter 6 Particulates
Section 600 ...... Fuel-Burning Particulate Emissions 3/15/85 8/28/95 60 FR 44431 Section 601 ...... Rotary Cup Burners ...... 3/15/85 8/28/95 60 FR 44431 Section 602 ...... Incinerators ...... 3/15/85 8/28/95 60 FR 44431 Section 603 ...... Particulate Process Emissions ...... 3/15/85 8/28/95 60 FR 44431 Section 604 ...... Open Burning ...... 3/15/85 8/28/95 60 FR 44431 Section 605 ...... Control of Fugitive Dust ...... 3/15/85 8/28/95 60 FR 44431 Section 606 ...... Visible Emissions ...... 3/15/85 8/28/95 60 FR 44431
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EPA-APPROVED DISTRICT OF COLUMBIA REGULATIONS—Continued
EPA State citation Title/subject State approval Additional effective date date explanation
Section 699 ...... Definitions and Abbreviations ...... 3/15/85 8/28/95 60 FR 44431
Chapter 7 Volatile Organic Compounds
Section 700 ...... Organic Solvents ...... 3/15/85 10/27/99 64 FR 57777 Section 701.1 through 701.13 ...... Storage of Petroleum Products ...... 3/15/85 10/27/99 64 FR 57777 Section 702 ...... Control of VOC leaks from Petro- 3/15/85 10/27/99 leum Refinery Equipment. 64 FR 57777 Section 703.2, 703.3 ...... Terminal Vapor Recovery—Gaso- 3/15/85 10/27/99 line or VOCs. 64 FR 57777 Section 703.1, 703.4 through 703.7 Terminal Vapor Recovery—Gaso- 9/30/93 10/27/99 line or VOCs. 64 FR 57777 Section 704 ...... Stage I—Vapor Recovery ...... 3/15/85 10/27/99 64 FR 57777 Section 705.1 through 705.3 ...... Stage II—Gasoline Vapor Recovery 9/30/93 10/27/99 64 FR 57777 Section 705.4 through 705.14 ...... Stage II—Gasoline Vapor Recovery 3/15/85 10/27/99 64 FR 57777 Section 706 ...... Petroleum Dry Cleaners ...... 3/15/85 10/27/99 64 FR 57777 Section 707 ...... Perchloroethylene Dry Cleaning ..... 3/15/85 10/27/99 64 FR 57777 Section 708 ...... Solvent Cleaning (Degreasing) ...... 3/15/85 10/27/99 64 FR 57777 Section 709 ...... Asphalt Operations ...... 3/15/85 10/27/99 64 FR 57777 Section 710 ...... Engraving and Plate Printing ...... 3/15/85 8/4/92 57 FR 34249 Section 711 ...... Pumps and Compressors ...... 3/15/85 10/27/99 64 FR 57777 Section 712 ...... Waste Gas Disposal from Ethylene 3/15/85 10/27/99 Producing Plant. 64 FR 57777 Section 713 ...... Waste Gas Disposal from Vapor 3/15/85 10/27/99 Blow-down Systems. 64 FR 57777 Section 715...... Reasonably Available Control 09/30/93 10/27/99 Technology. 64 FR 57777 Section 716 ...... Offset Lithography ...... 10/2/98 10/27/99 64 FR 57777 Section 799 ...... Definitions and Abbreviations ...... 09/30/93 10/27/99 64 FR 57777
Chapter 8 Asbestos, Sulfur and Nitrogen Oxides
Section 801 ...... Sulfur Content of Fuel Oils ...... 3/15/85 8/28/95 60 FR 44431 Section 802 ...... Sulfur Content of Coal ...... 3/15/85 8/28/95 60 FR 44431 Section 803 ...... Sulfur Process Emissions ...... 3/15/85 8/28/95 60 FR 44431 Section 804 ...... Nitrogen Oxide Emissions ...... 3/15/85 8/28/95 60 FR 44431 Section 805...... Reasonably Available Control 11/19/93 and 12/26/00 Technology for Major Stationary 12/8/00 65 FR 81369 Sources of Oxides of Nitrogen. Section 899 ...... Definitions and Abbreviations ...... 3/15/85 8/28/95 60 FR 44431
Chapter 9 Motor Vehicle Pollutants, Lead, Odors, and Nuisance Pollutants
Section 904 ...... Oxygenated Fuels ...... 7/25/97 5/9/01 Addition of subsection 904.3 to 66 FR 23614 make the oxygenated gasoline program a CO contingency measure. Section 915...... National Low Emissions Vehicle 2/11/00 7/20/00 Program. 65 FR 44981
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EPA-APPROVED DISTRICT OF COLUMBIA REGULATIONS—Continued
EPA State citation Title/subject State approval Additional effective date date explanation
Section 999 ...... Definitions and Abbreviations ...... 2/11/00 7/20/00 65 FR 44981
Chapter 10 Nitrogen Oxides Emissions Budget Program
Section 1000 ...... Applicability ...... 12/8/00 12/22/00 65 FR 80783 Section 1001 ...... General Provisions ...... 12/8/00 12/22/00 65 FR 80783 Section 1002 ...... Allowance Allocation ...... 12/8/00 12/22/00 65 FR 80783 Section 1003 ...... Permits ...... 12/8/00 12/22/00 65 FR 80783 Section 1004 ...... Allowance Transfer and Use ...... 12/8/00 12/22/00 65 FR 80783 Section 1005 ...... Allowance Banking ...... 12/8/00 12/22/00 65 FR 80783 Section 1006 ...... NOX Allowance Tracking system ... 12/8/00 12/22/00 65 FR 80783 Section 1007 ...... Emission Monitoring ...... 12/8/00 12/22/00 65 FR 80783 Section 1008 ...... Record Keeping ...... 12/8/00 12/22/00 65 FR 80783 Section 1009 ...... Reporting ...... 12/8/00 12/22/00 65 FR 80783 Section 1010 ...... End-of-Season Reconciliation ...... 12/8/00 12/22/00 65 FR 80783 Section 1011 ...... Compliance Certification ...... 12/8/00 12/22/00 65 FR 80783 Section 1012 ...... Penalties ...... 12/8/00 12/22/00 65 FR 80783 Section 1013 ...... Program Audit ...... 12/8/00 12/22/00 65 FR 80783 Section 1014 ...... NOX Budget Trading Program for 5/1/01 11/1/01 State Implementation Plans. 66 FR 55099 Section 1099 ...... Definitions and Abbreviations ...... 12/8/00 12/22/00 65 FR 80783
Appendices
Appendix 1 ...... Emission Limits for Nitrogen Oxide 3/15/85 8/28/95 60 FR 44431 Appendix 2...... Table of Allowable Particulate 3/15/85 8/28/95 Emissions from Process Sources. 60 FR 44431 Appendix 3 ...... Graphic Arts Sources ...... 3/15/85 8/28/95 60 FR 44431 Appendix 5 ...... Test Methods for Sources of Vola- 9/30/93 10/27/99 tile Organic Compounds. 64 FR 57777
District of Columbia Municipal Regulations (DCMR), Title 18—Vehicles and Traffic
Chapter 4 Motor Vehicle Title and Registration
Section 411...... Registration of Motor Vehicles: 10/10/86 6/11/99 General Provisions. 64 FR 31498 Section 412 ...... Refusal of Registration ...... 10/17/97 6/11/99 64 FR 31498 Section 413 ...... Application for Registration ...... 9/16/83 6/11/99 64 FR 31498 Section 429...... Enforcement of Registration and 3/4/83 6/11/99 Reciprocity Requirements. 64 FR 31498
Chapter 6 Inspection of Motor Vehicles
Section 600 ...... General Provisions ...... 4/23/82 6/11/99 64 FR 31498 Section 602 ...... Inspection Stickers ...... 3/15/85 6/11/99 64 FR 31498 Section 603 ...... Vehicle Inspection: Approved Vehi- 6/29/74; 6/11/99 cles. Recodified 4/1/ 64 FR 31498 81
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EPA-APPROVED DISTRICT OF COLUMBIA REGULATIONS—Continued
EPA State citation Title/subject State approval Additional effective date date explanation
Section 604 ...... Vehicle Inspection: Rejected Vehi- 11/23/84 4/10/86 cles. 51 FR 12322 Section 606...... Vehicle Inspection: Condemned 6/29/74; 6/11/99 Vehicles. Recodified 4/1/ 64 FR 31498 81 Section 607...... Placement of Inspection Stickers 4/7/77; 6/11/99 on Vehicles. Recodified 4/1/ 64 FR 31498 81 Section 608 ...... Lost, Mutilated or Detached Inspec- 6/30/72; 6/11/99 tion Stickers. Recodified 4/1/ 64 FR 31498 81 Section 609 ...... Inspection of Non-Registered Motor 6/30/72 6/11/99 Vehicles. Recodified 4/1/ 64 FR 31498 81 Section 617 ...... Inspection Certification ...... 7/22/94 6/11/99 64 FR 31498 Section 618 ...... Automotive Emissions Repair Tech- 7/22/94 6/11/99 nician. 64 FR 31498 Section 619...... Vehicle Emission Recall Compli- 10/17/97 6/11/99 ance. 64 FR 31498
Chapter 7 Motor Vehicle Equipment
Section 701 ...... Historic Motor Vehicles ...... 2/25/78; 6/11/99 Recodified 4/1/ 64 FR 31498 81 Section 750 ...... Exhaust Emission Systems ...... 4/26/77; 6/11/99 Recodified 4/1/ 64 FR 31498 81 Section 751 ...... Compliance with Exhaust Emission 7/22/94 6/11/99 Standards. 64 FR 31498 Section 752 ...... Maximum Allowable Levels of Ex- 10/17/97 6/11/99 haust Components. 64 FR 31498 Section 753...... Inspection of Exhaust Emission 5/23/83 4/10/86 Systems. 51 FR 12322 Section 754 ...... Federal Transient Emissions Test: 7/22/94 6/11/99 Testing Procedures. 64 FR 31498 Section 755 ...... Federal Transient Emissions Test: 7/22/94 6/11/99 Equipment. 64 FR 31498 Section 756 ...... Federal Transient Emissions Test: 7/22/94 6/11/99 Quality Assurance Procedures. 64 FR 31498
Chapter 11 Motor Vehicle Offenses and Penalties
Section 1101 ...... Offenses Related to Title, Registra- 6/30/72; 6/11/99 tion, and Identification Tags. Recodified 4/1/ 64 FR 31498 81 Section 1103...... Offenses Related to Inspection 6/30/72; 6/11/99 Stickers. Recodified 4/1/ 64 FR 31498 81 Section 1104 ...... False Statements, Alterations, For- 11/29/91 6/11/99 gery, and Dishonest Checks. 64 FR 31498 Section 1110 ...... Penalties for Violations ...... 11/29/91 6/11/99 64 FR 31498
Chapter 26 Civil Fines for Moving and Non-Moving Violations
Section 2600.1 ...... Infraction: Inspection, Registration 8/31/90 6/11/99 Certificate, Tags. 64 FR 31498
Chapter 99 Definitions
Section 9901 ...... Definitions ...... 10/1/97 6/11/99 Definition of ‘‘Emission Recall No- 64 FR 31498 tice.’’
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(d) EPA-approved State source- specific requirements.
EPA-APPROVED DISTRICT OF COLUMBIA SOURCE-SPECIFIC REQUIREMENTS
State effective EPA approval Additional ex- Name of source Permit number date date planation
General Services Administration Central N/A—it is the operating permit issued to GSA 10/17/97 9/30/99 The following Heating and Refrigeration Plant and West by the District of Columbia on October 17, 64 FR 52654 portions of Heating Plant. 1997. GSA’s oper- ating permit are not in- cluded in the SIP: The por- tion of Condi- tion 3 referring to Table 1; Table 1; Con- dition 4; Table 3; and Condi- tion 17.
(e) EPA-approved non-regulatory and quasi-regulatory material.
Name of non-regulatory SIP revi- State submittal EPA approval sion Applicable geographic area date date Additional explanation
1990 Base Year Emissions Inven- Washington, DC carbon monoxide 1/13/94 1/30/96 52.474(a) CO. tory. maintenance area. 10/12/95 61 FR 2931 1990 Base Year Emissions Inven- Metropolitan Washington ozone 1/13/94 4/23/97 52.474(b) VOC, NOX, CO. tory. nonattainment area. 62 FR 19676 1990 Base Year Emissions Inven- Metropolitan Washington ozone 11/3/97 7/8/98 52.474(c) VOC, NOX. tory. nonattainment area. 63 FR 36854 15% Rate of Progress Plan ...... Metropolitan Washington ozone 4/16/98 08/05/1999 52.476(a). nonattainment area. 64 FR 42600 Negative Declaration-VOC Source Metropolitan Washington ozone 4/8/93 and 10/27/99 52.478(a), 52.478(b). Categories. nonattainment area. 9/4/97 64 FR 57777 Photochemical Assessment Moni- Metropolitan Washington ozone 1/14/94 9/11/95 52.480. toring Stations (PAMS) Program. nonattainment area. 60 FR 47081 Small Business stationary source Statewide ...... 10/22/93 8/17/94 52.510. technical and environmental 59 FR 42165 compliance assistance program. Establishment of air quality moni- Statewide ...... 5/16/79 8/31/81 Subpart I, section 52.465(c)(18). toring Network. 46 FR 43676 Lead (Pb) SIP ...... Washington, DC ...... 10/7/82 8/18/83 52.515(c)(22). 48 FR 37401 Plan for public notification of air Metropolitan Washington ozone 12/5/83 6/1/84 52.515(c)(23). quality. nonattainment area. 49 FR 22810 Revision for conflict of interest pro- Metropolitan Washington ozone 12/6/83 6/1/84 52.515(c)(24). cedures [CAA Section 128 SIP]. nonattainment area. 49 FR 22810 Carbon Monoxide Maintenance Washington, DC ...... 10/12/95 1/30/96 52.515(c)(36). Plan. 61 FR 2931
[FR Doc. 04–17780 Filed 8–5–04; 8:45 am] DEPARTMENT OF HOMELAND ACTION: Interim rule. BILLING CODE 6560–50–P SECURITY SUMMARY: This interim rule lists Federal Emergency Management communities where modification of the Agency Base (1% annual-chance) Flood Elevations (BFEs) is appropriate because 44 CFR Part 65 of new scientific or technical data. New flood insurance premium rates will be [Docket No. FEMA–P–7636] calculated from the modified BFEs for new buildings and their contents. Changes in Flood Elevation DATES: Determinations These modified BFEs are currently in effect on the dates listed in AGENCY: Federal Emergency the table below and revise the Flood Management Agency, Emergency Insurance Rate Map(s) in effect prior to Preparedness and Response Directorate, this determination for the listed Department of Homeland Security. communities.
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From the date of the second For rating purposes, the currently Protection Act of 1973, 42 U.S.C. 4105, publication of these changes in a effective community number is shown and are required to maintain community newspaper of local circulation, any and must be used for all new policies eligibility in the NFIP. No regulatory person has ninety (90) days in which to and renewals. flexibility analysis has been prepared. request through the community that the The modified BFEs are the basis for Regulatory Classification. This Mitigation Division Director of the the floodplain management measures interim rule is not a significant Emergency Preparedness and Response that the community is required to either regulatory action under the criteria of Directorate reconsider the changes. The adopt or to show evidence of being Section 3(f) of Executive Order 12866 of modified BFEs may be changed during already in effect in order to qualify or September 30, 1993, Regulatory the 90-day period. to remain qualified for participation in Planning and Review, 58 FR 51735. ADDRESSES: The modified BFEs for each the National Flood Insurance Program Executive Order 12612, Federalism. community are available for inspection (NFIP). This rule involves no policies that have at the office of the Chief Executive These modified BFEs, together with federalism implications under Executive Officer of each community. The the floodplain management criteria Order 12612, Federalism, dated October respective addresses are listed in the required by 44 CFR 60.3, are the 26, 1987. table below. minimum that are required. They Executive Order 12778, Civil Justice should not be construed to mean that FOR FURTHER INFORMATION CONTACT: Reform. This rule meets the applicable the community must change any Doug Bellomo, P.E., Hazard standards of Section 2(b)(2) of Executive existing ordinances that are more Order 12778. Identification Section, Emergency stringent in their floodplain Preparedness and Response Directorate, management requirements. The List of Subjects in 44 CFR Part 65 Federal Emergency Management community may at any time enact Flood insurance, Floodplains, Agency, 500 C Street, SW., Washington, stricter requirements of its own, or DC 20472, (202) 646–2903. Reporting and recordkeeping pursuant to policies established by other requirements. SUPPLEMENTARY INFORMATION: The Federal, State, or regional entities. modified BFEs are not listed for each The changes in BFEs are in I Accordingly, 44 CFR Part 65 is community in this interim rule. accordance with 44 CFR 65.4. amended to read as follows: However, the address of the Chief National Environmental Policy Act. PART 65—[AMENDED] Executive Officer of the community This rule is categorically excluded from where the modified BFE determinations the requirements of 44 CFR Part 10, I 1. The authority citation for Part 65 are available for inspection is provided. Environmental Consideration. No continues to read as follows: Any request for reconsideration must environmental impact assessment has be based on knowledge of changed been prepared. Authority: 42 U.S.C. 4001 et seq.; conditions or new scientific or technical Regulatory Flexibility Act. The Reorganization Plan No. 3 of 1978, 3 CFR, data. Mitigation Division Director of the 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, The modifications are made pursuant Emergency Preparedness and Response 3 CFR, 1979 Comp., p. 376. to Section 201 of the Flood Disaster Directorate certifies that this rule is § 65.4 [Amended] Protection Act of 1973, 42 U.S.C. 4105, exempt from the requirements of the and are in accordance with the National Regulatory Flexibility Act because I 2. The tables published under the Flood Insurance Act of 1968, 42 U.S.C. modified base flood elevations are authority of § 65.4 are amended as 4001 et seq., and with 44 CFR Part 65. required by the Flood Disaster follows:
Dates and name of newspaper Effective date of Community State and county Location where notice was Chief executive officer of community modification number published
Arkansas: Pulaski (Case City of Little Rock Mar. 18, 2004, The Honorable Jim Dailey, Mayor, Jun. 24, 2004 ...... 050181 No.: 03–06–2056P). Mar. 25, 2004, City of Little Rock, 500 West Arkansas Dem- Markham, Little Rock, AR 72201. ocrat-Gazette. Arkansas: Benton (Case City of Rogers ..... May 19, 2004, The Honorable Steve Womack, May 3, 2004 ...... 050013 No.: 03–06–2052P). May 26, 2004, Mayor, City of Rogers, 300 W. The Rogers Poplar Street, Rogers, AR 72756. Hometown News. Illinois: Kane (Case No.: City of Aurora ..... Mar. 3, 2004, The Honorable David L. Stover, Feb. 3, 2004 ...... 170320 03–05–3991P). Mar. 10, 2004, Mayor, City of Aurora, 44 East The Beacon Downer Place, Aurora, IL 60507. News. Illinois: St. Clair (Case City of Belleville .. May 5, 2004, May The Honorable Mark A. Kern, Aug. 12, 2004 ...... 170618 No.: 04–05–2333P). 12, 2004, The Mayor, City of Belleville, 101 Belleville Jour- South Illinois Street, Belleville, IL nal. 62220. Illinois: Cook (Case No.: Village of Burr Apr. 7, 2004, Apr. Ms. Jo Irmen, President, Village of Jul. 14, 2004 ...... 170071 03–05–1460P). Ridge. 14, 2004, The Burr Ridge, Village Hall, 7660 Suburban Life. County Line Road, Burr Ridge, IL 60521. Illinois: Will (Case No.: Village of Frank- May 20, 2004, The Honorable Ray Rossi, Mayor, May 4, 2004 ...... 170701 04–05–0084P). fort. May 27, 2004, Village of Frankfort, 432 West The Herald Nebraska Street, Frankfort, IL News. 60423.
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Dates and name of newspaper Effective date of Community State and county Location where notice was Chief executive officer of community modification number published
Illinois: Kane & DeKalb Unincorporated Mar. 18, 2004, Mr. Michael W. McCoy, Chairman, Jun. 24, 2004 ...... 170896 (Case No.: 03–05– Areas. Mar. 25, 2004, Kane County Board, Kane County 3994P). The Elburn Government Center, 719 South Herald. Batavia Avenue, Bldg. A, Gene- va, IL 60134. Illinois: Kane & DeKalb Village of Maple Mar. 18, 2004, Mr. Mark T. Delany, Village Presi- Jun. 24, 2004 ...... 171018 (Case No.: 03–05– Park. Mar. 25, 2004, dent, Village of Maple Park, P.O. 3994P). The Elburn Box 220, Maple Park, IL 60151. Herald. Illinois: Cook (Case No.: Village of Orland May 20, 2004, The Honorable Daniel McLaughlin, Aug. 26, 2006 ...... 170140 03–05–3383P). Park. May 27, 2004, Mayor, Village of Orland Park, Orland Town- Village Hall, 14700 South Ravinia ship Messenger. Avenue, Orland Park, IL 60462. Illinois: Will (Case No.: Village of Plain- Apr. 7, 2004, Apr. The Honorable Richard Rock, Mar. 5, 2004 ...... 170771 04–05–0088P). field. 14, 2004, The Mayor, Village of Plainfield, 530 Enterprise. West Lockport Street, Suite 206, Plainfield, IL 60544. Indiana: Hamilton (Case City of Carmel ..... May 4, 2004, May The Honorable James Brainard, Aug. 10, 2004 ...... 180081 No.: 04–05–1640P). 11, 2004, The Mayor, City of Carmel, One Civic Noblesville Square, Carmel, IN 46032. Ledger. Indiana: Hamilton (Case Town of fishers ... Apr. 2, 2004, Apr. Mr. Michael J. Booth, Manager, Jul. 9, 2004 ...... 180423 No.: 03–05–5182P). 9, 2004, The Town of Fishers, Fishers Town Noblesville Hall, One Municipal Drive, Fish- Ledger. ers, IN 46038. Indianapolis: Marion City of Indianap- May 21, 2004, The Honorable Barthen Peterson, Aug. 27, 2004 ...... 180159 (Case No.: 03–05– olis. May 28, 2004, Mayor, City of Indianapolis, 200 3997P). The Indianap- East Washington Street, Suite olis Star. 2501, City-County Building, Indi- anapolis, IN 46204. Iowa: Story (Case No.: City of Ames ...... Apr. 8, 2004, Apr. The Honorable Ted Tedesco, Jul. 15, 2004 ...... 190254 03–07–892P). 15, 2004, The Mayor, City of Ames, 515 Clark Tribune. Avenue, Ames, IA 50010. Indiana: Hendricks (Case Unincorporated May 17, 2004, Mr. Steven L. Ostermeier, Presi- Aug. 23, 2004 ...... 180415 No.: 03–05–3373P). Areas. May 24, 2004, dent, Board of Commissiioners, Hendricks Hendricks County Government County Flyer. Center, 355 South Washington, Suite 204, Danville, IN 46122. Iowa: Polk (Case No.: City of Ankeny .... Apr. 20, 2004, The Honorable Merle O. Johnson, Jul. 27, 2004 ...... 190226 03–07–499P). Apr. 27, 2004, Mayor, City of Ankeny, City Hall, Ankeny Press 410 West First Street, Ankeny, IA Citizen. 50021. Iowa: Scott (Case No.: City of Davenport Mar. 24, 2004, The Honorable Charles W. Brooke, Jun. 30, 2004 ...... 190242 03–07–888P). Mar. 31, 2004, Mayor, City of Davenport, City Quad City Council Office, 226 West 4th Times. Street, Davenport, IA 52801. Iowa: Story (Case No.: Unincorporated Mar. 25, 2004, Ms. Jane Halliburton, Story County Jul. 1, 2004 ...... 190907 04–07–046P). Areas. Apr. 1, 2004, Board of Commissioners, 900 6th The Tribune. Street, Nevada, IA 50201. Kansas: Johnson (Case City of Overland May 13, 2004, The Honorable Ed Eilert, Mayor, Apr. 21, 2004 ...... 200174 No.: 04–07–026P). Park. May 20, 2004, City of Overland Park, City Hall, The Sun News- 8500 Santa Fe Frive, Overland papers. Park, KS 66212. Kansas: Sedgwick (Case City of Wichita .... Mar. 10, 2004, The Honorable Carlos Mayans, Feb. 12, 2004 ...... 200328 No.: 03–07–898P). Mar. 17, 2004, Mayor, City of Wichita, City Hall— The Wichita 1st Floor, 455 North Main Street, Eagle. Wichita, KS 67202. Kansas: Sedgwick (Case City of Wichita .... Apr. 9, 2004, Apr. The Honorable Carlos Mayans, Apr. 26, 2004 ...... 200328 No.: 03–07–890P). 16, 2004, The Mayor, City of Wichita, City Hall— Wichita Eagle. 1st Floor, 455 North Main Street, Wichita, KS 67202. Kansas: Sedgwick (Case City of Wichita .... Apr. 22, 2004, The Honorable Carlos Mayans, Jul. 29, 2004 ...... 200328 No.: 03–07–1283P). Apr. 29, 2004, Mayor, City of Wichita, City Hall— The Wichita 1st Floor, 455 North Main Street, Eagle. Wichita, KS 67202. Michigan: Wayne (Case Township of Can- May 20, 2004, Mr. Thomas Yack, Township Super- Aug. 26, 2004 ...... 260219 No.: 03–05–3992P). ton. May 27, 2004, visor, Township of Canton, 1150 Canton Eagle. South Canton Center, Canton, MI 48188.
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Dates and name of newspaper Effective date of Community State and county Location where notice was Chief executive officer of community modification number published
Michigan: Macomb (Case Charter Township Mar. 23, 2004, Mr. Robert J. Cannon, Township Feb. 19, 2004 ...... 260121 No.: 04–05–0884P). of Clinton. Mar. 30, 2004, Supervisor, 40700 Romeo Plank The Macomb Road, Clinton Township, MI Daily. 48038. Michigan: Ingham (Case Charter Township May 23, 2004, Mr. Gerald Richards, Township Aug. 29, 2004 ...... 260093 No.: 03–05–5186P). of Meridian. May 30, 2004, Manager, Charter Township of The Town Cou- Meridian, 5151 Marsh Road, rier.. Okemos, MI 48864–1198. Minnesota: Washington City of Hugo ...... Mar. 31, 2004, The Honorable Fran Miron, Mayor, Mar. 19, 2004 ...... 270504 (Case No.: 03–05– Apr. 7, 2004, City of Hugo, 14669 Fitzgerald 2576P). The White Bear Avenue North, Hugo, MN 55038. Press. Minnesota: Olmsted Unincorporated Mar. 23, 2004, Mr. Richard Devin, County Adminis- Feb. 23, 2004 ...... 270626 (Case No.: 03–05– Areas. Mar. 30, 2004, trator, Olmsted County, 151 4th 3988P). The Post-Bul- Street SE., Rochester, MN 55904. letin. Minnesota: Olmsted City of Rochester Mar. 23, 2004, The Honorable Ardell Brede, Mayor, Feb. 23, 2004 ...... 275246 (Case No.: 03–05– Mar. 30, 2004, City of Rochester, City Hall, 3988P). The Post-Bul- Room 281, 201 4th Street SE., letin. Rochester, MN 55904. Minnesota: Winona (Case City of Winona .... Mar. 24, 2004, The Honorable Jerry Miller, Mayor, Feb. 5, 2004 ...... 275250 No.: 04–05–0100P). Mar. 31, 2004, City of Winona, 207 Lafayette Winona Daily Street, Winona, MN 55987. News. Missouri: Greene (Case City of Republic .. May 12, 2004, The Honorable Keith D. Miller, Apr. 19, 2004 ...... 290148 No.: 04–07–038P). May 19, 2004, Mayor, City of Republic, 213 The Republic North Maine Street, Republic, MO Monitor. 65738. Nebraska: Sarpy (Case City of Bellevue .. Mar. 24, 2004, The Honorable Jerry Ryan, Mayor, Jul. 1, 2004 ...... 310191 No.: 02–07–551P). Mar. 31, 2004, City of Bellevue, 2310 West Mis- The Bellevue souri Avenue, Bellevue, NE Leader. 68005. Nebraska: Sarpy (Case City of La Vista ... Mar. 25, 2004, The Honorable Harold Anderson, Jul. 1, 2004 ...... 310192 No.: 02–07–551P). Apr. 1, 2004, Mayor, City of La Vista, 8116 The Papillion Park View Boulevard, La Vista, Times. NE 68128. Nebraska: Lancaster City of Lincoln ..... May 28, 2004, The Honorable Coleen J. Seng, May 5, 2004 ...... 315273 (Case No.: 04–07– June 4, 2004, Mayor, City of Lincoln, 555 South 030P). Lincoln Journal 10th Street, Lincoln, NE 68508. Star. Nebraska: Sarpy (Case City of Papillion ... Mar. 25, 2004, The Honorable James E. Blinn, Jul. 1, 2004 ...... 315275 No.: 02–07–551P). Apr. 1, 2004, Mayor, City of Papillion, 122 East The Papillion Third Street, Papillion, NE 68046. Times. New Mexico: Bernalillo City of Albu- May 19, 2004, The Honorable Martin Chavez, ...... (Case No.: 03–06– querque. May 26, 2004, Mayor, City of Albuquerque, P.O. 1927P). Albuquerque Box 1293, Albuquerque, NM Journal. 87103. New Mexico: Bernalillo City of Albu- June 11, 2004, The Honorable Martin Chavez, Sept. 17, 2004 ...... 350002 (Case No.: 03–06– querque. June 18, 2004, Mayor, City of Albuquerque, P.O. 832P). Albuquerque Box 1293, Albuquerque, NM Journal. 87103. New Mexico: Bernalillo City of Apr. 30, 2004, The Honorable Martin Chavez, Apr. 16, 2004 ...... 350002 (Case No.: 04–06– Albuqerque. May 7, 2004, Mayor, City of Albuquerque, P.O. 039P). Albuquerque Box 1293, Albuquerque, NM Journal. 87103. New Mexico: Bernalillo City of Albu- Apr. 15, 2004, The Honorable Martin Chavez, Mar. 23, 2004 ...... 350002 (Case No.: 04–06– querque. Apr. 22, 2004, Mayor, City of Albuquerque, P.O. 671P). Albuerque Jour- Box 1293, Albuquerque, NM nal. 87103. New Mexico: Bernalillo City of Albu- Mar. 25, 2004, The Honorable Martin Chavez, Mar. 3, 2004 ...... 350002 (Case No.: 03–06– querque. Apr. 1, 2004, Mayor, City of Albuquerque, P.O. 1003P). Albuquerque Box 1293, Albuquerque, NM Journal. 87103. New Mexico: Bernalillo Unincorporated May 6, 2004, May The Honorable Tom Rutherford, Apr. 20, 2004 ...... 350001 (Case No.: 04–06– Areas. 23, 2004, Chairman, Bernalillo County, One 654P). Albuqerque Civic Plaza NW., Albuquerque, Journal. NM 87102.
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Dates and name of newspaper Effective date of Community State and county Location where notice was Chief executive officer of community modification number published
New Mexico: Bernalillo Unincorporated Apr. 30, 2004, The Honorable Tom Rutherford, Apr. 16, 2004 ...... 350001 (Case No.: 04–06– Areas. May 7, 2004, Chairman, Bernalillo County, One 039P). Albuquerque Civic Plaza NW., Albuquerque, Journal. NM 87102. New Mexico: Bernalillo Unincorporated Mar. 22, 2004, The Honorable Tom Rutherford, Feb. 27, 2004 ...... 350001 (Case No.: 04–06– Areas. Mar. 29, 2004, Chairman, Bernalillo County, One 659P). Albuquerque Civil Plaza NW., Albuquerque, Journal. NM 87102. New Mexico: Dona Ana City of Las Mar. 23, 2004, The Honorable William Mattiace, Feb. 18, 2004 ...... 355332 (Case No.: 04–06– Cruces. Mar. 30, 2004, Mayor, City of Las Cruces, P.O. 234P). Las Cruces Box 20000, Las Cruces, NM Sun News. 88004. Ohio: Butler (Case No.: Unincorporated May 19, 2004, Mr. Michael A. Fox, President, Aug. 25, 2004 ...... 390037 03–05–3976P). Areas. May 26, 2004, County Commissioners, Butler Middletown County, Gov’t. Services Center, Journal. 315 High Street, 6th Floor, Ham- ilton, OH 45011. Ohio: Fairfield (Case No.: Unincorporated Apr. 7, 2004, Apr. Mr. Jon Myers, Fairfield County, Apr. 5, 2004 ...... 390158 03–05–5190P). Areas. 14, 2004, Lan- Board of Commissioners, 210 caster Eagle- East Main Street, Room 301, Gazette. Lancaster, OH 43130. Ohio: Butler & Warren Village of Monroe May 19, 2004, The Honorable Robert Routson, Aug. 25, 2004 ...... 390042 (Case No.: 03–05– May 26, 2004, Mayor, Village of Monroe, 233 3976P). Middletown South Main Street, P.O. Box 330, Journal. Monroe, OH 45050–0330. Ohio: Warren (Case No.: Village of May 13, 2004, The Honorable John Agenbroad, Aug. 19, 2004 ...... 390564 03–05–5187P). Springboro. May 20, 2004, Mayor, Village of Springboro, 320 The Springboro West Central Avenue, Star Press. Springboro, OH 45066. Ohio: Warren (Case No.: Unincorporated May 13, 2004, Mr. C. Michael Kilburn, President, Aug. 19, 2004 ...... 390757 03–05–5187P). Areas. May 20, 2004, Warrant County, Board of The Springboro Commissioiners, 320 West Cen- Star-Press. tral Avenue, Springboro, OH 45066. Oklahoma: Oklahoma City of Midwest Mar. 25, 2004, The Honorable Eddie Reed, Mayor, Mar. 2, 2004 ...... 400405 (Case No.: 04–06– City. Apr. 1, 2004, Midwest City, P.O. Box 10570, 035P). The Midwest Midwest City, OK 73140. City Sun. Oklahoma: Oklahoma City of Oklahoma May 28, 2004, The Honorable Mick Cornett, May 5, 2004 ...... 405378 (Case No.: 04–06– City. June 4, 2004, Mayor, City of Oklahoma City, 131P). The Daily Okla- 200 North Walker, Suite 302, homan. Oklahoma City, OK 73102. Oklahoma: Tulsa (Case City of Tulsa ...... Mar. 18, 2004, The Honorable Bill LaFortune, Feb. 12, 2004 ...... 405381 No.: 04–06–552P). Mar. 25, 2004, Mayor, City of Tulsa, City Hall, Tulsa World. 200 Civic Center, Tulsa, OK 74103. Texas: Taylor and Jones City of Abilene .... May 4, 2004, May The Honorable Grady Barr, Mayor, Aug. 10, 2004 ...... 485450 (Case No.: 03–06– 11, 2004, Abi- City of Abilene, P.O. Box 60, Abi- 2669P). lene Reporter- lene, TX 79604. News. Texas: Parker (Case No.: City of Aledo ...... Mar. 3, 2004, The Honorable Sue Langley, Mayor, June 9, 2004 ...... 481659 03–06–1950P). Mar. 10, 2004, City of Aledo, 200 Old Annetta The Weather- Road, Aledo, TX 76008. ford Democrat. Texas: Dallas (Case No.: City of Carrollton Apr. 7, 2004, Apr. The Honorable Mark Stokes, Mayor, Mar. 23, 2004 ...... 480167 03–06–2532P). 14, 2004, The City of Carrollton, 1945 East Carrollton Jackson Road, Carrollton, TX Leader. 75006. Texas: Williamson (Case City of Cedar May 19, 2004, The Honorable Bob Young, Mayor, Aug. 25, 2004 ...... 481282 No.: 04–06–651P). Park. May 26, 2004, City of Cedar Park, 600 North The Hill Coun- Bell Boulevard, Cedar Park, TX try News. 78613. Texas: Tarrant (Case City of Colleyville Jan. 29, 2004, The Honorable Joe Hocutt, Mayor, May 6, 2004 ...... 480590 No.: 04–06–383P). Feb. 5, 2004, City of Colleyville, 5400 Bransford The Star Tele- Road, Colleyville, TX 76034. gram. Texas: Comal (Case No.: Unincorporated Apr. 28, 2004, The Honorable Danny Scheel, Aug. 4, 2004 ...... 485463 03–06–1394P). Areas. May 5, 2004, Judge, Comal County, 199 Main Comal County Plaza, New Braunfels, TX 78130. Beacon.
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Dates and name of newspaper Effective date of Community State and county Location where notice was Chief executive officer of community modification number published
Texas: Denton (Case Town of Flower Mar. 3, 2004, The Honorable Lori DeLuca, Mayor, June 9, 2004 ...... 480777 No.: 03–06–2331P). Mound. Mar. 10, 2004, Town of Flower Mount, 2121 Flower Mound Cross Timbers Road, Flower Leader. Mound, TX 75028. Texas: Fort Bend (Case Fort Bend County May 19, 2004, Mr. Mark Massey, President, Board Apr. 30, 2004 ...... 481590 No.: 04–06–561P). M.U.D. No. 23. May 26, 2004, of Directors, Fort Bend County Fort Bend Star. MUD No. 23, 301 Jackson Street, Richmond, TX 77469. Texas: Tarrant (Case City of Fort Worth Mar. 3, 2004, The Honorable Michael Moncrief, Mar. 12, 2004 ...... 480596 No.: 03–06–2551P). Mar. 10, 2004, Mayor, City of Fort Worth, 1000 The Star Tele- Throckmorton Street, Fort Worth, gram. TX 76102. Texas: Tarrant (Case City of Fort Worth Apr. 13, 2004, The Honorable Michael Moncrief, Jul. 20, 2004 ...... 480596 No.: 04–06–230P). Apr. 20, 2004, Mayor, City of Fort Worth, 1000 The Star Tele- Throckmorton Street, Fort Worth, gram. TX 76102. Texas: Tarrant (Case City of Fort Worth Apr. 22, 2004, The Honorable Michael Moncrief, Jul. 30, 2004 ...... 480596 No.: 03–06–2049P). Apr. 29, 2004, Mayor, City of Fort Worth, 1000 The Star Tele- Throckmorton Street, Fort Worth, gram. TX 76102. Texas: Dallas (Case No.: City of Garland ... June 3, 2004, The Honorable Bob Day, Mayor, June 10, 2004 ...... 485471 03–06–2537P). June 10, 2004, City of Garland, 200 N. Fifth Garland Morn- Street, Garland, TX 75040. ing News. Texas: Harris (Case No.: Unincorporated Mar. 3, 2004, The Honorable Robert A. Eckels, Feb. 9, 2004 ...... 480287 04–06–132P). Areas. Mar. 10, 2004, Judge, Harris County, 1001 Pres- The Houston ton, Suite 911, Houston, TX Chronicle. 77002. Texas: Hays (Case No.: Unincorporated Apr. 7, 2004, Apr. The Honorable Jim Powers, Judge, Mar. 23, 2004 ...... 480321 03–06–1940P). Areas. 14, 2004, San Hays County, 111 E. San Antonio Marcos Daily Street, Suite 300, San Marcos, Record. TX 78666. Texas: Tarrant (Case City of Hurst ...... Apr. 7, 2004, Apr. The Honorable William D. Souder, Mar. 24, 2004 ...... 480601 No.: 04–06–657P). 14, 2004, The Mayor, City of Hurst, 1505 Pre- Star Telegram. cinct Line Road, Hurst, TX 76054. Texas: Hays (Case No.: City of Kyle ...... Apr. 7, 2004, Apr. The Honorable James L. Adkins, Mar. 23, 2004 ...... 481108 03–06–1940P). 14, 2004, The Mayor, City of Kyle, 300 West Kyle Eagle. Center, Kyle, TX 78640. Texas: Dallas (Case No.: City of Mesquite .. May 13, 2004, The Honorable Mike Anderson, Apr. 29, 2004 ...... 485490 03–06–1750P). May 20, 2004, Mayor, City of Mesquite, P.O. The Mesquite Box 850137, Mesquite, TX 75185. News. Texas: Dallas (Case No.: City of Mesquite .. Mar. 4, 2004, The Honorable Mike Anderson, June 10, 2004 ...... 485490 03–06–2692P). Mar. 11, 2004, Mayor, City of Mesquite, P.O. The Mesquite Box 850137, Mesquite, TX 75185. News. Texas: Parker (Case No.: Unincorporated Mar. 3, 2004, The Honorable Mark Riley, Judge, June 9, 2004 ...... 480520 03–06–1950P). Areas. Mar. 10, 2004, Parker County, 123 North Main The Weather- Street, Weatherford, TX 76086. ford Democrat. Texas: Tom Green (Case City of San An- Jan. 16, 2004, The Honorable J. W. Lown, Mayor, Dec. 30, 2003 ...... 480623 No.: 03–06–2684P). gelo. Jan. 23, 2004, City of San Angelo, San Angelo San Angelo City Hall, 72 West College Ave- Standard Times. nue, San Angelo, TX 76903. Texas: Bexar (Case No.: City of San Anto- May 24, 2004, The Honorable Ed Garza, Mayor, Aug. 30, 2004 ...... 480045 03–06–2544P). nio. May 31, 2004, City of San Antonio, P.O. Box San Antonio 839966, San Antonio, TX 78283– Express News. 3966. Texas: Bexar (Case No.: City of San Anto- May 24, 2004, The Honorable Ed Garza, Mayor, Aug. 30, 2004 ...... 480045 03–06–2679P). nio. May 31, 2004, City of San Antonio, P.O. Box San Antonio 839966, San Antonio, TX 78283– Express News. 3966. Texas: Bexar (Case No.: City of San Anto- Mar. 24, 2004, The Honorable Ed Garza, Mayor, June 30, 2004 ...... 480045 04–06–031P). nio. Mar. 31, 2004, City of San Antonio, P.O. Box San Antonio 839966, San Antonio, TX 78283– Express News. 3966. Texas: Dallas (Case No.: Town of Sunny- Apr. 14, 2004, The Honorable Jim Phaup, Mayor, Mar. 30, 2004 ...... 480188 04–06–566P). vale. Apr. 21, 2004, Town of Sunnyvale, 537 Long Dallas Morning Creek Road, Sunnyvale, TX News. 75182.
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Dates and name of newspaper Effective date of Community State and county Location where notice was Chief executive officer of community modification number published
Texas: Tarrant (Case City of White Set- June 3, 2004, The Honorable James O. Ouzts, May 14, 2004 ...... 480617 No.: 03–06–2529P). tlement. June 10, 2004, Mayor, City of White Settlement, White Settle- 214 Meadow Park Drive, White ment Bomber Settlement, TX 76108. News.
(Catalog of Federal Domestic Assistance No. community listed. These modified National Environmental Policy Act. 83.100, ‘‘Flood Insurance.’’) elevations have been published in This rule is categorically excluded from Dated: July 28, 2004. newspapers of local circulation and the requirements of 44 CFR Part 10, David I. Maurstad, ninety (90) days have elapsed since that Environmental Consideration. No Acting Director, Mitigation Division, publication. The Mitigation Division environmental impact assessment has Emergency Preparedness and Response Director of the Emergency Preparedness been prepared. Directorate. and Response Directorate has resolved [FR Doc. 04–17962 Filed 8–5–04; 8:45 am] Regulatory Flexibility Act. The any appeals resulting from this Mitigation Division Director of the BILLING CODE 9110–12–P notification. Emergency Preparedness and Response The modified BFEs are not listed for Directorate certifies that this rule is each community in this notice. exempt from the requirements of the DEPARTMENT OF HOMELAND However, this rule includes the address Regulatory Flexibility Act because SECURITY of the Chief Executive Officer of the modified base flood elevations are community where the modified BFE Federal Emergency Management required by the Flood Disaster Agency determinations are available for inspection. Protection Act of 1973, 42 U.S.C. 4105, and are required to maintain community 44 CFR Part 65 The modifications are made pursuant to Section 206 of the Flood Disaster eligibility in the NFIP. No regulatory flexibility analysis has been prepared. Changes in Flood Elevation Protection Act of 1973, 42 U.S.C. 4105, Determinations and are in accordance with the National Regulatory Classification. This final Flood Insurance Act of 1968, 42 U.S.C. rule is not a significant regulatory action AGENCY: Federal Emergency 4001 et seq., and with 44 CFR Part 65. under the criteria of Section 3(f) of Management Agency, Emergency For rating purposes, the currently Executive Order 12866 of September 30, Preparedness and Response Directorate, effective community number is shown 1993, Regulatory Planning and Review, Department of Homeland Security. and must be used for all new policies 58 FR 51735. ACTION: Final rule. and renewals. Executive Order 12612, Federalism. The modified BFEs are the basis for SUMMARY: Modified Base (1% annual- This rule involves no policies that have the floodplain management measures chance) Flood Elevations (BFEs) are federalism implications under Executive that the community is required to either finalized for the communities listed Order 12612, Federalism, dated October adopt or to show evidence of being below. These modified elevations will 26, 1987. already in effect in order to qualify or be used to calculate flood insurance to remain qualified for participation in Executive Order 12778, Civil Justice premium rates for new buildings and the National Flood Insurance Program Reform. This rule meets the applicable their contents. (NFIP). standards of Section 2(b)(2) of Executive DATES: The effective dates for these These modified BFEs, together with Order 12778. modified BFEs are indicated on the the floodplain management criteria List of Subjects in 44 CFR Part 65 table below and revise the Flood required by 44 CFR 60.3, are the Insurance Rate Maps (FIRMs) in effect minimum that are required. They Flood insurance, Floodplains, for the listed communities prior to this should not be construed to mean that Reporting and recordkeeping date. the community must change any requirements. ADDRESSES: The modified BFEs for each existing ordinances that are more I community are available for inspection stringent in their floodplain Accordingly, 44 CFR Part 65 is at the office of the Chief Executive management requirements. The amended to read as follows: Officer of each community. The community may at any time enact PART 65—[AMENDED] respective addresses are listed in the stricter requirements of its own, or table below. pursuant to policies established by other I 1. The authority citation for Part 65 FOR FURTHER INFORMATION CONTACT: Federal, State, or regional entities. continues to read as follows: Doug Bellomo, P.E., Hazard These modified BFEs are used to meet Identification Section, Emergency the floodplain management Authority: 42 U.S.C. 4001 et seq.; Preparedness and Response Directorate, requirements of the NFIP and are also Reorganization Plan No. 3 of 1978, 3 CFR, Federal Emergency Management used to calculate the appropriate flood 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, Agency, 500 C Street, SW., Washington, insurance premium rates for new 3 CFR, 1979 Comp., p. 376. DC 20472, (202) 646–2903. buildings built after these elevations are § 65.4 [Amended] SUPPLEMENTARY INFORMATION: The made final, and for the contents in these Federal Emergency Management Agency buildings. I 2. The tables published under the makes the final determinations listed The changes in BFEs are in authority of § 65.4 are amended as below for the modified BFEs for each accordance with 44 CFR 65.4. follows:
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Dates and names of newspaper Effective date of Community State and county Location where notice was Chief executive officer of community modification number published
Arkansas: Pulaski ...... City of Little Rock January 28, 2004, The Honorable Jim Dailey, Mayor, January 7, 2004 ...... 050181 (Case No.: 03–06– February 4, City of Little Rock, Little Rock 1726P) (FEMA Docket 2004, Arkansas City Hall, Room 203, 500 West No. P–7634). Democrat Ga- Markham, Little Rock, AR 72201. zette. Illinois: Kane and Cook ... City of Elgin ...... January 14, 2004, The Honorable Ed Schock, Mayor, December 15, 2003 .. 170087 (Case No.: 03–05– January 21, City of Elgin, 150 Dexter Court, 3985P). 2004, The Daily Elgin, IL 60120. (FEMA Docket No. P– Herald. 7634). Illinois: Kane ...... Unincorporated January 14, 2004, Mr. Michael W. McCoy, Chairman, December 15, 2003 .. 170896 (Case No.: 03–05– Areas. January 21, Kane County, Kane County Gov- 3985P). 2004, The Daily ernment Center, 719 South Bata- (FEMA Docket No. P– Herald. via Avenue, Bldg. A, Geneva, IL 7634). 60134. Illinois: Will ...... Village of Plain- January 21, 2004, The Honorable Richard Rock, January 5, 2004 ...... 170771 (Case No.: 03–05– field. January 28, Mayor, Village of Plainfield, 530 3973P). 2004, The En- West Lockport Street, Suite 206, (FEMA Docket No. P– terprise. Plainfield, IL 60544. 7634). Illinois: Randolph ...... Village of Prairie February 5, 2004, Mr. Larry Durbin, President, Village May 13, 2004 ...... 170578 (Case No.: 03–05– du Rocher. February 12, of Prairie du Rocher, P.O. Box 4001P). 2004, North 325, Prairie du Rocher, IL 62277. (FEMA Docket No. P– County News. 7634). Illinois: Randolph ...... Unincorporated February 5, 2004, Mr. Terry Moore, Randolph County May 13, 2004 ...... 170575 (Case No.: 03–05– Areas. February 12, Commissioner, #1 Taylor Street, 4001P). 2004, The Chester, IL 62233. (FEMA Docket No. P– County Journal. 7634). Illinois: McHenry ...... Village of Spring January 8, 2004, Mr. Robert Martens, Village Presi- December 11, 2003 .. 170485 (Case No.: 03–05– Grove. January 15, dent, Village of Spring Grove, 1458P). 2004, The 7401 Meyer Road, Spring Grove, (FEMA Docket No. P– Northwest Her- IL 60081. 7634). ald. Illinois: Will ...... Unincorporated January 21, 2004, Mr. Joseph Mikan, Executive, Will Janaury 5, 2004 ...... 170695 (Case No.: 03–05– Areas. January 28, County, Will County Office Build- 3973P). 2004, The En- ing, 302 North Chicago Street, (FEMA Docket No. P– terprise. Joliet, IL 60432. 7634). Missouri: Ste. Genevieve City of Ste. Gene- February 4, 2004, The Hon. Richard Greminger, May 12, 2004 ...... 290325 (Case No.: 03–07– vieve. February 11, Mayor, City of Ste. Genevieve, 1278P). 2004, Ste. Gen- 165 South 4th Street, Ste. Gene- (FEMA Docket No. P– evieve Herald. vieve, MO 63670. 7634). Missouri: Ste. Genevieve Unincorporated February 4, 2004, Mr. Albert Fults, Presiding Commis- May 12, 2004 ...... 290833 (Case No.: 03–07– Areas. February 11, sioner, Ste. Genevieve County, 1278P). 2004, Ste. Gen- 55 South 3rd Street, Ste. Gene- (FEMA Docket No. P– evieve Herald. vieve, MO 63670. 7634). New Mexico: Bernalillo ... City of Albu- January 14, 2004, The Honorable Martin Chavez, April 21, 2004 ...... 350002 (Case No.: 03–06– querque. January 21, Mayor, City of Albuquerque, P.O. 1727P). 2004, Albu- Box 1293, Albuquerque, NM (FEMA Docket No. P– querque Jour- 87103. 7634). nal. New Mexico: Bernalillo ... City of Albu- January 13, 2004, The Honorable Martin Chavez, December 16, 2003 ... 350002 (Case No.: 03–06– querque. January 20, Mayor, City of Albuquerque, P.O. 2543P). 2004, Albu- Box 1293, Albuquerque, NM (FEMA Docket No. P– querque Jour- 87103. 7634). nal. Oklahoma: Cleveland ...... City of Norman ... January 7, 2004, The Honorable Ron Henderson, April 14, 2004 ...... 400046 (Case No.: 02–06– January 14, Mayor, City of Norman, 2143 1713P). 2004, The Nor- Jackson Drive, Norman, OK (FEMA Docket No. P– man Transcript. 73071. 7634). Oklahoma: Tulsa ...... City of Tulsa ...... November 18, The Honorable Bill LaFortune, November 5, 2003 ..... 405381 (Case No.: 03–06–831P) 2003, Novem- Mayor, City of Tulsa, 200 Civic (FEMA Docket No. P– ber 25, 2003, Center, Tulsa, OK 74103. 7632). Tulsa World.
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Dates and names of newspaper Effective date of Community State and county Location where notice was Chief executive officer of community modification number published
Texas: Tarrant ...... City of Bedford .... January 29, 2004, The Honorable John Williams, May 6, 2004 ...... 480585 (Case No.: 04–06–383P) February 5, Mayor, City of Bedford, 1813 Re- (FEMA Docket No. P– 2004, The Star liance Parkway, Bedford, TX 7634). Telegram. 76021. Texas: Dallas ...... City of Carrollton January 14, 2004, The Honorable Mark Stokes, Mayor, April 21, 2004 ...... 480167 (Case No.: 03–06–699P) January 21, City of Carrollton, 1945 East (FEMA Docket No. P– 2004, The Jackson Road, Carrollton, TX 7634). Carrollton 75006. Leader. Texas: Collin ...... Unincorporated February 11, The Honorable Ron Harris, Collin May 19, 2004 ...... 480130 (Case No.: 03–06–677P) Areas. 2004, February County Judge, 210 S. McDonald (FEMA Docket No. P– 18, 2004, Plano Street, Suite 626, McKinney, TX 7634). Star Courier. 75069. Texas: Hidalgo ...... City of Edinburg .. January 9, 2004, The Honorable Richard H. Garcia, December 16, 2003 .. 480338 (Case No.: 03–06– January 16, Mayor, City of Edinburg, P.O. Box 1004P). 2004, Edinburg 1079, Edinburg, TX 78540–1079. (FEMA Docket No. P– Daily Review. 7634). Texas: Tarrant ...... City of Fort Worth August 22, 2003, The Honorable Michael Moncrief, November 28, 2003 .. 480596 (Case No.: 03–06– August 29, Mayor, City of Fort Worth, 1000 1206P). 2003, The Star Throckmorton Street, Fort Worth, (FEMA Docket No. P– Telegram. TX 76102–6311. 7628). Texas: Williamson ...... City of George- August 20, 2003, The Honorable Gary Nelon, Mayor, November 26, 2003 .. 480668 (Case No.: 03–06–695P) town. August 27, City of Georgetown, P.O. Box (FEMA Docket No. P– 2003, 409, Georgetown, TX 78627. 7628). Williamson County Sun. Texas: Dallas ...... City of Mesquite .. January 7, 2004, The Honorable Mike Anderson, April 14, 2004 ...... 485490 (Case No.: 03–06–700P) January 14, Mayor, City of Mesquite, P.O. (FEMA Docket No. P– 2004, The Mes- Box 850137, Mesquite, TX 75185. 7634). quite News. Texas: Midland ...... City of Midland .... November 12, The Honorable Michael J. Canon, October 21, 2003 ...... 480477 (Case No.: 03–06– 2003, Novem- Mayor, City of Midland, 300 North 2541P). ber 19, 2003, Loraine, Midland, TX 79701. (FEMA Docket No. P– Midland Re- 7632). porter-Telegram. Texas: Collin ...... City of Plano ...... January 7, 2004, The Honorable Pat Evans, Mayor, December 16, 2003 .. 480140 (Case No.: 03–06–685P) January 14, City of Plano, P.O. Box 860358, (FEMA Docket No. P– 2004, Plano Plano, TX 75086–0358. 7634). Star Courier. Texas: Bell ...... City of Temple .... January 6, 2004, The Honorable Bill Jones, III, April 13, 2004 ...... 480034 (Case No.: 02–06– January 13, Mayor, City of Temple, 2 North 2439P). 2004, Temple Main Street, Temple, TX 76501. (FEMA Docket No. P– Daily Telegram. 7634). Texas: Williamson ...... Unincorporated August 20, 2003, The Honorable John C. Doerfler, November 26, 2003 .. 481079 (Case No.: 03–06–695P) Areas. August 27, Judge, Williamson County, 710 (FEMA Docket No. P– 2003, Main Street, Suite 201, George- 7628). Williamson town, TX 78616. County Sun. Texas: Collin ...... City of Wylie ...... February 11, The Honorable John Mondy, Mayor, May 19, 2004 ...... 480759 (Case No.: 03–06–677P) 2004, February City of Wylie, 2000 State High- (FEMA Docket No. P– 18, 2004, The way 78 North, Wylie, TX 75098. 7634). Wylie News.
(Catalog of Federal Domestic Assistance No. FEDERAL COMMUNICATIONS ACTION: Final rule. 83.100, ‘‘Flood Insurance.’’) COMMISSION Dated: July 28, 2004. SUMMARY: This document increases the David I. Maurstad, 47 CFR Part 1 maximum monetary forfeiture penalties available to the Commission under its Acting Director, Mitigation Division, Emergency Preparedness and Response [FCC 04–139] rules governing monetary forfeiture Directorate. proceedings to account for inflation. [FR Doc. 04–17963 Filed 8–5–04; 8:45 am] Inflation Adjustment of Maximum The inflationary adjustment is necessary Forfeiture Penalties to implement the Debt Collection BILLING CODE 9110–12–P Improvement Act of 1996, which AGENCY: Federal Communications requires Federal agencies to adjust Commission. ‘‘civil monetary penalties provided by
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law’’ at least once every four years. The The increases were then rounded using PART 1—PRACTICE AND increase covers the period between June the statutorily prescribed rules to PROCEDURE of the year the particular forfeiture produce the adjusted penalties. The I amount was last set or adjusted and Order also makes editorial amendments 1. The authority citation for part 1 June 2003. The increase in the and corrections to § 1.80(b) of the continues to read as follows: Consumer Price Index for the relevant Commission’s rules. Authority: 47 U.S.C. 151, 154(i) and (j), 155, 225, 303(r), and 309. period was applied to each maximum The amendment of § 1.80(b) simply penalty, and then rounded using the implements the requirements of the I statutorily defined rules to adjust each 2. Section 1.80 is amended by: Debt Collection Improvement Act of I maximum monetary forfeiture penalty a. Revising paragraphs (b)(1) through 1986, 28 U.S.C. 2461, as incorporated in accordingly. The base forfeiture (b)(4); § 1.80(b)(5) of the Commission’s rules, I amounts in the Commission’s rules b. Revising the introductory text of the as well as updates and clarifies the rule remain unchanged by this rule revision. note to paragraph (b)(4); to reflect the statute more precisely I c. Revising section III of the note to DATES: Effective September 7, 2004. without substantively changing it. paragraph (b)(4); FOR FURTHER INFORMATION CONTACT: Moreover, since Congress has mandated I d. Revising paragraphs (b)(5) Kathryn Berthot, Enforcement Bureau, these periodic rule changes and the introductory text and (b)(5)(iii). Spectrum Enforcement Division, (202) Commission has no discretion but to The revisions read as follows: 418–7454. make them, we find that, for good cause, § 1.80 Forfeiture proceedings. SUPPLEMENTARY INFORMATION: This is a compliance with the notice and summary of the Order by the comment provisions of the * * * * * Commission, FCC 04–139, adopted on Administrative Procedure Act is (b) Limits on the amount of forfeiture June 14, 2004, and released on June 18, unnecessary. See 5 U.S.C. 553(b)(B). assessed. (1) If the violator is a 2004. The complete text of this Order is broadcast station licensee or permittee, available for inspection and copying Since a notice of proposed rulemaking a cable television operator, or an during normal business hours in the is not required, the Regulatory applicant for any broadcast or cable FCC Reference Information Center, Flexibility Act, 5 U.S.C. 601 et seq., television operator license, permit, Courtyard Level, 445 12th Street, SW., does not apply. certificate, or other instrument of Washington, DC 20554 and also may be The actions taken in this Order have authorization issued by the purchased from the Commission’s copy been analyzed with respect to the Commission, except as otherwise noted contractor, Best Copy and Printing, Inc., Paperwork Reduction Act of 1995 and in this paragraph, the forfeiture penalty at 1–800–378–3160, CY–B402, 445 12th found to impose no new or modified under this section shall not exceed Street, SW., Washington, DC 20554. reporting and recordkeeping $32,500 for each violation or each day This Order amends § 1.80(b) of the requirements or burdens on the public. of a continuing violation, except that the Commission’s rules, 47 CFR 1.80(b), to amount assessed for any continuing List of Subjects in 47 CFR Part 1 increase the maximum penalties violation shall not exceed a total of established in that section to account for Administrative practice and $325,000 for any single act or failure to inflation since the last adjustment to procedure, Penalties. act described in paragraph (a) of this these penalties. The adjustment section. There is no limit on forfeiture procedure is set forth in detail in Federal Comunications Commission. assessments for EEO violations by cable § 1.80(b)(5) of the Commission’s rules. William F. Caton, operators that occur after notification by That section implements the Debt Deputy Secretary. the Commission of a potential violation. Collection Improvement Act of 1996, 28 See section 634(f)(2) of the U.S.C. 2461, which requires Federal Rule Changes Communications Act. agencies to adjust maximum statutory (2) If the violator is a common carrier I For the reasons discussed in the civil monetary penalties at least once subject to the provisions of the preamble, the Federal Communications every four years. Communications Act or an applicant for Commission amends 47 CFR part 1 as This Order adjusts the maximum any common carrier license, permit, follows: penalties to account for the increase in certificate, or other instrument of the Consumer Price Index (CPI) between authorization issued by the June of the year the forfeiture amount for the statutory forfeiture amounts in sections Commission, the amount of any 1 202(d) (the per day amount for continuing was last set or adjusted, and June 2003. violations), 203(e) (the per day amount for forfeiture penalty determined under this continuing violations), 205(b), 364(a), 364(b), section shall not exceed $130,000 for 1 Under the rounding rules set forth in section 386(a), 386(b), 503(b)(2)(A) (the amount for a single each violation or each day of a 1.80(b)(5)(ii), the inflation adjustment for a statutory violation or single day of a violation), 503(b)(2)(C) forfeiture amount must reach a specific threshold (the amount for a single violation or single day of continuing violation, except that the before the forfeiture amount may be increased. a violation), 507(a), and 507(b). The June 1992 CPI amount assessed for any continuing Thus, different CPIs may be used to calculate the is used to calculate the inflation factor for the violation shall not exceed a total of inflation factors for different statutory forfeitures, section 634 forfeiture amount, and the June 1989 $1,325,000 for any single act or failure depending on when a particular forfeiture was last CPI is used to calculate the inflation factors for the increased. The June 1999 CPI is used to calculate statutory forfeiture amounts in sections 214(d) and to act described in paragraph (a) of this the inflation factors for the statutory forfeiture 219(b). Finally, the first inflation adjustment for section. amounts in sections 202(c) (the amount for each each statutory forfeiture may not exceed 10 percent (3) In any case not covered in violation, not the per day amount for continuing of the statutory maximum amount. See 47 CFR paragraphs (b)(1) or (b)(2) of this violations), 203(e) (the amount for each violation, 1.80(b)(5), Note to paragraph (b)(5). This is the first not the per day amount for continuing violations), inflation adjustment for the statutory forfeiture section, the amount of any forfeiture 220(d), 503(b)(2)(A) (the maximum amount for amounts in sections 364(b), 386(b) and 634 because penalty determined under this section continuing violations, not the amount for a single this is the first time that the inflation adjustment shall not exceed $11,000 for each violation or single day of a violation), 503(b)(2)(B), for these forfeitures reached the specific threshold violation or each day of a continuing and 503(b)(2)(C) (the maximum amount for set forth in the rounding rules. Accordingly, the continuing violations, not the amount for a single inflation adjustment for the forfeiture amounts in violation, except that the amount violation or single day of a violation). The June sections 364(b), 386(b) and 634 is limited to 10 assessed for any continuing violation 1995 CPI is used to calculate the inflation factors percent. shall not exceed a total of $97,500 for
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any single act or failure to act described provided in the guidelines, to issue no one exception, state prescribed amounts in paragraph (a) of this section. forfeiture at all, or to apply alternative or of forfeitures for violations of the (4) Factors considered in determining additional sanctions as permitted by the relevant section. These amounts are the amount of the forfeiture penalty. In statute. The forfeiture ceiling per violation or then subject to mitigation or remission per day for a continuing violation stated in determining the amount of the forfeiture under section 504 of the Act. The one penalty, the Commission or its designee section 503 of the Communications Act and the Commission’s rules are described in exception is section 223 of the Act, will take into account the nature, § 1.80(b)(5)(iii). These statutory maxima which provides a maximum forfeiture circumstances, extent and gravity of the became effective September 7, 2004. per day. For convenience, the violations and, with respect to the Forfeitures issued under other sections of the Commission will treat this amount as if violator, the degree of culpability, any Act are dealt with separately in section III of it were a prescribed base amount, history of prior offenses, ability to pay, this note. subject to downward adjustments. The and such other matters as justice may * * * * * following amounts are adjusted for require. Section III. Non-Section 503 Forfeitures inflation pursuant to the Debt Collection Note to paragraph (b)(4): That Are Affected by the Downward Improvement Act of 1996 (DCIA), 28 Guidelines for Assessing Forfeitures Adjustment Factors U.S.C. 2461. These non-section 503 The Commission and its staff may use forfeitures may be adjusted downward these guidelines in particular cases. The Unlike section 503 of the Act, which using the ‘‘Downward Adjustment Commission and its staff retain the discretion establishes maximum forfeiture Criteria’’ shown for section 503 to issue a higher or lower forfeiture than amounts, other sections of the Act, with forfeitures in section II of this note.
Violation Statutory amount ($)
Sec. 202(c) Common Carrier Discrimination ...... $8,600 430/day. Sec. 203(e) Common Carrier Tariffs ...... 8,600 430/day. Sec. 205(b) Common Carrier Prescriptions ...... 18,200. Sec. 214(d) Common Carrier Line Extensions ...... 1,320/day. Sec. 219(b) Common Carrier Reports ...... 1,320. Sec. 220(d) Common Carrier Records & Accounts ...... 8,600/day. Sec. 364(a) Forfeitures (Ships) ...... 6,500 (owner). Sec. 364(b) Forfeitures (Ships) ...... 1,100 (vessel master). Sec. 386(a) Forfeitures (Ships) ...... 6,500/day (owner). Sec. 386(b) Forfeitures (Ships) ...... 1,100 (vessel master). Sec. 634 Cable EEO ...... 550/day.
(5) Inflation adjustments to the adjusted statutory maximum forfeitures FEDERAL COMMUNICATIONS maximum forfeiture amount. (i) authorized by the Communications Act: COMMISSION Pursuant to the Debt Collection Improvement Act of 1996, Public Law Maximum 47 CFR Parts 1 and 25 104–134 (110 Stat. 1321–358), which U.S. Code citation penalty after DCIA ad- [IB Docket No. 02–34; FCC 04–92] amends the Federal Civil Monetary justment ($) Penalty Inflation Adjustment Act of Space Station Licensing Rules and 1990, Public Law 101–410 (104 Stat. 47 U.S.C. 202(c) ...... $8,600 Policies 890; 28 U.S.C. 2461 note), the statutory 430 maximum amount of a forfeiture penalty 47 U.S.C. 203(e) ...... 8,600 AGENCY: Federal Communications assessed under this section shall be 430 Commission. adjusted for inflation at least once every 47 U.S.C. 205(b) ...... 18,200 ACTION: Final rule. four years using the method specified in 47 U.S.C. 214(d) ...... 1,320 the statute. This is to be done by 47 U.S.C 219(b) ...... 1,320 SUMMARY: In this document, the determining the ‘cost-of-living 47 U.S.C. 220(d) ...... 8,600 Commission seeks to extend mandatory adjustment’, which is the percentage (if 47 U.S.C. 362(a) ...... 6,500 electronic filing to all satellite and earth any) by which the CPI for June of the 47 U.S.C. 362(b) ...... 1,100 station applications. The Commission preceding year exceeds the CPI for June 47 U.S.C. 386(a) ...... 6,500 also plans to implement two measures of the year the forfeiture amount was 47 U.S.C. 386(b) ...... 1,100 that allow space station operators to last set or adjusted. The inflation 47 U.S.C. 503(b)(2)(A) ...... 32,500 make certain changes to their systems adjustment is determined by 325,000 without prior regulatory approval. First, multiplying the cost-of-living 47 U.S.C. 503(b)(2)(B) ...... 130,000 we allow direct broadcast satellite (DBS) adjustment by the statutory maximum 1,325,000 licensees and Digital Audio Radio amount. Round off this result using the 47 U.S.C. 503(b)(2)(C) ...... 11,000 Service (DARS) satellite licensees to use rules in paragraph (b)(5)(ii) of this 97,500 a streamlined procedure when section. Add the rounded result to the 47 U.S.C. 507(a) ...... 650 relocating satellites for fleet statutory maximum forfeiture penalty 47 U.S.C. 507(b) ...... 10 management purposes. Second, we amount. The sum is the statutory 47 U.S.C. 554 ...... 550 allow Non-Geostationary Satellite Orbit maximum amount, adjusted for (NGSO) system operators to activate in- inflation. * * * * * orbit spares without prior authorization * * * * * [FR Doc. 04–16973 Filed 8–5–04; 8:45 am] from the Commission, provided that the (iii) The application of the inflation BILLING CODE 6712–01–P activation does not cause the operator to adjustments required by the DCIA, 28 exceed the total number of space U.S.C. 2461, results in the following stations that the licensee was authorized
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to operate under its blanket license for earth station applicants. The space station applicants other than that system. These rule revisions Commission also proposed extending DARS applicants. represent another step in our continuing the streamlined procedure for fleet 2. Discussion. Sirius supports effort to eliminate outdated regulatory management modifications to DBS and extending mandatory electronic filing to requirements and expedite provision of DARS licensees. Only one party filed all satellite and earth station satellite services to the public. comments in response to the 2nd applications, to simplify part 25 and to DATES: The revisions to §§ 1.10000, FNPRM, Sirius Satellite Radio, Inc. facilitate interested parties’ access to 1.10006, 1.10007, 25.113 and 25.118(e) (Sirius). No replies were filed. information. We agree. Accordingly, we will become effective September 7, The Commission observed that it has adopt mandatory electronic filing for all 2004. The revisions to §§ 25.110, 25.114, mandatory electronic filing for several applications and pleadings that are 25.115, 25.116, 25.117, 25.118(a), but not all satellite and earth station governed by part 25. We delegate 25.130, 25.131, and 25.154 contain filings. We require all space station authority to the Chief, International information requirements that have not applicants other than DBS and DARS Bureau, to make the electronic filing been approved by OMB. The Federal applicants to file electronically. We also system revisions necessary to Communications Commission will require electronic filing for routine earth implement these new electronic filing publish a document in the Federal station license applications, and for requirements. We also direct the Register announcing the effective date earth station assignments and transfer of International Bureau to issue a public of these sections. control applications. Parties filing notice at least 30 days before the new ADDRESSES: Comments on the petitions to deny routine earth station electronic filing requirements will take information collection requirement applications, or other pleadings in effect. should be addressed to the Office of the response to routine earth station 3. Sirius also argues that the edit Secretary, Federal Communications applications, must also file checks in Schedule S should allow Commission, 445 Twelfth Street, SW., electronically. applicants to respond ‘‘Not Applicable’’ Washington, DC 20554. In addition to Paperwork Reduction Act: This or ‘‘N/A’’ where appropriate. We agree, filing comments with the Secretary, a Fourth Report and Order contains new and direct the International Bureau to copy should be submitted to Judy Boley and modified information collections. add ‘‘Not Applicable’’ or ‘‘N/A’’ Herman, Federal Communications The Federal Communications responses to Schedule S where Commission, Room 1–C804, 445 Commission, as part of its continuing appropriate. Twelfth Street, SW., Washington, DC effort to reduce paperwork burden, has B. Streamlined Fleet Management 20554, or via Internet to previously invited the general public [email protected], and to Timothy Modification Procedure for DBS and and the Office of Management and DARS Licensees Fain, OMB Desk Officer, 10236 NEOB, Budget (OMB) to comment on the 725–17th Street, NW., Washington, DC information collection(s) contained in 4. Background. In the Second Space 20503 or via the Internet to this Fourth Report and Order, as Station Reform Order, 68 FR 62247, _ fain [email protected]. required by the Paperwork Reduction November 3, 2003, the Commission FOR FURTHER INFORMATION CONTACT: Act of 1995, Public Law 104–13. See 69 adopted a streamlined procedure for Steven Spaeth, Satellite Division, FR 26391, May 12, 2004. GSO licensees seeking to relocate two or International Bureau, at (202) 418–1539. more satellites among orbit locations at A. Mandatory Electronic Filing SUPPLEMENTARY INFORMATION: This is a which they are licensed. The summary of the Fourth Report and 1. In the 2nd FNPRM, the Commission referred to such relocations Order in IB Docket No. 02–34, adopted Commission proposed extending as ‘‘fleet management’’ license on April 9, 2004, and released on April electronic filing requirements to all modifications. Under this procedure, a 16, 2004 (FCC 04–92, released April 16, pleadings and other filings governed by space station operator may modify its 2004), is available for public inspection part 25 of the Commission’s rules. The license without prior authorization, but and copying during regular business Commission noted that electronic filing upon 30 days’ prior notice to the hours at the FCC Reference Information should enable it to act on applications Commission and any potentially Center, Portals II, 445 12th Street, SW., more quickly. The Commission affected licensed spectrum user, Room CY–A257, Washington, DC 20554. explained further that requiring certain provided that the operator meets the The document may also be purchased types of applications to be filed following requirements: from the Commission’s duplicating electronically and permitting others to (1) The space station licensee will contractor, Best Copy and Printing, Inc., be filed manually adds complexity to relocate a Geostationary Satellite Orbit Portals II, 445 12th Street, SW., Room the application filing requirements. (GSO) space station to another orbit CY–B402, Washington, DC 20554, Thus, adopting mandatory electronic location that is assigned to that licensee; telephone (202) 863–2893, facsimile filing for all satellite and earth station (2) The relocated space station (202) 863–2898, or via e-mail http:// filings would simplify the filing licensee will operate with the same www.BCPIWEB.com. requirements. The Commission also technical parameters as the space In 2000 and 2002, the Commission proposed requiring DARS applicants to station initially assigned to that initiated proceedings to reform and file applications on Schedule S. The location, or within the original streamline its earth station and space Commission adopted Schedule S in its satellite’s authorized and/or coordinated station licensing procedures, current form in the Third Space Station parameters; respectively. In July 2003, the Reform Order, 68 FR 63994, November (3) The space station licensee certifies Commission adopted a Second Further 12, 2003, to standardize many of the that it will comply with all the Notice of Proposed Rulemaking (2nd information requirements associated conditions of its original license and all FNPRM), 68 FR 53702, September 12, with satellite license applications. The applicable rules after the relocation; 2003, in both these proceedings. The Commission intended Schedule S to (4) The space station licensee certifies Commission proposed extending streamline review of satellite that it will comply with all applicable mandatory electronic filing applications, and to facilitate electronic coordination agreements at the newly requirements to all space station and filing. Schedule S is required of all occupied orbital location;
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(5) The space station licensee certifies 8. We also adopt the proposals in the activating an in-orbit spare in an NGSO that it has completed any necessary 2nd FNPRM, to require DBS licensees satellite system involves moving the coordination of its space station at the using the fleet management satellite from one previously authorized new location with other potentially modification procedure to certify that orbit to another. Similarly, fleet affected space station operators; they will not cause greater interference management modifications involve (6) The space station licensee certifies than that which would occur from the moving a GSO satellite from one that it will limit operations of the space current U.S. assignments in the previously authorized orbit location to station to Tracking, Telemetry, and International Telecommunication Union another. Therefore, we adopt the Sirius Control (TT&C) functions during the (ITU) Region 2 BSS Plan and its proposal with one minor revision. We relocation and satellite drift transition associated Feeder Link Plan. We will will permit all NGSO system operators period; and also require certifications that the DBS to launch in-orbit spares, and to activate (7) The space station licensee certifies licensee will meet the geographic them without prior authorization from that the relocation of the space station service requirements in § 25.148(c) of the Commission, provided that the does not result in a lapse of service for the Commission’s rules. These activation does not cause the operator to any current customer. certifications are necessary to ensure exceed the total number of space The Commission also noted that, that DBS fleet management stations that the licensee was authorized because DBS and DARS were not modifications are consistent with the to operate under its blanket license for included in the Space Station Reform public interest, convenience, and that system, and the spare satellite has NPRM, 68 FR 51546, August 27, 2003, necessity. technical characteristics identical to the the streamlined procedure for satellite 9. Sirius states that it does not oppose other satellites in the constellation. If fleet management modifications the fleet management proposal for GSO the activation of a spare satellite would adopted in the Second Space Station DARS systems. Accordingly, we revise cause the licensee to exceed its total Reform Order was limited to the streamlined modification procedure number of authorized satellites, if the modifications of satellite licenses other for fleet management so that it also licensee plans to operate the satellite in than DBS and DARS. applies to DARS space stations. an orbit that was not previously 5. In the 2nd FNPRM, 68 FR 53702, Moreover, in the 2nd FNPRM, the authorized, or if the spare has different September 12, 2003, the Commission Commission did not propose to require technical characteristics, including but proposed to extend the satellite fleet DARS licensees proposing fleet management modification procedure to not limited to frequency bands, the management modifications to make any licensee will need to seek a DBS and DARS licenses. It stated that it additional certifications, as it did for was not aware of any public policy that modification of its license. This is DBS licensees as discussed above, and consistent with provisions that the would be served by precluding DBS and no commenter proposed any such DARS licensees from using this Commission adopted for NGSO FSS certifications. Therefore, GSO DARS licensees in the Ku-band and Ka-band. procedure, which allows licensees to licensees proposing fleet management 12. In summary, NGSO licensees respond faster to changing modifications need to make only the using this procedure will be required to circumstances regarding fleet seven certifications adopted in the notify the Commission that they have deployment. Second Space Station Reform Order, 68 launched a spare, or activated a ground 6. The Commission also requested FR 62247, November 3, 2003. DBS and spare, no later than 30 days after the comment on whether DBS and DARS GSO DARS licensees are permitted to licensees should be required to make make fleet management modification as launch or activation. Licensees will be any certifications that are not applicable with other GSO licensees, by requesting required to make these notifications on to FSS providers making fleet a modification by filing Form 312 and Form 312. Since the satellite launches management modifications. For making the needed certifications. and activations contemplated here will example, one possible certification not cause the licensee to exceed the might be that a proposed DBS C. Streamlined Modification Procedure number of satellites it is authorized to modification shall not cause greater for NGSO Licensees operate, we conclude that we will not interference than that which would 10. Background. Sirius proposes a require any fee for these notifications. occur from the current U.S. assignments streamlined procedure for NGSO system D. Conclusion in the International Telecommunication operators seeking to launch a ground Union (ITU) Region 2 BSS Plan and its spare as an in-orbit spare, and later 13. In this Order, we extend associated Feeder Link Plan. Another operate it. Under the Sirius proposal, mandatory electronic filing to all space possibility might be to require DBS the applicant would file an application station and earth station applications, operators to certify that they will to launch the satellite. In the event that related pleadings, and other filings continue to meet the geographic service the license is granted, the applicant governed by part 25. We also allow DBS requirements that apply to DBS. The would notify the Commission of the and DARS licensees to take advantage of Commission also invited parties to launch date. Later, the applicant would the fleet management modification recommend other possible certification also notify the Commission if and when procedure adopted for GSO FSS requirements. it begins to operate the satellite. Sirius licensees in the Second Space Station 7. Discussion. No DBS operators argues that in-orbit spares enable Reform Order. Furthermore, we allow commented on this proposal, but one licensees to replace decommissioned NGSO system operators to activate in- DARS operator, Sirius, did comment. satellites promptly. Sirius also claims orbit spares without prior authorization We conclude that extending the fleet that this is comparable to the fleet from the Commission, provided that the management modification procedure to management procedure for GSO activation does not cause the operator to DBS licensees would enable us to act on satellites. No reply comments were filed exceed the total number of space DBS fleet management modification on Sirius’s proposal. stations that the licensee was authorized requests faster than we do now. 11. Discussion. We agree with Sirius to operate under its blanket license for Accordingly, we adopt a fleet that its proposed procedure is that system. management modification procedure for comparable to the fleet management 14. Finally, we make revisions to part DBS licensees. procedure for GSO satellites. Generally, 1, subpart Y, to conform that subpart to
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the revisions to part 25 we adopt in this Commission has determined that this amended, 47 U.S.C. 151 et seq., and the Fourth Report and Order. information collection does not affect Submarine Cable Landing License Act, individuals or household; thus, there 47 U.S.C. 34–39. E. Procedural Matters are no impacts under the Privacy Act. (b) This subpart describes procedures 15. Final Regulatory Flexibility for electronic filing of International and F. Ordering Clauses Certification. The Regulatory Flexibility Satellite Services applications using the Act of 1980, as amended (RFA), requires 18. Accordingly, it is ordered, International Bureau Filing System. that a regulatory flexibility analysis be pursuant to sections 4(i), 7(a), 11, (c) More licensing and application prepared for rulemaking proceedings, 303(c), 303(f), 303(g), and 303(r) of the descriptions and directions, including unless the agency certifies that ‘‘the rule Communications Act of 1934, as but not limited to specifying which will not have a significant economic amended, 47 U.S.C. 154(i), 157(a), 161, International and Satellite service impact on a substantial number of small 303(c), 303(f), 303(g), 303(r), that this applications must be filed entities.’’ The RFA generally defines Fourth Report and Order in IB Docket electronically, are in parts 1, 25, 63, and ‘‘small entity’’ as having the same No. 02–34, and Fourth Report and Order 64 of this chapter. meaning as the terms ‘‘small business,’’ in IB Docket No. 00–248, are hereby I 3. Revise § 1.10006 to read as follows: ‘‘small organization,’’ and ‘‘small adopted. governmental jurisdiction.’’ In addition, 19. It is further ordered that parts 1 § 1.10006 Is electronic filing mandatory? the term ‘‘small business’’ has the same and 25 of the Commission’s rules are (a) Mandatory electronic filing meaning as the term ‘‘small business amended as set forth in the rule requirements for applications for concern’’ under the Small Business Act. changes. international and satellite services are A small business concern is one which: 20. It is further ordered that the set forth in parts 1, 25, 63, and 64 of this (1) Is independently owned and revisions to §§ 1.10000, 1.10006, chapter. operated; (2) is not dominant in its field 1.10007, 25.113 and 25.118(e) will (b) If you are not required to file an of operation; and (3) satisfies any become effective September 7, 2004. international or satellite application, additional criteria established by the The revisions to §§ 25.110, 25.114, you may file that application Small Business Administration (SBA). 25.115, 25.116, 25.117, 25.118(a), electronically on a voluntary basis. 16. In this Fourth Report and Order, 25.130, 25.131, and 25.154 contain However, we encourage you to use IBFS the Commission extends electronic information requirements that have not to increase time-savings and efficiency. filing requirements to satellite and earth been approved by OMB. The Federal I 4. Amend § 1.10007 by revising station operators that are not currently Communications Commission will paragraph (b) to read as follows: subject to those requirements. The publish a document in the Federal Commission believes that filing Register announcing the effective date § 1.10007 What applications can I file applications electronically is no more of these sections. electronically? burdensome than submitting paper 21. It is further ordered that the * * * * * applications, because a majority of Consumer and Governmental Affairs (b) For a complete list of applications applicants currently file their Bureau, Reference Information Center, you can file electronically, see the IBFS applications electronically on a shall send a copy of this Order, Web site at www.fcc.gov/ibfs. voluntary basis. We also make an including the Final Regulatory * * * * * existing streamlined license Flexibility Certification, to the Chief modification procedure available to DBS Counsel for Advocacy of the Small PART 25—SATELLITE and DARS licensees, and adopt a new Business Administration. COMMUNICATIONS streamlined license modification List of Subjects in 47 CFR Parts 1 and procedure for NGSO licensees. The I 5. The authority citation for part 25 25 effect of these rule revisions is to reduce continues to read as follows: the administrative burdens of some Administrative practice and Authority: 47 U.S.C. 701–744. Interprets or space station licensees. We expect that procedure, Satellites. applies sections 4, 301, 302, 303, 307, 309 these changes will be minimal and Federal Communications Commission. and 332 of the Communications Act, as positive. Therefore, we certify that the William F. Caton, amended, 47 U.S.C. 154, 301, 302, 303, 307, 309 and 332, unless otherwise noted. requirements of this Fourth Report and Deputy Secretary. Order will not have a significant I 6. Revise § 25.110 to read as follows: economic impact on a substantial Rule Changes number of small entities. The I For the reasons discussed in the § 25.110 Filing of applications, fees, and number of copies. Commission will send a copy of the preamble, the Federal Communications Fourth Report and Order, including a Commission amends 47 CFR, parts 1 and (a) You can obtain application forms copy of this final certification, in a 25, to read as follows: for this part by going online at report to Congress pursuant to the www.fcc.gov/ibfs, where you may Congressional Review Act, see 5 U.S.C. PART 1—PRACTICE AND complete the form prior to submission 801(a)(1)(A). In addition, the Fourth PROCEDURE via IBFS, the IB electronic filing system. Report and Order and this certification (b) Submitting your application. All I will be sent to the Chief Counsel for 1. The authority citation for part 1 space station applications and all earth Advocacy of the Small Business continues to read as follows: station applications must be filed Administration, and will be published Authority: 47 U.S.C. 151, 154(i), 154(j), electronically on Form 312. In this part, in the Federal Register. See 5 U.S.C. 155, 225, 303(r), 309 and 325(e). any party permitted or required to file 605(b). I 2. Revise § 1.10000 to read as follows: information on Form 312 must file that 17. Privacy Impact Assessment. The information electronically through the Commission has performed a Privacy § 1.10000 What is the purpose of these International Bureau Filing System Impact Assessment as required by the rules? (IBFS) in accordance with the Privacy Act, as amended by the E- (a) These rules are issued under the applicable provisions of part 1, subpart Government Act of 2002. The Communications Act of 1934, as Y of this chapter.
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(c) All correspondence and § 25.114 Applications for space station Bureau Filing System (IBFS) in amendments concerning any authorizations. accordance with the applicable application must identify: * * * * * provisions of part 1, subpart Y of this (1) The satellite radio service; (b) Each application for a new or chapter; (2) The applicant’s name; modified space station authorization * * * * * must constitute a concrete proposal for (3) Station location; I 10. Section 25.116 is amended by Commission evaluation. Each (4) The call sign or other revising paragraph (e) to read as follows: application must also contain the formal identification of the station; and waiver required by section 304 of the (5) The file number of the application § 25.116 Amendments to applications. Communications Act, 47 U.S.C. 304. * * * * * involved. The technical information for a (d) Copies. Applications must be filed (e) Any amendment to an application proposed satellite system specified in shall be filed electronically through the electronically though IBFS. The paragraph (c) of this section must be Commission will not accept any paper International Bureau Filing System filed on FCC Form 312, Main Form and (IBFS) in accordance with the version of any application. Schedule S. The technical information (e) Signing. Upon filing an application applicable provisions of part 1, subpart for a proposed satellite system specified Y of this chapter. Amendments to space electronically, the applicant must print in paragraph (d) of this section need not out the filed application, obtain the station applications must be filed on be filed on any prescribed form but Form 312 and Schedule S. Amendments proper signatures, and keep the original should be complete in all pertinent in its files. to space station applications must be details. Applications for all new space filed on Form 312 and Schedule B. (f) The applicant must pay the station authorizations must be filed I appropriate fee for its application and electronically through the International 11. Section 25.117 is amended by submit it in accordance with part 1, Bureau Filing System (IBFS) in revising paragraph (c) introductory text subpart G of this chapter. accordance with the applicable to read as follows: I 7. Section 25.113 is amended by provisions of part 1, subpart Y of this § 25.117 Modification of station license. revising paragraph (g) introductory text chapter. * * * * * and by adding paragraph (h) to read as * * * * * (c) Applications for modification of follows: I 9. Section 25.115 is amended by earth station authorizations shall be revising paragraph (a) to read as follows: § 25.113 Construction permits, station submitted on FCC Form 312, Main Form licenses and launch authority. § 25.115 Application for earth station and Schedule B. Applications for modification of space station * * * * * authorizations. authorizations shall be submitted on (g) Except as set forth in paragraph (h) (a)(1) Transmitting earth stations. FCC Form 312, Main Form and of this section, a launch authorization Except as provided under § 25.113(b), Schedule S. Both earth station and and station license (i.e., operating Commission authorization must be space station modification applications authority) must be applied for and obtained for authority to construct and/ must be filed electronically through the granted before a space station may be or operate a transmitting earth station. International Bureau Filing System launched and operated in orbit. Request Applications shall be filed (IBFS) in accordance with the for launch authorization may be electronically on FCC Form 312, Main applicable provisions of part 1, subpart included in an application for space Form and Schedule B, and include the Y of this chapter. In addition, any station license. However, an application information specified in § 25.130, application for modification of for authority to launch and operate an except as set forth in paragraph (a)(2) of authorization to extend a required date on-ground spare satellite will be this section. of completion, as set forth in § 25.133 considered pursuant to the following (2) Applicants for licenses for for earth station authorization or procedures: transmitting earth station facilities are § 25.164 for space stations, or included * * * * * required to file on Form 312EZ, to the extent that form is available, in the as a condition of any earth station or (h) Licensees of Non-Geostationary space station authorization, must Satellite Orbit (NGSO) satellite systems following cases: (i) The earth station will transmit in include a verified statement from the need not file separate applications to the 3700–4200 MHz and 5925–6425 applicant: operate technically identical in-orbit MHz band, and/or the 11.7–12.2 GHz * * * * * spares authorized as part of a blanket and 14.0–14.5 GHz band; and I 12. Section 25.118 is amended by license pursuant to § 25.114(e) or any (ii) The earth station will meet all the other satellite blanket licensing revising paragraph (a) introductory text, applicable technical specifications set the introductory text of paragraph (e), provision in this part. However, the forth in part 25 of this chapter. licensee shall notify the Commission and adding paragraphs (e)(8) and (e)(9), (3) If Form 312EZ is not available, to read as follows: within 30 days of bringing the in-orbit earth station license applicants spare into operation, and certify that specified in paragraph (a)(2) must file § 25.118 Modifications not requiring prior operation of this space station did not on FCC Form 312, Main Form and authorization. cause the licensee to exceed the total Schedule B, and include the (a) Earth station license number of operating space stations information specified in § 25.130. modifications, notification required. authorized by the Commission, and that (4) Applications for earth station Authorized earth station operators may the licensee will operate the space authorizations must be filed in make the following modifications to station within the applicable terms and accordance with the pleading their licenses without prior Commission conditions of its license. These limitations, periods and other authorization, provided that the notifications must be filed electronically applicable provisions of §§ 1.41 through operators notify the Commission, using on FCC Form 312. 1.52 of this chapter, except that such FCC Form 312 and Schedule B, within I 8. Section 25.114 is amended by earth station applications must be filed 30 days of the modification. This revising paragraph (b) to read as follows: electronically through the International notification must be filed electronically
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through the International Bureau Filing provisions of part 1, subpart Y of this FEDERAL COMMUNICATIONS System (IBFS) in accordance with the chapter. COMMISSION applicable provisions of part 1, subpart * * * * * Y of this chapter: 47 CFR Part 73 I 15. Section 25.154 is amended by * * * * * [DA 04–2266; MB Docket No. 04–97, RM– (e) Space station modifications. A revising paragraph (a)(3), paragraph (c), 10897, RM–10898; MB Docket No. 04–98, space station operator may modify its and paragraph (d), to read as follows: RM–10899; MB Docket No. 04–99, RM– 10900; MB Docket No. 04–100, RM–10901; license without prior authorization, but § 25.154 Opposition to applications and upon 30 days prior notice to the MB Docket No. 04–101, RM–10902, RM– other pleadings. 10903; MB Docket No. 04–102, RM–10904, Commission and any potentially (a) * * * RM–10905, RM–10906; MB Docket No. 04– affected licensed spectrum user, 103, RM–10907; MB Docket No. 04–104, provided that the operator meets the (3) Filed in accordance with the RM–10908, MB Docket No. 04–105, RM– following requirements. This pleading limitations, periods and other 10909, RM–10910, RM–10911; MB Docket notification must be filed electronically applicable provisions of §§ 1.41 through No. 04–106, RM–10912; MB Docket No. 04– on Form 312 through the International 1.52 of this chapter, except that such 107, RM–10913, RM–10914; MB Docket No. Bureau Filing System (IBFS) in petitions must be filed electronically 04–108, RM–10915, RM–10916, RM–10917, RM–10918; MB Docket No. 04–109, RM– accordance with the applicable through the International Bureau Filing provisions of part 1, subpart Y of this 10919; MB Docket No. 04–110, RM–10920, System (IBFS) in accordance with the RM–10921, RM–10922] chapter: applicable provisions of part 1, subpart * * * * * Y of this chapter; Radio Broadcasting Services; Canton, (8) For DBS licensees, the space * * * * * IL, Cedarville, IL, Council Grove, KS, station licensee must certify that it will Clifton, IL, Farmersburg, IN, Freeport, not cause greater interference than that (c) Oppositions to petitions to deny an IL, Fowler, IN, Golden Meadow, LA, which would occur from the current application or responses to comments Homer, LA, Madison, IN, Pinckneyville, U.S. assignments in the International and informal objections regarding an IL, Ringgold, LA, Smith Mills, KY and Telecommunication Union (ITU) Region application may be filed within 10 days Terre Haute, IN 2 BSS Plan and its associated Feeder after the petition, comment, or objection Link Plan. is filed and must be in accordance with AGENCY: Federal Communications Commission. (9) For DBS licensees, the space other applicable provisions of §§ 1.41 station licensee must certify that it will through 1.52 of this chapter, except that ACTION: Final rule. meet the geographic service such oppositions must be filed SUMMARY: The Audio Division grants electronically through the International requirements in § 25.148(c). fourteen reservation proposals Bureau Filing System (IBFS) in I 13. Section 25.130 is amended by requesting to amend the FM Table of accordance with the applicable revising paragraph (a) to read as follows: Allotments by reserving certain vacant provisions of part 1, subpart Y of this FM allotments for noncommercial § 25.130 Filing requirements for chapter. transmitting earth stations. educational use in Canton, Illinois, (d) Reply comments by the party that Cedarville, Illinois, Council Grove, (a) Applications for a new or modified filed the original petition may be filed Kansas, Clifton, Illinois, Farmersburg, transmitting earth station facility shall with respect to pleadings filed pursuant Indiana, Freeport, Illinois, Fowler, be submitted on FCC Form 312, Main to paragraph (c) of this section within 5 Indiana, Golden Meadow, Louisiana, Form and Schedule B, accompanied by days after the time for filing oppositions Homer, Louisiana, Madison, Indiana, any required exhibits, except for those has expired unless the Commission Pinckneyville, Illinois, Terre Haute, earth station applications filed on FCC otherwise extends the filing deadline Indiana, Ringgold, Louisiana and Smith Form 312EZ pursuant to § 25.115(a). All and must be in accordance with other Mills, Kentucky. At the request of such earth station license applications applicable provisions of §§ 1.41 through Illinois State University and Starboard must be filed electronically through the Media Foundation, Inc., the Audio International Bureau Filing System 1.52 of this chapter, except that such reply comments must be filed Division grants petitions requesting to (IBFS) in accordance with the reserve vacant Channel 277A at Canton, applicable provisions of part 1, subpart electronically through the International Bureau Filing System (IBFS) in Illinois for noncommercial educational Y of this chapter. use. The reference coordinates for accordance with the applicable * * * * * Channel *277A at Canton are 40–28–27 provisions of part 1, subpart Y of this I North Latitude and 90–03–01 West 14. Section 25.131 is amended by chapter. revising paragraph (a) to read as follows: Longitude. At the request of The [FR Doc. 04–16975 Filed 8–5–04; 8:45 am] Catholic Diocese of Rockford, the Audio § 25.131 Filing requirements for receive- BILLING CODE 6712–01–P Division grants a petition requesting to only earth stations. reserve vacant Channel 258A at (a) Except as provided in paragraphs Cedarville, Illinois for noncommercial (b) and (j) of this section, and section educational use. The reference 25.115(a), applications for a license for coordinates for Channel *258A at a receive-only earth station shall be Cedarville are 42–21–50 North Latitude submitted on FCC Form 312, Main Form and 89–40–59 West Longitude. At the and Schedule B, accompanied by any request of Starboard Media Foundation, required exhibits. All such earth station Inc., the Audio Division grants a license applications must be filed petition requesting to reserve vacant electronically through the International Channel 297A at Clifton, Illinois for Bureau Filing System (IBFS) in noncommercial educational use. The accordance with the applicable reference coordinates for Channel
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*297A at Clifton are 40–52–0 North use. The reference coordinates for Ringgold are 32–19–49 North Latitude Latitude and 87–58–0 West Longitude. Channel *291A at Fowler are 40–38–5 and 93–12–33 West Longitude. See Supplementary Information, infra. North Latitude and 87–18–46 West List of Subjects in 47 CFR Part 73 DATES: Effective September 7, 2004. Longitude. At the request of American ADDRESSES: Federal Communications Family Association, the Audio Division Radio, Radio broadcasting. Commission, 445 Twelfth Street, SW., grants a petition requesting to reserve I Washington, DC. 20554. vacant Channel 266A at Madison, For the reasons discussed in the preamble, the Federal Communications FOR FURTHER INFORMATION CONTACT: Indiana for noncommercial educational Rolanda F. Smith, Media Bureau, (202) use. The reference coordinates for Commission proposes to amend 47 CFR 418–2180. Channel *266A at Madison are 38–49– Part 73 as follows: SUPPLEMENTARY INFORMATION: This is a 15 North Latitude and 85–18–46 West Longitude. At the request of Living PART 73—RADIO BROADCAST synopsis of the Commission’s Report SERVICES and Order, MB Docket Nos. 04–97, 04– Proof, Inc., Word Power, Inc. and The Trustees of Indiana University, the 98, 04–99, 04–100, 04–101, 04–102, 04– I 1. The authority citation for part 73 103, 04–104, 04–105, 04–106, 04–107, Audio Division grants petitions continues to read as follows: 04–108, 04–109, 04–110 adopted July requesting to reserve vacant Channel 21, 2004 and released July 23, 2004. The 298B at Terre Haute, Indiana for Authority: 47 U.S.C. 154, 303, 334 and 336. full text of this Commission decision is noncommercial educational use. The available for inspection and copying reference coordinates for Channel *298B § 73.202 [Amended] at Terre Haute are 39–30–14 North during regular business hours at the I 2. Section 73.202(b), the Table of FM Latitude and 87–26–37 West Longitude. FCC’s Reference Information Center, Allotments under Illinois, is amended by At the request of Great Plains Christian Portals II, 445 Twelfth Street, SW., adding Channel *277A and by removing Room CY-A257, Washington, DC 20554. Radio, Inc., the Audio Division grants a Channel 277A at Canton; by adding The complete text of this decision may petition requesting to reserve vacant Channel *258A and by removing also be purchased from the Channel 281C3 at Council Grove, Commission’s duplicating contractor, Kansas for noncommercial educational Channel 258A at Cedarville; by adding Best Copy and Printing, Inc., 445 12th use. The reference coordinates for Channel *297A and by removing Street, SW., Room CY–B402, Channel *281C3 at Council Grove are Channel 297A at Clifton; and by adding Washington, DC 20554, telephone 1– 38–39–42 North Latitude and 96–29–18 Channel *295A and by removing 800–378–3160, or via the Web site West Longitude. At the request of Channel 295A at Freeport; and by adding www.BCPIWEB.com. The Commission American Family Association and Channel *282A and by removing will send a copy of this Report and Starboard Media Foundation, Inc., the Channel 282A at Pinckneyville. Order in a report to be sent to Congress Audio Division grants petitions I 3. Section 73.202(b), the Table of FM and the General Accounting Office requesting to reserve vacant Channel Allotments under Indiana, is amended pursuant to the Congressional Review 233A at Smith Mills, Kentucky for by adding Channel *242A and by Act, see 5 U.S.C. 801(a)(1)(A). noncommercial educational use. The removing Channel 242A at Farmersburg; At the request of Starboard Media reference coordinates for Channel by adding Channel *291A and by Foundation, Inc., the Audio Division *233A at Smith Mills are 37–47–26 removing Channel 291A at Fowler; by grants a petition requesting to reserve North Latitude and 87–55–23 West adding Channel *266A and by removing vacant Channel 295A at Freeport, Longitude. At the request of American Channel 266A at Madison; and by adding Illinois for noncommercial educational Family Association, Starboard Media Channel *298B and by removing use. The reference coordinates for Foundation, Inc., Providence Channel *295A at Freeport are 42–19– Educational Foundation, and Calvary of Channel 298B at Terre Haute. 28 North Latitude and 89–35–13 West New Orleans, the Audio Division grants I 4. Section 73.202(b), the Table of FM Longitude. At the request of Starboard petitions requesting to reserve vacant Allotments under Kansas, is amended by Media Foundation, Inc. and Miller Channel 289C2 at Golden Meadow, adding Channel *281C3 and by Media, the Audio Division grants Louisiana for noncommercial removing Channel 281C3 at Council petitions to reserve vacant Channel educational use. The reference Grove. 282A at Pinckneyville, Illinois for coordinates for Channel *289C2 at I 5. Section 73.202(b), the Table of FM noncommercial educational use. The Golden Meadow are 29–14–0 North Allotments under Kentucky, is amended reference coordinates for Channel Latitude and 90–15–0 West Longitude. by adding Channel *233A and by *282A at Pinckneyville are 38–5–30 At the request of American Family removing Channel 233A at Smith Mills. North Latitude and 89–22–46 West Association, the Audio Division grants a Longitude. At the request of American petition requesting to reserve vacant I 6. Section 73.202(b), the Table of FM Family Association, Starboard Media Channel 272A at Homer, Louisiana for Allotments under Louisiana, is amended Foundation, Inc., and Word Power, Inc., noncommercial educational use. The by adding Channel *289C2 and by the Audio Division grants petitions reference coordinates for Channel removing Channel 289C2 at Golden requesting to reserve vacant Channel *272A at Homer are 32–42–41 North Meadow; by adding Channel *272A and 242A at Farmersburg, Indiana for Latitude and 92–56–35 West Longitude. by removing Channel 272A at Homer; noncommercial educational use. The At the request of American Family and by adding Channel *253C3 and by reference coordinates for Channel Association, Starboard Media removing Channel 253C3 at Ringgold. *242A at Farmersburg are 39–15–18 Foundation, Inc., Southern Cultural Federal Communications Commission. North Latitude and 87–23–0 West Outreach Association, Inc., the Audio Longitude. At the request of Starboard Division grants a petition requesting to John A. Karousos, Media Foundation, Inc., the Audio reserve vacant Channel 253C3 at Assistant Chief, Audio Division, Media Division grants a petition requesting to Ringgold, Louisiana for noncommercial Bureau. reserve vacant Channel 291A at Fowler, educational use. The reference [FR Doc. 04–17901 Filed 8–5–04; 8:45 am] Indiana for noncommercial educational coordinates for Channel *253C3 at BILLING CODE 6712–01–P
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DEPARTMENT OF COMMERCE pelagic longline fishery to release sea pelagic longline rule that would turtles. inadvertently change existing bottom National Oceanic and Atmospheric On July 6, 2004 (69 FR 35599), NMFS longline requirements. This action Administration published a final rule to reduce sea corrects the regulatory text to restore the turtle bycatch and bycatch mortality in linecutter and dipnet requirements for 50 CFR Part 635 the Atlantic pelagic longline fishery. the bottom longline fishery from a That rulemaking was based on the [Docket No. 040802222–4222–01; I.D. December 24, 2003 (68 FR 74746) final 072804A] results of the 3–year Northeast Distant rule, consistent with the intent of both (NED) Closed Area research experiment the December 2003 final rule and the RIN 0648–AS52 involving: interactions of pelagic July 6, 2004, final rule. As the July 6, longline (PLL) fishing gear and Atlantic 2004, rule will not be effective until Atlantic Highly Migratory Species sea turtles, other available studies and August 5, 2004, notice and comment are (HMS) Fisheries; Pelagic and Bottom information on circle hook and bait unnecessary, because this action would Longline Fisheries; Correction treatments, and public comments. As simply maintain regulations currently in AGENCY: National Marine Fisheries part of that rulemaking, NMFS effect and not have a substantive effect Service (NMFS), National Oceanic and redefined the type of equipment and the on the fishery. Further delay in taking Atmospheric Administration (NOAA), handling guidelines that pelagic this action is contrary to the public Commerce. longline fishermen must carry and use interest. Without expedient action, there to release sea turtles. These new ACTION: Final rule; amendment. would be adverse economic impacts on requirements become effective on fishery participants from SUMMARY: This rule corrects the gear August 5, 2004. implementation of the July 2004 requirements for bottom longline In changing the requirements for regulations and potential confusion for fishermen that were inadvertently pelagic longline fishermen, NMFS vessel owners and enforcement. These changed in a July 2004 final rule to inadvertently changed the requirements corrections would maintain the minimize sea turtle bycatch and bycatch for bottom longline fishermen by failing currently existing regulations and mortality in the pelagic longline fishery. to correct a paragraph cross-reference would not cause fishermen to purchase DATES: This final rule is effective August referring to the previous linecutter and additional gear. For the above reasons, 3, 2004, except for the amendment to dipnet requirements. Thus, the there is also good cause under 5 U.S.C. § 635.21(a)(3), which is effective on regulatory text in the July 6, 2004 (69 FR 553(d)(3)to waive the 30–day delay in August 6, 2004. Section 635.21 (d)(3)(iv) 35599) final rule indicated that bottom effectiveness. is not applicable until further longline fishermen would also need to Because prior notice and opportunity notification is published in the Federal carry the additional equipment and use for public comment are not required for Register. the revised handling procedures this rule by 5 U.S.C. 553, or by any other established for pelagic longline FOR FURTHER INFORMATION CONTACT: law, the analytical requirements of the fishermen. This was not the intent of Regulatory Flexibility Act, 5 U.S.C. 601 Karyl Brewster-Geisz at 301–713–2347, that. Rather, the rule was intended to fax: 301–713–1917. et seq., are inapplicable. affect only Atlantic HMS fishermen This action is not significant under SUPPLEMENTARY INFORMATION: The using pelagic longline gear. This action the meaning of Executive Order 12866. Atlantic tuna and swordfish fisheries corrects the change in the regulatory are managed under the authority of the text by replacing the incorrect paragraph List of Subjects in 50 CFR Part 635 Magnuson-Stevens Fishery cross-reference with the linecutter and Fisheries, Fishing, Fishing vessels, Conservation and Management Act dipnet regulations from the December Foreign relations, Imports, Penalties, (Magnuson-Stevens Act) and the 24, 2003 (68 FR 74746) final rule. This Reporting and recordkeeping Atlantic Tunas Convention Act (ATCA). action would not change the intent of requirements, Treaties. Atlantic sharks are managed under the either the December 24, 2003, or July 6, Dated: August 3, 2004. authority of the Magnuson-Stevens Act. 2004, final rules, and would result in William T. Hogarth, The Fishery Management Plan for the existing bottom longline regulations Atlantic Tunas, Swordfish, and Sharks remaining in effect. NMFS intends to Assistant Administrator for Fisheries, National Marine Fisheries Service. (HMS FMP)and Amendment 1 to the update the gear requirements for the Atlantic Billfish Fishery Management bottom longline fishery to reflect recent I For the reasons set out in the preamble, Plan are implemented by regulations at changes in gear requirements for the 50 CFR part 635 is amended as follows: 50 CFR part 635. The Atlantic pelagic pelagic longline fishery. However, and bottom longline fisheries for these PART 635—ATLANTIC HIGHLY NMFS has not yet analyzed the MIGRATORY SPECIES HMS are also subject to the potential impacts of such an action, or requirements of the Endangered Species provided an opportunity for public I 1. The authority citation for part 635 Act (ESA) and the Marine Mammal comment on potential gear changes in continues to read as follows: Protection Act (MMPA). the bottom longline fishery. Thus, any Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. On December 24, 2003 (68 FR 74746), such change will need to be part of a 1801 et seq. NMFS published a final rule future rulemaking. I 2. Effective August 6, 2004, in § 635.21, implementing the final regulations paragraph (a)(3) is revised to read as described in Amendment 1 to the HMS Classification follows: FMP. These regulations required bottom The Assistant Administrator for longline fishermen to carry and use Fisheries (AA), under 5 U.S.C. § 635.21 Gear operation and deployment linecutters and dipnets to release sea 553(b)(B), finds that providing prior restrictions. turtles, prohibited sharks, and notice and an opportunity for public (a) * * * smalltooth sawfish as of February 1, comment on this final rule is (3) All vessels that have pelagic 2004. At the time of publication, these unnecessary and contrary to the public longline gear on board and that have linecutter and dipnet requirements were interest. This rule corrects regulatory been issued, or are required to have, a the same as those required in the HMS text from a July 6, 2004 (69 FR 35599) limited access swordfish, shark, or tuna
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longline category permit for use in the have an extended reach handle or pole to remove the hook from any hooked sea Atlantic Ocean including the Caribbean of at least 6 ft (1.82 m). turtle, prohibited shark, or other animal, Sea and the Gulf of Mexico must (4) Secure fastener. The cutting blade as appropriate. The dehooking device possess inside the wheelhouse the must be securely fastened to the should not be used to release smalltooth document provided by NMFS entitled, extended reach handle or pole to ensure sawfish. NMFS will file with the Office ‘‘Careful Release Protocols for Sea effective deployment and use. of the Federal Register for publication Turtle Release with Minimal Injury,’’ (B) Dipnets. Dipnets are intended to the minimum design standards for and all vessels with pelagic or bottom facilitate safe handling of sea turtles and approved dehooking devices. NMFS longline gear on board must post inside access to sea turtles for purposes of may also file with the Office of the the wheelhouse the sea turtle handling cutting lines in a manner that prevents Federal Register for publication any and release guidelines provided by injury and trauma to sea turtles. The additions and/or amendments to the NMFS. minimum design standards for dipnets minimum design standards. * * * * * are as follows: * * * * * (1) Extended reach handle. The dipnet I [FR Doc. 04–18032 Filed 8–3–04; 2:51 pm] 3. Paragraph (d)(3) to § 635.21 is must have an extended reach handle of BILLING CODE 3510–22–S revised to read as follows: at least 6 ft (1.82 m) of wood or other § 635.21 Gear operation and deployment rigid material able to support a restrictions. minimum of 100 lb (34.1 kg) without DEPARTMENT OF COMMERCE * * * * * breaking or significant bending or (d) * * * distortion. National Oceanic and Atmospheric (2) Size of dipnet. The dipnet must (3) The operator of a vessel required Administration have a net hoop of at least 31 inches to be permitted under this part and that (78.74 cm) inside diameter and a bag has bottom longline gear on board must 50 CFR Part 648 depth of at least 38 inches (96.52 cm). undertake the following bycatch The bag mesh openings may not exceed [Docket No. 040507144–4213–02; mitigation measures to release sea I.D.043004A] 3 inches x 3 inches (7.62 cm x 7.62 cm). turtles, prohibited sharks, or smalltooth (ii) Handling requirements. (A) The RIN 0648–AQ85 sawfish, as appropriate. dipnets required by this paragraph (i) Possession and use of required should be used to facilitate access and Fisheries of the Northeastern United mitigation gear. Line clippers meeting safe handling of sea turtles where States; Atlantic Bluefish Fishery minimum design specifications as feasible. The line clippers must be used AGENCY: National Marine Fisheries specified in paragraph (d)(3)(i)(A) of this to disentangle sea turtles, prohibited section and dipnets meeting minimum Service (NMFS), National Oceanic and sharks, or smalltooth sawfish from Atmospheric Administration (NOAA), standards prescribed in paragraph fishing gear or to cut fishing line as (d)(3)(i)(B) of this section must be Commerce. close as possible to a hook that cannot ACTION: Final rule, 2004 specifications carried on board and must be used to be removed without causing further disengage any hooked or entangled sea injury. SUMMARY: NMFS issues 2004 turtles, prohibited sharks, or smalltooth (B) When practicable, active and specifications for the Atlantic bluefish sawfish, in accordance with the comatose sea turtles must be brought on fishery, including total allowable requirements specified in paragraph board immediately, with a minimum of harvest levels (TAL), state-by-state (d)(3)(ii) of this section. injury, and handled in accordance with commercial quotas, and a recreational (A) Line clippers. Line clippers are the procedures specified in harvest limit and possession limit for intended to cut fishing line as close as § 223.206(d)(1) of this title. Atlantic bluefish off the east coast of the possible to hooked or entangled sea (C) If a sea turtle is too large or United States. The intent of the turtles, prohibited sharks, or smalltooth hooked in a manner that precludes safe specifications is to conserve and manage sawfish. NMFS has established boarding without causing further the bluefish resource and provide for minimum design standards for line damage or injury to the turtle, line sustainable fisheries. clippers. The Arceneaux line clipper is clippers described in paragraph DATES: Effective September 7, 2004, a model that meets these minimum (c)(5)(i)(A) of this section must be used through December 31, 2004. design standards and may be fabricated to clip the line and remove as much line ADDRESSES: from readily available and low-cost Copies of supporting as possible prior to releasing the turtle. documents, including the materials (65 FR 16347, March 28, (D) If a smalltooth sawfish is caught, 2000). The minimum design standards Environmental Assessment (EA) and the fish should be kept in the water Regulatory Impact Review (RIR), Final for line clippers are as follows: while maintaining water flow over the (1) A protected cutting blade. The Regulatory Flexibility Analysis (FRFA), gills and examined for research tags and and Essential Fish Habitat Assessment cutting blade must be curved, recessed, the line should be cut as close to the contained in a holder, or otherwise (EFHA) are available from: Patricia A. hook as possible. Kurkul, Regional Administrator, designed to minimize direct contact of (iii) Corrodible hooks. Vessels that Northeast Regional Office, NMFS, One the cutting surface with sea turtles, have bottom longline gear on board and Blackburn Drive, Gloucester, MA prohibited sharks, smalltooth sawfish, that have been issued, or required to 01930–2298. The EA/RIR/FRFA/EFHA or users of the cutting blade. have, a limited access shark permit for are accessible via the Internet at http:/ (2) Cutting blade edge. The blade use in the Atlantic Ocean, including the /www.nero.nmfs.gov. must be able to cut 2.0–2.1 mm Caribbean Sea and the Gulf of Mexico, monofilament line and nylon or must only have corrodible hooks on FOR FURTHER INFORMATION CONTACT: polypropylene multistrand material board. Myles Raizin, Fishery Policy Analyst, commonly known as braided mainline (iv) Possess and use a dehooking 978–281–9104, fax 978–281–9135, e- or tarred mainline. device that meets the minimum design mail [email protected]. (3) An extended reach holder for the standards. The dehooking device must SUPPLEMENTARY INFORMATION: cutting blade. The line clipper must be carried on board and must be used Regulations implementing the FMP
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prepared by the Mid-Atlantic Fishery FMP, the measures established for 2004 Fisheries Commission’s Interstate Management Council (Council) appear were developed to achieve F=0.184. Fishery Management Plan for Atlantic at 50 CFR part 648, subparts A and J. Projection results indicate that the Bluefish. A Notice of Request for Regulations requiring annual bluefish stock will increase to an Proposals was published in the Federal specifications are found at § 648.160. estimated biomass of 165.853 million lb Register to solicit research proposals for The FMP requires that the Council (365.504 million kg) in 2004. This 2004 that could utilize research set- recommend, on an annual basis, TAL, biomass can produce a Total Allowable aside (RSA) TAC authorized by the which is comprised of a commercial Catch (TAC) of 34.215 million lb (15.5 FMP, based on research priorities quota and recreational harvest limit. million kg) in 2004 at F=0.184. The TAL identified by the Council (January 27, This rule implements final for 2004 is derived from this value by 2003; 68 FR 3864). One research project specifications for the Atlantic bluefish subtracting estimated discards of 2.365 that would utilize bluefish RSA has fishery for 2004 that are unchanged million lb (1.06 million kg) from the been approved by the NOAA Grants from the proposed specifications TAC. This results in a TAL for 2004 of Office. Therefore, a 297,750–lb published on May 19, 2004 (69 FR 31.85 million lb (14.45 million kg). (135,057–kg) RSA is specified. Due to 28875). A complete discussion of the Commercial Quota and Recreational the allocation of the bluefish RSA, the development of these specifications is Harvest Limit adjusted commercial quota for 2004 is included in the proposed rule and is not 10.401 million lb (4.718 million kg) and repeated here. These measures are the Consistent with the FMP and the adjusted recreational harvest limit is same as those implemented for 2004 by regulations governing the bluefish 21.150 million lb (9.59 million kg). the states under the Atlantic States fishery, NMFS has transferred 5.085 Marine Fisheries Commission’s million lb (2.036 million kg) from the Recreational Possession Limit Interstate FMP. initial 2004 recreational allocation of 26.435 million lb (11.990 million kg) to A recreational possession limit of 15 Final Specifications the commercial fishery, resulting in a fish will be maintained for the 2004 fishing year. TAL 2004 recreational harvest limit of 21.350 million lb (9.684 million kg) and a State Commercial Allocations For the 2004 fishery, the stock commercial quota of 10.5 million lb rebuilding program in the FMP restricts (4.76 million kg). The 2004 commercial The annual commercial quota for F to 0.31. However, the 2002 fishery (the quota would be the same as was bluefish will be distributed to the states most recent fishing year for which F can allocated in 2003 and also as (See Table 1.), based on the percentages be calculated) produced an F of only implemented by the states for 2004 specified in the FMP, less the proposed 0.184. Therefore, in accordance with the under the Atlantic States Marine RSA allocation.
TABLE 1.—ANNUAL BLUEFISH STATE COMMERCIAL QUOTAS
2004 Commercial 2004 Commercial State % of quota 2004 Commercial 2004 Commercial Quota (lb) With Re- Quota (kg) With Re- Quota (lb) Quota (kg) search Set-Aside search Set-Aside
ME ...... 0.6685 70,193 31,839 69,536 31,541 NH ...... 0.4145 43,523 19,742 43,116 19,557 MA ...... 6.7167 705,254 319,901 698,660 316,907 RI ...... 6.8081 714,851 324,254 708,168 321,220 CT ...... 1.2663 132,962 60,311 131,719 59,747 NY ...... 10.3851 1,090,436 494,619 1,080,242 489,990 NJ ...... 14.8162 1,555,701 705,661 1,541,158 699,058 DE ...... 1.8782 197,211 89,454 195,367 88,617 MD ...... 3.0018 315,189 142,969 312,242 141,631 VA ...... 11.8795 1,247,348 565,793 1,235,687 560,498 NC ...... 32.0608 3,366,384 1,526,982 3,334,913 1,512,691 SC ...... 0.0352 3,696 1,676 3,661 1,661 GA ...... 0.0095 998 453 988 448 FL ...... 10.0597 1,056,269 479,121 1,046,394 474,636 Total ...... 100.0000 10,500,015 4,762,727 10,401,851 4,744,652
Comments and Responses Response: The poundage transfer million lb (3.74 and 7.05 million kg). provision was included in Amendment Since the recreational fishery is not One set of comments was received 1 to the FMP (Amendment 1) to ensure projected to land its harvest limit in during the comment period on the proposed rule, as follows: that commercial landings would not be 2004, this allows the specification of a unnecessarily reduced if the commercial quota of up to 10.5 million Comment: The commenter opposes recreational fishery is not expected to lb (4.76 million kg). The TAL for 2004 the transfer of allocation from the recreational sector to the commercial attain its harvest limit. The FMP is 31.85 million lb (14.45 million kg). sector because he believes it is unfair to stipulates that such a transfer may be This is consistent with an F of 0.184 anglers who endure strict regulations. made if the recreational fishery is not which is actually less than the He believes it fails to reward projected to land its harvest limit for the maximum level of F of 0.310 specified recreational fishers who do not fully upcoming year. Recreational landings in the FMP as the rebuilding target for attain their allocation and negates the from the last several years were much 2004. A commercial harvest of 10.5 conservation benefits their underharvest lower than the recreational allocation million lb (4.76 million kg) does not creates. for 2004, ranging between 8.30 and 15.5 result in overfishing based on the
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overfishing definition in the FMP. pounds of bluefish to NMFS-permitted between the preferred alternative Overfishing occurs when F is greater dealers during calendar year 2002. (Alternative 1) and Alternatives 2 and 3, than Fmsy = 0.310 (the F that produces Vessels fishing for bluefish with a therefore, relates only to the manner in maximum sustainable yield). Since the Federal permit intending to sell their which the overall TAL is allocated stock condition is improving, and the catch must do so to NMFS-permitted between the commercial and overall TAL maintains a very low F, dealers. All vessels affected by this recreational components of the bluefish there is no reason to reduce allowed rulemaking have gross receipts less than fishery. Under Alternative 1, the landings by the commercial sector. The $3.5 million and are considered to be commercial quota allocation is 10.401 transfer is not constraining to small entities under the RFA. Since million lb (4.718 million kg), with a recreational fishermen, since the there are no large entities participating recreational harvest limit of 21.150 remaining recreational harvest limit is in this fishery, there are no million lb (9.68 million kg). Under more than double the average disproportionate effects resulting from Alternative 2, the commercial quota recreational landings over the last small versus large entities. Since costs allocation is 5.363 million lb (2.433 several years. are not readily available, vessel million kg) with a recreational harvest Comment: The commenter believes profitability cannot be determined limit of 26.188 million lb (11.878 that the proposed rule is not written in directly. Therefore, changes in gross million kg). Under Alternative 3, the plain English since most readers would revenue were used as a proxy for commercial quota allocation is 9.493 not know what F represents. profitability. Of the active, Federally- million lb (4.346 million kg) with a Response: F is defined as ‘‘fishing permitted vessels in 2002, 928 landed recreational harvest limit of 22.058 mortality rate’’ in the SUPPLEMENTARY bluefish from Maine to North Carolina. million lb (10.100 million kg). INFORMATION section of the proposed Dealer data do not cover vessel activity The preferred commercial quota rule. from South Carolina to Florida. South represents a less than 1–percent decrease from the 2003 commercial Classification Atlantic Trip Ticket Report data indicate that 1,004 vessels landed quota, with the decrease due to the This action is authorized by 50 CFR bluefish in North Carolina, including amount specified for the RSA. The 2004 part 648 and has been determined to be those with Federal permits and those recreational harvest limit would be 21 not significant for purposes of Executive fishing only in state waters. These data percent lower than the recreational Order 12866. also indicate that bluefish landings in harvest limit specified for 2003. The National Marine Fisheries Service South Carolina and Georgia represented However, the recreational harvest limit (NMFS), pursuant to section 604 of the less than 1/10 of 1 percent of total would still be about twice the Regulatory Flexibility Act (RFA), has landings. Therefore, it was assumed that recreational landings for 2002. Bluefish prepared a final regulatory flexibility no vessels landed bluefish from those landings for the 2000–2002 period analysis (FRFA) in support of the 2004 states. According to South Atlantic Trip ranged from 29 to 59 percent lower than bluefish specifications. The FRFA Ticket Report data, 101 commercial the recreational harvest limits specified describes the economic impact that this vessels landed bluefish to dealers on in those years, and a projection based on final rule will have on small entities. Florida’s east coast in 2002. preliminary recreational data for 2003 The FRFA incorporates the economic In addition, in 2002, approximately indicates that landings will be 46 impacts summarized in the initial 2,063 party/charter vessels caught percent lower than the recreational regulatory flexibility analysis (IRFA) bluefish in either state or Federal harvest limit specified for 2003. summary found in the Classification waters. All of these vessels are Therefore, under this alternative, no section of the proposed rule, the considered small entities under the RFA vessels would realize significant comments on, and responses to the having gross receipts of less than $5 revenue reductions. A total of 928 proposed rule, and the corresponding million annually. Since the possession vessels were projected to incur revenue economic analyses prepared by Council limits would remain at 15 fish per losses as a result of the proposed for these specifications. For the most person, there should be no impact on commercial quota allocation, with 95 part, those impacts are not repeated demand for party/charter vessel fishing, percent of those estimated to incur here. A copy of the IRFA, the FRFA, the and therefore, no impact on revenues losses of less than 1 percent, and none RIR and the EA are available from earned by party/charter vessels. to incur losses greater than 5 percent. NMFS, Northeast Regional Office and There are no recordkeeping, reporting, The affected entities would be mostly on the Northeast Regional Office or other compliance requirements smaller vessels that land bluefish in Website (see ADDRESSES). A description associated with these final Massachusetts, New Jersey, New York of the reasons why this action is being specifications that would increase costs and North Carolina. In addition, considered, and the objectives of, and and negatively impact profitability of economic analysis of South Atlantic legal basis for, the final rule is found in vessels prosecuting the bluefish fishery. Trip Ticket Report data indicated that, the preamble to the final rule and is not In addition, none of the alternatives to on average, the slight reduction in the repeated here. these final specifications would further commercial quota from 2003 to 2004 One set of comments was submitted mitigate the economic impacts to would be expected to result in small on the proposed rule, but it was not vessels prosecuting the fishery. reductions in revenue for fishermen that specific to the IRFA or the economic Therefore, there are no opportunities for land bluefish in North Carolina (0.05 impact of the rule. NMFS has responded vessels to further increase profits from percent) and Florida (0.03 percent). to the comment in the Comments and implementation of alternatives other The allocations specified in Responses section of the preamble to than those published as part of this rule. Alternative 2 represent a 49–percent this final rule. No changes were made to The Council analyzed three decrease in the commercial quota from the final rule as a result of the alternatives. The TAL recommendation the 2003 commercial quota, and a 2– comments received. and RSA are unchanged in the percent decrease in the recreational An active participant in the alternatives, as the TAL is the level that harvest limit from the 2003 recreational commercial bluefish fishery sector is would achieve the target F in 2004, and harvest limit. The 2004 recreational defined as being any vessel that the RSA is the amount allocated through harvest limit would be more than twice reported having landed one or more the grants process. The difference the 2003 projected recreational
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landings. The reduction in the from 5 to 19 percent due to the Assuming an equal reduction among all commercial quota would cause 15 reduction in the commercial quota. An 928 active dealer reported vessels, this vessels to have revenue losses of 50 additional 875 commercial vessels could mean a reduction of about $109 percent or more, while 123 would have would incur revenue losses of less than per individual vessel. Changes in the revenue losses from 5 to 49 percent. An 5 percent of their total ex-vessel recreational harvest limit would be additional 790 vessels would incur revenue. Also, evaluation of South insignificant (less than 1 percent revenue losses of less than 5 percent of Atlantic Trip Ticket Reports indicate decrease), if 2 percent of the TAL is their total ex-vessel revenue. Also, reduction in revenues of 0.82 and 0.05– used for research. It is unlikely that evaluation of South Atlantic Trip Ticket percent for fishermen that land bluefish there would be negative impacts. A Reports indicates an average of 4.43 and in North Carolina and Florida, copy of this analysis is available from 0.03–percent reductions in revenue for respectively. the Council (see ADDRESSES). fishermen that land bluefish in North The Council further analyzed the Carolina and Florida, respectively. impacts on revenues of the proposed Authority: 16 U.S.C. 1801 et seq. Alternative 3 represents a 9–percent RSA specified in all three alternatives. Dated:August 2, 2004. decrease in the total allowable The social and economic impacts of this commercial landings for bluefish in proposed RSA are expected to be William T. Hogarth, 2003 versus 2004. The 2004 recreational minimal. Assuming the full RSA is Assistant Administrator for Fisheries, harvest limit would be 17 percent lower allocated for bluefish, the set-aside National Marine Fisheries Service. than the estimated recreational landings amount could be worth as much as [FR Doc. 04–18050 Filed 8–5–04; 8:45 am] in 2003. Under this scenario, a total of $101,235 dockside, based on a 2002 BILLING CODE 3510–22–S 53 vessels would incur revenue losses price of $0.34 per pound for bluefish.
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Proposed Rules Federal Register Vol. 69, No. 151
Friday, August 6, 2004
This section of the FEDERAL REGISTER • Mail: Docket Management Facility, proposed AD in light of those contains notices to the public of the proposed U.S. Department of Transportation, 400 comments. issuance of rules and regulations. The Seventh Street, SW., Nassif Building, We will post all comments we purpose of these notices is to give interested room PL–401, Washington, DC 20590. receive, without change, to http:// persons an opportunity to participate in the • By fax: (202) 493–2251. dms.dot.gov, including any personal rule making prior to the adoption of the final • information you provide. We will also rules. Hand Delivery: Room PL–401 on the plaza level of the Nassif Building, post a report summarizing each 400 Seventh Street, SW., Washington, substantive verbal contact with FAA DEPARTMENT OF TRANSPORTATION DC, between 9 a.m. and 5 p.m., Monday personnel concerning this proposed AD. through Friday, except Federal holidays. Using the search function of that Web Federal Aviation Administration For service information identified in site, anyone can find and read the this proposed AD, contact Boeing comments in any of our dockets, 14 CFR Part 39 Commercial Airplanes, P.O. Box 3707, including the name of the individual Seattle, Washington 98124–2207. who sent the comment (or signed the [Docket No. FAA–2004–18784; Directorate comment on behalf of an association, Identifier 2004–NM–59–AD] You can examine the contents of this AD docket on the Internet at http:// business, labor union, etc.). You can RIN 2120–AA64 dms.dot.gov, or at the Docket review DOT’s complete Privacy Act Management Facility, U.S. Department Statement in the Federal Register Airworthiness Directives; Boeing of Transportation, 400 Seventh Street, published on April 11, 2000 (65 FR Model 747–400, –400D, –400F; 767– SW., room PL–401, on the plaza level of 19477–78), or you can visit http:// 200, –300, –300F; and 777–200 and the Nassif Building, Washington, DC. dms.dot.gov. –300 Series Airplanes We are reviewing the writing style we FOR FURTHER INFORMATION CONTACT: AGENCY: Federal Aviation Bernie Gonzalez, Aerospace Engineer, currently use in regulatory documents. Administration (FAA), DOT. Propulsion Branch, ANM–140S, FAA, We are interested in your comments on whether the style of this document is ACTION: Notice of proposed rulemaking Transport Airplane Directorate, Seattle clear, and your suggestions to improve (NPRM). Aircraft Certification Office, 1601 Lind the clarity of our communications that Avenue, SW., Renton, Washington affect you. You can get more SUMMARY: The FAA proposes to adopt a 98055–4056; telephone (425) 917–6498; information about plain language at new airworthiness directive (AD) for fax (425) 917–6590. certain Boeing Model 747–400, –400D, http://www.faa.gov/language and http:// SUPPLEMENTARY INFORMATION: –400F; 767–200, –300, –300F; and 777– www.plainlanguage.gov. 200 and –300 series airplanes. This Docket Management System (DMS) Examining the Docket proposed AD would require installing a The FAA has implemented new jumper wire between the wiring of the You can examine the AD docket on procedures for maintaining AD dockets the Internet at http://dms.dot.gov, or in fire extinguisher switch and the fuel electronically. As of May 17, 2004, new shutoff switch for each engine, and person at the Docket Management AD actions are posted on DMS and Facility office between 9 a.m. and 5 other specified actions. This proposed assigned a docket number. We track AD is prompted by a certain p.m., Monday through Friday, except each action and assign a corresponding Federal holidays. The Docket combination of conditions, which could directorate identifier. The DMS AD cause the fuel spar shutoff valves to Management Facility office (telephone docket number is in the form ‘‘Docket (800) 647–5227) is located on the plaza remain partially open. We are proposing No. FAA–2004–99999.’’ The Transport this AD to prevent a latent open circuit level of the Nassif Building at the DOT Airplane Directorate identifier is in the street address stated in the ADDRESSES that could leave the fuel spar shutoff form ‘‘Directorate Identifier 2004–NM– section. Comments will be available in valve in a partially open position when 999–AD.’’ Each DMS AD docket also the AD docket shortly after the DMS the engine fire switch is activated, lists the directorate identifier (‘‘Old receives them. which could result in fuel from the Docket Number’’) as a cross-reference engine feeding an uncontrolled fire in for searching purposes. Discussion the engine or the strut. We have received a report indicating DATES: We must receive comments on Comments Invited that a certain combination of conditions this proposed AD by September 20, We invite you to submit any written could cause the fuel spar shutoff valves 2004. relevant data, views, or arguments to remain partially open, potentially ADDRESSES: Use one of the following regarding this proposed AD. Send your contributing to a fire fed by engine fuel addresses to submit comments on this comments to an address listed under at the engine or strut. The engine fire proposed AD. ADDRESSES. Include ‘‘Docket No. FAA– procedure requires the pilot to set the • DOT Docket Web site: Go to 2004–18784; Directorate Identifier engine fuel control switch to the cutoff http://dms.dot.gov and follow the 2004–NM–59–AD’’ in the subject line of position and then activate the engine instructions for sending your comments your comments. We specifically invite fire switch. These actions transfer power electronically. comments on the overall regulatory, required to close the fuel spar shutoff • Government-wide rulemaking Web economic, environmental, and energy valves between the wires connecting the site: Go to http://www.regulations.gov aspects of the proposed AD. We will fuel control switch and the engine fire and follow the instructions for sending consider all comments submitted by the switch. During an engine fire, the wire your comments electronically. closing date and may amend the connected to the engine fire switch
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could have a latent open circuit that The other specified actions include except as discussed under ‘‘Differences could leave the fuel spar shutoff valve testing the electrical connections after Between the Proposed AD and Service in a partially open position when the installing the jumper wires, and Information.’’ engine fire switch is activated. This operational testing of the fuel spar condition, if not corrected, could result shutoff valves. Differences Between the Proposed AD and Service Information in fuel from the engine feeding an Accomplishing the actions specified uncontrolled fire in the engine or the in the service information is intended to The service bulletins do not include strut. adequately address the identified unsafe a compliance time for installing the Relevant Service Information condition. jumper wire; however, the manufacturer We have reviewed the following FAA’s Determination and Requirements recommends a compliance time of 60 Boeing Special Attention Service of the Proposed AD months, with which we concur. Bulletins, which describe procedures for Paragraph (f) of this proposed AD installing a jumper wire between the We have evaluated all pertinent requires installing the jumper wire wiring of the fire extinguisher switch information and identified an unsafe within 60 months after the effective date and the fuel shutoff switch for each condition that is likely to exist or of the AD. engine, and other specified actions: develop on other airplanes of this same • 747–28–2238 (for Model 747–400, type design. Therefore, we are Costs of Compliance –400D, and –400F series airplanes), proposing this AD, which would require This proposed AD would affect about dated October 18, 2001. installing a jumper wire between the • 767–28–0066 (for Model 767–200, wiring of the fire extinguisher switch 1,882 airplanes worldwide. We estimate –300, and –300F series airplanes), and the fuel shutoff switch for each that 579 airplanes of U.S. registry would Revision 1, dated May 29, 2003. engine, and other specified actions. The be affected by this proposed AD. The • 777–28–0025 (for Model 777–200 proposed AD would require you to use following table provides the estimated and –300 series airplanes), dated the service information described costs for U.S. operators to comply with January 10, 2002. previously to perform these actions, this proposed AD.
ESTIMATED COSTS
Average Action model series Work labor rate per Parts Cost per hours hour airplane
Installation 747–400, –400D, –400F ...... 4 $65 $1,450 $1,710 Test 747–400, –400D, –400F ...... 2 65 None 130 Installation 767–200, –300, –300F ...... 4 65 500 760 Test 767–200, –300, –300F ...... 2 65 None 130 Installation 777–200, –300 ...... 4 65 220 480 Test 777–200, –300 ...... 2 65 None 130
Regulatory Findings under the criteria of the Regulatory Authority: 49 U.S.C. 106(g), 40113, 44701. Flexibility Act. § 39.13 [Amended] We have determined that this We prepared a regulatory evaluation proposed AD would not have federalism of the estimated costs to comply with 2. The FAA amends § 39.13 by adding implications under Executive Order this proposed AD. See the ADDRESSES the following new airworthiness 13132. This proposed AD would not section for a location to examine the directive (AD): have a substantial direct effect on the regulatory evaluation. States, on the relationship between the Boeing: Docket No. FAA–2004–18784; national Government and the States, or List of Subjects in 14 CFR Part 39 Directorate Identifier 2004–NM–59–AD. on the distribution of power and Air transportation, Aircraft, Aviation Comments Due Date responsibilities among the various safety, Safety. (a) The Federal Aviation Administration levels of government. (FAA) must receive comments on this AD For the reasons discussed above, I The Proposed Amendment action by September 20, 2004. certify that the proposed regulation: Accordingly, under the authority Affected ADs 1. Is not a ‘‘significant regulatory delegated to me by the Administrator, (b) None. action’’ under Executive Order 12866; the FAA proposes to amend 14 CFR part Applicability 2. Is not a ‘‘significant rule’’ under the 39 as follows: DOT Regulatory Policies and Procedures (c) This AD applies to Boeing Model 747– PART 39—AIRWORTHINESS (44 FR 11034, February 26, 1979); and 400, –400D, and –400F series airplanes, line DIRECTIVES numbers 1 through 1276 inclusive; 767–200, 3. Will not have a significant –300, and –300F series airplanes, line economic impact, positive or negative, 1. The authority citation for part 39 numbers 1 through 850 inclusive; and 777– on a substantial number of small entities continues to read as follows: 200 and –300 series airplanes, line numbers
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1 through 360 inclusive; certificated in any DEPARTMENT OF TRANSPORTATION dms.dot.gov, or at the Docket category. Management Facility, U.S. Department Federal Aviation Administration Unsafe Condition of Transportation, 400 Seventh Street, SW., room PL–401, on the plaza level of (d) This AD was prompted by a certain 14 CFR Part 39 the Nassif Building, Washington, DC. combination of conditions, which could FOR FURTHER INFORMATION CONTACT: cause the fuel spar shutoff valves to remain [Docket No. FAA–2004–18786; Directorate Identifier 2004–NM–26–AD] partially open. We are issuing this AD to Suzanne Masterson, Aerospace prevent a latent open circuit that could leave RIN 2120–AA64 Engineer, Airframe Branch, ANM–120S, the fuel spar shutoff valve in a partially open FAA, Seattle Aircraft Certification position when the engine fire switch is Airworthiness Directives; Boeing Office, 1601 Lind Avenue, SW., Renton, activated, which could result in fuel from the Model 767–200, –300, and –300F Series Washington 98055–4056; telephone engine feeding an uncontrolled fire in the Airplanes (425) 917–6441; fax (425) 917–6590. engine or the strut. SUPPLEMENTARY INFORMATION: AGENCY: Federal Aviation Compliance Administration (FAA), DOT. Docket Management System (DMS) (e) You are responsible for having the ACTION: Notice of proposed rulemaking The FAA has implemented new actions required by this AD performed within (NPRM). procedures for maintaining AD dockets the compliance times specified, unless the SUMMARY: The FAA proposes to adopt a electronically. As of May 17, 2004, new actions have already been done. new airworthiness directive (AD) for AD actions are posted on DMS and Installation of Jumper Wire certain Boeing Model 767–200, –300, assigned a docket number. We track and –300F series airplanes. This each action and assign a corresponding (f) Within 60 months after the effective directorate identifier. The DMS AD date of this AD: Install a jumper wire proposed AD would require repetitive high frequency eddy current inspections docket number is in the form ‘‘Docket between the wiring of the fire extinguisher No. FAA–2004–99999.’’ The Transport switch and the fuel shutoff switch for each and detailed inspections of the left and right butt line (BL) 25 vertical chords for Airplane Directorate identifier is in the engine, and do all other specified actions in form ‘‘Directorate Identifier 2004–NM– the Accomplishment Instructions of Boeing cracks, and corrective actions if 999–AD.’’ Each DMS AD docket also Special Attention Service Bulletin 747–28– necessary. This proposed AD is lists the directorate identifier (‘‘Old 2238 (for Model 747–400, –400D, and –400F prompted by findings of cracks in the Docket Number’’) as a cross-reference series airplanes), dated October 18, 2001; fillet radii of the left and right BL 25 for searching purposes. 767–28–0066 (for Model 767–200, –300, and vertical chords common to the nose –300F series airplanes), Revision 1, dated wheel well bulkhead at station 287. We Comments Invited May 29, 2003; or 777–28–0025 (for Model are proposing this AD to detect and We invite you to submit any written 777–200 and –300 series airplanes), dated correct cracks in the left and right BL 25 relevant data, views, or arguments January 10, 2002; as applicable. vertical chords, which could grow downward into a critical area that serves regarding this proposed AD. Send your Credit for Actions Accomplished Previously as a primary load path for the nose comments to an address listed under (g) Accomplishment of the actions required landing gear (NLG) and result in the ADDRESSES. Include ‘‘Docket No. FAA– by paragraph (f) before the effective date of collapse of the NLG during landing. 2004–18786; Directorate Identifier this AD, in accordance with Boeing Special DATES: We must receive comments on 2004–NM–26–AD’’ in the subject line of Attention Service Bulletin 747–28–2238, this proposed AD by September 20, your comments. We specifically invite dated October 18, 2001; 767–28–0066, 2004. comments on the overall regulatory, Revision 1, dated May 29, 2003; or 777–28– economic, environmental, and energy ADDRESSES: Use one of the following 0025, dated January 10, 2002; as applicable; aspects of the proposed AD. We will addresses to submit comments on this is considered acceptable for compliance with consider all comments submitted by the proposed AD. the corresponding action of paragraph (f) of closing date and may amend the • DOT Docket Web site: Go to this AD. proposed AD in light of those http://dms.dot.gov and follow the comments. Alternative Methods of Compliance instructions for sending your comments We will post all comments we (AMOCs) electronically. • receive, without change, to http:// (h) The Manager, Seattle Aircraft Government-wide rulemaking Web site: Go to http://www.regulations.gov dms.dot.gov, including any personal Certification Office (ACO), FAA, has the information you provide. We will also authority to approve AMOCs for this AD, if and follow the instructions for sending your comments electronically. post a report summarizing each requested in accordance with the procedures • substantive verbal contact with FAA found in 14 CFR 39.19. Mail: Docket Management Facility, U.S. Department of Transportation, 400 personnel concerning this proposed AD. Issued in Renton, Washington, on July 30, Seventh Street, SW., Nassif Building, Using the search function of that Web 2004. room PL–401, Washington, DC 20590. site, anyone can find and read the Ali Bahrami, • By fax: (202) 493–2251. comments in any of our dockets, • Manager, Transport Airplane Directorate, Hand Delivery: room PL–401 on the including the name of the individual Aircraft Certification Service. plaza level of the Nassif Building, 400 who sent the comment (or signed the [FR Doc. 04–17985 Filed 8–5–04; 8:45 am] Seventh Street, SW., Washington, DC, comment on behalf of an association, between 9 a.m. and 5 p.m., Monday business, labor union, etc.). You may BILLING CODE 4910–13–P through Friday, except Federal holidays. review DOT’s complete Privacy Act You can get the service information Statement in the Federal Register identified in this proposed AD from published on April 11, 2000 (65 FR Boeing Commercial Airplanes, P.O. Box 19477–78), or you may visit http:// 3707, Seattle, Washington 98124–2207. dms.dot.gov. You may examine the contents of this We are reviewing the writing style we AD docket on the Internet at http:// currently use in regulatory documents.
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We are interested in your comments on nose wheel well bulkhead at station 287 Regulatory Findings whether the style of this document is for cracks, and corrective actions if We have determined that this clear, and your suggestions to improve necessary. The proposed AD would proposed AD would not have federalism the clarity of our communications that require you to use the service implications under Executive Order affect you. You can get more information described previously to 13132. This proposed AD would not information about plain language at perform these actions, except as have a substantial direct effect on the http://www.faa.gov/language and http:// discussed under ‘‘Difference Between States, on the relationship between the www.plainlanguage.gov. the Proposed AD and the Service national Government and the States, or Bulletin.’’ Examining the Docket on the distribution of power and You may examine the AD docket in Differences Between the Proposed AD responsibilities among the various person at the Docket Management and the Service Bulletin levels of government. For the reasons discussed above, I Facility office between 9 a.m. and 5 The service bulletin specifies that you certify that the proposed regulation: p.m., Monday through Friday, except may contact the manufacturer for 1. Is not a ‘‘significant regulatory Federal holidays. The Docket instructions on repairing certain action’’ under Executive Order 12866; Management Facility office (telephone conditions. This proposed AD, however, 2. Is not a ‘‘significant rule’’ under the (800) 647–5227) is located on the plaza would require you to repair those DOT Regulatory Policies and Procedures level of the Nassif Building at the DOT conditions using a method approved by (44 FR 11034, February 26, 1979); and street address stated in the ADDRESSES the FAA, or with data meeting the type 3. Will not have a significant section. Comments will be available in certification basis of the airplane economic impact, positive or negative, the AD docket shortly after the DMS approved by a Boeing Company on a substantial number of small entities receives them. Designated Engineering Representative under the criteria of the Regulatory Discussion who has been authorized by the FAA to Flexibility Act. make such findings. We have received a report of two We prepared a regulatory evaluation operators finding cracks in the fillet Clarification of Inspection Terminology of the estimated costs to comply with radii of the left and right butt line (BL) this proposed AD. See the ADDRESSES In this proposed AD, the ‘‘detailed 25 vertical chords, common to the nose section for a location to examine the visual inspection’’ specified in the wheel well bulkhead at station 287, on regulatory evaluation. service bulletin is referred to as a several Boeing Model 767–300 series ‘‘detailed inspection.’’ We have List of Subjects in 14 CFR Part 39 airplanes. Stress corrosion was included the definition for a detailed Air transportation, Aircraft, Aviation determined to have caused the cracks. inspection in a note in this proposed safety, Safety. This condition, if not corrected, could AD. grow downward into a critical area that The Proposed Amendment serves as a primary load path for the Clarification Between Proposed Rule Accordingly, under the authority nose landing gear (NLG) and result in and the Service Bulletin delegated to me by the Administrator, the collapse of the NLG during landing. The service bulletin specifies a the FAA proposes to amend 14 CFR part Relevant Service Information compliance time of 6 years in service, or 39 as follows: within 18 months from the release date We have reviewed Boeing Alert PART 39—AIRWORTHINESS of the service bulletin. However, Service Bulletin 767–53A0113, dated DIRECTIVES February 26, 2004. The service bulletin paragraph (g) of this proposed AD describes procedures for repetitive high specifies the compliance time as the 1. The authority citation for part 39 frequency eddy current inspections later of the following: (1) within 72 continues to read as follows: (HFEC) and detailed inspections of the months since the date of issuance of the Authority: 49 U.S.C. 106(g), 40113, 44701. left and right BL 25 vertical chords original Airworthiness Certificate or the common to the nose wheel well date of issuance of the original Export § 39.13 [Amended] bulkhead at station 287 for cracks, and Certificate of Airworthiness, or (2) 2. The FAA amends § 39.13 by adding corrective actions if necessary. The within 18 months after the effective date the following new airworthiness corrective action includes repairing any of this AD. This decision is based on our directive (AD): determination that ‘‘years in service’’ damaged BL 25 vertical chord or Boeing: Docket No. FAA–2004–18786; contacting the manufacturer for repair may be interpreted differently by Directorate Identifier 2004–NM–26–AD. instructions, as applicable. We have different operators. We find that our Comments Due Date determined that accomplishment of the proposed terminology is generally actions specified in the service bulletin understood within the industry and (a) The Federal Aviation Administration will adequately address the unsafe records will always exist that establish (FAA) must receive comments on this AD action by September 20, 2004. condition. these dates with certainty. Affected ADs FAA’s Determination and Requirements Costs of Compliance (b) None. of the Proposed AD This proposed AD would affect about We have evaluated all pertinent 743 airplanes worldwide and 312 Applicability information and identified an unsafe airplanes of U.S. registry. The proposed (c) This AD applies to Boeing Model 767– condition that is likely to exist or actions would take about 8 work hours 200, –300, and –300F series airplanes, develop on other airplanes of this same per airplane, at an average labor rate of certificated in any category; as listed in type design. Therefore, we are $65 per work hour. No parts are Boeing Alert Service Bulletin 767–53A0113, dated February 26, 2004. proposing this AD, which would require required. Based on these figures, the repetitive HFEC inspections and estimated cost of the proposed AD for Unsafe Condition detailed inspections of the left and right U.S. operators is $162,240, or $520 per (d) This AD was prompted by findings of BL 25 vertical chords common to the airplane, per inspection cycle. cracks in the fillet radii of the left and right
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butt line (BL) 25 vertical chords common to Cracks Found: Not Extending Below WL 159 prompted by a report indicating that, the nose wheel well bulkhead at station 287. (j) If any crack is found in any BL 25 during heavy turbulence, a pilot needed We are issuing this AD to detect and correct vertical chord during any inspection required to apply aileron trim to maintain level cracks in the left and right BL 25 vertical by paragraph (g) or (h) of this AD, and the flight because cracking of the upper chords, which could grow downward into a crack does not extend below WL 159: Before inboard attachment lug of the aileron critical area that serves as a primary load further flight, repair any damaged BL 25 path for the nose landing gear (NLG) and spring tab balance unit, probably due to vertical chord in accordance with the service corrosion, had caused permanent result in the collapse of the NLG during bulletin. landing. deflection of the spring tab and Repaired BL 25 Vertical Chords consequent aileron damage. We are Compliance (k) Repair of any BL 25 vertical chord in proposing this AD to prevent (e) You are responsible for having the accordance with paragraph (i) or (j) of this diminished control of the airplane in actions required by this AD performed within AD, as applicable, terminates the repetitive turbulence or total loss of roll control the compliance times specified, unless the inspections required by paragraph (h) of this for the affected wing. actions have already been done. AD for the repaired vertical chord only. If DATES: We must receive comments on both the left and right BL 25 vertical chords Service Bulletin Reference are repaired as required by paragraph (i) or this proposed AD by September 7, 2004. (f) The term ‘‘service bulletin,’’ as used in (j) of this AD, as applicable, no more work ADDRESSES: Use one of the following this AD, means the Accomplishment is required by this AD. addresses to submit comments on this Instructions of Boeing Alert Service Bulletin proposed AD. 767–53A0113, dated February 26, 2004. Alternative Methods of Compliance • (AMOCs) DOT Docket Web site: Go to Initial Inspections http://dms.dot.gov and follow the (l)(1) The Manager, Seattle Aircraft instructions for sending your comments (g) At the later of the compliance times Certification Office (ACO), FAA, has the electronically. specified in paragraphs (g)(1) and (g)(2) of authority to approve AMOCs for this AD, if • this AD: Do a high frequency eddy current requested using the procedures found in 14 Government-wide rulemaking Web inspection and a detailed inspection of the CFR 39.19. site: Go to http://www.regulations.gov left and right BL 25 vertical chords common (2) An AMOC that provides an acceptable and follow the instructions for sending to the nose wheel well bulkhead at station level of safety may be used for any repair your comments electronically. 287 for cracks, in accordance with the service required by this AD, if it is approved by a • Mail: Docket Management Facility, bulletin. Boeing Company Designated Engineering U.S. Department of Transportation, 400 (1) Within 72 months since the date of Representative who has been authorized by Seventh Street, SW., Nassif Building, issuance of the original Airworthiness the Manager, Seattle ACO, to make such room PL–401, Washington, DC 20590. Certificate or the date of issuance of the findings. • By fax: (202) 493–2251. original Export Certificate of Airworthiness. Issued in Renton, Washington, on July 30, • Hand delivery: Room PL–401 on the (2) Within 18 months after the effective 2004. date of this AD. plaza level of the Nassif Building, 400 Ali Bahrami, Seventh Street, SW., Washington, DC, Note 1: For the purposes of this AD, a detailed inspection is: ‘‘An intensive Manager, Transport Airplane Directorate, between 9 a.m. and 5 p.m., Monday examination of a specific item, installation, Aircraft Certification Service. through Friday, except Federal holidays. or assembly to detect damage, failure, or [FR Doc. 04–17986 Filed 8–5–04; 8:45 am] You can get the service information irregularity. Available lighting is normally BILLING CODE 4910–13–P identified in this proposed AD from supplemented with a direct source of good Fokker Services B.V., P.O. Box 231, lighting at an intensity deemed appropriate. 2150 AE Nieuw-Vennep, The Inspection aids such as mirror, magnifying DEPARTMENT OF TRANSPORTATION Netherlands. lenses, etc., may be necessary. Surface You can examine the contents of this cleaning and elaborate procedures may be Federal Aviation Administration AD docket on the Internet at http:// required.’’ dms.dot.gov, or at the Docket 14 CFR Part 39 No Cracks Found Management Facility, U.S. Department of Transportation, 400 Seventh Street, (h) For any BL 25 vertical chord in which [Docket No. FAA–2004–18787; Directorate no crack is found during any inspection Identifier 2003–NM–264–AD] SW., room PL–401, on the plaza level of required by paragraph (g) of this AD: the Nassif Building, Washington, DC. Thereafter at intervals not to exceed 48 RIN 2120–AA64 FOR FURTHER INFORMATION CONTACT: Tom months, repeat the inspections required by Airworthiness Directives; Fokker Rodriguez, Aerospace Engineer; paragraph (g) of this AD for any BL 25 International Branch, ANM–116, FAA, vertical chord that has not been repaired Model F27 Mark 100, 200, 300, 400, 500, 600, and 700 Series Airplanes Transport Airplane Directorate, 1601 according to paragraph (i) or (j) of this AD. Lind Avenue, SW., Renton, Washington Cracks Found: Extending Below Water Line AGENCY: Federal Aviation 98055–4056; telephone (425) 227–1137; (WL) 159 Administration (FAA), DOT. fax (425) 227–1149. (i) If any crack is found on any BL 25 ACTION: Notice of proposed rulemaking SUPPLEMENTARY INFORMATION: vertical chord during any inspection required (NPRM). by paragraph (g) or (h) of this AD, and the Docket Management System (DMS) crack extends below WL 159: Before further SUMMARY: The FAA proposes to adopt a The FAA has implemented new flight, repair per a method approved by the new airworthiness directive (AD) for all procedures for maintaining AD dockets Manager, Seattle Aircraft Certification Office Fokker Model F27 Mark 100, 200, 300, electronically. As of May 17, 2004, new (ACO), FAA; or per data meeting the type 400, 500, 600, and 700 series airplanes. AD actions are posted on DMS and certification basis of the airplane approved This proposed AD would require a one- assigned a docket number. We track by a Boeing Company Designated Engineering Representative who has been time high-frequency eddy current each action and assign a corresponding authorized by the Manager, Seattle ACO, to inspection for cracking of the directorate identifier. The DMS AD make such findings. For a repair method to attachment lugs of the aileron spring tab docket number is in the form ‘‘Docket be approved, the approval must specifically balance unit, and corrective actions if No. FAA–2004–99999.’’ The Transport reference this AD. necessary. This proposed AD is Airplane Directorate identifier is in the
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form ‘‘Directorate Identifier 2004–NM– airworthiness authority for the balance unit, if necessary. The proposed 999–AD.’’ Each DMS AD docket also Netherlands, notified us that an unsafe AD would require you to use the service lists the directorate identifier (‘‘Old condition may exist on all Fokker Model information described previously to Docket Number’’) as a cross-reference F27 Mark 100, 200, 300, 400, 500, 600, perform these actions, except as for searching purposes. and 700 series airplanes. The CAA–NL discussed under ‘‘Differences Between advises that it received a report Comments Invited the Proposed AD and Service Bulletin.’’ indicating that, during heavy We invite you to submit any written turbulence, a pilot needed to apply Differences Between the Proposed AD relevant data, views, or arguments aileron trim to maintain level flight and Service Bulletin regarding this proposed AD. Send your because of cracking of the upper inboard Although the referenced service comments to an address listed under attachment lug of the aileron spring tab bulletin describes procedures for ADDRESSES. Include ‘‘Docket No. FAA– balance unit, probably due to corrosion, reporting certain information to Fokker 2004–18787; Directorate Identifier which caused permanent deflection of Services B.V., this proposed AD would 2003–NM–264–AD’’ at the beginning of the spring tab and consequent aileron not require that action. We do not need your comments. We specifically invite damage. This condition, if not corrected, this information from operators. comments on the overall regulatory, could result in diminished control of Although the referenced service economic, environmental, and energy the airplane in turbulence or total loss bulletin specifies that you may contact aspects of the proposed AD. We will of roll control for the affected wing. the manufacturer for instructions on consider all comments submitted by the Relevant Service Information how to repair certain conditions, this closing date and may amend the proposed AD would require you to proposed AD in light of those Fokker Services B.V. has issued repair those conditions using a method comments. Fokker Service Bulletin F27/27–137, that we or the CAA–NL (or its delegated We will post all comments we dated March 19, 2003. The service agent) approve. In light of the type of receive, without change, to http:// bulletin describes procedures for a one- repair that would be required to address dms.dot.gov, including any personal time high-frequency eddy current the unsafe condition, and consistent inspection of the attachment lugs of the information you provide. We will also with existing bilateral airworthiness aileron spring tab balance unit post a report summarizing each agreements, we have determined that, (including any removal of loose paint substantive verbal contact with FAA for this proposed AD, a repair we or the and/or corrosion); reworking of the personnel concerning this proposed AD. CAA–NL approve would be acceptable balance unit attachment lugs; and Using the search function of our docket for compliance with this proposed AD. Web site, anyone can find and read the replacement of the balance unit, if comments in any of our dockets, necessary. We have determined that Interim Action accomplishing the actions specified in including the name of the individual We consider this proposed AD the service information will adequately who sent the comment (or signed the interim action. If final action is later address the unsafe condition. The CAA– comment on behalf of an association, identified, we may consider further NL mandated the service information business, labor union, etc.). You can rulemaking then. review the DOT’s complete Privacy Act and issued Dutch airworthiness Statement in the Federal Register directive 2003–037, dated March 31, Costs of Compliance 2003, to ensure the continued published on April 11, 2000 (65 FR This proposed AD would affect about airworthiness of these airplanes in the 19477–78), or you may visit http:// 38 airplanes of U.S. registry. The Netherlands. dms.dot.gov. proposed actions would take about 5 We are reviewing the writing style we FAA’s Determination and Requirements work hours per airplane, at an average currently use in regulatory documents. of the Proposed AD labor rate of $65 per work hour. Based We are interested in your comments on on these figures, the estimated cost of whether the style of this document is This airplane model is manufactured in the Netherlands and is type the proposed AD for U.S. operators is clear, and your suggestions to improve $12,350, or $325 per airplane. the clarity of our communications that certificated for operation in the United affect you. You can get more States under the provisions of section Regulatory Findings information about plain language at 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the We have determined that this http://www.faa.gov/language and http:// proposed AD would not have federalism www.plainlanguage.gov. applicable bilateral airworthiness agreement. Pursuant to this bilateral implications under Executive Order Examining the Docket airworthiness agreement, the CAA–NL 13132. This proposed AD would not have a substantial direct effect on the You can examine the AD docket in has kept the FAA informed of the States, on the relationship between the person at the Docket Management situation described above. We have national Government and the States, or Facility office between 9 a.m. and 5 examined the CAA–NL’s findings, on the distribution of power and p.m., Monday through Friday, except evaluated all pertinent information, and responsibilities among the various Federal holidays. The Docket determined that AD action is necessary levels of government. Management Facility office (telephone for products of this type design that are (800) 647–5227) is located on the plaza certificated for operation in the United For the reasons discussed above, I level of the Nassif Building at the DOT States. certify that the proposed regulation: street address stated in the ADDRESSES Therefore, we are proposing this AD, 1. Is not a ‘‘significant regulatory section. Comments will be available in which would require a one-time high- action’’ under Executive Order 12866; the AD docket shortly after the DMS frequency eddy current inspection of 2. Is not a ‘‘significant rule’’ under the receives them. the attachment lugs of the aileron spring DOT Regulatory Policies and Procedures tab balance unit, with any needed (44 FR 11034, February 26, 1979); and Discussion removal of loose paint and/or corrosion, 3. Will not have a significant The Civil Aviation Authority–The reworking of the balance unit economic impact, positive or negative, Netherlands (CAA–NL), which is the attachment lugs, and replacement of the on a substantial number of small entities
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under the criteria of the Regulatory of Fokker Service Bulletin F27/27–137, dated DEPARTMENT OF TRANSPORTATION Flexibility Act. March 19, 2003. If no loose paint, corrosion We prepared a regulatory evaluation damage, or crack is found during this Federal Aviation Administration of the estimated costs to comply with inspection, no further action is required by this proposed AD. See the ADDRESSES this AD. 14 CFR Part 39 section for a location to examine the Repair and Rework of Attachment Lugs [Docket No. FAA–2004–18788; Directorate regulatory evaluation. (g) If no crack is found during the Identifier 2003–NM–203–AD] List of Subjects in 14 CFR Part 39 inspection required by paragraph (f) of this RIN 2120–AA64 Air transportation, Aircraft, Aviation AD, but it was necessary to remove loose safety, Safety. paint or corrosion to perform the inspection: Airworthiness Directives; Boeing Prior to further flight, rework the attachment Model 737–100, –200, –200C, –300, The Proposed Amendment lugs in accordance with the Accomplishment –400, and –500 Series Airplanes Accordingly, under the authority Instructions of Fokker Service Bulletin F27/ AGENCY: Federal Aviation delegated to me by the Administrator, 27–137, dated March 19, 2003. If corrosion Administration (FAA), DOT. the FAA proposes to amend 14 CFR part damage has caused any attachment lug to 39 as follows: exceed the dimensional limits specified in ACTION: Notice of proposed rulemaking the service bulletin: Prior to further flight, (NPRM). PART 39—AIRWORTHINESS replace the aileron spring tab balance unit SUMMARY: The FAA proposes to adopt a DIRECTIVES with a serviceable unit, in accordance with new airworthiness directive (AD) for the Accomplishment Instructions of Fokker 1. The authority citation for part 39 Service Bulletin F27/27–137, dated March certain Boeing Model 737–100, –200, continues to read as follows: 19, 2003, or repair the lug in accordance with –200C, –300, –400, and –500 series Authority: 49 U.S.C. 106(g), 40113, 44701. a method approved by the Manager, airplanes. This proposed AD would International Branch, ANM–116, FAA, require repetitive inspections of the § 39.13 [Amended] Transport Airplane Directorate; or the Civil intercostal webs, attachment clips, and 2. The FAA amends § 39.13 by adding Aviation Authority–The Netherlands (CAA– stringer splice channels for cracks; and the following new airworthiness NL) (or its delegated agent). corrective action if necessary. This directive (AD): proposed AD is prompted by reports of Replacement Fokker Services B.V.: Docket No. FAA– fatigue cracks on several Boeing Model 2004–18787; Directorate Identifier 2003– (h) If any crack is found during the 737–200 series airplanes. We are NM–264–AD. inspection required by paragraph (f) of this proposing this AD to detect and correct AD: Prior to further flight, replace the aileron fatigue cracking of the intercostals on Comments Due Date spring tab balance unit with a serviceable the forward and aft sides of the forward (a) The Federal Aviation Administration unit, in accordance with the entry door, which could result in loss of must receive comments on this AD action by Accomplishment Instructions of Fokker the forward entry door and rapid September 7, 2004. Service Bulletin F27/27–137, dated March decompression of the airplane. Affected ADs 19, 2003. DATES: We must receive comments on (b) None. No Reporting Requirement this proposed AD by September 20, 2004. Applicability (i) Although Fokker Service Bulletin F27/ (c) This AD applies to all Fokker Model 27–137, dated March 19, 2003, specifies to ADDRESSES: Use one of the following F27 Mark 100, 200, 300, 400, 500, 600, and submit certain information to Fokker addresses to submit comments on this 700 series airplanes; certificated in any Services B.V., this AD does not include such proposed AD. category. a requirement. • DOT Docket Web site: Go to Unsafe Condition http://dms.dot.gov and follow the Alternative Methods of Compliance instructions for sending your comments (d) This AD was prompted by a report (AMOCs) electronically. indicating that, during heavy turbulence, a (j) The Manager, International Branch, • pilot needed to apply aileron trim to Government-wide rulemaking Web ANM–116, FAA, has the authority to approve maintain level flight because cracking of the site: Go to http://www.regulations.gov upper inboard attachment lug of the aileron AMOCs for this AD, if requested in and follow the instructions for sending spring tab balance unit, probably due to accordance with the procedures found in 14 your comments electronically. corrosion, had caused permanent deflection CFR 39.19. • Mail: Docket Management Facility, of the spring tab and consequent aileron Related Information U.S. Department of Transportation, 400 damage. We are issuing this AD to prevent Seventh Street SW., Nassif Building, diminished control of the airplane in (k) Dutch airworthiness directive 2003– room PL–401, Washington, DC 20590. turbulence or total loss of roll control for the 037, dated March 31, 2003, also addresses the • By fax: (202) 493–2251. affected wing. subject of this AD. • Hand Delivery: Room PL–401 on Compliance Issued in Renton, Washington, on July 30, the plaza level of the Nassif Building, (e) You are responsible for having the 2004. 400 Seventh Street SW., Washington, actions required by this AD performed within DC, between 9 a.m. and 5 p.m., Monday Ali Bahrami, the compliance times specified, unless the through Friday, except Federal holidays. actions have already been done. Manager, Transport Airplane Directorate, For service information identified in Aircraft Certification Service. Inspection this proposed AD, contact Boeing [FR Doc. 04–17987 Filed 8–5–04; 8:45 am] Commercial Airplanes, P.O. Box 3707, (f) Within 24 months after the effective BILLING CODE 4910–13–P date of this AD, perform a one-time high- Seattle, Washington 98124–2207. frequency eddy current inspection for You can examine the contents of this cracking of the attachment lugs of the aileron AD docket on the Internet at http:// spring tab balance units by doing all the dms.dot.gov, or at the Docket actions in the Accomplishment Instructions Management Facility, U.S. Department
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of Transportation, 400 Seventh Street We are interested in your comments on and stringer splice channels for cracks; SW., room PL–401, on the plaza level of whether the style of this document is and corrective actions if necessary. The the Nassif Building, Washington, DC. clear, and your suggestions to improve corrective actions include repairing FOR FURTHER INFORMATION CONTACT: the clarity of our communications that cracks and contacting Boeing for certain Technical Information: Howard Hall, affect you. You can get more repair instructions. information about plain language at Aerospace Engineer, Airframe Branch, FAA’s Determination and Requirements http://www.faa.gov/language and http:// ANM–120S, FAA, Seattle Aircraft of the Proposed AD Certification Office, 1601 Lind Avenue, www.plainlanguage.gov. We have evaluated all pertinent SW., Renton, Washington 98055–4056; Examining the Docket telephone (425) 917–6430; fax (425) information and identified an unsafe 917–6590. You can examine the AD docket on condition that is likely to exist or Plain Language Information: Marcia the Internet at http://dms.dot.gov, or in develop on other airplanes of this same Walters, [email protected]. person at the Docket Management type design. Therefore, we are SUPPLEMENTARY INFORMATION: Facility office between 9 a.m. and 5 proposing this AD, which would require p.m., Monday through Friday, except repetitive inspections of the intercostal Docket Management System (DMS) Federal holidays. The Docket webs, attachment clips, and stringer The FAA has implemented new Management Facility office (telephone splice channels for cracks; and procedures for maintaining AD dockets (800) 647–5227) is located on the plaza corrective action if necessary. The electronically. As of May 17, 2004, new level of the Nassif Building at the DOT proposed AD would require you to use AD actions are posted on DMS and street address stated in the ADDRESSES the service information described assigned a docket number. We track section. Comments will be available in previously to perform these actions, each action and assign a corresponding the AD docket shortly after the DMS except as discussed under ‘‘Differences directorate identifier. The DMS AD receives them. Between the Proposed AD and the Service Bulletin.’’ docket number is in the form ‘‘Docket Discussion No. FAA–2004–99999.’’ The Transport We have received a report indicating Differences Between the Proposed AD Airplane Directorate identifier is in the and the Service Bulletin form ‘‘Directorate Identifier 2004–NM– that eleven operators have found fatigue 999–AD.’’ Each DMS AD docket also cracks in the intercostal web at body Although the service bulletin lists the directorate identifier (‘‘Old station (BS) 358.5 and stringer (S) S–16L specifies that operators may contact the Docket Number’’) as a cross-reference on several Boeing Model 737–200 series manufacturer for disposition of certain for searching purposes. airplanes. The cracks extended from the repair conditions, this proposed AD inboard edge of the intercostal through would require operators to repair those Comments Invited tooling or fastener holes and terminated conditions per a method approved by We invite you to submit any relevant at the two-inch diameter lightening the FAA, or per data meeting the type written data, views, or arguments hole. Three operators have also reported certification basis of the airplane regarding this proposed AD. Send your four airplanes with cracks in the approved by a Boeing Company comments to an address listed under intercostals at S–11L, S–12L, and S–13L Designated Engineering Representative ADDRESSES. Include ‘‘Docket No. FAA– on the forward and aft sides of the who has been authorized by the FAA to 2004–18788; Directorate Identifier forward entry door. All additional make such findings. 2003–NM–203–AD’’ in the subject line cracks are in the radius of return flanges The service bulletin specifies to repair of your comments. We specifically of the webs and attachment clips. One any crack found at the S–16L intercostal invite comments on the overall operator has reported one airplane with (BS 348.2–360) on Boeing Model 737– regulatory, economic, environmental, cracks in the stringer splice channels at 400 series airplanes per 737–400 and energy aspects of the proposed AD. S–14L and S–15L on the aft side of the Structural Repair Manual (SRM) 53–10– We will consider all comments forward entry door. The cracks were in 04, Figure 202. Figure 202 does not submitted by the closing date and may the intercostal web attachment flange at exist; the correct figure is 737–400 SRM amend the proposed AD in light of those the aft end of the intercostal. Such 53–10–04, Figure 201. Note 2 of this comments. fatigue cracking, if not detected and proposed AD points out this error in the We will post all comments we corrected in a timely manner, could service bulletin. receive, without change, to http:// result in loss of the forward entry door Paragraphs 3. and 4. of the ‘‘Part 1 for dms.dot.gov, including any personal and rapid decompression of the Group 1 passenger airplanes’’ section of information you provide. We will also airplane. the Work Instructions of the service post a report summarizing each The intercostal webs, attachment bulletin do not give instructions for substantive verbal contact with FAA clips, and stringer splice channels on repairing cracks found in the attachment personnel concerning this proposed AD. certain Boeing Model 737–100, –200C, clip or stringer splice channel during Using the search function of that Web –300, –400, and –500 series airplanes the inspections. Other paragraphs of the site, anyone can find and read the are identical to those on the affected service bulletin give instructions for comments in any of our dockets, Boeing Model 737–200 series airplanes. similar attachment clips and stringer including the name of the individual Therefore, all of these models may be splice channels. This proposed AD who sent the comment (or signed the subject to the same unsafe condition. would require operators to contact the comment on behalf of an association, FAA or an FAA-authorized Boeing business, labor union, etc.). You can Relevant Service Information Delegated Engineer Representative review DOT’s complete Privacy Act We have reviewed Boeing Special (DER) for repair instructions and do the Statement in the Federal Register Attention Service Bulletin 737–53– repair before further flight if any crack published on April 11, 2000 (65 FR 1204, dated June 19, 2003. The service is found in the attachment clip or 19477–78), or you may visit http:// bulletin describes procedures for stringer splice channel during the dms.dot.gov. detailed and high frequency eddy inspections specified in ‘‘Part 1 for We are reviewing the writing style we current inspections (as applicable) of Group 1 passenger airplanes.’’ If no currently use in regulatory documents. the intercostal webs, attachment clips, crack is found in the attachment clip or
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stringer splice channel during the List of Subjects in 14 CFR Part 39 loss of the forward entry door and rapid inspections, this proposed AD would decompression of the airplane Air transportation, Aircraft, Aviation require the repetitive inspections. safety, Safety. Compliance The differences discussed above have (e) You are responsible for having the been coordinated with Boeing. The Proposed Amendment actions required by this AD performed within Costs of Compliance Accordingly, under the authority the compliance times specified, unless the actions have already been done. This proposed AD would affect about delegated to me by the Administrator, 3,113 airplanes worldwide and 876 the FAA proposes to amend 14 CFR part Service Bulletin Definition airplanes of U.S. registry. The proposed 39 as follows: (f) The term ‘‘service bulletin,’’ as used in actions would take about 2 work hours this AD, means Boeing Special Attention PART 39—AIRWORTHINESS Service Bulletin 737–53–1204, dated June 19, per airplane, at an average labor rate of DIRECTIVES $65 per work hour. Based on these 2003. figures, the estimated cost of the 1. The authority citation for part 39 Initial Compliance Time proposed AD for U.S. operators is continues to read as follows: (g) Before the accumulation of 15,000 total $113,880, or $130 per airplane, per Authority: 49 U.S.C. 106(g), 40113, 44701. flight cycles, or within 4,500 flight cycles inspection cycle. after the effective date of this AD, whichever Regulatory Findings § 39.13 [Amended] occurs later: Do the inspections specified in 2. The FAA amends § 39.13 by adding paragraph (h) or (i) of this AD, as applicable. We have determined that this the following new airworthiness Inspection for Passenger Configuration proposed AD would not have federalism directive (AD): Airplanes implications under Executive Order 13132. This proposed AD would not Boeing: Docket No. FAA–2004–18788; (h) For Group 1 passenger airplanes identified in the service bulletin: Perform a have a substantial direct effect on the Directorate Identifier 2003–NM–203– AD. detailed inspection of the intercostal web, States, on the relationship between the attachment clips, and stringer splice national Government and the States, or Comments Due Date channels for cracks; and a high frequency on the distribution of power and (a) The Federal Aviation Administration eddy current inspection of the stringer splice responsibilities among the various (FAA) must receive comments on this AD channels, located forward and aft of the levels of government. action by September 20, 2004. forward entry door, for cracks; per Parts 1 For the reasons discussed above, I and 2 of the Work Instructions of the service Affected ADs certify that the proposed regulation: bulletin. (b) None. 1. Is not a ‘‘significant regulatory Inspection for Cargo Configuration action’’ under Executive Order 12866; Applicability Airplanes 2. Is not a ‘‘significant rule’’ under the (c) This AD applies to Model 737–100, (i) For Group 2 cargo airplanes identified DOT Regulatory Policies and Procedures –200, –200C, –300, –400, and –500 series in the service bulletin: Perform a detailed (44 FR 11034, February 26, 1979); and airplanes, as listed in Boeing Special inspection of the intercostal webs and 3. Will not have a significant Attention Service Bulletin 737–53–1204, attachment clips located forward of the economic impact, positive or negative, dated June 19, 2003; certificated in any forward entry door for cracks, per Part 3 of on a substantial number of small entities category. the Work Instructions of the service bulletin. under the criteria of the Regulatory Unsafe Condition Repetitive Inspections Flexibility Act. (d) This AD was prompted by reports of (j) If no crack is found during any We prepared a regulatory evaluation fatigue cracks on several Boeing Model 737– inspection required by paragraph (h) or (i) of of the estimated costs to comply with 200 series airplanes. We are issuing this AD this AD, repeat the inspections at the this proposed AD. See the ADDRESSES to detect and correct fatigue cracking of the applicable time specified in Table 1 of this section for a location to examine the intercostals on the forward and aft sides of AD, except as provided by paragraph (k) of regulatory evaluation. the forward entry door, which could result in this AD.
TABLE 1.—REPETITIVE INSPECTION INTERVAL
Airplane group number in Service Bul- Repeat inspections at in- letin For intercostal location— tervals not to exceed—
Group 1 ...... S–16L, from BS 348.2 to BS 360 (aft of door) ...... 4,500 flight cycles.
Group 1 ...... S–7L through S–15L, from BS 348.2 to BS 360 (aft of door) ...... 25,000 flight cycles.
Group 1 and 2 ...... S–7L through S–16L, from BS 294.5 to BS 303.9 (forward of door) ...... 25,000 flight cycles.
Deferral of Certain Repetitive Inspections flight cycles. Use 737–400 SRM 53–10–04, this AD, perform the actions specified in (k) For intercostal webs at S–16L from BS Figure 201 instead of Figure 202, as paragraphs (l)(1) through (l)(3) of Table 2 of 348.2 to BS 360: Installation of the repair as applicable. this AD, as applicable. Repeat the inspections a preventative modification or corrective at the applicable time specified in Table 1 of Corrective Actions action per Part 1 of the Work Instructions of this AD, except as provided by paragraph (k) the service bulletin defers the repetitive (l) If any crack is found during any of this AD. inspections to intervals not to exceed 25,000 inspection required by paragraph (h) or (i) of
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TABLE 2.—CORRECTIVE ACTIONS
During any inspection speci- fied in— If any crack is found in— At intercostal location— Before further flight—
(1) Part 1 of the Work In- (i) The intercostal web ...... Stringer (S)–16L, from Repair per Part 1 of the the Work Instructions of the structions of the service body station (BS) 348.2 service bulletin, except where the service bulletin bulletin. to BS 360 (aft of door). specifies to contact Boeing for repair instructions, before further flight, do the repair specified in para- graph (m) of this AD. Use 737–400 Structural Re- pair Manual (SRM) 53–10–04, Figure 201 instead of Figure 202, as applicable (see note 2).
(ii) An attachment clip or S–16L, from BS 348.2 to Do the repair specified in paragraph (m) of this AD. stringer splice channel. BS 360 (aft of door).
(2) Part 2 of the Work In- An intercostal web, attach- S–7L through S–16L, from Do the repair specified in paragraph (m) of this AD. structions of the service ment clip, or stringer BS 294.5 to BS 303.9 bulletin. splice channel. (forward of door); and S–7L through S–15L, from BS 348.2 to BS 360 (aft of door).
(3) Part 3 of the Work In- An intercostal web or at- S–7L through S–16L, from Do the repair specified in paragraph (m) of this AD. structions of the service tachment clip. BS 294.5 to BS 303.9 bulletin. (forward of door).
Note 2: The service bulletin specifies to DEPARTMENT OF TRANSPORTATION DATES: We must receive comments on repair any crack found at the S–16L this proposed AD by September 20, intercostal (BS 348.2–360) on Boeing Model Federal Aviation Administration 2004. 737–400 series airplanes per 737–400 SRM ADDRESSES: Use one of the following 53–10–04, Figure 202. Figure 202 does not 14 CFR Part 39 addresses to submit comments on this exist; the correct figure is 737–400 SRM 53– 10–04, Figure 201. [Docket No. FAA–2004–18728; Directorate proposed AD. Identifier 2003–NM–176–AD] • DOT Docket Web site: Go to Repair http://dms.dot.gov and follow the RIN 2120–AA64 (m) At the time specified in Table 2 of this instructions for sending your comments electronically. AD, repair per a method approved by the Airworthiness Directives; Boeing • Manager, Seattle Aircraft Certification Office Government-wide rulemaking Web Model 747–400 and –400F Series site: Go to http://www.regulations.gov (ACO), FAA; or per data meeting the type Airplanes certification basis of the airplane approved and follow the instructions for sending AGENCY: your comments electronically. by a Boeing Company Designated Federal Aviation • Engineering Representative who has been Administration (FAA), DOT. Mail: Docket Management Facility, U.S. Department of Transportation, 400 authorized by the Manager, Seattle ACO, to ACTION: Notice of proposed rulemaking make such findings. For a repair method to Seventh Street, SW., Nassif Building, (NPRM). room PL–401, Washington, DC 20590. be approved, the approval must specifically • reference this AD. SUMMARY: The FAA proposes to adopt a By fax: (202) 493–2251. • new airworthiness directive (AD) for Hand Delivery: Room PL–401 on Alternative Methods of Compliance the plaza level of the Nassif Building, (AMOCs) certain Boeing Model 747–400 and –400F series airplanes. This proposed 400 Seventh Street, SW., Washington, (n)(1) The Manager, Seattle ACO, FAA, has AD would require a detailed DC, between 9 a.m. and 5 p.m., Monday the authority to approve AMOCs for this AD, inspection(s) for cracks and fractures of through Friday, except Federal holidays. if requested in accordance with the the side guide support fittings in the You can get the service information procedures found in 14 CFR 39.19. lower lobe cargo compartments; and identified in this proposed AD from (2) An AMOC that provides an acceptable applicable investigative/corrective Boeing Commercial Airplanes, P.O. Box level of safety may be used for corrective actions and operational limitations, if 3707, Seattle, Washington 98124–2207. actions, if it is approved by a Boeing necessary. This proposed AD also You may examine the contents of this Company Designated Engineering would require a terminating action for AD docket on the Internet at http:// Representative who has been authorized by the repetitive inspections. This dms.dot.gov, or at the Docket the Manager, Seattle ACO, to make those proposed AD is prompted by reports of Management Facility, U.S. Department findings. cracked/fractured side guide support of Transportation, 400 Seventh Street, Issued in Renton, Washington, on July 30, fittings in the aft, lower lobe cargo SW., room PL–401, on the plaza level of 2004. compartment. We are proposing this AD the Nassif Building, Washington, DC. Ali Bahrami, to prevent cracked/fractured side guide FOR FURTHER INFORMATION CONTACT: Ivan Manager, Transport Airplane Directorate, support fittings in the lower lobe cargo Li, Airframe Branch, ANM–120S, FAA, Aircraft Certification Service. compartments, which could result in Seattle Aircraft Certification Office, [FR Doc. 04–17988 Filed 8–5–04; 8:45 am] unrestrained cargo shifting in flight and 1601 Lind Avenue, SW., Renton, damaging the airplane structure or Washington 98055–4056; telephone BILLING CODE 4910–13–P systems, and consequent reduced (425) 917–6437; fax (425) 917–6590. controllability of the airplane. SUPPLEMENTARY INFORMATION:
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Docket Management System (DMS) Examining the Docket cracked or fractured side guide support You may examine the AD docket in fittings with new fittings; and replacing The FAA has implemented new all outboard roller assemblies with new procedures for maintaining AD dockets person at the Docket Management Facility office between 9 a.m. and 5 assemblies, which would eliminate the electronically. As of May 17, 2004, new need for repetitive detailed inspections. AD actions are posted on DMS and p.m., Monday through Friday, except Federal holidays. The Docket The service bulletin also describes assigned a docket number. We track operational limitations for missing each action and assign a corresponding Management Facility office (telephone (800) 647–5227) is located on the plaza restraints until replacement of cracked directorate identifier. The DMS AD or fractured side guide support fittings. docket number is in the form ‘‘Docket level of the Nassif Building at the DOT street address stated in the ADDRESSES We have determined that accomplishing No. FAA–2004–99999.’’ The Transport of the actions specified in the service Airplane Directorate identifier is in the section. Comments will be available in the AD docket shortly after the DMS bulletin will adequately address the form ‘‘Directorate Identifier 2004–NM– unsafe condition. 999–AD.’’ Each DMS AD docket also receives them. Boeing Alert Service Bulletin 747– lists the directorate identifier (‘‘Old Discussion 25A3335 refers to Goodrich Alert Docket Number’’) as a cross-reference Service Bulletin 65B60176–25–A01, for searching purposes. We have received two reports indicating that cracked/fractured side dated March 3, 2003, as an additional Comments Invited guide support fittings were found in the source of service information for doing aft, lower lobe cargo compartment on the replacement of the outboard roller We invite you to submit any written assemblies. relevant data, views, or arguments Boeing Model 747–400F series airplanes regarding this proposed AD. Send your that had been in service less than 16 FAA’s Determination and Requirements comments to an address listed under months. One airplane had a total of 16 of the Proposed AD cracked/fractured side guide support ADDRESSES. Include ‘‘Docket No. FAA– fittings and the other airplane had 4. We have evaluated all pertinent 2004–18728; Directorate Identifier information and identified an unsafe 2003–NM–176–AD’’ in the subject line The side guide support fittings provide lateral and vertical restraint for cargo in condition that is likely to exist or of your comments. We specifically develop on other airplanes of this same invite comments on the overall the lower lobe cargo compartments. Investigation revealed that failed type design. Therefore, we are regulatory, economic, environmental, roller assemblies in the outboard roller proposing this AD, which would require and energy aspects of the proposed AD. trays caused the conveyor plane of the a detailed inspection(s) of the side guide We will consider all comments unit load device (ULD) to drop and support fittings in the lower lobe cargo submitted by the closing date and may allowed the ULD to impact the side compartments for cracks and fractures; amend the proposed AD in light of those guide support fittings. Repeated impacts and applicable investigative/corrective comments. by the ULD can result in fatigue and actions and operational limitations, if We will post all comments we consequent cracked/fractured side guide necessary. This proposed AD also receive, without change, to http:// support fittings. The roller assembly would require a terminating action for dms.dot.gov, including any personal failures were caused by a manufacturing the repetitive inspections. The proposed information you provide. We will also defect in the bearings that resulted in AD would require you to use the service post a report summarizing each the separation of the bearing’s inner and information described previously to substantive verbal contact with FAA outer race. perform these actions, except as personnel concerning this proposed AD. Cracked/fractured side guide support discussed under ‘‘Difference Between Using the search function of that Web fittings in the lower lobe cargo the Proposed AD and Service Bulletin.’’ site, anyone can find and read the compartments, if not corrected, could comments in any of our dockets, Difference Between the Proposed AD result in unrestrained cargo shifting in and Service Bulletin including the name of the individual flight and damaging the airplane who sent the comment (or signed the structure or systems and consequent Figures 1 and 2 of the referenced comment on behalf of an association, reduced controllability of the airplane. Boeing service bulletin specify a general business, labor union, etc.). You may visual inspection of the cargo review DOT’s complete Privacy Act Relevant Service Information compartment for damage, and repair if Statement in the Federal Register We have reviewed Boeing Alert necessary. We have determined that published on April 11, 2000 (65 FR Service Bulletin 747–25A3335, dated those actions are not necessary to 19477–78), or you may visit http:// July 3, 2003. The service bulletin adequately address the identified unsafe dms.dot.gov. describes procedures for a detailed condition of this AD. Therefore, this We are reviewing the writing style we inspection(s) for cracks and fractures of proposed AD would not require currently use in regulatory documents. the side guide support fittings in the operators to do that inspection and We are interested in your comments on lower lobe cargo compartments, and repair. whether the style of this document is applicable investigative/corrective Costs of Compliance clear, and your suggestions to improve actions and operational limitations, if the clarity of our communications that necessary. The applicable investigative This proposed AD would affect about affect you. You can get more actions include a general visual 22 airplanes worldwide. The following information about plain language at inspection of the cargo compartment for table provides the estimated costs for http://www.faa.gov/language and http:// damage, and repair if necessary. The U.S. operators to comply with this www.plainlanguage.gov. corrective actions include replacing proposed AD.
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ESTIMATED COSTS
Number of Action Work hours Average labor Parts Cost per air- U.S.-registered Fleet cost rate per hour plane airplanes
Inspection, per inspection cycle ...... 5 $65 None $325* 3 $975* Assembly replacement ...... 25 $65 $3,402 $5,027 3 $15,081 * Per inspection cycle.
Regulatory Findings The Proposed Amendment in the aft, lower lobe cargo compartment. We are issuing this AD to prevent cracked/ We have determined that this Accordingly, under the authority delegated to me by the Administrator, fractured side guide support fittings in the proposed AD would not have federalism lower lobe cargo compartments, which could the FAA proposes to amend 14 CFR part implications under Executive Order result in unrestrained cargo shifting in flight 39 as follows: 13132. This proposed AD would not and damaging the airplane structure or have a substantial direct effect on the PART 39—AIRWORTHINESS systems, and consequent reduced States, on the relationship between the DIRECTIVES controllability of the airplane. national Government and the States, or Compliance: (e) You are responsible for on the distribution of power and 1. The authority citation for part 39 having the actions required by this AD responsibilities among the various continues to read as follows: performed within the compliance times levels of government. Authority: 49 U.S.C. 106(g), 40113, 44701. specified, unless the actions have already For the reasons discussed above, I been done. certify that the proposed regulation: § 39.13 [Amended] 2. The FAA amends § 39.13 by adding Inspection, Investigative/Corrective Actions, 1. Is not a ‘‘significant regulatory and Operational Limitations action’’ under Executive Order 12866; the following new airworthiness directive (AD): (f) At the applicable time(s) specified in 2. Is not a ‘‘significant rule’’ under the Table 1 of this AD, do a detailed Boeing: Docket No. FAA–2004–18728; DOT Regulatory Policies and Procedures inspection(s) of the side guide support Directorate Identifier 2003–NM–176–AD. (44 FR 11034, February 26, 1979); and fittings in the lower lobe cargo compartments 3. Will not have a significant Comments Due Date for cracks and fractures, and before further economic impact, positive or negative, (a) The Federal Aviation Administration flight, do all applicable investigative/ on a substantial number of small entities (FAA) must receive comments on this AD corrective actions and operational under the criteria of the Regulatory action by September 20, 2004. limitations, if necessary, by accomplishing Flexibility Act. Affected ADs all the actions specified in Work Package 1 and Work Package 2 of the Work Instructions We prepared a regulatory evaluation (b) None. of the estimated costs to comply with Applicability: (c) This AD applies to of Boeing Alert Service Bulletin 747– this proposed AD. See the ADDRESSES Boeing Model 747–400 and ‘‘400F series 25A3335, dated July 3, 2003; except as section for a location to examine the airplanes, certificated in any category; as required by paragraph (g) of this AD. regulatory evaluation. listed in Boeing Alert Service Bulletin 747– Replacement of all outboard roller assemblies 25A3335, dated July 3, 2003. with new assemblies in accordance with List of Subjects in 14 CFR Part 39 Unsafe Condition Work Package 2 of the service bulletin ends the repetitive inspections required by Air transportation, Aircraft, Aviation (d) This AD was prompted by reports of paragraph (f)(1) of this AD (Work Package 1). safety, Safety. cracked/fractured side guide support fittings
TABLE 1.—COMPLIANCE TIMES
For— Initial compliance time— Repetitive interval—
(1) Work Package 1 ...... Within 180 days after the At intervals not to exceed effective date of this AD. 180 days, until all out- board roller assemblies have been replaced per Work Package 2 of the service bulletin. (2) Work Package 2 ...... Within 18 months after the None. effective date of this AD.
Note 1: For the purposes of this AD, a Note 2: Boeing Alert Service Bulletin 747– requested in accordance with the procedures detailed inspection is ‘‘an intensive 25A3335 refers to Goodrich Alert Service found in 14 CFR 39.19. examination of a specific item, installation, Bulletin 65B60176–25–A01, dated March 3, Issued in Renton, Washington, on July 29, or assembly to detect damage, failure, or 2003, as an additional source of service 2004. irregularity. Available lighting is normally information for replacing the outboard roller supplemented with a direct source of good assemblies. Ali Bahrami, lighting at an intensity deemed appropriate. Manager, Transport Airplane Directorate, Inspection aids such as mirrors magnifying Alternative Methods of Compliance Aircraft Certification Service. (AMOCs) lenses, etc. may be necessary. Surface [FR Doc. 04–17989 Filed 8–5–04; 8:45 am] cleaning and elaborate procedures may be (g) The Manager, Seattle ACO, has the required.’’ authority to approve AMOCs for this AD, if BILLING CODE 4910–13–P
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DEPARTMENT OF TRANSPORTATION dms.dot.gov, or at the Docket We are interested in your comments on Management Facility, U.S. Department whether the style of this document is Federal Aviation Administration of Transportation, 400 Seventh Street, clear, and your suggestions to improve SW., room PL–401, on the plaza level of the clarity of our communications that 14 CFR Part 39 the Nassif Building, Washington, DC. affect you. You can get more [Docket No. FAA–2004–18729; Directorate FOR FURTHER INFORMATION CONTACT: Dan information about plain language at Identifier 2004–NM–24–AD] Kinney, Aerospace Engineer, Propulsion http://www.faa.gov/language and http:// Branch, ANM–140S, FAA, Seattle www.plainlanguage.gov. RIN 2120–AA64 Aircraft Certification Office, 1601 Lind Examining the Docket Avenue, SW., Renton, Washington Airworthiness Directives; Boeing You can examine the AD docket on 98055–4056; telephone (425) 917–6499; Model 747–100 and –200B Series the Internet at http://dms.dot.gov, or in fax (425) 917–6590. Airplanes person at the Docket Management SUPPLEMENTARY INFORMATION: AGENCY: Federal Aviation Facility office between 9 a.m. and 5 Administration (FAA), DOT. Docket Management System (DMS) p.m., Monday through Friday, except Federal holidays. The Docket ACTION: Notice of proposed rulemaking The FAA has implemented new Management Facility office (telephone (NPRM). procedures for maintaining AD dockets (800) 647–5227) is located on the plaza electronically. As of May 17, 2004, new level of the Nassif Building at the DOT SUMMARY: The FAA proposes to adopt a AD actions are posted on DMS and new airworthiness directive (AD) for street address stated in the ADDRESSES assigned a docket number. We track section. Comments will be available in certain Boeing Model 747–100 and each action and assign a corresponding –200B series airplanes. This proposed the AD docket shortly after the DMS directorate identifier. The DMS AD receives them. AD would require installing bonding docket number is in the form ‘‘Docket clips and bonding jumpers from the No. FAA–2004–99999.’’ The Transport Discussion housing of each fuel pump to airplane Airplane Directorate identifier is in the We have examined the underlying structure outside the fuel tanks. This form ‘‘Directorate Identifier 2004–NM– safety issues involved in recent fuel proposed AD is prompted by the results 999–AD.’’ Each DMS AD docket also tank explosions on several large of fuel system reviews conducted by the lists the directorate identifier (‘‘Old transport airplanes, including the manufacturer. We are proposing this AD Docket Number’’) as a cross-reference adequacy of existing regulations, the to ensure adequate electrical bonding for searching purposes. service history of airplanes subject to between the housing of each fuel pump those regulations, and existing and airplane structure outside the fuel Comments Invited maintenance practices for fuel tank tanks. Inadequate electrical bonding, in We invite you to submit any written systems. As a result of those findings, the event of a lightning strike or pump relevant data, views, or arguments we issued a regulation titled ‘‘Transport electrical fault, could cause electrical regarding this proposed AD. Send your Airplane Fuel Tank System Design arcing and ignition of fuel vapor in the comments to an address listed under Review, Flammability Reduction and wing fuel tank, which could result in a ADDRESSES. Include ‘‘Docket No. FAA– Maintenance and Inspection fuel tank explosion. 2004–18729; Directorate Identifier Requirements’’ (67 FR 23086, May 7, DATES: We must receive comments on 2004–NM–24–AD’’ in the subject line of 2001). In addition to new airworthiness this proposed AD by September 20, your comments. We specifically invite standards for transport airplanes and 2004. comments on the overall regulatory, new maintenance requirements, this ADDRESSES: Use one of the following economic, environmental, and energy rule included Special Federal Aviation addresses to submit comments on this aspects of the proposed AD. We will Regulation No. 88 (‘‘SFAR 88,’’ proposed AD. consider all comments submitted by the Amendment 21–78, and subsequent • DOT Docket Web site: Go to closing date and may amend the Amendments 21–82 and 21–83). http://dms.dot.gov and follow the proposed AD in light of those Among other actions, SFAR 88 instructions for sending your comments comments. requires certain type design (i.e., type electronically. We will post all comments we certificate (TC) and supplemental type • Government-wide rulemaking Web receive, without change, to http:// certificate (STC)) holders to substantiate site: Go to http://www.regulations.gov dms.dot.gov, including any personal that their fuel tank systems can prevent and follow the instructions for sending information you provide. We will also ignition sources in the fuel tanks. This your comments electronically. post a report summarizing each requirement applies to type design • Mail: Docket Management Facility, substantive verbal contact with FAA holders for large turbine-powered U.S. Department of Transportation, 400 personnel concerning this proposed AD. transport airplanes and for subsequent Seventh Street, SW., Nassif Building, Using the search function of that Web modifications to those airplanes. It room PL–401, Washington, DC 20590. site, anyone can find and read the requires them to perform design reviews • By fax: (202) 493–2251. comments in any of our dockets, and to develop design changes and • Hand Delivery: Room PL–401 on including the name of the individual maintenance procedures if their designs the plaza level of the Nassif Building, who sent the comment (or signed the do not meet the new fuel tank safety 400 Seventh Street, SW., Washington, comment on behalf of an association, standards. As explained in the preamble DC, between 9 a.m. and 5 p.m., Monday business, labor union, etc.). You can to the rule, we intended to adopt through Friday, except Federal holidays. review DOT’s complete Privacy Act airworthiness directives to mandate any For service information identified in Statement in the Federal Register changes found necessary to address this proposed AD, contact Boeing published on April 11, 2000 (65 FR unsafe conditions identified as a result Commercial Airplanes, P.O. Box 3707, 19477–78), or you can visit http:// of these reviews. Seattle, Washington 98124–2207. dms.dot.gov. In evaluating these design reviews, we You can examine the contents of this We are reviewing the writing style we have established four criteria intended AD docket on the Internet at http:// currently use in regulatory documents. to define the unsafe conditions
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associated with fuel tank systems that connection to provide the required low housing of each fuel pump, and require corrective actions. The electrical resistance between the pump applying a corrosion resistant finish. percentage of operating time during housing and the fuel tank structure. Accomplishing the actions specified in which fuel tanks are exposed to However, on the affected airplanes, a Part 1 of the service information is flammable conditions is one of these special corrosion protection finish used intended to adequately address the criteria. The other three criteria address on the fuel tank acts as a partial unsafe condition. the failure types under evaluation: insulator. Given a lightning strike or single failures, single failures in pump electrical fault, arcing can occur FAA’s Determination and Requirements combination with another latent at this existing interface, which is inside of the Proposed AD condition(s), and in-service failure the fuel tank. This condition, if not experience. For all four criteria, the corrected, could result in ignition of fuel We have evaluated all pertinent evaluations included consideration of vapor in the fuel tanks, which could information and identified an unsafe previous actions taken that may mitigate result in a fuel tank explosion. condition that is likely to exist or the need for further action. develop on other airplanes of this same Based on this process, we have Relevant Service Information type design. Therefore, we are determined that the actions identified in We have reviewed Boeing Alert proposing this AD, which would require this proposed AD are necessary to Service Bulletin 747–28A2033, Revision installing bonding clips and bonding reduce the potential of ignition sources 1, dated December 18, 2003, which is jumpers from the housing of each fuel inside fuel tanks, which, in combination divided into two parts. Part 1 of the pump to airplane structure outside the with flammable fuel vapors, could result service bulletin describes procedures for fuel tanks. The proposed AD would in fuel tank explosions and consequent installing bonding clips and bonding require you to use Part 1 of the service loss of the airplane. jumpers from the housing of each fuel information described previously to As a result of fuel system reviews pump to airplane structure outside the perform these actions. associated with SFAR 88, the airplane fuel tanks, including installing manufacturer determined that the ‘‘caution’’ markers next to each pump, Costs of Compliance electrical bonding at the interface of the and measuring the resistance between housings for the main fuel pumps and the mounting flanges of each fuel pump This proposed AD would affect about the fuel tanks is not adequate on certain and the airplane structure. Part 2 of the 158 airplanes worldwide. The following Boeing Model 747–100 and –200B series service bulletin is optional and table provides the estimated costs for airplanes. The eight main fuel boost describes procedures for removing U.S. operators to comply with this pumps currently rely on a bolted existing bonding jumpers from the proposed AD.
ESTIMATED COSTS
Number of Action Work hours Average labor Parts Cost per air- U.S.-registered Fleet cost rate per hour plane airplanes
Installation of Bonding Clips/Jumpers ..... 8 $65 $0 $520 23 $11,960
Regulatory Findings List of Subjects in 14 CFR Part 39 Affected ADs We have determined that this (b) None. Air transportation, Aircraft, Aviation Applicability: (c) This AD applies to proposed AD would not have federalism safety, Safety. implications under Executive Order Boeing Model 747–100 and -200B series The Proposed Amendment airplanes having line numbers 1 through 167 13132. This proposed AD would not inclusive, certificated in any category. have a substantial direct effect on the Accordingly, under the authority Unsafe Condition States, on the relationship between the delegated to me by the Administrator, national Government and the States, or the FAA proposes to amend 14 CFR part (d) This AD was prompted by the results on the distribution of power and 39 as follows: of fuel system reviews conducted by the responsibilities among the various manufacturer. We are issuing this AD to levels of government. PART 39—AIRWORTHINESS ensure adequate electrical bonding between the housing of each fuel pump and airplane For the reasons discussed above, I DIRECTIVES certify that the proposed regulation: structure outside the fuel tanks. Inadequate electrical bonding, in the event of a lightning 1. Is not a ‘‘significant regulatory 1. The authority citation for part 39 strike or pump electrical fault, could cause action’’ under Executive Order 12866; continues to read as follows: electrical arcing and ignition of fuel vapor in 2. Is not a ‘‘significant rule’’ under the Authority: 49 U.S.C. 106(g), 40113, 44701. the wing fuel tank, which could result in a DOT Regulatory Policies and Procedures fuel tank explosion. (44 FR 11034, February 26, 1979); and § 39.13 [Amended] Compliance: (e) You are responsible for 3. Will not have a significant 2. The FAA amends § 39.13 by adding having the actions required by this AD economic impact, positive or negative, the following new airworthiness performed within the compliance times specified, unless the actions have already on a substantial number of small entities directive (AD): under the criteria of the Regulatory been done. Boeing: Docket No. FAA–2004–18729; Flexibility Act. Installation of Bonding Clips and Bonding Directorate Identifier 2004–NM–24–AD. We prepared a regulatory evaluation Jumpers of the estimated costs to comply with Comments Due Date (f) Within 60 months after the effective this proposed AD. See the ADDRESSES (a) The Federal Aviation Administration date of this AD, install bonding clips and section for a location to examine the (FAA) must receive comments on this AD bonding jumpers from the housing of each regulatory evaluation. action by September 20, 2004. fuel pump to airplane structure located
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outside the fuel tanks by doing all of the published on January 21, 2000, is and purchase of services to provide actions in Part 1 of the Accomplishment withdrawn as of August 6, 2004. information. Instructions of Boeing Alert Service Bulletin ADDRESSES: Send submissions to: The collections of information in this 747–28A2033, Revision 1, dated December proposed regulation are in § 1.861– 18, 2003. CC:PA:LPD:PR (REG–208254–90), room 5203, Internal Revenue Service, POB 4(b)(2) (ii)(C)(1)(i), (b)(2)(ii)(D), and Actions Done in Accordance With Previous 7604, Ben Franklin Station, Washington, (b)(2)(ii)(D)(6). The information required Service Bulletin Revision DC 20044. Submissions may be hand in § 1.861–4(b)(2) (ii)(C)(1)(i) will enable (g) Installations done before the effective delivered Monday through Friday an individual, where appropriate, to use date of this AD in accordance with Boeing between the hours of 8 a.m. and 4 p.m. an alternative basis other than that Service Bulletin 747–28–2033, dated to: CC:PA:LPD:PR (REG–208254–90), described in § 1.861–4(b)(2)(ii)(A) or (B) December 15, 1971, are acceptable for to determine the source of his or her compliance with the requirements of this AD. Courier’s Desk, Internal Revenue Service, 1111 Constitution Avenue, compensation as an employee for labor Alternative Methods of Compliance NW., Washington DC or sent or personal services performed partly (AMOCs) electronically, via the IRS Internet site within and partly without the United (h) The Manager, Seattle Aircraft at: http://www.irs.gov/regs or Federal States. The information required in Certification Office (ACO), FAA, has the eRulemaking Portal at http:// § 1.861–4(b)(2)(ii)(D) and (D)(6) will authority to approve AMOCs for this AD, if enable an employee to source certain requested in accordance with the procedures www.regulations.gov (IRS and REG– 208254–90). fringe benefits on a geographical basis. found in 14 CFR 39.19. The collections of information will, Issued in Renton, Washington, on July 29, FOR FURTHER INFORMATION CONTACT: likewise, allow the IRS to verify these 2004. Concerning the proposed regulations, determinations. Ali Bahrami, David Bergkuist, (202) 622–3850 (not a The collections of information and Manager, Transport Airplane Directorate, toll-free number); concerning the responses to these collections of Aircraft Certification Service. submissions of comments, Lanita Van information are required to obtain and [FR Doc. 04–17990 Filed 8–5–04; 8:45 am] Dyke (202) 622–7180 (not a toll-free maintain benefits. The likely number). BILLING CODE 4910–13–P respondents are individuals who SUPPLEMENTARY INFORMATION: perform labor or personal services partly within and partly without the United Paperwork Reduction Act DEPARTMENT OF THE TREASURY States, some of which may receive The collections of information certain fringe benefit compensation for Internal Revenue Service contained in this notice of proposed those services. rulemaking have been submitted to the Estimated total annual recordkeeping 26 CFR Part 1 Office of Management and Budget for burden: 10,000 hours. The estimated annual burden per [REG–208254–90 and REG–136481–04] review in accordance with the Paperwork Reduction Act of 1995 (44 recordkeeper varies from 15 minutes to RIN 1545–AO72 and RIN 1545–BD62 U.S.C. 3507(d)). Comments on the one hour, depending on the collections of information should be circumstances of the individual, with an Source of Compensation for Labor or sent to the Office of Management and estimated average of 30 minutes. Personal Services Budget, Attn: Desk Officer for the Estimated number of recordkeepers: Department of the Treasury, Office of 20,000. AGENCY: Internal Revenue Service (IRS), An agency may not conduct or Information and Regulatory Affairs, Treasury. sponsor, and a person is not required to Washington, DC 20503, with copies to ACTION: Withdrawal of notice of respond to, a collection of information the Internal Revenue Service, Attn: IRS proposed rulemaking and notice of unless it displays a valid control Reports Clearance Officer, proposed rulemaking. number assigned by the Office of SE:W:CAR:MP:T:T:SP Washington, DC Management and Budget. SUMMARY: This document contains new 20224. Comments on the collection of Books or records relating to a proposed rules that describe the proper information should be received by collection of information must be basis for determining the source of October 5, 2004. Comments are retained as long as their contents may compensation from labor or personal specifically requested concerning: become material in the administration services performed partly within and Whether the proposed collections of of any internal revenue law. Generally, partly without the United States. The information are necessary for the proper tax returns and tax return information new proposed rules will affect performance of the functions of the IRS, are confidential, as required by 26 individuals that earn compensation including whether the information will U.S.C. 6103. from labor or personal services have practical utility; performed partly within and partly The accuracy of the estimated burden Background without the United States and are associated with the proposed collections This document contains proposed needed to provide appropriate guidance of information (see below); amendments (the new proposed regarding the determination of the How the quality, utility, and clarity of regulations) 26 CFR part 1 under section proper source of that compensation. the information to be collected may be 861 of the Internal Revenue Code This document also withdraws the enhanced; (Code). On January 21, 2000, a notice of notice of proposed rulemaking (REG– How the burden of complying with proposed rulemaking was published in 208254–90) published in the Federal the proposed collections of information the Federal Register at 65 FR 3401 Register on January 21, 2000 (65 FR may be minimized, including through (REG–208254–90; 2000–1 C.B. 577) (the 3401). the application of automated collection previously proposed regulations). The DATES: Written or electronic comments techniques or other forms of information previously proposed regulations would and requests for a public hearing must technology; and have modified the existing final be received by November 4, 2004. The Estimates of capital or start-up costs regulations relating to the determination notice of proposed rulemaking and costs of operation, maintenance, of the source of income from the
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performance of labor or personal the IRS believe that this rule will employee’s principal place of work, as services performed partly within and provide certainty and simplification for defined in section 217 and § 1.217– partly without the United States. both taxpayers and the IRS. The 2(c)(3)). The fringe benefits to which Written comments were received in information necessary to apply the time this general basis applies are: Housing, response to the notice of proposed basis should be readily available to education, local transportation, tax rulemaking. A public hearing was held employers and employees. For example, reimbursement, hazardous or hardship on July 18, 2000. In response to these Form 2555, ‘‘Foreign Earned Income’’, duty pay, and moving expense comments, and after further requires an individual who claims the reimbursement fringe benefits. This consideration of the issue, the foreign earned income exclusion to general basis will apply only if the previously proposed regulations are provide the IRS with information amount of the fringe benefit is withdrawn and new regulations are relating to the number of business days reasonable and is substantiated by proposed. This preamble discusses spent within the United States and any adequate contemporaneous records or comments received on the previously fringe benefits received. Sourcing on a sufficient evidence under rules similar proposed regulations and describes the time basis may be appropriate as well to those set forth in § 1.274–5T(c) or (h) differences between the new proposed for individuals other than employees or § 1.132–5, and only if the fringe regulations and the previously proposed who receive compensation for labor or benefit meets the definition set forth in regulations. personal services and who may be the new proposed regulations. Treasury viewed as earning such compensation and the IRS intend to keep the list and Explanation of Provisions ratably. descriptions of identified fringe benefits The existing final regulations, Nonetheless, for entities other than current and invite comments regarding § 1.861–4(b), provide that if a person individuals and for individuals who are whether the identified fringe benefits performs labor or personal services not employees, the facts and are appropriately defined and whether partly within and partly without the circumstances in many cases may be other fringe benefits should be United States, the amount to be such that an apportionment on a basis identified in the regulations and included in gross income from United other than a time basis may be more sourced on a specific geographic basis. States sources shall be determined on appropriate. For example, a corporation Treasury and the IRS recognize that the basis that most correctly reflects the could receive payments under a contract there are circumstances in which these proper source of income under the facts for services to be performed by two general bases may not be the most and circumstances of the particular numerous employees at various pay appropriate basis for determining the case. levels in a number of different source of an employee’s compensation The previously proposed regulations geographic locations. In such a case, for labor or personal services performed retained the facts and circumstances payroll costs under the contract for partly within and partly without the basis for determining the source of such services, or another basis besides time, United States. Accordingly, the new income for persons other than may more correctly reflect the proper proposed regulations at § 1.861– individuals. For individuals, however, source of the corporation’s income. 4(b)(2)(ii)(C)(1)(i) provide that an the previously proposed regulations The new proposed regulations retain employee may use an alternative basis, provided that if an individual received the facts and circumstances basis as the based upon the facts and circumstances, compensation for a specific time period general rule for determining the source to source such compensation if he or for labor or personal services that are of compensation for labor and personal she establishes to the satisfaction of the performed partly within and partly services performed partly within and Commissioner that such an alternative without the United States, the amount partly without the United States basis more properly determines the of compensation for labor or personal received by persons other than source of the compensation. For services performed within the United individuals and by individuals who are example, when an employee’s States would have been determined not employees. However, the new compensation is tied to the performance solely on a time basis. proposed regulations provide two new of specific actions rather than earned Several comments questioned the rule general bases for determining the proper ratably over a specific time period, an in the previously proposed regulations source of compensation that an alternative basis may more properly that required individuals to determine individual receives as an employee for determine the source of compensation the source of such income on a time such labor or personal services. Under than the bases for determining source of basis. In response to those comments, the first general basis of § 1.861– compensation described in § 1.861– and after further consideration of the 4(b)(2)(ii)(A), an individual who 4(b)(2)(ii)(A) and (B). issues presented, the previously receives compensation, other than In order to satisfy the Commissioner, proposed regulations are withdrawn and compensation in the form of certain an employee must retain in his or her new regulations are proposed that take fringe benefits, as an employee for labor records documentation setting forth into account the concerns raised. or personal services performed partly why the alternative basis more properly Treasury and the IRS believe that a within and partly without the United determines the source of the time basis generally is the most States is required to source such compensation than the basis for appropriate method for determining the compensation on a time basis, as determining source of compensation source of an individual employee’s defined in § 1.861–4(b)(2)(ii)(E). described in § 1.861–4(b)(2)(ii)(A) or (B). compensation for labor and personal Under the second general basis of In addition, it is anticipated that the services performed partly within and § 1.861–4(b)(2)(ii)(B) and (D), an Commissioner, by ruling or other partly without the United States. individual who receives compensation administrative pronouncement, will Compensation provided to an employee as an employee for labor or personal issue guidance as to what procedures an for a specific time period is generally services performed partly within and employee must follow in order to assert considered to be earned by the partly without the United States in the an alternative basis to determine the employee ratably over that time period. form of fringe benefits, as described in source of his or her compensation for Accordingly, it is appropriate generally § 1.861–4(b)(2)(ii)(D)(1) through (6), is labor or personal services performed to source such compensation on a required to source such compensation partly within and partly without the ratable basis. In addition, Treasury and on a geographical basis (e.g., at the United States. Such administrative
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pronouncement will likely require that individuals to determine the source of less than a day may be appropriate for an individual who has $250,000 or more certain compensation as an employee purposes of this calculation. For in compensation for the tax year must for labor or personal services performed example, it may be more appropriate to indicate in the manner prescribed that partly within and partly without the source compensation paid to an airline he or she is using an alternative basis to United States under an alternative basis flight crewmember based on a time unit source his or her compensation. Such pursuant to the authority under of less than a day. individual may be required to file a paragraph (b)(2)(ii)(C)(1)(ii) of this form, or retain the following in his or section. Special Analyses her records: (1) A written explanation of Section 1.861–4(b)(2)(ii)(C)(3) of the It has been determined that this notice why the alternative basis more properly new proposed regulations is reserved of proposed rulemaking is not a determines the source of the with respect to artists and athletes who significant regulatory action as defined compensation than the basis for are employees. It is intended that the in Executive Order 12866. Therefore, a determining source of compensation specific rules for artists and athletes regulatory assessment is not required. It described in § 1.861–4(b)(2)(ii)(A) or (B) who are employees will require such also has been determined that section under the facts and circumstances, and individuals to determine the proper 553(b) of 5 U.S.C. chapter 5 does not source of compensation for labor or (2) a written comparison of the dollar apply to these regulations, and because personal services on the basis that most amount of the compensation sourced the regulation does not impose a correctly reflects the proper source of within and without the United States collection of information on small that income under the facts and under both the individual’s alternative entities, the Regulatory Flexibility Act, circumstances of the particular case, basis and the basis for determining 5 U.S.C. chapter 6, does not apply. consistent with current law. Comments source of compensation described in Pursuant to section 7805(f) of the Code, are invited in this connection, including § 1.861–4(b)(2)(ii)(A) or (B). this notice of proposed rulemaking will Section 1.861–4(b)(2)(ii)(C)(1)(ii) of on the proper definition of an artist or be submitted to the Chief Counsel for the new proposed regulations also athlete for this purpose. Advocacy of the Small Business provides that the Commissioner may, Examples illustrating these new rules under the facts and circumstances of the with respect to compensation that an Administration for comment on their particular case, determine the source of individual receives as an employee are impact on small businesses. compensation that is received by an included in § 1.861–4(b)(2)(ii)(G) of the Comments and Requests for a Public individual as an employee for labor or new proposed regulations. Hearing personal services performed partly Several of the comments to the within and partly without the United previously proposed regulations Before the new proposed regulations States under an alternative basis other requested specific rules for are adopted as final regulations, than a basis described in paragraph compensation arrangements that relate consideration will be given to any (b)(2)(ii)(A) or (B) if such compensation to services performed over a period of written comments (a signed original and either (1) is not for a specific time more than one year, such as employee 8 copies) or electronic comments that period or (2) constitutes in substance a stock option plans, transfers of are submitted timely to the IRS. The IRS fringe benefit described in paragraph restricted property, and other deferred and Treasury request comments on the (b)(2)(ii)(D) notwithstanding a failure to compensation arrangements. The new clarity of the proposed rules and how meet any requirement of paragraph proposed regulations provide at § 1.861– they may be made easier to understand. (b)(2)(ii)(D). The Commissioner may 4(b)(2)(ii)(F) that the source of multi- All comments will be made available for make this determination only if such year compensation of an employee is public inspection and copying. A public alternative basis determines the source generally determined on a time basis hearing will be scheduled if requested of compensation in a more reasonable over the applicable period to which the in writing by any person that timely manner than the basis used by the compensation is attributable. submits written comments. If a public individual pursuant to paragraph Determination of the applicable period hearing is scheduled, notice of the date, (b)(2)(ii)(A) or (B). to which the compensation is time, and place for the public hearing Section 1.861–4(b)(2)(ii)(C)(2) of the attributable (including whether the will be published in the Federal new proposed regulations provides that compensation relates to more than one Register. the Commissioner may, by ruling or taxable year) is based upon the facts and other administrative pronouncement circumstances of the particular case. Drafting Information applying to similarly situated taxpayers Treasury and the IRS invite taxpayers to The principal author of these generally, permit individuals to provide comments on whether proposed regulations is David Bergkuist determine the source of their alternative bases for determining the of the Office of Associate Chief Counsel compensation as an employee for labor source of such multi-year compensation (International). However, other or personal services performed partly are appropriate. personnel from the IRS and Treasury One comment questioned whether a within and partly without the United participated in their development. States under an alternative basis. Any day was the only time period upon such individual shall be treated as which to apply the time basis of List of Subjects in 26 CFR Part 1 having met the requirement to establish sourcing compensation. In response to such alternative basis to the satisfaction this comment, the new proposed Income taxes, Reporting and of the Commissioner under the facts and regulations provide at § 1.861– recordkeeping requirements. circumstances of the particular case, 4(b)(2)(ii)(E) that, although the time Withdrawal of a Notice of Proposed provided that the individual meets the basis is generally determined by Rulemaking other requirements of paragraph comparing the number of days of (b)(2)(ii)(C)(1)(i). This paragraph also performance of the labor or personal Accordingly, under the authority of provides that the Commissioner may, by services by the individual within the 26 U.S.C. 7805, the notice of proposed ruling or other administrative United States to his or her total number rulemaking published in the Federal pronouncement, indicate the of days of performance of labor or Register on January 21, 2000, (65 FR circumstances in which he will require personal services, use of a unit of time 3401), REG–208254–90 is withdrawn.
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Proposed Amendments to the employees (and hours spent by employees) services performed partly within and Regulations performing services under the contract partly without the United States that are within the United States equals the number Accordingly, 26 CFR Part 1 is described in paragraph (b)(2)(ii)(D)(1) of employees (and hours spent by employees) through (6) of this section are sourced proposed to be amended as follows: performing services under the contract without the United States, the compensation on a geographical basis in accordance PART 1—INCOME TAXES paid to employees performing services under with those paragraphs. the contract within the United States is (C) Exceptions and special rules—(1) Paragraph 1. The authority citation higher because of the more sophisticated Alternative basis—(i) Individual as an for part 1 continues to read, in part, as nature of the services performed by the employee generally. An individual may follows: employees within the United States. determine the source of his or her Authority: 26 U.S.C. 7805 * * * Accordingly, the payroll cost for employees compensation as an employee for labor performing services under the contract or personal services performed partly Par. 2. Section 1.861–4 is amended as within the United States is $20,000 out of a within and partly without the United follows: total contract payroll cost of $30,000. Under States under an alternative basis if the 1. The heading for paragraph (a) is these facts and circumstances, a revised. determination based upon relative payroll individual establishes to the satisfaction 2. A sentence is added at the costs would be the basis that most correctly of the Commissioner that, under the beginning of paragraph (a)(1). reflects the proper source of the income facts and circumstances of the particular 3. Paragraph (b) is revised. received under the contract. Thus, of the case, the alternative basis more properly 4. A sentence is added at the end of $150,000 of compensation included in Corp determines the source of the × paragraph (d). X’s gross income, $100,000 ($150,000 compensation than a basis described in The revisions and addition read as $20,000/$30,000) is attributable to the labor paragraph (b)(2)(ii)(A) or (B), whichever or personal services performed within the follows: × is applicable, of this section. An United States and $50,000 ($150,000 individual that uses an alternative basis § 1.861–4 Compensation for labor or $10,000/$30,000) is attributable to the labor must retain in his or her records personal services. or personal services performed without the United States. documentation setting forth why the (a) Compensation for labor or alternative basis more properly personal services performed wholly (2) Compensation for labor or determines the source of the within the United States—(1) Generally, personal services performed by an compensation. In addition, the compensation for labor or personal individual—(i) In general. Except as individual must comply with the services, including fees, commissions, provided in paragraph (b)(2)(ii) of this requirements set forth in any applicable fringe benefits, and similar items, section, in the case of compensation for administrative pronouncement issued performed wholly within the United labor or personal services performed by the Commissioner. States is gross income from sources partly within and partly without the (ii) Determination by Commissioner. within the United States. * * * United States by an individual, the part The Commissioner may, under the facts * * * * * of such compensation that is and circumstances of the particular (b) Compensation for labor or attributable to the labor or personal case, determine the source of personal services performed partly services performed within the United compensation that is received by an within and partly without the United States, and that is therefore included in individual as an employee for labor or States—(1) Compensation for labor or gross income as income from sources personal services performed partly personal services performed by persons within the United States, is determined within and partly without the United other than individuals—(i) In general. In on the basis that most correctly reflects States under an alternative basis other the case of compensation for labor or the proper source of that income under than a basis described in paragraph personal services performed partly the facts and circumstances of the (b)(2)(ii)(A) or (B) of this section if such within and partly without the United particular case. In many cases, the facts compensation either is not for a specific States by a person other than an and circumstances will be such that an time period or constitutes in substance individual, the part of that apportionment on a time basis, as a fringe benefit described in paragraph compensation that is attributable to the defined in paragraph (b)(2)(ii)(E) of this (b)(2)(ii)(D) of this section labor or personal services performed section, will be acceptable. notwithstanding a failure to meet any within the United States, and that is (ii) Employee compensation—(A) In requirement of paragraph (b)(2)(ii)(D) of therefore included in gross income as general. Except as provided in this section. The Commissioner may income from sources within the United paragraph (b)(2)(ii)(B) or (C) of this make this determination only if such States, is determined on the basis that section, in the case of compensation for alternative basis determines the source most correctly reflects the proper source labor or personal services performed of compensation in a more reasonable of the income under the facts and partly within and partly without the manner than the basis used by the circumstances of the particular case. In United States by an individual as an individual pursuant to paragraph many cases, the facts and circumstances employee, the part of such (b)(2)(ii)(A) or (B) of this section. (2) Ruling or other administrative will be such that an apportionment on compensation that is attributable to the pronouncement with respect to groups the time basis, as defined in paragraph labor or personal services performed of taxpayers. The Commissioner may, by (b)(2)(ii)(E) of this section, will be within the United States, and that is ruling or other administrative acceptable. therefore included in gross income as income from sources within the United pronouncement applying to similarly (ii) Example. Corp X, a domestic States, is determined on a time basis, as situated taxpayers generally, permit corporation, receives compensation of defined in paragraph (b)(2)(ii)(E) of this individuals to determine the source of $150,000 under a contract for services to be their compensation as an employee for performed concurrently in the United States section. and in several foreign countries by numerous (B) Certain fringe benefits sourced on labor or personal services performed Corp X employees. Each Corp X employee a geographical basis. Except as provided partly within and partly without the performing services under this contract in paragraph (b)(2)(ii)(C) of this section, United States under an alternative basis. performs his or her services exclusively in items of compensation of an individual Any such individual shall be treated as one jurisdiction. Although the number of as an employee for labor or personal having met the requirement to establish
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such alternative basis to the satisfaction fringe benefit includes payments only an employee during the period that the of the Commissioner under the facts and for qualified tuition and related employee performs labor or personal circumstances of the particular case, expenses of the type described in services in a hazardous or hardship duty provided that the individual meets the section 530(b)(4)(A)(i) and expenditures zone may be treated as a hazardous or other requirements of paragraph for room and board and uniforms as hardship duty pay fringe benefit only if (b)(2)(ii)(C)(1)(i) of this section. The described in section 530(b)(4)(A)(ii) the employer provides the hazardous or Commissioner also may, by ruling or with respect to education at an hardship duty pay fringe benefit only to other administrative pronouncement, elementary or secondary educational employees performing labor or personal indicate the circumstances in which he institution. services in a hazardous or hardship duty will require individuals to determine (3) Local transportation fringe benefit. zone. The amount of compensation the source of certain compensation as an The source of compensation in the form treated as a hazardous or hardship duty employee for labor or personal services of a local transportation fringe benefit is pay fringe benefit may not exceed the performed partly within and partly determined based on the location of the maximum amount that the U.S. without the United States under an individual’s principal place of work. For government would allow its officers or alternative basis pursuant to the purposes of this paragraph employees present at that location. authority under paragraph (b)(2)(ii)(D)(3), an individual’s local (6) Moving expense reimbursement (b)(2)(ii)(C)(1)(ii) of this section. transportation fringe benefit is the fringe benefit. Except as otherwise (3) Artists and athletes. [Reserved] amount that the individual receives as provided in this paragraph (D) Fringe benefits sourced on a compensation for local transportation of (b)(2)(ii)(D)(6), the source of geographical basis. Except as provided the individual or the individual’s compensation in the form of a moving in paragraph (b)(2)(ii)(C) of this section, spouse or dependents at the location of expense reimbursement is determined compensation of an individual as an the individual’s principal place of work. based on the location of the employee’s employee for labor or personal services The amount treated as a local new principal place of work. The source performed partly within and partly transportation fringe benefit is limited of such compensation is determined without the United States in the form of to the actual expenses incurred for local based on the location of the employee’s the following fringe benefits is sourced transportation and the fair rental value former principal place of work, on a geographical basis as indicated in of any vehicle provided by the employer however, if the individual provides this paragraph (b)(2)(ii)(D). The amount and used predominantly by the sufficient evidence that such of the compensation in the form of the individual or the individual’s spouse or determination of source is more fringe benefit must be reasonable, and dependents for local transportation. For appropriate under the facts and the individual must substantiate such this purpose, actual expenses incurred circumstances of the particular case. For amounts by adequate records or by for local transportation do not include purposes of this paragraph sufficient evidence under rules similar the cost (including interest) of the (b)(2)(ii)(D)(6), sufficient evidence to those set forth in § 1.274–5T(c) or (h) purchase by the individual, or on behalf generally requires an agreement, or § 1.132–5. For purposes of this of the individual, of an automobile or between the employer and the paragraph (b)(2)(ii)(D), the term other vehicle. employee, or a written statement of principal place of work has the same (4) Tax reimbursement fringe benefit. company policy, which is reduced to meaning that it has for purposes of The source of compensation in the form writing before the move and which is section 217 and § 1.217–2(c)(3). of a foreign tax reimbursement fringe entered into or established to induce the (1) Housing fringe benefit. The source benefit is determined based on the employee or employees to move to of compensation in the form of a location of the jurisdiction that imposed another country. The writing must state housing fringe benefit is determined the tax for which the individual is that the employer will reimburse the based on the location of the individual’s reimbursed. employee for moving expenses that the principal place of work. For purposes of (5) Hazardous or hardship duty pay employee incurs to return to the this paragraph (b)(2)(ii)(D)(1), a housing fringe benefit. The source of employee’s former principal place of fringe benefit includes payments to or compensation in the form of a work regardless of whether he or she on behalf of an individual (and the hazardous or hardship duty pay fringe continues to work for the employer after individual’s family if the family resides benefit is determined based on the returning to that location. The writing with the individual) only for rent, location of the hazardous or hardship may contain certain conditions upon utilities (other than telephone charges), duty zone for which the hazardous or which the right to reimbursement is real and personal property insurance, hardship duty pay fringe benefit is paid. determined as long as those conditions occupancy taxes not deductible under For purposes of this paragraph set forth standards that are definitely section 164 or 216(a), nonrefundable (b)(2)(ii)(D)(5), a hazardous or hardship ascertainable and can only be fulfilled fees paid for securing a leasehold, rental duty zone is any place in a foreign prior to, or through completion of, the of furniture and accessories, household country which is either designated by employee’s return move to the repairs, residential parking, and the fair the Secretary of State as a place where employee’s former principal place of rental value of housing provided in kind living conditions are extraordinarily work. by the individual’s employer. A housing difficult, notably unhealthy, or where (E) Time basis. The amount of fringe benefit does not include excessive physical hardships exist, and compensation for labor or personal payments for expenses or items set forth for which a post differential of 15 services performed within the United in § 1.911–4(b)(2). percent or more would be provided States determined on a time basis is the (2) Education fringe benefit. The under section 5925(b) of Title 5 of the amount that bears the same relation to source of compensation in the form of U.S. Code to any officer or employee of the individual’s total compensation as an education fringe benefit for the the U.S. Government present at that the number of days of performance of education expenses of the individual’s place, or where a civil insurrection, civil the labor or personal services by the dependents is determined based on the war, terrorism, or wartime conditions individual within the United States location of the individual’s principal threatens physical harm or imminent bears to his or her total number of days place of work. For purposes of this danger to the health and well-being of of performance of labor or personal paragraph (b)(2)(ii)(D)(2), an education the individual. Compensation provided services. A unit of time less than a day
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may be appropriate for purposes of this with the project bears to the total (ii) On audit, B argues that because he calculation. The time period for which number of days (or unit of time less than failed to substantiate the education fringe the compensation for labor or personal a day, if appropriate) that labor or benefit in accordance with paragraph services is made is presumed to be the personal services were performed in (b)(2)(ii)(D) of this section, his entire employment compensation from Corp M is calendar year in which the labor or connection with the project. In the case sourced on a time basis pursuant to personal services are performed, unless of stock options, the facts and paragraph (b)(2)(ii)(A) of this section. The the taxpayer establishes to the circumstances generally will be such Commissioner, after reviewing Corp M’s satisfaction of the Commissioner, or the that the applicable period to which the fringe benefit arrangement, determines, Commissioner determines, that another compensation is attributable is the pursuant to paragraph (b)(2)(ii)(C)(1)(ii) of distinct, separate, and continuous period between the grant of an option this section, that the $10,000 educational period of time is more appropriate. For and the date on which all employment- expense reimbursement constitutes in example, a transfer during a year from related conditions for its exercise have substance a fringe benefit described in paragraph (b)(2)(ii)(D)(2) of this section, a position in the United States to a been satisfied (the vesting of the option). notwithstanding a failure to meet all of the foreign posting that lasted through the (G) Examples. The following requirements of paragraph (b)(2)(ii)(D) of this end of that year would generally examples illustrate the application of section, and that an alternative geographic establish two separate time periods this paragraph (b)(2)(ii): source basis, under the facts and within that taxable year. The first of Example 1. B, a nonresident alien circumstances of this particular case, is a these time periods would be the portion individual, was employed by Corp M, a more reasonable manner to determine the of the year preceding the start of the domestic corporation, from March 1 to source of the compensation than the time foreign posting, and the second of these December 25 of the taxable year, a total of basis used by B. Example 3. (i) A, a United States citizen, time periods would be the portion of the 300 days, for which B received compensation in the amount of $80,000. Under B’s is employed by Corp N, a domestic year following the start of the foreign corporation. A’s principal place of work is in posting. However, in the case of a employment contract with Corp M, B was subject to call at all times by Corp M and was the United States. A earns an annual salary foreign posting that requires short-term in a payment status on a 7-day week basis. of $100,000. During the first quarter of the returns to the United States to perform Pursuant to that contract, B performed calendar year (which is also A’s taxable year), services for the employer, such short- services (or was available to perform A performed services entirely within the term returns would not be sufficient to services) within the United States for 180 United States. At the beginning of the second establish distinct, separate, and days and performed services (or was quarter of the calendar year, A was continuous time periods within the available to perform services) without the transferred to Country X for the remainder of United States for 120 days. None of B’s the year and received, in addition to her foreign posting time period but would annual salary, $30,000 in fringe benefits that be relevant to the allocation of $80,000 compensation was for fringe benefits as identified in paragraph (b)(2)(ii)(D) of this are attributable to her new principal place of compensation relating to the overall section. B determined the amount of work in Country X. Corp N paid these fringe time period. In each case, the source of compensation that is attributable to his labor benefits separately from A’s annual salary. the compensation on a time basis is or personal services performed within the Corp N supplied A with a statement detailing based upon the number of days (or unit United States on a time basis under that $25,000 of the fringe benefit was paid for of time less than a day, if appropriate) paragraph (b)(2)(ii)(A) and (E) of this section. housing, as defined in paragraph in that separate time period. B did not assert, pursuant to paragraph (b)(2)(ii)(D)(1) of this section, and $5,000 of (b)(2)(ii)(C)(1)(i) of this section, that, under the fringe benefit was paid for local (F) Multi-year compensation the particular facts and circumstances, an transportation, as defined in paragraph arrangements. The source of multi-year alternative basis more properly determines (b)(2)(ii)(D)(3) of this section. None of the compensation is determined generally the source of that compensation than the local transportation fringe benefit is excluded on a time basis, as defined in paragraph time basis. Therefore, B must include in from the employee’s gross income as a (b)(2)(ii)(E) of this section, over the income from sources within the United qualified transportation fringe benefit under period to which such compensation is States $48,000 ($80,000 x 180/300) of his section 132(a)(5). Under A’s employment attributable. For purposes of this compensation from Corporation M. contract, A was required to work on a 5-day paragraph (b)(2)(ii)(F), multi-year Example 2. (i) Same facts as in Example 1 week basis, Monday through Friday. During except that Corp M had a company-wide the last three quarters of the year, A compensation means compensation that arrangement with its employees, including B, performed services 30 days in the United is included in the income of an that they would receive an education fringe States and 150 days in Country X and other individual in one taxable year but that benefit, as described in paragraph foreign countries. is attributable to a period that includes (b)(2)(ii)(D)(2) of this section, while working (ii) A determined the source of all of her two or more taxable years. The in the United States. During the taxable year, compensation from Corp N pursuant to determination of the period to which B incurred education expenses for his paragraph (b)(2)(ii)(A), (B), and (D)(1) and (3) such compensation is attributable, for dependent daughter that qualified for the of this section. A did not assert, pursuant to purposes of determining its source, is education fringe benefit in the amount of paragraph (b)(2)(ii)(C)(1)(i) of this section, based upon the facts and circumstances $10,000, for which B received a that, under the particular facts and reimbursement from Corp M. B did not circumstances, an alternative basis more of the particular case. For example, an maintain adequate records or sufficient properly determines the source of that amount of compensation that evidence of this fringe benefit as required by compensation than the bases set forth in specifically relates to a period of time paragraph (b)(2)(ii)(D) of this section. When paragraphs (b)(2)(ii)(A), (B), and (D)(1) and that includes several calendar years is B filed his Federal income tax return for the (3) of this section. However, in applying the attributable to the entirety of that multi- taxable year, B did not apply paragraphs time basis set forth in paragraph (b)(2)(ii)(E) year period. The amount of such (b)(2)(ii)(B) and (D)(2) of this section to treat of this section, A establishes to the compensation that is treated as from the compensation in the form of the satisfaction of the Commissioner that the first sources within the United States is the education fringe benefit as income from quarter of the calendar year and the last three amount that bears the same relationship sources within the United States, the location quarters of the calendar year are two of his principal place of work during the 300- separate, distinct, and continuous periods of to the total multi-year compensation as day period. Rather, B combined the $10,000 time. Accordingly, $25,000 of A’s annual the number of days (or unit of time less reimbursement with his base compensation salary is attributable to the first quarter of the than a day, if appropriate) that labor or of $80,000 and applied the time basis of year (25 percent of $100,000). This amount personal services were performed paragraph (b)(2)(ii)(A) of this section to is entirely compensation that was attributable within the United States in connection determine the source of his gross income. to the labor or personal services performed
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within the United States and is, therefore, P permitted E to use an automobile owned Company Q within the United States. In included in gross income as income from by Corp P. In addition, Corp P agreed to 2009, J performs 1⁄2 of his services for sources within the United States. The reimburse E for all expenses incurred by E in Company Q within the United States and 1⁄2 balance of A’s compensation as an employee maintaining and operating the automobile, of his services for Company Q without the of Corp N, $105,000 (which includes the including gas and parking. Provided that the United States. In year 2010, J performs his $30,000 in fringe benefits that are attributable local transportation fringe benefit meets the services entirely without the United States. to the location of A’s principal place of work requirements of paragraph (b)(2)(ii)(D)(3) of On December 31, 2012, J exercises the in Country X), is compensation attributable this section, E’s compensation with respect to options when the stock is worth $10 per to the final three quarters of her taxable year. the fair rental value of the automobile and share. J recognizes $500 in taxable During those three quarters, A’s periodic reimbursement for the expenses E incurred is compensation (($10–$5) X 100) in 2012. performance of services in the United States sourced under paragraphs (b)(2)(ii)(B) and (ii) Under the facts and circumstances, the does not result in distinct, separate, and (D)(3) of this section based on E’s principal applicable period is the 5-year period continuous periods of time. Of the $75,000 place of work in Country V. Thus, the local between the date of grant (January 1, 2006) paid for annual salary, $12,500 (30/180 x transportation fringe benefit will be included and the date the stock options become $75,000) is compensation that was in E’s gross income as income from sources exercisable (December 31, 2010). On the date attributable to the labor or personal services without the United States. the stock options become exercisable, J performed within the United States and (iii) Under the terms of the compensation performs all services necessary to obtain the $62,500 (150/180 x $75,000) is compensation package that F negotiated with Corp P, Corp compensation from Company Q. that was attributable to the labor or personal P let F use an automobile owned by Corp P. Accordingly, the services performed after the services performed outside the United States. However, Corp P did not agree to reimburse date the stock options become exercisable are Pursuant to paragraphs (b)(2)(ii)(B) and (D)(1) F for any expenses incurred by F in not taken into account in sourcing the and (3) of this section, A sourced the $25,000 maintaining and operating the automobile. compensation from the stock options. received for the housing fringe benefit and Provided that the local transportation fringe Therefore, pursuant to paragraph (b)(2)(ii)(A), the $5,000 received for the local benefit meets the requirements of paragraph since J performs 31⁄2 years of services for transportation fringe benefit based on the (b)(2)(ii)(D)(3) of this section, F’s Company Q within the United States and 11⁄2 location of her principal place of work, compensation with respect to the fair rental years of services for Company Q without the Country X. Accordingly, A included the value of the automobile is sourced under United States during the 5-year period, 7/10 $30,000 in fringe benefits in her gross income paragraphs (b)(2)(ii)(B) and (D)(3) of this of the $500 of compensation (or $350) as income from sources without the United section based on F’s principal place of work recognized in 2012 is income from sources States. in Country V. Thus, the local transportation within the United States and the remaining Example 4. Same facts as in Example 3. Of fringe benefit will be included in F’s gross 3/10 of the compensation (or $150) is income the 150 days during which A performed income as income from sources without the from sources without the United States. services in Country X and in other foreign United States. countries (during the final three quarters of (iv) Under the terms of the compensation * * * * * A’s taxable year), she performed 30 days of package that G negotiated with Corp P, Corp (d) Effective date. * * * The first those services in Country Y. Country Y is a P agreed to reimburse G for the purchase sentence of § 1.861–4(a)(1) and § 1.861– country designated by the Secretary of State price of an automobile that G purchased in 4(b) apply to taxable years beginning on as a place where living conditions are Country V. Corp P did not agree to reimburse or after publication of the Treasury extremely difficult, notably unhealthy, or G for any expenses incurred by G in Decision adopting these rules as final where excessive physical hardships exist and maintaining and operating the automobile. regulations in the Federal Register. for which a post differential of 15 percent or Because the cost to purchase an automobile more would be provided under section is not a local transportation fringe benefit as Mark E. Matthews, 5925(b) of Title 5 of the U.S. Code to any defined in paragraph (b)(2)(ii)(D)(3) of this Deputy Commissioner for Services and officer or employee of the U.S. government section, the source of the compensation to G Enforcement. present at that place. Corp N has a policy of will be determined pursuant to paragraph [FR Doc. 04–17813 Filed 8–5–04; 8:45 am] paying its employees a $65 premium per day (b)(2)(ii)(A) or (C) of this section. BILLING CODE 4830–01–P for each day worked in countries so (v) Under the terms of the compensation designated. The $65 premium per day does package that H negotiated with Corp P, Corp not exceed the maximum amount that the P agreed to reimburse H for the expenses that U.S. government would pay its officers or H incurred in maintaining and operating an DEPARTMENT OF THE TREASURY employees stationed in Country Y. Because A automobile, including gas and parking, performed services in Country Y for 30 days, which H purchased in Country V. Provided Internal Revenue Service she earned additional compensation of that the local transportation fringe benefit $1,950. The $1,950 is considered a hazardous meets the requirements of paragraph 26 CFR Part 1 duty or hardship pay fringe benefit and is (b)(2)(ii)(D)(3) of this section, H’s [REG–129771–04] sourced under paragraphs (b)(2)(ii)(B) and compensation with respect to the (D)(5) of this section based on the location of reimbursement for the expenses H incurred RIN 1545–BD49 the hazardous or hardship duty zone, is sourced under paragraphs (b)(2)(ii)(B) and Country Y. Accordingly, A included the (D)(3) of this section based on H’s principal Guidance Under Section 951 for amount of the hazardous duty or hardship place of work in Country V. Thus, the local Determining Pro Rata Share pay fringe benefit ($1,950) in her gross transportation fringe benefit will be included income as income from sources without the in H’s gross income as income from sources AGENCY: Internal Revenue Service (IRS), United States. without the United States. Treasury. Example 5. (i) During 2006 and 2007, Corp Example 6. (i) On January 1, 2006, ACTION: Notice of proposed rulemaking P, a domestic corporation, employed four Company Q compensates employee J with a and notice of public hearing. United States citizens, E, F, G, and H to work grant of options to which section 421 does in its manufacturing plant in Country V. As not apply that do not have a readily SUMMARY: This document contains part of his or her compensation package, each ascertainable fair market value when granted. proposed regulations under section employee arranged for local transportation The stock options permit J to purchase 100 951(a) of the Internal Revenue Code unrelated to Corp P’s business needs. None shares of Company Q stock for $5 per share. (Code) that provide guidance for of the local transportation fringe benefit is The stock options do not become exercisable excluded from the employee’s gross income unless and until J performs services for determining a United States as a qualified transportation fringe benefit Company Q (or a related company) for 5 shareholder’s pro rata share of a under section 132(a)(5) and (f). years. J works for Company Q for the 5 years controlled foreign corporation’s (CFC’s) (ii) Under the terms of the compensation required by the stock option grant. In years subpart F income, previously excluded package that E negotiated with Corp P, Corp 2006–08, J performs all of his services for subpart F income withdrawn from
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investment in less developed countries, last day, in its taxable year, on which the C. Pro Rata Share Rules for CFCs With previously excluded subpart F income corporation is a [CFC] it had distributed pro More Than One Class of Stock withdrawn from foreign base company rata to its shareholders an amount (i) which 1. In General shipping operations, and amounts bears the same ratio to its subpart F income determined under section 956. This for the taxable year, as (ii) the part of such Proposed § 1.951–1(e)(3) provides document also provides notice of a year during which the corporation is a [CFC] rules for determining a United States bears to the entire year, reduced by shareholder’s pro rata share of a CFC’s public hearing on the proposed (B) The amount of distributions received regulations. section 951(a)(1) amounts in the case by any other person during such year as a where the CFC has more than one class DATES: Written or electronic comments dividend with respect to such stock, but only of stock outstanding. Proposed § 1.951– must be received by November 4, 2004. to the extent of the dividend which would 1(e)(3)(i) retains the general rule in the Outlines of topics to be discussed at the have been received if the distribution by the current regulations, which provides that public hearing scheduled for Thursday, corporation had been the amount (i) which the amount of subpart F income, November 18, 2004, at 10 a.m. must be bears the same ratio to the subpart F income withdrawals, or amounts determined received by November 4, 2004. of such corporation for the taxable year, as (ii) the part of such year during which such under section 956 which shall be taken ADDRESSES: Send submissions to: shareholder did not own (within the meaning into account with respect to any one CC:PA:LPD:PR (REG–129771–04), room of section 958(a)) such stock bears to the class of stock shall be that amount 5203, Internal Revenue Service, P.O. entire year. which bears the same ratio to the total Box 7604, Ben Franklin Station, of such subpart F income, withdrawals, Washington, DC 20044. Submissions The current regulations provide rules or amounts determined under section may be hand-delivered between the for determining a United States 956 for such year as the earnings and hours of 8 a.m. and 4 p.m. to shareholder’s pro rata share of a CFC’s profits which would be distributed with CC:PA:LPD:PR (REG–129771–04), section 951(a)(1) amounts in the case respect to such class of stock if all Courier’s Desk, Internal Revenue where the CFC has more than one class earnings and profits of such corporation Service, 1111 Constitution Avenue, of stock outstanding. These regulations for such year were distributed on the NW., Washington, DC, or sent have remained unchanged since 1965. last day of such corporation’s taxable electronically, via the IRS Internet site In the 39 years since the rules were year on which such corporation is a CFC at http://www.irs.gov/regs or via the issued, international business (the hypothetical distribution date) bear Federal eRulemaking Portal at http:// arrangements have become much more to the total earnings and profits of such www.regulations.gov (IRS and REG– complex than contemplated in 1965, corporation for such taxable year. 129771–04). If a public hearing is reflecting in particular more complex Examples 2 and 8 of proposed § 1.951– scheduled, notice of the date, time, and structures for determining return on 1(e)(6) illustrate the application of this place for the hearing will be published capital. The current regulations do not general rule. in the Federal Register. take into account these developments. This general rule applies in cases FOR FURTHER INFORMATION CONTACT: The IRS and Treasury Department, where a CFC has more than one class of Concerning the proposed regulations, therefore, believe that updated guidance stock outstanding and where the Jonathan A. Sambur, (202) 622–3840; is necessary to ensure results that are allocation of the amount of the CFC’s concerning submissions of comments, more consistent with the economic earnings and profits between or among the hearing, and/or to be placed on the interests of shareholders in a CFC. different classes of stock does not building access list to attend the Explanation of Provisions depend upon the exercise of discretion hearing, Sonya Cruse (202) 622–4693 by the board of directors or similar (not toll-free numbers). A. In General governing body of the CFC. The IRS and SUPPLEMENTARY INFORMATION: Treasury Department believe that this Section 1.951–1(e) defines pro rata general rule, in practice, will apply in Background share for purposes of section 951(a) of most cases in which a CFC has more This document contains proposed the Code. These proposed regulations than one class of stock outstanding. amendments to 26 CFR part 1 under replace existing § 1.951–1(e)(2) through 2. Discretionary Power To Allocate section 951(a) of the Code relating to the (4) and are intended to provide Earnings to Different Classes of Stock determination of a United States allocations that are more consistent with shareholder’s pro rata share of a CFC’s the economic interests of shareholders In the case where the allocation of the subpart F income, previously excluded in a CFC. The proposed regulations also amount of a CFC’s earnings and profits subpart F income withdrawn from include a conforming change to § 1.951– for the taxable year between two or investment in less developed countries, 1(e)(1) to reflect the 1993 legislative more classes of stock depends upon the previously excluded subpart F income amendment to section 956 of the Code. exercise of discretion by the board of withdrawn from foreign base company B. Pro Rata Share Rules for CFCs With directors or a similar governing body of shipping operations, and amounts Only One Class of Stock the CFC, proposed § 1.951–1(e)(3)(ii)(A) determined under section 956 provides a new general rule that (collectively, section 951(a)(1) amounts). Proposed § 1.951–1(e)(2) adds an determines the pro rata share of the In general, section 951(a)(1) requires a explicit rule to clarify the method by CFC’s section 951(a)(1) amounts. This United States shareholder that owns which a United States shareholder’s pro new general rule allocates earnings and stock in a CFC to include its pro rata rata share of a CFC’s section 951(a)(1) profits to classes of shares with share of such section 951(a)(1) amounts amounts is determined in the case discretionary distribution rights by in its gross income. Pro rata share is where the CFC has only one class of reference to the relative values of such defined in section 951(a)(2) of the Code stock outstanding. In such a case, each classes of shares on the hypothetical as the amount: United States shareholder’s share of the distribution date. Under this new rule, (A) Which would have been distributed CFC’s section 951(a)(1) amounts shall be the allocation of earnings and profits to with respect to the stock which such determined on a per share basis. each class of stock with discretionary shareholder owns (within the meaning of Example 1 of proposed § 1.951–1(e)(6) distribution rights generally will be the section 958(a)) in such corporation if on the illustrates the application of this rule. amount of earnings and profits that
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bears the same ratio to the total earnings better reflects the economics of the profits were distributed pro rata to its and profits allocated to all classes of investment in a CFC, and thus provides shareholders on the hypothetical stock with discretionary distribution a better mechanism for determining a distribution date, taxpayers may not rights as the value of all shares of such United States shareholder’s pro rata consider any part of the hypothetical class determined on the hypothetical share of a CFC’s section 951(a)(1) distribution as a distribution in distribution date bears to the total value amounts. redemption of stock (even if such of all classes of stock with discretionary Proposed § 1.951–1(e)(3)(ii)(B) redemption would be treated as a distribution rights. This allocation provides that the right to redeem stock distribution of property to which approach is analogous to the approach of a CFC will not be considered a section 301 applies pursuant to section used for allocating adjustments among discretionary distribution right for 302(d)), a distribution in liquidation, or classes of stock for consolidated return purposes of determining a shareholder’s a return of capital. The IRS and purposes. See § 1.1502–32(c). For pro rata share under proposed § 1.951– Treasury Department believe that such guidance with respect to the valuation 1(e)(3)(ii)(A), even if the resulting characterizations of the hypothetical of stock, see, e.g., Framatome redemption would be treated as a distribution would not properly reflect Connectors USA, Inc. v. Comm’r, 118 distribution of property to which a United States shareholder’s economic T.C. 32 (2002) (establishing factors to be section 301 applies pursuant to section interest in the CFC and thus should not used to value stock of a CFC for 302(d). Example 7 of proposed § 1.951– be considered in determining a United purposes of determining whether the 1(e)(6) illustrates the application of this States shareholder’s pro rata share of foreign corporation was a CFC pursuant rule. section 951(a)(1) amounts. Example 7 of to the value test in section 957(a)(2)); 3. Special Allocation Rule for Stock proposed § 1.951–1(e)(6) illustrates the compare Rev. Rul. 59–60, 1959–1 C.B. With Mixed Distribution Rights application of this rule. 237 (valuing privately held stock for estate tax purposes). (See Proposed § 1.951–1(e)(3)(iii) provides E. Restrictions or Other Limitations on § 601.601(d)(2)(ii)(b)). In cases where a specific rule that applies the general Distributions of Earnings and Profits by the value of each share of two or more rules of proposed § 1.951–1(e)(3)(i) and a CFC classes of stock with discretionary (ii)(A) in cases where a class of stock Proposed § 1.951–1(e)(5) provides distribution rights is substantially the provides for both non-discretionary that, except in the case of a same, the allocation of earnings and distribution rights and discretionary governmental restriction described in profits to each class of stock shall be distribution rights (e.g., participating section 964(b) of the Code, a restriction made as if such classes constituted one preferred stock). In such a case, the or other limitation on the distribution of class of stock. Examples 3 and 4 of proposed regulations require separate earnings and profits to a United States proposed § 1.951–1(e)(6) illustrate the allocations of earnings and profits based shareholder by a CFC will not be taken application of these rules. upon the non-discretionary distribution into account for purposes of The general rules of proposed rights and the relative value of the determining the amount of earnings and § 1.951–1(e)(3)(i) and (ii)(A) both apply discretionary distribution rights. profits allocated to a class of stock of a in certain cases where a CFC has more Example 5 of proposed § 1.951–1(e)(6) CFC or the amount of the United States than two classes of stock outstanding. illustrates the application of this rule. shareholder’s pro rata share of the CFC’s Specifically, these rules both apply 4. Dividend Arrearages section 951(a)(1) amounts. This rule where a CFC has at least two classes of applies in all cases, including cases stock with discretionary distribution Proposed § 1.951–1(e)(3)(iv) retains where the restriction or limitation is the rights and at least one class of stock the existing rule with respect to result of an arrangement between with non-discretionary distribution arrearages in dividends with respect to unrelated parties or an arrangement that rights. In general, a United States classes of preferred stock of the CFC. has a non-tax motivated business shareholder’s pro rata share of a CFC’s The earnings and profits for the taxable section 951(a)(1) amounts is determined year shall be attributable to such purpose and economic substance. The by allocating earnings and profits to arrearage only to the extent the arrearage IRS and Treasury Department believe classes of shares with non-discretionary exceeds the earnings and profits that taking into account such distribution rights (e.g., remaining from prior taxable years restrictions or limitations in nonparticipating preferred stock) in beginning after December 31, 1962. determining a United States shareholder’s pro rata share is contrary accordance with the rules of proposed D. Scope of Deemed Distribution paragraph (e)(3)(i), and then allocating to the purpose of section 951(a) and the remaining earnings and profits, if Proposed § 1.951–1(e)(4) sets forth a would not properly reflect a United any, to each remaining class of stock in special rule that provides that no States shareholder’s economic interest accordance with the relative value rules amount shall be considered to be in the CFC. Example 6 of proposed of proposed paragraph (e)(3)(ii)(A). distributed with respect to a particular § 1.951–1(e)(6) illustrates the The new rule in proposed § 1.951– class of stock under proposed § 1.951– application of this rule. 1(e)(3)(ii)(A) is intended to ensure that 1(e)(3) to the extent that such a Proposed § 1.951–1(e)(5)(ii) provides a the determination of a United States distribution would constitute a broad definition of restrictions or other shareholder’s pro rata share of a CFC’s distribution in redemption of stock, a limitations on distributions that are section 951(a)(1) amounts in cases distribution in liquidation, or a return of covered by this rule. Under proposed where the United States shareholder’s capital. This rule would apply § 1.951–1(e)(5)(iii), the right to receive a stock has discretionary distribution notwithstanding the terms of any class preferred dividend is not considered a rights properly reflects the true of stock of the CFC or any arrangement restriction or other limitation on the economics of the shareholder’s involving the CFC. Thus, for purposes of distribution of earnings and profits with investment in the CFC. The IRS and determining the allocation of earnings respect to other classes of stock. Treasury Department believe that in the and profits to a class of stock of a CFC Proposed § 1.951–1(e)(5)(iv) lists some case of multiple classes of stock with based on the earnings and profits which instances where restrictions or other discretionary distribution rights, the would be distributed with respect to limitations will not be taken into relative value of the classes of stock such class of stock if all earnings and account.
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Proposed Effective Date scheduling of the speakers will be stock outstanding, the amount of such These regulations are proposed to prepared after the deadline for receiving corporation’s subpart F income, apply for taxable years of a controlled outlines has passed. Copies of the withdrawal, or amount determined foreign corporation beginning on or after agenda will be available free of charge under section 956, for the taxable year January 1, 2005. at the hearing. taken into account with respect to any Comments are requested on all one class of stock for purposes of Special Analyses aspects of the proposed regulations, paragraph (e)(1) of this section shall be It has been determined that this notice including those aspects for which that amount which bears the same ratio of proposed rulemaking is not a specific requests for comments are set to the total of such subpart F income, significant regulatory action as defined forth above. withdrawal, or amount determined under section 956 for such year as the in Executive Order 12866. Therefore, a Drafting Information regulatory assessment is not required. It earnings and profits which would be The principal author of these also has been determined that section distributed with respect to such class of regulations is Jonathan A. Sambur, 553(b) of the Administrative Procedure stock if all earnings and profits of such Office of Associate Chief Counsel Act (5 U.S.C. chapter 5) does not apply corporation for such year were (International). However, other to these regulations, and because the distributed on the last day of such personnel from the IRS and Treasury regulation does not impose a collection corporation’s taxable year on which Department participated in their of information on small entities, the such corporation is a controlled foreign development. Regulatory Flexibility Act (5 U.S.C. corporation (the hypothetical chapter 6) does not apply. Pursuant to List of Subjects in 26 CFR Part 1 distribution date), bear to the total section 7805(f) of the Code, this notice earnings and profits of such corporation Income taxes, Reporting and for such taxable year. of proposed rulemaking will be recordkeeping requirements. submitted to the Chief Counsel for (ii) Discretionary power to allocate Advocacy of the Small Business Proposed Amendments to the earnings to different classes of stock— Administration for comment on its Regulations (A) In general. Subject to paragraph impact on small business. Accordingly, 26 CFR part 1 is (e)(3)(iii) of this section, the rules of this proposed to be amended as follows: paragraph apply for purposes of Comments and Public Hearing paragraph (e)(1) of this section if the Before these proposed regulations are PART 1—INCOME TAXES allocation of a controlled foreign adopted as final regulations, corporation’s earnings and profits for consideration will be given to any Paragraph 1. The authority citation the taxable year between two or more written (a signed original and eight (8) for part 1 continues to read, in part, as classes of stock depends upon the copies) or electronic comments that are follows: exercise of discretion by that body of submitted timely to the IRS. The IRS Authority: 26 U.S.C. 7805 * * * persons which exercises with respect to and Treasury Department request Par. 2. Section 1.951–1 is amended such corporation the powers ordinarily comments on the clarity of the proposed by: exercised by the board of directors of a rules and how they can be made easier 1. Removing the language ‘‘increase in domestic corporation (discretionary to understand. All comments will be earnings invested in United States distribution rights). First, the earnings available for public inspection and property’’ in paragraph (e)(1) and and profits of the corporation are copying. A public hearing has been adding ‘‘amount determined under allocated under paragraph (e)(3)(i) of scheduled for November 18, 2004, at 10 section 956’’ in its place. this section to any class or classes of a.m. in the auditorium, Internal 2. Revising paragraphs (e)(2) through stock with non-discretionary Revenue Building, 1111 Constitution (e)(4) and adding paragraphs (e)(5) distribution rights (e.g., preferred stock Avenue, NW., Washington, DC. Due to through (e)(7). entitled to a fixed return). Second, the building security procedures, visitors The revisions and additions read as amount of earnings and profits allocated must enter at the Constitution Avenue follows: to a class of stock with discretionary entrance. In addition, all visitors must distribution rights shall be that amount present photo identification to enter the § 1.951–1 Amounts included in gross which bears the same ratio to the building. Because of access restrictions, income of United States shareholders. remaining earnings and profits of such visitors will not be admitted beyond the * * * * * corporation for such taxable year as the immediate entrance area more than 30 (e) * * * value of all shares of such class of stock, minutes before the hearing starts. For (2) One class of stock. If a controlled determined on the hypothetical information about having your name foreign corporation for a taxable year distribution date, bears to the total value placed on the building access list to has only one class of stock outstanding, of all shares of all classes of stock with attend the hearing, see the FOR FURTHER each United States shareholder’s pro discretionary distribution rights of such INFORMATION CONTACT section of this rata share of such corporation’s subpart corporation, determined on the preamble. F income, withdrawal, or amount hypothetical distribution date. For The rules of 26 CFR 601.601(a)(3) determined under section 956, for the purposes of the preceding sentence, in apply to the hearing. Persons who wish taxable year under paragraph (e)(1) of the case where the value of each share to present oral comments at the hearing this section shall be determined by of two or more classes of stock with must submit written or electronic allocating the controlled foreign discretionary distribution rights is comments and an outline of the topics corporation’s earnings and profits on a substantially the same on the to be discussed and the time to be per share basis. hypothetical distribution date, the devoted to each topic (signed original (3) More than one class of stock—(i) allocation of earnings and profits to and eight (8) copies) by November 4, In general. Subject to paragraphs such classes shall be made as if such 2004. A period of 10 minutes will be (e)(3)(ii) and (e)(3)(iii) of this section, if classes constituted one class of stock in allotted to each person for making a controlled foreign corporation for a which each share has the same rights to comments. An agenda showing the taxable year has more than one class of dividends as any other share.
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(B) Special rule for redemption rights. determined under section 956 for the Corp E and Corp H are shareholders of FC1 For purposes of paragraph (e)(3)(ii)(A) of taxable year. for its entire 2004 taxable year. For 2004, FC1 this section, discretionary distribution (ii) Definition. For purposes of this has $100x of earnings and profits, and rights do not include rights to redeem section, a restriction or other limitation income of $100x with respect to which amounts are required to be included in gross shares of a class of stock (even if such on distributions includes any limitation income of United States shareholders under redemption would be treated as a that has the effect of limiting the section 951(a). FC1 makes no distributions distribution of property to which allocation or distribution of earnings during that year. section 301 applies pursuant to section and profits by a controlled foreign (ii) Analysis. FC1 has one class of stock. 302(d)). corporation to a United States Therefore, under paragraph (e)(2) of this (iii) Special allocation rule for stock shareholder, other than currency or section, FC1’s earnings and profits are with mixed distribution rights. For other restrictions or limitations imposed allocated on a per share basis. Accordingly, purposes of paragraphs (e)(3)(i) and under the laws of any foreign country as for the taxable year 2004, Corp E’s pro rata share of FC1’s subpart F income is $60x (60/ (e)(3)(ii) of this section, in the case of a provided in section 964(b). × class of stock with both discretionary 100 $100x) and Corp H’s pro rata share of (iii) Exception for certain preferred FC1’s subpart F income is $40x (40/100 × and non-discretionary distribution distributions. The right to receive $100x). rights, earnings and profits shall be periodically a fixed amount (whether Example 2. (i) Facts. FC2, a controlled allocated to the non-discretionary determined by a percentage of par value, foreign corporation within the meaning of distribution rights under paragraph a reference to a floating coupon rate, a section 957(a), has outstanding 70 shares of (e)(3)(i) of this section and to the stated return expressed in terms of a common stock and 30 shares of 4-percent, discretionary distribution rights under certain amount of dollars or foreign nonparticipating, voting, preferred stock with paragraph (e)(3)(ii) of this section. In currency, or otherwise) with respect to a par value of $10x per share. The common shareholders are entitled to dividends when such a case, paragraph (e)(3)(ii) of this a class of stock the distribution of which section will be applied such that the declared by the board of directors of FC2. is a condition precedent to a further Corp A, a domestic corporation and a United value used in the ratio will be the value distribution of earnings or profits that States shareholder of FC2, within the of such class of stock solely attributable year with respect to any class of stock meaning of section 951(b), owns all of the to the discretionary distribution rights (not including a distribution in partial common shares. Individual B, a foreign of such class of stock. or complete liquidation) is not a individual, owns all of the preferred shares. (iv) Dividend arrearages. For purposes restriction or other limitation on the FC2 and Corp A each use the calendar year of paragraph (e)(3)(i) of this section, if distribution of earnings and profits by a as a taxable year. Corp A and Individual B an arrearage in dividends for prior controlled foreign corporation under are shareholders of FC2 for its entire 2004 taxable year. For 2004, FC1 has $50x of taxable years exists with respect to a paragraph (e)(5) of this section. class of preferred stock of such earnings and profits, and income of $50x (iv) Illustrative list of restrictions and with respect to which amounts are required corporation, the earnings and profits for limitations. Except as provided in the taxable year shall be attributed to to be included in gross income of United paragraph (e)(5)(iii) of this section, States shareholders under section 951(a). In such arrearage only to the extent such restrictions or other limitations on 2004, FC2 distributes as a dividend $12x to arrearage exceeds the earnings and distributions include, but are not Individual B with respect to Individual B’s profits of such corporation remaining limited to— preferred shares. FC2 makes no other from prior taxable years beginning after (A) An arrangement that restricts the distributions during that year. December 31, 1962. ability of the controlled foreign (ii) Analysis. FC2 has two classes of stock, (4) Scope of deemed distribution. and there are no restrictions or other corporation to pay dividends on a class Notwithstanding the terms of any class limitations on distributions within the of shares of the corporation owned by of stock of the controlled foreign meaning of paragraph (e)(5) of this section. If corporation or any agreement or United States shareholders until a the total $50x of earnings were distributed on arrangement with respect thereto, no condition or conditions are satisfied December 31, 2004, $12x would be amount shall be considered to be (e.g., until another class of stock is distributed with respect to Individual B’s preferred shares and the remainder, $38x, distributed with respect to a particular redeemed); (B) A loan agreement entered into by would be distributed with respect to Corp A’s class of stock for purposes of paragraph common shares. Accordingly, under (e)(3) of this section to the extent that a controlled foreign corporation that restricts or otherwise affects the ability paragraph (e)(3)(i) of this section, Corp A’s such distribution would constitute a pro rata share of FC1’s subpart F income is distribution in redemption of stock to make distributions on its stock until $38x for taxable year 2004. (even if such redemption would be certain requirements are satisfied; or Example 3. (i) Facts. The facts are the same treated as a distribution of property to (C) An arrangement that conditions as in Example 2, except that the shares which section 301 applies pursuant to the ability of the controlled foreign owned by Individual B are Class B common section 302(d)), as a distribution in corporation to pay dividends to its shares and the shares owned by Corp A are Class A common shares and the board of liquidation, or as a return of capital. shareholders on the financial condition of the controlled foreign corporation. directors of FC2 may declare dividends with (5) Restrictions or other limitations on respect to one class of stock without distributions—(i) In general. A (6) Examples. The application of this section may be illustrated by the declaring dividends with respect to the other restriction or other limitation on class of stock. The value of the Class A distributions of earnings and profits by following examples: common shares on the last day of FC2’s 2004 a controlled foreign corporation will not Example 1. (i) Facts. FC1, a controlled taxable year is $680x and the value of the be taken into account, for purposes of foreign corporation within the meaning of Class B common shares on that date is $300x. this section, in determining the amount section 957(a), has outstanding 100 shares of The board of directors of FC2 determines that of earnings and profits that shall be one class of stock. Corp E, a domestic FC2 will not make any distributions in 2004 allocated to a class of stock of the corporation and a United States shareholder with respect to the Class A and B common of FC1, within the meaning of section 951(b), shares of FC2. controlled foreign corporation or the owns 60 shares. Corp H, a domestic (ii) Analysis. The allocation of FC2’s amount of the United States corporation and a United States shareholder earnings and profits between its Class A and shareholder’s pro rata share of the of FC1, within the meaning of section 951(b), Class B common shares depends solely on controlled foreign corporation’s subpart owns 40 shares. FC1, Corp E, and Corp H the exercise of discretion by the board of F income, withdrawal, or amounts each use the calendar year as a taxable year. directors of FC2. Therefore, under paragraph
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(e)(3)(ii)(A) of this section, the allocation of of the Class A shares ($8x/share) and the would be allocated to such shares under earnings and profits between the Class A and value of the Class B shares ($2x/share) are paragraphs (e)(3)(i) and (iii) of this section. Class B common shares will depend on the not substantially the same on the last day of The remainder, $80x, would be allocated value of each class of stock on the last day FC3’s taxable year 2004. Therefore for FC3’s under paragraph (e)(3)(ii)(A) and (e)(3)(iii) of of the controlled foreign corporation’s taxable taxable year 2004, under paragraph this section between the preferred and year. On the last day of FC2’s taxable year (e)(3)(ii)(A) of this section, the earnings and common shareholders by reference to the 2004, the Class A common shares had a value profits of FC3 are allocated $60x ($800/ value of the discretionary distribution rights of $9.71x/share and the Class B common $1,000 × $75x) to the Class A shares and $15x of the preferred shares and the value of the shares had a value of $10x/share. Because ($200/$1,000 × $75x) to the Class B shares. common shares. Therefore, the remaining each share of the Class A and Class B For the 2004 taxable year, Corp D’s pro rata $80x of earnings and profits of FC4 are common stock of FC2 has substantially the share of FC3’s subpart F income will be $60x, allocated $16x ($100x/$500x × $80x) to the same value on the last day of FC2’s taxable Corp N’s pro rata share of FC3’s subpart F preferred shares and $64x ($400x/$500x × year, under paragraph (e)(3)(ii)(A) of this income will be $15x and Corp S’s pro rata $80) to the common shares. For its taxable section, for purposes of allocating the share of FC3’s subpart F income will be $25x. year 2004, Corp E’s pro rata share of FC4’s earnings and profits of FC2, the Class A and Example 5. (i) Facts. FC4, a controlled subpart F income will be $36x ($20x + $16x). Class B common shares will be treated as one foreign corporation within the meaning of Example 6. (i) Facts. FC6, a controlled class of stock. Accordingly, for FC2’s taxable section 957(a), has outstanding 40 shares of foreign corporation within the meaning of year 2004, the earnings and profits of FC2 are participating, voting, preferred stock and 200 section 957(a), has outstanding 10 shares of allocated $35x (70/100 × $50x) to the Class shares of common stock. The owner of a common stock and 400 shares of 2-percent A common shares and $15x (30/100 × $50x) share of preferred stock is entitled to an nonparticipating, voting, preferred stock with to the Class B common shares. For its taxable annual dividend equal to 0.5-percent of FC4’s a par value of $1x per share. The common year 2004, Corp A’s pro rata share of FC2’s retained earnings for the taxable year and shareholders are entitled to dividends when subpart F income will be $35x. also is entitled to additional dividends when declared by the board of directors of FC6. Example 4. (i) Facts. FC3, a controlled declared by the board of directors of FC4. Corp M, a domestic corporation and a United foreign corporation within the meaning of The common shareholders are entitled to States shareholder of FC6, within the section 957(a), has outstanding 100 shares of dividends when declared by the board of meaning of section 951(b), owns all of the Class A common stock, 100 shares of Class directors of FC4. The board of directors of common shares. FC7, a foreign corporation B common stock and 10 shares of 5-percent FC4 has discretion to pay dividends to the that is not a controlled foreign corporation nonparticipating, voting preferred stock with participating portion of the preferred shares within the meaning of section 957(a), owns a par value of $50x per share. The value of (after the payment of the preference) and the all of the preferred shares. Corp M and FC7 the Class A shares on the last day of FC3’s common shares. The value of the preferred cause the governing documents of FC6 to 2004 taxable year is $800x. The value of the shares on the last day of FC4’s 2004 taxable provide that no dividends may be paid to the Class B shares on that date is $200x. The year is $600x ($100x of this value is common shareholders until FC6 Class A and Class B shareholders each are attributable to the discretionary distribution cumulatively earns $100,000x of income. FC6 entitled to dividends when declared by the rights of these shares) and the value of the and Corp M each use the calendar year as a board of directors of FC3, and the board of common shares on that date is $400x. Corp taxable year. Corp M and FC7 are directors of FC3 may declare dividends with E, a domestic corporation and United States shareholders of FC6 for all of 2004. For 2004, respect to one class of stock without shareholder of FC4, within the meaning of FC6 has $50x of earnings and profits, and declaring dividends with respect to the other section 951(b), owns all of the preferred income of $50x with respect to which class of stock. Corp D, a domestic corporation shares. FC5, a foreign corporation that is not amounts are required to be included in gross and a United States shareholder of FC3, a controlled foreign corporation within the income of United States shareholders under within the meaning of section 951(b), owns meaning of section 957(a), owns all of the section 951(a). In 2004, FC6 distributes as a all of the Class A shares. Corp N, a domestic common shares. FC4 and Corp E each use the dividend $8x to FC7 with respect to FC7’s corporation and a United States shareholder calendar year as a taxable year. Corp E and preferred shares. FC6 makes no other of FC3, within the meaning of section 951(b), FC5 are shareholders of FC4 for all of 2004. distributions during that year. owns all of the Class B shares. Corp S, a For 2004, FC4 has $100x of earnings and (ii) Analysis. The agreement restricting domestic corporation and a United States profits, and income of $100x with respect to FC6’s ability to pay dividends to common shareholder of FC3, within the meaning of which amounts are required to be included shareholders until FC6 cumulatively earns section 951(b), owns all of the preferred in gross income of United States shareholders $100,000x of income is a restriction or other shares. FC3, Corp D, Corp N, and Corp S each under section 951(a). In 2004, FC4’s retained limitation, within the meaning of paragraph use the calendar year as a taxable year. Corp earnings are equal to its earnings and profits. (e)(5) of this section, and will be disregarded D, Corp N, and Corp S are shareholders of FC4 distributes as a dividend $20x to Corp for purposes of calculating Corp M’s pro rata FC3 for all of 2004. For 2004, FC3 has $100x E that year with respect to Corp E’s preferred share of subpart F income. The non- of earnings and profits, and income of $100x shares. The board of directors of FC4 discretionary distribution rights of the with respect to which amounts are required determines that FC4 will not make any other preferred shares are not a restriction or other to be included in gross income of United distributions during that year. limitation within the meaning of paragraph States shareholders under section 951(a). In (ii) Analysis. The non-discretionary (e)(5) of this section. If the total $50x of 2004, FC3 distributes as a dividend $25x to distribution rights of the preferred shares are earnings were distributed on December 31, Corp S with respect to the preferred shares. not a restriction or other limitation within 2004, $8x would be distributed with respect The board of directors of FC3 determines that the meaning of paragraph (e)(5) of this to FC7’s preferred shares and the remainder, FC3 will make no other distributions during section. The allocation of FC4’s earnings and $42x, would be distributed with respect to that year. profits between its preferred shares and Corp M’s common shares. Accordingly, (ii) Analysis. The distribution rights of the common shares depends, in part, on the under paragraph (e)(3)(i) of this section, Corp preferred shares are not a restriction or other exercise of discretion by the board of M’s pro rata share of FC6’s subpart F income limitation within the meaning of paragraph directors of FC4 because the preferred shares is $42x for taxable year 2004. (e)(5) of this section. Pursuant to paragraph are shares with both discretionary Example 7. (i) Facts. FC8, a controlled (e)(3)(i) of this section, if the total $100x of distribution rights and non-discretionary foreign corporation within the meaning of earnings were distributed on December 31, distribution rights. Paragraph (e)(3)(i) of this section 957(a), has outstanding 40 shares of 2004, $25x would be distributed with respect section is applied first to determine the common stock and 10 shares of 4-percent to Corp S’s preferred shares and the allocation of earnings and profits of FC4 to voting preferred stock with a par value of remainder, $75x would be distributed with the non-discretionary distribution rights of $50x per share. Pursuant to the terms of the respect to Corp D’s Class A shares and Corp the preferred shares. If the total $100x of preferred stock, FC8 has the right to redeem N’s Class B shares. The allocation of that earnings were distributed on December 31, at any time, in whole or in part, the preferred $75x between its Class A and Class B shares 2004, $20x would be distributed with respect stock. FP, a foreign corporation, owns all of depends solely on the exercise of discretion to the non-discretionary distribution rights of the preferred shares. Corp G, a domestic by the board of directors of FC3. The value Corp E’s preferred shares. Accordingly, $20x corporation wholly owned by FP and a
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United States shareholder of FC8, within the section. If the total $1,000x of earnings and additional information on the comment meaning of section 951(b), owns all of the profits were distributed on December 31, period. common shares. FC8 and Corp G each use the 2004, $360x (0.06 × $100x × 60) would be ADDRESSES: calendar year as a taxable year. FP and Corp distributed with respect to FC9’s preferred Submit your comments, G are shareholders of FC8 for all of 2004. For stock and $640x ($1,000x minus $360x) identified by Docket ID No. OAR–2003– 2004, FC8 has $100x of earnings and profits, would be distributed with respect to its 0053, by one of the following methods: and income of $100x with respect to which common stock. Accordingly, of the $500x A. Federal Rulemaking Portal: http:// amounts are required to be included in gross with respect to which amounts are required www.regulations.gov. Follow the on-line income of United States shareholder under to be included in gross income of United instructions for submitting comments. section 951(a). In 2004, FC8 distributes as a States shareholders under section 951(a), B. Agency Web site: http:// × dividend $20x to FP with respect to FP’s $180x ($360x/$1,000x $500x) is allocated www.epa.gov/edocket. EDOCKET, EPA’s preferred shares. FC8 makes no other to the outstanding preferred stock and $320x electronic public docket and comment distributions during that year. ($640x/$1,000x × $500x) is allocated to the (ii) Analysis. Pursuant to paragraph outstanding common stock. Therefore, under system, is EPA’s preferred method for (e)(3)(ii)(B) of this section, the redemption paragraph (e)(3)(i) of this section, Individual receiving comments. Follow the on-line rights of the preferred shares will not be J’s pro rata share of such amounts for 2004 instructions for submitting comments. treated as a discretionary distribution right is $285x [($180x × 15/60)+($320x × 30/40)]. C. E-mail: [email protected] under paragraph (e)(3)(ii)(A) of this section. D. Mail: Air Docket, Clean Air (7) Effective date. These regulations Further, if FC8 were treated as having Interstate Rule, Environmental apply for taxable years of a controlled redeemed any preferred shares under Protection Agency, Mail Code: 6102T, paragraph (e)(3)(i) of this section, the foreign corporation beginning on or after 1200 Pennsylvania Ave., NW., redemption would be treated as a January 1, 2005. distribution to which section 301 applies Washington, DC 20460. Approved: July 16, 2004. under section 302(d) due to FP’s constructive E. Hand Delivery: EPA Docket Center, ownership of the common shares. However, Nancy Jardini, 1301 Constitution Avenue, NW., Room pursuant to paragraph (e)(4) of this section, Acting Deputy Commissioner for Services and B108, Washington, DC. Such deliveries no amount of earnings and profits would be Enforcement. are only accepted during the Docket’s allocated to the preferred shareholders on the [FR Doc. 04–17907 Filed 8–5–04; 8:45 am] normal hours of operation, and special hypothetical distribution date, under BILLING CODE 4830–01–P arrangements should be made for paragraph (e)(3)(i) of this section, as a result deliveries of boxed information. of FC8’s right to redeem, in whole or in part, the preferred shares. FC8’s redemption rights Instructions: Direct your comments to with respect to the preferred shares cannot ENVIRONMENTAL PROTECTION Docket ID No. OAR–2003–0053. The affect the allocation of earnings and profits AGENCY EPA’s policy is that all comments between FC8’s shareholders. Therefore, the received will be included in the public redemption rights are not restrictions or other 40 CFR Parts 51, 72, 73, 74, 77, 78, and docket without change and may be limitations within the meaning of paragraph 96 made available online at http:// (e)(5) of this section. Additionally, the non- www.epa.gov/edocket, including any discretionary distribution rights of the [OAR–2003–0053; FRL–7794–4] personal information provided, unless preferred shares are not restrictions or other the comment includes information limitations within the meaning of paragraph RIN 2060–AL76 (e)(5) of this section. Therefore, if the total claimed to be Confidential Business $100x of earnings were distributed on Availability of Additional Information Information (CBI) or other information December 31, 2004, $20x would be Supporting the Rule To Reduce whose disclosure is restricted by statute. distributed with respect to FP’s preferred Interstate Transport of Fine Particulate Do not submit information that you shares and the remainder, $80x, would be Matter and Ozone (Clean Air Interstate consider to be CBI or otherwise distributed with respect to Corp G’s common Rule) protected through EDOCKET, shares. Accordingly, under paragraph (e)(3)(i) regulations.gov, or e-mail. The EPA of this section, Corp G’s pro rata share of AGENCY: Environmental Protection EDOCKET and the Federal FC8’s subpart F income is $80 for taxable Agency (EPA). regulations.gov Web sites are year 2004. Example 8. (i) Facts. FC9, a controlled ACTION: Notice of data availability for ‘‘anonymous access’’ systems, which foreign corporation within the meaning of the Clean Air Interstate Rule (CAIR). means EPA will not know your identity section 957(a), has outstanding 40 shares of or contact information unless you common stock and 60 shares of 6-percent, SUMMARY: The EPA is providing notice provide it in the body of your comment. nonparticipating, nonvoting, preferred stock that it has placed in the docket for the If you send an e-mail comment directly with a par value of $100x per share. CAIR (Docket No. OAR–2003–0053) to EPA without going through Individual J, a United States shareholder of additional information relevant to the EDOCKET or regulations.gov, your e- FC9, within the meaning of section 951(b), rulemaking, including, among other mail address will be automatically who uses the calendar year as a taxable year, things, a new modeling platform that captured and included as part of the owns 30 shares of the common stock, and 15 EPA proposes to use to support the comment that is placed in the public shares of the preferred stock during tax year proposed rule. This new modeling 2004. The remaining 10 common shares and docket and made available on the 45 preferred shares of FC9 are owned by platform consists of new meteorological Internet. If you submit an electronic Foreign Individual N, a foreign individual. data, updated emissions data, an comment, EPA recommends that you Individual J and Individual N are updated air quality model, and revised include your name and other contact shareholders of FC9 for all of 2004. For procedures for projecting future air information in the body of your taxable year 2004, FC9 has $1,000x of quality concentrations. The additional comment and with any disk or CD-ROM earnings and profits, and income of $500x information also includes revised state you submit. If EPA is unable to read with respect to which amounts are required NOX budgets. your comment and contact you for to be included in gross income of United DATES: States shareholders under section 951(a). Documents were placed in the clarification due to technical (ii) Analysis. The non-discretionary CAIR docket on or about July 27, 2004. difficulties, EPA may not be able to distribution rights of the preferred shares are Comments must be received on or consider your comment. Electronic files not a restriction or other limitation within before August 27, 2004. Please refer to should avoid the use of special the meaning of paragraph (e)(5) of this SUPPLEMENTARY INFORMATION for characters, any form of encryption, and
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be free of any defects or viruses. For of Air Quality Planning and Standards, following address: Roberto Morales, additional information about EPA’s Emissions Modeling and Analysis U.S. EPA, Office of Air Quality Planning public docket visit EDOCKET on-line or Division, Mail Code D205–01, Research and Standards, Mail Code C404–02, see the Federal Register of May 31, 2002 Triangle Park, NC 27711, telephone Research Triangle Park, NC 27711, (67 FR 38102). For additional (919) 541–4330, e-mail at telephone (919) 541–0880, e-mail at instructions on submitting comments, [email protected]. [email protected], Attention go to Unit I of the SUPPLEMENTARY SUPPLEMENTARY INFORMATION: Detailed Docket ID No. OAR–2003–0053. 2. Tips for Preparing Your Comments. INFORMATION section of this document. background information describing the When submitting comments, remember Docket: All documents in the docket rulemaking may be found in two are listed in the EDOCKET index at to: previously published notices: i. Identify the rulemaking by docket http://www.epa.gov/edocket. Although 1. Rule to Reduce Interstate Transport number and other identifying listed in the index, some information is of Fine Particulate Matter and Ozone information (subject heading, Federal not publicly available, i.e., CBI or other (Interstate Air Quality Rule); Proposed information whose disclosure is Register date and page number). Rule 69 FR 4566, January 30, 2004; ii. Follow directions—The agency restricted by statute. Certain other 2. Supplemental Proposal for the Rule may ask you to respond to specific material, such as copyrighted material, to Reduce Interstate Transport of Fine questions or organize comments by is not placed on the Internet and will be Particulate Matter and Ozone (Clean Air publicly available only in hard copy referencing a Code of Federal Interstate Rule); Proposed Rule 69 FR Regulations (CFR) part or section form. Publicly available docket 32684, June 10, 2004. materials are available either number. The information placed in the docket iii. Explain why you agree or disagree; electronically in EDOCKET or in hard is also available for public review on the suggest alternatives and substitute copy at the EPA Docket Center, EPA Web site for this rulemaking at http:// language for your requested changes. West, Room B102, 1301 Constitution www.epa.gov/interstateairquality. If iv. Describe any assumptions and Avenue, NW., Washington, DC. The additional relevant supporting provide any technical information and/ Public Reading Room is open from 8:30 information becomes available in the or data that you used. a.m. to 4:30 p.m., Monday through future, EPA will place this information v. If you estimate potential costs or Friday, excluding legal holidays. The in the docket and make it available for burdens, explain how you arrived at telephone number for the Public public review on this Web site. your estimate in sufficient detail to Reading Room is (202) 566–1744, and allow for it to be reproduced. the telephone number for the Air Docket I. Additional Information on Submitting Comments vi. Provide specific examples to is (202) 566–1742. illustrate your concerns, and suggest FOR FURTHER INFORMATION CONTACT: For A. How Can I Help EPA Ensure That My alternatives. general questions concerning today’s Comments Are Reviewed Quickly? vii. Explain your views as clearly as action, please contact Scott Mathias, To expedite review of your comments possible, avoiding the use of profanity U.S. EPA, Office of Air Quality Planning by Agency staff, you are encouraged to or personal threats. and Standards, Air Quality Strategies send a separate copy of your comments, viii. Make sure to submit your and Standards Division, C539–01, in addition to the copy you submit to comments by the comment period Research Triangle Park, NC 27711, the official docket, to Douglas Solomon, deadline identified. telephone (919) 541–5310, e-mail at U.S. EPA, Office of Air Quality Planning II. Web Site for Rulemaking [email protected]. For legal and Standards, Emissions Modeling and Information questions, please contact Howard J. Analysis Division, Mail Code C304–01, Hoffman, U.S. EPA, Office of General The EPA has also established a Web Research Triangle Park, NC 27711, site for this rulemaking at http:// Counsel, Mail Code 2344A, 1200 telephone (919) 541–4132, e-mail Pennsylvania Avenue, NW., www.epa.gov/interstateairquality. The [email protected]. Web site includes the rulemaking Washington, DC 20460, telephone (202) actions and other related information 564–5582, e-mail at B. What Should I Consider as I Prepare that the public may find useful. [email protected]. For My Comments for EPA? questions regarding the new air quality 1. Submitting CBI. Do not submit this III. New Information Placed in the modeling platform, please contact Norm information to EPA through EDOCKET, Docket Possiel, U.S. EPA, Office of Air Quality regulations.gov or e-mail. Clearly mark The EPA has placed the information Planning and Standards, Emissions the part or all of the information that described below in the CAIR docket Modeling and Analysis Division, D243– you claim to be CBI. For CBI OAR–2003–0053. 01, Research Triangle Park, NC 27711, information in a disk or CD ROM that • CAIR Emissions Inventory telephone (919) 541–5692, e-mail at you mail to EPA, mark the outside of the Overview. This item provides an [email protected]. For questions disk or CD ROM as CBI and then overview of the development of the regarding the emissions inventories of identify electronically within the disk or updated 2001, 2010, and 2015 emissions electric generating units (EGUs) and CD ROM the specific information that is inventories. State budgets, please contact Misha claimed as CBI. In addition to one • Non-Electric Generating Unit (EGU) Adamantiades, U.S. EPA, Office of complete version of the comment that Nonpoint Control Development. This Atmospheric Programs, Clean Air includes information claimed as CBI, a item describes the development of Markets Division, Mail Code 6204J, copy of the comment that does not future base case emissions controls for 1200 Pennsylvania Avenue, NW., contain the information claimed as CBI stationary sources other than utilities. Washington, DC 20460, telephone (202) must be submitted for inclusion in the • Non-EGU Nonpoint Growth 343–9093, e-mail at public docket. Information so marked Development. This item describes the [email protected]. For will not be disclosed except in development of growth factors used to questions regarding the emissions accordance with procedures set forth in project 2001 emissions for future-year inventories for non-EGU sources, please 40 CFR part 2. Send or deliver scenarios for stationary sources other contact Marc Houyoux, U.S. EPA, Office information identified as CBI only to the than utilities.
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• Commercial Marine, Airports, and This report contains a summary by the DEPARTMENT OF HOMELAND Trains Approach. This item describes peer review panel of the December 2003 SECURITY the development of emissions estimates external peer review of CMAQ. Federal Emergency Management for these three nonroad mobile • Community Multiscale Air Quality Agency categories. (CMAQ) Model Documentation • Commercial Marine, Airports, and Trains Data. This file contains the Reference. This item identifies 44 CFR Part 67 supporting data used in developing publically available references for emissions estimates for commercial CMAQ. [Docket No. FEMA–P–7653] marine vessels, airports and trains. • Use of Goddard Earth Observing • Fire Temporal Documentation. This System—CHEMistry (GEOS–CHEM) Proposed Flood Elevation item describes the development of Model for CMAQ Boundary Conditions. Determinations temporal profiles used in estimating This item is a presentation on the AGENCY: Federal Emergency emissions from fires. procedures for developing initial and Management Agency, Emergency • 2001 EGU Documentation. This boundary conditions for the Community Preparedness and Response Directorate, item describes the development of 2001 Multiscale Air Quality (CMAQ) model Department of Homeland Security. emissions estimates for sources in the from the GEOS–CHEM global chemistry ACTION: Proposed rule. utility sector. model. • BEIS3.12 Documentation. This item SUMMARY: Technical information or describes the Biogenic Emissions • Disk drive containing selected model input data sets and model codes comments are requested on the Inventory System (BEIS) version 3.12, proposed Base (1% annual-chance) for the updated CAIR modeling with modifications used in developing Flood Elevations (BFEs) and proposed platform. The data on this disk are also the biogenic emissions estimates. BFE modifications for the communities • Mobile NMIM Documentation. This available for ftp download. Contact listed below. The BFEs and modified item describes the National Mobile Warren Peters at [email protected] BFEs are the basis for the floodplain Inventory Model (NMIM). to access these data. • Mobile NMIM Usage for CAIR. This management measures that the • Configuration of CMAQ for CAIR file describes how the National Mobile community is required either to adopt Annual Simulations. This item Inventory Model (NMIM) was used for or to show evidence of being already in CAIR air quality modeling. identifies the horizontal and vertical effect in order to qualify or remain • NEI 2001 to NEEDS Matches. This configuration of CMAQ as applied by qualified for participation in the file contains data on how utilities EPA for simulating the CAIR emissions National Flood Insurance Program contained in the 2001 National scenarios. (NFIP). Emissions Inventory (NEI) were • EPA_OAQPS CMAQ Evaluation for DATES: The comment period is ninety matched to those in the National 2001. This report describes an (90) days following the second Electric Energy Database System evaluation by the EPA Office of Air publication of this proposed rule in a (NEEDS) 2003 database. Quality Planning and Standards of newspaper of local circulation in each • PM2.5 Emissions Speciation CMAQ, as applied for 2001. community. Updates. This file contains updated • EPA_ORD Evaluation of CMAQ for ADDRESSES: The proposed BFEs for each factors used to divide emissions of PM2.5 2001. This item contains a presentation community are available for inspection into component species and a at the office of the Chief Executive description of the sources of this on the evaluation by the EPA Office of Research and Development of CMAQ, as Officer of each community. The information. respective addresses are listed in the • Emissions Summary State-Sector- applied for 2001. table below. Speciation 2001–2010–2015. This file • Revised Speciated Model contains annual emissions of VOC, CO FOR FURTHER INFORMATION CONTACT: Attainment Test. This item describes the Doug Bellomo, P.E., Hazard SO2, NOX, NH3, PM10 and PM2.5 model revised procedures for the Speciated Identification Section, Emergency species. Data are presented by State and Modeled Attainment Test (SMAT) and by major sector for the 2001 Base Year, Preparedness and Response Directorate, Design Value (DV) averaging technique. Federal Emergency Management 2010 Base Case, and 2015 Base Case, not • including 2010 and 2015 emissions National Electric Energy Database Agency, 500 C Street, SW., Washington, from electric generating units. System (NEEDS), which contains unit DC 20472, (202) 646–2903. • Emissions Summary State-Sector level data used in EPA modeling SUPPLEMENTARY INFORMATION: The 2001–2010–2015. This file contains applications. Federal Emergency Management Agency annual emissions of VOC, CO, SO2, • Correction to State NOX Budgets. makes the final determinations listed NO , NH , and PM . Data are below for the modified BFEs for each X 3 2.5 The EPA may place additional presented by State and by major sector community listed. These modified documents in the docket, and if EPA for the 2001 Base Year, 2010 Base Case, elevations have been published in and 2015 Base Case, not including 2010 does so, EPA will announce their newspapers of local circulation and and 2015 emissions from electric availability by posting a notice on the ninety (90) days have elapsed since that generating units. CAIR Web site http://www.epa.gov/ publication. The Mitigation Division • Report on 2001 MM–5 Simulations. interstateairquality. Director of the Emergency Preparedness This report documents the simulations Dated: July 30, 2004. and Response Directorate has resolved of the Mesoscale Meteorological Model Stephen D. Page, any appeals resulting from this (MM–5) for 2001 and includes an notification. Director, Office of Air Quality Planning and These proposed BFEs and modified evaluation of selected MM–5 output Standards. meteorological data. BFEs, together with the floodplain • Peer Review of the Community [FR Doc. 04–18029 Filed 8–5–04; 8:45 am] management criteria required by 44 CFR Multiscale Air Quality (CMAQ) Model. BILLING CODE 6560–50–P 60.3, are the minimum that are required.
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They should not be construed to mean Regulatory Flexibility Act. The Executive Order 12778, Civil Justice that the community must change any Mitigation Division Director of the Reform. This proposed rule meets the existing ordinances that are more Emergency Preparedness and Response applicable standards of section 2(b)(2) of stringent in their floodplain Directorate certifies that this rule is Executive Order 12778. management requirements. The exempt from the requirements of the List of Subjects in 44 CFR Part 67 community may at any time enact Regulatory Flexibility Act because stricter requirements of its own, or modified BFEs are required by the Flood Administrative practice and pursuant to policies established by other Disaster Protection Act of 1973, 42 procedure, Flood insurance, Reporting Federal, State, or regional entities. U.S.C. 4105, and are required to and recordkeeping requirements. These proposed elevations are used to maintain community eligibility in the Accordingly, 44 CFR part 67 is meet the floodplain management NFIP. No regulatory flexibility analysis proposed to be amended as follows: has been prepared. requirements of the NFIP and are also PART 67—[AMENDED] used to calculate the appropriate flood Regulatory Classification. This insurance premium rates for new proposed rule is not a significant 1. The authority citation for part 67 buildings built after these elevations are regulatory action under the criteria of continues to read as follows: made final, and for the contents in these section 3(f) of Executive Order 12866 of Authority: 42 U.S.C. 4001 et seq.; buildings. September 30, 1993, Regulatory Reorganization Plan No. 3 of 1978, 3 CFR, National Environmental Policy Act. Planning and Review, 58 FR 51735. 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376. This proposed rule is categorically Executive Order 12612, Federalism. excluded from the requirements of 44 This proposed rule involves no policies § 67.4 [Amended] CFR part 10, Environmental that have federalism implications under 2. The tables published under the Consideration. No environmental Executive Order 12612, Federalism, authority of § 67.4 are proposed to be impact assessment has been prepared. dated October 26, 1987. amended as follows:
# Depth in feet above ground *elevation in feet State City/town/county Source of flooding Location *(NGVD) Existing Modified
OH ...... Chagrin Falls (Village) Chagrin River ...... At the downstream corporate limit, ap- *836 *838 Cuyahoga County. proximately 4,735 feet downstream of Miles Road. Just downstream of the corporate limit, None *979 approximately 5,100 feet upstream of the dam. Maps are available for inspection at the Village Hall, 21 W. Washington Street, Chagrin Falls, Ohio. Send comments to Mr. Ben Himes, Chief Administrative Officer, Village of Chagrin Falls, 21 West Washington Street, Chagrin Falls, Ohio 44022. OH ...... Lake County (Unincor- Red Creek ...... Just upstream of CSX Railroad ...... None *677 porated Areas). Approximately 700 feet upstream of Farm None *696 Road...... Red Mill Creek A reach approximately 1,200 feet south None *704 of Norfolk Southern Railroad. Area east of the Main Street and 700 feet None #2 south of Norfolk Southern Railroad. Maps are available for inspection at the Lake County Engineers Office, 550 Blackbrook Road, Painesville, Ohio. Send comments to Mr. Mike Krems, Chief Building Inspector, 27 Woodland Road, Painesville, Ohio 44077.
(Catalog of Federal Domestic Assistance No. DEPARTMENT OF HOMELAND SUMMARY: Technical information or 83.100, ‘‘Flood Insurance.’’) SECURITY comments are requested on the Dated: July 28, 2004. proposed Base (1% annual-chance) David I. Maurstad, Federal Emergency Management Flood Elevations (BFEs) and proposed Agency Acting Director, Mitigation Division, BFE modifications for the communities Emergency Preparedness and Response listed below. The BFEs and modified 44 CFR Part 67 Directorate. BFEs are the basis for the floodplain [FR Doc. 04–17959 Filed 8–5–04; 8:45 am] management measures that the [Docket No. FEMA–P–7655] BILLING CODE 9110–12–P community is required either to adopt or to show evidence of being already in Proposed Flood Elevation effect in order to qualify or remain Determinations qualified for participation in the AGENCY: Federal Emergency National Flood Insurance Program Management Agency, Emergency (NFIP). Preparedness and Response Directorate, Department of Homeland Security. DATES: The comment period is ninety (90) days following the second ACTION: Proposed rule. publication of this proposed rule in a
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newspaper of local circulation in each existing ordinances that are more regulatory action under the criteria of community. stringent in their floodplain Section 3(f) of Executive Order 12866 of ADDRESSES: The proposed BFEs for each management requirements. The September 30, 1993, Regulatory community are available for inspection community may at any time enact Planning and Review, 58 FR 51735. at the office of the Chief Executive stricter requirements of its own, or Executive Order 12612, Federalism. Officer of each community. The pursuant to policies established by other This proposed rule involves no policies respective addresses are listed in the Federal, State, or regional entities. that have federalism implications under table below. These proposed elevations are used to Executive Order 12612, Federalism, meet the floodplain management FOR FURTHER INFORMATION CONTACT: dated October 26, 1987. requirements of the NFIP and are also Doug Bellomo, P.E., Hazard used to calculate the appropriate flood Executive Order 12778, Civil Justice Identification Section, Emergency insurance premium rates for new Reform. This proposed rule meets the Preparedness and Response Directorate, buildings built after these elevations are applicable standards of Section 2(b)(2) Federal Emergency Management made final, and for the contents in these of Executive Order 12778. Agency, 500 C Street, SW., Washington, buildings. List of Subjects in 44 CFR Part 67 DC 20472, (202) 646–2903. National Environmental Policy Act. SUPPLEMENTARY INFORMATION: The This proposed rule is categorically Administrative practice and Federal Emergency Management Agency excluded from the requirements of 44 procedure, flood insurance, reporting makes the final determinations listed CFR part 10, Environmental and record keeping requirements. below for the modified BFEs for each Consideration. No environmental Accordingly, 44 CFR part 67 is community listed. These modified impact assessment has been prepared. proposed to be amended as follows: elevations have been published in Regulatory Flexibility Act. The newspapers of local circulation and Mitigation Division Director of the PART 67—[AMENDED] ninety (90) days have elapsed since that Emergency Preparedness and Response publication. The Mitigation Division Directorate certifies that this rule is 1. The authority citation for part 67 Director of the Emergency Preparedness exempt from the requirements of the continues to read as follows: and Response Directorate has resolved Regulatory Flexibility Act because Authority: 42 U.S.C. 4001 et seq.; any appeals resulting from this modified base flood elevations are Reorganization Plan No. 3 of 1978, 3 CFR, notification. required by the Flood Disaster 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, These proposed BFEs and modified Protection Act of 1973, 42 U.S.C. 4105, 3 CFR, 1979 Comp., p. 376. BFEs, together with the floodplain and are required to maintain community § 67.4 [Amended] management criteria required by 44 CFR eligibility in the NFIP. No regulatory 60.3, are the minimum that are required. flexibility analysis has been prepared. 2. The tables published under the They should not be construed to mean Regulatory Classification. This authority of § 67.4 are proposed to be that the community must change any proposed rule is not a significant amended as follows:
* Elevation in feet (NGVD) Source of flooding and location of referenced elevation existing/modified Communities affected
Red Creek ...... * 696 to * 699 ...... Village of Perry, OH Red Mill Creek ...... * 684 to * 710 ...... Area east of Main Street and approximately 1,300 feet south of Norfolk Southern #2 ...... Railroad. Maps are available for inspection at the Village of Perry Municipal Center, 3758 Center Road, Perry, Ohio. Send comments to The Honorable Lee Lydick, Mayor, Village of Perry, P.O. Box 100, Perry, Ohio 44081.
(Catalog of Federal Domestic Assistance No. DEPARTMENT OF HOMELAND listed below. The BFEs and modified 83.100, ‘‘Flood Insurance.’’) SECURITY BFEs are the basis for the floodplain Dated: July 28, 2004. management measures that the David I. Maurstad, Federal Emergency Management community is required either to adopt Agency Acting Director, Mitigation Division, or to show evidence of being already in effect in order to qualify or remain Emergency Preparedness and Response 44 CFR Part 67 Directorate. qualified for participation in the [FR Doc. 04–17960 Filed 8–5–04; 8:45 am] [Docket No. FEMA–P–7657] National Flood Insurance Program (NFIP). BILLING CODE 9110–12–P Proposed Flood Elevation Determinations DATES: The comment period is ninety (90) days following the second AGENCY: Federal Emergency Management Agency, Emergency publication of this proposed rule in a Preparedness and Response Directorate, newspaper of local circulation in each Department of Homeland Security. community. ACTION: Proposed rule. ADDRESSES: The proposed BFEs for each SUMMARY: Technical information or community are available for inspection comments are requested on the at the office of the Chief Executive proposed Base (1% annual-chance) Officer of each community. The Flood Elevations (BFEs) and proposed respective addresses are listed in the BFE modifications for the communities table below.
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FOR FURTHER INFORMATION CONTACT: pursuant to policies established by other September 30, 1993, Regulatory Doug Bellomo, P.E., Hazard Federal, State, or regional entities. Planning and Review, 58 FR 51735. Identification Section, Emergency These proposed elevations are used to Executive Order 12612, Federalism. Preparedness and Response Directorate, meet the floodplain management This proposed rule involves no policies Federal Emergency Management requirements of the NFIP and are also that have federalism implications under Agency, 500 C Street, SW., Washington, used to calculate the appropriate flood Executive Order 12612, Federalism, DC 20472, (202) 646–2903. insurance premium rates for new dated October 26, 1987. buildings built after these elevations are SUPPLEMENTARY INFORMATION: The Executive Order 12778, Civil Justice made final, and for the contents in these Federal Emergency Management Agency Reform. This proposed rule meets the buildings. makes the final determinations listed applicable standards of section 2(b)(2) of National Environmental Policy Act. Executive Order 12778. below for the modified BFEs for each This proposed rule is categorically community listed. These modified excluded from the requirements of 44 List of Subjects in 44 CFR Part 67 elevations have been published in CFR part 10, Environmental Administrative practice and newspapers of local circulation and Consideration. No environmental ninety (90) days have elapsed since that procedure, flood insurance, reporting impact assessment has been prepared. and record keeping requirements. publication. The Mitigation Division Regulatory Flexibility Act. The Accordingly, 44 CFR part 67 is Director of the Emergency Preparedness Mitigation Division Director of the proposed to be amended as follows: and Response Directorate has resolved Emergency Preparedness and Response any appeals resulting from this Directorate certifies that this rule is PART 67—[AMENDED] notification. exempt from the requirements of the These proposed BFEs and modified Regulatory Flexibility Act because 1. The authority citation for part 67 BFEs, together with the floodplain modified base flood elevations are continues to read as follows: management criteria required by 44 CFR required by the Flood Disaster Authority: 42 U.S.C. 4001 et seq.; 60.3, are the minimum that are required. Protection Act of 1973, 42 U.S.C. 4105, Reorganization Plan No. 3 of 1978, 3 CFR, They should not be construed to mean and are required to maintain community 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, that the community must change any eligibility in the NFIP. No regulatory 3 CFR, 1979 Comp., p. 376. existing ordinances that are more flexibility analysis has been prepared. stringent in their floodplain Regulatory Classification. This § 67.4 [Amended] management requirements. The proposed rule is not a significant 2. The tables published under the community may at any time enact regulatory action under the criteria of authority of § 67.4 are proposed to be stricter requirements of its own, or section 3(f) of Executive Order 12866 of amended as follows:
Elevation in feet* (NGVD) Source of flooding and location of referenced elevation Communities Existing Modified affected
Lateral 1–B/Tributary No. 11: Approximately 50 feet upstream of the confluence with Yocona-Spybuck Drainage Canal ...... None * 205 City of Forrest City. Approximately 2,275 feet upstream of Union Pacific Railroad ...... * 266 * 263 Unincorporated Areas. Spybuck Drainage Canal: Approximately 1,160 feet downstream of Woodroe Holeman Road ...... None * 216 City of Forrest City. Approximately 2,300 feet upstream of Commerce Drive ...... None * 238 Unincorporated Areas. Tributary No. 1: Approximately 975 feet downstream of Woodroe Holeman Road ...... None * 216 City of Forrest City. Approximately 2,470 feet upstream of County Highway 213 ...... None * 238 Unincorporated Areas. Tributary No. 4: At the confluence with Tributary No. 5 ...... None * 222 City of Forrest City. Approximately 60 feet upstream of Dawson Road ...... None * 243 Unincorporated Areas. Tributary No. 5: Approximately 2,090 feet downstream of County Highway 231 ...... None * 218 City of Forrest City. Approximately 350 feet upstream of Entergy Drive ...... None * 239 Unincorporated Areas. Tributary No. 6: Approximately 1,000 feet downstream of County Highway 205 ...... None * 221 City of Forrest City. Approximately 5,330 feet upstream of County Highway 205 ...... None * 239 Unincorporated Areas. Tributary No. 7: Approximately 1,000 feet downstream of County Highway 205 ...... None * 221 City of Forrest City. Approximately 1,075 feet upstream of Turner Circle ...... None * 229 Unincorporated Areas.
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Elevation in feet* (NGVD) Source of flooding and location of referenced elevation Communities Existing Modified affected
Tributary No. 10: At the confluence with Yocona-Spybuck Drainage Canal (MD–1) ...... * 219 * 217 City of Forrest City. Approximately 5,010 feet upstream of County Highway 202/Union Pacific Railroad ...... None * 221 Unincorporated Areas. Tributary No. 12: At the confluence with Lateral 1–B (Tributary No. 11) ...... None * 213 Unincorporated Areas. Approximately 4,035 feet upstream of County Highway 808 ...... None * 221 Tributary No. 13: At the confluence with Tributary No. 12 ...... None * 214 City of Forrest City. Approximately 4,500 feet upstream of the confluence with Tributary No. 12 ...... None * 222 Unincorporated Areas. Tributary No. 14: At the confluence with Tributary No. 12 ...... None * 215 City of Forrest City. Approximately 100 feet upstream of Yocona Road ...... None * 216 Unincorporated Areas. Tributary No. 16: At the confluence with Tributary No. 12 ...... None * 217 City of Forrest City. Approximately 2,920 feet upstream of Yocona Road ...... None * 224 Unincorporated Areas. Tributary No. 17: Approximately 260 feet downstream of the confluence of Tributary No. 18 ...... None * 219 Unincorporated Areas. Approximately 4,150 feet upstream of County Highway 814 ...... None * 229 Tributary No. 18: At the confluence with Tributary No. 17 ...... None * 220 Unincorporated Areas. Approximately 2,850 feet upstream of the confluence with Tributary No. 17 ...... None * 225 Tributary No. 19: At the confluence with Tributary No. 17 ...... None * 223 Unincorporated Areas. Approximately 2,390 feet upstream of the confluence with Tributary No. 17 ...... None * 226
ADDRESSES City of Forrest City Maps are available for inspection at the City Hall, 224 North Rosser, Forrest City, Arkansas. Send comments to The Honorable Larry S. Bryant, City Hall, P.O. Box 1074, 224 North Rosser, Forrest City, Arkansas 72335. St. Francis County (Unincorporated Areas) Maps are available for inspection at St. Francis County Courthouse, 313 South Izard Street, Forrest City, Arkansas. Send comments to The Honorable Carl Cisco, Judge, St. Francis County, 313 Izard Street, Forrest City, Arkansas 72335.
(Catalog of Federal Domestic Assistance No. DEPARTMENT OF THE INTERIOR approximately 8,486 acres (ac) (3,434 83.100, ‘‘Flood Insurance.’’) hectares (ha)) along approximately 113.1 Dated: July 28, 2004. Fish and Wildlife Service stream miles (mi) (182.2 kilometers David I. Maurstad, (km)) fall within the boundaries of the 50 CFR Part 17 Acting Director, Mitigation Division, proposed critical habitat designation. Emergency Preparedness and Response RIN 1018–AJ07 The proposed critical habitat is located Directorate. in Laramie and Platte Counties in [FR Doc. 04–17961 Filed 8–5–04; 8:45 am] Endangered and Threatened Wildlife Wyoming; Kimball County in Nebraska; and Plants; Designation of Critical and Weld County in Colorado. BILLING CODE 9110–12–P Habitat for the Colorado Butterfly Plant DATES: We will accept comments from all interested parties until October 5, AGENCY: Fish and Wildlife Service, 2004. We must receive requests for Interior. public hearings, in writing, at the ACTION: Proposed rule. address shown in the ADDRESSES section by September 20, 2004. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to ADDRESSES: If you wish to comment, designate critical habitat for the you may submit your comments and Colorado butterfly plant (Gaura materials concerning this proposal by neomexicana ssp. coloradensis) any one of several methods: pursuant to the Endangered Species Act 1. You may submit written comments of 1973, as amended (Act). In total, and information to the Field Supervisor,
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U.S. Fish and Wildlife Service, If you wish to comment, you may and imposes huge social and economic Wyoming Field Office, 4000 Airport submit your comments and materials costs. The Service believes that Parkway, Cheyenne, Wyoming 82001. concerning this proposal by any one of additional agency discretion would 2. You may hand-deliver written several methods (see ADDRESSES allow our focus to return to those comments to our Office, at the address section). Please submit Internet actions that provide the greatest benefit given above. comments to to the species most in need of 3. You may send comments by [email protected] in ASCII protection. file format and avoid the use of special electronic mail (e-mail) to Role of Critical Habitat in Actual _ characters or any form of encryption. fw6 [email protected]. Please Practice of Administering and Please also include ‘‘Attn: Gaura see the Public Comments Solicited Implementing the Act section below for file format and other neomexicana ssp. coloradensis’’ in your information about electronic filing. e-mail subject header and your name While attention to and protection of 4. You may fax your comments to and return address in the body of your habitat is paramount to successful 307/772–2358. message. If you do not receive a conservation actions, we have Comments and materials received, as confirmation from the system that we consistently found that, in most well as supporting documentation used have received your Internet message, circumstances, the designation of in the preparation of this proposed rule, contact us directly by calling our critical habitat is of little additional will be available for public inspection, Cheyenne Ecological Services Field value for most listed species, yet it by appointment, during normal business Office at phone number 307/772–2374. consumes large amounts of conservation hours at the Wyoming Field Office, 4000 Please note that the Internet address resources. Sidle (1987) stated, ‘‘Because Airport Parkway, Cheyenne, Wyoming, [email protected] will be the Act can protect species with and telephone 307/772–2374. closed out at the termination of the without critical habitat designation, critical habitat designation may be FOR FURTHER INFORMATION CONTACT: public comment period. redundant to the other consultation Brian Kelly, Field Supervisor, Wyoming Our practice is to make comments, including names and home addresses of requirements of section 7.’’ Currently, Field Office, 4000 Airport Parkway, respondents, available for public review only 445 species or 36 percent of the Cheyenne, Wyoming (telephone 307/ during regular business hours. 1,244 listed species in the United States 772–2374; facsimile 307/772–2358). Individual respondents may request that under the jurisdiction of the Service SUPPLEMENTARY INFORMATION: we withhold their home addresses from have designated critical habitat. We Public Comments Solicited the rulemaking record, which we will address the habitat needs of all listed honor to the extent allowable by law. species through conservation We intend that any final action There also may be circumstances in mechanisms such as listing, section 7 resulting from this proposal will be as which we would withhold from the consultations, the section 4 recovery accurate and as effective as possible. rulemaking record a respondent’s planning process, the section 9 Therefore, comments or suggestions identity, as allowable by law. If you protective prohibitions of unauthorized from the public, other concerned wish us to withhold your name and/or take, section 6 funding to the States, and governmental agencies, the scientific address, you must state this the section 10 incidental take permit community, industry, or any other prominently at the beginning of your process. The Service believes that it is interested party concerning this comment. However, we will not these measures that may make the proposed rule are hereby solicited. consider anonymous comments. We difference between extinction and Comments particularly are sought will make all submissions from survival for many species. concerning: organizations or businesses, and from (1) The reasons any habitat should or Procedural and Resource Difficulties in individuals identifying themselves as Designating Critical Habitat should not be determined to be critical representatives or officials of habitat as provided by section 4 of the organizations or businesses, available We have been inundated with Act, including whether the benefit of for public inspection in their entirety. lawsuits for our failure to designate designation will outweigh any threats to Comments and materials received will critical habitat, and we face a growing the species due to designation; be available for public inspection, by number of lawsuits challenging critical (2) Specific information on the appointment, during normal business habitat determinations once they are amount and distribution of Gaura hours at the above address. made. These lawsuits have subjected the neomexicana ssp. coloradensis habitat, Service to an ever-increasing series of and what habitat is essential to the Designation of Critical Habitat Provides court orders and court-approved conservation of the species and why; Little Additional Protection to Listed settlement agreements, compliance with (3) Land use designations and current Species which now consumes nearly the entire or planned activities in the subject areas In 30 years of implementing the Act, listing program budget. This leaves the and their possible impacts on proposed the Service has found that the Service with little ability to prioritize its critical habitat; designation of statutory critical habitat activities to direct scarce listing (4) Any foreseeable economic, provides little additional protection to resources to the listing program actions national security, or other potential most listed species, while consuming with the most biologically urgent impacts resulting from the proposed significant amounts of available species conservation needs. designation and, in particular, any conservation resources. The Service’s The consequence of the critical impacts on small entities; and present system for designating critical habitat litigation activity is that limited (5) Whether our approach to habitat has evolved since its original listing funds are used to defend active designating critical habitat could be statutory prescription into a process that lawsuits, to respond to Notices of Intent improved or modified in any way to provides little real conservation benefit, to sue relative to critical habitat, and to provide for greater public participation is driven by litigation and the courts comply with the growing number of and understanding, or to assist us in rather than biology, limits our ability to adverse court orders. As a result, listing accommodating public concerns and fully evaluate the science involved, petition responses, the Service’s own comments. consumes enormous agency resources, proposals to list critically imperiled
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species, and final listing determinations herbivores also may have been species viability. This highlights the on existing proposals are all important. importance of maintaining viability of significantly delayed. Little is known about the historical as many local populations as possible The accelerated schedules of court distribution of Gaura neomexicana ssp. through conservation. ordered designations have left the coloradensis. Prior to 1984, no extensive Most of what is known about Gaura Service with almost no ability to documentation of the plant’s range had neomexicana ssp. coloradensis and its provide for adequate public been conducted. In 1979, the total conservation is based on surveys and participation or to ensure a defect-free known population size was estimated in research conducted on populations rulemaking process before making the low hundreds (Dorn 1979). Intensive located on the WAFB in Cheyenne, decisions on listing and critical habitat range-wide surveys from 1984 to 1986 Wyoming, from 1984 to 2003. Floyd and proposals due to the risks associated resulted in the discovery or Ranker (1998) studied three G. n. ssp. with noncompliance with judicially- confirmation of more than 20 coloradensis subpopulations at WAFB, imposed deadlines. This in turn fosters populations in Wyoming, Colorado, and Crow Creek, Diamond Creek, and a second round of litigation in which Nebraska, containing approximately Unnamed Drainage, from 1992 to 1994. those who fear adverse impacts from 20,000 flowering individuals (Marriott The purpose of their study was to critical habitat designations challenge 1987). Additional surveys since 1992 examine population growth, those designations. The cycle of have resulted in the discovery of demographic variability, demographic litigation appears endless, is very additional populations in Wyoming and stage transition dynamics and the expensive, and in the final analysis Colorado (Fertig 1994; Floyd 1995b). probability of population extinction. provides relatively little additional Gaura neomexicana ssp. coloradensis Results suggested that each of the three protection to listed species. is distributed throughout its occupied subpopulations was not stable but The costs resulting from the range into patchy groups of exhibited significant demographic designation include legal costs, the cost subpopulations, some of which are variability both spatially and of preparation and publication of the isolated with little or no possibility of temporally, and population growth designation, the analysis of the interbreeding with other local values were not useful parameters to economic effects and the cost of populations. The spatial structuring of describe long-term population dynamics requesting and responding to public this subspecies is commonly referred to (Floyd and Ranker 1998). comment, and in some cases the costs as a metapopulation. Local populations Annual census of flowering plants at of compliance with the National exist on a patch of suitable habitat, and WAFB began in 1986, and continued Environmental Policy Act (NEPA). None although each has its own, relatively from 1988 to 2003, within of these costs result in any benefit to the independent population dynamics, the subpopulations located at Crow Creek, species that is not already afforded by long-term persistence and stability of Diamond Creek, and Unnamed the protections of the Act enumerated the metapopulation arise from a balance Drainage. Census summaries provided earlier, and they directly reduce the of population extinctions and by Heidel (2004a) based on these data funds available for direct and tangible colonization to unoccupied patches show that subpopulations within these conservation actions. through dispersal events (Hanski 1989, three drainages are characterized by Olivieri et al. 1990, Hastings and dramatic fluctuations in size. Background Harrison 1994). Most populations of Gaura We discuss only those topics directly Balancing local population extinction neomexicana ssp. coloradensis for relevant to the designation of critical with new colonization events is which census or demographic data have habitat in this proposed rule. For more problematic for Gaura neomexicana ssp. been collected exhibit substantial information on Gaura neomexicana ssp. coloradensis since naturally occurring demographic uncertainty. Some of the coloradensis, refer to the final listing disturbance associated with creation of observed temporal variation in rule published in the Federal Register suitable habitat for colonization, such as subpopulations at WAFB has been on October 18, 2000 (65 FR 62302). seasonal floods, has been largely correlated with unpredictable Gaura neomexicana ssp. coloradensis curtailed by water development and environmental factors such as is a perennial herb that lives flood control. Consequently, what once temperature and precipitation (Floyd vegetatively for several years before may have been a dynamic, but stable, and Ranker 1998; Laursen and Heidel bearing fruit once and then dying. metapopulation, may now be 2003; and Heidel 2004a), and spatial Gaura neomexicana ssp. coloradensis characterized by a series of local variation may be attributable, in part, to occurs on subirrigated, alluvial (stream populations with a very low probability fine-scale microhabitat differences in deposited) soils on level or slightly of colonizing new patches, and little light availability or competition with sloping floodplains and drainage opportunity to replace populations that other herbaceous vegetation or noxious bottoms at elevations of 1,524–1,951 go extinct. Biological characteristics that weeds (Munk et al. 2002; Laursen and meters (5,000–6,400 ft). Colonies are may serve to reduce these negative Heidel 2003; and Heidel 2004b). Similar often found in low depressions or along consequences at least in the short-term factors may be correlated with some of bends in wide, active, meandering for G. n. ssp. coloradensis include seed the observed demographic variability in stream channels a short distance banks, delay of stage transition from less-well-studied populations upslope of the actual channel. The plant rosette to flowering adults under poor throughout the subspecies’ range. requires early- to mid-succession habitat conditions, and self- However, even for the well-studied riparian (river bank) habitat. Gaura compatibility. However, the regional subpopulations at WAFB, no clear neomexicana ssp. coloradensis is an persistence of a metapopulation has cause-and-effect relationships have been early successional plant (although been shown to be possible only when found to explain the observed probably not a pioneer) adapted to use the rate of colonization exceeds the fluctuations in population numbers, and stream channel sites that are local rate of extinction (Lande 2002). studies have not accounted for the periodically disturbed. Historically, Consequently, the removal of majority of the observed demographic flooding was probably the main cause of opportunities for future colonization uncertainty. Demographic uncertainty, disturbances in the plant’s habitat, events poses a significant threat to long- or stochasticity, is variability in survival although wildfire and grazing by native term metapopulation persistence and and reproduction of individuals due, at
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least in part, to chance or random events Critical Habitat provides criteria, establishes (Frankel et al. 1995); although some Critical habitat is defined in section 3 procedures, and provides guidance to chance events may actually be of the Act as: (i) The specific areas ensure that decisions made by the deterministic factors that are currently within the geographic area occupied by Service represent the best scientific and not understood (Shaffer 1987). a species, at the time it is listed in commercial data available. It requires Some researchers suggest that accordance with the Act, on which are Service biologists, to the extent demographic uncertainty becomes an found those physical or biological consistent with the Act and with the use important hazard only for small features (I) essential to the conservation of the best scientific and commercial populations (in the range of tens to of the species and (II) that may require data available, to use primary and original sources of information as the hundreds of individuals). While there is special management considerations or basis for recommendations to designate no managerial solution for threats due to protection; and (ii) specific areas critical habitat. stochastic factors, the magnitude of outside the geographic area occupied by effect of these threats decreases as Critical habitat designations do not a species at the time it is listed, upon signal that habitat outside the population size increases (Shaffer 1987; a determination that such areas are Frankel et al. 1995; Lande 2002). designation is unimportant to Gaura essential for the conservation of the neomexicana ssp. coloradensis. Areas Maintaining the maximum number of species. ‘‘Conservation’’ means the use individuals within each population, and outside the critical habitat designation of all methods and procedures that are will continue to be subject to maintaining the maximum number of necessary to bring an endangered or a populations within the Gaura conservation actions that may be threatened species to the point at which implemented under section 7(a)(1), and neomexicana ssp. coloradensis listing under the Act is no longer metapopulation as a whole, may be the to the regulatory protections afforded by necessary. the section 7(a)(2) jeopardy standard only means with which to maintain Critical habitat receives protection long-term species persistence. and the section 9 take prohibition, as under section 7 of the Act through the determined on the basis of the best Of the known populations of Gaura prohibition against destruction or available information at the time of the neomexicana ssp. coloradensis, the vast adverse modification of critical habitat action. We specifically anticipate that majority occur on private lands with regard to actions carried out, federally funded or assisted projects managed primarily for agriculture and funded, or authorized by a Federal affecting listed species outside their livestock. Haying and mowing at certain agency. Section 7 requires consultation designated critical habitat areas may times of the year, water development, on Federal actions that are likely to still result in jeopardy findings in some land conversion for cultivation, result in the destruction or adverse cases. Similarly, critical habitat competition with exotic plants, non- modification of critical habitat. designations made on the basis of the selective use of herbicides, and loss of To be included in a critical habitat best available information at the time of habitat to urban development are the designation, the habitat must first be designation will not control the main threats to these populations ‘‘essential to the conservation of the direction and substance of future (Mountain West Environmental Services species.’’ Critical habitat designations recovery plans, habitat conservation 1985, Marriott 1987, Fertig 1994). identify, to the extent known using the plans, or other species conservation Because of the small, isolated nature best scientific and commercial data planning efforts if new information of populations and few numbers present available, habitat areas that provide available to these planning efforts calls in many of them, the subspecies is essential life-cycle needs of the species for a different outcome. much more susceptible to random (i.e., areas on which are found the events such as fires, insect or disease primary constituent elements, as Methods outbreaks, or other unpredictable events defined at 50 CFR 424.12(b)). As required by the Act and that could easily eliminate local Occupied habitat may be included in regulations (section 4(b)(2) and 50 CFR populations. critical habitat only if the essential 424.12), we used the best scientific and features thereon may require special Previous Federal Actions commercial data available in management or protection. Thus, we do determining areas that contain the On October 18, 2000, Gaura not include areas where existing physical and biological features that are neomexicana ssp. coloradensis was management is sufficient to conserve essential to the conservation of Gaura designated as threatened throughout its the species. As discussed below, such neomexicana ssp. coloradensis. This entire range under the Act (65 FR areas also may be excluded from critical information included data from our files 62302). On October 4, 2000, the Center habitat pursuant to section 4(b)(2). that we used for listing the species; for Biological Diversity and the Our regulations state that, ‘‘The geologic maps, recent biological surveys Biodiversity Legal Foundation filed a Secretary shall designate as critical and reports; information funded by the complaint in the Federal District Court habitat areas outside the geographic area Air Force and other interested parties, for the District of Colorado concerning presently occupied by the species only and discussions with botanists. our failure to designate critical habitat when a designation limited to its The long-term probability of the for the Colorado butterfly plant (Center present range would be inadequate to conservation of Gaura neomexicana ssp. for Biological Diversity, et al. v. Norton, ensure the conservation of the species’’ coloradensis is dependent upon the et al. (Civ. Action No. 00–D–1980)). On (50 CFR 424.12(e)). Accordingly, when protection of existing populations, and March 19, 2001, the Court approved a the best available scientific and the maintenance of ecologic functions settlement agreement requiring us to commercial data do not demonstrate within these sites, including submit a final critical habitat that the conservation needs of the connectivity within and between designation for the Colorado butterfly species so require, we will not designate populations within close geographic plant to the Federal Register on or critical habitat in areas outside the proximity to facilitate pollen flow and before December 31, 2004. For more geographic area occupied by the species. population expansion. G. n. ssp. information on previous Federal actions Our Policy on Information Standards coloradensis is fragmented and patchy concerning G. n. ssp. coloradensis, refer under the Act, published in the Federal in nature and occurs as a to the final listing rule (65 FR 62302). Register on July 1, 1994 (59 FR 34271), metapopulation. The areas we are
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proposing to designate as critical habitat excluded from the refined boundary to designation of critical habitat on private provide some or all of the habitat the extent that we could identify these lands while meeting the needs of components essential for the areas on the map. individual landowners. Working conservation of G. n. ssp. coloradensis. In order to determine the outward cooperatively with private landowners extent of the proposed critical habitat, to protect habitat for G. n. ssp. Criteria Used To Identify Critical botanists were consulted who had coloradensis through conservation Habitat previously conducted field surveys of agreements is the Service’s preferred As previously stated in the Gaura neomexicana ssp. coloradensis approach to protecting the species on Background section of the final listing and who had a good working knowledge private lands. The Service will pursue rule (65 FR 62302, October 18, 2000), of habitat requirements for the species. such agreements to the fullest extent ‘‘Thus, of 26 previously known Based on the information from practicable prior to finalizing critical populations, 9 may be extirpated; 3 are botanists, we are using the outward habitat. If, prior to finalizing the probably small, but have not been extent of the proposed critical habitat as designation of critical habitat, the surveyed since 1992; 4 are still extant, 300 feet (91 meters) from the center of Service determines that the benefits of but declining; and 10 are stable or the stream within a given stream excluding an area subject to one of these increasing.’’ In our delineation of the segment. agreements outweigh the benefits of critical habitat units, we selected areas (3) We eliminated areas that did not including it, the Service will exclude to provide for the conservation of Gaura contain the appropriate vegetation or such from the designation. Currently, neomexicana ssp. coloradensis at the associated native plant species, as well one such agreement is in place. eight sites where all previously known as features such as cultivated agriculture The Service will work with subpopulations are known to occur. fields, housing developments, and other landowners to gain access to private Much of what is known about the areas that are unlikely to contribute to lands to survey for plant populations. specific physical and biological the conservation of Colorado butterfly Most of these populations have not been requirements of G. n. ssp. coloradensis plant. We used geographic features surveyed since 1998, earlier in some is described in the Primary Constituent (ridge lines, valleys, streams, etc.) or cases, and some may now be extirpated. Elements section of this proposed rule. manmade features (roads or obvious The Service is in the process of Our approach to delineating critical land use) that created an obvious conducting surveys that will continue habitat units was applied in the boundary for a unit as unit area through August of 2004. We will further following manner: boundaries. refine the designation based on new (1) We obtained records of Gaura (4) Critical habitat designations were information. neomexicana ssp. coloradensis then described for landowners and the We propose to designate critical distribution compiled by the Wyoming public. We mapped using legal habitat on lands that we have Natural Diversity Database (Wyoming descriptions including township, range, determined are essential to the Natural Diversity Database 2004) and and sections associated with the Public conservation of Gaura neomexicana ssp. from the Colorado Natural Heritage Land Survey System so that private coloradensis. These areas have the Program (Colorado Natural Heritage landowners and the public could see the primary constituent elements described. Program 1995, 2004). Database records proximity of the designation with where While the species was known were received in the form of shape files they reside. historically from several additional formatted for use in ArcView The Service is working with, and will locations in northern Colorado and (Environmental Systems Research, Inc. continue to work with, the Wyoming southeastern Wyoming, these (ESRI)), a computer GIS program. We Stockgrowers Association, the Wyoming populations are believed to be created polygons by overlaying current Association of Conservation Districts, extirpated (Fertig 1994) and are not and historic plant locations from shape the Wyoming Department of included in the proposed designation. files on digital topographic maps. In Agriculture, the Natural Resources Much of the survey data on which other words, we focused on designating Conservation Service in Wyoming and this proposed designation is based units representative of the known Nebraska, and the City of Fort Collins in represents the number of flowering current and historical locations of the Colorado, to develop conservation individuals during one point in time. plant throughout the geographic range agreements with willing landowners to Because of the annual fluctuation in of the subspecies. provide for the conservation of Gaura population size for this species (ranging (2) We then evaluated plant locations neomexicana ssp. coloradensis. These from 200 percent), and because the in relation to potentially suitable habitat agreements will include specific on-the- number of flowering individuals each within drainages on the topographic ground actions to alleviate specific year depends upon local environmental maps. We followed rough boundaries of threats including—allowing the Service factors that vary substantially year to suitable habitat from which we could access to private land to conduct annual year (e.g., precipitation), it is likely that identify potential critical habitat, and monitoring of G. n. ssp. coloradensis other individual plants and then further refined these boundaries populations to evaluate success of subpopulations exist but were not using corresponding Service National management actions under the identified during previous surveys. This Wetland Inventory maps. A more agreement; establishing an adaptive is particularly true for those areas, refined boundary was then created management approach to evaluate which contain the primary constituent digitally using a second GIS program, success of management actions under elements for the species, that occur ArcMap (ESRI). This boundary was then the agreement; and facilitating the between subpopulations. Not only are evaluated in relation to primary collection of data needed for future these areas essential to achieving the constituent elements and adjacent areas recovery of the species. Through long-term conservation goal of containing suitable hydrologic regimes, cooperation and communication protecting the maximum number of soils, and vegetation communities. We between landowners and the Service, populations possible, but they are avoided land areas identified as not such agreements will provide for the essential in maintaining gene flow suitable for G. n. ssp. coloradensis, i.e., conservation needs of G. n. ssp. between populations via pollen flow to those areas that do not contain primary coloradensis above and beyond what maintain, and potentially increase, local constituent elements. Such areas were would be achievable through the population genetic variation.
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In our delineation of the critical located on WAFB for proposed along bends in wide, active, meandering habitat units, we selected areas to designation as critical habitat. stream channels a short distance provide for the conservation of Gaura Designating critical habitat is one upslope of the active channel, and may neomexicana ssp. coloradensis in all mechanism for providing habitat occur at the base of alluvial ridges at the areas where it is known to occur, except protection for Gaura neomexicana ssp. interface between riparian meadows and WAFB (see discussion below on the coloradensis populations. However, the drier grasslands (Fertig 2001). Average WAFB’s Integrated Natural Resources benefits of protecting extant populations annual precipitation within its range is Management Plan (INRMP)). All units through conservation agreements, by 13 to 16 in (33 to 41 cm) primarily in are essential because G. n. ssp. partnering with private landowners on the form of rainfall (Fertig 2000). Soils coloradensis populations exhibit whose property populations occur, may in G. n. ssp. coloradensis habitat are significant demographic uncertainty, well outweigh the benefits of derived from conglomerates, contain very low genetic variation, and designating critical habitat for this sandstones, and tufaceous mudstones have very little opportunity to colonize species. Greater protection results from and siltstones (i.e., derived from spongy, new geographic areas with which to conservation agreements because these porous limestone formed by the balance local extinction events. We agreements address the specific types of precipitation of calcite from the water of believe the proposed designation is of actions (e.g., indiscriminate application streams and springs) of the Tertiary sufficient size to maintain ecological of herbicides; overgrazing; timing of hay White River, Arikaree, and Ogallala processes and to minimize secondary cutting) undertaken by private formations (Fertig 2000). impacts resulting from human activities landowners that may adversely impact Ecological processes that create and and land management practices G. n. ssp. coloradensis or its habitat and maintain Gaura neomexicana ssp. occurring in adjacent areas. We mapped that would not involve a Federal nexus coloradensis habitat are important the units with a degree of precision subject to consultation under section primary constituent elements. Essential commensurate with the available 7(a)(2) of the Act. A review of the habitat components to G. n. ssp. information, the size of the unit, and complete consultation history of G. n. coloradensis occur in areas where past time allotted to complete this proposal. ssp. coloradensis has revealed that none and present hydrological and geological We anticipate that the boundaries of the of the actions undertaken on private processes have created streams, units may be refined based on lands resulting in these threats to the floodplains, and conditions supporting additional information received during species have ever required consultation favorable plant communities. the comment period and after surveys under the Act. Historically, G. n. ssp. coloradensis habitat has been maintained along are completed in August of this year. Primary Constituent Elements Although we are not proposing sites streams by natural flooding cycles that other than where populations are In accordance with section 3(5)(A)(i) periodically scour riparian vegetation, known to occur, we do not mean to of the Act and regulations at 50 CFR rework stream channels and imply that habitat outside the 424.12, in determining which areas to floodplains, and redistribute sediments designation is unimportant or may not propose as critical habitat, we are to create vegetation patterns favorable to be required for recovery of the species. required to base critical habitat G. n. ssp. coloradensis. G. n. ssp. Areas that support newly discovered determinations on the best scientific coloradensis commonly occurs in populations in the future, but are and commercial data available and to communities including Agrostis outside the critical habitat designation, consider those physical and biological stolonifera (redtop) and Poa pratensis will continue to be subject to the features (primary constituent elements) (Kentucky bluegrass) on wetter sites, or applicable prohibitions of section 9 of that are essential to the conservation of Glycyrrhiza lepidota (wild licorice), the Act and the regulatory protections the species, and that may require special Cirsium flodmanii (Flodman’s thistle), afforded by the section 7(a)(2) jeopardy management considerations and Grindelia squarrosa (curlytop standard. In addition, for such protection. These include, but are not gumweed), and Equisetum laevigatum populations discovered on private limited to—space for individual and (smooth scouring rush) on drier sites lands, the Service will consider entering population growth and for normal (Fertig 1994). Both of these habitat types into conservation agreements with the behavior; food, water, air, light, are usually intermediate in moisture landowners similar to the ones minerals, or other nutritional or between wet, streamside communities contemplated for currently known physiological requirements; cover or dominated by Carex spp. (sedges), populations. shelter; sites for breeding, reproduction, Juncus spp. (rushes), and Typha spp. We often exclude non-Federal public and rearing (or development) of (cattails), and dry upland shortgrass lands and private lands that are covered offspring; and habitats that are protected prairie. Where hydrological flows are by an existing operative Habitat from disturbance or are representative of controlled to preclude a natural pattern Conservation Plan (HCP) and executed the historic geographical and ecological of habitat development, and other forms Implementation Agreement (IA) under distributions of a species. of disturbance are curtailed or section 10(a)(1)(B) of the Act from The primary constituent elements for eliminated, a less favorable mature designated critical habitat because the Gaura neomexicana ssp. coloradensis successional stage of vegetation will benefits of exclusion outweigh the include those habitat components develop, resulting in the loss of many of benefits of inclusion as discussed in essential for the biological needs of these plant associates. section 4(b)(2) of the Act. There are no rosette growth and development, flower Hydrological processes, and their HCPs in place for Gaura neomexicana production, pollination, seed set and importance in maintaining the moisture ssp. coloradensis at this time. fruit production, and genetic exchange. regime of habitat preferred by Gaura Department of Defense lands with an G. n. ssp. coloradensis typically lives neomexicana ssp. coloradensis, also approved INRMP also are excluded from and reproduces on subirrigated, stream- have an important direct effect on seed critical habitat. We have approved the deposited soils on level or slightly germination and seedling recruitment. INRMP for WAFB, which addresses sloping floodplains and drainage Analysis by Heidel (2004a) conservation needs of G. n. ssp. bottoms at elevations of 5,000 to 6,400 demonstrated a significant positive coloradensis. Consequently, we did not feet (1,524 to 1,951 meters). Most correlation between census number and consider habitat supporting populations colonies are found in low depressions or net growing season precipitation 2 years
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prior to census. Important direct effects streamside communities dominated by application of herbicides used to control of moisture on G. n. ssp. coloradensis sedges, rushes, and cattails, and dry noxious weeds; preventing habitat establishment and recruitment also have upland shortgrass prairie. degradation caused by plant community been demonstrated by the appearance of (3) Early- to mid-succession riparian succession; and preventing harmful high numbers of new vegetative plants (streambank or riverbank) plant habitat fragmentation from residential within 27 days after a 100–year flood communities that are open and without and urban development that event at WAFB on August 1, 1985 dense or overgrown vegetation detrimentally affects plant-pollinator (Rocky Mountain Heritage Task Force (including hayed fields, grazed pasture, interactions, leads to a decline in 1987 cited in Heidel 2004a). other agricultural lands that are not species reproduction, and increases The long-term availability of favorable plowed or disced regularly, areas that susceptibility to non-native plant Gaura neomexicana ssp. coloradensis have been restored after past aggregate species. While excessive grazing can habitat also depends on impacts of extraction, areas supporting recreation lead to changes in essential habitat drought, fires, windstorms, herbivory, trails, and urban/wildland interfaces). conditions (e.g., increases in soil and other natural events. G. n. ssp. (4) Hydrological and geological temperature resulting in loss of coloradensis requires open, early- to conditions that serve to create and moisture, decreases in plant cover, and mid-succession riparian habitat maintain stream channels, floodplains, increases in non-native species), experiencing periodic disturbance. floodplain benches, and wet meadows managing for appropriate levels of Periodic disturbance is necessary to that support patterns of plant grazing provides an important control competing vegetation, and to communities associated with G. n. ssp. management tool with which to create open, bare ground for seedling coloradensis. maintain open habitat needed by the establishment (Fertig 2001). Salix Existing features and structures species. exigua (coyote willow) and Cirsium within the boundaries of the mapped Proposed Critical Habitat Designation arvense (Canada thistle) may become units, such as buildings, roads, parking locally dominant in G. n. ssp. lots, other paved areas, lawns, other We are proposing eight units as coloradensis habitat that is not urban and suburban landscaped areas, critical habitat for Gaura neomexicana periodically flooded or otherwise regularly plowed or disced agricultural ssp. coloradensis. The critical habitat disturbed, resulting in decline of the areas, and other features not containing areas described below constitute our species. Research has demonstrated any of the primary constituent elements best assessment at this time of the areas negative impacts on G. n. ssp. are not considered critical habitat. essential for the conservation of G. n. coloradensis populations from ssp. coloradensis that may require competition with locally abundant Special Management Considerations or special management. The eight noxious weeds, forbs, and grasses Protections proposed units are: (1) Tepee Ring Creek (Munk et al. 2002, Heidel 2004b). When designating critical habitat, we in Wyoming; (2) Bear Creek East in Based on our knowledge to date, the assess whether the areas determined to Wyoming; (3) Bear Creek West in primary constituent elements for Gaura be essential for conservation may Wyoming; (4) Little Bear Creek/Horse neomexicana ssp. coloradensis consist require special management Creek in Wyoming; (5) Lodgepole Creek of, but are not limited to: considerations or protections. For Gaura West in Wyoming; (6) Lodgepole Creek (1) Subirrigated, alluvial soils on level neomexicana ssp. coloradensis special East in Wyoming and Nebraska; (7) or low-gradient floodplains and management considerations include Borie in Wyoming; and (8) Meadow drainage bottoms at elevations of 5,000 maintaining surface or subsurface water Springs Ranch in Colorado. to 6,400 feet (1,524 to 1,951 meters). flows that provide the essential The approximate area encompassed (2) A mesic moisture regime, hydrological regime that supports the within each proposed critical habitat intermediate in moisture between wet, species; appropriate constraints on unit is shown in Table 1.
TABLE 1.—CRITICAL HABITAT UNITS PROPOSED FOR GAURA NEOMEXICANA SSP. COLORADENSIS
Critical habitat unit Acres Hectares Stream miles
1. Tepee Ring Creek ...... 107 43 1.5 (2.4 km) 2. Bear Creek East ...... 801 324 11.2 (18 km) 3. Bear Creek West ...... 500 202 7.3 (11.8 km) 4. Little Bear Creek/Horse Creek ...... 2,480 1,004 36.1 (58.1 km) 5. Lodgepole Creek West ...... 1,067 432 15.0 (24.2 km) 6. Lodgepole Creek East ...... 1,683 681 24.8 (40 km) 7. Borie ...... 1,141 462 17.2 (27.7 km) 8. Meadow Springs Ranch ...... 707 286 N/A
Total ...... 8,486 3,434 113.1 (182 km)
We present brief descriptions of all is under private ownership. One (palustrine emergent temporarily units, and reasons why they are subpopulation of Gaura neomexicana flooded) wetland intermixed with PEMC essential for the conservation of Gaura ssp. coloradensis has been found along (palustrine emergent seasonally flooded) neomexicana ssp. coloradensis, below. Tepee Ring Creek in the lower SE corner wetland, according to National of T21N R68W Section 2. Habitat Wetlands Inventory terminology (U.S. Unit 1: Tepee Ring Creek occupied by G. n. ssp. coloradensis is Fish and Wildlife Service 1993). Habitat Unit 1 consists of 107 ac (43 ha) along moist meadow along the stream. Habitat containing primary constituent elements 1.5 stream mi (2.4 km) of Tepee Ring along this stream reach throughout this extends throughout this entire reach, Creek in Platte County, Wyoming, and unit is primarily identified as PEMA and it is likely that G. n. ssp.
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coloradensis occurs in Section 1 maximum number of populations supported a large population located in downstream of the subpopulation in possible for future species conservation. habitat with few threats to its good Section 2. This unit is essential to the condition. Unit 3: Bear Creek West conservation of the species because it Reach 3: Habitat within this reach represents the northernmost extent of Unit 3 consists of three stream reaches consists of three types: (1) Seasonally the subspecies’ known range of encompassing a total of 500 ac (202 ha) wet Juncus balticus / Agrostis occurrence, separated by approximately along 7.3 stream mi (11.8 km) within the stolonifera (redtop) / Poa pratensis 25 mi (40.3 km) from the closest Bear Creek drainage in Laramie County, community on subirrigated gravelly- population, and likely contains unique Wyoming. This unit is primarily under sandy soil in low depressions a distance genetic variability not found in other private ownership, but includes some from the current stream channel; (2) populations. Wyoming State lands. streambank terraces of dark-brown Reach 1: Habitat within this reach is loamy clay in dense Helianthus nuttallii Unit 2: Bear Creek East semi-moist meadows on flat benches (Nuttall’s sunflower) / Solidago and streambanks along an intermittent Unit 2 consists of 801 ac (324 ha) canadensis (Canada goldenrod ) / stream. Plants are most abundant in Phleum pratense (timothy) grass along 11.2 stream mi (18 km) of the areas with low thistle density and South Fork of the Bear Creek and the community; and (3) grassy terrace heavily browsed willow, and are absent dominated by Agrostis stolonifera, Poa Bear Creek in Laramie County, from adjacent, ungrazed areas with Wyoming. Colonies of Gaura pratensis, Elymus smithii (wild rye), dense willow thickets (WNDD 2004). and Melilotus albus (white sweetclover) neomexicana ssp. coloradensis have Subpopulations of Gaura neomexicana on brown clay-loam (WNDD 2004). been found throughout the South Fork ssp. coloradensis have been found Populations are small and inside fenced Bear Creek from T19N67W Section 25, throughout this reach in T18N R68W areas where bulls are kept, but much extending northeast approximately 13 Sections 8 and 9. Habitat is primarily more common in surrounding upland mi (21 km) to the far eastern edge of PEMC containing primary constituent sites where grazing is moderate and T19N66W Section 11. This unit is elements and extends through Sections willow and thistle are not well primarily under private ownership but 8, 9, and 4 to the northwest. Proposed established; the plants are less abundant includes some Wyoming State lands. critical habitat on the northern and where growth of snowberry is thick Three main habitat types occur in this eastern end of the unit was extended to (WNDD 2004). The population within unit—(1) hay field adjacent to streams; include Section 4 because: (a) Suitable this reach has been growing in years (2) upper stream banks with snowberry; habitat with primary constituent leading up to the last survey date and and (3) willow thickets (WNDD 2004). elements continues throughout Section is located in habitat in good condition. Much of the habitat in this unit is 4; (b) there is a subpopulation of plants One subpopulation of Gaura mowed for hay. Habitat within this at the northern end of Section 9 very neomexicana ssp. coloradensis has been stream reach is primarily identified as close to Section 4; and (c) Section 4 is found on the eastern edge of T18N PEMC intermixed with PEMA. The downstream of 8 and 9 and it is likely R68W Section 21. Habitat is primarily primary constituent elements extend that these upstream subpopulations PEMA containing primary constituent throughout this entire reach in which have already dispersed seeds into elements and extends from the middle several subpopulations of G. n. ssp. Section 4. This reach is an important of Section 21 through the adjacent coloradensis have been found. While location that has always supported a Section 22 to the east. There is a natural there are no known locations for G. n. large population with good break in habitat approximately in the ssp. coloradensis within Section 36, it is reproduction, and this site has remained center of Section 21 at which point the likely that subpopulations occur there in very good condition with few impacts PEMA habitat changes to scrub-shrub because it is adjacent to, and just compared with other occupied sites. and continues upstream (to the upstream of, Section 25 to the north, Reach 2: Habitat within this reach southwest) through the remainder of where a subpopulation occurs very consists of hummocky banks of loamy Section 21. We did not propose critical close to the section border. Proposed clay soil and gravelly, sloping terraces habitat beyond this natural break. critical habitat on the northern and in semi-moist, closely grazed Poa Proposed critical habitat includes eastern end of the unit was extended to pratensis (Kentucky bluegrass) / Elymus Section 22 to the east because: (a) include T19N R66W Section 12 because: spp. (wild rye) streamside meadow at Suitable habitat with primary (a) suitable habitat with primary the edge of dense Carex aquatilis constituent elements continues constituent elements continues (Nebraska sedge) / Juncus balticus throughout Section 22; (b) the throughout Section 12; (b) there is a (Baltic rush) community (WNDD 2004). subpopulation of plants in Section 21 is subpopulation of plants at the eastern It is likely that grazing maintains open very close to the border of Section 22; end of Section 11 very close to Section habitat for Gaura neomexicana ssp. and (c) Section 22 is downstream of 21 12 from which colonization is likely to coloradensis (WNDD 2004). and it is likely that this upstream have occurred; and (c) Section 12 is Subpopulations of G. n. ssp. subpopulation has dispersed seeds into downstream of several other coloradensis have been found Section 22. populations serving as likely seed throughout this reach in T18N R68W sources. This unit has historically Sections 16 and 17. Habitat is primarily Unit 4: Little Bear Creek/Horse Creek supported a number of G. n. ssp. PEMC containing primary constituent Unit 4 consists of two stream reaches coloradensis populations in a variety of elements and extends through both encompassing a total of 2,480 ac (1,004 habitat types, and is located at the sections. Nimmo Reservoir in Section ha) along 36.1 stream mi (58.1 km) furthest point downstream within the 15, adjacent to Section 16, is likely a within the Little Bear Creek and Horse Bear Creek drainage. Disconnected from barrier to seed dispersal downstream. Creek drainages in Laramie County, other population gene pools, Therefore, proposed critical habitat was Wyoming. This unit is primarily under subpopulations within this unit likely not extended further. This location private ownership, but includes some contain genotypes unique to this represents the uppermost elevation Wyoming State lands. drainage. This unit is essential to the within the species’ known range of Reach 1: Habitat for Gaura overall objective of maintaining the occurrence. Historically it has neomexicana ssp. coloradensis within
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this reach occurs in four main types: (1) banks where vegetation is overgrown by within this unit includes moist Moist hay meadows; (2) wild licorice willow, thistle, sunflower and meadows, streambanks, and hayfields thickets in sandy, dry stream channels; goldenrod from succession. Land within and pastures along the creek, primarily (3) depressions in alluvial meadows this reach is used extensively for hay areas where the land slopes gently down away from the main stream channel; production. Subpopulations located to the creek, creating flat, alluvial and (4) moist meadows and streambanks downstream of Brunyansky Draw are deposits below the surrounding hills on alluvium derived from the Ogallala large and occupy habitat in good (WNDD 2004). Some sites are becoming Formation. Plants appear to be more condition where threats are low (WNDD choked with willows and other abundant in hay meadow sites than 2004). vegetation. Ungrazed habitat west of other habitat types (WNDD 2004). Subpopulations of Gaura Interstate 25 is being invaded by Salix Subpopulations of G. n. ssp. neomexicana ssp. coloradensis have exigua (sandbar willow) and other forbs. coloradensis have been found been found along Horse Creek from Subpopulations of Gaura neomexicana throughout Little Bear Creek from the T17N R67W Section 7 on the west end ssp. coloradensis have been found along southwest end of Unit 4 in T18N R68W of this reach, for approximately 4 mi (6 Lodgepole Creek from T16N 68W Section 36, extending northeast km) to the east into Section 3. There is Section 24 on the western edge of this approximately 12 stream mi (19 km) to an approximate 3-mi (5-km) stretch unit, extending 12 stream mi (19 km) the southwestern corner of T18N R67W encompassing Sections 2, 1, and 6, in east to T15N R66W Section 3. Habitat Section 23. It is likely that which plants have not been found; throughout this stream reach is subpopulations occur within Section 35, however, continuing downstream to the primarily identified as PEMC the section adjacent to, and just east subpopulations have been found in intermixed with PEMA, containing upstream of, Section 36 on Little Bear the following 3 mi (5 km) in T17N primary constituent elements Creek, where a subpopulation resides R66W Sections 5, 4, and 3, as well as throughout its entirety. Therefore, it is very close to the section border. in Section 10 adjacent (to the south) to likely that the plant also occurs in Subpopulations also have been found Section 3. Habitat throughout the Sections 27 and 28 which occur in the along the Paulson Branch of Little Bear majority of the reach is PEMC and middle of the reach, adjacent to sections Creek from T17N R68W Section 2 on the PEMA, intermixed with scrub-shrub upstream and downstream in which southwest end of Unit 4, extending through Sections 2, 1, and 6. It is likely subpopulations have been found, and in northwest approximately 5 stream mi (8 that subpopulations occur within Section 2 on the eastern end just km) to Section 31 where it merges with Sections 2, 1, and 6 since there are downstream of a subpopulation in the Little Bear Creek. Habitat throughout several subpopulations both upstream adjacent Section 3. This unit has Little Bear Creek and the Paulson and downstream of these sections, and supported a large number of small, and Branch stream reaches is primarily habitat with primary constituent a few large, subpopulations over the identified as PEMC intermixed with elements also is present; therefore, these years in a variety of habitat types and PEMA, containing primary constituent sections were included in the critical land management practices. The elements throughout. Proposed critical habitat proposal. Including these number of subpopulations within the habitat on the northern and eastern end sections also is important to maintain variety of habitat may represent a of the unit was extended to include all connection (i.e., gene flow in terms of number of locally selected genotypes of Section 23 because suitable habitat pollen dispersal) between existing under unique conditions, subpopulations upstream and with primary constituent elements providing an important contribution to downstream. continues throughout this section and it the long-term conservation of the Proposed critical habitat was not species. is likely that the subpopulation in the extended beyond the center of Section southwestern corner of this section has 10 on the east end of the reach because Unit 6: Lodgepole Creek East dispersed seeds into the remainder of primary constituent elements are no Unit 6 consists of two stream reaches this section. This reach has supported a longer present because of changes in encompassing a total of 1,683 ac (681 large number of subpopulations with a habitat. Subpopulations have been ha) along 24.8 stream mi (40 km) of moderate to large number of plants over found in Section 16 along a tributary to Lodgepole Creek in Laramie County, the years. Because this reach is Horse Creek. It is likely that other Wyoming, and in Kimball County, reproductively isolated from any others, subpopulations of Gaura neomexicana Nebraska. This unit is primarily under it likely harbors genotypes unique to the ssp. coloradensis also occur private ownership with some Wyoming species that could be important to future downstream of Section 16 closer to its State lands. species persistence. point of merging with Horse Creek, Reach 1: Habitat occupied by Reach 2: Subpopulations occur in since habitat and primary constituent subpopulations within this reach is several habitat types: (a) Open meadow elements are present throughout this sandy and silty loam alluvium along the on the edge of a marshy, spring-fed tributary. Horse Creek is important to creek in mowed and grazed hay fields pond; (b) subirrigated meadows and hay the species because it harbors several and horse pastures. The area is managed fields in a broad alluvial valley among subpopulations throughout many miles for livestock grazing and hay clumps of Poa pratensis, Equisetum spp. of habitat, contributing considerably to production, mowed late in the season (horsetail), and Carex spp. (sedges); and the objective of maximizing the number and used for winter pasture. The largest (c) Solidago spp. (goldenrod ) / of individuals and populations for subpopulation was found on a heavily Glycyrrhiza lepidota (wild licorice ) / species conservation. grazed meadow. Although little impact Schizachyrium scoparium (little from exotic plant species was found in bluestem) community near the creek; Unit 5: Lodgepole Creek West 1997, spraying herbicides for weed and (d) on the edges of willow thickets Unit 5 consists of 1,067 ac (432 ha) control is likely the greatest threat to and semi-moist meadows, extending along 15 stream mi (24.2 km) of habitat at this site (WNDD 2004). into a right-of-way. The species is Lodgepole Creek in Laramie County, Subpopulations of Gaura absent from wet sites dominated by Wyoming. This unit is primarily under neomexicana ssp. coloradensis have Glyceria spp. (mannagrass) and Carex private ownership, but includes some been found along Lodgepole Creek from rostrata (beaked sedge) and from stream Wyoming State lands. Occupied habitat Thompson Reservoir Number 2 in T14N
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R62W Section 4 on the eastern edge of Unit 7: Borie known subpopulation and extend this unit, extending approximately 13 Unit 7 consists of three stream reaches eastward into Section 17. This is the mi (21 km) west to T15N R64W Section encompassing a total of 1,141 ac (462 only population within this stream 27 on the reach’s western edge. Habitat ha) along 17.2 stream mi (27.7 km) along reach, and may harbor locally adapted throughout this stream reach is Diamond Creek, Spring Creek, and Lone genotypes important to the long-term primarily identified as PEMC with Tree Creek in Laramie County, conservation of the species. Reach 3: The habitat within this reach sparse amounts of PEMA, containing Wyoming. This unit is primarily under is described as marginal within a primary constituent elements private ownership, with some Wyoming meadow that is grazed, and includes an throughout its entirety. The only section State lands and lands owned by the city area by a road crossing that is sprayed in which subpopulations have not been of Cheyenne, Wyoming. for weed control (WNDD 2004). located is T15N 63W Section 28, Reach 1: Habitat within this reach is Subpopulations of Gaura neomexicana approximately in the middle of the described as silty loam alluvium along ssp. coloradensis have been found along Diamond Creek and a small reservoir in reach. Because this section contains Lone Tree Creek, from the northwest a residential greenbelt, hayfields, and primary constituent elements and corner of T13N R67W Section 31, to 5 pastures (WNDD 2004). This site is in populations occur both upstream and km (3 mi) upstream to T13N R68W close proximity to a number of roads, a downstream, it is likely that the plant Section 26. Habitat within this reach is dam, and a housing subdivision, and is also occurs here. A natural break in PEMC, containing primary constituent subject to livestock grazing. This habitat type occurs within the elements throughout. Section lines population is confluent with another westernmost Section 27, beyond which provide a readily identifiable boundary population downstream along Diamond primary constituent elements are no for proposed critical habitat on the Creek on WAFB. Hay fields are longer found and subpopulations have western edge of this reach. Habitat not been located, providing a logical intensively plowed and fertilized, and containing primary constituent elements western boundary for proposed critical herbicide has been used in the greenbelt along Lone Tree Creek extends habitat designation. On the eastern to help control a serious thistle problem. downstream to the confluence with Some plant mortality has been observed boundary of this reach, subpopulations Goose Creek within Section 31, and it is due to herbicide spraying. have been found 0.5 mi (0.8 km) likely that plants occupy this reach or Subpopulations of Gaura neomexicana upstream of Thompson Reservoir may do so in the future. The confluence ssp. coloradensis have been found along with Goose Creek provides a readily Number 2, and, because this portion of Diamond Creek from the eastern the reach also contains primary identifiable boundary for proposed boundary of this reach within T14N critical habitat on the eastern edge of constituent elements, plants likely occur R67W Section 33, adjacent to WAFB, throughout this portion of Section 4 as this reach. Little is known about this approximately 3.5 mi (5.6 km) subpopulation that was last surveyed well. Subpopulations have not been southwest to T13N R67W Section 6. found downstream of the reservoir, over two decades ago. However, it is the Subpopulations also have been found only population within this creek which provides a natural eastern along smaller, unnamed tributaries to boundary for the proposed critical drainage and occurs at the southernmost Diamond Creek from the eastern edge of point of the plant’s distribution within habitat. This reach supports some of the T14N 67W Section 32 approximately 2 Wyoming. It is likely that genetic largest populations surveyed, on some mi (3 km) upstream within several small exchange has not occurred with other of the best habitat with the fewest tributaries in Section 31 and T13N populations, and, therefore, that this impacts. R67W Section 6. Habitat throughout this population harbors some unique, locally Reach 2: Habitat within this reach is entire reach is PEMC intermixed with adapted genotypes that may be described as hay meadows with silty PEMA, containing primary constituent important to the species’ persistence. loam alluvium along the creek (WNDD elements throughout. Section boundaries on the western edge of this Unit 8: Meadow Springs Ranch 2004). The site is mowed for hay, (Colorado) sprayed for Canada thistle, and used for reach provide easily identifiable winter grazing. Subpopulations of boundaries, as does WAFB on the Unit 8 consists of 707 ac (286 ha) Gaura neomexicana ssp. coloradensis eastern edge. This reach supports a large within a wet meadow supported by have been found along Lodgepole Creek number of plants within several groundwater within the Meadow from T14N R58W Section 8 in western subpopulations, likely harboring Springs Ranch in Weld County, considerable genetic variation Colorado, under ownership of the City Nebraska, extending west approximately contributing to the long-term of Fort Collins, Colorado. Part of the 4.4 mi (7.1 km) to T14N 60W Section 10 conservation of this species. ranch is used for sewage sludge in Wyoming. One subpopulation was Reach 2: Habitat within this reach is treatment, and part is used for livestock found along Spring Creek approximately described as the edge of a field mowed grazing by a lease holder. Colonies of 0.75 mi (1.2 km) upstream of its for hay (WNDD 2004). One plants have been found throughout the confluence with Lodgepole Creek in subpopulation of Gaura neomexicana grazed, subirrigated wetland meadow. Section 10. Habitat throughout the ssp. coloradensis has been found along Several small groups of Gaura entire reach is primarily identified as Spring Creek within T13N R67W neomexicana ssp. coloradensis have PEMA intermixed with PEMC, Section 18 along the border with been found on Meadow Springs Ranch containing primary constituent elements Section 17 to the east. Habitat (T11N R67W Section 19), approximately throughout. It is likely that the plant throughout both sections is PEMC 0.5 mi (0.8 km) south of Exit #293 on occurs throughout Section 8 in intermixed with PEMA, containing the east frontage road off of Interstate Nebraska, just downstream of primary constituent elements 25. This population occurs subpopulations found within the throughout. Therefore, it is likely that approximately 8 mi (13 km) from the western portion of this section. Similar plants occur within habitat containing southernmost population within to Reach 1, this reach supports some of primary constituent elements upstream Wyoming. This geographically and the larger populations located on some of the known subpopulation within reproductively isolated population of the best habitat. Section 18, as well downstream of the represents the only known naturally-
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occurring population in Colorado. Federal agencies to ensure that activities coloradensis or its critical habitat will Therefore, this population represents a they authorize, fund, or carry out are not require section 7 consultation. Activities unique group of subpopulations at the likely to jeopardize the continued on private or State lands requiring a periphery of the species’ range, and this existence of such a species or to destroy permit from a Federal agency, such as area is considered essential to the or adversely modify its critical habitat. a permit from the Army Corps under conservation of the species. If a Federal action may affect a listed section 404 of the Clean Water Act, a species or its critical habitat, the section 10(a)(1)(B) permit from the Land Ownership responsible Federal agency (action Service, or some other Federal action, The vast majority, approximately 90 agency) must enter into consultation including funding (e.g., Federal percent, of proposed critical habitat is in with us. Through this consultation, the Highway Administration or Federal private ownership. The private lands are action agency ensures that the permitted Emergency Management Agency primarily used for grazing and actions do not destroy or adversely funding), also will continue to be agriculture. Additionally there are small modify critical habitat. subject to the section 7 consultation scattered tracts of State, county and city When we issue a biological opinion process. Federal actions not affecting lands. concluding that a project is likely to listed species or critical habitat and result in the destruction or adverse Effects of Critical Habitat Designation actions on non-Federal and private modification of critical habitat, we also lands that are not federally funded, Section 7 Consultation provide reasonable and prudent authorized, or permitted do not require alternatives to the project, if any are Section 7 of the Act requires Federal section 7 consultation. identifiable. ‘‘Reasonable and prudent agencies, including the Service, to Section 4(b)(8) of the Act requires us alternatives’’ are defined at 50 CFR ensure that actions they fund, authorize, to briefly evaluate and describe in any 402.02 as alternative actions identified or carry out are not likely to destroy or proposed or final regulation that during consultation that can be adversely modify critical habitat. In our designates critical habitat those implemented in a manner consistent regulations at 50 CFR 402.2, we define activities involving a Federal action that with the intended purpose of the action, may destroy or adversely modify such destruction or adverse modification as that are consistent with the scope of the ‘‘a direct or indirect alteration that habitat, or that may be affected by such Federal agency’s legal authority and designation. Activities that may destroy appreciably diminishes the value of jurisdiction, that are economically and critical habitat for both the survival and or adversely modify critical habitat technologically feasible, and that the include those that appreciably reduce recovery of a listed species. Such Director believes would avoid alterations include, but are not limited the value of critical habitat to Gaura destruction or adverse modification of neomexicana ssp. coloradensis. We note to: Alterations adversely modifying any critical habitat. Reasonable and prudent of those physical or biological features that such activities also may jeopardize alternatives can vary from slight project the continued existence of the species. that were the basis for determining the modifications to extensive redesign or habitat to be critical.’’ However, in a Federal agencies already consult with relocation of the project. Costs us on activities in areas currently March 15, 2001, decision of the United associated with implementing a States Court Appeals for the Fifth occupied by the species to ensure that reasonable and prudent alternative are their actions do not jeopardize the Circuit (Sierra Club v. U.S. Fish and similarly variable. Wildlife Service et al., F.3d 434), the continued existence of the species. Regulations at 50 CFR 402.16 require These actions include, but are not court found our definition of adverse Federal agencies to reinitiate modification to be invalid. In response limited to: consultation on previously reviewed (1) Regulation of activities affecting to this decision, we are reviewing the actions in instances where critical waters of the United States by the Army regulatory definition of adverse habitat is subsequently designated and Corps under section 404 of the Clean modification in relation to the the Federal agency has retained Water Act; conservation of the species. discretionary involvement or control (2) Regulation of water flows, Section 7(a) of the Act requires over the action or such discretionary damming, diversion, and channelization Federal agencies, including the Service, involvement or control is authorized by by any Federal agency; to evaluate their actions with respect to law. Consequently, some Federal (3) Road construction and any species that is proposed or listed as agencies may request reinitiation of maintenance, right-of-way designation, endangered or threatened and with consultation or conference with us on and regulation funded or permitted by respect to its critical habitat, if any is actions for which formal consultation the Federal Highway Administration; proposed or designated. Regulations has been completed, if those actions (4) Voluntary conservation measures implementing this interagency may affect designated critical habitat or by private landowners funded by the cooperation provision of the Act are adversely modify or destroy proposed Natural Resources Conservation Service; codified at 50 CFR part 402. Section critical habitat. (5) Licensing of construction of 7(a)(4) of the Act requires Federal We may issue a formal conference communication sites by the Federal agencies to confer with us on any action report if requested by a Federal agency. Communications Commission; that is likely to jeopardize the continued Formal conference reports on proposed (6) Funding of activities by the U.S. existence of a proposed species or result critical habitat contain an opinion that Environmental Protection Agency, in destruction or adverse modification is prepared according to 50 CFR 402.14, Department of Energy, Federal of proposed critical habitat. Conference as if critical habitat were designated. We Emergency Management Agency, reports provide conservation may adopt the formal conference report Federal Highway Administration, or any recommendations to assist the agency in as the biological opinion when the other Federal agency; eliminating conflicts that may be caused critical habitat is designated, if no (7) Permitting of natural gas pipeline by the proposed action. The substantial new information or changes rights-of-way by the Federal Energy conservation recommendations in a in the action alter the content of the Regulatory Commission; and, conference report are advisory. If a opinion (see 50 CFR 402.10(d)). (8) Management and research species is listed or critical habitat is Activities on Federal lands that may activities undertaken on the WAFB by designated, section 7(a)(2) requires affect Gaura neomexicana ssp. the U.S. Department of Defense.
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We consider all critical habitat units Section 318 of fiscal year 2004 including States, local governments, to be occupied by the species based on National Defense Authorization Act conservation organizations, and private the most recent survey data collected for (Pub. L. 108–136) amended section 4 of landowners to develop adequate populations of Gaura neomexicana ssp. the Act. This provision prohibits us management plans that conserve and coloradensis. To ensure that their from designating as critical habitat any protect Gaura neomexicana ssp. actions do not jeopardize the continued lands or other geographical areas owned coloradensis habitat. We found the existence of the species, Federal or controlled by the Department of INRMP provides benefits for Gaura agencies already consult with us on Defense, or designated for its use, that neomexicana ssp. coloradensis. activities in areas currently occupied by are subject to an INRMP prepared under Further, section 4(b)(2) of the Act the species or if the species may be section 101 of the Sikes Act (16 U.S.C. states that critical habitat shall be affected by the action. 670a), if we determine in writing that designated and revised on the basis of the best available scientific data after Application of Section 3(5)(A) and such plan provides a benefit to the species for which critical habitat is taking into consideration the economic 4(a)(3) and Exclusions Under Section impact, national security impact, and 4(b)(2) of the Endangered Species Act proposed for designation. As described above, we identified any other relevant impact of specifying Section 3(5)(A) of the Act defines habitat essential for the conservation of any particular area as critical habitat. critical habitat as the specific areas Gaura neomexicana ssp. coloradensis in An area may be excluded from critical within the geographic area occupied by Laramie and Platte Counties in habitat if it is determined that the the species on which are found those benefits of exclusion outweigh the Wyoming; Kimball County in Nebraska; physical and biological features (I) benefits of specifying a particular area and Weld County in Colorado. We have essential to the conservation of the as critical habitat, unless the failure to examined the INRMP for the WAFB to species and (II) which may require designate such area as critical habitat determine coverage for G. n. ssp. special management considerations and will result in the extinction of the coloradensis. The INRMP identifies protection. Therefore, areas within the species. geographic area occupied by the species management issues related to In our critical habitat designations, we that do not contain the features essential conservation and enhancement of G. n. use both the provisions outlined in for the conservation of the species are ssp. coloradensis and identifies goals sections 3(5)(A) and 4(b)(2) of the Act to not, by definition, critical habitat. and objectives that involve the evaluate those specific areas that are Similarly, areas within the geographic protection of populations and habitat for proposed for designation as critical area occupied by the species that do not this species. Some objectives for habitat and those areas that are require special management also are achieving those goals include: continue subsequently designated in a final rule. not, by definition, critical habitat. To to participate in, and encourage Lands we have found do not meet the determine whether an area requires development of, Cooperative definition of critical habitat under special management, we first determine Agreements and Memorandum of section 3(5)(A) or that we have excluded if the essential features located there Understanding activities with Federal, pursuant to section 4(b)(2) include those generally require special management to State, and local government and support covered by the following types of plans address applicable threats. If those agencies; promote and support the if they provide assurances that the features do not require special scientific study and investigation of conservation measures they outline will management, or if they do in general but federally listed species management, be implemented and effective: (1) not for the particular area in question conservation, and recovery; restrict Legally operative HCPs that cover the because of the existence of an adequate public access in existing and potential species, (2) draft HCPs that cover the management plan or for some other habitat areas; and increase public species and have undergone public reason, then the area does not require education of Federally listed species review and comment (i.e., pending special management. through management actions, the WAFB HCPs), (3) Tribal conservation plans that We consider a current plan to provide Watchable Wildlife Program, and a cover the species, (4) State conservation adequate management or protection if it Prairie Ecosystem Education Center plans that cover the species, and (5) meets three criteria: (1) The plan is (WAFB 2001). Based on the beneficial National Wildlife Refuge System complete and provides a conservation measures for G. n. ssp. coloradensis Comprehensive Conservation Plans. benefit to the species (i.e., the plan must contained in the INRMP for WAFB, we Currently, no legally operative or draft maintain or provide for an increase in have not included this area in the HCPs, Tribal conservation plans, State the species’ population, or the proposed designation of critical habitat conservation plans, or National Wildlife enhancement or restoration of its habitat for Gaura neomexicana ssp. Refuge System Comprehensive within the area covered by the plan); (2) coloradensis pursuant section 4(a)(3) of Conservation Plans cover Gaura the plan provides assurances that the the Act. We will continue to work neomexicana ssp. coloradensis. conservation management strategies and cooperatively with the Department of actions will be implemented (i.e., those the Air Force to assist the WAFB in Economic Analysis responsible for implementing the plan implementing and refining the An analysis of the economic impacts are capable of accomplishing the programmatic recommendations of proposing critical habitat for Gaura objectives, and have an implementation contained in this plan that provide neomexicana ssp. coloradensis is being schedule or adequate funding for benefits to Gaura neomexicana ssp. prepared. We will announce the implementing the management plan); coloradensis. The non-inclusion of availability of the draft economic and (3) the plan provides assurances WAFB demonstrates the important analysis as soon as it is completed, at that the conservation strategies and contributions that approved INRMPs which time we will seek public review measures will be effective (i.e., it have to the conservation of the species. and comment. At that time, copies of identifies biological goals, has As with HCP exclusions, a related the draft economic analysis will be provisions for reporting progress, and is benefit of excluding Department of available for downloading from the of a duration sufficient to implement the Defense lands with approved INRMPs is Internet at http:// plan and achieve the plan’s goals and to encourage continued development of mountainprairie.fws.gov/species/plants/ objectives). partnerships with other stakeholders, cobutterfly/index.htm, or by contacting
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the Wyoming Fish and Wildlife Office Washington DC 20240. You may e-mail draft economic analysis of the proposed directly (see ADDRESSES section). your comments to this address: designation and reopen the public [email protected]. comment period for the proposed Peer Review designation for an additional 30 days. Required Determinations In accordance with our joint policy The Service will include with the notice published in the Federal Register on Regulatory Planning and Review of availability, as appropriate, an initial July 1, 1994 (59 FR 34270), we will seek This document has not been reviewed regulatory flexibility analysis or a the expert opinions of at least three certification that the rule will not have by the Office of Management and appropriate and independent specialists a significant economic impact on a Budget (OMB), in accordance with regarding this proposed rule. The substantial number of small entities Executive Order 12866. The OMB makes purpose of such review is to ensure that accompanied by the factual basis for the final determination of significance our critical habitat designation is based that determination. The Service has under Executive Order 12866. We are on scientifically sound data, concluded that deferring the RFA preparing a draft economic analysis of assumptions, and analyses. We will finding until completion of the draft this proposed action, which will be send these peer reviewers copies of this economic analysis is necessary to meet available for public comment, to proposed rule immediately following the purposes and requirements of the determine the economic consequences publication in the Federal Register. We RFA. Deferring the RFA finding in this will invite these peer reviewers to of designating the specific area as manner will ensure that the Service comment, during the public comment critical habitat. makes a sufficiently informed period, on the specific assumptions and Within these areas, the types of determination based on adequate conclusions regarding the proposed Federal actions or authorized activities economic information and provides the designation of critical habitat. that we have identified as potential necessary opportunity for public We will consider all comments and concerns are listed above in the section comment. information received during the on Section 7 Consultation. comment period on this proposed rule The availability of the draft economic Executive Order 13211 during preparation of a final analysis will be announced in the On May 18, 2001, the President issued rulemaking. Accordingly, the final Federal Register and in local an Executive Order (13211) on decision may differ from this proposal. newspapers so that it is available for regulations that significantly affect public review and comments. energy supply, distribution, and use. Public Hearings Regulatory Flexibility Act (5 U.S.C. 601 Executive Order 13211 requires agencies The Act provides for one or more et seq.) to prepare Statements of Energy Effects public hearings on this proposal, if when undertaking certain actions. This requested. Requests for public hearings Under the Regulatory Flexibility Act proposed rule to designate critical must be made in writing at least 15 days (RFA) (5 U.S.C. 601 et seq., as amended habitat for Gaura neomexicana ssp. prior to the close of the public comment by the Small Business Regulatory coloradensis is not a significant period. We will schedule public Enforcement Fairness Act (SBREFA) of regulatory action under Executive Order hearings on this proposal, if any are 1996), whenever an agency is required 12866, and it is not expected to requested, and announce the dates, to publish a notice of rulemaking for significantly affect energy supplies, times, and places of those hearings in any proposed or final rule, it must distribution, or use. Therefore, this the Federal Register and local prepare and make available for public action is not a significant energy action, newspapers at least 15 days prior to the comment a regulatory flexibility and no Statement of Energy Effects is first hearing. analysis that describes the effects of the required. rule on small entities (i.e., small Clarity of the Rule businesses, small organizations, and Unfunded Mandates Reform Act (2 Executive Order 12866 requires each small government jurisdictions). U.S.C. 1501 et seq.) agency to write regulations and notices However, no regulatory flexibility In accordance with the Unfunded that are easy to understand. We invite analysis is required if the head of the Mandates Reform Act (2 U.S.C. 1501 et your comments on how to make this agency certifies the rule will not have a seq.), the Service makes the following proposed rule easier to understand, significant economic impact on a findings: including answers to questions such as substantial number of small entities. (a) This rule will not produce a the following: (1) Are the requirements The SBREFA amended the RFA to Federal mandate. In general, a Federal in the proposed rule clearly stated? (2) require Federal agencies to provide a mandate is a provision in legislation, Does the proposed rule contain statement of the factual basis for statute or regulation that would impose technical jargon that interferes with the certifying that the rule will not have a an enforceable duty upon State, local, clarity? (3) Does the format of the significant economic impact on a tribal governments, or the private sector proposed rule (grouping and order of substantial number of small entities. and includes both ‘‘Federal the sections, use of headings, At this time, the Service lacks the intergovernmental mandates’’ and paragraphing, and so forth) aid or available economic information ‘‘Federal private sector mandates.’’ reduce its clarity? (4) Is the description necessary to provide an adequate factual These terms are defined in 2 U.S.C. of the notice in the SUPPLEMENTARY basis for the required RFA finding. 658(5)–(7). ‘‘Federal intergovernmental INFORMATION section of the preamble Therefore, the RFA finding is deferred mandate’’ includes a regulation that helpful in understanding the proposed until completion of the draft economic ‘‘would impose an enforceable duty rule? (5) What else could we do to make analysis prepared pursuant to section upon State, local, or tribal governments’’ this proposed rule easier to understand? 4(b)(2) of the Act and Executive Order with two exceptions. It excludes ‘‘a Send a copy of any comments on how 12866. This draft economic analysis will condition of federal assistance.’’ It also we could make this proposed rule easier provide the required factual basis for the excludes ‘‘a duty arising from to understand to Office of Regulatory RFA finding. Upon completion of the participation in a voluntary Federal Affairs, Department of the Interior, draft economic analysis, the Service will program,’’ unless the regulation ‘‘relates Room 7229, 1849 C Street, NW., publish a notice of availability of the to a then-existing Federal program
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under which $500,000,000 or more is discussed above, Federal agencies are identification does not alter where and provided annually to State, local, and currently required to ensure that such what federally sponsored activities may tribal governments under entitlement activity is not likely to jeopardize the occur, it may assist these local authority,’’ if the provision would species, and no further regulatory governments in long-range planning ‘‘increase the stringency of conditions of impacts from this proposed designation (rather than waiting for case-by-case assistance’’ or ‘‘place caps upon, or of critical habitat are anticipated. We section 7 consultations to occur). otherwise decrease, the Federal will, however, further evaluate this Civil Justice Reform Government’s responsibility to provide issue as we conduct our economic funding’’ and the State, local, or tribal analysis and revise this assessment if In accordance with Executive Order governments ‘‘lack authority’’ to adjust appropriate. 12988, the Office of the Solicitor has accordingly. (At the time of enactment, determined that the rule does not Takings these entitlement programs were: unduly burden the judicial system and Medicaid; AFDC work programs; Child In accordance with Executive Order meets the requirements of sections 3(a) Nutrition; Food Stamps; Social Services 12630, the rule does not have significant and 3(b)(2) of the Order. We have Block Grants; Vocational Rehabilitation takings implications. A takings proposed designating critical habitat in State Grants; Foster Care, Adoption implication assessment is not required. accordance with the provisions of the Assistance, and Independent Living; The designation of critical habitat Act. This proposed rule uses standard Family Support Welfare Services; and affects only Federal agency actions. The property descriptions and identifies the Child Support Enforcement.) ‘‘Federal rule will not increase or decrease the primary constituent elements within the private sector mandate’’ includes a current restrictions on private property designated areas to assist the public in regulation that ‘‘would impose an concerning take of Gaura neomexicana understanding the habitat needs of enforceable duty upon the private ssp. coloradensis. Because there is no Gaura neomexicana ssp. coloradensis. sector, except (i) a condition of Federal prohibition of take for this species, and Paperwork Reduction Act of 1995 (44 assistance; or (ii) a duty arising from the fact that critical habitat provides no U.S.C. 3501 et seq.) participation in a voluntary Federal incremental restrictions, we do not program.’’ anticipate that property values will be This rule does not contain any new The designation of critical habitat affected by the proposed critical habitat collections of information that require does not impose a legally binding duty designation. While real estate market approval by OMB under the Paperwork on non-Federal government entities or values may temporarily decline Reduction Act. This rule will not private parties. Under the Act, the only following designation, due to the impose recordkeeping or reporting regulatory effect is that Federal agencies perception that critical habitat requirements on State or local must ensure that their actions do not designation may impose additional governments, individuals, businesses, or destroy or adversely modify critical regulatory burdens on land use, we organizations. An agency may not habitat under section 7. While non- expect any such impacts to be short conduct or sponsor, and a person is not Federal entities who receive Federal term. Additionally, critical habitat required to respond to, a collection of funding, assistance, permits or designation does not preclude information unless it displays a otherwise require approval or development of HCPs. Owners of areas currently valid OMB control number. authorization from a Federal agency for that are included in the designated National Environmental Policy Act an action may be indirectly impacted by critical habitat will continue to have the designation of critical habitat, the opportunity to use their property in It is our position that, outside the legally binding duty to avoid ways consistent with the survival of G. Tenth Circuit, we do not need to destruction or adverse modification of n. ssp. coloradensis. prepare environmental analyses as defined by the NEPA in connection with critical habitat rests squarely on the Federalism Federal agency. Furthermore, to the designating critical habitat under the extent that non-Federal entities are In accordance with Executive Order Act. We published a notice outlining indirectly impacted because they 13132, the rule does not have significant our reasons for this determination in the receive Federal assistance or participate Federalism effects. A Federalism Federal Register on October 25, 1983 in a voluntary Federal aid program, the assessment is not required. In keeping (48 FR 49244). This assertion was Unfunded Mandates Reform Act would with DOI policy, we requested upheld in the courts of the Ninth Circuit not apply; nor would critical habitat information from, and coordinated (Douglas County v. Babbitt, 48 F.3d shift the costs of the large entitlement development of, this proposed critical 1495 (9th Cir. Ore. 1995), cert. denied programs listed above on to State habitat designation with appropriate 116 S. Ct. 698 (1996). However, when governments. State resource agencies in Wyoming, the range of the species includes States (b) We do not believe that this rule Colorado, and Nebraska. The within the Tenth Circuit, such as that of will significantly or uniquely affect designation of critical habitat in areas Gaura neomexicana ssp. coloradensis, small governments. A Small currently occupied by Gaura pursuant to the Tenth Circuit ruling in Government Agency Plan is not neomexicana ssp. coloradensis imposes Catron County Board of Commissioners required. State, city and county lands no additional restrictions to those v. U.S. Fish and Wildlife Service, 75 comprise less than 10 percent of the currently in place and, therefore, has F.3d 1429 (10th Cir. 1996), we will total proposed designation; the other 90 little incremental impact on State and undertake a NEPA analysis for critical percent is in private ownership. Small local governments and their activities. habitat designation and notify the governments will not be affected at all The designation may have some benefit public of the availability of the draft unless they proposed an action to these governments in that the areas environmental assessment for this requiring Federal funds, permits or essential to the conservation of the proposal when it is finished. other authorization. Any such activity species are more clearly defined, and will require that the involved Federal the primary constituent elements of the Government-to-Government agency ensure that the action is not habitat necessary to the survival of the Relationship With Tribes likely to adversely modify or destroy species are specifically identified. While In accordance with the President designated critical habitat. However, as making this definition and Clinton’s memorandum of April 29,
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1994, ‘‘Government-to-Government References Cited 50 of the Code of Federal Regulations, Relations with Native American Tribal A complete list of all references cited as set forth below: Governments’’ (59 FR 22951), Executive in this rulemaking is available upon Order 13175, and the Department of the request from the Field Supervisor, PART 17—[AMENDED] Interior’s manual at 512 DM 2, we Wyoming Field Office (see ADDRESSES 1. The authority citation for part 17 readily acknowledge our responsibility section). to communicate meaningfully with continues to read as follows: Author federally-recognized Tribes on a Authority: 16 U.S.C. 1361–1407; 16 U.S.C. government-to-government basis. We The primary author of this package is 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– have determined that there are no tribal Tyler Abbott (see ADDRESSES section). 625, 100 Stat. 3500; unless otherwise noted. lands essential for the conservation of List of Subjects in 50 CFR Part 17 2. In § 17.12(h), revise the entry for Gaura neomexicana ssp. coloradensis. Endangered and threatened species, Gaura neomexicana ssp. coloradensis Consequently, we have not proposed the Exports, Imports, Reporting and under ‘‘FLOWERING PLANTS’’ to read designation of critical habitat on Tribal recordkeeping requirements, as follows: lands and have not undertaken Transportation. consultation with any federally- § 17.12 Endangered and threatened plants. Proposed Regulation Promulgation recognized Tribes. * * * * * Accordingly, we propose to amend part 17, subchapter B of chapter I, title (h) * * *
Species Historic range Family Status When listed Critical Special Scientific name Common name habitat rules
FLOWERING PLANTS
******* Gaura neomexicana Colorado butterfly U.S.A. (WY, NE, Onagraceae- T 704 17.96(a) NA ssp. coloradensis. plant. CO). Evening Primrose.
*******
3. In § 17.96(a), amend paragraph (a) dense or overgrown vegetation Nimmo Ranch, Pine Bluffs, P O Ranch, by adding an entry for Gaura (including hayed fields, grazed pasture, Round Top Lake) and corresponding neomexicana ssp. coloradensis in other agricultural lands that are not U.S. Fish and Wildlife Service National alphabetical order under Family plowed or disced regularly, areas that Wetlands Inventory maps. Critical Onagraceae to read as follows: have been restored after past aggregate habitat includes areas occupied by extraction, areas supporting recreation Gaura neomexicana ssp. coloradensis § 17.96 Critical habitat—plants. trails, and urban/wildland interfaces). based upon the most current maps of (a) * * * (iv) Hydrological and geological surveyed subpopulations. Critical Family Onagraceae: Gaura conditions that serve to create and habitat also includes adjacent areas, neomexicana ssp. coloradensis maintain stream channels, floodplains, upstream and downstream, containing (Colorado butterfly plant) floodplain benches, and wet meadows suitable hydrologic regimes, soils, and (1) Critical habitat units are depicted that support patterns of plant vegetation communities to allow for for Laramie County, Wyoming; Kimball communities associated with G. n. ssp. seed dispersal between populations and County, Nebraska; and Weld County, coloradensis. maintenance of the seed bank. To ease Colorado, on the maps below. (3) Critical habitat does not include identification of the critical habitat, the (2) The primary constituent elements man-made structures existing on the boundaries follow section lines and of critical habitat for Gaura effective date of this rule and not major geographical features where neomexicana ssp. coloradensis are the containing one or more of the primary feasible. The outward extent of critical habitat components that provide: constituent elements, such as buildings, habitat is 300 feet (91 meters) from the (i) Subirrigated, alluvial soils on level roads, parking lots, other paved areas, center line of the stream edge (as or low-gradient floodplains and lawns, other urban and suburban defined by the ordinary high-water drainage bottoms at elevations of 5,000 landscaped areas, regularly plowed or mark). This amount of land will support to 6,400 feet (1,524 to 1,951 meters). disced agricultural areas. (ii) A mesic moisture regime, (4) The critical habitat is based on the full range of primary constituent intermediate in moisture between wet, U.S. Geological Survey 7.5″ quadrangle elements essential for persistence of G. streamside communities dominated by maps (Borie, Bristol Ridge, Bristol Ridge n. ssp. coloradensis populations and sedges, rushes, and cattails, and dry NE, Burns, Bushnell, Carr West, should adequately protect the plant and upland shortgrass prairie. Cheyenne North, C S Ranch, Double L its habitats from secondary impacts of (iii) Early- to mid-succession riparian Ranch, Durham, Farthing Ranch, nearby disturbance. (streambank or riverbank) plant Hillsdale, Hirsig Ranch, Indian Hill, J H (5) Note: Index Map follows: communities that are open and without D Ranch, Lewis Ranch, Moffett Ranch, BILLING CODE 4310–55–P
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(6) Unit 1: Tepee Ring Creek, Platte the western edge of Sec. 2, T21N R68W, 1, bounded by the southern line of Sec. County, Wyoming. extending downstream including S2 S2 1. (i) This unit consists of 1.5 mi (2.4 of Sec. 2; downstream to SW4SW4 Sec. (ii) Note: Map 1 (Unit 1) follows: km) of Tepee Ring Creek bounded by
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(7) Unit 2: Bear Creek East, Laramie Sec. 36; W2 SW4 Sec. 25; NW4 Sec. 25; 16; SE4SE4SE4 Sec. 9; SW4 Sec. 10; S2 County, Wyoming. NE4 Sec. 25; downstream into T19N NE4 Sec. 10; SW4NE4 Sec. 11; NE4SW4; (i) This unit consists of 11 mi (18 km) R66W, S2 SW4 Sec. 19; N2 SE4 Sec. 19; N2 SE4 Sec. 11; N2 S2 Sec. 12. of the South Fork of the Bear Creek. NW4 Sec. 20; SE4 SW4 Sec. 17; SE4 (ii) Note: Map 2 (Unit 2) follows: Includes: T19N R67W, NW4 NW4 of Sec. 17; S2 NW4 Sec. 16; N2 NE4 Sec.
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(8) Unit 3: Bear Creek West, Laramie SE4NE4 Sec. 8; NW4NW4 Sec. 9; 17; S2 NE4SE4 Sec. 17; NW4SW4 Sec. County, Wyoming. SE4SW4 Sec. 4; S2 SE4 Sec. 4. 16; SE4NW4 Sec. 16; S2 NE4 Sec. 16. (i) Reach 1 consists of 2.9 stream mi (ii) Reach 2 consists of 2.6 stream mi (iii) Reach 3 consists of 1.7 stream mi (4.7 km) of an unnamed south tributary (4.2 km) of the North Fork of the South (2.8 km) of the South Fork Bear Creek. of North Bear Creek in the valley Fork Bear Creek, upstream of Nimmo Includes: T18N R68W, N2 N2 SE4 Sec. between North Bear Creek and the North 21; downstream to S2 NW4 Sec. 22; Reservoir No. 9. Includes: T18N R68W, Fork of the South Fork Bear Creek. NW4SW4NE4 Sec. 22; SE4NW4NE4 SE4SW4 Sec. 17; downstream to Includes: T18N R68W, N2 SW4 Sec. 8; Sec. 22; W2 NE4NE4 Sec. 22. downstream to NW4NW4SE4 Sec. 8; N2SW4SE4 Sec. 17; NW4SE4SE4 Sec. (iv) Note: Map 3 (Unit 3) follows:
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(9) Unit 4: Little Bear Creek/ Horse Paulson Branch includes—T18N R68W, downstream to SE4 Sec. 7; NW4SW4 Creek, Laramie County, Wyoming. N2 SW4 Sec. 2; downstream to S2 NE4 Sec. 8; S2 N2 Sec. 8; S2 N2 Sec. 9; NW4 (i) Reach 1 consists of 15.6 stream mi Sec. 2; N2 Sec. 1; T18N 67W, NW4NW4 Sec. 10; N2 NE4 Sec. 10; S2 S2 SE4 Sec. (25.1 km) of Little Bear Creek, which Sec. 6; SE4SW4 Sec. 31; SE4 Sec. 31. 3; N2 N2 NW4 Sec. 11; S2 Sec. 2; includes approximately 5 stream mi (8 (ii) Reach 2 consists of 36.1 stream mi NW4SW4 Sec. 1; S2 N2 Sec. 1; T17N km) of the Paulson Branch tributary. (58.1 km) of Horse Creek, including R66W, S2 NW4 Sec. 6; downstream to Little Bear Creek includes: T18N R68W, approximately 2.5 stream mi (4.0 km) of N2 SE4 Sec. 6; NW4SW4 Sec. 5; NW4NW4SW4 Sec. 35; downstream to an unnamed tributary entering from the SE4NW4 Sec. 5; SW4NE4 Sec. 5; N2 N2 Sec. 35; N2 Sec. 36. T18N R67W, N2 south just downstream of Brunyansky SE4 Sec. 5; N2 S2 Sec. 4; S2 NE4 Sec. Sec. 31; downstream to N2 SW4 Sec. 32; Draw; and approximately 1.0 mi (1.6 4; NW4SW4 Sec. 3; S2 N2 Sec. 3; N2 NE4 Sec. 32; NW4NW4NW4 Sec. 33; S2 km) of an unnamed tributary entering Sec. 28; NW4SW4 Sec. 27; S2 SE4NW4 on the far eastern end just east of, and SE4 Sec. 3; W2 SW4 Sec. 2; NE4 Sec. Sec. 27; NE4 Sec. 27; SW4 Sec. 28; parallel to, Indian Hill Road. Includes— 10. SE4SE4NW4 Sec. 28; NE4 Sec. 28. T17N R67W, S2 SW4 Sec. 7; (iii) Note: Map 4 (Unit 4) follows:
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(10) Unit 5: Lodgepole Creek West, 19; S2 N2 Sec. 20; N2 S2 Sec. 20; N2 Sec. 32; SW4SW4 Sec. 33; SE4SE4 Sec. Laramie County, Wyoming. SW4 Sec. 21; W2 SE4 Sec. 21; N2 NE4 33; S2 SW4 Sec. 34; T15N R66W, N2 N2 (i) This unit consists of approximately Sec. 28; W2 NW4 Sec. 27; N2 S2 Sec. Sec. 4; downstream to NE4NW4 Sec. 3; 15 stream mi (24 km) west along 27; SW4NE4 Sec. 27; S2 Sec. 26; S2 N2 NE4 Sec. 3; NW4 Sec. 2; SE4 Sec. Lodgepole Creek from State highway 85. SW4 Sec. 25; N2 NE4 Sec. 36; T16N 2. Includes: T16N R68W, N2 Sec. 24; R66W, N2 Sec. 31; downstream to (ii) Note: Map 5 (Unit 5) follows: downstream to T16N R67W, S2 N2 Sec. SW4NW4 Sec. 32; SW4 Sec. 32; S2 SE4
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(11) Unit 6: Lodgepole Creek East, NE4NE4SE4 Sec. 30; N2 SW4 Sec. 29; includes approximately 1.0 stream mi Laramie County, Wyoming and Kimball SE4SE4NW4 Sec. 29; S2 NE4 Sec. 29; S2 (1.6 km) of Spring Creek in Wyoming, County, Nebraska. Sec. 28; S2 S2 Sec. 27; N2 N2 Sec. 34; west of the point of merging with (i) Reach 1 consists of 16.9 mi (27.2 N2 N2 Sec. 35; S2 SE4SE4 Sec. 26; S2 Lodgepole Creek. In Wyoming, includes: km) of Lodgepole Creek from S2 Sec. 25; T15N R62W, SW4SW4 Sec. T14N R60W, N2 NW4 Sec. 10; approximately 3 mi (5 km) northwest of 30; downstream to N2 Sec. 31; SW4 Sec. downstream to NW4NE4 Sec. 10; S2 S2 the town of Hillsdale on the west end 32; T14N R62W, NE4NE4NW4 Sec. 5; SE4 Sec. 3; SW4SW4 Sec. 2; NE4NW4 of the reach, downstream to Thomas downstream to N2 NE4 Sec. 5; NW4 Sec. 11. Reservoir No. 2, approximately 2.5 mi Sec. 4; SW4SW4NE4 Sec. 4; S2 Sec. 4. (4.0 km) northeast of the town of Burns. (ii) Reach 2 consists of 1.4 mi (2.3 km) (iii) In Nebraska, includes: T14N Includes: T15N R64W, NE4SW4 Sec. 27; of Lodgepole Creek in Wyoming from R59W, N2 N2 SE4 Sec. 11; downstream downstream to N2 N2 SE4 Sec. 27; S2 north of the town of Pine Bluffs to S2 S2 NE4 Sec. 11; S2 S2 NW4 Sec. S2 NE4 Sec. 27; N2 S2 Sec. 26; S2 S2 extending downstream approximately 12; S2 Sec. 12. T14N R58W, S2 Sec. 7; N2 Sec. 26; S2 N2 Sec. 25; NW4SW4 5.5 stream mi (8.9 km) beyond the downstream to S2 Sec. 8. Sec. 25; N2 N2 SE4 Sec. 25; T15N Wyoming State line into Kimball (iv) Note: Map 6 (Unit 6) follows: R63W, S2 N2 Sec. 30; downstream to County, Nebraska. This reach also
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(12) Unit 7: Borie, Laramie County, upstream to NW4NW4SW4 Sec. 5; S2 unnamed tributary to the north of Lone Wyoming. Sec. 6. Tree Creek. Includes: T13N R68W, N2 (i) Reach 1 consists of 9.4 stream mi (ii) Reach 2 consists of 2.5 stream mi NE4 Sec. 26; downstream to (15.1 km) along Diamond Creek west of (4.0 km) of Spring Creek. Includes: NE4NE4NW4 Sec. 26; N2 Sec. 25; SE4 F.E. Warren Air Force Base and other T13N R67W, N2 S2 Sec. 18; Sec. 25; T13N R67W, NW4 Sec. 31; smaller tributaries merging from the downstream to N2 S2 Sec. 17; SW4NW4 downstream to NE4SW4 Sec. 31. north. Includes: T14N R67W, N2 Sec. Sec. 17. 33; upstream to NW4SW4 Sec. 33; S2 (iii) Reach 3 consists of 4.4 stream mi (iv) Note: Map 7 (Unit 7) follows: NE4 Sec. 32; E2 SE4 Sec. 32; SW4 Sec. (7.1 km) of Lone Tree Creek, and 32; S2 Sec. 31; T13N R67W, N2 Sec. 5; approximately 1.0 mi (1.6 km) of an
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(13) Unit 8: Meadow Springs Ranch, Weld County, Colorado. Includes: T11N Sec. 30; W2 NW4 Sec. 29; SW4 Sec. 29; Weld County, Colorado. R68W, E2SE4 Sec. 24; NW4NW4 Sec 25; SW4SE4 Sec. 29. (i) This unit consists of 707 ac (286 T11N R67W, SW4 Sec. 19; S2 SE4 Sec. (ii) Note: Map 8 (Unit 8) follows: ha) within the Meadow Springs Ranch, 19; N2 Sec. 30; SE4 Sec. 30; NE4SW4
* * * * * Dated: July 29, 2004. [FR Doc. 04–17576 Filed 8–5–04; 8:45 am] Craig Manson, BILLING CODE 4310–55–C Assistant Secretary for Fish and Wildlife and Parks.
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Notices Federal Register Vol. 69, No. 151
Friday, August 6, 2004
This section of the FEDERAL REGISTER DEPARTMENT OF AGRICULTURE Comments Must Be Received On or contains documents other than rules or Before: September 5, 2004. proposed rules that are applicable to the Forest Service ADDRESSES: Committee for Purchase public. Notices of hearings and investigations, From People Who Are Blind or Severely committee meetings, agency decisions and Notice of Resource Advisory Disabled, Jefferson Plaza 2, Suite 10800, rulings, delegations of authority, filing of Committee Meeting petitions and applications and agency 1421 Jefferson Davis Highway, statements of organization and functions are AGENCY: Lassen Resource Advisory Arlington, Virginia, 22202–3259. examples of documents appearing in this Committee, Susanville, California, FOR FURTHER INFORMATION CONTACT: section. USDA Forest Service. Sheryl D. Kennerly, (703) 603–7740. ACTION: Notice of meeting. SUPPLEMENTARY INFORMATION: This notice is published pursuant to 41 U.S.C DEPARTMENT OF AGRICULTURE SUMMARY: Pursuant to the authorities in 47(a) (2) and 41 CFR 51–2.3. Its purpose the Federal Advisory Committees Act is to provide interested persons an Forest Service (Pub. L. 92–463) and under the Secure opportunity to submit comments on the Rural Schools and Community Self- proposed action. If the Committee Olympic Provincial Advisory Determination Act of 2000 (Pub. L. 106– approves the proposed addition, the Committee 393) the Lassen National Forest’s Lassen entity of the Federal Government County Resource Advisory Committee identified in the notice for each service AGENCY: Forest Service, USDA. will meet Thursday, August 12th in will be required to procure the service ACTION: Notice of meeting. Susanville, California for a business listed below from nonprofit agencies meeting. The meetings are open to the employing persons who are blind or public. SUMMARY: The Olympic Province have other severe disabilities. FOR FURTHER INFORMATION CONTACT: Advisory Committee (OPAC) will meet Regulatory Flexibility Act Certification on Friday, August 27, 2004. The Robert Andrews, District Ranger and Designated Federal Officer, at (530) I certify that the following action will meeting will be held at the Forest 257–4188; or Public Affairs Officer, not have a significant impact on a Service Conference Room at the Forest Heidi Perry, at (530) 252–6605. substantial number of small entities. Service Quinault office in Quinault, SUPPLEMENTARY INFORMATION: The The major factors considered for this Washington. The meeting will begin at business meeting August 12th begins at certification were: 9:30 a.m. and end at approximately 2:30 9 a.m., at the Lassen National Forest 1. If approved, the action will not p.m. Agenda topics are: Current status Headquarters Office, Caribou result in any additional reporting, of key Forest issues; update on Conference Room, 2550 Riverside Drive, recordkeeping or other compliance Washington State Department of Susanville, CA 96130. Agenda topics requirements for small entities other Ecology and Forest Service will include; National RAC update; than the small organizations that will Memorandum of Understanding; update monitoring processes update; 2004 cycle furnish the service to the Government. on owl management; Washington State 3 schedule; and general business. Time 2. If approved, the action will result Department of Natural Resources will also be set aside for public in authorizing small entities to furnish riparian management thinning; open comments at the beginning of the the service to the Government. 3. There are no known regulatory forum; and public comments. meeting. alternatives which would accomplish All Olympic Province Advisory Jeff Withroe, the objectives of the Javits-Wagner- Committee Meetings are open to the Acting Forest Supervisor. O’Day Act (41 U.S.C. 46–48c) in public. Interested citizens are [FR Doc. 04–17973 Filed 8–5–04; 8:45 am] connection with the service proposed encouraged to attend. BILLING CODE 3410–11–M for addition to the Procurement List. FOR FURTHER INFORMATION CONTACT: Comments on this certification are invited. Commenters should identify the Direct questions regarding this meeting statement(s) underlying the certification to Ken Eldredge, Province Liaison, COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR on which they are providing additional USDA, Olympic National Forest information. Headquarters, 1835 Black Lake Blvd., SEVERELY DISABLED Olympia, WA 98512–5623, (360) 956– End of Certification Procurement List; Proposed Addition 2323 or Dale Hom, Forest Supervisor, at The following service is proposed for (360) 956–2301. AGENCY: Committee for Purchase from addition to Procurement List for Dated: August 2, 2004. People Who Are Blind or Severely production by the nonprofit agencies Disabled. listed: Dale Hom, ACTION: Proposed addition to Service: Forest Supervisor, Olympic National Forest. procurement list. [FR Doc. 04–17972 Filed 8–5–04; 8:45 am] Service Type/Location: Classified BILLING CODE 3410–11–M SUMMARY: The Committee is proposing Technical Order Distribution, Tinker to add to the Procurement List a service Air Force Base, Building 3, Door 57, to be furnished by nonprofit agencies Tinker AFB, Oklahoma. employing persons who are blind or NPA: The Oklahoma League for the have other severe disabilities. Blind, Oklahoma City, Oklahoma.
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Contract Activity: Directorate of the objectives of the Javits-Wagner- California Health Care System, Contracting (OC–ALC/PKOSF), Tinker O’Day Act (41 U.S.C. 46–48c) in Martinez, California, VA Sacramento Air Force Base, OK. connection with the services proposed Medical Center at Mather Field, Mather, for addition to the Procurement List. California. Sheryl D. Kennerly, NPA: Project HIRED, Santa Clara, Director, Information Management. End of Certification California. [FR Doc. 04–18006 Filed 8–5–04; 8:45 am] Accordingly, the following services Contract Activity: VISN 21 BILLING CODE 6353–01–P are added to the Procurement List: Consolidated Contracting Activity, San Francisco, California. This action does Services: not affect current contracts awarded COMMITTEE FOR PURCHASE FROM Service Type/Location: Custodial & prior to the effective date of this PEOPLE WHO ARE BLIND OR Grounds Maintenance Federal Building, addition or options that may be SEVERELY DISABLED 100 Bluestone Road, Mount Hope, West exercised under those contracts. Virginia. Procurement List; Additions NPA: Wyoming County Workshop, Sheryl D. Kennerly, Director, Information Management. AGENCY: Committee for Purchase from Inc., Maben, West Virginia. People Who Are Blind or Severely Contract Activity: GSA, PBS, Region 3 [FR Doc. 04–18007 Filed 8–5–04; 8:45 am] Disabled. (3PMT), Philadelphia, Pennsylvania. BILLING CODE 6353–01–P Service Type/Location: Custodial ACTION: Additions to procurement list. Services, Naval Reserve Center, White SUMMARY: This action adds to the River Junction, Vermont. DEPARTMENT OF COMMERCE Procurement List services to be NPA: Northern New England furnished by nonprofit agencies Employment Services, Portland, Maine. Foreign-Trade Zones Board employing persons who are blind or Contract Activity: Naval Facilities [Docket 31–2004] have other severe disabilities. Engineering Command—Portsmouth, EFFECTIVE DATE: Effective September 5, Portsmouth, New Hampshire. Foreign-Trade Zone 25—Broward 2004. Service Type/Location: Custodial County, FL, Request for Export Services, USDA AMS S&T FLS, Processing Authority, S.B. Marketing ADDRESSES: Committee for Purchase National Science Laboratory, Gastonia, Worldwide, Inc. (Apparel Printing) From People Who Are Blind or Severely North Carolina. Disabled, Jefferson Plaza 2, Suite 10800, NPA: Gaston Skills, Inc., Gastonia, An application has been submitted to 1421 Jefferson Davis Highway, North Carolina. the Foreign-Trade Zones Board (the Arlington, Virginia, 22202–3259. Contract Activity: USDA, Animal & Board) by Broward County, Florida, FOR FURTHER INFORMATION CONTACT: Plant Health Inspection Service, grantee of FTZ 25, pursuant to Sheryl D. Kennerly, (703) 603–7740. Minneapolis, Minnesota. § 400.32(b)(1)(ii) of the Board’s SUPPLEMENTARY INFORMATION: On June Service Type/Location: Custodial regulations (15 CFR part 400), 14, 2004, the Committee for Purchase Services, Veterans Administration requesting authority on behalf of S.B. From People Who Are Blind or Severely Community Based Outpatient Clinic, Marketing Worldwide, Inc. (SBMW), to Disabled published notice (69 F.R. Traverse City, Michigan. process foreign-origin apparel products 32975/32976) of proposed additions to NPA: GTP Industries, Inc., Traverse for export under FTZ procedures within the Procurement List. After City, Michigan. FTZ 25. It was formally filed on July 30, consideration of the material presented Contract Activity: VA Medical 2004. to it concerning capability of qualified Center—Saginaw, Michigan. The proposed SBMW activity (14 nonprofit agencies to provide the Service Type/Location: Custodial employees) within Site 1–Building E, services and impact of the additions on Services, Base-wide, Yuma Proving Bay 13 would involve silk screen the current or most recent contractors, Ground, (Excluding Buildings 3013, printing of foreign-origin T-shirts the Committee has determined that the 611, and 3189), Yuma, Arizona. (including sleeveless tank-style) for services listed below are suitable for NPA: Yuma WORC Center, Inc., export only. The adult and children’s T- procurement by the Federal Government Yuma, Arizona. shirts, which are subject to quota under 41 U.S.C. 46–48c and 41 CFR 51– Contract Activity: Army Contracting category 352 and classified under 2.4. Agency, Yuma Proving Ground, HTSUS 6109.10.0005, would be Arizona. admitted under privileged foreign status Regulatory Flexibility Act Certification Service Type/Location: Grounds (19 CFR 146.41) in blank (i.e., plain) I certify that the following action will Maintenance, Defense Supply Center condition to be screen printed and dried not have a significant impact on a Richmond, Richmond, Virginia. for use as outerwear. The finished substantial number of small entities. NPA: Richmond Area Association for printed T-shirts would then be The major factors considered for this Retarded Citizens, Richmond, Virginia. transferred from the zone for certification were: Contract Activity: Defense Supply exportation, and none of the foreign 1. The action will not result in any Center Richmond, Richmond, Virginia. status T-shirts would be entered for U.S. additional reporting, recordkeeping or Service Type/Location: Medical consumption. other compliance requirements for small Transcription, 355th Medical Supply- FTZ procedures would exempt entities other than the small F5HOSP, Davis-Monthan AFB, Arizona. SBMW from Customs duty payments on organizations that will furnish the NPA: National Telecommuting the foreign T-shirts (17% rate of duty) services to the Government. Institute, Inc., Boston, Massachusetts. processed for re-export. The application 2. The action will result in Contract Activity: 355th Contracting indicates that the savings from FTZ authorizing small entities to furnish the Squadron, Davis-Monthan AFB, procedures would help improve services to the Government. Arizona. SBMW’s international competitiveness. 3. There are no known regulatory Service Type/Location: Telephone/ Public comment on the application is alternatives which would accomplish Switchboard Operator, VA Northern invited from interested parties.
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Submissions (original and three copies) Rouge; Site 3 (157 acres)—Inland Rivers DEPARTMENT OF COMMERCE shall be addressed to the Board’s Marine Terminal FTZ site located on Executive Secretary at the following Louisiana Highway 1, Port Allen; and, Foreign-Trade Zones Board addresses: Site 4 (1,834 acres)—industrial/ [Docket 30–2004] 1. Submissions via Express/Package chemical complex (Dow Chemical) Delivery Services: Foreign-Trade Zones located on Louisiana Highway 1 within Foreign-Trade Zone 158—Vicksburg/ Board, U.S. Department of Commerce, the Parishes of West Baton Rouge and Jackson, MS; Application for Franklin Court Building–Suite 4100W, Iberville. Expansion 1099 14th Street, NW., Washington, DC The applicant is now requesting An application has been submitted to 20005; or, authority to expand the general-purpose 2. Submissions via the U.S. Postal the Foreign-Trade Zones Board (the zone to include an additional site in St. Board) by the Vicksburg/Jackson Service: Foreign-Trade Zones Board, Martin Parish: Proposed Site 5 consists U.S. Department of Commerce, FCB– Foreign Trade Zone, Inc., grantee of FTZ of 120 acres (2 parcels) within the 155- 158, requesting authority to expand its 4100W, 1401 Constitution Ave., NW., acre St. Martin Parish Industrial Park Washington, DC 20230. zone at sites in the Lee County area, located at 6261 Louisiana Highway 31 adjacent to the Memphis, Tennessee, The closing period for their receipt is near St. Martinville, Louisiana. The Customs port of entry. The application September 20, 2004. Rebuttal comments property is owned by St. Martin Parish was submitted pursuant to the in response to material submitted Government and St. Martinville L.L.C., provisions of the Foreign-Trade Zones during the foregoing period may be and it is currently being marketed for Act, as amended (19 U.S.C. 81a-81u), submitted during the subsequent 15-day industrial development. No specific and the regulations of the Board (15 CFR period (to October 5, 2004). manufacturing is being requested at this Part 400). It was formally filed on July A copy of the application will be time. Such requests would be made to 28, 2004. available for public inspection at the the Board on a case-by-case basis. FTZ 158 was approved on April 11, Office of the Foreign-Trade Zones In accordance with the Board’s 1989 (Board Order 430, 54 FR 15480, 4/ Board’s Executive Secretary at address 18/89), and expanded on October 23, No.1 listed above. regulations, a member of the FTZ Staff has been designated examiner to 1994 (Board Order 707, 59 FR 54885, Dated: August 2, 2004. investigate the application and report to 11/2/94). The zone project currently Dennis Puccinelli, the Board. consists of nine sites (5,547 acres) in the central and north Mississippi area: Site Executive Secretary. Public comment on the application is 1 (353 acres)—Emmitte W. Haining [FR Doc. 04–18044 Filed 8–5–04; 8:45 am] invited from interested parties. Industrial Center within the Port of BILLING CODE 3510–DS–P Submissions (original and 3 copies) Vicksburg Terminal, Warren County; shall be addressed to the Board’s Site 2 (2,118 acres)—within the Jackson Executive Secretary at one of the DEPARTMENT OF COMMERCE International Airport complex, Jackson; following addresses: Site 3 (1,286 acres)—Ceres Research and Foreign-Trade Zones Board 1. Submissions via Express/Package Industrial Interplex located on Interstate Delivery Services: Foreign-Trade Zones [Docket 29–2004] 20, Warren County; Site 4 (230 acres)— Board, U.S. Department of Commerce, Vicksburg Airport Industrial Park, Foreign-Trade Zone 154—Baton Franklin Court Building—Suite 4100W, Vicksburg; Site 5 (544 acres)—Greater Rouge, Louisiana, Area; Application 1099 14th Street, NW., Washington, DC Jackson Industrial Center located on for Expansion 20005; or, Interstate 55, south of Jackson (Hinds 2. Submissions via the U.S. Postal County); Site 6 (559 acres)—Hawkins An application has been submitted to Service: Foreign-Trade Zones Board, Field Industrial Park, south of Interstate the Foreign-Trade Zones Board (the U.S. Department of Commerce, FCB— 220/U.S. 49 Interchange, Jackson; Site 7 Board), by the Greater Baton Rouge Port Suite 4100W, 1401 Constitution (350 acres)—Northwest Industrial Park Commission, grantee of FTZ 154, Avenue, NW., Washington, DC 20230. located one mile north of Interstate 220/ requesting authority to expand the zone U.S. 49 Interchange, north of Jackson The closing period for their receipt is in the Baton Rouge, Louisiana, area, (Hinds County); Site 8 (39 acres)— October 5, 2004. Rebuttal comments in adjacent to the Baton Rouge Customs within the Senatobia Industrial Park, response to material submitted during port of entry. The application was adjacent to Interstate 55 in Senatobia the foregoing period may be submitted submitted pursuant to the provisions of (Tate County); and, Site 9 (64 acres, 3 during the subsequent 15-day period (to the Foreign-Trade Zones Act, as parcels)—located within the Greenville October 20, 2004). amended (19 U.S.C. 81a-81u), and the Industrial Park at 1265 Wasson Drive, regulations of the Board (15 CFR part A copy of the application and 1945 North Theobald Street, and 1795 400). It was formally filed on July 28, accompanying exhibits will be available North Theobald Street in Greenville 2004. during this time for public inspection at (Washington County). FTZ 154 was approved on November the Office of the Foreign-Trade Zones The applicant is now requesting 2, 1988 (Board Order 396, 53 FR 48003, Board’s Executive Secretary at the first authority for a major expansion of the 11/29/88), and expanded/reorganized address listed above, and at the Office zone as described below. The proposal on April 5, 2001 (Board Order 1159, 66 of the Port of Greater Baton Rouge, 2425 requests authority to expand the zone FR 19422, 4/16/01). The zone project Ernest Wilson Drive, Port Allen, LA project to include sites in the Lee currently consists of the following sites 70767. County area: (3,638 acres) in the Baton Rouge area: Dated: July 30, 2004. Proposed Site 10—989 acres within Site 1 (370 acres)—Port of Greater Baton the 1,479-acre Airport Industrial Park, Dennis Puccinelli, Rouge’s entire deep-water complex located adjacent to the Tupelo Regional along the Mississippi River, Port Allen; Executive Secretary. Airport, City of Tupelo; Site 2 (1,277 acres)—Baton Rouge [FR Doc. 04–18042 Filed 8–5–04; 8:45 am] Proposed Site 11—277 acres within Metropolitan Airport, North Baton BILLING CODE 3510–DS–P the 403-acre South Green Industrial
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complex located adjacent to U.S. the foregoing period may be submitted extend the time limit for the preliminary Highway 45 and the Kansas City during the subsequent 15-day period (to determination) from the date of Southern Railroad and South Green October 20, 2004). publication of the preliminary Street, City of Tupelo; A copy of the application and determination. Proposed Site 12—5 acres within the accompanying exhibits will be available Background 36-acre South Green Extend Industrial for public inspection at the Office of the Complex located along South Green Foreign-Trade Zones Board’s Executive On January 22, 2004, the Department Street immediately west of South Secretary at the first address listed published a notice of initiation of Gloster Street (MS 145), City of Tupelo; above, and at the Tupelo/Lee County administrative review of the Proposed Site 13—56 acres within the Community Development Foundation, antidumping duty order on certain 164-acre Tupelo Industrial Center 300 West Main Street, Tupelo, MS cased pencils from the People’s located at the intersection of Eason 38804. Republic of China, covering the period Boulevard and the Burlington Northern Dated: July 30, 2004. December 1, 2002, through November 30, 2003. See Initiation of Antidumping Railroad, City of Tupelo; Dennis Puccinelli, Proposed Site 14—128 acres within and Countervailing Duty Administrative the 990-acre Burlington Northern Executive Secretary. Reviews and Request for Revocation in Industrial Park located along the [FR Doc. 04–18043 Filed 8–5–04; 8:45 am] Part, 69 FR 3117 (January 22, 2004). The Burlington Northern Railroad and U.S. BILLING CODE 3510–DS–P preliminary results are currently due no Highway 78 (I–22) and MS Highway 178 later than September 1, 2004. interchange, City of Tupelo/Lee County; Proposed Site 15—699 acres within DEPARTMENT OF COMMERCE Extension of Time Limit for Preliminary Results of Review the 1315-acre Harry A. Martin North Lee International Trade Administration Industrial Complex located at the We determine that it is not practicable intersection of U.S. Highway 45 and [A–570–827] to complete the preliminary results of Pratts Road, City of Baldwyn/Lee this review within the original time County; Certain Cased Pencils From the limit. Additional time is required to Proposed Site 16—284 acres within People’s Republic of China: Extension collect and analyze complex factors of the 429-acre Turner Industrial Park of Time Limit for Preliminary Results of production consumption data from located at the U.S. Highway 45 and MS Antidumping Duty Administrative several manufacturing facilities. Highway 145 interchange adjacent and Review Therefore, the Department is extending south of the City of Saltillo; and, AGENCY: Import Administration, the time limit for completion of the Proposed Site 17—540 acres within International Trade Administration, preliminary results by 120 days until no the 1066-acre Tupelo Lee Industrial Department of Commerce. later than December 30, 2004. We Park South located at the U.S. Highway ACTION: Notice of Extension of time intend to issue the final results no later 45 and Brewer Road interchange south limits. than 120 days after the publication of of the City of Verona. the preliminary results notice. The applicant is also requesting that EFFECTIVE DATE: August 6, 2004. This extension is in accordance with 124 acres at Site 2 (Jackson International FOR FURTHER INFORMATION CONTACT: Paul section 751(a)(3)(A) of the Act. Airport Complex) be restored to zone Stolz or John Conniff, AD/CVD Dated: August 2, 2004. status (new total acreage—2,242 acres). Enforcement, Office 9, Group III, Import Jeffrey A. May, No specific manufacturing requests are Administration, International Trade Deputy Assistant Secretary for Import being made at this time. Such requests Administration, U.S. Department of Administration, Group I. would be made to the Board on a case- Commerce, 14th Street and Constitution [FR Doc. 04–18047 Filed 8–5–04; 8:45 am] by-case basis. Avenue, NW., Washington, DC 20230; In accordance with the Board’s BILLING CODE 3510–DS–M telephone (202) 482–4474 or (202) 482– regulations, a member of the FTZ Staff 1009, respectively. has been designated examiner to DEPARTMENT OF COMMERCE investigate the application and report to Time Limits the Board. Statutory Time Limits International Trade Administration Public comment on the application is invited from interested parties. Section 751(a)(3)(A) of the Tariff Act [A–588–847] Submissions (original and 3 copies) of 1930, as amended (the Act), requires Certain Cut-to-Length Carbon-Quality shall be addressed to the Board’s the Department of Commerce (the Steel Plate From Japan: Notice of Executive Secretary at one of the Department) to make a preliminary Rescission of Antidumping Duty addresses below: determination within 245 days after the 1. Submissions via Express/Package last day of the anniversary month of an Administrative Review Delivery Services: Foreign-Trade Zones order or finding for which a review is AGENCY: Import Administration, Board, U.S. Department of Commerce, requested and a final determination International Trade Administration, Franklin Court Building—Suite 4100W, within 120 days after the date on which Department of Commerce. 1099 14th Street, NW., Washington, DC the preliminary determination is ACTION: Notice of rescission of 20005; or published. However, if it is not antidumping duty administrative 2. Submissions via the U.S. Postal practicable to complete the review review. Service: Foreign-Trade Zones Board, within these time periods, section U.S. Department of Commerce, FCB— 751(a)(3)(A) of the Act allows the SUMMARY: In response to a request from Suite 4100W, 1401 Constitution Department to extend the 245-day time International Steel Group Inc. Avenue, NW., Washington, DC 20230. limit for the preliminary determination (International Steel), a domestic The closing period for their receipt is to a maximum of 365 days the time limit producer of subject merchandise, the October 5, 2004. Rebuttal comments in for the final determination to 180 days Department of Commerce (the response to material submitted during (or 300 days if the Department does not Department) initiated an administrative
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review of the antidumping duty order indicated: 1.80 percent of manganese, or (March 26, 2004). On May 10, 2004, on certain cut-to-length carbon-quality 1.50 percent of silicon, or 1.00 percent International Steel timely withdrew its steel plate (CTL plate) from Japan. The of copper, or 0.50 percent of aluminum, request for an administrative review of period of review (POR) is February 1, or 1.25 percent of chromium, or 0.30 CTL plate from Japan. 2003, through January 31, 2004. For the percent of cobalt, or 0.40 percent of reasons discussed below, we are lead, or 1.25 percent of nickel, or 0.30 Rescission of Review percent of tungsten, or 0.10 percent of rescinding this administrative review. If a party that requested a review molybdenum, or 0.10 percent of EFFECTIVE DATE: August 6, 2004. withdraws the request within 90 days of FOR FURTHER INFORMATION CONTACT: niobium, or 0.41 percent of titanium, or 0.15 percent of vanadium, or 0.15 the date of publication of notice of Kevin Williams or Mark Manning, initiation of the requested review, the Group I, Office 4, Office of AD/CVD percent zirconium. All products that meet the written Secretary will rescind the review Enforcement, Import Administration, physical description, and in which the pursuant to 19 CFR 351.213(d)(1) International Trade Administration, chemistry quantities do not equal or (2003). In this case, International Steel U.S. Department of Commerce, 14th exceed any one of the levels listed withdrew its request for an Street and Constitution Avenue, NW., above, are within the scope of these administrative review within 90 days Washington, DC 20230; telephone (202) reviews unless otherwise specifically from the date of initiation. No other 482–2371 or 482–5253, respectively. excluded. The following products are interested party requested a review and SUPPLEMENTARY INFORMATION: specifically excluded from this review: we have received no comments Scope of the Order (1) Products clad, plated, or coated with regarding International Steel’s metal, whether or not painted, withdrawal of its request for a review. The merchandise subject to this order varnished or coated with plastic or other is certain hot-rolled carbon-quality steel: Therefore, we are rescinding the non-metallic substances; (2) SAE grades initiation of this review of the (1) Universal mill plates (i.e., flat-rolled (formerly AISI grades) of series 2300 products rolled on four faces or in a antidumping duty order on CTL plate and above; (3) products made to ASTM from Japan. closed box pass, of a width exceeding A710 and A736 or their proprietary 150 mm but not exceeding 1250 mm, equivalents; (4) abrasion-resistant steels Notification to Importers and of a nominal or actual thickness of (i.e., USS AR 400, USS AR 500); (5) not less than 4 mm, which are cut-to- products made to ASTM A202, A225, This notice serves as a final reminder length (not in coils) and without A514 grade S, A517 grade S, or their to importers of their responsibility patterns in relief), of iron or non-alloy- proprietary equivalents; (6) ball bearing under 19 CFR 351.402(f) to file a quality steel; and (2) flat-rolled steels; (7) tool steels; and (8) silicon certificate regarding the reimbursement products, hot-rolled, of a nominal or manganese steel or silicon electric steel. of antidumping duties prior to actual thickness of 4.75 mm or more and The merchandise subject to this order liquidation of the relevant entries of a width which exceeds 150 mm and is currently classifiable in the HTSUS during this review period. Failure to measures at least twice the thickness, under subheadings: 7208.40.3030, comply with this requirement could and which are cut-to-length (not in 7208.40.3060, 7208.51.0030, result in the Secretary’s presumption coils). 7208.51.0045, 7208.51.0060, that reimbursement of antidumping Steel products to be included in this 7208.52.0000, 7208.53.0000, duties occurred and subsequent scope are of rectangular, square, circular 7208.90.0000, 7210.70.3000, or other shape and of rectangular or assessment of double antidumping 7210.90.9000, 7211.13.0000, duties. non-rectangular cross-section where 7211.14.0030, 7211.14.0045, such non-rectangular cross-section is 7211.90.0000, 7212.40.1000, This notice also serves as a reminder achieved subsequent to the rolling 7212.40.5000, 7212.50.0000, to parties subject to administrative process (i.e., products which have been 7225.40.3050, 7225.40.7000, protective order (APO) of their ‘‘worked after rolling’’)—for example, 7225.50.6000, 7225.99.0090, responsibility concerning the products which have been beveled or 7226.91.5000, 7226.91.7000, disposition of proprietary information rounded at the edges. Steel products 7226.91.8000, 7226.99.0000. disclosed under APO in accordance that meet the noted physical Subheadings are provided for with 19 CFR 351.305(a)(3). Timely characteristics that are painted, convenience and customs purposes. written notification of the return/ varnished or coated with plastic or other Background destruction of APO materials or non-metallic substances are included conversion to judicial protective order is within this scope. Also, specifically On February 3, 2004, the Department hereby requested. Failure to comply included in this scope are high strength, published a notice of opportunity to with the regulations and the terms of an request an administrative review of the low alloy (HSLA) steels. HSLA steels are APO is a sanctionable violation. recognized as steels with micro-alloying antidumping duty order on CTL plate levels of elements such as chromium, from Japan. See Antidumping or This notice is in accordance with copper, niobium, titanium, vanadium, Countervailing Duty Order, Finding, or section 777(i)(1) of the Act and 19 CFR and molybdenum. Suspended Investigation; Opportunity 251.213(d)(4). Steel products to be included in this To Request Administrative Review, 69 Dated: August 2, 2004. scope, regardless of Harmonized Tariff FR 5125 (February 3, 2004). On March Jeffrey May, Schedule of the United States (HTSUS) 26, 2004, pursuant to a request made by definitions, are products in which: (1) International Steel, the Department Deputy Assistant Secretary for Import Iron predominates, by weight, over each initiated an administrative review of the Administration, Group I. of the other contained elements, (2) the antidumping duty order on CTL plate [FR Doc. 04–18046 Filed 8–5–04; 8:45 am] carbon content is two percent or less, by from Japan. See Initiation of BILLING CODE 3510–DS–P weight, and (3) none of the elements Antidumping and Countervailing Duty listed below is equal to or exceeds the Administrative Reviews and Requests quantity, by weight, respectively for Revocation in Part, 69 FR 15788
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DEPARTMENT OF COMMERCE adjustable) height above the floor. The Amended Final Determination subject tables are produced in a variety On June 24, 2004, in accordance with International Trade Administration of leg finishes, such as painted, plated, section 735(a) of the Act, the or matte, and they are available with [A–570–888] Department published its final various features, including iron rests, determination that ironing tables from Notice of Amended Final linen racks, and others. The subject the PRC are being, or are likely to be, Determination of Sales at Less Than ironing tables may be sold with or sold in the United States at less than fair Fair Value and Antidumping Duty without a pad and/or cover. All types value. See Final Determination. On June Order: Floor-Standing, Metal-Top and configurations of floor-standing, 28, 2004, the petitioner, Home Products Ironing Tables and Certain Parts metal-top ironing tables are covered by International, Inc., filed timely Thereof From the People’s Republic of this order. allegations that the Department made China Furthermore, this order specifically ministerial errors in its final covers imports of ironing tables, determination. The respondents in this AGENCY: Import Administration, assembled or unassembled, complete or case, Since Hardware (Gunagzhou) Co., International Trade Administration, incomplete, and certain parts thereof. Ltd. (Since Hardware) and Shunde Department of Commerce. For purposes of this order, the term Yongjian Houseware Co. Ltd. ACTION: Notice of amended final ‘‘unassembled’’ ironing table means a (Yongjian), made no ministerial error determination of sales at less than fair product requiring the attachment of the allegations. On July 6, 2004, Since value and antidumping duty order. leg assembly to the top or the Hardware submitted rebuttal comments attachment of an included feature such in response to the allegations made by EFFECTIVE DATE: August 6, 2004. as an iron rest or linen rack. The term the petitioner. For a detailed discussion FOR FURTHER INFORMATION CONTACT: ‘‘complete’’ ironing table means a of the Department’s analysis of the Paige Rivas or Sam Zengotitabengoa, product sold as a ready-to-use ensemble allegations of ministerial errors, see Offcie of AD/CVD Enforcement, Office consisting of the metal-top table and a Memorandum from Holly A. Kuga, 4, Import Administration, International pad and cover, with or without Senior Director, Office 4, to Jeffrey May, Trade Administration, U.S. Department additional features, e.g. iron rest or Deputy Assistant Secretary for Import of Commerce, 14th Street and linen rack. The term ‘‘incomplete’’ Administration, Group I, ‘‘Allegation of Constitution Avenue, NW., Washington, ironing table means a product shipped Ministerial Errors,’’ dated concurrently DC 20230; telephone: (202) 482–0651 or or sold as a ‘‘bare board’’—i.e., a metal- with this notice. In accordance with 19 (202) 482–4195, respectively. top table only, without the pad and CFR 351.224(e), we are amending the SUPPLEMENTARY INFORMATION: cover—with or without additional Final Determination to correct certain features, e.g. iron rest or linen rack. The ministerial errors. Background major parts or components of ironing The revised final weighted-average On June 24, 2004, the Department of tables that are intended to be covered by dumping margins are as follows: Commerce (Department) published the this order under the term ‘‘certain parts notice of final determination of sales at thereof’’ consist of the metal top Weighted- less than fair value for floor-standing, component (with or without assembled Manufacturer/exporter average supports and slides) and/or the leg margin metal-top ironing tables and certain (percent) parts thereof (ironing tables) from the components, whether or not attached People’s Republic of China (PRC). See together as a leg assembly. The order Since Hardware (Guangzhou) Notice of Final Determination of Sales covers separately shipped metal top Co., Ltd ...... 9.47 at Less Than Fair Value: Floor-Standing, components and leg components, Shunde Yongjian Housewares Metal-Top Ironing Tables and Certain without regard to whether the respective Co., Ltd ...... 157.68 Parts Thereof from the People’s quantities would yield an exact quantity Forever Holdings Ltd ...... 72.29 of assembled ironing tables. Gaoming Lihe Daily Necessities Republic of China, 69 FR 35296 (June Co., Ltd ...... 72.29 24, 2004) (Final Determination). On July Ironing tables without legs (such as Harvest International 28, 2004, the International Trade models that mount on walls or over Housewares Ltd ...... 72.29 Commission (ITC) notified the doors) are not floor-standing and are PRC-Wide Rate ...... 157.68 Department of its final determination specifically excluded. Additionally, pursuant to section 735(b)(1)(A)(I) of the tabletop or counter top models with The PRC-wide rate applies to all Tariff Act of 1930, as amended (the Act) short legs that do not exceed 12 inches entries of the subject merchandise that an industry in the United States is in length (and which may or may not except for entries from Since Hardware, materially injured by reason of less than collapse or retract) are specifically Yongjian, Forever Holdings, Harvest fair value imports of subject excluded. International, and Gaoming Lihe. merchandise from the PRC. The subject ironing tables were previously classified under Harmonized Antidumping Duty Order Scope of the Order Tariff Schedule of the United States In accordance with section 736(a)(1) For purposes of this order, the (HTSUS) subheading 9403.20.0010. of the Act, the Department will direct product covered consists of floor- Effective July 1, 2003, the subject U.S. Customs and Border Protection standing, metal-top ironing tables, ironing tables are classified under the (CBP) to assess, upon further advice by assembled or unassembled, complete or new HTSUS subheading 9403.20.0011. the Department, antidumping duties incomplete, and certain parts thereof. The subject metal top and leg equal to the amount by which the The subject tables are designed and components are classified under HTSUS normal value of the merchandise used principally for the hand ironing or subheading 9403.90.8040. Although the exceeds the export price of the pressing of garments or other articles of HTSUS subheadings are provided for merchandise for all relevant entries of fabric. The subject tables have full- convenience and customs purposes, the ironing tables from the PRC. For all height leg assemblies that support the written description of the scope remains producers and exporters, antidumping ironing surface at an appropriate (often dispositive. duties will be assessed on all
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unliquidated entries of subject Vital Berry Marketing, S.A. This review in the Central Records Unit (‘‘CRU’’) in merchandise that are entered, or covers sales of individually quick frozen room B–099 in the main Department withdrawn from warehouse, for red raspberries to the United States building. consumption on or after February 3, during the period December 31, 2001, On October 17, 2003, the Department 2004, the date on which the Department through June 30, 2003. issued antidumping duty questionnaires published its notice of affirmative We preliminarily find that, during the to the companies listed above. We preliminary determination in the period of review, sales of individually received responses from the seven Federal Register. See Notice of quick frozen red raspberries were made companies in November and December Preliminary Determination of Sales at below normal value. If the preliminary 2003. Less Than Fair Value: Floor-Standing, results are adopted in the final results On January 5, 2004, we received a Metal-Top Ironing Tables and Certain of this administrative review, we will timely filed submission from the Parts Thereof from the People’s instruct U.S. Customs and Border petitioners withdrawing their request Republic of China, 69 FR 5127 Protection to assess antidumping duties for review for all of the companies for (February 3, 2004). on all appropriate entries. Interested which they had requested an On or after the date of publication of parties are invited to comment on these administrative review, except Uren. this notice in the Federal Register, CBP preliminary results. Because the petitioners were the only must require, at the same time as parties to request an administrative DATES: Effective August 6, 2004. importers would normally deposit review for all companies except Olmue, estimated duties, cash deposits for the FOR FURTHER INFORMATION CONTACT: Cole SANCO, and Vital Berry, on January 15, subject merchandise equal to the Kyle, Ryan Langan, or Blanche Ziv, 2004, we rescinded the administrative estimated weighted-average dumping Office 1, AD/CVD Enforcement, Import review with respect to all of the 51 margins listed above. Administration, International Trade companies mentioned above except This notice constitutes the Administration, U.S. Department of Olmue, SANCO, Uren, and Vital Berry, antidumping duty order with respect to Commerce, 14th Street and Constitution in accordance with 19 CFR ironing tables from the PRC. Interested Avenue, NW., Washington DC 20230; 351.213(d)(1) (2003). See 69 FR 2330. parties may contact the Department’s telephone (202) 482–1503, (202) 482– On January 16, 2004, the petitioners Central Records Unit, Room B–099 of 2613, and (202) 482–4207, respectively. submitted timely allegations that the main Commerce building, for copies SUPPLEMENTARY INFORMATION: Olmue, SANCO, Uren, and Vital Berry made sales below the cost of production of an updated list of antidumping duty Background orders currently in effect. (‘‘COP’’) during the period of review This order is issued and published in On July 2, 2003, the Department of (‘‘POR’’). accordance with section 736(a) of the Commerce (‘‘Department’’) published in On January 21, 2004, Vital Berry Act and 19 CFR 351.211. the Federal Register a notice of the withdrew its request for an administrative review. Since the Dated: August 2, 2004. opportunity to request an administrative review in the above-cited segment of the petitioners had earlier withdrawn their Joseph A. Spetrini, antidumping duty proceeding. See 68 request for review of Vital Berry and we Acting Assistant Secretary for Import FR 39511. We received a timely filed did not receive any objections to Vital Administration. request for review of 51 companies from Berry’s request for withdrawal, we are [FR Doc. 04–18040 Filed 8–5–04; 8:45 am] the Pacific Northwest Berry Association, rescinding the administrative review BILLING CODE 3510–DS–P Lynden, Washington, and each of its with respect to Vital Berry and individual members, Curt Maberry publishing notice of this rescission in the Federal Register, in accordance with DEPARTMENT OF COMMERCE Farm, Enfield Farms, Inc., Maberry Packing, and Rader Farms, Inc. 19 CFR 351.213(d)(4), at this time. See International Trade Administration (collectively, ‘‘petitioners’’). We also January 29, 2004, memorandum, received timely filed requests for review ‘‘Partial Rescission of Administrative [A–337–806] from Fruticola Olmue, S.A. (‘‘Olmue’’); Review with Respect to Vital Berry Marketing, S.A.,’’ which is on file in the Notice of Preliminary Results and Santiago Comercio Exterior Exportaciones, Ltda. (‘‘SANCO’’); and CRU. Partial Rescission of Antidumping On February 18, 2004, pursuant to Duty Administrative Review: Vital Berry Marketing, S.A. (‘‘Vital Berry’’).1 On August 22, 2003, we section 773(b) of the Tariff Act of 1930, Individually Quick Frozen Red as amended, effective January 1, 1995 by Raspberries From Chile initiated an administrative review of the 51 companies. See 68 FR 50750. the Uruguay Round Agreements Act AGENCY: Import Administration, On October 16, 2003, the Department (‘‘the Act’’), we initiated investigations International Trade Administration, determined that it was not practicable to to determine whether SANCO and Uren Department of Commerce. make individual antidumping duty made comparison market sales during ACTION: Notice of preliminary results findings for each of the 51 companies the POR at prices below the COP, within and partial rescission. involved in this administrative review. the meaning of section 773(b) of the Act Therefore, we selected the following because we found that the petitioners’ SUMMARY: In response to requests from seven companies as respondents in this January 16, 2004, allegations provided a interested parties, the Department of review: Arlavan, S.A.; C y C Group, reasonable basis to believe or suspect Commerce is conducting an S.A.; Olmue; SANCO; Uren Chile, S.A. that sales in the comparison market administrative review of the (‘‘Uren’’); Valles Andinos, S.A.; and were made at prices below the COP. See antidumping duty order on individually Vital Berry. See October 16, 2003, February 18, 2004, memorandum, quick frozen red raspberries from Chile memorandum, ‘‘Individually Quick ‘‘Allegation of Sales Below Cost of with respect to Fruticola Olmue, S.A.; Frozen Red Raspberries from Chile: Production for Santiago Comercio Santiago Comercio Exterior Respondent Selection,’’ which is on file Exterior Exportaciones;’’ February 18, Exportaciones Limitada; and Uren 2004, memorandum, ‘‘Allegation of Chile, S.A. We are rescinding the 1 These three companies were included in the Sales Below Cost of Production for Uren administrative review with respect to petitioners’ request for review of 51 companies. Chile,’’ which are on file in the CRU.
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Because we disregarded below cost sales value, we compared export price (‘‘EP’’) Olmue by Olmue to the same comparison to the normal value (‘‘NV’’), as For certain sales, Olmue did not market in the original less-than-fair- described in the ‘‘Export Price’’ and report payment dates because payment value (‘‘LTFV’’) investigation (the most ‘‘Normal Value’’ sections of this notice. is still pending. For those sales for recently completed segment of the In accordance with 19 CFR which payment has not yet been proceeding), we consider that this 351.414(c)(2), we compared individual received, we set the payment date equal provides ‘‘reasonable grounds to believe EPs to weighted-average NVs, which to the date of the preliminary results. or suspect’’ that Olmue made sales to were calculated in accordance with We recalculated Olmue’s imputed credit France of the subject merchandise at section 777A(d)(2) of the Act. expenses using the revised payment below-cost prices during the POR. Thus, Product Comparisons dates, where applicable, and the gross we did not analyze the petitioners’ unit price adjusted for pricing In accordance with section 771(16) of sales-below-cost allegations with respect adjustments. For further discussion, see the Act, we considered all products to Olmue. On February 19, 2004, we July 29, 2004, memorandum, produced and sold by Olmue, SANCO, notified SANCO and Uren that they ‘‘Calculations for the Preliminary and Uren (collectively, ‘‘respondents’’) must respond to section D of the Results for Fruticola Olmue, S.A.’’ in the comparison market during the antidumping duty questionnaire. (‘‘Olmue Calculation Memorandum’’), POR that fit the description in the We issued supplemental which is on file in the CRU. questionnaires to Olmue, SANCO, and ‘‘Scope of the Order’’ section of this Uren from February through April 2004. notice to be foreign like products for SANCO We received timely filed responses. purposes of determining appropriate For certain sales, we revised SANCO’s On March 9, 2004, the Department product comparisons to U.S. sales. We reported date of sale, gross unit price, published in the Federal Register an compared U.S. sales to sales of identical warehousing expenses, and direct extension of the time limit for the merchandise in the comparison market selling expenses based on information completion of the preliminary results of made in the ordinary course of trade, obtained at verification. We also revised this review until no later than July 30, where possible. Where there were no SANCO’s indirect selling expenses ratio 2004, in accordance with section sales of identical merchandise in the and, accordingly, recalculated indirect 751(a)(3)(A) of the Act and 19 CFR comparison market made in the selling expenses. In addition, we 351.213(h)(2). See 69 FR 10981. ordinary course of trade to compare to recalculated imputed credit expenses On April 13, 2004, we sent a U.S. sales, we compared U.S. sales to because SANCO revised its date of sale sales of the most similar foreign like questionnaire to Uren’s largest supplier but did not revise its reported credit product made in the ordinary course of of purchased IQF red raspberries expenses. See July 19, 2004, trade. To determine the appropriate requesting COP information. On May ‘‘Antidumping Duty Administrative product comparisons, we considered the 12, 2004, we received a letter from the Review of IQF Red Raspberries from following physical characteristics of the supplier stating that it could not Chile: Verification Report-SANCO’’ products in order of importance: Grade, respond to the Department’s (‘‘SANCO Verification Report’’) at 2, 11– variety, form, cultivation method, and questionnaire. For further discussion, 13, and 15–17, which is on file in the additives. see the ‘‘Use of Facts Otherwise CRU. For further discussion, see July 29, Available’’ section below. Export Price 2004, memorandum, ‘‘Calculations for We conducted verification of SANCO the Preliminary Results for Santiago from May 27 through June 2, 2004. For sales to the United States, we calculated EP in accordance with Comercio Exterior Exportaciones Scope of the Order section 772(a) of the Act because the Limitada’’ (‘‘SANCO Calculation Memorandum’’), which is on file in the The products covered by this order merchandise was sold to the first CRU. are imports of individually quick frozen unaffiliated purchaser in the United (‘‘IQF’’) whole or broken red raspberries States prior to importation by the Normal Value from Chile, with or without the addition exporter or producer outside the United A. Home Market Viability of sugar or syrup, regardless of variety, States and because constructed export grade, size or horticulture method (e.g., price methodology was not otherwise In order to determine whether there organic or not), the size of the container warranted. We based EP on packed ex- was a sufficient volume of sales in the in which packed, or the method of factory, CIF, C&F, FOB, and delivered home market to serve as a viable basis packing. The scope of the order prices to unaffiliated purchasers in the for calculating NV, we compared each excludes fresh red raspberries and block United States. We identified the correct respondent’s volume of home market frozen red raspberries (i.e., puree, starting price by adjusting the reported sales of the foreign like product to its straight pack, juice stock, and juice gross unit price, where applicable, for volume of U.S. sales of the subject concentrate). interest revenue and billing merchandise, in accordance with The merchandise subject to this order adjustments. We made deductions from section 773(a)(1)(C) of the Act. is currently classifiable under the starting price for movement Olmue, SANCO, and Uren reported 0811.20.2020 of the Harmonized Tariff expenses in accordance with section that their home market sales of IQF red Schedule of the United States 772(c)(2)(A) of the Act. These raspberries during the POR were less (‘‘HTSUS’’). Although the HTSUS deductions included, where than five percent of their sales of IQF subheading is provided for convenience appropriate, domestic inland freight, red raspberries in the United States. and customs purposes, the written brokerage and handling, pre-sale Therefore, none of the respondents had description of the merchandise under warehousing expenses, international a viable home market for purposes of the order is dispositive. freight, marine insurance, U.S. customs calculating normal value. SANCO and duties, U.S. inland freight, and other Uren reported that the United Kingdom Fair Value Comparisons U.S. transportation expenses. was their largest viable third country To determine whether sales of IQF red To calculate EP, we relied upon the market, and Olmue reported that France raspberries from Chile to the United data submitted by the respondents, was its largest viable third country States were made at less than normal except as noted below: market. Accordingly, SANCO and Uren
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reported their sales to the United capacity of its existing facility. Olmue SANCO Kingdom, and Olmue reported its sales explained that it added a new IQF to France for purposes of calculating tunnel, ‘‘reinstalled’’ the same tunnel We revised direct materials, direct NV. from the previous season, and increased labor, variable overhead, and fixed its storage and processing capacity. overhead based on information obtained B. Cost of Production at verification. See SANCO Verification Olmue claims that these additions and Report at 19–23. We also recalculated 1. Calculation of COP improvements to its existing facility SANCO’s G&A and financial expenses were a major undertaking tantamount to In accordance with section 773(b)(3) using the revised total cost of the construction of a new facility. Thus, of the Act, we calculated the COP based manufacture. For further discussion, see Olmue claims that it is entitled to a on the sum of the cost of materials and SANCO Calculation Memorandum. fabrication for the foreign like product, start-up adjustment. plus amounts for general and We agree that Olmue added a new Uren administrative (‘‘G&A’’) expenses, IQF tunnel and some new storage and Uren was a producer of IQF red financial expenses, and comparison processing equipment during the POR. raspberries through a tolling market packing costs, where However, Olmue has not shown that the arrangement and also a reseller of the appropriate. See infra ‘‘Test of existing facilities (e.g., ‘‘reinstalled’’ IQF subject merchandise. For merchandise Comparison Market Sales Prices’’ for a tunnel) underwent a ‘‘substantially produced through Uren’s tolling discussion of the treatment of complete retooling,’’ which, as defined arrangement, we based the COP on the comparison market selling expenses. by the SAA, ‘‘involves the replacement price Uren paid for the fresh berries We relied on the COP data submitted of nearly all production machinery or from its unaffiliated supplier and the by the respondents, except where noted the equivalent rebuilding of existing price Uren paid for the processing, plus below: machinery.’’ See SAA at 836. Olmue has amounts for G&A expenses and Olmue provided no information which would financial expenses. For IQF raspberries indicate that its existing processing and not produced by Uren, we requested We used Olmue’s G&A expenses for storage areas were replaced or COP data from the largest of Uren’s fiscal year 2002, the fiscal year which completely rebuilt. Rather, when asked finished product suppliers. Uren’s most closely corresponds to the POR. in a supplemental questionnaire, Olmue supplier did not provide the COP We also used the fiscal year 2002 simply described the new processing information requested. For IQF financial expenses for the financial and storage equipment installed to raspberries obtained from the expense ratio. In addition, we revised accommodate the increased capacity unresponsive supplier, we based the Olmue’s reported financial expenses to expected from the new IQF tunnel. In COP on the highest cost reported by include the full portion of the monetary addition, concerning the existing IQF Uren for purchases of finished product, correction reported in Olmue’s financial tunnel, Olmue merely stated that it was plus amounts for G&A expenses and statements and disallowed the portion ‘‘experimenting’’ with the tunnel which financial expenses. For the remaining of the reported financial expenses offset was the ‘‘same tunnel’’ that was IQF raspberries not produced by Uren, related to interest earned on receivables. ‘‘reinstalled from the previous season.’’ we based the COP on Uren’s production For further discussion, see Olmue See Olmue’s April 5, 2004, cost (i.e., Uren’s tolling costs). For Calculation Memorandum. supplemental section D questionnaire further discussion, see the ‘‘Use of Facts Olmue claimed a start-up adjustment response at 11 {emphasis added}. Thus, Otherwise Available’’ section below. for its new IQF tunnel and various the information on the record indicates updates to its existing plant. Section We reallocated certain reported that Olmue did not completely retool or 773(f)(1)(C)(ii) of the Act sets forth the indirect selling expenses to Uren’s rebuild its existing machinery and criteria that a respondent must meet in reported G&A expenses. For further facilities. order for the Department to grant an discussion, see July 29, 2004, adjustment for startup operations: (I) ‘‘a Instead, the record indicates that memorandum, ‘‘Preliminary Results producer is using new production Olmue merely increased its capacity by Calculation Memorandum for Uren facilities or producing a new product adding new machinery for another Chile S.A.’’ (‘‘Uren Calculation that requires substantial additional production line within its existing Memorandum’’), which is on file in the investment, and (II) production levels production facility. The SAA states that CRU. are limited by technical factors the Department ‘‘will not consider an Use of Facts Otherwise Available associated with the initial phase of expansion of the capacity of an existing commercial production.’’ For purposes production line to be a startup operation Section 776(a)(2) of the Act provides of the first criterion, when a new facility unless the expansion of the capacity that the Department shall apply ‘‘facts is not constructed, the Department may constitutes such a major undertaking otherwise available’’ if, inter alia, an consider a ‘‘new production facility’’ to that it requires the construction of a new interested party or any other person (A) exist when there has been ‘‘substantially facility* * *’’ See SAA at 836. As withholds information that has been complete retooling of an existing plant’’ discussed above, Olmue did not build a requested; (B) fails to provide which ‘‘involves the replacement of new facility and has not provided information within the deadlines nearly all production machinery or the evidence that its current facility has established, or in the form or manner equivalent rebuilding of existing been substantially retooled or rebuilt. requested by the Department, subject to machinery.’’ See Uruguay Round We find that the changes Olmue made subsections (c)(1) and (e) of section 782; Agreements Act, Statement of to its existing production facility do not (C) significantly impedes a proceeding; Administrative Action, H.R. Doc No. meet the first criterion of the statutory or (D) provides information that cannot 103–316, vol. 1, at 870 (1994) (‘‘SAA’’) requirement of section 773(f)(1)(C)(ii) of be verified as provided in section 782(i) at 836. the Act for a start-up adjustment. of the Act, the Department shall, subject Olmue stated in its questionnaire Therefore, the Department did not make to section 782(d) of the Act, use the facts response that its facility is not new; a start-up adjustment when calculating otherwise available in reaching the rather, Olmue expanded the size and Olmue’s COP. applicable determination under this
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title.2 Section 776(b) of the Act further resources to respond to the exclusive of any applicable billing provides that adverse inferences may be Department’s questionnaire. adjustments, movement expenses, direct used when a party has failed to In accordance with section 776(b) of selling expenses, commissions, indirect cooperate by not acting to the best of its the Act, if the Department finds that ‘‘an selling expenses, and packing expenses. ability to comply with a request for interested party failed to cooperate by In determining whether to disregard information. not acting to the best of its ability to comparison market sales made at prices As noted in the background section comply with a request for information,’’ below the COP, we examined, in above, on February 18, 2004, the an adverse inference may be used in accordance with sections 773(b)(1)(A) Department initiated an investigation to determining the facts otherwise and (B) of the Act, whether such sales determine whether Uren made available. Because Uren’s supplier, were made (1) within an extended comparison market sales during the which, as a producer of subject period of time in substantial quantities POR at prices below the COP, within the merchandise, is an interested party in and (2) at prices which did not permit meaning of section 773(b) of the Act. We this proceeding, did not act to the best the recovery of costs within a reasonable received a response from Uren to of its ability by failing to provide the period of time. section D of the Department’s COP information requested by the b. Results of the COP Test. Pursuant antidumping duty questionnaire on Department, we preliminarily find that to section 773(b)(1) of the Act, where April 5, 2004. In its response, Uren it is appropriate to make an adverse less than 20 percent of a respondent’s reported two different scenarios inference pursuant to section 776(b) of sales of a given product during the POR depicting its costs: (1) Its acquisition the Act with respect to the finished were at prices less than the COP, we do cost for finished subject merchandise berries purchased from that supplier. As not disregard any below-cost sales of (i.e., Uren acted as a reseller of the adverse facts available for purchases of that product because we determine that subject merchandise); and (2) its cost for finished berries from Uren’s largest in such instances the below-cost sales purchases of fresh fruit from unaffiliated supplier, because we did not have any were not made in ‘‘substantial parties and its cost for having an COP information from any producer of quantities.’’ Where 20 percent or more unaffiliated subcontractor process the finished berries supplying Uren, we of a respondent’s sales of a given fruit. In the second scenario, Uren is the used the highest of any cost reported by product are at prices less than the COP, producer of the tolled merchandise Uren, plus amounts for G&A expenses we determine that the below-cost sales pursuant to 19 CFR 351.401(h). and financial expenses, in accordance represent ‘‘substantial quantities’’ with section 776(a) of the Act. In this within an extended period of time, in Where the sale to an exporter or case, the highest cost reported on the reseller is finished subject merchandise, accordance with section 773(b)(1)(A) of record was a purchase price by Uren for the Act. In such cases, we also the Department’s practice is to rely on finished berries. As noted above, when determine whether such sales were the COP of the producer. See Notice of calculating COP, the Department’s made at prices which would not permit Final Determination of Sales at Less practice is to disregard acquisition costs recovery of all costs within a reasonable Than Fair Value; Honey From in favor of the COP of the producer. period of time, in accordance with Argentina, 66 FR 50611 (October 4, However, based on our comparison of section 773(b)(1)(B) of the Act. 2001) and accompanying Decision the available cost information in this Memorandum, at Comment 1. review, we found that Uren’s highest We found that, for Olmue, SANCO Consistent with our practice regarding reported acquisition cost for purchases and Uren, for certain specific products, resales of subject merchandise, we of finished berries was the highest cost more than 20 percent of the comparison requested COP data from Uren’s largest on the record of this proceeding and, market sales were at prices less than the 3 supplier on April 13, 2004. On May 12, therefore, appropriate as an adverse COP and, thus, the below-cost sales 2004, we received a letter from the surrogate for the actual cost of were made within an extended period of supplier stating, among other things, production. time in substantial quantities. In that it does not export subject As noted above, the Department only addition, these sales were made at merchandise and that it did not have the requested COP information from Uren’s prices that did not provide for the largest supplier of finished berries. The recovery of costs within a reasonable 2 Where the Department determines that a remaining suppliers of finished berries period of time. We therefore excluded response to a request for information does not were not asked to provide cost data for these sales and used the remaining comply with the request, section 782(d) of the Act sales, if any, as the basis for determining provides that the Department will so inform the the POR and, thus, cannot be found to party submitting the response and will, to the have been non-cooperative. Therefore, NV, in accordance with section extent practicable, provide that party the for IQF berries purchased from the 773(b)(1) of the Act. opportunity to remedy or explain the deficiency. If remaining suppliers, we applied neutral For U.S. sales of subject merchandise the party fails to remedy the deficiency within the for which there were no comparable applicable time limits, the Department may, subject facts available for the preliminary to section 782(e) of the Act, disregard all or part of results, pursuant to sections 776(a)(2)(A) comparison market sales in the ordinary the original and subsequent responses, as and (B) of the Act. As neutral facts course of trade (e.g., sales that passed appropriate. Section 782(e) of the Act provides that available, we have used Uren’s reported the cost test), we compared those sales the Department ‘‘shall not decline to consider average COP from its tolled to constructed value (‘‘CV’’), in information that is submitted by an interested party and is necessary to the determination but does not merchandise, plus amounts for G&A accordance with section 773(a)(4) of the meet all the applicable requirements established by expenses and financial expenses. Act. the administering authority’’ if the information is a. Test of Comparison Market Prices. C. Calculation of Constructed Value timely, can be verified, and is not so incomplete On a product-specific basis, we that it cannot be used, and if the interested party acted to the best of its ability in providing the compared the adjusted weighted- Section 773(a)(4) of the Act provides information. Where all of these conditions are met, average COP to the comparison market that where NV cannot be based on the statute requires the Department to use the sales of the foreign like product during comparison-market sales, NV may be information, if it can do so without undue the POR, as required under section based on CV. Accordingly, when sales difficulties. 3 Uren had multiple suppliers of IQF raspberries 773(b) of the Act, in order to determine of comparison products could not be during the POR. We requested COP information whether sales had been made at prices found, either because there were no from Uren’s largest supplier only. below the COP. The prices were sales of a comparable product or all
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sales of the comparable products failed the starting prices before any SANCO reported two channels of the COP test, we based NV on CV. adjustments. When the Department is distribution in each market. In channel In accordance with sections 773(e)(1) unable to match U.S. sales to sales of the one in the U.S. market, the customer is and (e)(2)(A) of the Act, we calculated foreign like product in the comparison the importer of record and arranges for CV based on the sum of the cost of market at the same LOT as the EP, the customs entry and pays the customs materials and fabrication for the subject Department may compare the U.S. sale duties. In channel two in the U.S. merchandise, plus amounts for selling to sales at a different LOT in the market, SANCO is the importer of expenses, G&A expenses, financial comparison market. In comparing EP record and arranges for customs entry expenses, profit, and U.S. packing costs. sales at a different LOT in the and pays the customs duties. SANCO We made the same adjustments to the comparison market, where available sells to the same type of customer in CV costs as described in the data make it practicable, we make an both channels of trade. Except for the ‘‘Calculation of COP’’ section of this LOT adjustment under section differences regarding the entry of the notice. In accordance with section 773(a)(7)(A) of the Act. merchandise, there are no differences in 773(e)(2)(A) of the Act, we based selling the selling activities for these two Olmue expenses, G&A expenses, and profit on channels of distribution. Therefore, we the amounts incurred and realized by Olmue reported a single channel of preliminarily determine that there is a the respondent in connection with the distribution and a single LOT in each single LOT in the U.S. market. production and sale of the foreign like market and claimed that its sales in both Similarly, in channel one in the third product in the ordinary course of trade markets were at the same LOT. country market, SANCO ships for consumption in the foreign country. Therefore, Olmue did not request an raspberries directly from the plant to the LOT adjustment. customer. In channel two in the third D. Level of Trade We examined the information country market, SANCO warehouses the Section 773(a)(1)(B)(ii) of the Act reported by Olmue regarding its raspberries before they are shipped to states that, to the extent practicable, the marketing processes for its comparison the customer. SANCO sells to the same Department will calculate NV based on market and U.S. sales, including type of customer in both channels of sales at the same level of trade (‘‘LOT’’) customer categories and the type and distribution. Although these two as the EP. Sales are made at different level of selling activities performed. channels of distribution differ slightly LOTs if they are made at different Olmue reported that it sold to in terms of processing activity (i.e., marketing stages (or their equivalent). distributors and end-users in the third warehousing), the selling activities See 19 CFR 351.412(c)(2). Substantial country and to traders, distributors, end- undertaken by SANCO are otherwise differences in selling activities are a users, and retailers in the United States. identical. Therefore, we find a single necessary, but not sufficient, condition In both markets, Olmue reported similar LOT in SANCO’s third country market. for determining that there is a difference selling activities regardless of the Comparing sales in SANCO’s two in the stages of marketing. Id.; see also customer category. Thus, we markets, there is no indication that there Notice of Final Determination of Sales preliminarily determine that Olmue were significantly different selling at Less Than Fair Value: Certain Cut-to- sold to a single LOT in the comparison activities or sales process activities. Length Carbon Steel Plate From South and U.S. markets. Moreover, there was SANCO also did not grant rebates or Africa, 62 FR 61731, 61732 (November only a minor difference in the selling discounts, provide technical services or 19, 1997). In order to determine whether activities between the two markets. In post-sale warehousing, or incur the comparison sales were at different the U.S. market, Olmue received interest advertising expenses on either U.S. or stages in the marketing process than the revenue on several sales to one third country sales. U.S. sales, we reviewed the distribution customer. Otherwise, sales in both Therefore, the Department finds that a system in each market (i.e., the ‘‘chain markets were direct shipments to single LOT exists in both the U.S. and of distribution’’),4 including selling customers from the plant. Olmue also third country markets, and that functions,5 class of customer (‘‘customer did not grant rebates or discounts, SANCO’s sales in the U.S. and third category’’), and the level of selling provide technical services or post-sale country markets are made at the same expenses for each type of sale. warehousing, or incur advertising LOT. Pursuant to section 773(a)(1)(B)(I) of expenses in either the third country or Uren the Act, in identifying levels of trade for U.S. market. Therefore, the Department Uren reported selling to a single EP and comparison market sales (i.e., preliminarily determines that Olmue’s customer category through two channels NV based on either comparison market sales in the comparison and U.S. of distribution in the comparison or third country prices 6),we consider markets were made at the same LOT. market: (1) Direct delivery sales from 4 The marketing process in the United States and SANCO Chile to the customer (channel 1); and comparison market begins with the producer and SANCO reported that it had a single (2) sales out of inventory in the United extends to the sale to the final user or customer. LOT in the comparison and U.S. Kingdom (channel 2). We examined The chain of distribution between the two may have these channels reported by Uren and many or few links, and the respondents’ sales occur markets and that the LOT in each of somewhere along this chain. In performing this these markets was the same. Therefore, found that they were similar with evaluation, we considered each respondent’s SANCO has not requested an LOT respect to freight services and warranty narrative response to properly determine where in adjustment. service. However, we found that they the chain of distribution the sale occurs. We examined the information varied significantly with respect to sales 5 Selling functions associated with a particular process (e.g., customer visits, forecasting chain of distribution help us to evaluate the level(s) reported by SANCO regarding its of trade in a particular market. For purposes of marketing processes for its comparison services, re-sorting, etc.), and these preliminary results, we have organized the market and U.S. sales, including warehousing/inventory maintenance. common selling functions into four major customer categories and the type and Based on our overall analysis of the categories: sales process and marketing support, comparison market, we preliminarily freight and delivery, inventory and warehousing, level of selling activities performed. and quality assurance/warranty services. find that channel 1 and channel 2 6 Where NV is based on CV, we determine the NV derive selling expenses, G&A and profit for CV, constitute distinct LOTs, LOTH 1 and LOT based on the LOT of the sales from which we where possible. LOTH 2, respectively.
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In the U.S. market, Uren reported market packing costs and added U.S. Assessment Rates sales to processors and trading packing costs in accordance with Pursuant to 19 CFR 351.212(b), the companies/resellers through a single section 773(a)(6)(A) and (B) of the Act. Department calculates an assessment channel of distribution, direct sales. To calculate NV, we relied upon the rate for each importer of the subject Sales to these two customer categories data submitted by the respondents, merchandise for each respondent. Upon through this channel of distribution except as noted below: issuance of the final results of this were similar with respect to sales Olmue administrative review, if any importer- process, warehouse/inventory specific assessment rates calculated in maintenance and warranty service, and the final results are above de minimis differed only slightly with respect to We recalculated Olmue’s imputed (i.e., at or above 0.5 percent), the freight services. Therefore, we credit expenses using the gross unit Department will issue appraisement preliminarily find that Uren had a single price adjusted for pricing adjustments. instructions directly to U.S. Customs LOT for its U.S. sales. For further discussion, see Olmue When we compare Uren’s U.S. LOT to Calculation Memorandum. and Border Protection to assess antidumping duties on appropriate the comparison market LOTs, we find SANCO that the LOT in the United States was entries. similar to the comparison market LOTH For certain sales, we revised SANCO’s To determine whether the duty 1 but differed considerably from the reported date of sale, warehousing assessment rates covering the period comparison market LOTH 2 with expenses, and international freight were de minimis, in accordance with respect to sales process and warehouse/ expenses based on information obtained the requirement set forth in 19 CFR inventory maintenance. Consequently, at verification. We also revised 351.106(c)(2), for each respondent we we matched Uren’s U.S. sales to sales SANCO’s indirect selling expense ratio calculate importer (or customer)-specific LOTH 1 in the comparison market. and, accordingly, recalculated indirect ad valorem rates by aggregating the Where no matches at the same LOT selling expenses. In addition, we dumping margins calculated for all U.S. were possible, we matched to sales in recalculated imputed credit expenses sales to that importer (or customer) and LOTH 2 and, where appropriate because because SANCO revised its date of sale dividing this amount by the total value there was a pattern of consistent price but did not revise its reported credit of the sales to that importer (or differences between different LOTs, expenses. See SANCO Verification customer). Where an importer (or made an LOT adjustment. See section Report at 2, 11–13, and 15–17. For customer)-specific ad valorem rate is 773(a)(7)(A) of the Act. further discussion, see SANCO greater than de minimis and the Calculation Memorandum. respondent has reported reliable entered E. Calculation of Normal Value Based values, we apply the assessment rate to on Comparison Market Prices Uren the entered value of the importer’s/ We calculated NV based on ex- customer’s entries during the review We reallocated certain indirect selling factory, FOB, C&F, and delivered prices period. Where an importer (or expenses to G&A expenses. For further to unaffiliated customers in the customer)-specific ad valorem rate is discussion, see Uren Calculation comparison market. We identified the greater than de minimis and we do not starting price and made adjustments for Memorandum. have entered values, we calculate a per- billing adjustments, where appropriate. F. Calculation of Normal Value Based unit assessment rate by aggregating the In accordance with section on Constructed Value dumping duties due for all U.S. sales to 773(a)(6)(B)(ii) of the Act, we made each importer (or customer) and deductions for movement expenses, For price-to-CV comparisons, we dividing this amount by the total including domestic inland freight, pre- made adjustments to CV in accordance quantity sold to that importer (or sale warehousing expenses, with section 773(a)(8) of the Act. We customer). international freight, marine insurance, made adjustments to CV for differences The Department will issue third country duties, and third country in circumstances of sale in accordance appropriate assessment instructions inland freight, where applicable. In with section 773(a)(6)(C)(iii) of the Act directly to U.S. Customs and Border addition, we made adjustments under and 19 CFR 351.410. In addition, we Protection within 15 days of publication section 773(a)(6)(C)(iii) of the Act and added U.S. packing costs. of the final results of this review. 19 CFR 351.410 for differences in Currency Conversion Cash Deposit Rates circumstances of sale for imputed credit expenses, and other direct selling We made currency conversions in The following deposit requirements expenses, where appropriate. For accordance with section 773A(a) of the will be effective upon publication of the Olmue, we also made adjustments, Act based on the exchange rates in effect final results of this administrative where appropriate, for indirect selling on the date of the U.S. sale as reported review for all shipments of IQF red expenses incurred in the comparison by the Federal Reserve Bank. raspberries from Chile entered, or market or the United States where withdrawn from warehouse, for commissions were granted on sales in Preliminary Results of Review consumption on or after the publication one market but not in the other (the We preliminarily find the following date, as provided for by section commission offset), in accordance with weighted-average dumping margins: 751(a)(1) of the Act: (1) The cash deposit 19 CFR 351.410(e). rates for the reviewed companies will be Furthermore, we made adjustments Weighted-average the rate established in the final results for differences in costs attributable to Exporter/manufacturer margin percentage of this review, except if a rate is less differences in the physical than 0.50 percent, and therefore, de characteristics of the merchandise (the Fruticola Olmue, S.A. 1.46 minimis within the meaning of 19 CFR ‘‘DIFMER’’ adjustment), where Santiago Comercio 0.25 (de minimis) 351.106(c)(1), in which case the cash applicable, in accordance with section Exterior deposit rate will be zero; (2) if the Exportaciones, Ltda. 773(a)(6)(C)(ii) of the Act and 19 CFR Uren Chile, S.A...... 13.41 exporter is not a firm covered in this 351.411. We also deducted comparison review, but was covered in a previous
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review or the original LTFV DEPARTMENT OF COMMERCE Fittings that are made out of ductile investigation, the cash deposit rate will iron that have the same physical continue to be the company-specific rate International Trade Administration characteristics as the gray or cast iron published for the most recent period; (3) [A–570–875] fittings subject to the scope above or if the exporter is not a firm covered in which have the same physical this review, the previous review, or the Non-Malleable Cast Iron Pipe Fittings characteristics and are produced to original investigation, but the From the People’s Republic of China: ASME B.16.3, ASME B.16.4, or ASTM manufacturer is, the cash deposit rate Notice of Rescission of Antidumping A–395 specifications, threaded to ASME will be the rate established for the most Duty Administrative Review B1.20.1 specifications and UL certified, recent period for the manufacturer of regardless of metallurgical differences AGENCY: Import Administration, the merchandise; and (4) the cash between gray and ductile iron, are also International Trade Administration, deposit rate for all other manufacturers included in the scope of this petition. Department of Commerce. and/or exporters of this merchandise, These ductile fittings do not include shall be 6.33 percent, the ‘‘all others’’ ACTION: Notice of rescission of grooved fittings or grooved couplings. rate established in the LTFV antidumping duty administrative Ductile cast iron fittings with mechanical joint ends (MJ), or push on investigation (see 67 FR 45460, July 9, review. ends (PO), or flanged ends and 2002). SUMMARY: In response to a request from produced to the American Water Works These requirements, when imposed, Anvil International, Inc. (Anvil) and Association (AWWA) specifications shall remain in effect until publication Ward Manufacturing, Inc. (Ward), AWWA C110 or AWWA C153 are not of the final results of the next domestic producers of subject included. administrative review. merchandise and interested parties in Imports of covered merchandise are this proceeding, the Department of currently classifiable in the Harmonized Public Comment Commerce (the Department) initiated an Tariff Schedule of the United States Any interested party may request a administrative review of the (HTSUS) under item numbers antidumping duty order on non- hearing within 30 days of publication of 7307.11.00.30, 7307.11.00.60, malleable cast iron pipe fittings (pipe this notice. A hearing, if requested, will 7307.19.30.60 and 7307.19.30.85. fittings) from the People’s Republic of be held 37 days after the publication of HTSUS subheadings are provided for China (PRC). The period of review this notice, or the first business day convenience and customs purposes. The (POR) is April 1, 2003, through March written description of the scope of this thereafter. Interested parties may submit 31, 2004. For the reason discussed proceeding is dispositive. case briefs within 30 days of the date of below, we are rescinding this Background publication of this notice. Rebuttal administrative review. briefs, which must be limited to issues EFFECTIVE DATE: August 6, 2004. On April 1, 2004, the Department raised in the case briefs, may be filed published a notice of opportunity to FOR FURTHER INFORMATION CONTACT: Sam not later than 35 days after the date of request an administrative review of the Zengotitabengoa or Mark Manning, publication of this notice. The antidumping order on pipe fittings from Office 4, Office of AD/CVD Department will issue the final results the PRC. See Antidumping or Enforcement, Import Administration, of this administrative review, which Countervailing Duty Order, Finding, or International Trade Administration, will include the results of its analysis of Suspended Investigation; Opportunity U.S. Department of Commerce, 14th issues raised in any such comments, To Request Administrative Review, 69 Street and Constitution Avenue, NW., within 120 days of publication of the FR 17129 (April 1, 2004). On May 27, Washington, DC 20230; telephone (202) preliminary results. 2004, pursuant to a request made by 482–4195 or (202) 482–5253, Anvil and Ward, the Department Notification to Importers respectively. initiated an administrative review of the This notice also serves as a SUPPLEMENTARY INFORMATION: antidumping duty order on pipe fittings preliminary reminder to importers of Scope of the Order from the PRC. See Initiation of their responsibility under 19 CFR Antidumping and Countervailing Duty For purposes of this review, the 351.402(f) to file a certificate regarding Administrative Reviews and Requests products covered are finished and the reimbursement of antidumping for Revocation in Part, 69 FR 30282 unfinished non-malleable cast iron pipe (May 27, 2004). On July 27, 2004, Anvil duties prior to liquidation of the fittings with an inside diameter ranging relevant entries during this review and Ward timely withdrew their request from 1⁄4 inch to 6 inches, whether period. Failure to comply with this for an administrative review of pipe threaded or un-threaded, regardless of fittings from the PRC. requirement could result in the industry or proprietary specifications. Secretary’s presumption that The subject fittings include elbows, ells, Rescission of Review reimbursement of antidumping duties tees, crosses, and reducers as well as If a party that requested a review occurred and the subsequent assessment flanged fittings. These pipe fittings are withdraws the request within 90 days of of double antidumping duties. also known as ‘‘cast iron pipe fittings’’ the date of publication of notice of This administrative review and notice or ‘‘gray iron pipe fittings.’’ These cast initiation of the requested review, the are in accordance with sections iron pipe fittings are normally produced Secretary will rescind the review 751(a)(1) and 777(I)(1) of the Act. to ASTM A–126 and ASME B.l6.4 pursuant to 19 CFR 351.213(d)(1). In specifications and are threaded to this case, Anvil and Ward withdrew Dated: July 29, 2004. ASME B1.20.1 specifications. Most their request for an administrative Jeffrey May, building codes require that these review within 90 days from the date of Acting Assistant Secretary for Import products are Underwriters Laboratories initiation. No other interested party Administration. (UL) certified. The scope does not requested a review and we have [FR Doc. 04–17938 Filed 8–5–04; 8:45 am] include cast iron soil pipe fittings or received no comments regarding Anvil BILLING CODE 3510–DS–P grooved fittings or grooved couplings. and Ward’s withdrawal of their request
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for a review. Therefore, we are We preliminarily determine that Ticaret, A.S., (Oba) in accordance with rescinding the initiation of this review during the period of review (POR), Filiz 19 CFR 351.213(b)(1). On August 22, of the antidumping duty order on pipe Gida Sanayi ve Ticaret A.S. (Filiz) and 2003, we published the notice of fittings from the PRC. Tat Konserve A.S¸. (Tat), successor-in- initiation of this antidumping duty interest to Pastavilla Makarnacilik San. administrative review covering the Notification to Importers V. Tic. A.S¸., (Pastavilla) 1 sold subject period July 1, 2002, through June 30, This notice serves as a final reminder merchandise at less than normal value 2003, for Filiz, Tat, Beslen, Gidasa, and to importers of their responsibility (NV). If these preliminary results are Oba. See Notice of Initiation, 68 FR under 19 CFR 351.402(f) to file a adopted in the final results of this 50750 (August 22, 2003). certificate regarding the reimbursement administrative review, we will instruct On September 10, 2003, we sent the of antidumping duties prior to the U.S. Customs and Border Protection antidumping duty questionnaires to liquidation of the relevant entries (CBP) to assess antidumping duties Filiz, Tat, Beslen, Gidasa, and Oba.2 during this review period. Failure to based on the difference between the On September 29, 2003, Oba sent a comply with this requirement could export price (EP) and NV. letter to the Department stating that it result in the Secretary’s presumption Interested parties are invited to had no shipments of subject that reimbursement of antidumping comment on these preliminary results. merchandise to the United States. On duties occurred and subsequent Parties who submit comments in this October 3, 2003, petitioners withdrew assessment of double antidumping proceeding should also submit with their request for review for Beslen, duties. them: (1) A statement of the issues; (2) Gidasa, and Oba. This notice also serves as a reminder a brief summary of their comments; and For both Filiz and Tat, the to parties subject to administrative (3) a table of authorities. Further, we Department disregarded sales below the protective order (APO) of their would appreciate it if parties submitting cost of production during the most responsibility concerning the written comments would provide the recently completed segment of the disposition of proprietary information Department with an additional copy of proceeding in which these companies disclosed under APO in accordance the public version of any such participated.3 Therefore, pursuant to with 19 CFR 351.305(a)(3). Timely comments on diskette. section 773(b)(2)(A)(ii) of the Tariff Act written notification of the return/ EFFECTIVE DATE: August 6, 2004. of 1930, as amended (the Act), we had destruction of APO materials or FOR FURTHER INFORMATION CONTACT: reasonable grounds to believe or suspect conversion to judicial protective order is Lyman Armstrong or Mark Young, AD/ that sales by these companies of the hereby requested. Failure to comply foreign like product under consideration with the regulations and the terms of an CVD Enforcement, Office 3, Import Administration, International Trade for the determination of NV in this APO is a sanctionable violation. review were made at prices below the This notice is in accordance with Administration, U.S. Department of Commerce, 14th Street and Constitution cost of production (COP). Thus, we section 777(i)(1) of the Act and 19 CFR initiated a cost investigation of Filiz and 251.213(d)(4). Avenue, NW., Washington, DC 20230; telephone: (202) 482–3601 or (202) 482– Tat at the time we initiated the Dated: August 2, 2004. 6397, respectively. antidumping review. Jeffrey May, Filiz and Tat submitted their sections SUPPLEMENTARY INFORMATION Deputy Assistant Secretary for Import A through D questionnaire responses on Administration, Group I. Background October 31, 2003, and November 12, [FR Doc. 04–18045 Filed 8–5–04; 8:45 am] On July 24, 1996, the Department 2003, respectively. Both Tat and Filiz BILLING CODE 3510–DS–P published in the Federal Register the submitted voluntary supplemental antidumping duty order on pasta from submissions to the Department on Turkey (61 FR 38545). On July 2, 2003, December 18, 2003. Tat and Filiz also DEPARTMENT OF COMMERCE we published in the Federal Register 2 the notice of ‘‘Opportunity to Request Section A of the questionnaire requests general International Trade Administration information concerning a company’s corporate Administrative Review’’ of this order, structure and business practices, the merchandise [A–489–805] for the period July 1, 2002, through June under investigation that it sells, and the manner in 30, 2003 (68 FR 39511). which it sells that merchandise in all of its markets. Certain Pasta From Turkey: Notice of On July 31, 2003, we received a Section B requests a complete listing of all home market sales or, if the home market is not viable, Preliminary Results of Antidumping request for review on behalf of Duty Administrative Review of sales in the most appropriate third-country petitioners, for Filiz, Tat, Beslen market (this section is not applicable to respondents AGENCY: Import Administration, Makarna Gida Sanayi ve Ticaret, A.S., in non-market economy cases). Section C requests and Beslen Pazarlarma Gida Sanayi ve a complete listing of U.S. sales. Section D requests International Trade Administration, information on the cost of production of the foreign Department of Commerce. Ticaret A.S., respectively (collectively like product and the constructed value of the ACTION: Notice of preliminary results of Beslen), Gidasa Sabanci Gida Sanayi ve merchandise under investigation. Section E antidumping duty administrative Ticaret, A.S. (successor to Maktas requests information on further manufacturing. Makarnacilik ve Ticaret, A.S.) (Gidasa), 3 For Tat, the fourth administrative review review. covering the period July 1, 1999, through June 30, and Oba Makarnacilik Sanayi ve 2000, was the most recently completed review. See SUMMARY: In response to a request by the Certain Pasta From Turkey: Final Results of petitioners, New World Pasta Company, 1 The Department has previously determined that Antidumping Duty Administrative Review and American Italian Pasta Company, and Tat is the successor-in-interest to Pastavilla Determination Not To Revoke the Antidumping Makarnacilik San. V. Tic. A.S¸. (Pastavilla), and that Duty Order in Part, 67 FR 298 (January 3, 2002) Dakota Growers Pasta Company, the Tat retains the antidumping and countervailing (Pasta from Turkey 4). For Filiz, the fifth Department of Commerce (the duty deposit rates assigned to Pastavilla by the administrative review covering the period July 1, Department) is conducting an Department in the most recently completed 2000, through June 30, 2001, was the most recently administrative review of the antidumping and countervailing duty completed review. See Certain Pasta From Turkey: administrative reviews. See Notice of Final Results Final Results of Antidumping Duty Administrative antidumping duty order on certain pasta of Antidumping and Countervailing Duty Changed Review and Determination Not To Revoke the (pasta) from Turkey for the period July Circumstances Reviews: Certain Pasta from Turkey, Antidumping Duty Order in Part, 68 FR 6880 1, 2002, through June 30, 2003. 69 FR 1280 (January 8, 2004). (February 11, 2003) (Pasta from Turkey 5).
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submitted a second voluntary egg pasta, with the exception of non-egg Italy, 61 FR 30326 (June 14, 1996) (Pasta submission on February 24, and dry pasta containing up to two percent Investigation), we established that February 26, 2004, respectively. egg white. differences in wheat quality may be The Department issued supplemental The merchandise subject to review is commercially significant as measured sections A through D questionnaires to currently classifiable under item by ash content, gluten content and cost. Tat on February 26, 2004, March 11, 1902.19.20 of the Harmonized Tariff See Pasta Investigation at 30346. Where 2004, and March 25, 2004. Tat Schedule of the United States (HTSUS). respondents have been able to justify submitted its responses to our Although the HTSUS subheading is differences due to ash and gluten supplemental questionnaires on March provided for convenience and Customs content, as well as cost, the Department 25, 2004, April 8, 2004, and April 15, purposes, the written description of the has found that these differences result 2004, respectively. The Department merchandise subject to the order is in more appropriate product matches, as issued supplemental sections A through dispositive. contemplated by section 771(16) of the D questionnaires to Filiz on March 25, Act. Id. 2004. Both Filiz’s and Tat’s Verification However, we preliminarily determine supplemental sections A through D As provided in section 782(i) of the that both Filiz and Tat’s second wheat questionnaires were based upon Act, we verified the cost and sales code (Wheat code 2) has failed to meet submissions filed on October 31, 2003, information provided by Tat. We used the standards outlined in the Pasta November 12, 2003, and December 18, standard verification procedures, Investigation. Specifically, Filiz and Tat 2003, respectively. Filiz submitted its including on-site inspection of the failed to provide any evidence that response to our supplemental manufacturer’s facilities and indicate ash content, gluten content or questionnaire on April 19, 2004. examination of relevant sales and cost differed among their wheat codes. On April 28, 2004, the Department financial records. Our verification Therefore, Tat’s and Filiz’s wheat codes returned Tat’s and Filiz’s second results are outlined in a verification 1 and 2 were combined for the purposes voluntary submission dated February report placed in the case file in the of these preliminary results. For further 24, and February 26, 2004, respectively, central records unit (CRU). We revised discussion of the wheat code, see the as untimely filed new factual certain sales and cost data based on company-specific calculation information pursuant to 19 CFR verification findings; see Tat’s memoranda on file in the CRU. 351.301(b)(2). See Memorandum to File Preliminary Calculation Memorandum Comparisons to Normal Value Re: Tat and Filiz to Strike Unsolicited (Preliminary Calculation Memorandum) Questionnaire Responses from the (July 30, 2004) and Verification of the To determine whether sales of certain Record, dated April 28, 2004. Sales Questionnaire of Tat (July 30, pasta from Turkey were made in the On March 17, 2004, the Department 2004) on file in the CRU. United States at less than fair value, we published a notice postponing the compared the export price (EP) to the preliminary results of this review until Product Comparisons NV, as described in the Export Price and July 29, 2004.4 See Certain In accordance with section 771(16) of Normal Value sections of this notice. Pasta from Italy and Turkey: Extension the Act, the Department first attempted Because Turkey’s economy experienced of Preliminary Results 2002/2003 to match contemporaneous sales of high inflation during the POR, as is Antidumping Duty Administrative products sold in the United States and Department practice, we limited our Reviews, 69 FR 12641 (March 17, 2004). comparison markets that were identical comparisons to home market sales made We verified the sales and cost with respect to the following during the same month in which the information submitted by Tat from May characteristics: (1) Pasta shape; (2) type U.S. sale occurred and did not apply our 10 through May 21, 2004. We did not of wheat; (3) additives; and (4) 90/60 contemporaneity rule. See, e.g., verify the sales or cost information enrichment. Where there were no sales Pasta from Turkey 5 and Notice of submitted by Filiz in the instant review. of identical merchandise in the home Preliminary Results of Antidumping Scope of Review market to compare with U.S. sales, we Duty Administrative Review: Certain compared U.S. sales with the most Welded Carbon Steel Pipe and Tube Imports covered by this review are similar product based on the From Turkey, 69 FR 18049 (April 6, shipments of certain non-egg dry pasta characteristics listed above, in 2004) (Carbon Steel Pipe and Tube). in packages of five pounds (2.27 descending order of priority. This methodology minimizes the extent kilograms) or less, whether or not For purposes of the preliminary to which calculated dumping margins enriched or fortified or containing milk results, where appropriate, we have are overstated or understated due solely or other optional ingredients such as calculated the adjustment for to price inflation that occurred in the chopped vegetables, vegetable purees, differences in merchandise based on the intervening time period between the milk, gluten, diastases, vitamins, difference in the variable cost of U.S. and home market sales. coloring and flavorings, and up to two manufacturing between each U.S. model percent egg white. The pasta covered by Export Price and the most similar home market this scope is typically sold in the retail model selected for comparison. For the price to the United States, we market, in fiberboard or cardboard used EP in accordance with section cartons, or polyethylene or Proposed Modification to Wheat Codes 772(a) of the Act because the polypropylene bags of varying Besides the wheat codes outlined in merchandise was sold by the producer dimensions. their questionnaire responses,5 Filiz and or exporter outside the United States to Excluded from the scope of this Tat have classified an additional variety the first unaffiliated purchaser in the review are refrigerated, frozen, or of wheat used in the production of pasta United States prior to importation and canned pastas, as well as all forms of as a separate wheat code. In the Notice constructed export price was not of Final Determination of Sales at Less otherwise warranted based on the facts 4 There was a typographical error in the notice of on the record. We based EP on the ‘‘Extension of Preliminary Results of Antidumping Than Fair Value: Certain Pasta From Duty Administrative Reviews;’’ the preliminary packed C&F prices to the first results of this review are actually due on July 30, 5 100 percent durum semolina and 100 percent unaffiliated customer in the United 2004. whole wheat. States.
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In accordance with section 772(c)(2) C. Cost of Production Analysis 3. Results of COP Test of the Act, we made deductions, where 1. Calculation of Cost of Production appropriate, for movement expenses Pursuant to section 773(b)(2)(C) of the (COP) including inland freight from plant or Act, where less than 20 percent of sales of a given product were at prices less warehouse to port of exportation, Before making any comparisons to than the COP, we did not disregard any foreign brokerage handling and loading NV, we conducted a COP analysis, below-cost sales of that product because charges, and international freight. In pursuant to section 773(b) of the Act, to we determined that the below-cost sales addition, we increased the EP by the determine whether each respondent’s were not made in ‘‘substantial amount of the countervailing duties comparison market sales were made quantities.’’ Where 20 percent or more imposed that were attributable to an below the COP. We calculated the COP of Tat or Filiz’s sales of a given product export subsidy, in accordance with based on the sum of the cost of materials during the twelve-month period were at section 772(c)(1)(C). and fabrication for the foreign like prices less than the COP, we determined product, plus amounts for selling, Normal Value such sales to have been made in general, and administrative expenses ‘‘substantial quantities’’ within an A. Selection of Comparison Markets (SG&A) and the cost of all expenses extended period of time in accordance incidental to packing and preparing the In order to determine whether there with section 773(b)(2)(B) and (C) of the was a sufficient volume of sales in the foreign like product for shipment, in accordance with section 773(b)(3) of the Act. In such cases, because we home market to serve as a viable basis compared prices to POR-average costs for calculating NV, we compared Tat Act. We relied on the respondents’ information as submitted, except in (indexed for inflation), we also and Filiz’s volume of home market sales determined that such sales were not of the foreign like product to the volume instances where we used revised data based on verification findings. See the made at prices which would permit of its U.S. sales of the subject recovery of all costs within a reasonable merchandise. Pursuant to section company-specific calculation memoranda on file in the CRU, for a period of time, in accordance with 773(a)(1)(B) of the Act, because Tat and section 773(b)(2)(D) of the Act. Filiz’s aggregate volume of home market description of any changes that we made. Therefore, for purposes of this sales of the foreign like product was administrative review, for Tat and Filiz greater than five percent of the As noted above, we determined that we disregarded the below-cost sales of companies’ aggregate volume of U.S. the Turkish economy experienced high a given product of 20 percent or more sales of the subject merchandise, we inflation during the POR. Therefore, to and used the remaining sales as the determined that the home market was avoid the distortive effect of inflation on basis for determining NV, in accordance viable for both companies. our comparison of costs and prices, we with section 773(b)(1) of the Act. requested that each respondent submit B. Arm’s-Length Test the product-specific cost of D. Calculation of Normal Value Based Tat and Filiz reported sales of the manufacturing (COM) incurred during on Comparison Market Prices each month of the period for which it foreign like product to an affiliated end- We calculated NV based on ex-factory user and an affiliated reseller. The reported home market sales. We then calculated an average COM for each or delivered prices to comparison Department calculates the NV based on market customers. We made deductions a sale to an affiliated party only if it is product after indexing the reported monthly costs to an equivalent currency from the starting price for inland freight, satisfied that the price to the affiliated warehousing, discounts, and rebates. In party is comparable to the price at level using the Turkish wholesale price index from the International Financial accordance with sections 773(a)(6)(A) which sales are made to parties not and (B) of the Act, we added U.S. affiliated with the producer or exporter, Statistics published by the International Monetary Fund (IMF). We then restated packing costs and deducted comparison i.e., sales at arms’s-length. See 19 CFR market packing costs, respectively. In 351.403(c). To test whether these sales the average COM in the currency value of each respective month. See, e.g., addition, we made circumstance of sale were made at arm’s-length, we adjustments for direct expenses, compared the starting prices of sales to Pasta from Turkey 5 and Pasta from Turkey 4. including imputed credit, advertising, affiliated and unaffiliated customers net promotions, and warranties, in of all movement charges, direct selling 2. Test of Comparison Market Prices accordance with section 773(a)(6)(C)(iii) expenses, discounts and packing. In of the Act. accordance with the Department’s As required under section 773(b) of current practice, if the prices charged to the Act, for Filiz and Tat, we compared When comparing U.S. sales with an affiliated party were, on average, the weighted-average COP to the comparison market sales of similar, but between 98 and 102 percent of the weighted-average per unit price of the not identical, merchandise, we also prices charged to unaffiliated parties for comparison market sales of the foreign made adjustments for physical merchandise identical or most similar to like product, to determine whether their differences in the merchandise in that sold to the affiliated party, we respective sales had been made at prices accordance with section 773(a)(6)(C)(ii) consider the sales to be at arm’s-length below the COP within an extended of the Act. Pursuant to section 351.411 prices. See 19 CFR 351.403(c). period of time in substantial quantities. of the Department’s regulations, we Conversely, where sales to the affiliated For Tat and Filiz, we determined the net based this adjustment on the difference party did not pass the arm’s-length test, comparison market prices for the below- in the variable COM for the foreign like all sales to that affiliated party have cost test by subtracting from the gross product and subject merchandise, using been excluded from the NV calculation. unit price any applicable movement twelve-month average costs, as adjusted See Antidumping Proceedings: charges, discounts, rebates, direct and for inflation for each month of the Affiliated Party Sales in the Ordinary indirect selling expenses (also twelve-month period, as described in Course of Trade, 67 FR 69186 (Nov. 15, subtracted from the COP), and packing the Cost of Production Analysis section 2002). expenses. above.
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E. Level of Trade (LOT) all shipments of certain pasta from Manufacturer/exporter Margin In accordance with section (percent) Turkey entered, or withdrawn from warehouse, for consumption on or after 773(a)(1)(B) of the Act, we determine Filiz ...... 8.65 NV based on sales in the comparison the publication date, as provided by market at the same LOT as the U.S. EP The Department will disclose the section 751(a)(2)(C) of the Act: (1) The sales, to the extent practicable. When calculations performed within five days cash deposit rates for the companies there are no sales at the same LOT, we of the date of publication of this notice listed above will be the rates established compare U.S. sales to comparison to the parties of this proceeding in in the final results of this review; (2) for market sales at a different LOT. accordance with 19 CFR 351.224(b). An previously reviewed or investigated Pursuant to section 351.412 of the interested party may request a hearing companies, the cash deposit rate will Department’s regulations, to determine within 30 days of publication of these continue to be the company-specific rate whether comparison market sales are at preliminary results. See 19 CFR published for the most recent final a different LOT, we examine stages in 351.310(c). Any hearing, if requested, results in which that manufacturer or the marketing process and selling will be held 44 days after the date of exporter participated; (3) if the exporter functions along the chain of distribution publication, or the first working day is not a firm covered in this review, a between the producer and the thereafter. Interested parties may submit prior review, or the original less-than- unaffiliated (or arm’s length) customers. case briefs no later than 30 days after fair-value (LTFV) investigation, but the If the comparison-market sales are at a the date of publication of these manufacturer is, the cash deposit rate different LOT and the differences preliminary results of review. Rebuttal will be the rate established for the most affected price comparability, as briefs, limited to issues raised in such recent final results for the manufacturer manifested in a pattern of consistent briefs, may be filed no later than 37 days of the merchandise; and (4) if neither price differences between the sales on after the date of publication. Parties who which NV is based and comparison- the exporter nor the manufacturer is a submit arguments are requested to firm covered in this or any previous market sales at the LOT of the export submit with the argument (1) a transaction, we make a LOT adjustment review conducted by the Department, statement of the issue, (2) a brief the cash deposit rate will be 51.49 under section 773(a)(7)(A) of the Act. summary of the argument and (3) a table Tat and Filiz reported only one level percent, the ‘‘All Others’’ rate of authorities. Further, we would established in the LTFV investigation. of trade in both the U.S. and home appreciate it if parties submitting See Notice of Antidumping Duty Order markets. We compared all EP sales to written comments would provide the and Amended Final Determination of these home market sales. Therefore, no Department with an additional copy of LOT adjustment was necessary. the public version of any such Sales at Less Than Fair Value: Certain For a detailed description of our LOT comments on diskette. The Department Pasta from Turkey, 61 FR 38546 (July methodology and a summary of will issue the final results of this 24, 1996). company-specific LOT findings for administrative review, which will These cash deposit requirements, these preliminary results, see, include the results of its analysis of when imposed, shall remain in effect Preliminary Calculation Memorandum issues raised in any such comments, or until publication of the final results of for each company on file in the CRU. at a hearing, if requested, within 120 the next administrative review. Currency Conversion days of publication of these preliminary Notification to Importers Because this proceeding involves a results. high-inflation economy, we limited our Assessment Rate This notice serves as a preliminary comparison of U.S. and home market Upon completion of this reminder to importers of their sales to those occurring in the same administrative review, pursuant to 19 responsibility under 19 CFR 351.402(f) month (as described above) and only CFR 351.212(b), the Department will to file a certificate regarding the used daily exchange rates. See Carbon calculate an assessment rate on all reimbursement of antidumping and Steel Pipe and Tube. appropriate entries. We will calculate countervailing duties prior to The Department’s preferred source for importer-specific duty assessment rates liquidation of the relevant entries daily exchange rates is the Federal on the basis of the ratio of the total during this review period. Failure to Reserve Bank. However, the Federal amount of antidumping duties comply with this requirement could Reserve Bank does not track or publish calculated for the examined sales to the result in the Secretary’s presumption exchange rates for the Turkish Lira. total entered value of the examined that reimbursement of antidumping Therefore, we made currency sales for that importer. Where the and/or countervailing duties occurred conversions based on the daily assessment rate is above de minimis, we exchange rates from the Dow Jones and the subsequent assessment of will instruct CBP to assess duties on all Service, as published in the Wall Street double antidumping duties increased by entries of subject merchandise by that Journal. See, e.g., Pasta from Turkey 5 the amount of antidumping and/or importer. and Pasta from Turkey 4. countervailing duties reimbursed. Cash Deposit Requirements This administrative review is issued Preliminary Results of Review To calculate the cash-deposit rate for and published in accordance with As a result of our review, we each producer and/or exporter included sections 751(a)(1) and 777(i)(1) of the preliminarily determine that the in this administrative review, we Act. following percentage weighted-average divided the total dumping margins for margins exist for the period July 1, 2002, Dated: July 30, 2004. each company by the total net value for through June 30, 2003: James J. Jochum, that company’s sales during the review Assistant Secretary for Import period. Margin Administration. Manufacturer/exporter (percent) The following deposit rates will be effective upon publication of the final [FR Doc. 04–18036 Filed 8–5–04; 8:45 am] Tat ...... 10.86 results of this administrative review for BILLING CODE 3510–DS–P
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DEPARTMENT OF COMMERCE Molino e Pastificio (‘‘Rummo’’), Order and Amended Final Pastificio Antonio Pallante S.r.l. Determination of Sales at Less Than International Trade Administration (‘‘Pallante’’), Industrie Alimentari Fair Value: Certain Pasta From Italy, 61 [A–475–818] Molisane S.r.l. (‘‘IAM’’), Pastificio Lucio FR 38547. On July 2, 2003, we Garofalo S.p.A. (‘‘Garofalo’’), Pastifico published in the Federal Register the Notice of Preliminary Results, Partial Fratelli Pagani S.p.A. (‘‘Pagani’’), La notice of Antidumping or Rescission of Antidumping Duty Molisana Industrie Alimentari S.p.a. Countervailing Duty Order, Finding, or Administrative Review and Revocation (‘‘La Molisana’’), and Molino e Pastificio Suspended Investigation: Opportunity of the Antidumping Duty Order in Part: Tomasello S.r.l. (‘‘Tomasello’’). Because To Request Administrative Review, 68 For the Seventh Administrative Review the withdrawal requests were timely FR 39511. of the Antidumping Duty Order on and there were no other requests for By July 31, 2003, we had received Certain Pasta From Italy review of the companies, we are requests for review from petitioners,1 rescinding the review for these and from fifteen individual Italian AGENCY: Import Administration, companies. See 19 CFR 351.213(d)(i). exporters/producers of pasta, in International Trade Administration, Finally, we preliminarily intend to accordance with 19 CFR 351.213(b)(2). Department of Commerce. revoke the antidumping duty order with In addition, on July 31, 2003, Pasta ACTION: Notice of preliminary results, respect to subject merchandise Lensi S.r.l. (‘‘Lensi’’) and Ferrara partial rescission of antidumping duty produced and also exported by Ferrara requested that the Department revoke administrative review and revocation in because Ferrara sold the merchandise at the antidumping duty order with part. not less than NV for a period of at least respect to their companies. See three consecutive years. See 19 CFR SUMMARY: In response to requests by ‘‘Revocation’’ section of this notice. interested parties, the Department of 351.222 (b)(2) and the ‘‘Revocation’’ On August 19, 2003, petitioners Commerce (‘‘the Department’’) is section of this notice. withdrew their request for Interested parties are invited to conducting an administrative review of administrative review of the comment on these preliminary results, the antidumping duty order on certain antidumping duty order with respect to partial rescission, and revocation. As a pasta (‘‘pasta’’) from Italy for the period Puglisi. further matter, an analysis of the record of review (‘‘POR’’) July 1, 2002, through On August 22, 2003, we published the evidence indicates that Corticella/ June 30, 2003. notice of initiation of this antidumping We preliminarily determine that Combattenti and its toll producer, duty administrative review covering the during the POR, Barilla Alimentare, Coopertive Lomellina Cerealicoltori period July 1, 2002, through June 30, S.p.A. (‘‘Barilla’’), Corticella Molini e S.r.l. (CLC), are affiliated. The 2003, listing these fifteen companies as Pastifici S.p.A. (‘‘Corticella’’) and its Department recognizes that, given the respondents: Barilla, Rummo, Pallante, affiliate Pasta Combattenti S.p.A. nature of their affiliation, a related issue IAM, Pagani, PAM, Ferrara, Garofalo, (‘‘Combattenti’’) (collectively, could arise with respect to whether Indalco, Riscossa, Russo, Corticella, La ‘‘Corticella/Combattenti’’), Industria there is a potential for manipulation of Molisana, Lensi, and Tomasello.2See Alimentare Colavita, S.p.A. (‘‘Indalco’’) price or production and, if so, whether Initiation of Antidumping and and its affiliate Fusco S.r.l. (‘‘Fusco’’) Corticella/Combattenti and CLC should Countervailing Duty Administrative (collectively, ‘‘Indalco’’), Pasta Lensi receive the same antidumping duty rate. Reviews and Request for Revocation in S.r.l. (‘‘Lensi’’), P.A.M. S.p.A. (‘‘PAM’’), Therefore, the Department is also Part, 68 FR 50752 (August 22, 2003) Pastificio Riscossa F. lli Mastromauro, soliciting comments on this issue for (‘‘Initiation Notice’’). S.r.l. (‘‘Riscossa’’), and Pastificio consideration in the final results of On September 2, 2003, La Molisana Carmine Russo S.p.A./Pastificio Di Nola review. withdrew its request for administrative Parties who submit comments in this S.p.A. (‘‘Russo’’), sold subject review of the antidumping duty order. segment of the proceeding should also merchandise at less than normal value On September 8, 2003, Tomasello submit with them: (1) A statement of the (‘‘NV’’). If these preliminary results are withdrew its request for administrative issues and (2) a brief summary of the adopted in the final results of this review of the antidumping duty order. comments. Further, parties submitting administrative review, we will instruct On September 10, 2003, we sent written comments are requested to U.S. Customs and Border Protection questionnaires to the twelve remaining provide the Department with an (‘‘CBP’’) to assess antidumping duties companies. electronic version of the public version equal to the difference between the On October 3, 2003, petitioners of any such comments on diskette. export price (‘‘EP’’) or constructed withdrew their request for export price (‘‘CEP’’) and NV. EFFECTIVE DATE: August 6, 2004. administrative review of the We preliminarily determine that FOR FURTHER INFORMATION CONTACT: antidumping duty order with respect to during the POR, Pastificio Guido Ferrara Mark Young or Carrie Farley, AD/CVD Pallante/IAM, Pagani, and Rummo. On S.r.l. (‘‘Ferrara’’) did not make sales of Enforcement, Office 6, Group II, Import October 14, 2003, Garofalo withdrew its the subject merchandise at less than NV Administration, International Trade request for administrative review of the (i.e., sales were made at ‘‘zero’’ or de Administration, U.S. Department of antidumping duty order. minimis dumping margins). If these Commerce, 14th Street and Constitution During the most recently completed preliminary results are adopted in the Avenue, NW., Washington, DC 20230; segments of the proceeding in which final results of this administrative telephone: (202) 482–6397 or (202) 482– Indalco and PAM participated, the review, we will instruct CBP to 0395, respectively. Department found and disregarded sales liquidate appropriate entries without SUPPLEMENTARY INFORMATION: regard to antidumping duties. 1 New World Pasta Company; Dakota Growers Furthermore, requests for review of the Background Pasta Company; Borden Foods Corporation; and antidumping order for the following On July 24, 1996, the Department American Italian Pasta Company. 2 Although the Department initiated this review eight companies were withdrawn: N. published in the Federal Register the on fifteen companies, included within that number Puglisi & F. Industria Paste Alimentari antidumping duty order on pasta from were companies known to be affiliated, namely, S.p.A. (‘‘Puglisi’’), Rummo S.p.A. Italy; see Notice of Antidumping Duty Pallante/IAM.
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that failed the cost test.3 Pursuant to would be required to submit section D 2004; (3) Ferrara from March 22 through section 773(b)(2)(A)(ii) of the Tariff Act of the questionnaire. Ferrara opted to March 26, 2004; (4) Lensi from May 17 of 1930, as amended (the Act), we had complete section D before the final though May 21, 2004; (5) PAM from reasonable grounds to believe or suspect results of the sixth review were March 15 through March 19, 2004; and that sales by these companies of the completed, and submitted sections A–D (6) Riscossa from June 21 through June foreign like product under consideration on October 31, 2003. The Department, 25, 2004. We verified the cost for the determination of NV in this in the final results of the sixth review, information submitted by: (1) Barilla review were made at prices below the did disregard sales that failed the cost from June 14 through June 18, 2004; (2) cost of production (‘‘COP’’). Therefore, test for Ferrara. See Sixth Corticella from May 24 though June 4, we initiated cost investigations of these Administrative Review of Pasta from 2004; (3) Ferrara from March 29 through companies, and instructed the Italy. The Department also disregarded April 1, 2004; and (4) Riscossa from companies to fill out sections A–D 4 sales that failed the cost test for Russo June 14 through June 18, 2004. We upon issuance of the initial in the final results of the new shipper verified the CEP information submitted questionnaire. The companies review. See Notice of Final Results of by (1) Lensi from March 29 though submitted their section D responses on New Shipper Review of the March 31, 2004; and (2) Barilla from October 31, 2003. Antidumping Duty Order on Certain June 30 through July 2, 2004. In the most recently completed Pasta from Italy, 69 FR 18869 (April 9, Partial Rescission segment of the proceeding involving 2004). On April 20, 2004, we informed Barilla,5 the Department based its final Russo that it was required to submit a In September and October 2003, determination on adverse facts section D response to the Department’s Garofalo, La Molisana, Tomasello, and available. Because the use of adverse questionnaire. Russo submitted its petitioners with respect to Pallante/ facts available precluded the section D response on May 18, 2004. IAM, Pagani, and Rummo withdrew Department from determining whether In November 2003, petitioners their requests for administrative review sales below the COP would be submitted allegations of sales below cost of the antidumping duty order. Because disregarded from Barilla’s home market against Corticella and Riscossa. We the requests were timely filed, i.e., with sales response in that proceeding, determined that petitioners’ cost 30 days of publication of the Initiation pursuant to section 773(b)(2)(A)(ii) of allegations provided a reasonable basis Notice, and because there were no other the Act, the Department requested that to initiate COP investigations, and as a requests for review of the above- Barilla respond to section D of the result, we initiated cost investigations of mentioned companies, we are questionnaire. Barilla submitted its these two companies. See the company- rescinding the review with respect these section D response on November 3, specific COP initiation memoranda, companies in accordance with 19 CFR 2003. dated December 18, 2003, in the case 351.213(d)(1). After several extensions, the file in the Central Records Unit (‘‘the Scope of Review respondents submitted their responses CRU’’), main Commerce building, room to the appropriate sections of the Imports covered by this order are B–099. Also on December 18, 2003, we shipments of certain non-egg dry pasta questionnaire during the months of informed these two companies that they October and November 2003. In its in packages of five pounds four ounces were required to respond to section D of initial release of the antidumping or less, whether or not enriched or the antidumping questionnaire. See questionnaire, the Department did not fortified or containing milk or other December 18, 2003, letters from the require Corticella, Ferrara, Lensi, optional ingredients such as chopped Department to these respondents Riscossa, or Russo to respond to section vegetables, vegetable purees, milk, requiring section D questionnaire D of the questionnaire. gluten, diastasis, vitamins, coloring and On September 12, 2003, we informed responses, in the CRU. On January 20, flavorings, and up to two percent egg Ferrara and Russo that though we did 2004, we received responses to the white. The pasta covered by this scope not initially require them to complete section D questionnaires from Corticella is typically sold in the retail market, in section D, should the Department and Riscossa. fiberboard or cardboard cartons, or disregard sales below cost in the then On March 17, 2004, the Department polyethylene or polypropylene bags of on-going final results of the sixth review published an extension of preliminary varying dimensions. of pasta from Italy (for Ferrara), and the results of this review, extending its Excluded from the scope of this 6 final results of the new shipper review preliminary results until July 30, 2004. review are refrigerated, frozen, or of pasta from Italy (for Russo), they See Certain Pasta from Italy and Turkey: canned pastas, as well as all forms of Extension of Preliminary Results of egg pasta, with the exception of non-egg 3 The most recently completed review in which 2002/2003 Antidumping Duty dry pasta containing up to two percent Indalco and PAM participated was the sixth Administrative Reviews, 69 FR 12641 egg white. Also excluded are imports of administrative review. See Notice of Final Results (March 17, 2004). organic pasta from Italy that are of the Sixth Administrative Review of the During the months of January, Antidumping Duty Order on Certain Pasta from accompanied by the appropriate Italy and Determination Not to Revoke in Part, 69 February, March, April, and May of certificate issued by the Instituto FR 6255 (February 10, 2004) (‘‘Sixth Administrative 2004, the Department issued Mediterraneo Di Certificazione, by Review of Pasta from Italy’’). supplemental, second supplemental, Bioagricoop Scrl, by QC&I International 4 Section A: Organization, Accounting Practices, and third supplemental questionnaires Markets and Merchandise. Section B: Comparison Services, by Ecocert Italia, by Consorzio Market Sales. Section C: Sales to the United States. to each respondent, as applicable. per il Controllo dei Prodotti Biologici, or Section D: Cost of Production and Constructed We conducted verification of the sales by Associazione Italiana per Value. information as follows: (1) Barilla from l’Agricoltura Biologica. 5 The most recently completed review in which June 7 through June 11, 2004; (2) Barilla participated was the fourth administrative The merchandise subject to review is review. See Notice of Final Results of Antidumping Corticella from May 24 though June 11, currently classifiable under item Duty Administrative Review, Partial Rescission of 1902.19.20 of the Harmonized Tariff 6 Antidumping Administrative Review, and As a result of a typographical error, the Schedule of the United States Revocation of Antidumping Duty Order in Part: Department published the preliminary signature Certain Pasta from Italy, 67 FR 300 (January 3, date as July 29, 2004. The actual signature date is (‘‘HTSUS’’). Although the HTSUS 2002). July 30, 2004. subheading is provided for convenience
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and customs purposes, the written of these requirements in its May 26, Barilla’s Preliminary Calculation description of the merchandise subject 2004, verification outline. See the May Memorandum. to the order is dispositive. 26, 2004, letter from the Department to Product Comparisons Barilla, in which the verification outline Verification is transmitted. In response to the In accordance with section 771(16) of As provided in section 782(i) of the Department’s request, Barilla submitted the Act, we first attempted to match Act, we conducted verification of the a list of minor corrections as contemporaneous sales of products sold sales and cost information provided by Verification Exhibit 1. in the United States and comparison Barilla, Corticella, Ferrara, and Riscossa, During the verification of Barilla’s markets that were identical with respect the sales information provided by Lensi U.S. discount and rebate fields, to the following characteristics: (1) Pasta and PAM, and the CEP information however, the verifiers discovered shape; (2) type of wheat; (3) additives; provided by Barilla and Lensi. We used certain errors and omissions that were and (4) enrichment. When there were no standard verification procedures, not among those listed in Barilla’s sales of identical merchandise in the including on-site inspection of the minor correction exhibit. Specifically, home market to compare with U.S. manufacturers’ facilities and in its questionnaire response, Barilla sales, we compared U.S. sales with the examination of relevant sales and indicated that it offered discounts to its most similar product based on the financial records. Our verification U.S. customers. See page C–29 of characteristics listed above, in results are detailed in the company- Barilla’s October 31, 2003, section C descending order of priority. When specific verification reports placed in response. Barilla also explained in its there were no appropriate comparison the case file in the CRU. We made minor questionnaire response that it offered market sales of comparable revisions to certain sales and cost data rebates based on contracts with its merchandise, we compared the based on verification findings. See the individual customers. See Id. at page C– merchandise sold in the United States to company-specific verification reports 31 and C–32. However, during constructed value (‘‘CV’’), in accordance and calculation memoranda, in the verification, the verifiers discovered that with section 773(a)(4) of the Act. CRU. Barilla failed to report a number of cash For purposes of the preliminary results, where appropriate, we have Use of Partial Facts Available discounts offered to its CEP customers and failed to report rebates granted to calculated the adjustment for The Department has determined one of its CEP customers during the differences in merchandise based on the preliminarily that the use of partial facts POR. For a more detailed discussion, difference in the variable cost of available is appropriate for purposes of see Memorandum to Eric Greynolds, manufacturing (‘‘VCOM’’) between each determining the preliminary dumping from Lyman Armstrong and Joy Zhang, U.S. model and the most similar home margin for subject merchandise sold by Re: Verification of the Sales Response of market model selected for comparison. Barilla. Specifically, the Department has Barilla Alimentare and Barilla America On page 7 of its April 2, 2004, applied partial facts available for (collectively, ‘‘Barilla’’) in the 02/03 supplemental questionnaire response various expenses and adjustments with Administrative Review of the (‘‘Russo’s supplemental response’’), respect to the margin program for Antidumping Duty Order of Certain Russo requested separate treatment for Barilla. See Barilla’s July 30, 2004, Pasta from Italy (‘‘Barilla Verification pasta produced at the Di Nola Preliminary Calculation Memorandum Report’’), available in the CRU. production workshop in Gragnano, (‘‘Barilla’s Preliminary Calculation As long recognized by the Court of Italy.7 The Di Nola facility produces Memorandum’’). International Trade (‘‘CIT’’), the burden only artisan pasta made and packaged Section 776(a)(2) of the Act provides is on the respondent, not the by hand, using traditional techniques. that ‘‘if an interested party or any other Department, to create a complete and The traditional artisan techniques used person—(A) withholds information that accurate record. See Pistachio Group of to produce pasta at the Gragnano facility has been requested by the administering Association Food Industries v. United imbue the pasta with significant authority; (B) fails to provide such States, 641 F. Supp. 31, 39–40 (CIT differences in physical characteristics information by the deadlines for the 1987). In its narrative questionnaire from pasta produced in Russo’s submission of the information or in the response, Barilla indicated that it industrial Cicciano production facility. form and manner requested, subject to offered certain discounts and rebates to Namely, the pasta has an irregular, subsections (c)(1) and (e) of section 782; its U.S. customers during the POR. hand-made appearance, a rougher (C) significantly impedes a proceeding However, during verification the surface texture, and superior texture and under this title; or (D) provides such verifiers discovered that Barilla failed to taste when compared to commodity information but the information cannot report certain discounts for a small pasta. In addition, the company uses be verified as provided in section 782(i), subset of its U.S. sales and rebates for upscale packaging that prominently the administering authority shall, one of its CEP customers. Therefore, in labels the product as artisan, specialty subject to section 782(d), use the facts accordance with section 776(a)(2)(B) of pasta; the packaging and labeling of the otherwise available in reaching the the Act, we are applying partial facts pasta make up over 50 percent of its applicable determination under this otherwise available in calculating final value. See Russo’s supplemental title.’’ Barilla’s dumping margin. As facts response at 6. The company markets the From June 30, through July 2, 2004, available, the Department applied a cash product separately to high-end the Department conducted a verification discount to all sales to all of Barilla’s boutiques, specialty and gourmet food of Barilla’s questionnaire response at the CEP customers. Further, for the one shops, and to upscale restaurants. Id. headquarters of the company’s U.S. customer for which Barilla failed to Due to the heavy reliance on manual affiliate in Chicago, Illinois. At report a rebate, the verifiers were able to labor in the production process, the verification, the Department’s verifiers establish the portion of the rebate that pasta produced at the Gragnano asked Barilla to present minor changes, Barilla granted the customer during workshop has significantly higher costs if any, to its questionnaire response 2002. Therefore, as partial facts of production and selling prices relative resulting from the company’s available, we applied the rebate in effect preparation for verification. The for that customer in 2002 to the portion 7 Russo and Di Nola merged into one company Department previously notified Barilla of 2003 covered by the POR. See effective January 1, 2003.
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to the commodity pasta produced at Faryar Shirzad, Assistant Secretary, for Notice of Final Determination of Sales Russo’s industrial plant in Cicciano, Import Administration, ‘‘Issues and at Less Than Fair Value: Certain Pasta Italy. See Russo’s October 31, 2003, Decision Memorandum for the Fifth from Italy, 61 FR 30326, 30346 (June 14, response to sections A–C of the Antidumping Duty Administrative 1996) (‘‘Pasta Investigation’’). Where Department’s questionnaire (‘‘Russo’s Review;’’ and page 4 of the January 3, respondents have been able to justify sections A–C response’’); see also 2002, memorandum to Richard W. differences due to ash and gluten Russo’s May 18, 2004, response to Moreland, Acting Assistant Secretary, content, as well as cost, the Department section D of the Department’s for Import Administration, ‘‘Issues and has found that these differences result questionnaire (‘‘Russo’s section D Decision Memorandum for the Fourth in more appropriate product matches, as response’’). For a detailed discussion of Antidumping Duty Administrative contemplated by section 771(16) of the the production processes at both Review; Final Results of Review,’’ both Act. Id. facilities, see the December 24, 2003, on file in the CRU. See also Notice of Ferrara reported two wheat codes in memorandum to Melissa G. Skinner Final Results and Partial Rescission of its sales database. We preliminarily regarding ‘‘Whether to Collapse Antidumping Duty Administrative determine that Ferrara’s wheat code 2 Pastificio Carmine Russo, S.p.A Review: Certain Pasta from Italy, 64 FR has met the standards outlined in the (‘‘Russo’’) and Di Nola S.p.A. (‘‘Di 6615 (February 10, 1999); and Certain Pasta Investigation for classification as Nola’’) in the Preliminary Results’’ Pasta from Turkey: Final Results of a separate wheat code. Specifically, (‘‘Russo Collapsing Memo’’), originally Antidumping Administrative Review, 65 Ferrara’s wheat code 2 has on the record of the recently-completed FR 77857 (December 13, 2000). commercially significant ash content new shipper review of pasta from Italy, Moreover, in a March 1, 2004, differences from its wheat code 1. See and placed on the record of this review decision, the CIT upheld the Ferrara’s December 17, 2003, by the Department. Department’s decision in the fifth Questionnaire Response at 5, and These differences in physical review of certain pasta from Italy to Exhibit 4 at 3. See also July 30, 2004, characteristics, in addition to the classify Ferrara’s bronze-die and teflon- Memorandum Re: Verification of the differences in the packaging and die pasta (both industrially produced) as Sales and Cost Responses of Ferrara in labeling of the products, are so separate for product-matching purposes. the 02/03 Administrative Review of the consequential to the purchaser of either See New World Pasta Company v. Antidumping Order of Certain Pasta product that the two products share United States, 316 F. Supp. 2d 1338, from Italy (‘‘Ferrara VR’’) at Exhibit 12 virtually no unaffiliated customers; the 1356 (CIT 2004). In that decision, the at 13, which contains ash content products do not even compete in the CIT stated that ‘‘generally, Commerce information. Moreover, Ferrara’s wheat same market. See Russo’s supplemental has wide latitude in choosing what code 2 is classified differently from its response at 2 and 5–6. In the Notice of physical characteristics to consider’’ for wheat code 1 under Italian law, which Preliminary Results of New Shipper product-matching purposes. Id. at 1354. sets standards for ash and protein Review of the Antidumping Duty Order The physical, cost, and price characteristics for pasta manufactured on Certain Pasta from Italy, 69 FR 319, differences in this case are so significant and sold in Italy. See Ferrara’s March 1, 321 (January 5, 2004) (‘‘Russo New that the Department has found that the 2004, Questionnaire Response, Exhibit Shipper Prelim’’), the Department products at issue are qualitatively 12 at 5–24. In addition, Ferrara’s raw determined that Russo and Di Nola, who different and that the production material cost for wheat code 2 is more had not yet merged into one company, facilities for either product would than thirty percent different than its cost should not be collapsed on the basis require substantial retooling to produce for wheat code 1. See Ferrara VR, that either facility would require the other. See Russo New Shipper Exhibit 4 at 1. We have also preliminarily substantial retooling to produce the Prelim; and Russo Collasping Memo. In determined that PAM’s wheat code 5 merchandise of the other. In the Russo light of such record evidence, the has met the standard outlined in the Collapsing Memo at 3, we stated that Department has preliminarily Pasta Investigation to warrant ‘‘though Russo and (Di Nola) both determined to assign different product- classification as a separate wheat code. produce subject merchandise, the matching control numbers to pasta process by which each company Specifically, PAM’s wheat code 5 has produced at Russo’s industrial Cicciano produces the subject merchandise is commercially significant ash and facility and the artisan pasta produced completely different, resulting in protein content differences from its at the Di Nola workshop. See the July qualitatively different products’’ (italics wheat code 1. See PAM’s February 24, 30, 2004, Memorandum to the File, RE: added). We also stated that the 2004, Questionnaire Response at 7 and Preliminary Calculation Memorandum ‘‘differences in the production process the July 30, 2004, Memorandum Re: for Russo for the specific calculation * * * of each company are substantial, Verification of the Sales and Cost methodology. and create qualitative differences Responses of PAM in the 02/03 between the products.’’ See Russo Proposed Modifications to Wheat Codes Administrative Review of the Collapsing Memo at 4 (italics added). Ferrara, PAM, and Lensi have Antidumping Order of Certain Pasta The Department has a wealth of past classified a variety of wheats used in the from Italy (‘‘PAM VR’’), Exhibit 5 at 3 precedent to support a segregation of production of pasta as separate wheat for the details of the ash and protein products for purposes of calculating NV codes, in addition to the two wheat content. Moreover, PAM’s wheat code 5 based on differences in physical codes outlined in the questionnaire.8 In is classified differently under Italian characteristics, as well as cost and price the Pasta Investigation, we established law, which sets standards for ash and differences. In past reviews, the that differences in wheat quality may be protein characteristics for pasta Department has assigned separate manufactured and sold in Italy. See product-control numbers to different commercially significant, as measured by ash and gluten content 9 and cost. See PAM VR at 11. In addition, PAM’s raw types of pasta, ‘‘where there has been material cost for wheat code 5 is substantial evidence on the record that 8 100 percent durum semolina and 100 percent approximately ten percent different than demonstrated physical and cost whole wheat. differences. * * *’’ See page 23 of the 9 Ash content is a measurement of minerals is formed from the proteins in grains. Gluten February 3, 2003, memorandum to present in pasta. Gluten is a protein compound and content is a measurement of gluten found in pasta.
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its cost for wheat code 1 and 2. See insurance-freight (‘‘CIF’’), ex-factory, sold to the United States. See, e.g., PAM VR, Exhibit 5 at 1. free-on-board (‘‘FOB’’), or delivered Notice of Preliminary Results and We have preliminary determined that prices to the first unaffiliated customer Partial Rescission of Antidumping Duty record evidence pertaining to PAM’s in, or for exportation to, the United Administrative Review and Intent Not to wheat code 1 does not warrant a States. When appropriate, we reduced Revoke in Part: For the Sixth separate wheat code. Although slight these prices to reflect discounts and Administrative Review of the cost and ash and protein content rebates. Antidumping Duty Order on Certain differences were presented, we find that In accordance with section 772(c)(2) Pasta from Italy, 68 FR 47020, 47028 these differences are not commercially of the Act, we made deductions, where (August 7, 2003). Accordingly, significant and therefore do not merit a appropriate, for movement expenses consistent with our methodology in separate wheat code. See PAM VR, including inland freight from plant or prior reviews (see id.), when a Exhibit 5 at 1 and 3. Therefore, PAM’s warehouse to port of exportation, respondent purchased pasta from other wheat codes 1 and 2 will be collapsed foreign brokerage, handling and loading producers and we were able to identify for the purposes of these preliminary charges, export duties, international resales of this merchandise to the results. freight, marine insurance, U.S. duties, United States, we excluded these sales We have also preliminarily and U.S. inland freight expenses (freight of the purchased pasta from the margin determined that record evidence from port to the customer). In addition, calculation for that respondent. Where pertaining to Lensi’s wheat codes 2 and when appropriate, we increased EP or the purchased pasta was commingled 4 do not warrant a separate CEP as applicable, by an amount equal with the respondent’s production and classification. Although Lensi provided to the countervailing duty rate the respondent could not identify the explanations of the types of wheat it attributed to export subsidies in the resales, we examined both sales of uses, and provided the percentages of most recently completed administrative produced pasta and resales of purchased each type that make up the different review, in accordance with section pasta. Inasmuch as the percentage of wheat mixes used in the production of 772(c)(1)(C) of the Act. pasta purchased by any single its pasta, Lensi provided no ash or For CEP, in accordance with section respondent was an insignificant part of protein content information, nor did it 772(d)(1) of the Act, when appropriate, its U.S. sales database and the provide evidence of a cost differential to we deducted from the starting price respondent was unable to identify resale demonstrate that these wheat mixes those selling expenses that were transactions, we included the sales of differ in a commercially significant way. incurred in selling the subject commingled purchased pasta in our Therefore, Lensi’s wheat codes 2 and 4 merchandise in the United States, margin calculations. will be collapsed for the purposes of including direct selling expenses these preliminary results. (advertising, cost of credit, warranties, Normal Value and commissions paid to unaffiliated A. Selection of Comparison Markets Comparisons to Normal Value sales agents). In addition, we deducted To determine whether sales of certain indirect selling expenses that related to To determine whether there was a pasta from Italy were made in the economic activity in the United States. sufficient volume of sales in the home United States at less than NV, we These expenses include certain indirect market to serve as a viable basis for compared the EP or CEP to the NV, as selling expenses incurred by affiliated calculating NV, we compared each described in the ‘‘Export Price and U.S. distributors. We also deducted respondent’s volume of home market Constructed Export Price’’ and ‘‘Normal from CEP an amount for profit in sales of the foreign like product to the Value’’ sections of this notice. In accordance with sections 772(d)(3) and volume of its U.S. sales of the subject accordance with section 777A(d)(2) of (f) of the Act. merchandise. Pursuant to sections the Act, we calculated monthly Barilla, Corticella/Combattenti, 773(a)(1)(B) and 773(a)(1)(C) of the Act, weighted-average prices for NV and Ferrara, Indalco, PAM, Riscossa, Russo, because each respondent, with the compared these to individual U.S. and Lensi reported the resale of subject exception of Lensi, had an aggregate transactions. See the company-specific merchandise purchased in Italy from volume of home market sales of the verification reports and calculation unaffiliated producers. In those foreign like product that was greater memoranda, available in the CRU. situations in which an unaffiliated than five percent of its aggregate volume producer of the subject pasta knew at of U.S. sales of the subject merchandise, Export Price and Constructed Export the time of the sale that the merchandise we determined that the home market Price was destined for the United States, the was viable for all producers except For the price to the United States, we relevant basis for the EP would be the Lensi. used, as appropriate, EP or CEP, in price between that producer and the Because Lensi did not have an accordance with sections 772(a) and (b) respondent. See Dynamic Random aggregate volume of home market sales of the Act. We calculated EP when the Access Memory Semiconductors of One of the foreign like product that was merchandise was sold by the producer Megabit or Above From the Republic of greater than five percent of its aggregate or exporter outside of the United States Korea: Final Results of Antidumping volume of U.S. sales of the subject directly to the first unaffiliated Duty Administrative Review, Partial merchandise, the Department purchaser in the United States prior to Rescission of Administrative Review determined, in accordance with section importation and when CEP was not and Notice of Determination Not to 773(a)(1)(C) of the Act and section otherwise warranted based on the facts Revoke Order, 63 FR 50867, 50876 351.404(b)(2) of the Department’s on the record. We calculated CEP for (September 23, 1998). In the instant regulations, to use a third-country those sales where a person in the United review, we determined that it was market, the United Kingdom, as Lensi’s States, affiliated with the foreign reasonable to assume that the comparison market. We compared exporter or acting for the account of the unaffiliated producers knew or had Lensi’s volume of third-country sales in exporter, made the sale to the first reason to know at the time of sale that the United Kingdom of the foreign like unaffiliated purchaser in the United the ultimate destination of the product to the volume of its U.S. sales States of the subject merchandise. We merchandise was the United States of the subject merchandise. Pursuant to based EP and CEP on the packed cost- because virtually all enriched pasta is sections 773(a)(1)(B)(ii) and (C) of the
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Act, and section 351.404(c)(ii) of the in the CRU, for a description of any insurance, discounts, and rebates. We Department’s regulations, because Lensi changes that we made. added interest revenue. In accordance with sections 773(a)(6) (A) and (B) of the had an aggregate volume of third- 2. Test of Comparison Market Prices country sales of the foreign like product Act, we added U.S. packing costs and that was greater than five percent of its As required under section 773(b)(2) of deducted comparison market packing, aggregate volume of U.S. sales of the the Act, we compared the weighted- respectively. In addition, we made subject merchandise, we determined average COP to the per-unit price of the circumstance of sale (‘‘COS’’) that the third-country market of the comparison market sales of the foreign adjustments for direct expenses, United Kingdom was viable for Lensi. like product, to determine whether including imputed credit expenses, these sales had been made at prices advertising, warranty expenses, B. Arm’s-Length Test below the COP within an extended commissions, bank charges, and billing period of time in substantial quantities, adjustments, in accordance with section Barilla and Corticella/Combattenti and whether such prices were sufficient reported sales of the foreign like product 773(a)(6)(C)(iii) of the Act. to permit the recovery of all costs within We also made adjustments, in to an affiliated end-user and an a reasonable period of time. We accordance with 19 CFR 351.410(e), for affiliated reseller. The Department determined the net comparison market indirect selling expenses incurred on calculates the NV based on a sale to an prices for the below-cost test by comparison market or U.S. sales where affiliated party only if it is satisfied that subtracting from the gross unit price any commissions were granted on sales in the price to the affiliated party is applicable movement charges, one market but not in the other, the comparable to the price at which sales discounts, rebates, direct and indirect ‘‘commission offset.’’ Specifically, are made to parties not affiliated with selling expenses (also subtracted from where commissions are incurred in one the producer or exporter, i.e., sales at the COP), and packing expenses. market, but not in the other, we will arm’s length. See 19 CFR 351.403(c). To 3. Results of COP Test limit the amount of such allowance to test whether these sales were made at the amount of either the selling arm’s length, we compared the starting Pursuant to section 773(b)(2)(C)(i) of expenses incurred in the one market or prices of sales to affiliated and the Act, where less than 20 percent of the commissions allowed in the other unaffiliated customers net of all sales of a given product were at prices market, whichever is less. movement charges, direct selling less than the COP, we did not disregard When comparing U.S. sales with expenses, discounts and packing. In any below-cost sales of that product comparison market sales of similar, but accordance with the Department’s because we determined that the below- not identical, merchandise, we also current practice, if the prices charged to cost sales were not made in ‘‘substantial made adjustments for physical an affiliated party were, on average, quantities.’’ Where 20 percent or more differences in the merchandise in between 98 and 102 percent of the of a respondent’s sales of a given accordance with section 773(a)(6)(C)(ii) prices charged to unaffiliated parties for product during the POR were at prices of the Act and section 351.411 of the merchandise identical or most similar to less than the COP, we determined such Department’s regulations. We based this that sold to the affiliated party, we sales to have been made in ‘‘substantial adjustment on the difference in the consider the sales to be at arm’s-length quantities.’’ See section 773(b)(2)(C) of VCOM for the foreign like product and prices. See 19 CFR 351.403(c). the Act. The sales were made within an subject merchandise, using POR-average Conversely, where sales to the affiliated extended period of time in accordance costs. party did not pass the arm’s-length test, with section 773(b)(2)(B) of the Act, Sales of pasta purchased by the all sales to that affiliated party have because they were made over the course respondents from unaffiliated producers been excluded from the NV calculation. of the POR. In such cases, because we and resold in the comparison market See Antidumping Proceedings: compared prices to POR-average costs, were treated in the same manner Affiliated Party Sales in the Ordinary we also determined that such sales were described above in the ‘‘Export Price Course of Trade, 67 FR 69186 (Nov. 15, not made at prices which would permit and Constructed Export Price’’ section 2002). recovery of all costs within a reasonable of this notice. period of time, in accordance with C. Cost of Production Analysis section 773(b)(2)(D) of the Act. E. Calculation of Normal Value Based on Constructed Value 1. Calculation of COP Therefore, for Barilla, Corticella, Ferrara, Indalco, PAM, Riscossa, and When we could not determine the NV Before making any comparisons to Russo, for purposes of this based on comparison market sales NV, we conducted a COP analysis of administrative review, we disregarded because there were no contemporaneous Barilla, Corticella, Ferrara, Indalco, below-cost sales of a given product of 20 sales of a comparable product, we PAM, Riscossa, and Russo, pursuant to percent or more and used the remaining compared the EP to CV. In accordance section 773(b) of the Act, to determine sales as the basis for determining NV, in with section 773(e) of the Act, we whether the respondents’ comparison accordance with section 773(b)(1) of the calculated CV based on the sum of the market sales were made below the COP. Act. See the company-specific cost of manufacturing (‘‘COM’’) of the We calculated the COP based on the calculation memoranda on file in the product sold in the United States, plus sum of the cost of materials and CRU, for our calculation methodology amounts for SG&A expenses, profit, and fabrication for the foreign like product, and results. U.S. packing costs. In accordance with plus amounts for selling, general, and section 773(e)(2)(A) of the Act, we based administrative expenses (‘‘SG&A’’) and D. Calculation of Normal Value Based SG&A expenses and profit on the packing, in accordance with section on Comparison Market Prices amounts incurred by Ferrara and 773(b)(3) of the Act. We relied on the We calculated NV based on ex-works, Indalco in connection with the respondents’ information as submitted, FOB or delivered prices to comparison production and sale of the foreign like except in instances where we used data market customers. We made deductions product in the comparison market. with minor revisions based on from the starting price, when For price-to-CV comparisons, we verification findings. See the company- appropriate, for handling, loading, made adjustments to CV for COS specific calculation memoranda on file inland freight, warehousing, inland differences, in accordance with section
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773(a)(8) of the Act and 19 CFR 351.410. Revocation preliminarily intend not to revoke the We made COS adjustments by On July 31, 2003, Lensi and Ferrara antidumping order with respect to deducting direct selling expenses submitted requests for revocation of the Lensi. Regarding Ferrara, the incurred on comparison market sales antidumping duty order with respect to Department preliminarily finds that and adding U.S. direct selling expenses. their sales of the subject merchandise as Ferrara received a de minimis rate for the current review. See July 30, 2004, F. Level of Trade directed under 19 CFR 351.222(b). The Department ‘‘may revoke, in whole or in Memorandum to the File, RE: In accordance with section part’’ an antidumping duty order upon Preliminary Calculation Memorandum 773(a)(1)(B) of the Act, we determined completion of a review under section for Ferrara. Therefore, we preliminarily NV based on sales in the comparison 751 of the Act. While Congress has not find that Ferrara sold subject market at the same level of trade specified the procedures that the merchandise at not less than NV for (‘‘LOT’’) as the EP and CEP sales, to the Department must follow in revoking an three consecutive reviews as required under § 351.222(b)(2)(i) of the extent practicable. When there were no order, the Department has developed a Department’s regulations. sales at the same LOT, we compared procedure for revocation that is In determining whether three years of U.S. sales to comparison market sales at described in 19 CFR 351.222. This a different LOT. When NV is based on no dumping establishes a sufficient regulation requires that one or more basis to make a revocation CV, the NV LOT is that of the sales from exporters and producers covered by the which we derive SG&A expenses and determination, the Department must be order and desiring revocation submit able to determine that the company profit. the following: (1) A certification that the Pursuant to § 351.412 of the continued to participate meaningfully in company has sold the subject the U.S. market during each of the three Department’s regulations, to determine merchandise at not less than NV in the whether comparison market sales were years at issue, i.e., did the company current review period and that the make sales in commercial quantities. at a different LOT, we examined stages company will not sell at less than NV in the marketing process and selling See Certain Corrosion-Resistant Carbon in the future; (2) a certification that the Steel Flat Products and Certain Cut-to- functions along the chain of distribution company sold the subject merchandise between the producer and the Length Carbon Steel Plate From Canada; in each of the three years forming the Final Results of Antidumping Duty unaffiliated (or arm’s-length) customers. basis of the request in commercial If the comparison-market sales were at Administrative Reviews and quantities; and (3) an agreement to Determination To Revoke in Part, 64 FR a different LOT and the differences immediate reinstatement of the order if affect price comparability, as manifested 2173, 2175 (January 13, 1999); see also the Department concludes that the Pure Magnesium From Canada; Final in a pattern of consistent price company, subsequent to the revocation, differences between the sales on which Results of Antidumping Duty has sold subject merchandise at less Administrative Review and NV is based and comparison-market than NV. See 19 CFR 351.222(e)(1). Both Determination Not to Revoke Order in sales at the LOT of the export Lensi and Ferrara provided the Part, 64 FR 12977, 12979 (March 16, transaction, we will make an LOT certifications and agreements required 1999); and Notice of Final Results of adjustment under section 773(a)(7)(A) of by 19 CFR 351.222(e)(1). Antidumping Duty Administrative the Act. Upon receipt of such a request, the Review and Determination Not to Finally, if the NV LOT is more remote Department, pursuant to 19 CFR Revoke the Antidumping Order: Brass from the factory than the CEP LOT and 351.222(b)(2), will consider the Sheet and Strip from the Netherlands, there is no basis for determining following in determining whether to 65 FR 742 (January 6, 2000). The whether the differences in LOT between revoke the order in part: (1) Whether the Department preliminarily finds that NV and CEP affected price producer or exporter requesting Ferrara sold subject merchandise to the comparability, we will grant a CEP revocation has sold subject merchandise United States in commercial quantities offset, as provided in section at not less than NV for a period of at during each of the consecutive three 773(a)(7)(B) of the Act. See Notice of least three consecutive years; (2) years as directed by 19 CFR Final Determination of Sales at Less whether the continued application of 351.222(e)(1)(ii). See the Ferrara VR at Than Fair Value: Certain Cut-to-Length the antidumping duty order is otherwise 31 and Exhibit 35; see also Ferrara’s Carbon Steel Plate from South Africa, necessary to offset dumping; and (3) March 1, 2004, Questionnaire Response 62 FR 61731, 61732–33 (November 19, whether the producer or exporter at Exhibit 17. Therefore, we reasonably 1997). Specifically in this review, we requesting revocation in part has agreed conclude that the zero or de minimis did not make an LOT adjustment for any in writing to the immediate margins calculated for Ferrara in each of respondent. However, we are reinstatement of the order, as long as the last three administrative reviews are preliminarily granting a CEP offset for any exporter or producer is subject to reflective of the company’s normal Barilla and Lensi. the order, if the Department concludes commercial experience. For a detailed description of our LOT that the exporter or producer, With respect to 19 CFR methodology and a summary of subsequent to revocation, sold the 351.222(b)(2)(ii), in considering whether company-specific LOT findings for subject merchandise at less than NV. continued application of the order is these preliminary results, see the Both Lensi and Ferrara had de necessary to offset dumping, ‘‘the calculation memoranda, all on file in minimis dumping margins in the past Department may consider trends in the CRU. two preceding reviews. However, in the prices and costs, investment, currency current review we preliminarily find movements, production capacity, as Currency Conversion that Lensi sold subject merchandise at well as all other market and economic For purposes of these preliminary less than NV. See July 30, 2004, factors relevant to a particular case.’’ results, we made currency conversions Memorandum to the File, RE: Proposed Regulation Concerning the in accordance with section 773A(a) of Preliminary Calculation Memorandum Revocation of Antidumping Duty the Act, based on the official exchange for Lensi. Because we preliminarily find Orders, 64 FR 29818, 29820 (June 3, rates published by the Federal Reserve that Lensi made sales of subject 1999). Thus, based upon three Bank. merchandise at less than NV, we consecutive reviews resulting in zero or
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de minimis margins, the Department submit with the argument (1) a is not a firm covered in this review, a presumes that the company requesting statement of the issue, and (2) a brief prior review, or the original less than revocation is not likely to resume selling summary of the argument. Further, fair value (‘‘LTFV’’) investigation, but subject merchandise at less than NV in parties submitting written comments are the manufacturer is, the cash deposit the near future unless the Department requested to provide the Department rate will be the rate established for the has been presented with evidence to with an additional copy of the public most recent final results for the demonstrate that dumping would likely version of any such comments on manufacturer of the merchandise; and resume if the order were revoked. In this diskette. The Department will issue the (4) if neither the exporter nor the proceeding, we have not received any final results of this administrative manufacturer is a firm covered in this or evidence that demonstrates that Ferrara review, which will include the results of any previous review conducted by the would likely resume dumping in the its analysis of issues raised in any such Department, the cash deposit rate will future if the order were revoked. comments, or at a hearing, if requested, be 11.26 percent, the ‘‘All Others’’ rate Therefore, we preliminarily determine within 120 days of publication of these established in the LTFV investigation. that the order is no longer necessary to preliminary results. See Notice of Antidumping Duty Order offset dumping for Ferrara. Assessment Rate and Amended Final Determination of Because all requirements under the Sales at Less Than Fair Value: Certain regulation have been satisfied, if these Pursuant to 19 CFR 351.212(b), the Pasta from Italy, 61 FR 38547 (July 24, preliminary findings are affirmed in our Department calculated an assessment 1996). final results, we intend to revoke the rate for each importer of the subject These cash deposit requirements, antidumping duty order with respect to merchandise. Upon issuance of the final when imposed, shall remain in effect subject merchandise produced and results of this administrative review, if until publication of the final results of exported by Ferrara. Also, in accordance any importer-specific assessment rates the next administrative review. with 19 CFR 351.222(f)(3), if these calculated in the final results are above findings are affirmed in our final results, de minimis (i.e., at or above 0.5 percent), Notification to Importers we will terminate the suspension of the Department will issue appraisement This notice serves as a preliminary liquidation for any such merchandise instructions directly to CBP to assess reminder to importers of their entered, or withdrawn from warehouse, antidumping duties on appropriate responsibility under 19 CFR 351.402(f) for consumption on or after the first day entries by applying the assessment rate to file a certificate regarding the after the period under review, and will to the entered value of the merchandise. reimbursement of antidumping duties instruct CBP to refund any cash deposit. For assessment purposes, we calculated prior to liquidation of the relevant importer-specific assessment rates for entries during this review period. Preliminary Results of Review the subject merchandise by aggregating Failure to comply with this requirement As a result of our review, we the dumping margins for all U.S. sales could result in the Secretary’s preliminarily determine that the to each importer and dividing the presumption that reimbursement of following percentage weighted-average amount by the total entered value of the antidumping duties occurred and the margins exist for the period July 1, 2002, sales to that importer. Where subsequent assessment of double through June 30, 2003: appropriate, to calculate the entered antidumping duties. value, we subtracted international This administrative review is issued Margin movement expenses (e.g., international and published in accordance with Manufacturer/exporter (percent) freight) from the gross sales value. sections 751(a)(1) and 777(i)(1) of the Barilla ...... 7.10 Cash Deposit Requirements Act. Corticella/Combattenti ...... 4.00 To calculate the cash deposit rate for Dated: July 30, 2004. Ferrara ...... 0.30 each producer and/or exporter included James J. Jochum, Indalco ...... 5.41 Lensi ...... 6.63 in this administrative review, we Assistant Secretary for Import PAM ...... 4.79 divided the total dumping margins for Administration. Riscossa ...... 1.16 each company by the total net value for [FR Doc. 04–18037 Filed 8–5–04; 8:45 am] Russo ...... 9.22 that company’s sales during the review BILLING CODE 3510–DS–P All Others ...... 11.26 period. The following deposit rates will be The Department will disclose effective upon publication of the final DEPARTMENT OF COMMERCE calculations performed within five days results of this administrative review for of the date of publication of this notice all shipments of certain pasta from Italy International Trade Administration to the parties of this proceeding in entered, or withdrawn from warehouse, accordance with 19 CFR 351.224(b). An for consumption on or after the [A–570–847] interested party may request a hearing publication date, as provided by section Persulfates From the People’s within 30 days of publication of these 751(a)(2)(C) of the Act: (1) The cash Republic of China: Preliminary Results preliminary results. See 19 CFR deposit rates for the companies listed of Antidumping Duty Administrative 351.310(c). Any hearing, if requested, above will be the rates established in the Review ordinarily will be held 44 days after the final results of this review, except if the date of publication, or the first working rate is less than 0.5 percent and, AGENCY: Import Administration, day thereafter. Interested parties may therefore, de minimis, the cash deposit International Trade Administration, submit case briefs no later than 30 days will be zero; (2) for previously reviewed Department of Commerce. after the date of publication of these or investigated companies not listed SUMMARY: The Department of Commerce preliminary results of review. Rebuttal above, the cash deposit rate will is conducting an administrative review briefs limited to issues raised in such continue to be the company-specific rate of the antidumping duty order on briefs, may be filed no later than 35 days published for the most recent final persulfates from the People’s Republic after the date of publication. Parties who results in which that manufacturer or of China in response to a request by the submit arguments are requested to exporter participated; (3) if the exporter Petitioner, FMC Corporation. The period
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of review is July 1, 2002, through June We received a response to this management. See Silicon Carbide, 59 FR 30, 2003. questionnaire on June 28, 2004. at 22587; see also Sparklers, 56 FR at We have preliminarily determined 20589. that U.S. sales have been made at not Scope of Review With respect to Ai Jian, for purposes less than normal value. If these The products covered by this review of our final results covering the period preliminary results are adopted in our are persulfates, including ammonium, of review (POR) July 1, 2001, through final results, we will instruct U.S. potassium, and sodium persulfates. The June 30, 2002, the Department found an Customs and Border Protection (‘‘CBP’’) chemical formula for these persulfates absence of de jure and de facto to assess no antidumping duties on the are, respectively, (NH4)2S2O8, K2S2O8, government control of its export exports subject to this review. and Na2S2O8. Potassium persulfates are activities and determined that it EFFECTIVE DATE: August 6, 2004. currently classifiable under subheading warranted a company-specific dumping FOR FURTHER INFORMATION CONTACT: John 2833.40.10 of the Harmonized Tariff margin. See Persulfates From the D. A. LaRose or Christopher C. Welty, Schedule of the United States (HTSUS). People’s Republic of China: Final AD/CVD Enforcement, Group III, Office Sodium persulfates are classifiable Results of Antidumping Duty 9, Import Administration, International under HTSUS subheading 2833.40.20. Administrative Review, 68 FR 68030, Trade Administration, U.S. Department Ammonium and other persulfates are (Dec. 5, 2003) (Persulfates Fifth Review of Commerce, 14th Street and classifiable under HTSUS subheadings Final). For purposes of this POR, Ai Jian Constitution Avenue, NW., Washington, 2833.40.50 and 2833.40.60. Although has responded to the Department’s DC 20230; telephone: (202) 482–3794 or the HTSUS subheadings are provided request for information regarding (202) 482–0186 respectively. for convenience and customs purposes, separate rates. We have found that the the written description of the scope of SUPPLEMENTARY INFORMATION: evidence on the record is consistent this review is dispositive. with the final results in Persulfates Fifth Background Separate Rates Review Final and continues to On July 2, 2003, the Department demonstrate an absence of government It is the Department’s policy to assign published in the Federal Register a control, both in law and in fact, with all exporters of the merchandise subject notice of ‘‘Opportunity to Request an respect to Ai Jian’s exports, in to review in non-market-economy Administrative Review’’ of the accordance with the criteria identified (NME) countries a single rate, unless an antidumping duty order on persulfates in Sparklers and Silicon Carbide. exporter can demonstrate an absence of from the People’s Republic of China Therefore, for the same reasons as in the government control, both in law and in (PRC) covering the period July 1, 2002, Persulfates Fifth Review Final, we have fact, with respect to exports. To through June 30, 2003. See granted Ai Jian a separate rate for establish whether an exporter is Antidumping or Countervailing Duty purposes of this administrative review. sufficiently independent of government Order, Finding, or Suspended control to be entitled to a separate rate, Export Price Investigation; Opportunity to Request the Department analyzes the exporter in Administrative Review, 68 FR 39511 We calculated export price (EP) in light of the criteria established in the (July 2, 2003). accordance with section 772(a) of the On July 31, 2003, in accordance with Final Determination of Sales at Less Tariff Act of 1930, as amended (the Act), 19 CFR 351.213(b), the Petitioner, FMC Than Fair Value: Sparklers from the because the subject merchandise was Corporation, requested an People’s Republic of China, 56 FR 20588 sold directly to the first unaffiliated administrative review of Shanghai AJ (May 6, 1991) (Sparklers), as adapted purchaser in the United States prior to Import & Export Corporation (Ai Jian) and amplified in the Final importation and constructed export and Degussa-AJ (Shanghai) Initiators Co. Determination of Sales at Less Than price methodology was not otherwise (Degussa-AJ). We published a notice of Fair Value: Silicon Carbide from the warranted given the facts on record. We initiation of this review on August 22, People’s Republic of China, 59 FR 22585 calculated EP based on packed, cost- 2003. See Initiation of Antidumping and (May 2, 1994) (Silicon Carbide). insurance-freight (CIF) U.S.-port, or free- Countervailing Duty Administrative Evidence supporting, though not on-board, PRC-port prices to unaffiliated Reviews and Requests for Revocation in requiring, a finding of de jure absence purchasers in the United States, as Part, 68 FR 50750 (August 22, 2003). of government control over export appropriate. We made deductions from On August 13, 2003, we issued an activities includes: (1) An absence of the starting price, where appropriate, for antidumping questionnaire to Ai Jian restrictive stipulations associated with ocean freight services, which were and Degussa-AJ. Ai Jian and Degussa-AJ an individual exporter’s business and provided by market economy suppliers. jointly submitted a timely response to export licenses; (2) any legislative We also deducted from the starting sections A, C and D of the questionnaire enactments decentralizing control of price, where appropriate, an amount for on October 27, 2003. On December 15, companies; and (3) any other formal foreign inland freight, foreign brokerage 2003, the Petitioners submitted measures by the government and handling, and marine insurance comments on this response. decentralizing control of companies. expenses. As these movement services We issued a supplemental With respect to evidence of a de facto were provided by NME suppliers, we questionnaire to Ai Jian and Degussa-AJ absence of government control, the valued them using Indian rates. For on February 13, 2004. We received the Department considers the following four further discussion of our use of response to this questionnaire on March factors: (1) Whether the respondent sets surrogate data in an NME proceeding, as 17, 2004. its own export prices independently well as selection of India as the On March 5, 2004, Ai Jian submitted from the government and other appropriate surrogate country, see the publicly available information for exporters; (2) whether the respondent ‘‘Normal Value’’ section of this notice, consideration in valuing the factors of can retain the proceeds from its export below. production. The Petitioner submitted sales; (3) whether the respondent has For foreign inland freight, we information for this purpose on March the authority to negotiate and sign obtained publicly-available information 10, 2004. contracts; and (4) whether the which was published in the October On June 17, 2004, we issued a respondent has autonomy from the 2002 through March 2003 editions of supplemental questionnaire to Ai Jian. government regarding the selection of Chemical Weekly. For foreign brokerage
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and handling expenses, we used a review and calculated NV by valuing possible, the publicly available value publicly summarized version of the the factors of production in a surrogate which was: (1) An average non-export average value for brokerage and country. value; (2) representative of a range of handling expenses reported in Final prices within the POR or most A. Surrogate Country Determination of Sales at Less Than contemporaneous with the POR; (3) Fair Value: Certain Hot-Rolled Carbon Section 773(c)(4) of the Act requires product-specific; and (4) tax-exclusive. Steel Flat Products from India, 67 FR the Department to value an NME For a more detailed explanation of the 50406 (Oct. 3, 2001), and used in the producer’s factors of production, to the methodology used in calculating various 2000–2001 administrative review of extent possible, in one or more market- surrogate values, see the FOP Memo. freshwater crawfish tail meat from the economy countries that: (1) Are at a In selecting the surrogate values, we PRC. See the memorandum to the file level of economic development considered the quality, specificity, and from Mathew Renkey and Adina comparable to that of the NME country, contemporaneity of the data. Where Teodorescu dated September 30, 2002, and (2) are significant producers of appropriate, we adjusted surrogate and entitled ‘‘Administrative Review of comparable merchandise. values to reflect inflation up to the POR Freshwater Crawfish Tail Meat from the India has been identified as a country using the WPI published by the IMF. In People’s Republic of China: Factor that is at a level of economic accordance with this methodology, we Values Memorandum,’’ which is on file development comparable to that of the valued the factors of production as in the Central Records Unit (CRU), PRC. See the February 12, 2004, follows: Room B–099 of the main Commerce memorandum from Ronald Lorentzen to To value ammonium sulfate, caustic building. We inflated the per kilogram Louis Apple entitled ‘‘Surrogate soda, and sulfuric acid, we used public price (in rupees) to the POR using Country Selection,’’ which is on file in information from the Indian publication wholesale price index (WPI) data from the CRU. Moreover, for purposes of the Chemical Weekly. For caustic soda and the International Monetary Fund (IMF). most recent segment of this proceeding, sulfuric acid, because price quotes For marine insurance, we used a price we found that India is a significant reported in Chemical Weekly are for quote obtained from Roanoke Trade producer of persulfates. See Persulfates chemicals with a 100 percent Services, Inc., a provider of marine Fifth Review Final. For these concentration level, we made chemical insurance. See the memorandum to the preliminary results, we continue to find purity adjustments according to the File from Greg Kalbaugh entitled that India is a significant producer of particular concentration levels of ‘‘Marine Insurance Rates,’’ in the persulfates. Accordingly, we find that caustic soda and sulfuric acid used by administrative review of sebacic acid India fulfills both statutory Degussa-AJ, Ai Jian’s PRC supplier. from the PRC, dated July 9, 2002, and requirements for use as a surrogate Where necessary, we adjusted the the memorandum to the File from country and have continued to use India values reported in Chemical Weekly to Christopher C. Welty entitled as the surrogate country in this exclude sales and excise taxes. For ‘‘Preliminary Valuation of Factors of administrative review. We have potassium sulfate and anhydrous Production’’ for the preliminary results therefore calculated NV using Indian ammonia, we relied on import prices of the 2002–2003 administrative review values for the PRC producers’ factors of reported in the Monthly Statistics of the of persulfates from the People’s production. We have obtained and Foreign Trade of India (MSFTI), and Republic of China, dated July 30, 2004 relied upon publicly available contained in the World Trade Atlas. All (FOP Memo), which are on file in the information wherever possible. values were contemporaneous with the CRU. We inflated this value to the POR B. Factors of Production POR; therefore, it was not necessary to using WPI data from the IMF. adjust for inflation. In accordance with 19 CFR During the POR, Degussa-AJ self- Normal Value 351.408(c)(1), the Department will produced ammonium persulfates, which Section 773(c)(1) of the Act provides normally use publicly available is a material input in the production of that the Department shall determine the information to value factors of potassium persulfates and sodium normal value (NV) using a factors-of- production. However, the Department’s persulfates. In order to value production methodology if: (1) The regulations also provide that where a ammonium persulfates, we calculated merchandise is exported from an NME producer sources an input from a the sum of the materials, labor, and country; and (2) the information does market economy and pays for it in energy costs based on the usage factors not permit the calculation of NV using market economy currency, the submitted by Degussa-AJ in its home-market prices, third-country Department employs the actual price questionnaire responses. Consistent prices, or constructed value (CV) under paid for the input to calculate the with our methodology used in section 773(a) of the Act. factors-based NV. Id.; see also Lasko Persulfates Fifth Review Final, we then The Department has treated the PRC Metal Products v. United States, 43 F. applied this value to the reported as an NME country in all previous 3d 1442, 1445–1446 (Fed. Cir. 1994). consumption amounts of ammonium antidumping cases. Furthermore, In accordance with section 773(c) of persulfates used in the production of available information does not permit the Act, we calculated NV based on potassium and sodium persulfates. the calculation of NV using home factors of production reported by Ai Jian We valued labor based on a market prices, third country prices, or for the POR. To calculate NV, the regression-based wage rate, in CV under section 773(a) of the Act. In reported per-unit factor quantities were accordance with 19 CFR 351.408(c)(3). accordance with section 771(18)(C)(i) of multiplied by publicly available Indian To value electricity, we used data the Act, any determination that a foreign surrogate values. Factors of production from the International Energy Agency’s country is an NME country shall remain include, but are not limited to: (1) Hours Key World Energy Statistics 2003 report. in effect until revoked by the of labor required; (2) quantities of raw For further discussion, see the FOP administering authority. None of the materials employed; (3) amounts of Memo. parties to this proceeding has contested energy and other utilities consumed; To value water, we relied on public such treatment in this review. and (4) representative capital cost, information reported in the October Therefore, we treated the PRC as an including depreciation. In examining 1997 publication of Second Water NME country for purposes of this surrogate values, we selected, where Utilities Data Book: Asian and Pacific
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Region. We adjusted this value to reflect the surrogate factory overhead and July 27, 2004 submissions by the inflation up to the POR using the WPI SG&A ratios), as requested by the Petitioner. The information presented published by the IMF. To value coal, we Petitioner, because these producers did by the Petitioner warrants further relied on import prices reported in the not produce persulfates during their clarification and development prior to MSFTI, and contained in the World respective fiscal years. See Issues and the final results. This clarification and Trade Atlas. Decision Memorandum for the 2001— development will entail an examination For the reported packing materials— 2002 Antidumping Duty Administrative of: (1) The difference between batch and polyethylene bags, woven bags, Review of Persulfates from the People’s continuous processes in the production polyethylene sheet/film and liner, Republic of China, at Comment 1 of persulfates; (2) the equipment and fiberboard, paper bags, and wood (December 5, 2003); see also, Persulfates capital investments required by these pallets—we relied on import prices from the People’s Republic of China: processes; (3) the impact of scale and reported in the MSFTI, and contained in Final Results of Antidumping Duty size on the production process; and (4) the World Trade Atlas. Administrative Review, 68 FR 6712 the usage and costs of raw material As appropriate, we adjusted input (Feb. 10, 2003) and accompanying inputs, the overhead structure, and the prices by including freight costs to make decision memorandum at Comments 9 use of a sales labor force. Therefore, the them delivered prices. We made and 10. The Department’s NME practice Department will open the record of this adjustments to account for freight costs establishes a preference for selecting proceeding subsequent to the between the suppliers and Degussa-AJ’s surrogate value sources that are publication of this notice in the Federal manufacturing facilities for each of the producers of identical merchandise, Register to collect additional factors of production identified above. provided that the surrogate value data is information. In particular, the In accordance with our practice, for not distorted or otherwise unreliable. Department intends to issue a set of inputs for which we used CIF import See id; see also, Persulfates from the questions to the Petitioner requesting values from India, we calculated a People’s Republic of China: Preliminary certain clarifications and additional surrogate freight cost using the shorter Results of Antidumping Duty information regarding the Petitioner’s of the reported distances either from the Administrative Review (July 31, 2003). claims that Gujarat’s financial ratios are closest PRC ocean port to the factory or Based upon the Department’s analysis distortive. All interested parties are from the domestic supplier to the for the preliminary results, we do not encouraged to comment on the current factory. See Final Determination of believe we have a sufficient basis at this and additional information on the Sales at Less Than Fair Value: Certain time to reach the conclusion that the record regarding this issue. In the event Cut-to-Length Carbon Steel Plate From surrogate data from Gujarat is distorted. that the Department determines that the the People’s Republic of China, 62 FR On March 10, 2004, and on June 4, surrogate financial ratios should be 61964, 61977 (Nov. 20, 1997) and the revised from the ones used in these Court of Appeals for the Federal 2004, the Petitioner submitted preliminary results, parties will be Circuit’s decision in Sigma Corp. v. information on the record for the afforded a meaningful opportunity to United States, 117 F.3d 1401 (Fed. Cir. purpose of demonstrating that the use of comment on the new valuation 1997). surrogate financial information from For factory overhead, selling, general, Gujarat would distort the production methodology and margin calculations. and administrative expenses (SG&A), experience of respondent Degussa-AJ, Taking these comments into and profit, we relied on the experience specifically pointing to differences in consideration, the Department will then of a producer of identical merchandise, size and scale between the Indian reach the final results of this Gujarat Persalts (P) Ltd. (‘‘Gujarat’’), as persulfates producer and the respondent administrative review. reflected in its March 31, 2002, annual that would distort the factory overhead Preliminary Results of Review report. See the Preliminary Valuation of and SG&A ratios applied to the We preliminarily determine that the Factors of Production Memorandum, respondent. The Petitioner also following margins exist for the period dated July 30, 2004, at pages 7 and 8 submitted information to support the July 1, 2002, through June 30, 2003: (‘‘Factors of Production use of data from Asian Peroxides Limited, a producer of comparable Memorandum’’). Because we believe Margin that SG&A labor is not classified as part merchandise, as a source of surrogate Manufacturer/exporter (percent) of the SG&A costs reflected on Gujarat’s values for factory overhead and SG&A financial statements, we have accounted ratios, and the use of data from National Shanghai Ai Jian Import & Ex- for SG&A labor hours by calculating the Peroxides, Ltd. as a source for the port Corporation ...... 0.00 number of labor hours per MT of surrogate value for profit. On July 26, production and adding this amount to 2004, and July 27, 2004, the Petitioner The Department will disclose to the total labor figure. For further made additional submissions addressing parties the calculations performed in discussion, see the July 30, 2004, the differences between batch and connection with these preliminary memorandum from the Team, entitled continuous chemical production results within five days of the date of U.S. Price and Factors of Production processes, the types of equipment used publication of this notice. Interested Adjustments for the Preliminary Results. in batch and continuous chemical parties may request a hearing within 30 We calculated factory overhead as a production processes, and the nature of days of the publication. Any hearing, if percentage of the total raw materials, Gujarat’s chemical production requested, will be held 44 days after the labor, and energy costs for subject processes. On July 30, the Respondent publication of this notice, or the first merchandise. See the Factors of responded to the Petitioner’s filings. In workday thereafter. Interested parties Production Memorandum, at pages 7 a number of respects, the information may submit case briefs not later than 30 and 8. the Petitioner has provided is different days after the date of publication of this The Department did not rely on the from and expands upon the information notice. Rebuttal briefs, limited to issues financial statements of two producers of submitted in prior reviews that the raised in the case briefs, may be filed comparable merchandise, National Department has addressed. Moreover, not later than 35 days after the date of Peroxide Ltd. (for the surrogate profit we note that the Department had limited publication of this notice. The ratio) and Asian Peroxides Limited (for time to examine the July 26, 2004, and Department will publish a notice of the
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final results of this administrative Failure to comply with this requirement Background review, which will include the results of could result in the Department’s On April 1, 2004, the Department its analysis of issues raised in any such presumption that reimbursement of initiated a sunset review of the written briefs, within 120 days of the antidumping duties occurred and the antidumping duty order on sebacic acid publication of these preliminary results. subsequent assessment of double from China pursuant to section 751(c) of The Department will determine and antidumping duties. the Tariff Act of 1930, as amended (the CBP shall assess antidumping duties on This administrative review is issued ‘‘Act’’) (69 FR 17129). The Department all appropriate entries. The Department and published in accordance with received a notice of intent to participate will issue appropriate appraisement sections 751(a)(1) and 777(i)(1) of the on behalf of SST Materials Inc. d/b/a instructions directly to CBP upon Act. Genesis Chemicals, Inc. (‘‘Genesis’’), completion of this review. The final Dated: July 30, 2004. within the deadline specified in section results of this review will be the basis 351.218(d)(1)(i) of the Department’s for the assessment of antidumping James J. Jochum, Regulations. The domestic interested duties on entries of merchandise Assistant Secretary for Import parties claimed interested party status covered by this review and for future Administration. under section 771(9)(C) of the Act as deposits of estimated duties. [FR Doc. 04–18035 Filed 8–5–04; 8:45 am] For assessment purposes in this case, BILLING CODE 3510–DS–P U.S. producers of sebacic acid. We we do not have the information to received a complete response from calculate entered value. Therefore, we Genesis within the 30-day deadline have calculated importer-specific duty DEPARTMENT OF COMMERCE specified in the Department’s assessment rates for the merchandise by regulations under section International Trade Administration aggregating the dumping margins 351.218(d)(3)(i). We received no calculated for all U.S. sales and dividing response from any interested party this amount by the total quantity of [A–570–825] respondents in this proceeding. As a those sales. To determine whether the result, pursuant to section 751(c)(3)(B) Sebacic Acid From the People’s duty assessment rates were de minimis of the Act and 19 CFR Republic of China; Final Results of the (i.e. less than 0.50 percent), in 351.218(e)(1)(ii)(C)(2), the Department Expedited Sunset Review of accordance with the requirement set conducted an expedited sunset review Antidumping Duty Order; Final Results forth in 19 CFR 351.106(c)(2), we of this antidumping duty order. This order remains in effect for all calculated importer-specific ad valorem AGENCY: Import Administration, Chinese manufacturers, producers, and ratios based on the EPs. International Trade Administration, exporters, except for exporter, Tianjin Furthermore, the following deposit Department of Commerce. requirements will be effective upon Chemicals Import & Export Corporation ACTION: Expedited sunset review of publication of the final results of this with respect to subject merchandise antidumping duty order on sebacic acid 2 administrative review for all shipments produced by Hengshui. from the People’s Republic of China; of the subject merchandise entered, or final results. Scope of the Order withdrawn from warehouse, for The products covered by this review consumption on or after the publication SUMMARY: On April 1, 2004, the date, as provided by section 751(a)(1) of are all grades of sebacic acid, a Department of Commerce (‘‘the dicarboxylic acid with the formula the Act: (1) The cash deposit rate for Ai Department’’) initiated a sunset review Jian will be that established in the final (CH2)8(COOH)2, which include but are of sebacic acid from the People’s not limited to CP Grade (500 ppm results of this administrative review; (2) Republic of China (‘‘China’’).1 On the for any company previously found to be maximum ash, 25 maximum APHA basis of the notice of intent to color), Purified Grade (1000 ppm entitled to a separate rate and for which participate, adequate substantive no review was requested, the cash maximum ash, 50 maximum APHA comments filed on behalf of the color), and Nylon Grade (500 ppm deposit rate will be the rate established domestic interested parties, and an in the most recent review of that maximum ash, 70 maximum ICV color). inadequate response (in this case, no The principal difference between the company; (3) the cash deposit rate for response) from respondent interested all other PRC exporters will be 119.02 grades is the quantity of ash and color. parties, the Department determined to Sebacic acid contains a minimum of 85 percent, the PRC-wide rate established conduct an expedited sunset review. As in the less than fair value investigation; percent dibasic acids of which the a result of this review, the Department predominant species is the C10 dibasic and (4) for all other non-PRC exporters finds that revocation of the antidumping of subject merchandise from the PRC to acid. Sebacic acid is sold generally as a duty order would likely lead to free-flowing powder/flake. Sebacic acid the United States, the cash deposit rate continuation or recurrence of dumping will be the rate applicable to the PRC has numerous industrial uses, including at the levels listed below in the section the production of nylon 6/10 (a polymer exporter that supplied that non-PRC entitled ‘‘Final Results of Review.’’ exporter. These requirements, when used for paintbrush and toothbrush DATES: Effective August 6, 2004. imposed, shall remain in effect until bristles and paper machine felts), publication of the final results of the FOR FURTHER INFORMATION CONTACT: plasticizers, esters, automotive coolants, next administrative review. Martha V. Douthit, Office of Policy, polyamides, polyester castings and Import Administration, International films, inks and adhesives, lubricants, Notification of Interested Parties Trade Administration, U.S. Department and polyurethane castings and coatings. This notice serves as a preliminary of Commerce, 14th Street and Sebacic acid is currently classifiable reminder to importers of their Constitution Avenue, NW., Washington, under subheading 2917.13.00. of the responsibility under 19 CFR 351.402(f) DC, 20230; telephone: (202) 482–5050. 2 to file a certificate regarding the SUPPLEMENTARY INFORMATION: Sebacic Acid From the People’s Republic of China: Final Results of Antidumping Duty reimbursement of antidumping duties Administrative Review and Determination To prior to liquidation of the relevant 1 See Initiation of Five-Year (Sunset) Reviews, 69 Revoke Order in Part, 67 FR 69719 (November 19, entries during this review period. FR 17129 (April 1, 2004) (‘‘Initiation Notice’’). 2002).
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Harmonized Tariff Schedule of the APO is a violation which is subject to determination and antidumping duty United States (‘‘HTSUS’’). Although the sanction. order on SSSS from France in the HTSUS subheading is provided for We are issuing and publishing the Federal Register. See Notice of convenience and customs purposes, our results and notice in accordance with Amended Final Determination of Sales written description of the scope of this sections 751(c), 752, and 777(i)(1) of the at Less Than Fair Value and proceeding is dispositive. Act. Antidumping Duty Order; Stainless Steel Sheet and Strip in Coils from Analysis of Comments Received Dated: July 30, 2004. France, 64 FR 40562 (July 27, 1999) James J. Jochum, All issues raised in this review are (Antidumping Duty Order). On July 2, addressed in the ‘‘Issues and Decision Assistant Secretary for Import 2003, the Department published in the Administration. Memorandum’’ (‘‘Decision Memo’’) Federal Register a notice of from Ronald K. Lorentzen, Acting [FR Doc. 04–17935 Filed 8–5–04; 8:45 am] ‘‘Opportunity to Request Administrative Director, Office of Policy, Import BILLING CODE 3510–DS–P Review’’ of the antidumping duty order Administration, to James J. Jochum, on stainless steel sheet and strip in coils Assistant Secretary for Import from France for the period July 1, 2002, DEPARTMENT OF COMMERCE Administration, dated July 30, 2004, through June 30, 2003. See Notice of which is hereby adopted by this notice. International Trade Administration Opportunity to Request Administrative The issues discussed in the Decision Review of Antidumping Duty or Memo include the likelihood of [A–427–814] Countervailing Duty Order, Finding, or continuation or recurrence of dumping Suspended Investigation, 68 FR 39511 and the magnitude of the margin likely Preliminary Results of Antidumping (July 2, 2003). On July 30, 2003, the to prevail if the finding were to be Duty Administrative Review: Stainless Petitioners requested that the revoked. Parties can find a complete Steel Sheet and Strip in Coils From Department conduct a review of U&A discussion of all issues raised in this France France’s sales or entries of merchandise review and the corresponding AGENCY: Import Administration, subject to the Department’s recommendations in this public memo, International Trade Administration, antidumping duty order on SSSS from which is on file in room B–099 of the U.S. Department of Commerce. France. On July 31, 2003, U&A France, main Commerce Building. SUMMARY: In response to requests from a producer and exporter of subject In addition, a complete version of the Ugine and ALZ France S.A. (U&A merchandise, also requested that the Decision Memo can be accessed directly France), (the Respondent), and Department conduct a review of U&A on the Web at http://ia.ita.doc.gov/frn, Allegheny Ludlum Corporation, AK France’s sales or entries of subject under the heading ‘‘August 2004.’’ The Steel, Inc., North American Stainless, merchandise for the POR. On August 22, paper copy and electronic version of the United Steelworkers of America, AFL– 2003, in accordance with section 751(a) Decision Memo are identical in content. CIO/CLC, Butler Armco Independent of the Act, the Department published in Final Results of Review Union, and Zanesville Armco the Federal Register a notice of Independent Organization (collectively, initiation of this antidumping duty We determine that revocation of the administrative review for the period antidumping duty order on sebacic acid the Petitioners), the U.S. Department of Commerce (the Department) is July 1, 2002, through June 30, 2003. See from China would be likely to lead to Initiation of Antidumping and continuation or recurrence of dumping conducting an administrative review of the antidumping duty order on stainless Countervailing Duty Administrative at the following percentage weighted- Reviews and Requests for Revocation in average percentage margins: steel sheet and strip in coils (SSSS) from France for the period July 1, 2002, Part, 68 FR 50750 (August 22, 2003). On Weighted- through June 30, 2003. The Department September 10, 2003, the Petitioners also Manufacturers/exporters/pro- average preliminarily determines that U&A’s filed a timely request for a duty ducers margin absorption review in accordance with (percent) sales of SSSS in the United States were made at less than normal value (NV). If section 751(a)(4) of the Act, and section 351.213(j)(1) of the Department’s Sinochem Jiangsu Import & Ex- 85.48 these preliminary results are adopted in our final results of this administrative regulations. port Corporation. On September 8, 2003, the Tianjin Chemicals Import & Ex- Revoked review, we will instruct U.S. Customs Department issued a questionnaire to port Corporation. and Border Protection (CBP) to assess Guangdong Chemicals Import & 57.00 U&A France. On September 24, 2003, antidumping duties on entries of U&A U&A France requested an extension in Export Corporation. France’s merchandise during the period Sinochem International Chemi- 43.72 which to file its response to Section A cals Company. of review. The preliminary results are of the Department’s questionnaire. On China-wide rate ...... 243.40 listed in the section titled ‘‘Preliminary September 26, the Department issued a Results of Review,’’ infra. letter granting U&A France an extension This notice also serves as the only EFFECTIVE DATE: August 6, 2004. for Section A responses to October 14, reminder to parties subject to FOR FURTHER INFORMATION CONTACT: 2003. On October 14, 2003, U&A France administrative protective orders Sebastian Wright or Mark Hoadley, filed its response to Section A.1 (‘‘APO’’) of their responsibility Enforcement Group III, Import concerning the return or destruction of Administration, International Trade 1 Section A of the questionnaire requests general proprietary information disclosed under Administration, U.S. Department of information concerning a company’s corporate APO in accordance with 19 CFR structure and business practices, the merchandise Commerce, 1401 Constitution Avenue, under review that it sells, and the manner in which 351.305 of the Department’s regulations. NW., Washington, DC 20230; telephone: it sells the merchandise in all of its markets. Section Timely notification of the return or 202–482–5254 and 202–482–3148. B requests a complete listing of all home market destruction of APO materials or sales, or, if the home market is not viable, of sales conversion to judicial protective order is Background in the most appropriate third-country market (this section is not applicable to respondents in non- hereby requested. Failure to comply On July 27, 1999, the Department market economy cases). Section C requests a with the regulations and terms of an published the amended final complete listing of U.S. sales. Section D requests
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On October 8, 2003, U&A France supplemental Section A by three days. Period of Review requested an extension until November On January 30, 2004, the Department The period of review (POR) is July 1, 14 in which to file its response to sent U&A France a letter granting this 2002, through June 30, 2003. Sections B, C, D, and E of the extension for supplemental Section A, Department’s questionnaire. On October extending the deadline to February 6, Scope of the Antidumping Duty Order 10, 2003, the Department sent U&A 2004. The products covered by this France a letter granting a partial On February 3, 2004, the Department extension until October 31, 2003, for antidumping duty order are certain sent U&A France a letter requesting stainless steel sheet and strip in coils. submitting Sections B, C, D, and E. information on downstream sales of On October 20, 2003, the Department Stainless steel is an alloy steel subject merchandise. On February 10, containing, by weight, 1.2 percent or sent a letter to U&A France requesting 2004, U&A France submitted its duty absorption information. On less of carbon and 10.5 percent or more response to the Department’s February of chromium, with or without other October 24, 2003, U&A France sent a 3, 2004, letter regarding downstream letter to the Department requesting a elements. The subject sheet and strip is sales. On March 24 and March 25, 2004, a flat-rolled product in coils that is second extension on Sections B, C, D, the Department sent requests for and E of the Department’s greater than 9.5 mm in width and less supplemental information to U&A than 4.75 mm in thickness, and that is questionnaire. On October 29, the France’s responses to Sections B and C Department sent U&A France a letter annealed or otherwise heat treated and of the questionnaire. On April 8, 2004, pickled or otherwise descaled. The granting an extension until November U&A France sent the Department a letter 21 for the submission of Sections B, C, subject sheet and strip may also be requesting an extension until April 21 further processed (e.g., cold-rolled, D, and E of the questionnaire. On in which to submit its responses to November 19, 2003, the Department polished, aluminized, coated, etc.) supplemental Sections B and C. On provided that it maintains the specific sent U&A France a second letter April 9, the Department sent a letter to requesting duty absorption information. dimensions of sheet and strip following U&A France extending the deadline for such processing. On November 21, 2003, U&A France supplemental Sections B and C, as well submitted its responses to Sections B, C, The merchandise subject to this order as information on downstream sales, to is currently classifiable in the D, and E of the Department’s April 21, 2004. questionnaire. On November 26, 2003, Harmonized Tariff Schedule of the the Petitioners submitted their On April 19, 2004, the Department United States (HTS) at subheadings: comments on U&A France’s response to sent U&A France a supplemental 7219.13.0031, 7219.13.0051, Section A of the Department’s questionnaire for sections D and E. On 7219.13.0071, 7219.1300.81 2, questionnaire. On December 2, 2003, April 21, 2004, U&A France submitted 7219.14.0030, 7219.14.0065, U&A France submitted information on its responses to supplemental sections B 7219.14.0090, 7219.32.0005, packing. and C of the Department’s March 24 and 7219.32.0020, 7219.32.0025, On December 22, 2003, the March 25 questionnaires. On April 23, 7219.32.0035, 7219.32.0036, Department sent U&A France a 2004, U&A France sent the Department 7219.32.0038, 7219.32.0042, supplemental Section A questionnaire. a letter requesting an extension of the 7219.32.0044, 7219.33.0005, On December 24, 2003, U&A France deadline for supplemental Sections D 7219.33.0020, 7219.33.0025, sent the Department a letter requesting and E. On April 26, 2004, the 7219.33.0035, 7219.33.0036, an extension of two weeks in which to Department granted U&A France’s 7219.33.0038, 7219.33.0042, submit its responses to the deadline extension request. On May 10, 7219.33.0044, 7219.34.0005, supplemental Section A questionnaire. 2004, U&A France sent a letter 7219.34.0020, 7219.34.0025, On December 29, 2003, the Department requesting an additional deadline 7219.34.0030, 7219.34.0035, sent a letter to U&A France granting the extension for supplemental Sections D 7219.35.0005, 7219.35.0015, requested two-week extension. and E. On May 11, 2004, the Department 7219.35.0030, 7219.35.0035, On January 13, 2004, the Petitioners sent a letter to U&A France granting the 7219.90.0010, 7219.90.0020, submitted their comments to U&A extension request and establishing a 7219.90.0025, 7219.90.0060, France’s responses to sections B, C, D, new deadline of May 19, 2004. 7219.90.0080, 7220.12.1000, and E of the Department’s On May 10, 2004, the Respondent 7220.12.5000, 7220.20.1010, questionnaire. On January 14, 2004, the submitted information regarding the 7220.20.1015, 7220.20.1060, Petitioners sent the Department a letter country-of-origin of U&A France’s 7220.20.1080, 7220.20.6005, to supplement their January 13, 2004, merchandise. On July 1, 2004, the 7220.20.6010, 7220.20.6015, letter. Petitioners responded to U&A France’s 7220.20.6060, 7220.20.6080, On January 14, 2004, U&A France sent submission. On July 19, 2004, U&A 7220.20.7005, 7220.20.7010, the Department a second request for an France submitted comments on the 7220.20.7015, 7220.20.7060, extended deadline for supplemental Petitioners’ July 1 submission. These 7220.20.7080, 7220.20.8000, Section A. On January 16, 2004, the comments are discussed in the section 7220.20.9030, 7220.20.9060, Department sent a letter to U&A France titled ‘‘Country of Origin,’’ infra. 7220.90.0010, 7220.90.0015, 7220.90.0060, and 7220.90.0080. granting a partial extension of two On February 26, 2004, the Department Although the HTS subheadings are weeks for the deadline to the extended the time limit for the provided for convenience and CBP supplemental Section A questionnaire. preliminary results of the antidumping purposes, the Department’s written On January 30, 2004, U&A France sent duty administrative review. See Notice description of the merchandise under another request for the Department to of Extension of Time Limit of the review is dispositive. further extend the deadline for Preliminary Results of Antidumping Duty Administrative Review 2002–2003: information on the cost of production of the foreign 2 Due to changes to the HTS numbers in 2001, like product and the constructed value of the Stainless Steel Sheet and Strip in Coils 7219.13.0030, 7219.13.0050, 7219.13.0070, and merchandise under review. Section E requests from France, 69 FR 8936 (February 26, 7219.13.0080 are now 7219.13.0031, 7219.13.0051, information on further manufacturing. 2004). 7219.13.0071, and 7219.13.0081, respectively.
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Excluded from the order are the honeycomb structure for use in niobium, and titanium added to achieve following: (1) Sheet and strip that is not automotive catalytic converters. The aging, and will exhibit yield strengths as annealed or otherwise heat treated and steel contains, by weight, carbon of no high as 1700 Mpa and ultimate tensile pickled or otherwise descaled, (2) sheet more than 0.030 percent, silicon of no strengths as high as 1750 Mpa after and strip that is cut to length, (3) plate more than 1.0 percent, manganese of no aging, with elongation percentages of 3 (i.e., flat-rolled stainless steel products more than 1.0 percent, chromium of percent or less in 50 mm. It is generally of a thickness of 4.75 mm or more), (4) between 19 and 22 percent, aluminum provided in thicknesses between 0.635 flat wire (i.e., cold-rolled sections, with of no less than 5.0 percent, phosphorus and 0.787 mm, and in widths of 25.4 a prepared edge, rectangular in shape, of of no more than 0.045 percent, sulfur of mm. This product is most commonly a width of not more than 9.5 mm), and no more than 0.03 percent, lanthanum used in the manufacture of television (5) razor blade steel. Razor blade steel is of less than 0.002 or greater than 0.05 tubes and is currently available under a flat-rolled product of stainless steel, percent, and total rare earth elements of proprietary trade names such as not further worked than cold-rolled more than 0.06 percent, with the ‘‘Durphynox 17.’’ 5 (cold-reduced), in coils, of a width of balance iron. Finally, three specialty stainless steels not more than 23 mm and a thickness Permanent magnet iron-chromium- typically used in certain industrial of 0.266 mm or less, containing, by cobalt alloy stainless strip is also blades and surgical and medical weight, 12.5 to 14.5 percent chromium, excluded from the scope of this order. instruments are also excluded from the and certified at the time of entry to be This ductile stainless steel strip scope of this order. These include used in the manufacture of razor blades. contains, by weight, 26 to 30 percent stainless steel strip in coils used in the See Chapter 72 of the HTS, ‘‘Additional chromium, and 7 to 10 percent cobalt, production of textile cutting tools (e.g., U.S. Note’’ 1(d). with the remainder of iron, in widths carpet knives).6 This steel is similar to Flapper valve steel is also excluded 228.6 mm or less, and a thickness AISI grade 420 but containing, by from the scope of the order. This between 0.127 and 1.270 mm. It exhibits weight, 0.5 to 0.7 percent of product is defined as stainless steel strip magnetic remanence between 9,000 and molybdenum. The steel also contains, in coils containing, by weight, between 12,000 gauss, and a coercivity of by weight, carbon of between 1.0 and 0.37 and 0.43 percent carbon, between between 50 and 300 oersteds. This 1.1 percent, sulfur of 0.020 percent or 1.15 and 1.35 percent molybdenum, and product is most commonly used in less, and includes between 0.20 and between 0.20 and 0.80 percent electronic sensors and is currently 0.30 percent copper and between 0.20 manganese. This steel also contains, by available under proprietary trade names and 0.50 percent cobalt. This steel is weight, phosphorus of 0.025 percent or such as ‘‘Arnokrome III.’’ 3 sold under proprietary names such as less, silicon of between 0.20 and 0.50 Certain electrical resistance alloy steel ‘‘GIN4 Mo.’’ The second excluded percent, and sulfur of 0.020 percent or is also excluded from the scope of this stainless steel strip in coils is similar to less. The product is manufactured by order. This product is defined as a non- AISI 420-J2 and contains, by weight, means of vacuum arc remelting, with magnetic stainless steel manufactured to carbon of between 0.62 and 0.70 inclusion controls for sulphide of no American Society of Testing and percent, silicon of between 0.20 and more than 0.04 percent and for oxide of Materials (ASTM) specification B344 0.50 percent, manganese of between no more than 0.05 percent. Flapper and containing, by weight, 36 percent 0.45 and 0.80 percent, phosphorus of no valve steel has a tensile strength of nickel, 18 percent chromium, and 46 more than 0.025 percent and sulfur of between 210 and 300 ksi, yield strength percent iron, and is most notable for its no more than 0.020 percent. This steel of between 170 and 270 ksi, plus or resistance to high temperature has a carbide density on average of 100 minus 8 ksi, and a hardness (Hv) of corrosion. It has a melting point of 1390 carbide particles per 100 square between 460 and 590. Flapper valve degrees Celsius and displays a creep microns. An example of this product is steel is most commonly used to produce rupture limit of 4 kilograms per square ‘‘GIN5’’ steel. The third specialty steel specialty flapper valves in compressors. millimeter at 1000 degrees Celsius. This has a chemical composition similar to Also excluded is a product referred to steel is most commonly used in the as suspension foil, a specialty steel AISI 420 F, with carbon of between 0.37 production of heating ribbons for circuit and 0.43 percent, molybdenum of product used in the manufacture of breakers and industrial furnaces, and in suspension assemblies for computer between 1.15 and 1.35 percent, but rheostats for railway locomotives. The lower manganese of between 0.20 and disk drives. Suspension foil is described product is currently available under as 302/304 grade or 202 grade stainless 0.80 percent, phosphorus of no more proprietary trade names such as ‘‘Gilphy than 0.025 percent, silicon of between steel of a thickness between 14 and 127 4 36.’’ 0.20 and 0.50 percent, and sulfur of no microns, with a thickness tolerance of Certain martensitic precipitation- plus-or-minus 2.01 microns, and surface more than 0.020 percent. This product hardenable stainless steel is also is supplied with a hardness of more glossiness of 200 to 700 percent Gs. excluded from the scope of this order. Suspension foil must be supplied in coil than Hv 500 guaranteed after customer This high-strength, ductile stainless processing, and is supplied as, for widths of not more than 407 mm, and steel product is designated under the example, ‘‘GIN6.’’ 7 with a mass of 225 kg or less. Roll marks Unified Numbering System (UNS) as may only be visible on one side, with S45500-grade steel, and contains, by Successorship no scratches of measurable depth. The weight, 11 to 13 percent chromium, and Ugine S.A., an entity involved in the material must exhibit residual stresses 7 to 10 percent nickel. Carbon, of 2 mm maximum deflection, and production and sale of subject manganese, silicon and molybdenum merchandise in the United States, flatness of 1.6 mm over 685 mm length. each comprise, by weight, 0.05 percent Certain stainless steel foil for changed its name early in this POR to or less, with phosphorus and sulfur Ugine & ALZ France S.A. We conducted automotive catalytic converters is also each comprising, by weight, 0.03 excluded from the scope of this order. percent or less. This steel has copper, 5 This stainless steel strip in coils is a ‘‘Durphynox 17’’ is a trademark of Imphy, S.A. 6 This list of uses is illustrative and provided for specialty foil with a thickness of 3 ‘‘Arnokrome III’’ is a trademark of the Arnold descriptive purposes only. between 20 and 110 microns used to Engineering Company. 7 ‘‘GIN4 Mo,’’ ‘‘GIN5’’ and ‘‘GIN6’’ are the produce a metallic substrate with a 4 ‘‘Gilphy 36’’ is a trademark of Imphy, S.A. proprietary grades of Hitachi Metals America, Ltd.
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a successorship review during the prior Scope Ruling on Antidumping Order on The Petitioners also argue that the POR (in order to issue assessment Polyvinyl Alcohol from Taiwan, SSSS U.K. case on which the instructions) and concluded that U&A (December 19, 1996) (Polyvinyl Alcohol Respondent relies is not dispositive of France is the successor to Ugine for Scope Ruling). The Respondent argues this case because, in the SSSS U.K. case, purposes of applying the antidumping that in Polyvinyl Alcohol Scope Ruling, the SSSS slab was sold to the Swedish duty law. See Preliminary Results of the Department did not consider the hot-roller. According to the Petitioners, Antidumping Duty Administrative tolling relationship in making its this fact distinguishes the SSSS U.K. Review: Stainless Steel Sheet and Strip determination that the merchandise had case from the present case, because in in Coils from France, 68 FR 47051, been substantially transformed. the former, the Respondent did not 47052 (August 7, 2003); Notice of Final The Petitioners counter that the maintain control of the merchandise as Department should include the HRAP Results of Antidumping Duty U&A France does is this case. Administrative Review: Stainless Steel merchandise within the scope of this Sheet and Strip in Coils From France, order because the merchandise is of Next, the Petitioners contend that the 68 FR 69379 (December 12, 2003). French origin. The Petitioners say that Department’s 1994 policy memorandum the Department is not required to concerning tolling methodology and Country of Origin dissect each stage of production to country of origin does not support the U&A France urges the Department to determine substantial transformation. Respondent’s arguments regarding the exclude certain U.S. and home market The Petitioners argue that the Act gives HRAP merchandise. See Memorandum sales made during the POR because the Department discretion to consider from Joseph A. Spetrini, Deputy these sales are outside the scope of this the totality of circumstances Assistant Secretary for Compliance, order. The Respondent argues that the surrounding the production of the Through Paul L. Joffe, Deputy Assistant Department should not include sales of merchandise to determine country-of- Secretary for Import Administration, To merchandise that are hot-rolled in origin issues. The Petitioners contend Susan G. Esserman, Assistant Secretary Belgium and then annealed and pickled that the Department has the discretion for Import Administration, Discussion in France, but which are not cold-rolled to perform the substantial Memorandum: A Proposed Alternative in France (HRAP), because this transformation test in a manner that to Current Tolling Methodology in the merchandise is of Belgian origin and not compares how much of the production Current Antidumping (AD) Review of within the scope of the order. The process of the subject merchandise Carbon Steel Flat Products, (December Respondent explains that it produces occurred in France and how much 12, 1994) (Tolling Memorandum). The stainless steel slab in France. The occurred at the affiliated producer in Petitioners say that the Tolling stainless steel slabs are then transported Belgium. The Petitioners argue that the Memorandum was focused primarily on to Belgium where they are hot rolled overall value of the finished SSSS pursuant to a ‘‘toll processing exported from France is attributable to respondent selection and the selection arrangement.’’ The Respondent activity in France and controlled by the of the correct seller’s price, and not on contends that the hot-rolling in Belgium French producer. determining what constitutes is substantial transformation which The Petitioners argue that the substantial transformation in the context changes the country of origin for the Department should consider the of tolling. Accordingly, the Petitioners subject merchandise from France to following seven factors under its totality contend that the Tolling Memorandum Belgium. The Respondent notes that the of the circumstances review to does not prevent the Department from Department has previously determined determine the country of origin of the making tolling or other factors relevant that hot-rolling stainless steel slabs HRAP merchandise: (1) U&A France considerations in whether a product is constituted substantial transformation maintains ownership and control of the substantially transformed in the tolling which changed the country of origin. product at all times; (2) U&A France country. See Notice of Final Determination of purchases only a hot-rolling service For purposes of these preliminary Sales at Less Than Fair Value: Stainless from the Belgium affiliate and the results, we have considered the record Steel Sheet and Strip in Coils from the transfer of funds to pay for this service evidence and arguments submitted by U.K. 64 FR 30688 (June 9, 1999) (SSSS is an intra-company transfer within the the Petitioners and the Respondent, U.K.). In SSSS U.K., the Department Arcelor Group; (3) U&A France and the addressing the treatment of U&A determined that British stainless steel Belgian affiliate are collapsible entities France’s HRAP merchandise. As slabs which were hot-rolled in Sweden under the Department’s regulations and summarized above, the Petitioners and and subsequently returned to the United can be treated as a single unit of the Respondent have commented on Kingdom for finishing were outside the production for the purpose of how the Department should examine scope of the investigation because the establishing the locus of production; (4) hot-rolling process constituted the hot-rolled product is an the HRAP material in light of the scope substantial transformation. intermediate product that has no of the order, the Department’s tolling The Respondent also contends that commercial purpose except to become regulation, and substantial the tolling arrangement between U&A finished hot- or cold-rolled SSSS; (5) the transformation. Considering the specific France and the Belgian hot-roller has no SSSS becomes subject merchandise only facts surrounding this case, we bearing on the country of origin of the after the annealing and pickling occurs preliminarily find that Department subject merchandise. The Respondent in France; (6) the hot-rolling in Belgium should classify the HRAP merchandise asserts that country of origin is not contributes only minimally to the total as Belgian merchandise, outside the determined by reference to the cost of production of the finished SSSS scope of the order in this case. ownership of the material. The product; and (7) the final product is sold Therefore, for purposes of the Respondent notes that in SSSS U.K., the by U&A France to French affiliates. The preliminary results, we have excluded Department did not consider the tolling Petitioners argue that these seven factors sales of the HRAP merchandise from our arrangement between the U.K. and considered as a whole are sufficient to analysis. However, we will continue to Swedish companies in arriving at its enable the Department to find that the analyze the record evidence and country-of-origin decision, nor did it in HRAP merchandise is subject arguments raised by the parties for the context of a scope ruling. See Final merchandise. purposes of the final results.
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Affiliation of Parties compared these to individual CEP that they were unable to obtain the transactions. downstream information. Specifically, Arcelor S.A. (Arcelor) owns 98.97 U&A France explained that Bernier had percent of Usinor S.A. (Usinor). U&A Transactions Reviewed been sold to a competitor during the France, in turn, is a wholly owned A. Home Market Viability POR, and that it was no longer in a subsidiary of Usinor. Additionally, position to compel Bernier to cooperate. Arcelor owns 99.43 percent of Arbed In accordance with section 773(a)(1) See Supplemental Questionnaire S.A. (Arbed), and 95.03 percent of of the Act, to determine whether there Response of Ugine & ALZ France S.A., Aceralia Corporacio´n Sideru´ rgica S.A. were sufficient sales in the home market dated February 10, 2004, at 3 (Feb. 10th (Aceralia). Imphy Ugine Precision (IUP), to serve as a viable basis for calculating Supplemental). For the second reseller NV (i.e., the aggregate volume of home which re-rolls merchandise purchased (‘‘PUM’’), however, the Department market sales of the foreign like product from U&A France, is also a subsidiary preliminarily determines that it is 8 is greater than or equal to five percent (wholly owned) of Usinor. See appropriate to apply adverse facts of the aggregate volume of U.S. sales), Section A Response of Ugine & ALZ available for the missing downstream we compared U&A France’s volume of France S.A., dated October 14, 2003, at sales information. 17 (Section A Response). home market sales of the foreign like Section 776(a)(2) of the Act provides U&A France and IUP made sales product to the volume of U.S. sales of that if an interested party: (A) through two affiliated U.S. companies, the subject merchandise. Pursuant to Withholds information that has been Arcelor Stainless USA, Inc. (Arcelor section 773(a)(1)(B) of the Act, because requested by the Department; (B) fails to Stainless USA) and Rahns Specialty U&A France’s aggregate volume of home provide such information in a timely Metals, Inc. (Rahns), respectively. market sales of the foreign like product manner or in the form or manner Arcelor Stainless USA and Rahns made was greater than five percent of its requested, subject to subsections sales to an affiliate, Hague Steel aggregate volume of U.S. sales for the 782(c)(1) and (e) of the Act; (C) Corporation (Hague), and also to subject merchandise, we determined significantly impedes a determination unaffiliated customers. Hague then that the home market was viable. under the antidumping statute; or (D) resold subject merchandise to B. Arm’s-Length Test provides such information but the unaffiliated customers both with and information cannot be verified, the without further processing. Arcelor U&A France reported that it made Department shall, subject to subsection Stainless USA and Hague are wholly sales in the home market to affiliated 782(d) of the Act, use facts otherwise owned by Ugine Gueugnon, LLC, which end users and resellers during the POR. available in reaching the applicable in turn is wholly owned by Usinor USA Sales to affiliated customers in the home determination. Consistent with sections Holding, LLC. Usinor USA Holding, market not made at arm’s-length were 776(a)(2)(A) and (B) of the Act, we LLC is wholly owned by J&L Specialty excluded from our analysis (with the preliminary find that the use of facts Steel, LLC, which is wholly owned by exception of one company, PUM, available is warranted for PUM’s Arcelor USA Holding. Arcelor USA discussed infra). To test whether these downstream sales information. In the Holding is owned by Usinor, and sales were made at arm’s-length, we September 8, 2003 Section A several other companies, which are all compared the starting prices of sales to questionnaire, the Department requested wholly owned by Arcelor. Id. affiliated and unaffiliated customers net that U&A France report downstream We note that these facts constitute of all movement charges, direct selling sales for all affiliated resellers. On only minor changes to the ownership expenses, discounts and packing. Where March 25, 2004, the Department sent structure of these companies in this identical merchandise was not sold to U&A France a letter again requesting the POR—most of the facts are virtually unaffiliated customers, we based the downstream sales for all three affiliated identical to those of the last review. As comparisons on sales of the most similar resellers. On April 21, 2004, U&A a result, the Department preliminarily merchandise. Where prices to the France submitted a response to that determines that there is no reason to affiliated party were on average between letter, reiterating the arguments in its revisit our affiliation determinations 98 and 102 percent of the price to the Section A Response, and in the Feb. from the previous review. See unrelated party, we determined that 10th Supplemental, that resales by these Preliminary Results of Antidumping sales made to the related party were at three affiliated customers need not be Duty Administrative Review: Stainless arm’s-length. See 19 CFR 351.403(c); reported. In its response, U&A France Steel Sheet and Strip in Coils from Antidumping Proceedings: Affiliated argued that one reseller had passed the France, 68 FR 47049 47051–52 (August Party Sales in the Ordinary Course of arm’s-length test, that one, Bernier, was 7, 2003) (French SSSS 3rd Preliminary). Trade, 67 FR 69186 (November 15, no longer under its control, and that 2002). In our home market NV sales by PUM were insignificant and Normal Value Comparisons calculation, we have included U&A would not be used as matches for U.S. To determine whether U&A France’s France’s sales to certain of its affiliated sales. U&A France also claimed that it sales of subject merchandise to the customers because these entities passed would be difficult to collect all of the United States were made at less than the Department’s arm’s-length test information requested by the fair value, we compared the constructed criteria. Conversely, certain other Department. It did not provide any of export price (CEP) to the normal value affiliated customers did not pass the the requested downstream sales (NV), as described in the ‘‘Constructed arm’s-length test, and therefore sales to information in the database provided Export Price’’ and ‘‘Normal Value’’ these affiliates have been excluded from with that submission, nor did it include sections of this notice, infra. In our home market NV calculation. that information in the final revised accordance with section 777A(d)(2) of For the two resellers not passing the home market database it submitted on the Act, we calculated monthly arm’s-length test, U&A France did not May 19, 2004. weighted-average prices for NV and provide downstream sales information. To date, U&A France has not provided For one of these two resellers the downstream sales by any affiliated 8 For the purposes of this review, we consider IUP (‘‘Bernier’’), the Department eliminated reseller. However, as discussed above, and U&A France to be one respondent and have the sales from consideration because PUM is the only remaining reseller for collapsed their responses. U&A France had satisfactorily explained which downstream sales should have
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been reported. Therefore, consistent information as adverse facts available, instructions listed in the Department’s with sections 776(a)(2)(A) and (B) of the we took into consideration the small questionnaire. Act, because U&A France withheld volume of the sales involved. Normal Value information that had been requested by C. Date of Sale the Department and failed to provide After testing home market viability such information in a timely manner, As stated at 19 CFR 351.401(i), the and whether home market sales were at the Department is applying facts Department normally will use the prices below the cost of production, we otherwise available. In addition, section respondent’s invoice date as the date of calculated NV as noted in the ‘‘Price-to- 776(b) of the Act provides that, if the sale unless another date better reflects Constructed Value (CV) Comparison’’ Department finds that an interested the date upon which the exporter or and ‘‘Price-to-Price Comparisons’’ party ‘‘has failed to cooperate to the best producer establishes the essential terms sections of this notice. of its ability to comply with a request of sale. For U.S. sales, U&A France for information,’’ the Department may reported either invoice date, date of Cost of Production Analysis use information that is adverse to the entry, or shipment date as the date of Because we disregarded sales below interests of that party as facts otherwise sale, depending on the distribution the cost of production in the most available. U&A France explicitly refused channel. The Department preliminarily recently completed segments of this to provide downstream information for finds that invoice date is the correct proceeding on SSSS from France, we PUM, claiming that to do so would be date of sale for U.S. sales. have reasonable grounds to believe or overly burdensome given the For home market sales, U&A France suspect that sales by U&A France in its insignificant volume of this reseller’s reported invoice date as the date of sale, home market were made at prices below sales compared to the aggregate home except for one distribution channel with the cost of production (COP), pursuant market sales volume, and that the ‘‘sales for which the invoice was issued to section 773(b)(1) of the Act. See product sold by this reseller would not after shipment,’’ for which it reported Notice of Final Results of Antidumping be matched to products sold in the shipment date as the date of sale. It also Duty Administrative Review: Stainless United States. See Feb. 10th explained what terms of sale are Steel Sheet and Strip in Coils From Supplemental, at 4, and Supplemental established after shipment for these France, 68 FR 69379 (December 12, Questionnaire Response of Ugine & ALZ sales. These terms, established after 2003). Therefore, pursuant to section France S.A., dated April 21, 2004, at 1– shipment, have some effect on the 773(b)(1) of the Act, we conducted a 5 (April 21st Supplemental). Because material terms of sale, namely quantity. COP analysis of home market sales by U&A France explicitly refused to In addition, according to U&A France, U&A France as described below. provide the requested downstream sales sales revenue is not recognized until the by PUM, the Department preliminarily invoices are issued for these sales. A. Calculation of COP determines that, in accordance with Moreover, sales through this channel In accordance with section 773(b)(3) section 776(b) of the Act, the constitute a clear minority of home of the Act, we calculated a weighted- application of partial adverse facts market sales, and the Department’s average COP based on the sum of U&A available is appropriate. This situation preference is to use only one sales date France’s cost of materials and is different than that of Bernier, U&A per market. Thus, we preliminarily fabrication for the foreign like product, France’s other reseller, that failed the determine that invoice date is the plus amounts for selling, general and arm’s-length test. For Bernier, U&A correct date of sale for all home market administrative expenses (SG&A), France no longer had the control sales. including interest expenses, and necessary to compel cooperation. For Product Comparisons packing costs. We relied on the COP PUM, however, U&A France did not data submitted by U&A France in its In accordance with section 771(16) of claim that its control over PUM was original and supplemental cost the Act, we considered all SSSS anything less than complete, or that it questionnaire responses. was otherwise unable to obtain the products covered by the ‘‘Scope of the requested downstream sales Antidumping Order’’ section of this B. Test of Home Market Prices notice, supra, and sold in the home information. U&A France chose not to We compared the weighted-average market during the POR, to be foreign provide the information simply because COP for U&A France to home market like products for the purpose of it could not see any reason for doing so sales of the foreign like product, as determining appropriate product that would justify the effort. required under section 773(b) of the Act, comparisons to U.S. sales of SSSS As adverse facts available, we will use in order to determine whether these products. We relied on nine the higher of the price charged to PUM sales had been made at prices below the characteristics to match U.S. sales of (the ‘‘upstream’’ price) or the price COP. In determining whether to subject merchandise to comparison charged for the most similar product disregard home market sales made at sales of the foreign like product (listed purchased in the home market by an prices below the COP, we examined 9 in order of preference): (1) Grade; (2) unaffiliated customer. In selecting this whether such sales were made (1) hot/cold rolled; (3) gauge; (4) surface within an extended period of time in 9 finish; (5) metallic coating; (6) non- In past reviews of this order, we have used only substantial quantities, and (2) at prices the price charged for the most similar product metallic coating; (7) width; (8) temper; which permitted the recovery of all purchased in the home market by an unaffiliated and (9) edge trim. Where there were no customer. See, e.g., French SSSS 3rd Preliminary, costs within a reasonable period of time sales of identical merchandise in the 68 FR at 47055. However, the arm’s-length test has in the normal course of trade, in home market to compare to U.S. sales, changed since the initiation of the last review. The accordance with sections 773(b)(1)(A) Department now rejects sales to affiliates if the we compared U.S. sales to the next most and (B) of the Act. On a product-specific average price is lower than 98 percent or higher similar foreign like product on the basis than 102 percent of the average price to unaffiliated basis, we compared the COP to home of the characteristics and reporting customers for the same products. Thus, we must market prices, less any applicable now take into consideration the fact that the price paid for the most similar product by an unaffiliated Antidumping Proceedings: Affiliated Party Sales in billing adjustments, movement charges, customer might be higher or lower than the price the Ordinary Course of Trade, 67 FR 69186 discounts, and direct and indirect paid by the affiliate. See 19 CFR 351.403(c); (November 15, 2002). selling expenses.
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C. Results of the COP Test United States through its three U.S. not disregarded due to the cost test. Pursuant to section 773(b)(2) of the based affiliates, Arcelor Stainless USA, Where appropriate, we make Act, where less than 20 percent of U&A Rahn, and Hague, which then resold the adjustments to CV in accordance with France’s sales of a given product were merchandise to unaffiliated customers. section 773(a)(8) of the Act. We deduct at prices less than the COP, we did not Therefore, because U&A France’s U.S. from CV the weighted-average home sales were made by Arcelor Stainless market direct selling expenses. For these disregard any below-cost sales of that USA, Rahn, and Hague after the subject preliminary results, we did not have to product because we determined that the merchandise was imported into the rely on CV for NV. below-cost sales were not made in United States, it is appropriate to ‘‘substantial quantities.’’ Where 20 Price-to-Price Comparisons classify these sales as CEP sales. percent or more of U&A France’s sales We calculated the CEP in accordance For those product comparisons for of a given product during the POR were with section 772(b) of the Act. We based which there were sales at prices above at prices less than the COP, we CEP on the packed ex-warehouse or the COP, we based NV on prices to determined that such sales have been delivered prices to unaffiliated unaffiliated home market customers or made in ‘‘substantial quantities’’ within purchasers in the United States. We also prices to affiliated customers that were an extended period of time, in made deductions for the following determined to be at arm’s-length. Where accordance with section 773(b)(2)(B) of movement expenses, where appropriate, appropriate, we deducted discounts, the Act. In such cases, because we use in accordance with section 772(c)(2)(A) rebates, credit expenses, warranty POR average costs, we also determined of the Act: foreign inland freight from expenses, inland freight, inland that such sales were not made at prices plant to distribution warehouse, insurance, and warehousing expense. which would permit recovery of all international freight, marine insurance, We also adjusted the starting price for costs within a reasonable period of time, U.S. inland freight from port to billing adjustments, freight revenue, and in accordance with section 773(b)(2)(D) warehouse, U.S. inland freight from direct selling expenses. We also made of the Act. Therefore, we disregarded warehouse/plant to the unaffiliated adjustments, where applicable, for home the below-cost sales. customer, U.S. warehouse expenses, market indirect selling expenses to D. Calculation of Constructed Value other U.S. transportation expense, offset U.S. commissions in CEP wharfage expenses, and customs duties. comparisons. In accordance with section 773(e)(1) In accordance with section 772(d)(1) of We made adjustments, where of the Act, we calculated CV based on the Act, we deducted selling expenses appropriate, for physical differences in the sum of U&A France’s cost of associated with economic activities the merchandise in accordance with materials, fabrication, SG&A (including occurring in the United States, section 773(a)(6)(C)(ii) of the Act. interest expenses), U.S. packing costs, including direct selling expenses, Additionally, in accordance with and profit. In accordance with section inventory carrying costs, credit, sections 773(a)(6)(A) and (B), we 773(e)(2)(A) of the Act, we based SG&A warranty expenses, commissions and deducted home market packing costs and profit on the amounts incurred and other indirect selling expenses. and added U.S. packing costs. In realized by U&A France in connection For products that were further accordance with the Department’s with the production and sale of the manufactured by Hague after practice, where all contemporaneous foreign like product in the ordinary importation, we adjusted for all costs of matches to a U.S. sale observation course of trade for consumption in the further manufacturing in the United resulted in difference-in-merchandise foreign country. For selling expenses, States, in accordance with section adjustments exceeding 20 percent of the we used the actual weighted-average 772(d)(2) of the Act. In calculating the cost of manufacturing (COM) of the U.S. home market direct and indirect selling cost of further manufacturing for Hague, product, we based NV on CV. expenses. we relied upon the further For reasons discussed in the ‘‘Level of Export Price manufacturing information provided by Trade’’ section below, we allowed a CEP U&A France. offset for comparisons made at different In accordance with section 772(a) of We deducted the profit allocated to levels of trade. To calculate the CEP the Act, export price (EP) is the price at expenses deducted under sections offset, we deducted the home market which the subject merchandise is first 772(d)(1) and (d)(2), in accordance with indirect selling expenses (less any offset sold (or agreed to be sold) before the sections 772(d)(3) and 772(f) of the Act. of U.S. commissions) from NV for home date of importation by the producer or In accordance with section 772(f) of the market sales that were compared to U.S. exporter of the subject merchandise Act, we computed profit based on total CEP sales. We limited the home market outside of the United States to an revenues realized on sales in both the indirect selling expense deduction by unaffiliated purchaser in the United U.S. and home markets, less all the amount of the indirect selling States or to an unaffiliated purchaser for expenses associated with those sales. expenses deducted in calculating the exportation to the United States. In We then allocated profit to expenses CEP as required under section accordance with section 772(b) of the incurred with respect to U.S. economic 772(d)(1)(D) of the Act. Act, CEP is the price at which the activity (including further Level of Trade subject merchandise is first sold (or manufacturing costs), based on the ratio agreed to be sold) in the United States of total U.S. expenses to total expenses In accordance with section before or after the date of importation by for both the U.S. and home market. We 773(a)(1)(B) of the Act, to the extent or for the account of the producer or also adjusted the starting price for practicable, we determine NV using exporter of such merchandise, or by a billing adjustments, discounts, rebates, sales in the comparison market at the seller affiliated with the producer or and freight revenue. same level of trade (LOT) as the CEP exporter, to a purchaser not affiliated sales. However, if the selected with the producer or exporter. Price-to-CV Comparisons comparison market sales are at a For purposes of this review, U&A In accordance with section 773(a)(4) different LOT than the CEP sales, and a France classified all of its reported sales of the Act, we base NV on CV if we are consistent pattern of price differences is of SSSS as CEP sales. During the review unable to find a home market match of manifested between the sales on which period U&A France made sales to the identical or similar merchandise that is NV is based and other home market
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sales at the same LOT as the export However, because the available data some or all of U&A France’s U.S. sales, transaction, we make a LOT adjustment does not provide a basis for determining we must make a duty absorption under section 773(a)(7)(A) of the Act. a LOT adjustment, we adjusted NV determination in this segment of the Finally, for CEP sales, if the NV LOT is under section 773(a)(7)(B) of the Act proceeding within the meaning of more remote from the factory than the (the CEP offset provision). We note that section 751(a)(4) of the Act. CEP LOT, and there is no basis for in all prior administrative reviews of On October 20, 2003, the Department determining a consistent pattern of price this order, where similar situations requested evidence from U&A France differences, we adjust NV under section existed, we also granted a CEP offset. that unaffiliated purchasers will 773(a)(7)(B) of the Act (the CEP offset See, e.g., Notice of Amended Final ultimately pay the antidumping duties provision). See, e.g., Notice of Final Results of Antidumping Duty to be assessed on entries during the Determination of Sales at Less Than Administrative Review: Stainless Steel review period. We established a due Fair Value: Certain Cut-to-Length Sheet and Strip in Coils from France, 68 date of November 10, 2003. We received Carbon Steel Plate from South Africa, FR 4171 (January 28, 2003); and, French no response. On November 19, 2003, the 62 FR 61731, 61732 (November 19, SSSS 3rd Preliminary, 68 FR at 47054– Department sent U&A France a second 1997). To determine whether NV sales 55. See also Stainless Steel Plate in letter reminding them of the earlier are at a different LOT than CEP sales, Coils From Belgium: Preliminary Results request and asking that the requested we examine selling functions between of Antidumping Duty Administrative information be submitted by November the producer and the unaffiliated or Review, 69 FR 32501, 32506–07 (June 25, 2003. Again we received no affiliated customer (if the arm’s-length 10, 2004). response. In both letters, we advised test is passed) for home market sales, Currency Conversion U&A France that a failure to respond and between the producer and the might result in the application of facts affiliated customer for CEP sales. For purposes of the preliminary results, in accordance with section 773A available. In reviewing the selling functions of the Act, we made currency In determining whether the reported by U&A France, we examined conversions based on the official antidumping duties have been absorbed all types of selling functions reported in exchange rates in effect on the dates of by the respondent during the POR on the questionnaire responses. Based on a the U.S. sales as certified by the Federal sales for which they or their affiliates comparison of such selling functions Reserve Bank of New York. Section were importer of record, we presume performed in the home market 773A(a) of the Act directs the that the duties will be absorbed for distribution channels, we preliminarily Department to use the daily exchange those sales that have been made at less determine that U&A France sold rate in effect on the date of sale in order than NV. This presumption can be merchandise at one LOT in the home to convert foreign currencies into U.S. rebutted with evidence (e.g., an market during the POR. dollars, unless the daily rate involves a agreement between the respondent/ U&A France only reported CEP sales ‘‘fluctuation.’’ In accordance with the importer and unaffiliated purchaser) in the U.S. market. Because all of U&A Department’s practice, we have that the unaffiliated purchaser will pay France’s CEP sales in the U.S. market determined as a general matter that a the full duty ultimately assessed on the were made through Arcelor Stainless fluctuation exists when the daily subject merchandise. In this case, USA, Rahn, and Hague, and the selling exchange rate differs from a benchmark however, U&A France did not respond functions performed in these channels by 2.25 percent. See, e.g., Certain to the Department’s two requests for were similar, we preliminarily Stainless Steel Wire Rods from France; information. Accordingly, based on the determine that there was one LOT in the Preliminary Results of Antidumping record, we cannot conclude that the U.S. market. For these CEP sales, fewer Duty Administrative Review, 61 FR unaffiliated purchaser in the United and different selling functions were 8915, 8918 (March 6, 1996); Policy States will pay the ultimately assessed performed for CEP sales than for sales Bulletin 96–1: Currency Conversions, 61 duty. Therefore, we preliminarily find at the home market LOT. For example, FR 9434 (March 6, 1996). The that antidumping duties have been selling functions included in the home benchmark is defined as the rolling absorbed by U&A France during the market LOT, but not in the CEP LOT, average of rates for the past 40 business POR on those sales at less than fair include some functions of strategic days. When we determine a fluctuation value for which its affiliates were the planning and marketing, all customer exists, we substitute the benchmark for importers of record. See, e.g., Certain sales and contact, some functions of the daily rate. Preserved Mushrooms from India: production planning and order Preliminary Results of Antidumping Duty Absorption evaluation, some functions of warranty Duty Administrative Review, 69 FR claim analysis, all technical services, all On September 10, 2003, the 10659 (March 8, 2004). sales-related administrative support, Petitioners requested that the and arranging transportation to the final Department determine whether Preliminary Results of Review customer. See Section A Response, at antidumping duties had been absorbed As a result of this review, we Appendix 8.A. In other words, as during the POR. Section 751(a)(4) of the preliminarily find that the following explained in U&A France’s Section A Act provides for the Department, if weighted-average dumping margin Response, U&A France performed very requested, to determine during an exists: few selling activities for the U.S. sales administrative review initiated two or because most selling functions were four years after the publication of the STAINLESS STEEL SHEET AND STRIP IN performed by the U.S. sales affiliates order, whether antidumping duties have COILS FROM FRANCE (e.g., Arcelor Stainless USA, Rahn, and been absorbed by a foreign producer or Hague) and associated expenses were exporter, if the subject merchandise is Weighted- reported in one of the U.S. indirect sold in the United States through an Producer/manufacturer/exporter average selling expenses variables. Accordingly, affiliated importer. Because this review margin we found that sales at the home market was initiated four years after the (percent) LOT were at a more advanced stage of publication of the order, and affiliated U&A France ...... 11.99 distribution compared to the CEP sales. parties acted as importer of record for
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Pursuant to 19 CFR 351.224, the of this administrative review, as Union, J&L Specialty Steel, Inc., North Department will disclose to any party to provided in section 751(a)(1) of the Act: American Stainless, United the proceeding, within five days of (1) The cash deposit rate for U&A Steelworkers of America, AFL–CIO/ publication of this notice, the France will be that established in the CLC, and Zanesville Armco calculations performed. Any interested final results of this review; (2) for Independent Organization (collectively, party may request a hearing within 30 previously reviewed or investigated petitioners), and respondent, days of publication. Any hearing, if companies not covered in this review, ThyssenKrupp Nirosta GmbH, requested, will normally be held 37 the cash deposit rate will continue to be ThyssenKrupp VDM GmbH, days after the date of publication, or the the company-specific rate published for ThyssenKrupp Nirosta North America, first working day thereafter. Interested the most recent period; (3) if the Inc., and ThyssenKrupp VDM USA, Inc. parties may submit case briefs and/or exporter is not a firm covered in this (collectively, TKN), the Department of written comments no later than 30 days review, a prior review, or the original Commerce (the Department) is after the date of publication. Rebuttal less than fair value (LTFV) conducting an administrative review of briefs and rebuttals to written investigation, but the manufacturer is, the antidumping duty order on stainless comments, limited to issues raised in the cash deposit rate will be the rate steel sheet and strip in coils (S4) from such briefs or comments, may be filed established in the most recent period for Germany. The review covers one no later than 35 days after the date of the manufacturer of the merchandise; manufacturer/exporter of the subject publication. Parties who submit and, (4) if neither the exporter nor the merchandise to the United States during arguments are requested to submit with manufacturer is a firm covered in this or the period of review (POR) July 1, 2002, the argument: (1) A statement of the any previous review conducted by the through June 30, 2003. issue, (2) a brief summary of the Department, the cash deposit rate will We preliminarily determine that TKN argument and (3) a table of authorities. continue to be the ‘‘all others’’ rate made sales at less than fair value during Further, the Department requests that established in the LTFV investigation, the POR. If these preliminary results are parties submitting written comments which was 9.38 percent. See adopted in our final results of review, provide the Department with an Antidumping Duty Order, 64 FR at we will instruct U.S. Customs and additional copy of the public version of 40565. Border Protection (Customs) to assess any such comments on a computer Notification to Interested Parties antidumping duties based on the diskette. The Department will publish difference between the United States the final results of this administrative This notice serves as a preliminary Price (USP) and normal value (NV). review, which will include the results of reminder to importers of their Interested parties are invited to its analysis of issues raised in any such responsibility under regulation 19 CFR comment on these preliminary results. written comments or at a hearing, 351.402(f) to file a certificate regarding Parties who submit arguments in this within 120 days after the publication of the reimbursement of antidumping proceeding are requested to submit with this notice. duties prior to liquidation of the the arguments: (1) A statement of the relevant entries during this review Assessment issues and (2) a brief summary of the period. Failure to comply with this arguments (no longer than five pages, Upon issuance of the final results of requirement could result in the including footnotes) and (3) a table of review, the Department shall determine, Secretary’s presumption that authorities. and CBP shall assess, antidumping reimbursement of antidumping duties duties on all appropriate entries. The occurred and the subsequent assessment DATES: Effective Date: August 6, 2004. Department will issue appraisement of double antidumping duties. FOR FURTHER INFORMATION CONTACT: instructions directly to CBP within This administrative review and notice Patricia Tran or Robert James at (202) fifteen days of publication of the final is published in accordance with 482–1121 or (202) 482–0649, results of review. The final results of sections 751(a)(1) and 777(I)(1) of the respectively, Antidumping and this review shall be the basis for the Act. Countervailing Duty Enforcement Office assessment of antidumping duties on Dated: July 29, 2004. 6, Import Administration, International Trade Administration, U.S. Department entries of merchandise covered by the Jeffrey A. May, results and for future deposits of of Commerce, 14th Street and Acting Assistant Secretary for Import Constitution Avenue, NW., Washington, estimated duties. For duty assessment Administration. purposes, we calculated an importer- DC 20230. [FR Doc. 04–18034 Filed 8–5–04; 8:45 am] specific assessment rate by dividing the SUPPLEMENTARY INFORMATION: total dumping margins calculated for BILLING CODE 3510–DS–P Background the U.S. sales to the importer by the total entered value of these sales. If the DEPARTMENT OF COMMERCE The Department published an preliminary results are adopted in the antidumping duty order on S4 from final results of review, this rate will be International Trade Administration Germany on July 27, 1999. See Notice of used for the assessment of antidumping Amended Final Determination of Sales duties on all entries of the subject [A–428–825] at Less than Fair Value and merchandise by that importer during the Stainless Steel Sheet and Strip in Coils Antidumping Duty Order; Stainless POR. From Germany; Notice of Preliminary Steel Sheet and Strip in Coils from Germany, 64 FR 40557 (July 27, 1999) Cash Deposits Results of Antidumping Duty Administrative Review (Antidumping Duty Order). The The following deposit requirements Department published the Notice of will be effective upon completion of the AGENCY: Import Administration, Opportunity to Request Administrative final results of this administrative International Trade Administration, Review of S4 from Germany for the review for all shipments of the subject Department of Commerce. period July 1, 2002, through June 30, merchandise entered, or withdrawn SUMMARY: In response to a request from 2003, on July 2, 2003 (67 FR 44172). from warehouse, for consumption on or Allegheny Ludlum, AK Steel On July 24 and 29, 2003, respectively, after the publication of the final results Corporation, Butler Armco Independent TKN and petitioners requested an
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administrative review of TKN’s sales for annealed or otherwise heat treated and 12.5 to 14.5 percent chromium, and the period July 1, 2002, through June 30, pickled or otherwise descaled. The certified at the time of entry to be used 2003. On August 22, 2003, the subject sheet and strip may also be in the manufacture of razor blades. See Department published in the Federal further processed (e.g., cold-rolled, chapter 72 of the HTS, ‘‘Additional U.S. Register a notice of initiation of this polished, aluminized, coated, etc.) Note’’ 1(d). antidumping duty administrative provided that it maintains the specific Flapper valve steel is also excluded review. See Notice of Initiation of dimensions of sheet and strip following from the scope of the order. This Antidumping and Countervailing Duty such processing. The merchandise product is defined as stainless steel strip Administrative Reviews and Requests subject to this order is currently in coils containing, by weight, between for Revocation in Part, 68 FR 50750 classifiable in the Harmonized Tariff 0.37 and 0.43 percent carbon, between (August 22, 2003). Schedule of the United States (HTS) at 1.15 and 1.35 percent molybdenum, and On September 12, 2003, the subheadings: 7219.13.0031, between 0.20 and 0.80 percent Department issued an antidumping duty 7219.13.0051, 7219.13.0071, manganese. This steel also contains, by questionnaire to TKN. TKN submitted 7219.1300.81,2 7219.14.0030, weight, phosphorus of 0.025 percent or its response to section A of the 7219.14.0065, 7219.14.0090, less, silicon of between 0.20 and 0.50 questionnaire on October 17, 2003, and 7219.32.0005, 7219.32.0020, percent, and sulfur of 0.020 percent or its response to sections B through D of 7219.32.0025, 7219.32.0035, less. The product is manufactured by the questionnaire on November 24, 7219.32.0036, 7219.32.0038, means of vacuum arc remelting, with 2003.1 On March 23, 2004, the 7219.32.0042, 7219.32.0044, inclusion controls for sulphide of no Department issued a supplemental 7219.33.0005, 7219.33.0020, more than 0.04 percent and for oxide of questionnaire for sections A, B, and C, 7219.33.0025, 7219.33.0035, no more than 0.05 percent. Flapper to which TKN responded on April 20 7219.33.0036, 7219.33.0038, valve steel has a tensile strength of and 26, 2004. On May 05, 2004, the 7219.33.0042, 7219.33.0044, between 210 and 300 ksi, yield strength Department issued a supplemental 7219.34.0005, 7219.34.0020, of between 170 and 270 ksi, plus or questionnaire for section D. TKN 7219.34.0025, 7219.34.0030, minus 8 ksi, and a hardness (Hv) of responded to this supplemental 7219.34.0035, 7219.35.0005, between 460 and 590. Flapper valve questionnaire on May 19, 2004. Finally, 7219.35.0015, 7219.35.0030, steel is most commonly used to produce on July 23, 2004, the Department issued 7219.35.0035, 7219.90.0010, specialty flapper valves in compressors. a third supplemental questionnaire, for 7219.90.0020, 7219.90.0025, Also excluded is a product referred to section B, to which TKN responded on 7219.90.0060, 7219.90.0080, as suspension foil, a specialty steel July 27, 2004. 7220.12.1000, 7220.12.5000, product used in the manufacture of Because it was not practicable to 7220.20.1010, 7220.20.1015, suspension assemblies for computer complete this review within the normal 7220.20.1060, 7220.20.1080, disk drives. Suspension foil is described time frame, on March 10, 2004, we 7220.20.6005, 7220.20.6010, as 302/304 grade or 202 grade stainless published in the Federal Register our 7220.20.6015, 7220.20.6060, steel of a thickness between 14 and 127 notice of the extension of time limits for 7220.20.6080, 7220.20.7005, microns, with a thickness tolerance of this review. See Stainless Steel Sheet 7220.20.7010, 7220.20.7015, plus-or-minus 2.01 microns, and surface and Strips in Coils from Germany; 7220.20.7060, 7220.20.7080, glossiness of 200 to 700 percent Gs. Suspension foil must be supplied in coil Antidumping Duty Administrative 7220.20.8000, 7220.20.9030, Review; Extension of Time Limit for widths of not more than 407 mm, and 7220.20.9060, 7220.90.0010, Preliminary Results, 69 FR 11386 with a mass of 225 kg or less. Roll marks 7220.90.0015, 7220.90.0060, and (March 10, 2004). This extension may only be visible on one side, with 7220.90.0080. Although the HTS established the deadline for these no scratches of measurable depth. The subheadings are provided for preliminary results as July 30, 2004. material must exhibit residual stresses convenience and customs purposes, the of 2 mm maximum deflection, and Scope of the Review Department’s written description of the flatness of 1.6 mm over 685 mm length. The products covered by this order merchandise under review is Certain stainless steel foil for are certain stainless steel sheet and strip dispositive. automotive catalytic converters is also Excluded from the review of this in coils. Stainless steel is an alloy steel excluded from the scope of this order. containing, by weight, 1.2 percent or order are the following: (1) Sheet and This stainless steel strip in coils is a less of carbon and 10.5 percent or more strip that is not annealed or otherwise specialty foil with a thickness of of chromium, with or without other heat treated and pickled or otherwise between 20 and 110 microns used to elements. The subject sheet and strip is descaled, (2) sheet and strip that is cut produce a metallic substrate with a a flat-rolled product in coils that is to length, (3) plate (i.e., flat-rolled honeycomb structure for use in greater than 9.5 mm in width and less stainless steel products of a thickness of automotive catalytic converters. The than 4.75 mm in thickness, and that is 4.75 mm or more), (4) flat wire (i.e., steel contains, by weight, carbon of no cold-rolled sections, with a prepared more than 0.030 percent, silicon of no 1 Section A of the questionnaire requests general edge, rectangular in shape, of a width of more than 1.0 percent, manganese of no information concerning a company’s corporate not more than 9.5 mm), and (5) razor structure and business practices, the merchandise more than 1.0 percent, chromium of blade steel. Razor blade steel is a flat- between 19 and 22 percent, aluminum under review that it sells, and the manner in which rolled product of stainless steel, not it sells that merchandise in all of its markets. of no less than 5.0 percent, phosphorus Section B requests a complete listing of all home further worked than cold-rolled (cold- of no more than 0.045 percent, sulfur of market sales, or, if the home market is not viable, reduced), in coils, of a width of not of sales in the most appropriate third-country no more than 0.03 percent, lanthanum more than 23 mm and a thickness of of less than 0.002 or greater than 0.05 market (this section is not applicable to respondents 0.266 mm or less, containing, by weight, in non-market economy cases). Section C requests percent, and total rare earth elements of a complete listing of U.S. sales. Section D requests more than 0.06 percent, with the information on the cost of production of the foreign 2 Due to changes to the HTS numbers in 2001, like product and the constructed value of the 7219.13.0030, 7219.13.0050, 7219.13.0070, and balance iron. merchandise under review. Section E requests 7219.13.0080 are now 7219.13.0031, 7219.13.0051, Permanent magnet iron-chromium- information on further manufacturing. 7219.13.0071, and 7219.13.0081, respectively. cobalt alloy stainless strip is also
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excluded from the scope of this order. blades and surgical and medical determination in this segment of the This ductile stainless steel strip instruments are also excluded from the proceeding within the meaning of contains, by weight, 26 to 30 percent scope of this order. These include section 751(a)(4) of the Tariff Act. chromium, and 7 to 10 percent cobalt, stainless steel strip in coils used in the In its July 12, 2004, supplemental with the remainder of iron, in widths production of textile cutting tools (e.g., questionnaire, the Department requested 228.6 mm or less, and a thickness carpet knives).6 This steel is similar to evidence from the respondent to between 0.127 and 1.270 mm. It exhibits AISI grade 420 but containing, by demonstrate that unaffiliated U.S. magnetic remanence between 9,000 and weight, 0.5 to 0.7 percent of purchasers will pay any antidumping 12,000 gauss, and a coercivity of molybdenum. The steel also contains, duties ultimately assessed on entries between 50 and 300 oersteds. This by weight, carbon of between 1.0 and during this POR. On July 14, 2004, TKN product is most commonly used in 1.1 percent, sulfur of 0.020 percent or stated it ‘‘does not believe that there is electronic sensors and is currently less, and includes between 0.20 and any basis for concluding that available under proprietary trade names 0.30 percent copper and between 0.20 {respondents} absorbed antidumping such as ‘‘Arnokrome III.’’3 and 0.50 percent cobalt. This steel is duties in this review or will do so after Certain electrical resistance alloy steel sold under proprietary names such as they are assessed as a result of this is also excluded from the scope of this ‘‘GIN4 Mo.’’ The second excluded review.’’ In determining whether order. This product is defined as a non- stainless steel strip in coils is similar to antidumping duties have been absorbed magnetic stainless steel manufactured to AISI 420–J2 and contains, by weight, by the respondent during the POR, we American Society of Testing and carbon of between 0.62 and 0.70 presume that the duties will be absorbed Materials (ASTM) specification B344 percent, silicon of between 0.20 and for those sales that have been made at and containing, by weight, 36 percent 0.50 percent, manganese of between less than normal value (NV). This nickel, 18 percent chromium, and 46 0.45 and 0.80 percent, phosphorus of no presumption can be rebutted with percent iron, and is most notable for its more than 0.025 percent and sulfur of evidence (e.g., an agreement between resistance to high temperature no more than 0.020 percent. This steel the affiliated importer and unaffiliated corrosion. It has a melting point of 1390 has a carbide density on average of 100 purchaser) that the unaffiliated degrees Celsius and displays a creep carbide particles per 100 square purchaser will pay the full duty rupture limit of 4 kilograms per square microns. An example of this product is ultimately assessed on the subject millimeter at 1000 degrees Celsius. This ‘‘GIN5’’ steel. The third specialty steel merchandise. Despite TKN’s claim, it steel is most commonly used in the has a chemical composition similar to provided no evidence on the record production of heating ribbons for circuit AISI 420 F, with carbon of between 0.37 showing that unaffiliated purchasers breakers and industrial furnaces, and in and 0.43 percent, molybdenum of will pay the full duty ultimately rheostats for railway locomotives. The between 1.15 and 1.35 percent, but assessed on the subject merchandise. product is currently available under lower manganese of between 0.20 and Therefore, we preliminarily find that proprietary trade names such as ‘‘Gilphy 0.80 percent, phosphorus of no more antidumping duties have been absorbed 36.’’4 than 0.025 percent, silicon of between by TKN on all U.S. sales made through Certain martensitic precipitation- 0.20 and 0.50 percent, and sulfur of no its affiliated importers. hardenable stainless steel is also more than 0.020 percent. This product Verification excluded from the scope of this order. is supplied with a hardness of more This high-strength, ductile stainless than Hv 500 guaranteed after customer As provided in section 782(i) of the steel product is designated under the processing, and is supplied as, for Tariff Act, the Department conducted a Unified Numbering System (UNS) as example, ‘‘GIN6.’’7 home market sales verification at TKN’s S45500-grade steel, and contains, by headquarters in Krefeld, Germany and at weight, 11 to 13 percent chromium, and Duty Absorption its affiliate, Nirosta Service Center 7 to 10 percent nickel. Carbon, On September 22, 2003, petitioners (NSC), in Wilnsdorf-Anzhausen, manganese, silicon and molybdenum requested that the Department Germany. We used standard verification each comprise, by weight, 0.05 percent determine whether antidumping duties procedures, including on-site inspection or less, with phosphorus and sulfur had been absorbed during the POR by of the facility, examination of relevant each comprising, by weight, 0.03 the respondent. Section 751(a)(4) of the records, and selection of original percent or less. This steel has copper, Tariff Act provides for the Department, documents containing relevant niobium, and titanium added to achieve if requested, to determine, during an information. The sales verification aging, and will exhibit yield strengths as administrative review initiated two or report will be released after the high as 1700 Mpa and ultimate tensile four years after the publication of the preliminary results. strengths as high as 1750 Mpa after order, whether antidumping duties have Fair Value Comparisons aging, with elongation percentages of 3 been absorbed by a foreign producer or percent or less in 50 mm. It is generally exporter, if the subject merchandise is To determine whether sales of S4 in provided in thicknesses between 0.635 sold in the United States through an the United States were made at less than and 0.787 mm, and in widths of 25.4 affiliated importer. Because TKN sold fair value, we compared USP to NV, as mm. This product is most commonly subject merchandise to unaffiliated described in the ‘‘Constructed Export used in the manufacture of television customers in the United States through Price’’ and ‘‘Normal Value’’ sections of tubes and is currently available under an importer that is affiliated (i.e., this notice. In accordance with section proprietary trade names such as TKNNA, TKSSNA, and TKVDM USA), 777A(d)(2) of the Tariff Act, we ‘‘Durphynox 17.’’5 and because this review was initiated calculated monthly weighted-average Finally, three specialty stainless steels four years after the publication of the NVs and compared these to individual typically used in certain industrial order, we will make a duty absorption U.S. transactions. Constructed Export Price (CEP) 3 ‘‘Arnokrome III’’ is a trademark of the Arnold 6 This list of uses is illustrative and provided for Engineering Company. descriptive purposes only. We calculated CEP in accordance 4 ‘‘Gilphy 36’’ is a trademark of Imphy, S.A. 7 ‘‘GIN4 Mo,’’ ‘‘GIN5’’ and ‘‘GIN6’’ are the with subsection 772(b) of the Tariff Act, 5 ‘‘Durphynox 17’’ is a trademark of Imphy, S.A. proprietary grades of Hitachi Metals America, Ltd. because sales to the first unaffiliated
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purchaser took place after importation To test whether these sales to affiliates expenses, and home market packing into the United States. We based CEP on were made at arm’s length prices, we costs. We relied on the COP data the packed, delivered, duty paid or compared, on a model-specific basis, the submitted by TKN, except for the two delivered prices to unaffiliated starting prices of sales to affiliated and changes noted below. purchasers in the United States. We unaffiliated customers net of all In accordance with section 773(f)(2) of made adjustments for price or billing movement charges, direct selling the Tariff Act, where TKN’s reported errors, where applicable. We also made expenses, and packing. Where, for the transfer prices for purchases of nickel deductions for movement expenses in tested models of subject merchandise, from an affiliated party were not at accordance with section 772(c)(2)(A) of prices to the affiliated party were arm’s length, we increased these prices the Tariff Act; these included, where between 98 and 102 percent of the price to reflect the prevailing market prices. appropriate, foreign inland freight, of identical or comparable merchandise See TKN’s Preliminary Results Analysis marine insurance, U.S. customs duties, to the unaffiliated parties, we Memorandum, July 29, 2004. For both U.S. inland freight, foreign brokerage determined that sales made to the TKN and VDM, we revised the interest and handling, international freight, affiliated party were at arm’s length. See expense ratio by recalculating the short- foreign inland freight, insurance, and 19 CFR 351.403(c). In instances where term interest income offset and U.S. warehousing expenses. In no price ratio could be calculated for an including the net miscellaneous accordance with section 772(d)(1) of the affiliated customer because identical financial expense. See id. Tariff Act, we deducted those selling merchandise was not sold to In accordance with section 773(b)(1) expenses associated with economic unaffiliated customers, we were unable of the Tariff Act, in determining activities occurring in the United States, to determine whether these sales were whether to disregard home market sales including direct selling expenses (credit made at arm’s length prices and, made at prices below COP, we costs, warranty expenses, commissions therefore, excluded them from our examined whether such sales were and other direct selling expenses), analysis. See Final Determination of made within an extended period of time inventory carrying costs, and other Sales at Less Than Fair Value: Certain in substantial quantities, and whether indirect selling expenses. We offset Cold-Rolled Carbon Steel Flat Products such sales were made at prices which credit expenses by the amount of from Argentina, 58 FR 37062, 37077 would permit recovery of all costs interest revenue on sales. For CEP sales, (July 9, 1993) and Notice of Preliminary within a reasonable period of time. we also made an adjustment for profit Determination of Sales at Less Than Pursuant to section 773(b)(2)(C) of the in accordance with section 772(d)(3) of Fair Value and Postponement of Final Tariff Act, where less than 20 percent of the Tariff Act. Determination; Emulsion Styrene- TKN’s sales of a given model were at For those sales in which material was Butadiene Rubber from Brazil, 63 FR prices less than COP, we did not sent to an unaffiliated U.S. processor to 59509, 59512 (November 4, 1998). disregard any below-cost sales of that be further processed, we made an Where the exclusion of such sales model because these below-cost sales adjustment based on the transaction- eliminated all sales of the most were not made in substantial quantities. specific further-processing amounts appropriate comparison product, we Where 20 percent or more of TKN’s reported by TKN. made a comparison to the next most home market sales of a given model similar model. were at prices less than the COP, we Home Market disregarded the below-cost sales In order to determine whether there Cost of Production (COP) Analysis because such sales were made: (1) In was a sufficient volume of sales in the The Department disregarded certain substantial quantities within the POR home market to serve as a viable basis sales made by TKN in the preceding (i.e., within an extended period of time) for calculating NV (i.e., the aggregate administrative review because these in accordance with section 773(b)(2)(B) volume of home market sales of the sales were below cost. See Stainless of the Tariff Act, and (2) at prices which foreign like product was equal to or Steel Sheet and Strip in Coils from would not permit recovery of all costs greater than five percent of the aggregate Germany: Notice of Final Results of within a reasonable period of time, in volume of U.S. sales), we compared the Antidumping Duty Administrative accordance with section 773(b)(2)(D) of respondent’s volume of home market Review, 69 FR 6262, (February 10, the Tariff Act (i.e., the sales were made sales of the foreign like product to the 2004); see also Stainless Steel Sheet and at prices below the weighted-average volume of U.S. sales of the subject Strip in Coils from Germany; Notice of per-unit COP for the POR). We used the merchandise, in accordance with Preliminary Results of Antidumping remaining sales as the basis for section 773(a)(1) of the Tariff Act. As Duty Administrative Review, 68 FR determining NV, if such sales existed, in TKN’s aggregate volume of home market 47039, 47041—42 (August 7, 2003). accordance with section 773(b)(1) of the sales of the foreign like product was Thus, in accordance with section Tariff Act. We did not make use of greater than five percent of its aggregate 773(b)(2)(A)(ii) of the Tariff Act, there constructed value, as all U.S. sales were volume of U.S. sales of the subject are reasonable grounds to believe or matched to home market sales. merchandise, we determined the home suspect that sales of S4 in the home market was viable. Therefore, we have market were made at prices below their Normal Value based NV on home market sales in the COP in the current review period. We calculated NV based on prices to usual commercial quantities and in the Accordingly, pursuant to section 773(b) unaffiliated customers or prices to ordinary course of trade. of the Tariff Act, we initiated a cost affiliated customers that we determined Sales to affiliated customers in the investigation to determine whether sales to be at arm’s length. We made home market not made at arm’s-length made during the POR were at prices adjustments for interest revenue, prices (if any) were excluded from our below their respective COP. discounts, and rebates where analysis because we considered them to In accordance with section 773(b)(3) appropriate. We made deductions, be outside the ordinary course of trade. of the Tariff Act, we calculated COP where appropriate, for foreign inland If sales were not made at arm’s-length, based on the sum of the cost of materials freight, handling, and warehousing, then the Department used the sale from and fabrication for the foreign like pursuant to section 773(a)(6)(B) of the the affiliated party to the first product, plus an amount for general and Tariff Act. In addition, when comparing unaffiliated party. See 19 CFR 351.102. administrative expenses (G&A), interest sales of similar merchandise, we made
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adjustments for differences in cost Less Than Fair Value, 62 FR 61731, sold at one LOT in the home market; attributable to differences in physical 61733 (November 19, 1997). therefore, there is no basis upon which characteristics of the merchandise In implementing these principles in to determine whether there is a pattern pursuant to section 773(a)(6)(C)(ii) of this review, we asked TKN to identify of consistent price differences between the Tariff Act and 19 CFR 351.411. We the specific differences and similarities levels of trade. Further, we do not have also made adjustments for differences in in selling functions and support services the information which would allow us circumstances of sale (COS) in between all phases of marketing in the to examine pricing patterns of TKN’s accordance with section 773(a)(6)(C)(iii) home market and the United States. sales of other similar products, and of the Tariff Act and 19 CFR 351.410. TKN identified four channels of there is no other record evidence upon We made COS adjustments for imputed distribution in the home market: (1) Mill which such an analysis could be based. credit expenses and warranty expenses. direct sales, (2) mill inventory sales, (3) Because the data available do not We also made an adjustment, where service center inventory sales, and (4) provide an appropriate basis for making appropriate, for the CEP offset in service center processed sales. For all a LOT adjustment, but the LOT in accordance with section 773(a)(7)(B) of channels, TKN performs similar selling Germany for TKN is at a more advanced the Tariff Act. See ‘‘Level of Trade and functions such as negotiating prices stage than the LOT of the CEP sales, a CEP Offset’’ section below. Finally, we with customers, setting similar credit CEP offset is appropriate in accordance deducted home market packing costs terms, arranging freight to the customer, with section 773(a)(7)(B) of the Tariff and added U.S. packing costs in and conducting market research and Act, as claimed by TKN. Where there accordance with sections 773(a)(6)(A) sales calls. The remaining selling were commissions in the U.S. market and (B) of the Tariff Act. activities did not differ significantly by but not the home market, we calculated channel of distribution. Because the CEP offset as the lesser of either the Level of Trade and CEP Offset channels of distribution do not qualify U.S. commissions plus the U.S. indirect In accordance with section as separate levels of trade when the selling expenses or the home market 773(a)(1)(B)(i) of the Tariff Act, to the selling functions performed for each indirect selling expenses. Where there extent practicable, we determine NV customer class or channel are were commissions in both the U.S. and based on sales in the comparison market sufficiently similar, we determined that home markets, we calculated the CEP at the same level of trade (LOT) as the one level of trade exists for TKN’s home offset as the lesser of either the home CEP transaction. The NV LOT is that of market sales. market indirect selling expenses or the For the U.S. market, TKN reported the starting price sales in the U.S. indirect selling expense plus the three channels of distribution: (1) Back- comparison market or, when NV is difference between the U.S. and home to-back CEP sales made through based on CV, that of the sales from market commissions. Where there were ThyssenKrupp Nirosta North America, which we derive selling, general and commissions in the home market but Inc. (TKNNA) or ThyssenKrupp administrative (SG&A) expenses and not the U.S. market, we calculated the Specialty Steels NA, Inc. (TKSSNA); (2) CEP offset as the less of either the U.S. profit. For CEP, it is the level of the consignment CEP sales made through indirect selling expenses or the amount constructed sale from the exporter to the TKNNA or TKSSNA; and (3) inventory that the home market selling expenses importer. Moreover, for CEP sales, we sales from TKNNA and TKSSNA. All exceed the home market commissions. consider only the selling activities U.S. sales were CEP transactions and We performed these calculations in reflected in the price after the deduction TKN performed the same selling accordance with 772(d)(1)(D) of the of expenses and profit, pursuant to functions in each instance. Therefore, Tariff Act. We applied the CEP offset to section 772(d) of the Tariff Act. See the U.S. market has one LOT. NV, whether based on home market Micron Technology, Inc. v. United When we compared CEP sales (after prices or CV. States, 243 F.3d 1301, 1314–1315 (Fed. deductions made pursuant to section Cir. 2001). 772(d) of the Tariff Act) to home market Preliminary Results of Review To determine whether NV sales are at sales, we determined that for CEP sales As a result of our review, we a different LOT than CEP sales, we TKN performed fewer customer sales preliminarily determine the following examine stages in the marketing process contacts, technical services, delivery weighted-average dumping margin and selling functions along the chain of services, and warranty services. In exists for the period July 1, 2002, distribution between the producer and addition, the differences in selling through June 30, 2003: the unaffiliated customer. If the functions performed for home market comparison market sales are at a and CEP transactions indicate that home Weighted different LOT, and the difference affects market sales involved a more advanced average Manufacturer/exporter margin price comparability, as manifested in a stage of distribution than CEP sales. In (percent) pattern of consistent price differences the home market, TKN provides between the sales on which NV is based marketing further down the chain of TKN ...... 9.95 and comparison market sales at the LOT distribution by providing certain of the export transaction, we make a downstream selling functions that are The Department will disclose LOT adjustment under section normally performed by the affiliated calculations performed within five days 773(a)(7)(A) of the Tariff Act. Finally, resellers in the U.S. market (e.g., of the date of publication of this notice for CEP sales, if the NV level is more technical advice, credit and collection, in accordance with 19 CFR 351.224(b). remote from the factory than the CEP etc.). An interested party may request a level and there is no basis for Based on our analysis, we determined hearing within thirty days of determining whether the differences in that CEP and the starting price of home publication. See CFR 351.310(c). Any the levels between NV and CEP affect market sales represent different stages in hearing, if requested, will be held 37 price comparability, we adjust NV the marketing process, and are thus at days after the date of publication, or the under section 773(a)(7)(B) of the Tariff different LOTs. Therefore, when we first business day thereafter, unless the Act (the CEP offset provision). See e.g., compared CEP sales to HM sales, we Department alters the date pursuant to Certain Carbon Steel Plate from South examined whether a LOT adjustment 19 CFR 351.310(d). Interested parties Africa, Final Determination of Sales at may be appropriate. In this case TKN may submit case briefs no later than 30
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days after the date of publication of of Amended Final Determination of made below normal value (NV). If these these preliminary results of review. Antidumping Duty Investigation: preliminary results are adopted in our Rebuttal briefs, limited to issues raised Stainless Steel Sheet and Strip in Coils final results of administrative review, in the case briefs, may be filed no later from Germany, 67 FR 15178 (March 29, we will instruct U.S. Customs and than 35 days after the date of 2002)). Border Protection (CBP) to assess publication of this notice. Parties who This notice also serves as a antidumping duties based on the submit an argument in these preliminary reminder to importers of difference between the constructed proceedings are requested to submit their responsibility under 19 CFR export price (CEP) and NV. Interested with the argument (1) a statement of the 351.402(f) to file a certificate regarding parties are invited to comment on these issue, (2) a brief summary of the the reimbursement of antidumping preliminary results. Parties who submit argument and (3) a table of authorities. duties prior to liquidation of the argument in these proceedings are Further, we would appreciate it if relevant entries during this review requested to submit with the argument: parties submitting written comments period. Failure to comply with this (1) A statement of the issues, (2) a brief would provide the Department with an requirement could result in the summary of the argument, and (3) a additional copy of the public version of Secretary’s presumption that table of authorities. any such comments on diskette. The reimbursement of antidumping duties EFFECTIVE DATE: August 6, 2004. Department will issue final results of occurred and the subsequent assessment FOR FURTHER INFORMATION CONTACT: this administrative review, including of double antidumping duties. Deborah Scott or Robert James, AD/CVD the results of our analysis of the issues We are issuing and publishing this Operations, Enforcement Office 6, in any such written comments or at a notice in accordance with sections Import Administration, International hearing, within 120 days of publication 751(a)(1) and 777(i)(1) of the Tariff Act. Trade Administration, U.S. Department of these preliminary results. Dated: July 29, 2004. of Commerce, 14th Street and The Department shall determine, and Jeffrey A. May, Constitution Avenue, NW., Washington, Customs shall assess, antidumping Acting Assistant Secretary for Import DC 20230, telephone: (202) 482–2657 or duties on all appropriate entries. In Administration. (202) 482–0649, respectively. accordance with 19 CFR 351.212(b)(1), [FR Doc. 04–18038 Filed 8–5–04; 8:45 am] SUPPLEMENTARY INFORMATION: we will calculate importer-specific ad valorem assessment rates for the BILLING CODE 3510–DS–P Background merchandise based on the ratio of the On July 27, 1999, the Department total amount of antidumping duties DEPARTMENT OF COMMERCE published in the Federal Register the calculated for the examined sales made Notice of Amended Final Determination during the POR to the total customs International Trade Administration of Sales at Less Than Fair Value and value of the sales used to calculate those Antidumping Duty Order on stainless duties for each importer. These rates [A–201–822] steel sheet and strip in coils from will be assessed uniformly on all entries Stainless Steel Sheet and Strip in Coils Mexico (64 FR 40560). On July 1, 2002, the respective importers made during From Mexico; Preliminary Results of the Department published the the POR if these preliminary results are Antidumping Duty Administrative Antidumping or Countervailing Duty adopted in the final results of review. Review Order, Finding, or Suspended The Department will issue appropriate Investigation; Opportunity To Request appraisement instructions directly to AGENCY: Import Administration, Administrative Review, of, inter alia, Customs within fifteen days of International Trade Administration, stainless steel sheet and strip in coils publication of the final results of Department of Commerce. from Mexico for the period July 1, 2002 review. ACTION: Notice of preliminary results of Furthermore, the following deposit through June 30, 2003 (68 FR 39511). antidumping duty administrative In accordance with 19 CFR requirements will be effective upon review. 351.213(b)(1), Mexinox and petitioners completion of the final results of this requested that we conduct an administrative review for all shipments SUMMARY: In response to requests from administrative review. On August 22, of S4 in coils from Germany entered, or respondent ThyssenKrupp Mexinox 2003, we published in the Federal withdrawn from warehouse, for S.A. de C.V. (Mexinox S.A.) and Register a notice of initiation of this consumption on or after the publication Mexinox USA, Inc. (Mexinox USA) antidumping duty administrative review date of the final results of this (collectively, Mexinox) and petitioners,1 covering the period July 1, 2002, administrative review, as provided by the Department of Commerce (the through June 30, 2003. See Initiation of section 751(a)(1) of the Tariff Act: Department) is conducting an (1) The cash deposit rates for TKN administrative review of the Antidumping and Countervailing Duty will be the rates established in the final antidumping duty order on stainless Administrative Reviews and Request for results of review; steel sheet and strip in coils (S4 in coils) Revocation in Part, 68 FR 50750 (August (2) If the exporter is not a firm from Mexico (A–201–822). This 22, 2003). covered in this review or the less-than- administrative review covers imports of On September 15, 2003, the fair-value (LTFV) investigation, but the subject merchandise from Mexinox S.A. Department issued an antidumping duty manufacturer is, the cash deposit rate during the period July 1, 2002 to June questionnaire to Mexinox. Mexinox will be the rate established for the most 30, 2003. submitted its response to section A of recent period for the manufacturer of We preliminarily determine that sales the questionnaire on October 14, 2003, the merchandise; and of S4 in coils from Mexico have been and its response to sections B through (3) If neither the exporter nor the E of the questionnaire on November 20, 2 manufacturer is a firm covered in this or 1 Petitioners are Allegheny Ludlum, AK Steel 2003. On March 1, 2004, the any previous review conducted by the Corporation (formerly Armco, Inc.), J&L Specialty Steel, Inc., North American Stainless, Butler-Armco 2 Section A of the questionnaire requests general Department, the cash deposit rate will Independent Union, Zanesville Armco Independent information concerning a company’s corporate be the ‘‘all others’’ rate of 13.48 percent Organization, Inc. and the United Steelworkers of structure and business practices, the merchandise from the LTFV investigation (see Notice America, AFL–CIO/CLC. Continued
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Department issued a supplemental Harmonized Tariff Schedule of the percent molybdenum, and between 0.20 questionnaire for sections A, B, and C, United States (HTS) at subheadings: and 0.80 percent manganese. This steel to which Mexinox responded on March 7219.13.00.31, 7219.13.00.51, also contains, by weight, phosphorus of 30, 2004. On March 29, 2004, the 7219.13.00.71, 7219.13.00.81, 0.025 percent or less, silicon of between Department issued a supplemental 7219.14.00.30, 7219.14.00.65, 0.20 and 0.50 percent, and sulfur of questionnaire for section D, as well as 7219.14.00.90, 7219.32.00.05, 0.020 percent or less. The product is for sections C and E pertaining to an 7219.32.00.20, 7219.32.00.25, manufactured by means of vacuum arc affiliated U.S. reseller, Ken-Mac Metals, 7219.32.00.35, 7219.32.00.36, remelting, with inclusion controls for Inc. (Ken-Mac). Mexinox responded to 7219.32.00.38, 7219.32.00.42, sulfide of no more than 0.04 percent and this supplemental questionnaire on 7219.32.00.44, 7219.33.00.05, for oxide of no more than 0.05 percent. April 27, 2004. The Department issued 7219.33.00.20, 7219.33.00.25, Flapper valve steel has a tensile strength a second supplemental questionnaire for 7219.33.00.35, 7219.33.00.36, of between 210 and 300 ksi, yield sections A through D on June 17, 2004; 7219.33.00.38, 7219.33.00.42, strength of between 170 and 270 ksi, Mexinox submitted its response on July 7219.33.00.44, 7219.34.00.05, plus or minus 8 ksi, and a hardness (Hv) 6, 2004. Finally, on July 13, 2004, the 7219.34.00.20, 7219.34.00.25, of between 460 and 590. Flapper valve Department issued a third supplemental 7219.34.00.30, 7219.34.00.35, steel is most commonly used to produce questionnaire for sections A through E, 7219.35.00.05, 7219.35.00.15, specialty flapper valves for compressors. to which Mexinox responded on July 7219.35.00.30, 7219.35.00.35, Also excluded is a product referred to 16, 2004. 7219.90.00.10, 7219.90.00.20, as suspension foil, a specialty steel Because it was not practicable to 7219.90.00.25, 7219.90.00.60, product used in the manufacture of complete this review within the normal 7219.90.00.80, 7220.12.10.00, suspension assemblies for computer time frame, on February 12, 2004, we 7220.12.50.00, 7220.20.10.10, disk drives. Suspension foil is described published in the Federal Register our 7220.20.10.15, 7220.20.10.60, as 302/304 grade or 202 grade stainless notice of the extension of time limits for 7220.20.10.80, 7220.20.60.05, steel of a thickness between 14 and 127 this review. See Stainless Steel Sheet 7220.20.60.10, 7220.20.60.15, microns, with a thickness tolerance of and Strip in Coils from Mexico; 7220.20.60.60, 7220.20.60.80, plus-or-minus 2.01 microns, and surface Antidumping Duty Administrative 7220.20.70.05, 7220.20.70.10, glossiness of 200 to 700 percent Gs. Review; Extension of Time Limit, 69 FR 7220.20.70.15, 7220.20.70.60, Suspension foil must be supplied in coil 6941 (February 12, 2004). This 7220.20.70.80, 7220.20.80.00, widths of not more than 407 mm, and extension established the deadline for 7220.20.90.30, 7220.20.90.60, with a mass of 225 kg or less. Roll marks these preliminary results as July 30, 7220.90.00.10, 7220.90.00.15, may only be visible on one side, with 2004. 7220.90.00.60, and 7220.90.00.80. no scratches of measurable depth. The Although the HTS subheadings are material must exhibit residual stresses Period of Review provided for convenience and customs of 2 mm maximum deflection, and The period of review (POR) is July 1, purposes, the Department’s written flatness of 1.6 mm over 685 mm length. 2002 through June 30, 2003. description of the merchandise under Certain stainless steel foil for review is dispositive. automotive catalytic converters is also Scope of the Order Excluded from the scope of this order excluded from the scope of this order. For purposes of this order, the are the following: (1) Sheet and strip This stainless steel strip in coils is a products covered are certain stainless that is not annealed or otherwise heat specialty foil with a thickness of steel sheet and strip in coils. Stainless treated and pickled or otherwise between 20 and 110 microns used to steel is an alloy steel containing, by descaled; (2) sheet and strip that is cut produce a metallic substrate with a weight, 1.2 percent or less of carbon and to length; (3) plate (i.e., flat-rolled honeycomb structure for use in 10.5 percent or more of chromium, with stainless steel products of a thickness of automotive catalytic converters. The or without other elements. The subject 4.75 mm or more); (4) flat wire (i.e., steel contains, by weight, carbon of no sheet and strip is a flat-rolled product in cold-rolled sections, with a prepared more than 0.030 percent, silicon of no coils that is greater than 9.5 mm in edge, rectangular in shape, of a width of more than 1.0 percent, manganese of no width and less than 4.75 mm in not more than 9.5 mm); and (5) razor more than 1.0 percent, chromium of thickness, and that is annealed or blade steel. Razor blade steel is a flat- between 19 and 22 percent, aluminum otherwise heat treated and pickled or rolled product of stainless steel, not of no less than 5.0 percent, phosphorus otherwise descaled. The subject sheet further worked than cold-rolled (cold- of no more than 0.045 percent, sulfur of and strip may also be further processed reduced), in coils, of a width of not no more than 0.03 percent, lanthanum (e.g., cold-rolled, polished, aluminized, more than 23 mm and a thickness of of between 0.002 and 0.05 percent, and coated, etc.) provided that it maintains 0.266 mm or less, containing, by weight, total rare earth elements of more than the specific dimensions of sheet and 12.5 to 14.5 percent chromium, and 0.06 percent, with the balance iron. strip following such processing. certified at the time of entry to be used Permanent magnet iron-chromium- The merchandise subject to this order in the manufacture of razor blades. See cobalt alloy stainless strip is also is currently classifiable in the Chapter 72 of the HTSUS, ‘‘Additional excluded from the scope of this order. U.S. Note’’ 1(d). This ductile stainless steel strip under review that it sells, and the manner in which In response to comments by interested contains, by weight, 26 to 30 percent it sells that merchandise in all of its markets. parties, the Department has determined chromium, and 7 to 10 percent cobalt, Section B requests a complete listing of all home that certain specialty stainless steel with the remainder of iron, in widths market sales, or, if the home market is not viable, of sales in the most appropriate third-country products are also excluded from the 228.6 mm or less, and a thickness market (this section is not applicable to respondents scope of this order. These excluded between 0.127 and 1.270 mm. It exhibits in non-market economy cases). Section C requests products are described below. magnetic remanence between 9,000 and a complete listing of U.S. sales. Section D requests Flapper valve steel is defined as 12,000 gauss, and a coercivity of information on the cost of production of the foreign like product and the constructed value of the stainless steel strip in coils containing, between 50 and 300 oersteds. This merchandise under review. Section E requests by weight, between 0.37 and 0.43 product is most commonly used in information on further manufacturing. percent carbon, between 1.15 and 1.35 electronic sensors and is currently
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available under proprietary trade names 1.1 percent, sulfur of 0.020 percent or page 2, Mexinox stated it ‘‘does not such as ‘‘Arnokrome III.’’ 3 less, and includes between 0.20 and believe that there is any basis for Certain electrical resistance alloy steel 0.30 percent copper and between 0.20 concluding that its affiliate Mexinox is also excluded from the scope of this and 0.50 percent cobalt. This steel is USA has ‘absorbed’ antidumping duties order. This product is defined as a non- sold under proprietary names such as in this review or will do so after they magnetic stainless steel manufactured to ‘‘GIN4 Mo.’’ The second excluded are assessed as a result of this review,’’ American Society of Testing and stainless steel strip in coils is similar to but requested that the Department Materials (ASTM) specification B344 AISI 420–J2 and contains, by weight, provide clarification regarding the types and containing, by weight, 36 percent carbon of between 0.62 and 0.70 of documents or data that could be nickel, 18 percent chromium, and 46 percent, silicon of between 0.20 and submitted as evidence that unaffiliated percent iron, and is most notable for its 0.50 percent, manganese of between purchasers ultimately will pay the resistance to high temperature 0.45 and 0.80 percent, phosphorus of no antidumping duties assessed on entries corrosion. It has a melting point of 1390 more than 0.025 percent and sulfur of during the POR. On July 16, 2004, we degrees Celsius and displays a creep no more than 0.020 percent. This steel issued a clarification letter to Mexinox rupture limit of 4 kilograms per square has a carbide density on average of 100 and requested that Mexinox provide any millimeter at 1000 degrees Celsius. This carbide particles per square micron. An such evidence by July 23, 2004. None steel is most commonly used in the example of this product is ‘‘GIN5’’ steel. was provided. production of heating ribbons for circuit The third specialty steel has a chemical In determining whether antidumping breakers and industrial furnaces, and in composition similar to AISI 420 F, with duties have been absorbed by the rheostats for railway locomotives. The carbon of between 0.37 and 0.43 respondent during the POR we presume product is currently available under percent, molybdenum of between 1.15 that the duties will be absorbed for proprietary trade names such as ‘‘Gilphy and 1.35 percent, but lower manganese those sales that have been made at less 36.’’ 4 of between 0.20 and 0.80 percent, than normal value (NV). This Certain martensitic precipitation- phosphorus of no more than 0.025 presumption can be rebutted with hardenable stainless steel is also percent, silicon of between 0.20 and evidence (e.g., an agreement between excluded from the scope of this order. 0.50 percent, and sulfur of no more than the affiliated importer and unaffiliated This high-strength, ductile stainless 0.020 percent. This product is supplied purchaser) that the unaffiliated steel product is designated under the with a hardness of more than Hv 500 purchaser will pay the full duty Unified Numbering System (UNS) as guaranteed after customer processing, ultimately assessed on the subject S45500-grade steel, and contains, by and is supplied as, for example, merchandise. Given that Mexinox did weight, 11 to 13 percent chromium, and ‘‘GIN6.’’ 7 not provide any evidence on the record 7 to 10 percent nickel. Carbon, Duty Absorption showing that unaffiliated purchasers manganese, silicon and molybdenum will pay the full duty ultimately On September 22, 2003, petitioners each comprise, by weight, 0.05 percent assessed on the subject merchandise, requested that the Department or less, with phosphorus and sulfur and despite its claim that duty determine whether antidumping duties each comprising, by weight, 0.03 absorption did not occur, we had been absorbed during the POR by percent or less. This steel has copper, preliminarily find that antidumping the respondent. Section 751(a)(4) of the niobium, and titanium added to achieve duties have been absorbed by Mexinox Tariff Act of 1930, as amended (the Act) aging, and will exhibit yield strengths as S.A. on U.S. sales made through its provides for the Department, if high as 1700 Mpa and ultimate tensile affiliated importer, Mexinox USA. requested, to determine during an strengths as high as 1750 Mpa after administrative review initiated two or Sales Made Through Affiliated aging, with elongation percentages of 3 four years after the publication of the Resellers percent or less in 50 mm. It is generally order, whether antidumping duties have provided in thicknesses between 0.635 A. U.S. Market been absorbed by a foreign producer or and 0.787 mm, and in widths of 25.4 exporter, if the subject merchandise is Mexinox USA, a wholly-owned mm. This product is most commonly sold in the United States through an subsidiary of Mexinox S.A., sold subject used in the manufacture of television affiliated importer. Because Mexinox merchandise in the United States during tubes and is currently available under S.A. sold subject merchandise to the POR to unaffiliated customers. proprietary trade names such as unaffiliated customers in the United Mexinox USA also made sales of subject ‘‘Durphynox 17.’’ 5 States through an importer that is merchandise during the POR to an Finally, three specialty stainless steels affiliated (i.e., Mexinox USA), and affiliated company, Ken-Mac, which in typically used in certain industrial because this review was initiated four turn resold the subject merchandise to blades and surgical and medical years after the publication of the order, unaffiliated customers in the United instruments are also excluded from the we will make a duty absorption States. See Mexinox’s October 14, 2003 scope of this order. These include determination in this segment of the questionnaire response at A–11. Thus, stainless steel strip in coils used in the proceeding within the meaning of in addition to Mexinox USA’s sales to production of textile cutting tools (e.g., unaffiliated customers, we have 6 section 751(a)(4) of the Act. carpet knives). This steel is similar to In its March 1, 2004 supplemental included in our preliminary margin ASTM grade 440F, but containing, by questionnaire, the Department requested calculation resales of Mexinox subject weight, 0.5 to 0.7 percent of evidence from the respondent to merchandise made through Ken-Mac. molybdenum. The steel also contains, demonstrate that unaffiliated U.S. B. Home Market by weight, carbon of between 1.0 and purchasers will pay any antidumping duties ultimately assessed on entries Mexinox Trading, S.A. de C.V. 3 ‘‘Arnokrome III’’ is a trademark of the Arnold (Mexinox Trading), a wholly-owned Engineering Company. during this POR. In its March 30, 2004 4 ‘‘Gilphy 36’’ is a trademark of Imphy, S.A. supplemental questionnaire response at subsidiary of Mexinox S.A., sells both 5 ‘‘Durphynox 17’’ is a trademark of Imphy, S.A. the foreign like product and other 6 This list of uses is illustrative and provided for 7 ‘‘GIN4 Mo,’’ ‘‘GIN5’’ and ‘‘GIN6’’ are the merchandise in the home market. descriptive purposes only. proprietary grades of Hitachi Metals America, Ltd. Mexinox reported that sales through
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Mexinox Trading during the POR appropriate date of sale because record 773(a)(7)(A) of the Act. Finally, for CEP represented less than five percent of evidence indicates that in a number of sales, if the NV level is more remote Mexinox’s total sales of the foreign like instances the price and quantity from the factory than the CEP level and product in the home market. See, e.g., changed between the date of the order there is no basis for determining Mexinox’s October 14, 2003 acceptance and the date of invoice. whether the differences in the levels questionnaire response at A–4 and its Therefore, we find Mexinox’s claim that between NV and CEP sales affect price July 6, 2004 supplemental questionnaire price and quantity terms are subject to comparability, we adjust NV under response at Attachment B–43. Because negotiation until the date of invoice is section 773(a)(7)(B) of the Act (i.e., the Mexinox Trading’s sales of the foreign substantiated. Our use of invoice date as CEP offset provision). like product were less than five percent the date of sale is consistent with past In the Department’s September 15, of home market sales of the foreign like administrative reviews of S4 in coils 2003 questionnaire, we asked Mexinox product, in accordance with 19 CFR from Mexico. See, e.g., S4 in Coils from to identify the specific differences and 351.403(d), we did not require Mexinox Mexico 2001–2002 Final Results. similarities in selling functions and to report downstream sales by Mexinox support services between all phases of Product Comparisons Trading to the first unaffiliated marketing in the home market and the customer. This treatment is consistent In accordance with section 771(16) of United States. Mexinox identified two with that employed in past the Act, we considered all products channels of distribution in the home administrative reviews of S4 in coils produced by Mexinox S.A. covered by market: (1) Direct shipments (i.e., from Mexico. See, e.g., Stainless Steel the description in the ‘‘Scope of the products manufactured to order) and (2) Sheet and Strip in Coils from Mexico; Review’’ section, above, and sold in the sales through inventory. See, e.g., Final Results of Antidumping Duty home market during the POR, to be Mexinox’s October 14, 2003 Administrative Review, 69 FR 6259 foreign like products for purposes of questionnaire response at A–25. Within (February 10, 2004) (S4 in Coils from determining appropriate product both channels of distribution, Mexinox Mexico 2001–2002 Final Results). comparisons to U.S. sales. We relied on S.A. made sales to both retailers and nine characteristics to match U.S. sales end users. For both channels of Fair Value Comparisons of subject merchandise to comparison distribution, Mexinox S.A. performed To determine whether sales of S4 in sales of the foreign like product (listed similar selling functions such as pre- coils from Mexico to the United States in order of preference): (1) Grade; (2) sale technical assistance, inventory were made at less than fair value, we cold/hot rolled; (3) gauge; (4) surface maintenance, freight and delivery compared the CEP to NV, as described finish; (5) metallic coating; (6) non- arrangements, and after-sales warranty in the ‘‘Constructed Export Price’’ and metallic coating; (7) width; (8) temper; services. See, e.g., Mexinox’s March 30, ‘‘Normal Value’’ sections of this notice, and (9) edge trim. Where there were no 2004 supplemental questionnaire below. In accordance with section sales of identical merchandise in the response at Attachment A–21–A. 777A(d)(2) of the Act, we compared home market to compare to U.S. sales, Because channels of distribution do not individual CEPs to monthly weighted- we compared U.S. sales to the next most qualify as separate LOTs when the average NVs. similar foreign like product on the basis selling functions performed are of the characteristics and reporting Transactions Reviewed sufficiently similar, we determined one instructions listed in the Department’s LOT exists for Mexinox’s home market For its home market and U.S. sales, September 15, 2003, questionnaire. sales. See, e.g., Certain Stainless Steel Mexinox reported the date of invoice as Level of Trade Butt-Weld Pipe Fittings from Taiwan: the date of sale, in keeping with the Final Results and Final Rescission in Department’s stated preference for using In accordance with section Part of Antidumping Duty the invoice date as the date of sale. See 773(a)(1)(B)(i) of the Act, to the extent Administrative Review, 67 FR 78417 19 CFR 351.401(i). Mexinox stated the practicable, we determine NV based on (December 24, 2002). invoice date represented the date when sales in the comparison market at the For the U.S. market, Mexinox the essential terms of sales, i.e., price same level of trade (LOT) as the CEP reported one LOT, the CEP LOT. Sales and quantity, are definitively set, and transaction. The NV LOT is that of the made through this LOT consisted of that up to the date of shipment and starting price of the comparison sales in merchandise produced to order that was invoicing, these terms were subject to the home market or, when NV is based sold directly to unaffiliated U.S. change. See, e.g., Mexinox’s October 14, on constructed value (CV), that of the customers (‘‘direct shipments’’), sales 2003 questionnaire response at A–39 sales from which we derive selling, made from the stock of finished goods and A–44. In our March 1, 2004 general, and administrative (SG&A) held at the Mexican factory in San Luis supplemental questionnaire, we expenses and profit. For CEP, it is the Potosi to unaffiliated U.S. customers requested that Mexinox provide level of the constructed sale from the (‘‘SLP stock sales’’), and sales made additional information concerning the exporter to the importer. through Mexinox USA’s inventory. nature and frequency of price and To determine whether NV sales are at Sales made through this LOT also quantity changes occurring between the a different LOT than CEP sales, we included CEP sales made through date of the sales order and date of examine stages in the marketing process Mexinox USA’s affiliated reseller, Ken- invoice. In response, Mexinox provided and selling functions along the chain of Mac. See, e.g., Mexinox’s October 14, analyses for its U.S. and home market distribution between the producer and 2003 questionnaire response at A–26 to sales showing how often changes in the unaffiliated customer. If the A–27. When we compared CEP sales price and quantity occurred between comparison market sales are at a (after deductions made pursuant to order date and invoice date. See different LOT, and the difference affects section 772(d) of the Act) to home Mexinox’s March 30, 2004 price comparability, as manifested in a market sales, we determined there were supplemental questionnaire response at pattern of consistent price differences fewer customer sales contacts, technical Attachment A–22. Based on our analysis between the sales on which NV is based services, inventory maintenance, and of the information submitted by and comparison market sales at the LOT warranty services performed for CEP Mexinox, we have preliminarily of the export transaction, we make a sales. See, e.g., id. at A–35 to A–36 and determined the date of invoice is the LOT adjustment under section Attachments A–4–B and A–4–C and
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Mexinox’s March 30, 2004 section 772(c)(2)(A) of the Act; these prices are excluded from our analysis supplemental questionnaire response at included, where appropriate: foreign because we consider them to be outside Attachment A–21–A. In addition, the inland freight, foreign brokerage and the ordinary course of trade. See 19 CFR differences in selling functions handling, inland insurance, ocean 351.102(b). To test whether the sales to performed for home market and CEP freight,8 U.S. customs duties, U.S. affiliates were made at arm’s-length transactions indicate home market sales inland freight, U.S. brokerage, and U.S. prices, we compared on a model- involved a more advanced stage of warehousing expenses. As further specific basis the starting prices of sales distribution than CEP sales. See id. In directed by section 772(d)(1) of the Act, to affiliated and unaffiliated customers the home market, Mexinox S.A. we deducted those selling expenses net of all direct selling expenses, provides marketing further down the associated with economic activities discounts and rebates, movement chain of distribution by providing occurring in the United States, charges, and packing. Where prices to certain downstream selling functions including direct selling expenses (i.e., the affiliated party were, on average, that are normally performed by service credit costs, warranty expenses, and within a range of 98 to 102 percent of centers in the U.S. market (e.g., another expense not subject to public the price of identical or comparable technical advice, credit and collection, disclosure), inventory carrying costs, merchandise to the unaffiliated parties, etc.). See id. and other indirect selling expenses. We we determined that the sales made to Based on our analysis of the selling also made an adjustment for profit in the affiliated party were at arm’s length. functions performed for the CEP LOT accordance with section 772(d)(3) of the See Antidumping Proceedings: and the home market LOT, we Act, and added duty drawback to the Affiliated Party Sales in the Ordinary determined the CEP and the starting starting price in accordance with section Course of Trade, 67 FR 69186, 69194 price of home market sales represent 772(c)(1)(B) of the Act. For those sales (November 15, 2002). In accordance different stages in the marketing in which the material was sent to an with the Department’s practice, we only process, and are thus at different LOTs. unaffiliated U.S. processor to be further included in our margin analysis those Therefore, when we compared CEP sales processed, we made an adjustment sales to affiliated parties that were made to home market sales, we examined based on the transaction-specific at arm’s length. whether a LOT adjustment may be further-processing amounts reported by C. Cost of Production Analysis appropriate. In this case, Mexinox sold Mexinox. In addition, the U.S. affiliated at one LOT in the home market; thus, reseller Ken-Mac performed some Because we disregarded sales of there is no basis upon which to further manufacturing of some of certain products made at prices below determine whether there is a pattern of Mexinox’s U.S. sales. For these sales, we the cost of production (COP) in the most consistent price differences between deducted the cost of further processing recently completed review of S4 in coils LOTs. Further, we do not have the in accordance with 772(d)(2) of the Act. from Mexico (see S4 in Coils from information which would allow us to In calculating the cost of further Mexico 2000–2001 Final Results), we examine pricing patterns of Mexinox’s manufacturing for Ken-Mac, we relied have reasonable grounds to believe or sales of other similar products, and upon the further manufacturing suspect that sales of the foreign like there are no other respondents or other information provided by Mexinox. product under consideration for the record evidence on which such an determination of NV in this review for analysis could be based. Normal Value Mexinox may have been made at prices Because the data available do not A. Selection of Comparison Market below the COP, as provided by section provide an appropriate basis for making 773(b)(2)(A)(ii) of the Act. Therefore, To determine whether there is a a LOT adjustment and the LOT of home pursuant to section 773(b)(1) of the Act, sufficient volume of sales in the home market sales is at a more advanced stage we initiated a COP investigation of sales market to serve as a viable basis for than the LOT of the CEP sales, a CEP by Mexinox. calculating NV (i.e., the aggregate offset is appropriate in accordance with To calculate COP, in accordance with volume of home market sales of the section 773(a)(7)(B) of the Act, as sections 773(f)(2) and (3) of the Act, we foreign like product is greater than five claimed by Mexinox. We based the adjusted Mexinox’s reported raw percent of the aggregate volume of U.S. amount of the CEP offset on the amount material costs (major input rule). See the sales), we compared the respondent’s of home market indirect selling Department’s Preliminary Analysis volume of home market sales of the Memorandum from Deborah Scott to the expenses, and limited the deduction for foreign like product to the volume of home market indirect selling expenses File dated July 30, 2004 (Preliminary U.S. sales of the subject merchandise, in Analysis Memorandum) for more to the amount of indirect selling accordance with section 773(a)(1)(B) of expenses deducted from CEP in information regarding this adjustment. the Act. Because the respondent’s We also recalculated Mexinox’s general accordance with section 772(d)(1)(D) of aggregate volume of home market sales the Act. We applied the CEP offset to and administrative (G&A) and interest of the foreign like product was greater expenses as described in the NV, whether based on home market than five percent of its aggregate volume prices or CV. Preliminary Analysis Memorandum. We of U.S. sales for the subject added the revised material costs to the Constructed Export Price merchandise, we determined the home respondent’s reported cost of fabrication We calculated CEP in accordance market was viable. See, e.g., Mexinox’s for the foreign like product, plus April 27, 2004 supplemental with section 772(b) of the Act for those amounts for SG&A and packing costs, in questionnaire response at Attachment sales to the first unaffiliated purchaser accordance with section 773(b)(3) of the A–28 (quantity and value chart). that took place after importation into the Act. We then computed weighted- United States. We based CEP on packed B. Affiliated-Party Transactions and average COPs during the POR, and prices to unaffiliated purchasers in the Arm’s-Length Test compared the weighted-average COP United States. We made adjustments for Sales to affiliated customers in the figures to home market sales prices of billing adjustments, discounts and home market not made at arm’s-length the foreign like product as required rebates, and commissions, where under section 773(b) of the Act, to applicable. We also made deductions for 8 This expense was incurred on sales to Puerto determine whether these sales had been movement expenses in accordance with Rico. made at prices below the COP. On a
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product-specific basis, we compared the accordance with section 773(e)(2)(A) of the POR. In its November 20, 2003 COP to the home market prices net of the Act, we based SG&A expenses and submission, Mexinox provided data billing adjustments, discounts and profit on the amounts incurred and related to Ken-Mac’s resales of subject rebates, and any applicable movement realized by the respondent in merchandise to unaffiliated customers charges. connection with the production and sale in the United States. At pages 37–38 of In determining whether to disregard of the foreign like product in the its April 27, 2004 supplemental home market sales made at prices below ordinary course of trade, for questionnaire response, Mexinox the COP, we examined, in accordance consumption in the foreign country. indicated Ken-Mac was unable to with sections 773(b)(1)(A) and (B) of the confirm the origin of some of the E. Price-to-Price Comparisons Act, whether, within an extended stainless steel material it sold during the period of time, such sales were made in We calculated NV based on prices to POR. Therefore, Mexinox reported data substantial quantities; and whether such unaffiliated customers or prices to on these particular resales through Ken- sales were made at prices which affiliated customers we determined to Mac in a separate database. See id. at permitted the recovery of all costs be at arm’s length. We made Attachment KMC–13. Because of the within a reasonable period of time in adjustments for billing adjustments, unknown origin of certain of Ken-Mac’s the normal course of trade. Where less discounts, and interest revenue, where resales of subject merchandise, Mexinox than 20 percent of the respondent’s appropriate. We made deductions, has, in effect, not provided all the home market sales of a given model (i.e., where appropriate, for foreign inland information necessary to complete our CONNUM) were at prices below the freight, insurance, handling, and analysis. COP, we did not disregard any below- warehousing, pursuant to section Since Mexinox has not provided all of cost sales of that model because we 773(a)(6)(B) of the Act. In addition, we the information necessary to perform determined that the below-cost sales made adjustments for differences in cost our analysis, we have preliminarily were not made within an extended attributable to differences in physical determined that, pursuant to section period of time and in ‘‘substantial characteristics of the merchandise (i.e., 776(a)(1) of the Act, it is appropriate to quantities.’’ Where 20 percent or more difmer) pursuant to section use the facts otherwise available in of the respondent’s home market sales 773(a)(6)(C)(ii) of the Act and 19 CFR calculating a margin on Ken-Mac’s of a given model were at prices less than 351.411, as well as for differences in ‘‘unattributable’’ sales. Section 776(a)(1) the COP, we disregarded the below-cost circumstances of sale (COS) in of the Act provides that the Department sales because: (1) They were made accordance with section 773(a)(6)(C)(iii) will, subject to section 782(d) of the Act, within an extended period of time in of the Act and 19 CFR 351.410. We use the facts otherwise available in ‘‘substantial quantities,’’ in accordance made COS adjustments for imputed reaching a determination if ‘‘necessary with sections 773(b)(2)(B) and (C) of the credit expenses and warranty expenses. information is not available on the Act, and (2) based on our comparison of As noted in the ‘‘Level of Trade’’ section record.’’ Hence, for these preliminary prices to the weighted-average COPs for of this notice, we also made an results, we have calculated a margin on the POR, they were at prices which adjustment for the CEP offset in Ken-Mac’s ‘‘unattributable’’ resales by would not permit the recovery of all accordance with section 773(a)(7)(B) of applying the overall margin calculated costs within a reasonable period of time, the Act. Finally, we deducted home on all other sales/resales of subject in accordance with section 773(b)(2)(D) market packing costs and added U.S. merchandise to the weighted-average of the Act. packing costs in accordance with price of Ken-Mac’s ‘‘unattributable’’ Our cost test for Mexinox revealed sections 773(a)(6)(A) and (B) of the Act. sales. This methodology is consistent that for home market sales of certain with that employed in past F. Price-to-CV Comparisons models, less than 20 percent of the sales administrative reviews of S4 in coils of those models were at prices below the In accordance with section 773(a)(4) from Mexico. See, e.g., Stainless Steel COP. We therefore retained all such of the Act, we based NV on CV if we Sheet and Strip in Coils from Mexico; sales in our analysis and used them as were unable to find a home market Final Results of Antidumping Duty the basis for determining NV. Our cost match of such or similar merchandise. Administrative Review, 68 FR 6889 test also indicated that for certain Where appropriate, we made (February 11, 2003), as amended, Notice models, more than 20 percent of the adjustments to CV in accordance with of Amended Final Results of home market sales of those models were section 773(a)(8) of the Act. Antidumping Duty Administrative sold at prices below the COP within an Facts Available Review: Stainless Steel Sheet and Strip extended period of time and were at in Coils from Mexico, 68 FR 13686 prices which would not permit the In accordance with section 776(a)(1) (March 20, 2003) (S4 in Coils from recovery of all costs within a reasonable of the Act, for these preliminary results Mexico 2000–2001 Final Results). period of time. Thus, in accordance we find it necessary to use partial facts However, prior to applying the overall with section 773(b)(1) of the Act, we available in those instances where the margin calculated on other sales/resales excluded these below-cost sales from respondent did not provide certain of subject merchandise to Ken-Mac’s our analysis and used the remaining information necessary to conduct our ‘‘unattributable’’ sales, we determined, above-cost sales as the basis for analysis. based on the relative percentage (by determining NV. In our September 15, 2003 volume) of subject stainless steel questionnaire at G–6, we requested that D. Constructed Value merchandise that Ken-Mac purchased Mexinox provide sales and cost data for during the POR from Mexinox and other In accordance with section 773(e) of all affiliates involved with the vendors,9 the quantity of each the Act, we calculated CV based on the production or sale of the merchandise ‘‘unatttributable’’ transaction that could sum of Mexinox’s material and under review during the POR in both be allocated reasonably to subject fabrication costs, SG&A expenses, profit, the home and U.S. markets. In its stainless steel merchandise purchased and U.S. packing costs. We calculated October 14, 2003 questionnaire response the COP component of CV as described at A–2, Mexinox indicated its affiliated 9 Mexinox provided this information in its April above in the ‘‘Cost of Production reseller, Ken-Mac, sold subject 27, 2004 supplemental questionnaire response at Analysis’’ section of this notice. In merchandise in the United States during Attachment KMC–14.
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from Mexinox. We note that for these shall determine, and CBP shall assess, Dated: July 29, 2004. preliminary results we have not used an antidumping duties on all appropriate Jeffrey A. May, adverse inference, as provided under entries. In accordance with 19 CFR Acting Assistant Secretary for Import section 776(b) of the Act, to calculate a 351.212(b)(1), we will calculate Administration. margin on Ken-Mac’s ‘‘unattributable’’ importer-specific ad valorem [FR Doc. 04–18039 Filed 8–5–04; 8:45 am] sales. assessment rates for the merchandise BILLING CODE 3510–DS–P Currency Conversion based on the ratio of the total amount of antidumping duties calculated for the We made currency conversions into examined sales made during the POR to DEPARTMENT OF COMMERCE U.S. dollars based on the exchange rates the total customs value of the sales used in effect on the dates of the U.S. sales, to calculate those duties. This rate will International Trade Administration as certified by the Federal Reserve Bank, be assessed uniformly on all entries of in accordance with section 773A(a) of that particular importer made during the [A–570–887] the Act. POR. The Department will issue Preliminary Results of Review appropriate appraisement instructions Notice of Antidumping Duty Order: directly to CBP upon completion of the Tetrahydrofurfuryl Alcohol From The As a result of our review we People’s Republic of China preliminarily determine the following review. weighted-average dumping margin Furthermore, the following deposit AGENCY: Import Administration, exists for the period July 1, 2002 requirements will be effective upon International Trade Administration, through June 30, 2003: completion of the final results of this Department of Commerce. administrative review for all shipments Weighted of S4 in coils from Mexico entered, or SUMMARY: Pursuant to section 736(a) of Manufacturer/exporter average withdrawn from warehouse, for the Tariff Act of 1930, as amended, the margin Department of Commerce (‘‘the (percent) consumption on or after the publication date of the final results of this Department’’) is issuing an antidumping ThyssenKrupp Mexinox S.A. de administrative review, as provided by duty order on Tetrahydrofurfuryl C.V ...... 5.97 section 751(a)(1) of the Act: Alcohol from The People’s Republic of China. (1) The cash deposit rate for Mexinox The Department will disclose EFFECTIVE DATE: August 6, 2004. calculations performed within five days will be the rate established in the final of the date of publication of this notice results of review; FOR FURTHER INFORMATION CONTACT: in accordance with 19 CFR 351.224(b). (2) If the exporter is not a firm Catherine Bertrand, Import An interested party may request a covered in this review or the less-than- Administration, International Trade hearing within thirty days of fair-value (LTFV) investigation, but the Administration, U.S. Department of publication. See 19 CFR 351.310(c). Any manufacturer is, the cash deposit rate Commerce, 14th Street and Constitution hearing, if requested, will be held 37 will be the rate established for the most Avenue, NW., Washington, DC 20230; days after the date of publication, or the recent period for the manufacturer of telephone: (202) 482–3207. first business day thereafter, unless the the merchandise; and Scope of Order Department alters the date per 19 CFR (3) If neither the exporter nor the The product covered by this order is 351.310(d). Interested parties may manufacturer is a firm covered in this or tetrahydrofurfuryl alcohol (C H O ) submit case briefs or written comments any previous review, or the LTFV 5 10 2 (‘‘THFA’’). THFA, a primary alcohol, is no later than 30 days after the date of investigation conducted by the a clear, water white to pale yellow publication of these preliminary results Department, the cash deposit rate will liquid. THFA is a member of the of review. Rebuttal briefs and rebuttals be the ‘‘all others’’ rate from the heterocyclic compounds known as to written comments, limited to issues investigation (30.85 percent). See Notice furans and is miscible with water and raised in the case briefs and comments, of Amended Final Determination of soluble in many common organic may be filed no later than 35 days after Sales at Less Than Fair Value and solvents. THFA is currently classifiable the date of publication of this notice. Antidumping Duty Order; Stainless in the Harmonized Tariff Schedules of Parties who submit argument in these Steel Sheet and Strip in Coils from the United States (‘‘HTSUS’’) under proceedings are requested to submit Mexico, 64 FR 40560, 40562 (July 27, subheading 2932.13.00.00. Although the with the argument: (1) A statement of 1999). the issue, (2) a brief summary of the HTS subheadings are provided for argument and (3) a table of authorities. This notice also serves as a convenience and for customs purposes, Further, we would appreciate it if preliminary reminder to importers of the Department’s written description of parties submitting case briefs, rebuttal their responsibility under 19 CFR the merchandise subject to the order is briefs, and written comments would 351.402(f) to file a certificate regarding dispositive. the reimbursement of antidumping provide the Department with an Background additional copy of the public version of duties prior to liquidation of the any such argument on diskette. The relevant entries during this review In accordance with section 735(a) of Department will issue final results of period. Failure to comply with this the Act, the Department made its final this administrative review, including requirement could result in the determination that THFA from the the results of our analysis of the issues Secretary’s presumption that People’s Republic of China (‘‘PRC’’) is in any such case briefs, rebuttal briefs, reimbursement of antidumping duties being sold at less than fair value. See and written comments or at a hearing, occurred and the subsequent assessment Notice of Final Determination of Sales within 120 days of publication of these of double antidumping duties. at Less Than Fair Value: preliminary results. We are issuing and publishing this Tetrahydrofurfuryl Alcohol From The Upon completion of this notice in accordance with sections People’s Republic of China, 69 FR 34130 administrative review, the Department 751(a)(1) and 777(i)(1) of the Act. (June 18, 2004).
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Antidumping Duty Order Federal Register. Suspension of Room 3407, Washington, DC 20230. The On July 29, 2004, in accordance with liquidation will continue on or after this ETTAC will discuss environmental section 735(d) of the Act, the date. technologies trade policies and International Trade Commission (‘‘the On or after the date of publication of programs. Time will be permitted for Commission’’) notified the Department the Commission’s notice of final public comment. The meeting is open to of its final determination pursuant to determination in the Federal Register, the public. section 735(b)(1)(A)(i) of the Act that an CBP will require, at the same time as Written comments concerning ETTAC industry in the United States is importers would normally deposit affairs are welcome anytime before or materially injured by reason of less- estimated duties on this merchandise, a after the meeting. Minutes will be than-fair-value imports of subject cash deposit equal to the estimated available within 30 days of this meeting. merchandise from the PRC. Therefore, weighted-average antidumping duty The ETTAC is mandated by Public in accordance with section 736(a)(1) of margins as listed below. The ‘‘PRC- Law 103–392. It was created to advise the Act, the Department will direct U.S. wide’’ rate applies to all exporters of the U.S. government on environmental Customs and Border Protection (‘‘CBP’’) subject merchandise not specifically trade policies and programs, and to help to assess, upon further instruction by listed. The weighted-average dumping it to focus its resources on increasing the Department, antidumping duties margins are as follows: the exports of the U.S. environmental equal to the amount by which the industry. ETTAC operates as an Weighted- advisory committee to the Secretary of normal value of the merchandise average exceeds the export price of the Manufacturer/exporter margin Commerce and the Trade Promotion merchandise for all relevant entries of (percent) Coordinating Committee (TPCC). THFA from the PRC. These ETTAC was originally chartered in May antidumping duties will be assessed on Qingdao Wenkem (F.T.Z.) Trad- of 1994. It was most recently rechartered all unliquidated entries of THFA from ing Co., Ltd ...... 136.86 until May 30, 2006. PRC-Wide ...... 136.86 the PRC entered, or withdrawn from the For further information contact Mr. warehouse, for consumption on or after Corey Wright, Office of Environmental This notice constitutes the January 27, 2004, the date on which the Technologies Industries (ETI), antidumping duty order with respect to Department published its Notice of International Trade Administration, THFA from the PRC pursuant to section Preliminary Determination of Sales at U.S. Department of Commerce at (202) 735(a) of the Act. Interested parties may Less Than Fair Value: 482–5225. This meeting is physically contact the Department’s Central Tetrahydrofurfuryl Alcohol From The accessible to people with disabilities. Records Unit, Room B–099 of the main People’s Republic of China, 69 FR 3887 Requests for sign language Commerce building, for copies of an (January 27, 2004). interpretation or other auxiliary aids updated list of antidumping duty orders Section 733(d) of the Act states that should be directed to ETI at (202) 482– currently in effect. instructions issued pursuant to an 5225. This order is published in accordance affirmative preliminary determination with section 736(a) of the Act and 19 Dated: July 29, 2004. may not remain in effect for more than CFR 351.211. Carlos F. Montoulieu, four months except where exporters Dated: August 2, 2004. Director, Office of Environmental representing a significant proportion of Technologies Industries. exports of the subject merchandise Joseph A. Spetrini, [FR Doc. 04–17951 Filed 8–5–04; 8:45 am] request the Department to extend that Acting Assistant Secretary for Import four-month period to no more than six Administration. BILLING CODE 3510–DR–P months. At the request of exporters that [FR Doc. 04–18041 Filed 8–5–04; 8:45 am] account for a significant proportion of BILLING CODE 3510–DS–P DEPARTMENT OF COMMERCE THFA, we extended the four-month period to no more than six months. See National Oceanic and Atmospheric Notice of Postponement of Final DEPARTMENT OF COMMERCE Administration Determination of Antidumping Duty Investigation: Tetrahydrofurfuryl International Trade Administration [I.D. 072204D] Alcohol From The People’s Republic of Environmental Technologies Trade China, 69 FR 12127 (March 15, 2004). In Advisory Committee (ETTAC) Proposed Information Collection; this investigation, the six-month period Comment Request; Tilefish Reporting beginning on the date of the publication AGENCY: International Trade in the Gulf of Mexico of the preliminary determination ends Administration, U.S. Department of on July 27, 2004. Furthermore, section Commerce. AGENCY: National Oceanic and 737 of the Act states that definitive ACTION: Notice of open meeting. Atmospheric Administration (NOAA). duties are to begin on the date of ACTION: Notice. publication of the ITC’s final injury Date: September 10, 2004. determination. Therefore, in accordance Time: 9 a.m. to 3 p.m. SUMMARY: The Department of with section 733(d) of the Act and our Place: U.S. Department of Commerce, Commerce, as part of its continuing practice, we will instruct CBP to 14th Street and Constitution Avenue, effort to reduce paperwork and terminate the suspension of liquidation NW., Room 3407, Washington, DC respondent burden, invites the general and to liquidate, without regard to 20230. public and other Federal agencies to antidumping duties, unliquidated SUMMARY: The Environmental take this opportunity to comment on entries of THFA from the PRC entered, Technologies Trade Advisory proposed and/or continuing information or withdrawn from warehouse, for Committee (ETTAC) will hold a plenary collections, as required by the consumption on or after July 27, 2004, meeting on September 10, 2004, at the Paperwork Reduction Act of 1995, and before the date of publication of the U.S. Department of Commerce, 14th Public Law 104–13 (44 U.S.C. ITC’s final injury determination in the Street and Constitution Avenue, NW., 3506(c)(2)(A)).
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DATES: Written comments must be Estimated Time Per Response: 2 States. The affirmative finding renewal submitted on or before October 5, 2004. minutes. was based on review of documentary ADDRESSES: Direct all written comments Estimated Total Annual Burden evidence submitted by the Government to Diana Hynek, Departmental Hours: 3 hours. of Mexico and obtained from the Inter- Paperwork Clearance Officer, Estimated Total Annual Cost to American Tropical Tuna Commission Department of Commerce, Room 6625, Public: $0. (IATTC) and the Department of State. 14th and Constitution Avenue, NW, IV. Request for Comments DATES: Effective April 1, 2004, through Washington, DC 20230 (or via the March 31, 2005. Internet at [email protected]). Comments are invited on: (a) Whether the proposed collection of information FOR FURTHER INFORMATION CONTACT: FOR FURTHER INFORMATION CONTACT: is necessary for the proper performance Regional Administrator, Southwest Requests for additional information or of the functions of the agency, including Region, NMFS, 501 West Ocean copies of the information collection whether the information shall have Boulevard, Suite 4200, Long Beach, instrument and instructions should be practical utility; (b) the accuracy of the California, 90802–4213; Phone 562– directed to John Poffenberger, Southeast agency’s estimate of the burden 980–4000; Fax 562–980–4018. Fisheries Science Center, 75 Virginia (including hours and cost) of the Beach Drive, Miami, FL 33149,(phone SUPPLEMENTARY INFORMATION: The proposed collection of information; (c) 305–361–4263). MMPA, 16 U.S.C. 1361 et seq., as ways to enhance the quality, utility, and SUPPLEMENTARY INFORMATION: amended by the International Dolphin clarity of the information to be Conservation Program Act (IDCPA) I. Abstract collected; and (d) ways to minimize the (Public Law 105–42), allows the entry Fishery quotas are established for burden of the collection of information into the United States of yellowfin tuna species in the tilefish management unit on respondents, including through the harvested by purse seine vessels in the within the Gulf of Mexico Reef Fish use of automated collection techniques ETP under certain conditions. If Fishery Management Plan (FMP) (see 50 or other forms of information requested by the harvesting nation, the CFR 622.42(a)(1)(iv)). technology. Assistant Administrator will determine The existing methods of monitoring Comments submitted in response to whether to make an affirmative finding the tilefish quota established by the this notice will be summarized and/or based upon documentary evidence FMP are likely to be ineffective. The included in the request for OMB provided by the government of the Southeast Fisheries Science Center approval of this information collection; harvesting nation, the IATTC, or the intends to use the authority under they also will become a matter of public Department of State. The finding will be section 50 CFR 622.5(c)(3)(ii) to require record. reviewed annually to ensure that the dealers to report purchases (landings) of Dated: July 20, 2004. nation continues to meet the species in the tilefish fishery on a Gwellnar Banks, requirements for an affirmative finding. monthly basis. This reporting Management Analyst, Office of the Chief The requirements must be met in order methodology is the same as the Information Officer. for the finding to remain valid for the procedures that have been established to [FR Doc. 04–18054 Filed 8–5–04; 8:45 am] following 12–month period (April 1 monitor the deep-water and shallow- BILLING CODE 3510–22–S through March 31) or for such other water grouper quotas also established period as the Assistant Administrator under the Reef Fish FMP. may determine. DEPARTMENT OF COMMERCE II. Method of Collection The affirmative finding process requires that the harvesting nation meet The Southeast Fisheries Science National Oceanic and Atmospheric several conditions related to compliance Center will provide a reporting form to Administration with the IDCP. Every 5 years, the each dealer selected to report. The [I.D. 072804B] government of the harvesting nation dealer must complete the reporting form must request an affirmative finding and by providing the name and permit Taking and Importing of Marine submit the required documentary number of the company and the amount Mammals evidence directly to the Assistant purchased (landed) for the previous Administrator. A nation may provide month for the individual species in AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and information regarding compliance with tilefish management unit. This form the IDCP directly to NMFS on an annual must be faxed or sent as an e-mail Atmospheric Administration (NOAA), Commerce. basis or may authorize the IATTC to attachment to the Southeast Fisheries release the information to NMFS in ACTION: Notice of affirmative finding Science Center, Miami, FL, within five years when NMFS will review and renewal. business days of the end of each month consider whether to issue an affirmative until the quota is reached and the SUMMARY: The Assistant Administrator finding determination without an fishery is closed. For dealers that do not for Fisheries, NMFS, (Assistant application from the harvesting nation. have a rapidfax machine or access to e- Administrator) renewed the affirmative An affirmative finding will be mail, pre-addressed, pre-paid envelopes finding for the Government of Mexico terminated, in consultation with the will be provided. under the Marine Mammal Protection Secretary of State, if the Assistant III. Data Act (MMPA). This affirmative finding Administrator determines that the OMB Number: None. renewal will allow yellowfin tuna requirements of 50 CFR 216.24(f) are no Form Number: None. harvested in the Eastern Tropical Pacific longer being met or that a nation is Type of Review: Regular submission. Ocean (ETP) in compliance with the consistently failing to take enforcement Affected Public: Business and other International Dolphin Conservation actions on violations, thereby for-profit organizations (seafood dealers Program (IDCP) by Mexican-flag purse diminishing the effectiveness of the and fishermen). seine vessels or purse seine vessels IDCP. Every 5 years, the government of Estimated Number of Respondents: operating under Mexican jurisdiction to the harvesting nation must request an 85. continue to be imported into the United affirmative finding and submit the
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required documentary evidence directly 11:30 a.m. on the 23rd and end at noon DEPARTMENT OF COMMERCE to the Assistant Administrator. on the 24th. The meeting held on As a part of the annual review process August 25th is scheduled to begin at 7 National Oceanic and Atmospheric set forth in 50 CFR 216.24(f), the p.m. and end at 10 p.m. The meeting Administration Assistant Administrator considered held on August 27th is scheduled to [I.D. 072904C] documentary evidence submitted by the begin at 9:30 a.m. and end at 4 p.m. The Government of Mexico or obtained from meeting held on August 28th is Marine Mammals; File No. 1054–1731 the IATTC and the Department of State scheduled to begin at 9:30 a.m. and end AGENCY: National Marine Fisheries and determined that Mexico has met the at 4 p.m. Another meeting will be MMPA’s requirements to receive an Service (NMFS), National Oceanic and scheduled for September in New Atmospheric Administration (NOAA), affirmative finding. Orleans, LA. After consultation with the Commerce. Department of State, NMFS renewed the ADDRESSES: The meetings August 23–24 ACTION: Issuance of permit. Government of Mexico’s affirmative will be held at the Holiday Inn Houston finding allowing the continued Intercontinental Airport, 15222 John F. SUMMARY: Notice is hereby given that importation into the United States of Kennedy Blvd. Houston, TX 77032; the University of Florida, Aquatic yellowfin tuna and products derived 281–449–2311; the meeting August 25th Animal Program, College of Veterinary Medicine, 2015 SW 16th Avenue, from yellowfin tuna harvested in the will be held at the Sheraton Suites Gainesville, FL 32610 (Dr. Ruth Frances- ETP by Mexican-flag purse seine vessels Tampa Airport, 4400 West Cypress or purse seine vessels operating under Floyd, Principal Investigator), has been Street, Tampa, FL; 813–873–8675; the issued a permit to import and export Mexican jurisdiction. meeting August 27th will be held at the The Government of Mexico must marine mammal specimens for purposes Embassy Suites Airport-Convention of scientific research. submit a new application in early 2005 Center, 5055 International Boulevard, ADDRESSES: The permit and related for an affirmative finding to be effective North Charleston, SC 29418; 843–747– for the period April 1, 2005, through documents are available for review 1882; the meeting August 28th will be upon written request or by appointment March 31, 2006, and the subsequent 4 held at the New Bern Sheraton, 100 years. in the following office(s): Middle Street, New Bern, NC 28560; Permits, Conservation and Education Dated: July 30, 2004. 252–638–3585. Division, Office of Protected Resources, John Oliver, FOR FURTHER INFORMATION CONTACT: NMFS, 1315 East-West Highway, Room Deputy Assistant Administrator for Gordon J. Helm, Deputy Director, Office 13705, Silver Spring, MD 20910; phone Operation, National Marine Fisheries Service. (301)713–2289; fax (301)713–0376; and [FR Doc. 04–18053 Filed 8–5–04; 8:45 am] of Constituent Services. Telephone (301) 713–2379. Southeast Region, NMFS, 9721 BILLING CODE 3510–22–S Executive Center Drive North, St. SUPPLEMENTARY INFORMATION: The Petersburg, FL 33702–2432; phone primary goal of the meeting is to present (727)570–5301; fax (727)570–5320. DEPARTMENT OF COMMERCE the analysis and collect public input on FOR FURTHER INFORMATION CONTACT: National Oceanic and Atmospheric the DRAFT shrimp industry issues and Amy Sloan or Jennifer Skidmore, Administration options included in the paper. Copies of (301)713–2289. the DRAFT paper will be available at SUPPLEMENTARY INFORMATION: On April [I.D. 080304A] the meetings and will also be available 30, 2004, notice was published in the online beginning 11 a.m. EST August Draft NOAA Shrimp Issues and Federal Register (69 FR 25374) that a Options Paper Public Meetings 23, 2004, at: www.nmfs.noaa.gov/ request for a scientific research permit mediacenter. Those interested in to import and export marine mammal AGENCY: National Marine Fisheries obtaining a copy after the meetings may species under NMFS jurisdiction had Service (NMFS), National Oceanic and contact Dr. John Ward, Economist. been submitted by the above-named Atmospheric Administration (NOAA), Telephone (301) 713–2379. organization. The requested permit has Commerce. been issued under the authority of the Special Accommodations ACTION: Notice of public meetings. Marine Mammal Protection Act of 1972, The meeting is physically accessible as amended (16 U.S.C. 1361 et seq.), the SUMMARY: The National Marine to people with disabilities. Requests for Regulations Governing the Taking and Fisheries Service (NOAA Fisheries) is sign language interpretation or other Importing of Marine Mammals (50 CFR hosting public meetings to present the part 216), the Endangered Species Act of results of an analysis of different auxiliary aids should be directed to Dr. John Ward at (301) 713–2379 at least 5 1973, as amended (ESA; 16 U.S.C. 1531 options and alternatives that may help et seq.), the regulations governing the days prior to the meeting date. resolve current financial and market taking, importing, and exporting of industry challenges. The analysis was Dated: August 3, 2004. endangered and threatened species (50 developed at the request of the shrimp Gordon J. Helm, CFR parts 222–226), and the Fur Seal industry and other interested parties. Deputy Director, Office of Constituent Act of 1966, as amended (16 U.S.C. 1151 The options will be presented in their Services, National Marine Fisheries Service. et seq.). entirety and the results from those that [FR Doc. 04–18052 Filed 8–5–04; 8:45 am] The Holder is authorized to receive, could be analyzed will be presented. import, and export marine mammal BILLING CODE 3510–22–S Public comment on the analysis will be specimens for research on diseases in taken at the meetings. See DATES and marine mammals. Infectious disease ADDRESSES for specific dates, times and investigations include viral pathogens locations of the meetings. such as West Nile virus, St. Louis DATES: The meetings held on Monday Encephalitis virus, herpes virus, and August 23–24, are scheduled to start at pox viruses. Other projects include
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development of a marine mammal dressing gowns and woven underwear apparel articles that are cut and sewn in histology database and atlas, research on of such fabrics assembled in one or one or more CBTPA beneficiary the effects of boat strikes on cetacean more CBTPA beneficiary countries be countries from such fabrics. bone, and investigation into acute phase eligible for preferential treatment under proteins in cetaceans. Cell lines may be the CBTPA. CITA hereby solicits public Specifications: developed from marine mammal tissues. comments on these petitions, in The permit has been issued for five particular with regard to whether these years. fabrics can be supplied by the domestic Fabric 1 In compliance with the National industry in commercial quantities in a Petitioner Style No: 4835 Environmental Policy Act of 1969 (42 timely manner. Comments must be HTS Subheading: 5208.42.30.00 U.S.C. 4321 et seq.), a final Fiber Content: 100% Cotton submitted by August 23, 2004, to the Weight: 152.6 g/m2 determination has been made that the Chairman, Committee for the Width: 150 centimeters cuttable activity proposed is categorically Implementation of Textile Agreements, Thread Count: 24.4 warp ends per centi- excluded from the requirement to Room 3001, United States Department meter; 15.7 filling picks per prepare an environmental assessment or centimeter; total: 40.1 of Commerce, 14th and Constitution, threads per square centi- environmental impact statement. N.W., Washington, D.C. 20230. meter Issuance of this permit, as required by Yarn Number: Warp: 40.6 metric, ring spun; the ESA, was based on a finding that filling: 20.3 metric, open FOR FURTHER INFORMATION CONTACT: such permit (1) was applied for in good end spun; overall average Janet E. Heinzen, International Trade faith, (2) will not operate to the yarn number: 39.4 metric Specialist, Office of Textiles and Finish: Of yarns of different colors; disadvantage of the endangered species Apparel, U.S. Department of Commerce, napped on both sides, which is the subject of this permit, and sanforized (202) 482-3400. (3) is consistent with the purposes and Fabric 2 SUPPLEMENTARY INFORMATION: policies set forth in section 2 of the Petitioner Style No: 0443B ESA. Authority: Section 213(b)(2)(A)(v)(II) of the HTS Subheading: 5209.41.60.40 Fiber Content: 100% Cotton Dated: August 3, 2004. CBERA, as added by Section 211(a) of the CBTPA; Section 6 of Executive Order No. Weight: 251 g/m2 Jennifer Skidmore, 13191 of January 17, 2001. Width: 160 centimeters cuttable Acting Chief, Permits, Conservation and Thread Count: 22.8 warp ends per centi- Education Division, Office of Protected Background: meter; 17.3 filling picks per centimeter; total: 40.1 Resources, National Marine Fisheries Service. The CBTPA provides for quota- and threads per square centi- [FR Doc. 04–18051 Filed 8–5–04; 8:45 am] duty-free treatment for qualifying textile meter BILLING CODE 3510–22–S Yarn Number: Warp: 40.6 metric, ring spun; and apparel products. Such treatment is filling: 8.46 metric, open generally limited to products end spun; overall average manufactured from yarns or fabrics yarn number: 24.1 metric COMMITTEE FOR THE formed in the United States. The CBTPA Finish: Of yarns of different colors; IMPLEMENTATION OF TEXTILE napped on both sides, also provides for quota- and duty-free sanforized AGREEMENTS treatment for apparel articles that are Fabric 3 both cut (or knit-to-shape) and sewn or Petitioner Style No: 4335 Request for Public Comments on otherwise assembled in one or more Commercial Availability Petition under HTS Subheading: 5209.41.60.40 CBTPA beneficiary countries from fabric Fiber Content: 100% Cotton the United States - Caribbean Basin or yarn that is not formed in the United Weight: 251 g/m2 Trade Partnership Act (CBTPA) States, if it has been determined that Width: 160 centimeters cuttable Thread Count: 20.1 warp ends per centi- August 3, 2004. such fabric or yarn cannot be supplied meter; 16.5 filling picks per AGENCY: Committee for the by the domestic industry in commercial centimeter; total: 36.6 Implementation of Textile Agreements quantities in a timely manner. In threads per square centi- Executive Order No. 13191, the meter (CITA). Yarn Number: Warp: 27.07 metric, ring spun; ACTION: Request for public comments President delegated to CITA the filling: 10.16 metric, open concerning three petitions for authority to determine whether yarns or end spun; overall average yarn number: 23.3 metric determinations that certain woven, 100 fabrics cannot be supplied by the domestic industry in commercial Finish: Of yarns of different colors; percent cotton, flannel fabrics cannot be napped on both sides, supplied by the domestic industry in quantities in a timely manner under the sanforized commercial quantities in a timely CBTPA and directed CITA to establish manner under the CBTPA. procedures to ensure appropriate public The petitioner emphasizes that the participation in any such determination. fabrics must be napped on both sides, SUMMARY: On July 30, 2004, the On March 6, 2001, CITA published that the yarn sizes and thread count, Chairman of CITA received three procedures that it will follow in and consequently, the weight of the petitions from Sandler, Travis & considering requests. (66 FR 13502). fabrics must be exactly or nearly exactly Rosenberg, P.A., on behalf of Picacho, On July 30, 2004, the Chairman of as specified or the fabrics will not be S.A., alleging that certain woven, 100 CITA received a petition on behalf of suitable for their intended uses. The percent cotton, flannel fabrics, of the Picacho, S.A., alleging that certain warp yarns must be ring spun in order specifications detailed below, classified woven, 100 percent cotton, flannel to provide the additional tensile in the indicated subheadings of the fabrics, of the specifications detailed strength required to offset the degrading Harmonized Tariff Schedule of the below, classified in the indicated effects of heavy napping on both sides. United States (HTSUS), cannot be HTSUS subheadings, cannot be The filling yarns must be open end spun supplied by the domestic industry in supplied by the domestic industry in to provide required loft and softness. commercial quantities in a timely commercial quantities in a timely The filling yarns must be spun from manner. The petitions request that manner and requesting quota- and duty- fibers that have been stock dyed prior to shirts, trousers, nightwear, robes, free treatment under the CBTPA for carding and the warp yarns must be
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dyed prior to weaving in order to give the Federal Register notice that was Height and lighting of memorial and site the desired heather effect. published on April 3, 2003 68 FR design; agency reviews; and natural CITA is soliciting public comments 16264). This notice publishes the resources. regarding these requests, particularly intended notice. The Environmental Assessment and with respect to whether these fabrics The Director, Defense Facilities Response to Comments on can be supplied by the domestic Directorate finds that the project Environmental Assessment are available industry in commercial quantities in a described in the Environmental at http://www.dtic.mil/ref/Safety/ timely manner. Also relevant is whether Assessment, Air Force Memorial, Naval index.htm or by contacting the WHS other fabrics that are supplied by the Annex Site, March 2003, is not a major Defense Facilities Directorate (703–697– domestic industry in commercial Federal action significantly affecting the 7241) or the Air Force Memorial quantities in a timely manner are quality of the human environment. Foundation (703–247–5859). substitutable for the fabric for purposes Therefore, no environmental impact Dated: August 3, 2004. of the intended use. Comments must be statement will be prepared. This L.M. Bynum, received no later than August 23, 2004. decision is in accordance with the Alternate OSD Federal Register Liaison Interested persons are invited to submit National Environmental Policy Act of Officer, Department of Defense. six copies of such comments or 1969, as amended (NEPA, 42 U.S. Code [FR Doc. 04–18058 Filed 8–4–04; 9:12 am] information to the Chairman, Committee 4321 et seq.), the implementing for the Implementation of Textile regulations of the Council on BILLING CODE 5001–06–M Agreements, room 3100, U.S. Environmental Quality (CEQ, 40 CFR Department of Commerce, 14th and 1500–1508), and DoD Instruction DEPARTMENT OF DEFENSE Constitution Avenue, N.W., 4715.9, Environmental Planning and Washington, DC 20230. Analysis. Department of the Army If a comment alleges that this fabric Congress authorized the proposed can be supplied by the domestic action to establish an Air Force Record of Decision for the Final industry in commercial quantities in a Memorial on three acres of the Naval Environmental Impact Statement for timely manner, CITA will closely Annex Site to honor he men and women the Digital Multi-Purpose Range review any supporting documentation, who served in the U.S. Air Force and its Complex at Fort Benning, GA such as a signed statement by a predecessors. The main element of the AGENCY: Department of the Army, DOD. manufacturer of the fabric stating that it Memorial would be three curving produces the fabric that is the subject of vertical spires, from 200 to 270 feet ACTION: Notice of availability. the request, including the quantities that high, that symbolize Air Force core SUMMARY: The Department of the Army can be supplied and the time necessary values, people, and key mission announces the availability of the Record to fill an order, as well as any relevant ingredients. Complimentary elements of Decision (ROD) for the Final information regarding past production. include a parade ground, honor guard Environmental Impact Statement (EIS) CITA will protect any business sculpture, contemplative outdoor areas, for the Digital Multi-Purpose Range confidential information that is marked seating, walkways, and parking. The Complex (DMPRC) at Fort Benning, GA. ‘‘business confidential’’ from disclosure proposed action includes demolition of The ROD details the Army’s decision to the full extent permitted by law. Wing 8 of the Naval Annex. with respect to the proposed action and The Environmental Assessment CITA will make available to the public alternatives considered in the EIS, and identified project alternatives, affected non-confidential versions of the request the rationale for the decision. Based on environment, environmental and non-confidential versions of any the EIS and other factors, the Army has consequences, and proposed mitigation public comments received with respect decided to implement its preferred measures. It examined potential impacts to a request in room 3100 in the Herbert alternative. This decision allows the on socio-economic conditions, cultural Hoover Building, 14th and Constitution Army to proceed with the necessary and visual resources, transportation Avenue, N.W., Washington, DC 20230. actions to allow the construction, systems, physical and biological Persons submitting comments on a operation and maintenance of a DMPRC resources, utilities and infrastructure, request are encouraged to include a non- at Fort Benning. The decision also and cumulative impact. confidential version and a non- affirms the Army’s commitment to confidential summary. Public involvement included presentations and applications to implementing a series of mitigations D. Michael Hutchinson, relevant groups and agencies. The and monitoring measures, as identified Acting Chairman, Committee for the Department of Defense (DoD) in the EIS, to offset potential adverse Implementation of Textile Agreements. Washington Headquarters Services environmental impacts associated with [FR Doc.04–18112 Filed 8–4–04; 11:49 am] (WHS) published a Notice of the proposed action. BILLING CODE 3510–DR–S Availability of Environmental ADDRESSES: Interested parties desiring Assessment in local newspapers on to review the ROD may obtain a copy by March 31, 2003, and in the Federal contacting Mr. Richard McDowell, DEPARTMENT OF DEFENSE Register on April 3, 2003. The Public Affairs Officer, U.S. Army document was made available by mail Infantry Center, ATTN: ATZB–PO, Fort Office of the Secretary Web site, and library to interested or Benning, GA, 31905–5122 or by sending affected people and agencies. The 30- an electronic mail request to Finding of No Significant Impact Air day comment period closed May 5, [email protected]. The ROD Force Memorial, Naval Annex Site 2003. The Response to Comments on may also be viewed on the Fort Benning Arlington, VA Environmental Assessment, June 2004, Web site (http://www-benning.army.mil/ EMD/dmprcLegal&PublicNotices.htm). ACTION: Notice. includes all comments received and how they were addressed. The FOR FURTHER INFORMATION CONTACT: Mr. On Tuesday, August 3, 2004 (69 FR comments and response address Richard McDowell at 706–545–2211. 46523), the Department of Defense environmental issues and mitigation SUPPLEMENTARY INFORMATION: In inadvertently published a duplication of measures under the following topics: compliance with the National
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Environmental Policy Act, the Army ammunition breakdown (with of your message; do not send attached prepared an EIS for the construction, ammunition dock). files. Please include your name and address in your message. operation, and maintenance of the Michael Q. Frnka, DMPRC. The EIS identified the relevant FOR FURTHER INFORMATION CONTACT: Director Public Works Division, Installation Mr. environmental and socioeconomic Management Agency, Southeast Region. William D. Abadie, Environmental impacts of the proposed action and [FR Doc. 04–18000 Filed 8–5–04; 8:45 am] Team Leader, (410) 962–4713 or (800) 295–1610. alternatives on the biological, physical, BILLING CODE 3710–08–M and cultural environment. SUPPLEMENTARY INFORMATION: Federal As a result of this decision, the Army flood control projects along the will proceed with the necessary actions DEPARTMENT OF DEFENSE Susquehanna River have protected to begin to construct and operate the communities in the Wyoming Valley of Department of the Army; Corps of northeastern Pennsylvania since the late facilities described in the Preferred Engineers Alternative (Alternative III). Although 1930’s. However, in June 1972, Tropical Storm Agnes struck, and the the Environmentally Preferred Availability of Draft Supplemental Susquehanna River overtopped the Alternative (Alternative I–No Action) Environmental Impact Statement for levee system in the Valley, causing generally had few environmental the Wyoming Valley Levee Raising severe damage in many communities. In impacts than the two action alternatives, Project, Wilkes-Barre, PA response, in 1986 the U.S. Congress it had significant adverse impacts from AGENCY: Department of the Army, U.S. authorized raising the Wyoming Valley noise and did not meet the overall Army Corps of Engineers, DOD. levee system and implementing other training needs of the installation. Noise ACTION: Notice of availability. flood damage reduction measures. was a major concern raised in public Construction of the levee raising started comments. The Army Preferred SUMMARY: In accordance with the in the Spring of 1997 and continues. Alternative substantially reduces requirements of the National In the urbanized area of the Wyoming adverse noise impacts on the Environmental Policy Act (NEPA), the Valley, including the City of Wilkes- communities near Ft. Benning by U.S. Army Corps of Engineers (USACE), Barre, the levee and floodwall system moving the training range to a more Baltimore District has prepared a Draft have created a physical, psychological interior portion of the installation. Supplemental Environmental Impact and aesthetic barrier between the Alternative II would also meet the basic Statement (SEIS) for the design communities along the Susquehanna purpose and need for the DMPRC, but modifications and recreational River. Through public workshops in would have more adverse enhancements to the Wyoming Valley 1999, a conceptual plan was developed environmental effects that Alternative Levee Raising Project at the Wilkes- for the City of Wilkes-Barre riverfront III. All practicable measures will be Barre, Pennsylvania River Commons. that would restore the connection The Draft SEIS investigates the potential used to mitigate the impacts. The between the city and the river. The plan environmental effects of an array of mitigation measures are listed in the consists of a riverfront park to be alternative plans based on the ROD. The proposed project site is an located on the riverside of the levee at conceptual riverfront plan for Wilkes- downtown Wilkes-Barre, which would approximately 1,800 acre area in the Barre. The preferred alternative includes D13 area that would utilize an existing be accessible through two portals (i.e. the addition of two portals through the gates) in the levee/floodwall system. dudded impact area, K15. The DMPRC levee, a river landing, fishing platform/ The Luzerne County Flood Protection would contain 35 stationary infantry dock, and an amphitheater and stage. Authority, which is the non-Federal targets, 11 evasive moving armor targets, We are making the Draft SEIS available project partner for the Wyoming Valley 55 stationary armor targets, two defense to the public for a 45-day review and Levee Raising Project, requested that the trenches with foxholes, 19 defilade comment period. conceptual riverfront plan be positions (Abrams Tank and Bradley DATES: Comments need to be received incorporated into the project. This Fighting Vehicle hiding places), four on or before September 20, 2004, to request initiated a general reevaluation tank trails, eight low-water crossings ensure consideration in final plan report (GRR) and this Draft SEIS to (four on Bonham Creek and four on development. A public meeting on the investigate the potential environmental Sally Beach). A helipad will also be recreational improvements to the effects to alternative plans based on the constructed for use in emergency Wyoming Valley Levee Draft SEIS will conceptual riverfront plan. evacuations. The following support be held at Kings College Sheehy-Farmer The preferred plan for the riverfront facilities would be constructed in an Campus Center in Building #22, near park include two portals, a river approximately 20-acre area to the the corner of West Union and North landing, a fishing platform/dock, and an southwest of the range and target firing Main Streets in Wilkes-Barre, amphitheater and stage. In addition to area and just off of Hourglass Road: Pennsylvania on Wednesday, August these features, miscellaneous latrines; bivouac pads; a covered mess 25, 2004 beginning at 7 p.m. recreational amenities (e.g., lights, (dining area); vehicle holding and A map showing the location on the seating areas with benches, trees/ maintenance areas; a well house; water Kings Campus can be found at http:// vegetation, educational kiosks, and trash distribution and wastewater collection/ www.kings.edu/nvtour/campusmap.pdf. receptacles) would be included. Also, treatment systems; a secondary power ADDRESSES: Send written comments the existing access road at the riverside and data distribution system; a Control concerning this proposed project to U.S. of the levee would be paved. Building; and buildings for After Action Army Corps of Engineers, Baltimore A public meeting on the Draft SEIS District, Attn: Mr. William D. Abadie, will be held at Kings College (see Review; general instruction; operations CENAB–PL–P, P.O. Box 1715, DATES). The meeting will provide an and storage; central maintenance and for Baltimore, MD 21203–1715. Submit opportunity for the public to present electronic comments to oral and/or written comments. All [email protected]. Your persons and organizations that have an comment must be contained in the body interest in the recreational
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improvements to the Wyoming Valley Administration (FAA) Safety rate, excess vegetation has encroached Levee as they affect Luzerne County and Regulations. Overgrowth of mangroves upon the clear zones and now creates the environment are urged to attend the and other vegetation has negatively serious unsafe conditions on the meeting and provide comments. affected visibility and poses a strike airfield. In order to bring the airfield USACE has distributed copies of the hazard to aircraft landing and taking off back into compliance with Navy and Draft SEIS to appropriate members of at Boca Chica Field, thereby, adversely FAA safety regulations, some trees and Congress, State and local government impacting airfield operations. shrubs within these safety clearance officials, Federal agencies, and other Additionally, inadequate surface water zones will have to be removed. Some interested parties. Copies are available drainage on the airfield has been portions of this removal process may for public review at the following identified as a significant safety hazard. have potential impacts to federally locations: NAS Key West’s primary mission is to listed species and their habitat and the (1) Osterhout Free Library, 71 South provide pilot training facilities and filling of wetlands. The primary species Franklin Street, Wilkes-Barre, PA 18701. services as well as access to superior of concern is the endangered LKMR. (2) Osterhout Free Library, South airspace and training ranges for tactical Additional concerns involve wetlands Branch, 2 Airy Street, Wilkes Barre, PA aviation squadrons. As such, NAS Key within the project area that include 18702. West serves as the Navy’s premier East freshwater marsh, saltmarsh, freshwater (3) D. Leonard Corgan Library, King’s Coast pilot training facility for tactical hardwoods, and mangroves (the College, 14 West Jackson Street, Wilkes- aviation squadrons. predominant species). The Navy has Barre, PA 18711. The EIS will evaluate the conducted extensive research and You may view the Draft SEIS and environmental effects associated with surveyed Boca Chica Field in order to related information on our Web page at vegetation removal on airspace, safety, identify the non-compliant areas and http://www.nab.usace.army.mil/ earth resources, land use, develop a restoration/construction _ publications/non-reg pub.htm. socioeconomic resources, infrastructure, methodology. During this process the After the public comment period ends cultural resources and biological best possible technique(s) for restoring on September 20, 2004, USACE will resources; including endangered and and enhancing the airfield clearance consider all comments received. The sensitive species, specifically the Lower safety areas while minimizing the Draft SEIS will be revised as appropriate Keys Marsh Rabbit (LKMR) and impacts of the restoration methods to and a Final SEIS will be issued. mangroves. Methods to reduce or the LKMR and wetlands were The Draft SEIS has been prepared in minimize impacts to these species and delineated. accordance with (1) The National essential fish habitat provided by The EIS will consider three Environmental Policy Act (NEPA) of mangroves in the clear zones will also 1969, as amended (42 U.S.C. 4321 et alternatives: (1) Complete compliance be addressed. The analysis will include with aviation regulations. Under this seq.), (2) regulations of the Council on an evaluation of the direct, indirect, and Environmental Quality for alternative, maintenance would be cumulative impacts. No decision will be completed to allow the airfield to implementing the procedural provisions made to implement any action of NEPA (40 CFR parts 1500–1508), and operate under the conditions originally alternative until the NEPA process is established for the Boca Chica Field. (3) USACE regulations implementing completed. NEPA (ER–200–2–2). Maintenance activities would include DATES: A public scoping meeting will be clearing, grading, and grubbing William D. Abadie, held in Key West, FL, to receive oral vegetation within airfield safety Environmental Team Leader. and/or written comments on clearance zones. All trees within the [FR Doc. 04–17999 Filed 8–5–04; 8:45 am] environmental concerns that should be Primary Surface Area, Type I, Type II, BILLING CODE 3710–41–M addressed in the EIS. The public portions of Type III, and Transitional meeting will be held on Tuesday, areas would be removed, and the area August 24, 2004, from 7 p.m. to 9 p.m. completely cleared of stumps (grubbing) DEPARTMENT OF DEFENSE ADDRESSES: The public meeting will be and re-graded. Typical mechanized equipment would be used since the Department of the Navy held at Doubletree Grand Key Resort, 3990 S. Roosevelt Blvd., Key West, FL entire area would be disturbed due to 33040. grubbing and re-grading activities and Notice of Intent To Prepare an there would be no benefit to the use of Environmental Impact Statement for FOR FURTHER INFORMATION CONTACT: specialized low-impact equipment. the Restoration of Airfield Clear Zones Naval Facilities Engineering Command, Restoration of the existing drainage and Storm Water Drainage Systems at Southern Division (NAVFAC EFD system would be implemented by Naval Air Station (NAS) Key West, FL SOUTH), P.O. Box 190010, North removal of the mangroves in the canals Charleston, SC 29419–9010; Attn: Ms. AGENCY: and on the banks and dredging to Department of the Navy, DOD. Olivia Westbrook, telephone (843) 820– ACTION: Notice. original invert elevations. (2) The 5841; facsimile (843) 820–7465; e-mail: second alternative would include a SUMMARY: Pursuant to Section [email protected]. The point combination of vegetation management, (102)(2)(c) of the National of contact at NAS Key is Richard filling of wetlands, and salt marsh Environmental Policy Act (NEPA) of Ruzich. He may be reached by conversion. Restoration of the existing 1969, as implemented by the Council on telephone at (305) 293–2785; facsimile drainage system would be implemented Environmental Quality Regulations (40 (305) 293–2542; or e-mail: by removal of the mangroves in the CFR parts 1500–1508), the Department [email protected]. canals and dredging to original invert of Navy (Navy) announces its intent to SUPPLEMENTARY INFORMATION: elevations. The proposed action would prepare an Environmental Impact Historically, the Boca Chica Field did improve airfield conditions to correct Statement (EIS) to evaluate the potential not have dense vegetation surrounding deficiencies temporarily waivered by environmental consequences of bringing the area, as is the desired condition for the Navy, and return conditions to an the Boca Chica Field into compliance any airfield or airport. However, due to airfield that complies with FAA and with Navy and Federal Aviation a lack of maintenance and rapid growth Navy standards with an acceptable level
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of safety. (3) The No Action Alternative SUMMARY: In compliance with the www.ferc.gov, using the ‘‘eLibrary’’ link. in accordance with Section 1502.14(d) requirements of section 3507 of the Enter the docket number excluding the of the NEPA regulations means that an Paperwork Reduction Act of 1995, 44 last three digits in the docket number action would not take place and the U.S.C. 3507, the Federal Energy field to access the document. For resulting environmental effects from Regulatory Commission (Commission) assistance, contact FERC Online taking no action would be compared has submitted the information Support at with the effects of allowing the collection described below to the Office [email protected] or toll- proposed action to move forward. of Management and Budget (OMB) for free at (866) 208–3676, or for TTY, Implementation of the No Action review and reinstatement of this contact (202) 502–8659. alternative would only allow the information collection requirement. Any FOR FURTHER INFORMATION CONTACT: performance of minimal airfield interested person may file comments Michael Miller may be reached by maintenance that is eligible for directly with OMB and should address telephone at (202) 502–8415, by fax at Categorical Exclusion under NEPA a copy of those comments to the (202) 273–0873, and by e-mail at requirements. Under this alternative, Commission as explained below. The [email protected]. Boca Chica Field would remain in non- Commission received no comments in SUPPLEMENTARY INFORMATION: compliance with airfield safety criteria response to an earlier Federal Register and NAS Key West operations would notice of April 14, 2004 (69 FR 19829– Description continue to be negatively impacted by 19830) and has made this notification in The information collection submitted existing conditions. its submission to OMB. for OMB review contains the following: The Navy is initiating the scoping DATES: Comments on the collection of 1. Collection of Information: FERC– process to identify community concerns information are due by August 31, 2004. 582 ‘‘Electric Fees and Annual and local issues that should be ADDRESSES: Address comments on the Charges.’’ addressed in the EIS. Federal, State, and collection of information to the Office of 2. Sponsor: Federal Energy Regulatory local agencies, as well as interested Management and Budget, Office of Commission. persons are encouraged to provide oral Information and Regulatory Affairs, 3. Control No.: 1902–0132. and/or written comments to the Navy to Attention: Federal Energy Regulatory The Commission is now requesting identify specific issues or topics of Commission Desk Officer. Comments to that OMB approve with a three-year environmental concern for OMB should be filed electronically, c/o extension of the expiration date, with no consideration in the EIS. The Navy will [email protected] and changes to the existing collection. The consider these comments in include the OMB Control No. as a point information filed with the Commission determining the scope of the EIS. of reference. The Desk Officer may be is mandatory. Written comments must be reached by telephone at 202–395–7856. 4. Necessity of the Collection of postmarked by September 21, 2004, and A copy of the comments should also be Information: Submission of this should be mailed to: Restoration of sent to the Federal Energy Regulatory information is necessary to enable the Airfield Clear Zones and Storm Water Commission, Office of the Executive Commission to carry out its Drainage Systems at NAS Key West, FL Director, ED–30, Attention: Michael responsibilities in implementing the EIS, c/o Commander, NAVFAC EFD Miller, 888 First Street, NE., statutory provisions of the Independent SOUTH, P.O. Box 190010, North Washington, DC 20426. Comments may Offices Appropriation Act of 1952 Charleston, SC 29419–9010, Attn: Code be filed either in paper format or (IOAA) (31 U.S.C. 9701) which ES12/OW (Olivia Westbrook), telephone electronically. Those persons filing authorizes the Commission to establish (843) 820–5841, facsimile (843) 820– electronically do not need to make a fees for its services. In addition, the 7465, or by E-Mail paper filing. For paper filings, such Omnibus Budget Reconciliation Act of [email protected]. comments should be submitted to the 1986 (OBRA) (42 U.S.C. 71778) Dated: August 3, 2004. Office of the Secretary, Federal Energy authorizes the Commission ‘‘to assess S.K. Melancon, Regulatory Commission, 888 First and collect fees and annual charges in Paralegal Specialist, Office of the Judge Street, NE., Washington, DC 20426 and any fiscal year in amounts equal to all Advocate General, Alternate Federal Register should refer to Docket No. IC04–582– the costs incurred by the Commission in Liaison Officer. 001. that fiscal year.’’ In calculating annual [FR Doc. 04–18008 Filed 8–5–04; 8:45 am] Documents filed electronically via the charges, the Commission first BILLING CODE 3810–FF–P Internet must be prepared in MS Word, determines the total costs of its electric Portable Document Format, Word regulatory program and then subtracts Perfect, or ASCII format. To file the all electric regulatory program filing fee DEPARTMENT OF ENERGY document, access the Commission’s collections to determine the total Web site at http://www.ferc.gov and collectible electric regulatory program Federal Energy Regulatory click on ‘‘Make an E-filing,’’ and then costs. It then uses the data submitted Commission follow the instructions for each screen. under the Commission’s information First time users will have to establish a collection requirement FERC–582 to [Docket No. IC04–582–001, FERC–582] user name and password. The determine the total megawatt-hours of Commission will send an automatic transmission of electric energy in Commission Information Collection acknowledgment to the sender’s e-mail interstate commerce. This is measured Activities, Proposed Collection; address upon receipt of comments. User by the sum of the megawatt-hours of all Comment Request; Submitted for OMB assistance for electronic filings is unbundled transmission (including Review available at 202–502–8258 or by e-mail MWh delivered in wheeling July 30, 2004. to [email protected]. Comments should transactions and MWh delivered in AGENCY: Federal Energy Regulatory not be submitted to the e-mail address. exchange transactions) and the Commission. All comments are available for review megawatt-hours of all bundled at the Commission or may be viewed on wholesale power sales (to the extent ACTION: Notice. the Commission’s Web site at http:// these later megawatt-hours were not
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separately reported as unbundled Cove Energy, L.L.C. and Mill River • Four LNG truck loading stations; transmission). This information must be Pipeline, L.L.C. (collectively referred to • Ancillary utilities, buildings, and reported to three decimal places. Public as Weaver’s Cove Energy) in the above- service facilities; utilities and power marketers subject to referenced dockets. A draft General • Two 24-inch-diameter natural gas these annual charges must submit Conformity Determination was also sendout pipelines, totaling FERC–582 to the Commission’s Office of prepared to assess the potential air approximately 6.1 miles in length; and the Secretary by April 30 of each year. quality impacts associated with • Two meter and regulation stations. The Commission issues bills for annual construction and operation of the Comment Procedures and Public charges, and then public utilities and proposed project and is included as Meetings power marketers must pay the charges appendix H of the draft EIS. within 45 days of the Commission’s The draft EIS was prepared to satisfy Any person wishing to comment on issuance of the bill. the requirements of the National the draft EIS or the draft General The Commission’s staff uses Environmental Policy Act (NEPA). The Conformity Determination may do so. companies’ financial information filed staff concludes that approval of the To ensure consideration prior to a under waiver provisions to evaluate proposed project with appropriate Commission decision on the proposal, it requests for a waiver or exemption of mitigating measures as recommended, is important that we receive your the obligation to pay a fee for an annual would have limited adverse comments before the date specified charge. The Commission implements environmental impact. The draft EIS below. Please carefully follow these the filing requirements in the Code of also evaluates alternatives to the instructions to ensure that your Regulations (CFR) under 18 CFR part proposal, including system alternatives, comments are received in time and alternative sites for the LNG import properly recorded: 381, sections 381.108 and 381.302 and • part 382, section 382.201(c). terminal, and pipeline alternatives; and Send an original and two copies of 5. Respondent Description: The requests comments on them. your comments to: Magalie R. Salas, respondent universe currently The draft EIS was also prepared to Secretary, Federal Energy Regulatory comprises 192 companies (on average satisfy the requirements of the Commission, 888 First St., NE., Room Massachusetts Environmental Policy 1A, Washington, DC 20426; per year) subject to the Commission’s • jurisdiction. Act (MEPA). The Massachusetts Reference Docket No. CP04–36– 6. Estimated Burden: 768 total hours, Executive Office of Environmental 000; • Label one copy of your comments 192 respondents (average per year), 1 Affairs issued a Certificate to Weaver’s for the attention of Gas Branch 1, PJ11.1; response per respondent, and 4 hours Cove Energy on August 28, 2003, that and per response (average). established a Special Review Procedure • Mail your comments so that they 7. Estimated Cost Burden to to guide the MEPA review of the will be received in Washington, DC on Respondents: 768 hours/2080 hours per Weaver’s Cove LNG Project. This × Special Review Procedure provides for or before September 20, 2004. years $107,185 per year = $39,576. Please note that we are continuing to The cost per respondent is equal to a coordinated NEPA/MEPA review and allows the draft and final EISs to serve experience delays in mail deliveries $206. from the U.S. Postal Service. As a result, Statutory Authority: 31 U.S.C. 9701 as the draft and final Environmental we will include all comments that we and 42 U.S.C. 71778. Impact Reports (EIRs) required under MEPA, provided the EISs address receive within a reasonable time frame Magalie R. Salas, MEPA’s EIR requirements, as specified in our environmental analysis of the Secretary. in the MEPA scope for the project that project. However, the Commission [FR Doc. E4–1733 Filed 8–5–04; 8:45 am] was issued concurrently with the strongly encourages electronic filing of BILLING CODE 6717–01–P August 28, 2003, Special Review any comments or interventions to this Procedure. proceeding. See 18 CFR Weaver’s Cove Energy’s proposed 385.2001(a)(1)(iii) and the instructions DEPARTMENT OF ENERGY facilities would transport up to 800 on the Commission’s Web site at million cubic feet per day (MMcfd) of http://www.ferc.gov under the ‘‘e- Federal Energy Regulatory imported natural gas to the U.S. market. Filing’’ link and the link to the User’s Commission In order to provide LNG import, storage, Guide. Before you can file comments [Docket Nos. CP04–36–000 and CP04–41– and pipeline transportation services, you will need to create a free account 000] Weaver’s Cove Energy requests which can be created online. Commission authorization to construct, In addition to or in lieu of sending Weaver’s Cove Energy, L.L.C.; Mill install, and operate an LNG terminal written comments, we invite you to River Pipeline, L.L.C.; Notice of and natural gas pipeline facilities. attend the public comment meetings we Availability of the Draft Environmental The draft EIS addresses the potential will conduct in the project area. The Impact Statement and the Draft environmental effects of the locations and times for these meetings General Conformity Determination for construction and operation of the are listed below: the Proposed Weaver’s Cove LNG following LNG terminal and natural gas September 8, 2004, 7 p.m. (e.s.t.), Project pipeline facilities: Venus de Milo Restaurant, 75 GAR • A ship unloading facility with a Highway, Swansea, Massachusetts July 30, 2004. single berth capable of receiving LNG 02777, (508) 678–3901. The staff of the Federal Energy ships with cargo capacities of up to September 9, 2004, 7 p.m. (e.s.t.), Regulatory Commission (FERC or 145,000 cubic meters (m3); Gaudet Middle School, 1113 Aquidneck Commission) has prepared a draft • A 200,000 m3 (equivalent to 4.4 Avenue, Middletown, RI 02842, (401) Environmental Impact Statement (EIS) billion standard cubic feet of gas) full 846–6395 on the liquefied natural gas (LNG) containment LNG storage tank; These meetings will be posted on the import terminal and natural gas pipeline • Vaporization equipment, sized for a Commission’s calendar located at facilities in Bristol County, normal sendout of 400 MMcfd and a http://www.ferc.gov/EventCalendar/ Massachusetts proposed by Weaver’s maximum sendout of 800 MMcfd; EventsList.aspx along with other related
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information. Interested groups and link on the FERC Internet Web site also resource agency, Indian tribe, or person individuals are encouraged to attend provides access to the texts of formal believes that an additional scientific and present oral comments on the draft documents issued by the Commission, study should be conducted in order to EIS. Transcripts of the meetings will be such as orders, notices, and form an adequate factual basis for a prepared. rulemakings. complete analysis of the application on After these comments are reviewed, In addition, the Commission now its merit, the resource agency, Indian any significant new issues are offers a free service called eSubscription tribe, or person must file a request for investigated, and modifications are which allows you to keep track of all a study with the Commission not later made to the draft EIS and draft General formal issuances and submittals in than 60 days from the date of filing of Conformity Determination, a final EIS, specific dockets. This can reduce the the application, and serve a copy of the including a final General Conformity amount of time you spend researching request on the applicant. Determination, will be published and proceedings by automatically providing l. Deadline for filing additional study distributed by the staff. The final EIS you with notification of these filings, requests and requests for cooperating will contain the staff’s responses to document summaries and direct links to agency status: August 30, 2004. timely comments received on the draft the documents. Go to the eSubscription All documents (original and eight EIS and draft General Conformity link on the FERC Internet Web site. copies) should be filed with: Magalie R. Determination. Salas, Secretary, Federal Energy Comments will be considered by the Magalie R. Salas, Regulatory Commission, 888 First Commission but will not serve to make Secretary. Street, NE., Washington, DC 20426. the commentor a party to the [FR Doc. E4–1734 Filed 8–5–04; 8:45 am] The Commission’s Rules of Practice proceeding. Any person seeking to BILLING CODE 6717–01–P require all intervenors filing documents become a party to the proceeding must with the Commission to serve a copy of file a motion to intervene pursuant to that document on each person on the Rule 214 of the Commission’s Rules of DEPARTMENT OF ENERGY official service list for the project. Practice and Procedures (18 CFR Further, if an intervenor files comments Federal Energy Regulatory or documents with the Commission 385.214). Commission Anyone may intervene in this relating to the merits of an issue that proceeding based on this draft EIS. You may affect the responsibilities of a Notice of Application Tendered for particular resource agency, they must must file your request to intervene as Filing With the Commission and 1 also serve a copy of the document on specified above. You do not need Soliciting Additional Study Requests intervenor status to have your that resource agency. comments considered. July 30, 2004. Additional study requests and The draft EIS has been placed in the Take notice that the following requests for cooperating agency status public files of the FERC and is available hydroelectric application has been filed may be filed electronically via the for distribution and public inspection with the Commission and is available Internet in lieu of paper. The at: Federal Energy Regulatory for public inspection. Commission strongly encourages Commission, Public Reference Room, a. Type of Application: Major license. electronic filings. See 18 CFR 888 First Street, NE., Room 2A, b. Project No.: 11945–001. 385.2001(a)(1)(iii) and the instructions Washington, DC 20426, (202) 502–8371. c. Date Filed: June 30, 2004. on the Commission’s Web site (http:// A limited number of copies are d. Applicant: Symbiotics, LLC. www.ferc.gov) under the ‘‘e-Filing’’ link. available from the Public Reference e. Name of Project: Dorena Lake Dam m. The application is not ready for Room identified above. In addition, Project. environmental analysis at this time. copies of the draft EIS have been mailed f. Location: On the Row River, near n. The proposed project would utilize to Federal, State, and local agencies; the Town of Cottage Grove, Lane the U.S. Army Corps of Engineers’ public interest groups; individuals and County, Oregon. The project would existing Dorena Lake dam and reservoir, affected landowners who requested a occupy less than 1 acre of Federal lands and would consist of the following copy of the draft EIS; libraries; administered by the U.S. Army Corps of facilities: (1) A 9-foot-diameter steel newspapers; and parties to this Engineers. pipe, about 350 feet long, extending proceeding. g. Filed Pursuant to: Federal Power from the reservoir through the north Additional information about the Act, 16 U.S.C. 791 (a)–825(r). dam abutment; (2) a new powerhouse, project is available from the h. Applicant Contact: Brent L. Smith, near the existing spillway stilling basin Commission’s Office of External Affairs, Northwest Power Services, Inc., P.O. 250 feet downstream from the concrete at 1–866–208–FERC or on the FERC Box 535, Rigby, Idaho 83442, (208) 745– section of the dam, having a total Internet Web site (http://www.ferc.gov) 0834. installed capacity of 8,300 kilowatts; (3) using the eLibrary link. Click on the i. FERC Contact: Dianne Rodman, a new concrete-lined channel eLibrary link, click on ‘‘General Search’’ (202) 502–6077, discharging flows into the river channel and enter the docket number excluding [email protected]. immediately below the existing stilling the last three digits in the Docket j. Cooperating agencies: We are asking basin; (4) a new valve house near the Number field. Be sure you have selected Federal, State, local, and tribal agencies existing stilling basin; (5) a new 15- an appropriate date range. For with jurisdiction and/or special kilovolt underground transmission line, assistance, please contact FERC Online expertise with respect to environmental about 500 feet long; and (6) appurtenant Support at issues to cooperate with us in the facilities. The average annual generation [email protected] or toll preparation of the environmental is estimated to be 17.5 gigawatthours. o. A copy of the application is free at 1–866–208–3676, or for TTY, document. Agencies who would like to available for review at the Commission contact (202) 502–8659. The eLibrary request cooperating status should follow the instructions for filing comments in the Public Reference Room or may be 1 Interventions may also be filed electronically via described in item l below. viewed on the Commission’s Web site at the Internet in lieu of paper. See the previous k. Pursuant to § 4.32(b)(7) of 18 CFR http://www.ferc.gov using the discussion on filing comments electronically. of the Commission’s regulations, if any ‘‘eLibrary’’ link. Enter the docket
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number excluding the last three digits in DEPARTMENT OF ENERGY on the Monday that precedes the the docket number field to access the Thursday report. The reporting document. For assistance, contact FERC Federal Energy Regulatory companies provide weekly net aggregate Online Support at Commission storage inventory information for the week that ended with the gas day that [email protected] or toll- [Docket No. AD04–10–000] free at 1–866–208–3676, or for TTY, ended on the preceding Friday. The (202) 502–8659. A copy is also available Enhanced Reporting of Natural Gas EIA’s release of its weekly report is a for inspection and reproduction at the Storage Inventory Information; Notice regularly watched event in the natural address in item h above. of Technical Conference and Request gas industry because changes in natural for Written Comments on Enhanced gas storage inventory levels can affect You may also register online at commodity prices, the price of NYMEX http://www.ferc.gov/docs-filing/ Reporting of Natural Gas Storage Inventory Information natural gas futures contracts, other esubscription.asp to be notified via e- physical and financial transactions, and mail of new filings and issuances August 2, 2004. a variety of transportation and storage related to this or other pending projects. The Federal Energy Regulatory transactions. Increased volatility For assistance, contact FERC Online Commission (Commission) will hold a observed in the trading of NYMEX Support. technical conference to explore whether natural gas futures contracts p. With this notice, we are initiating the Commission should institute a immediately following the EIA’s release consultation with the Oregon State generic rulemaking to consider whether of its weekly storage report suggests the importance to many industry Historic Preservation Officer (SHPO), as the Commission should require participants of information related to required by section 106, National interstate natural gas pipeline natural gas storage inventory levels. In Historic Preservation Act, and the companies and other owners and operators of natural gas storage facilities addition, the order the Commission is regulations of the Advisory Council on issuing today approving Stipulation and Historic Preservation, 36 CFR 800.4. to electronically post each day actual natural gas storage inventory levels on Consent Agreements (Agreements) in q. Procedural schedule: The their systems for the preceding day. Docket No. IN04–2–000, indicates that application will be processed according Specifically, the technical conference some market participants obtained non- to the following Hydro Licensing will explore the feasibility, usefulness public storage inventory information Schedule. Revisions to the schedule will and appropriateness of requiring posting sourced from interstate pipelines, or in be made as appropriate. on a standardized basis for the previous one case, a local distribution company gas day (1) Net aggregate actual injection (LDC), because of the perceived market Issue Acceptance or Deficiency Letter: value of this information. August 2004. or withdrawal data; (2) actual total available working gas; and (3) actual The Commission currently requires Request Additional Information: total storage inventory volume. The interstate pipelines that provide service August 2004. conference will take place on September under blanket certificates pursuant to Issue Acceptance Letter: December 28, 2004, at 9:30 a.m. (e.s.t.) in the subparts B and G of part 284 of the 2004. Commission Meeting Room at the Commission’s regulations, to post the availability of all transportation services Issue Scoping Document 1 for Commission’s headquarters, 888 First Street, NE., Washington, DC. The whenever capacity is scheduled at comments: January 2005. receipt points, on the mainline, at Commission’s staff will conduct the delivery points and at storage fields. 18 Request Additional Information (if conference and members of the CFR 284.13(d)(1). This regulation does necessary): March 2005. Commission may attend it. In not address storage activity that is not Issue Scoping Document 2: March preparation for the technical conference, subject to daily nomination and the Commission invites all interested 2005. scheduling, such as no-notice storage parties to submit written comments, Notice of application is ready for and transportation services. addressing the subject and questions environmental analysis: March 2005. Accordingly, pipelines have reported discussed below, on or before storage activities in different ways. Notice of the availability of the draft September 10, 2004.1 EA: September 2005. The interstate pipeline companies Background that executed the Agreements in Docket Initiate 10(j) Process: November 2005. No. IN04–2–000 have indicated that Every Thursday at 10:30 a.m. (e.s.t.), Notice of the availability of the final they are, or soon will be, posting weekly the United States Department of EA: March 2006. net aggregate storage inventory Energy’s Energy Information information. Other interstate natural gas Ready for Commission’s decision on Administration (EIA) releases a report of pipelines post storage inventory the application: June 2006. natural gas storage inventory levels for information on a daily basis, but may the United States, including for Eastern, Magalie R. Salas, post injections and withdrawals Western and Producing regions. The attributable to no-notice contractual Secretary. EIA compiles this report based on [FR Doc. E4–1732 Filed 8–5–04; 8:45 am] service on a weekly basis. Alternatively, information provided to it by a sampling storage activities attributable to no- BILLING CODE 6717–01–P of storage owners and operators, usually notice contractual service may be partially posted, depending on whether 1 The Commission issued an order today, in Docket No. IN04–2–000, approving three customers make nominations at the Stipulation and Consent Agreements (Agreements). pipeline’s storage points for this service. These Agreements state that the two interstate Inconsistent posting of storage natural gas pipeline companies and one local activities and inventories hinders efforts distribution company that signed the Agreements communicated their respective non-public storage to compare and make sense of this inventory information to customers or industry information, leading to less efficient participants. market outcomes. Current posting
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practices impair the value of this B. What costs and inefficiencies does regulations, or under other statutory or information as a useful tool to the industry (or any parts of it) regulatory authority, to require understand and anticipate demand and experience because of the current intrastate pipeline companies or LDCs other relevant industry trends. For inconsistency of storage inventory to post storage inventory information? example, traders who seek to determine reporting? D. What contribution to market optimal hedging strategies during peak C. Are participants in physical and transparency and efficiency would periods or pipeline customers who seek financial commodity markets concerned posting daily actual injection or to anticipate whether nominations to with price volatility following the withdrawal activity on a day-after basis secondary points will likely be honored release of the EIA’s weekly storage have for natural gas markets and for would benefit from more consistent and report? Would improved posting of customers of such intrastate pipeline timely storage inventory information. storage information be likely to reduce companies and LDCs? In addition, although section price volatility? E. What costs would such intrastate 284.13(d)(1) mandates reporting of D. How important is posted storage pipeline companies and LDCs expect to scheduled volumes, actual volumes can inventory information to buying and incur to post standardized, daily actual be a superior indicator of inventory selling gas and executing financial injection or withdrawal volumes on a activity. Actual volumes can deviate transactions? day-after basis? What concerns, if any, significantly from scheduled volumes, E. How do pipeline customers use do intrastate pipeline companies and particularly during periods of high posted storage information to make LDCs have regarding the feasibility from demand. decisions regarding nominations, the a technical perspective of such posting? Electronic metering permits natural purchase of storage capacity, the F. How should intrastate pipeline gas pipeline companies to rapidly post purchase of gas, and other commodity companies and LDCs address the net aggregate storage information on a and operational decisions? posting of inaccurate information and daily basis. Actual, daily posting of day- F. How important is the timeliness of information that needs to be before injection or withdrawal activity posting storage inventory information? subsequently adjusted? would speed communication of storage Specifically, to what extent would daily Public Comment Information data to the public and provide nearer- reporting benefit the industry relative to in-time information than is provided in the current daily and weekly posting of As noted above, in preparation for the the EIA’s weekly report. Increased storage-related information by pipelines technical conference, the Commission transparency promotes efficiency and and the EIA? invites interested persons to submit could deter abuses associated with non- G. In what ways and to what extent written comments on the matters raised public storage inventory information. would posting of actual injection or in this notice, including any related LDCs and intrastate pipelines that withdrawal volumes be superior to matters or alternative proposals that provide service pursuant to subpart C of posting scheduled injection or commenters may wish to discuss. All part 284 of the Commission’s withdrawal volumes? written comments should be submitted regulations often own and operate H. Could posting be fully consistent on or before September 10, 2004. We are substantial storage capacity. Many of with the data that reporting pipelines hereby establishing a proceeding, these entities do not post storage provide the EIA on a weekly basis? Docket No. AD04–10–000, to provide an inventory information. Posting such What could be the cause for any opportunity for all interested persons to information would contribute to the differences and how significant would submit comments, and all future actions goals of market transparency and abuse they be? with respect to the technical conference deterrence. However, posting of uniform I. What costs would pipelines expect will also be taken under this docket storage inventory information could to incur to post standardized, daily number. affect the often differing obligations and actual injection or withdrawal volumes All comments should include an business purposes of these entities on a day-after basis? What concerns, if executive summary that does not exceed relative to interstate pipeline any, do pipelines have regarding the two pages. Comments should not exceed companies. Further, the Commission’s feasibility from a technical perspective 15 pages. In addition, if answering a jurisdiction over these entities is more of accurate storage inventory posting? specific question, please identify the limited than it is over interstate pipeline J. How should pipeline companies question. To conserve time and avoid companies. The technical conference address the posting of inaccurate unnecessary expense, persons with will seek to explore the feasibility and information and information that needs common interests or views are usefulness of requiring LDCs and to be subsequently adjusted? encouraged to submit joint comments. Comments related to this proceeding intrastate pipelines that provide service II. Questions for Intrastate Pipeline pursuant to subpart C of part 284 of the may be filed in paper format or Companies and LDCs That Provide electronically. However, the Commission’s regulations to post Service Pursuant to Subpart C of Part storage inventory information. Commission strongly encourages 284 of the Commission’s Regulations, electronic filings. Those filing Questions for Comment Their Customers and Other Industry electronically do not need to make a The Commission seeks comments on Participants paper filing. the following questions: A. To what extent do such intrastate Documents filed electronically via the pipeline companies and LDCs post Internet can be prepared in a variety of I.Questions for Interstate Natural Gas storage inventory information? What formats, including MS Word, Portable Pipeline Companies, Their Customers storage information do they post? Document Format, Real Text Format, or and Other Industry Participants B. What concerns would such ASCII format, as listed on the A. How would standardized, daily intrastate pipeline companies and LDCs Commission’s Web site at http:// posting of actual storage injection or have with respect to posting their daily www.ferc.gov, under the e-Filing link. withdrawal activity contribute to market actual injection orwithdrawal activity The e-Filing link provides instructions transparency? What are the specific on a day-after basis? for how to Login and complete an efficiencies that would result from such C. Does the Commission have the electronic filing. First time users will posting? authority under Subpart C of 284 of its have to establish a user name and
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password. The Commission will send an By direction of the Commission. The new reference method for NO2 is automatic acknowledgement to the Linda Mitry, an automated method (analyzer) that sender’s e-mail address upon receipt of Acting Secretary. utilizes the measurement principle (gas comments. [FR Doc. E4–1735 Filed 8–5–04; 8:45 am] phase chemiluminescence) and For paper filings, the original and 14 BILLING CODE 6717–01–P calibration procedure specified in copies of such comments should be appendix F of 40 CFR part 50. The submitted to the Office of the Secretary, newly designated method is described as follows: Federal Energy Regulatory Commission, ENVIRONMENTAL PROTECTION 888 First Street, NE., Washington, DC AGENCY RFNA–0804–152, ‘‘SIR S.A. Model S–5012 20426. Chemiluminescent Nitrogen Oxides All comments will be placed in the [FRL–7798–9] Analyzer,’’ operated with a full scale range of 0–500 ppb, at any temperature in the range Commission’s public files and will be Office of Research and Development; of 20 °C to 30 °C, with the integration time available for inspection in the set to 1 minute, with the ‘‘initial zero’’ Commission’s Public Reference Room at Ambient Air Monitoring Reference and Equivalent Methods: Designation of disabled, and with a specified Teflon 888 First Street, NE., Washington, DC particulate filter installed in the sample inlet One New Reference Method for NO2 20426, during regular business hours. In filter holder. addition, all comments may be viewed, and Three New Equivalent Methods for PM2.5 An application on behalf of the SIR printed, or downloaded remotely via the S.A. Model S–5012 analyzer was Internet through FERC’s Homepage AGENCY: Environmental Protection received on January 12, 2004. The using the eLibrary link. Agency. method is available commercially from Conference Information ACTION: Notice of the designation of one Sistemas Instalaciones y Redes, S.A. new reference method and three new (SIR S.A.), Avenida de la Industria, 3, As noted above, upon evaluation of equivalent methods for monitoring 28760 Tres Cantos (Madrid), Spain. the comments requested herein, the ambient air quality. The three new equivalent methods for Commission will hold a technical PM2.5 are manual monitoring methods conference open to all interested SUMMARY: Notice is hereby given that that are based on particular, persons. The technical conference will the Environmental Protection Agency commercially available PM2.5 samplers. be held on September 28, 2004, at 9:30 (EPA) has designated, in accordance The methods are identified as Class II a.m. (e.s.t.) in the Commission Meeting with 40 CFR part 53, one new reference equivalent methods, which means that Room at the Federal Energy Regulatory method for measuring concentrations of they are based on an integrated, filtered Commission, 888 First Street, NE., NO2, and three new equivalent methods air sample with gravimetric analysis, Washington, DC. for measuring concentrations of PM2.5 in but with substantial deviation from the There is no charge to attend the ambient air. specifications for reference methods set conference and no requirement to FOR FURTHER INFORMATION CONTACT: forth in appendix L of 40 CFR part 50. register in advance for the conference. Elizabeth Hunike, Human Exposure and In this case, each of the three new The conference will be transcribed. Atmospheric Sciences Division (MD– equivalent method samplers is very Those interested in acquiring the D205–03), National Exposure Research similar to a corresponding sampler that transcript should contact Ace Reporters Laboratory, U.S. EPA, Research Triangle has been previously designated by the at (202) 347–3700 or (800) 336–6646. Park, North Carolina 27711. Phone: EPA as a reference method sampler for Transcripts will be placed in the public (919) 541–3737, e-mail: PM2.5 (or PM10). However, these newly record ten days after the Commission [email protected]. designated equivalent method samplers receives them. use a specific, very sharp cut cyclone SUPPLEMENTARY INFORMATION: In (VSCCTM) as the principle particle size Capitol Connection offers the accordance with regulations at 40 CFR separation device rather than the WINS opportunity for remote listening and part 53, the EPA examines various impactor used in the corresponding viewing of the conference. It is available methods for monitoring the reference method sampler. The newly for a fee, live over the Internet, by phone concentrations of those ambient air designated Class II equivalent methods or via satellite. Persons interested in pollutants for which the EPA has are identified as follows: receiving the broadcast or who need established National Ambient Air information on making arrangements Quality Standards (NAAQSs), as set EQPM–0804–153, ‘‘Thermo Electron should contact David Reininger or Julia forth in 40 CFR part 50. Monitoring Corporation Model RAAS2.5–100 FEM’’ Morelli at Capitol Connection at (703) methods that are determined to meet PM2.5 Ambient Air Sampler, configured with a BGI VSCC’’ Very Sharp Cut Cyclone 993–3100 as soon as possible or visit the specific requirements for adequacy are Capitol Connection Web site at http:// particle size separator and operated with designated as either reference methods software version 06.0B.00 configured for www.capitolconnection.org and click on or equivalent methods (as applicable), ‘‘Single 2.5’’ operation, for 24-hour ‘‘FERC.’’ thereby permitting their use under 40 continuous sample periods at a flow rate of Interested parties are urged to watch CFR part 58 by States and other agencies 16.67 liters/minute, in accordance with the for further notices providing more for determining attainment of the Model RAAS2.5–100 FEM Operator’s Manual information on the conference. You may NAAQSs. The EPA hereby announces and VSCC’’ supplemental manual, and in register online at http://www.ferc.gov/ the designation of one new reference accordance with the requirements and docs-filing/esubscriptions.asp to be method for measuring concentrations of sample collection filters specified in 40 CFR part 50, appendix L. notified via email of new issuances and NO2 in ambient air and three new filings related to this docket. For equivalent methods for measuring EQPM–0804–154 ‘‘Thermo Electron Corporation Model RAAS2.5–200 FEM’’ additional information please contact concentrations of particulate matter in PM2.5 Ambient Air Sampler, configured with John Kroeger at (202) 502–8177 or by e- ambient air. These designations are a BGI VSCC’’ Very Sharp Cut Cyclone mail at [email protected], or made under the provisions of 40 CFR particle size separator and operated with Thomas Pinkston at (202) 502–6335 or part 53, as amended on July 18, 1997 (62 software version 06.0B.00, for 24-hour by e-mail at [email protected]. FR 38764). continuous sample periods at a flow rate of
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TM 16.67 liters/minute, in accordance with the of the ‘‘Quality Assurance Handbook for method, VSCC /PM2.5 equivalent Model RAAS2.5–200 FEM Operator’s Manual Air Pollution Measurement Systems, method, or PM10 reference method) so and VSCCTM supplemental manual, and in Volume II: Part 1,’’ EPA/454/R–98/004, that the monitoring method is correctly accordance with the requirements and and with the Quality Assurance identified and the correct method code sample collection filters specified in 40 CFR part 50, appendix L. Guidance Document 2.12 (available at is used when reporting monitoring data http://www.epa.gov/ttn/amtic/ obtained with the sampler. EQPM–0804–155 ‘‘Thermo Electron Part 53 requires that sellers of Corporation Model RAAS2.5–300 FEM’’ pmqainf.html). Vendor modifications of a designated reference or equivalent designated reference or equivalent PM2.5 Sequential Ambient Air Sampler, configured with a BGI VSCCTM Very Sharp method used for purposes of part 58 are method analyzers or samplers comply Cut Cyclone particle size separator and permitted only with prior approval of with certain conditions. These operated with software version 06.0B.00 the EPA, as provided in part 53. conditions are specified in 40 CFR 53.9 configured for ‘‘Multi 2.5’’ operation, for 24- Provisions concerning modification of and are summarized below: hour continuous sample periods at a flow such methods by users are specified (a) A copy of the approved operation rate of 16.67 liters/minute, in accordance under section 2.8 of appendix C to 40 or instruction manual must accompany with the Model RAAS2.5–300 FEM CFR part 58 (Modifications of Methods the sampler or analyzer when it is TM Operator’s Manual and VSCC by Users). delivered to the ultimate purchaser. supplemental manual, and in accordance In general, a reference or equivalent (b) The sampler or analyzer must not with the requirements and sample collection method designation applies to any generate any unreasonable hazard to filters specified in 40 CFR part 50, appendix operators or to the environment. L. sampler or analyzer which is identical to the sampler or analyzer described in (c) The sampler or analyzer must An application for equivalent method the application for designation. In some function within the limits of the determinations for these methods was cases, similar samplers or analyzers applicable performance specifications received by the EPA on March 24, 2004. manufactured prior to the designation given in 40 CFR parts 50 and 53 for at The samplers are available may be upgraded or converted (e.g., by least one year after delivery when commercially from Thermo Electron minor modification or by substitution of maintained and operated in accordance Corporation, 27 Forge Parkway, the approved operation or instruction with the operation or instruction Franklin, Massachusetts 02038. manual) so as to be identical to the manual. A test analyzer or test samplers designated method and thus achieve (d) Any sampler or analyzer offered representative of each of these methods designated status. The manufacturer for sale as part of a reference or have been tested by the corresponding should be consulted to determine the equivalent method must bear a label or applicants in accordance with the feasibility of such changes. sticker indicating that it has been applicable test procedures specified in In the particular case of the three new designated by the EPA as part of a 40 CFR part 53 (as amended on July 18, PM2.5 Class II equivalent methods, a reference or equivalent method in 1997). After reviewing the results of corresponding PM2.5 (or PM10) reference accordance with part 53 and showing its those tests and other information method sampler configuration may be designated method identification submitted by the applicants, the EPA converted to the equivalent method number. has determined, in accordance with part configuration by replacement of the (e) If such an analyzer has two or 53, that each of these methods should be WINS impactor (or the PM10 extender more selectable ranges, the label or designated as reference or equivalent tube for the PM10 version) with the BGI sticker must be placed in close methods, as indicated. The information VSCCTM device specified in the proximity to the range selector and submitted by the applicants will be kept equivalent method description. The indicate which range or ranges have on file, either at the EPA’s National VSCCTM device should be purchased been included in the reference or Exposure Research Laboratory, Research from the sampler manufacturer, who equivalent method designation. Triangle Park, North Carolina 27711 or will also furnish installation, (f) An applicant who offers samplers in an approved achieve storage facility, conversion, operation, and maintenance or analyzers for sale as part of a and will be available for inspection instructions for the VSCCTM as well as reference or equivalent method is (with advance notice) to the extent a new equivalent method identification required to maintain a list of ultimate consistent with 40 CFR part 2 (EPA’s label to be installed on the sampler. If purchasers of such samplers or regulations implementing the Freedom the conversion is to be permanent, the analyzers and to notify them within 30 of Information Act). original designated reference method days if a reference or equivalent method As a designated reference or label should be removed from the designation applicable to the method equivalent method, each of these sampler and replaced with the new has been canceled or if adjustment of methods is acceptable for use by states designated equivalent method label. In the sampler or analyzer is necessary and other air monitoring agencies under a case where a converted sampler may under 40 CFR 53.11(b) to avoid a the requirements of 40 CFR part 58, need to be restored later to its original cancellation. Ambient Air Quality Surveillance. For reference method configuration (such as (g) An applicant who modifies a such purposes, the method must be for a specific application requiring a sampler or analyzer previously used in strict accordance with the reference method) by re-installation of designated as part of a reference or operation or instruction manual the WINS impactor (or PM10 extender equivalent method is not permitted to associated with the method and subject tube), the new equivalent method label sell the sampler or analyzer (as to any specifications and limitations may be installed on the sampler without modified) as part of a reference or (e.g., measurement range, configuration, removing the original reference method equivalent method (although it may be or sample period) specified in the label, such that the sampler bears both sold without such representation), nor applicable designation method labels. (Alternatively, the new label may to attach a designation label or sticker description (see the identification of the describe multiple configurations.) In to the sampler or analyzer (as modified) methods above). Use of the method this situation, the sampler shall be under the provisions described above, should also be in general accordance clearly and conspicuously marked by until the applicant has received notice with the guidance and the operator to indicate its current under 40 CFR 53.14(c) that the original recommendations of applicable sections configuration (i.e. WINS/PM2.5 reference designation or a new designation
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applies to the method as modified, or Canyons Wilderness Resource Ranger District, Fall River County, SD, until the applicant has applied for and Management Plan, Implementation, Comment Period Ends: September 20, received notice under 40 CFR 53.8(b) of Mesa County, CO, Wait Period Ends: 2004, Contact: Michael L. Erk (605) a new reference or equivalent method September 7, 2004, Contact: Jane Ross 745–4107. (970) 244–3027. determination for the sampler or EIS No. 040357, DRAFT EIS, FRC, MA, analyzer as modified. EIS No. 040351, FINAL EIS, COE, CA, Weaver’s Cove Liquefied Natural Gas (h) An applicant who offers PM2.5 Port J. Long Beach Pier J South samplers for sale as part of a reference Terminal Expansion Project, (LNG) Project, Construct and Operate or equivalent method is required to Additional Cargo Requirements Onshore Liquefied Natural Gas Import maintain the manufacturing facility in Associated with Growing Export and and Interstate Natural Gas which the sampler is manufactured as Import Volumes, Port Master Plan Transmission Facilities, Falls River, an ISO 9001-certified facility. (PMP) Amendment, COE Section 404, Bristol County, MA, Comment Period (i) An applicant who offers PM2.5 401 and 10 Permits, City of Long Ends: September 20, 2004, Contact: samplers for sale as part of a reference Beach, CA, Wait Period Ends: Roberta Coulter (202) 502–8584. or equivalent method is required to September 07, 2004, Contact: Aaron EIS No. 040358, DRAFT EIS, NAS, HI, submit annually a properly completed O. Allen (805) 585–2148. Outrigger Telescopes Project, EIS No. 040352, REVISED DRAFT EIS, Product Manufacturing Checklist, as Proposed for the W.M. Keck AFS, CA, Cottonwood Fire Vegetation specified in part 53. Observatory Site within the Mauna Management Project, Control Aside from occasional breakdowns or Kea Science Reserve, Funding, malfunctions, consistent or repeated Vegetation that is Competing with Construction, Installation and noncompliance with any of these Conifer Seedlings, Sierraville Ranger Operation, Island of Hawai’i, conditions should be reported to: District, Tahoe National Forest, Sierra Comment Period Ends: September 30, Director, Human Exposure and County, CA, Comment Period Ends: Atmospheric Sciences Division (MD– September 20, 2004, Contact: Teri 2004, Contact: Carl B. Pitcher (202) E205–01), National Exposure Research Bank (530) 994–3401. 358–0291. Laboratory, U.S. Environmental EIS No. 040353, DRAFT EIS, AFS, MO, EIS No. 040359, FINAL EIS, FHW, WI, Protection Agency, Research Triangle East Fredericktown Project, To Burlington Bypass State Trunk Park, North Carolina 27711. Restore Shortleaf Pine, Improve Forest Highway Project, Construction, from Designation of these new reference Health, Treat Affected Stands and WI–36, WI–11 and WI–83, Funding and equivalent methods is intended to Recover Valuable Timber Products, and COE Section 404 Permit, In the Mark Twain National Forest, Potosi/ assist the States in establishing and City of Burlington, Racine and Fredericktown Ranger District, operating their air quality surveillance Walworth Counties, WI, Wait Period systems under 40 CFR part 58. Bollinger, Madison, St. Francois and Ste. Genevieve Counties, MO, Ends: September 7, 2004, Contact: Questions concerning the commercial David Platz (608) 829–7509. availability or technical aspects of any Comment Period Ends: September 20, of these methods should be directed to 2004, Contact: Tom McGure (573) EIS No. 040360, FINAL EIS, FHW, AK, the appropriate applicant. 438–5427. Gravina Access Project, EIS No. 040354, FINAL EIS, USN, MS, Transportation Improvements Jewel F. Morris, Purchase of Land in Hancock County, between Revillagigedo Island and Acting Director, National Exposure Research Mississippi, for a Naval Special Gravina Island, Funding, Endangered Laboratory. Operations Forces Training Range, To Species Act 7, NPDES and US Army [FR Doc. 04–18028 Filed 8–5–04; 8:45 am] Improve Riverine and Jungle Training COE Section 404 Permits Issuance, BILLING CODE 6560–50–P Available, John C. Stennis Space Ketchikan Gateway Borough, AK, Center, Hancock County, MS, Wait Wait Period Ends: September 7, 2004, Period Ends: September 7, 2004, Contact: Mark Dalton (907) 644–2000. ENVIRONMENTAL PROTECTION Contact: Richard Davis (843) 820– This document is available on the AGENCY 5589. EIS No. 040355, FINAL EIS, BLM, CO, Internet at: http//www.gravina- [ER–FRL–6654–3] Silverton Outdoor Learning and access.com/. Environmental Impact Statements; Recreation Center, Authorization for EIS No. 040361, DRAFT SUPPLEMENT, Notice of Availability Long-Term Use of 1,300 acres for NOA, NC, FL, SC, GA South Atlantic Backcountry-type Skiing, Summer Shrimp Fishery Management Plan, Responsible Agency: Office of Federal Recreation and Educational Activities, Amendment 6, Propose to Amend the Activities, General Information (202) Amendment of the San Juan/San Bycatch Reduction Device (BRD) 5647167 or http://www.epa.gov/ Miguel Resource Management Plan, Testing Protocol System, South compliance/nepa/. Weekly receipt of San Juan County, CO, Wait Period Atlantic Region, Comment Period Environmental Impact Statements filed Ends: September 7, 2004, Contact: Ends: September 20, 2004, Contact: July 26, 2004, through July 30, 2004, Richard Speegle (970) 375–3310. This Roy E. Crabtree (727) 570–5301. pursuant to 40 CFR 1506.9. document is available on the Internet EIS No. 040348, DRAFT EIS, NPS, OR, at: http://www.co.blm.gov/sjra/ Dated: August 3, 2004. Crater Lake National Park General index.html/. B. Katherine Biggs, Management Plans, Implementation, EIS No. 040356, DRAFT EIS, AFS, SD, Associate Director, Office of Federal Klamath, Jackson and Douglas Southeast Geographic Area Rangeland Activities. Counties, OR, Comment Period Ends: Management on National Forest [FR Doc. 04–18030 Filed 8–5–04; 8:45 am] October 5, 2004, Contact: Terry System Lands of the Buffalo Gap BILLING CODE 6560–50–P Urbanowski (303) 969–2277. National Grassland, To Implement EIS No. 040349, FINAL EIS, BLM, CO, Best Management Grazing Practice, Colorado Canyons National Buffalo Gap National Grassland, Falls Conservation Area and Black Ridge River Ranger District, Falls River
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ENVIRONMENTAL PROTECTION requested that more information Funding, Right-of-Way and US Army AGENCY regarding the mitigation proposals and COE Section 404 Permits, Summit commitments be provided. County, CO. [ER–FRL–6654–4] ERP No. DS–FHW–G40169–AR Summary: EPA continued to express Environmental Impact Statements and Rating LO, Springdale Northern Bypass concerns due to wetland impacts. Regulations; Availability of EPA Projects, U.S. Highway 412 ERP No. F–JUS–G81011–TX Rio Comments Construction, Additional Information Grande Operation Project, Reduction or Designation of a Preferred Alternative, Elimination of Illegal Drug Activities Availability of EPA comments Funding and NPDES Permit Issuance, and Illegal Immigrants, Starr, Hidalgo prepared pursuant to the Environmental Benton and Washington Counties, AR. and Cameron Counties, TX. Review Process (ERP), under Section Summary: EPA had no objection to Summary: No formal comment letter 309 of the Clean Air Act and Section the selection of the preferred alternative. was sent to the preparing agency. 102(2)(c) of the National Environmental Final EISs ERP No. F–USN–K11035–CA Policy Act as amended. Requests for Military Family Housing (MFH) in the copies of EPA comments can be directed ERP No. F–AFS–J65400–UT East San Diego Region, Construction of 1,600 to the Office of Federal Activities at Fork Fire Salvage Project Timber MFH Units, Three MFH Sites are (202) 564–7167. An explanation of the Harvesting of Dead and Dying Trees, Located in the Marine Corps Air Station ratings assigned to draft environmental Implementation, Wasatch-Cache (MCAS), Miramar in the City of San impact statements (EISs) was published National Forest, Evanston Ranger Diego, San Diego County, CA. in the Federal Register dated April 2, District, Summit County, UT. Summary: No formal comment letter 2004 (69 FR 17403). Summary: EPA continues to express was sent to the preparing agency. concern relating to soil erosion, Draft EISs ERP No. FS–FHW–F40118–MI US– disturbance, and compaction; runoff 31 Freeway Connection to I–94, Napier ERP No. D–BIA–K65270–NV Rating and potential degradation of water Avenue to I–94 Transportation LO, Weber Dam Repair and quality and habitats in streams and Improvements, Berrien County, MI. Modification Project, Propose to Repair affected reservoirs; sedimentation of Summary: Since EPA’s previous and Modify Dam, Walker River Paiute streams and water-storage reservoirs; concerns have been resolved, EPA has Tribe, Right-of-Way Grant and U.S. and fish and wildlife impacts to no objection to the proposed action. Army COE Section 404 Permit, Walker sensitive species. River Valley, Lyon and Mineral ERP No. F–DOE–E09014–KY Dated: August 2, 2004. Counties, NV. Paducah, Kentucky, Site Depleted B. Katherine Biggs, Summary: EPA expressed a lack of Uranium Hexafluoride Conversion Associate Director, Office of Federal objections but recommended that the Facility, Construction and Operation, Activities. Final EIS clarify Clean Water Act McCraken County, KY. [FR Doc. 04–18031 Filed 8–5–04; 8:45 am] requirements on placing dredged or fill Summary: EPA continues to express BILLING CODE 6560–50–P material in waters of the United States. concern since radiological monitoring, ERP No. D–FTA–C40163–NY Rating appropriate storage and disposition of EC2, Fulton Street Transit Center, radioactive waste will be necessary ENVIRONMENTAL PROTECTION Construction and Operation, To during the operation phase. AGENCY Improve Access to and from Lower ERP No. F–FHW–E40794–NC [OPP–2004–0173; FRL–7643–3] Manhattan to Serve 12 NYCT Subway Second Bridge to Oak Island Lines, Metropolitan Transportation Transportation Improvement Project, FIFRA Scientific Advisory Panel; Authority (MIA), MTA New York City SR–1104 (Beach Drive) to NC–211, Notice of Cancellation of Public Transit (NYCT), New York, NY. Funding, U.S. Army COE Section 404 Meeting Summary: EPA expressed and US Coast Guard Bridge Permits environmental concerns with the Issuance, Brunswick County, NC. AGENCY: Environmental Protection impacts to air quality. EPA indicated Summary: EPA continues to be Agency (EPA). that additional analysis of both the concerned due to a change in the ACTION: Notice. direct and cumulative impacts to air purpose and need statement and SUMMARY: The July 29 and 30, 2004, quality (NOX, NO2, and ozone) will be because the commitments for offsite necessary and asked that additional compensatory wetlands and habitat Federal Insecticide, Fungicide, and information regarding the mitigation mitigation are uncertain. Rodenticide Act Scientific Advisory proposals and commitments be ERP No. F–FHW–H40176–00 US 81 Panel (FIFRA SAP) meeting to consider provided. Highway, Yankton Bridge Replacement, and review Dimethoate issues related to ERP No. D–FTA–C54009–00 Rating Missouri River Crossing between the the hazard and dose-response EC2, Permanent World Trade Center City of Yankton, Yankton County, South assessment was canceled. Any (WTC) PATH Terminal Project, Dakota and Cedar County, Nebraska, information related to the rescheduling Reconstruction of a Permanent Terminal Funding and Permit Issuance, SD and of this meeting will be announced in a at the WTC Site in Lower Manhattan, NE. future Federal Register notice. For Port Authority Trans-Hudson (PATH), Summary: No formal comment letter further information, please notify the Several Permits Required for Approval, was sent to the preparing agency. Designated Federal Official (DFO) listed The Port Authority of New York and ERP No. F–FHW–J40155–CO CO–9 under FOR FURTHER INFORMATION New Jersey, NY and NJ. (Frisco to Breckenridge) Highway CONTACT or see the Federal Register of Summary: EPA expressed Improvements Project to Improve a 14.5- June 21, 2004 (69 FR 34348) (FRL– environmental concerns with the kilometer (9-mile) stretch of CO–9 7365–1). impacts to air quality. EPA also between the Towns of Frisco and FOR FURTHER INFORMATION CONTACT: indicated that additional analysis of the Breckenridge to Decrease Travel Time, Myrta Christian, DFO, Office of Science cumulative impacts to air quality (NOX Improve Safety, Support Transportation Coordination and Policy (7201M), and VOC) will be necessary and needs of Local and Regional Travelers, Environmental Protection Agency, 1200
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Pennsylvania Ave., NW., Washington, disapproved Colorado’s decisions not to examine the administrative record may DC 20460; telephone number: (202) list six waterbodies and associated also be made by contacting Kathryn 564–8450; fax number: (202) 564–8382; pollutants and one pollutant for a Hernandez. e-mail address:[email protected]. waterbody already listed by the State. EPA identified these additional water FOR FURTHER INFORMATION CONTACT: List of Subjects bodies and pollutants along with Kathryn Hernandez at (303) 312–6101 or Environmental protection, Pesticides priority rankings for inclusion on the Bruce Zander (TMDL Coordinator) at and pests. year 2004 section 303(d) list. (303) 312–6846 or [email protected]. Dated: August 3, 2004. EPA is providing the public the opportunity to review its decisions to Joseph Merenda, SUPPLEMENTARY INFORMATION: Section add waters and pollutants (shown in 303(d) of the Clean Water Act (CWA) Director, Office of Science Coordination and Table 1) to Colorado’s 2004 section Policy. requires that each state identify those 303(d) list, as required by EPA’s Public [FR Doc. 04–18022 Filed 8–5–04; 8:45 am] waters for which existing technology- Participation regulations (40 CFR part based pollution controls are not BILLING CODE 6560–50–S 25). EPA will consider public comments stringent enough to attain or maintain in reaching its final decisions on the state water quality standards. For those ENVIRONMENTAL PROTECTION additional water bodies and pollutants waters, states are required to establish AGENCY identified for inclusion on Colorado’s TMDLs according to a priority ranking. list. [FRL–7799–1] EPA’s Water Quality Planning and DATES: Comments must be submitted to Management regulations include Clean Water Act Section 303(d): EPA on or before September 20, 2004. requirements related to the Availability of EPA’s Decision To Add ADDRESSES: Comments on the proposed implementation of section 303(d) of the Waters and Pollutants to Colorado’s decisions should be sent to Kathryn CWA (40 CFR 130.7). The regulations 2004 List Hernandez, TMDL Team (8EPR–EP), require states to identify water quality U.S. Environmental Protection Agency limited waters still requiring TMDLs AGENCY: Environmental Protection Region VIII, 999 18th Street, Suite 300, every two years. The lists of waters still Agency (EPA). Denver, CO 80202–2466, telephone needing TMDLs must also include ACTION: Notice of availability. (303) 312–6101, facsimile (303) 312– priority rankings, identify the pollutants causing the impairment, and must SUMMARY: Region VIII of the EPA is 6339, e-mail identify the waters targeted for TMDL hereby providing notice, and requesting [email protected]. Oral public comment on EPA’s decision to comments will not be considered. development during the next two years identify additional water quality limited Copies of EPA’s decision concerning (40 CFR 130.7). segments and associated pollutants in Colorado’s list that explain the rationale Consistent with EPA’s regulations, Colorado to be listed pursuant to Clean for EPA’s decisions can be obtained at Colorado submitted to EPA its listing Water Act section 303(d)(2). Section EPA Region VIII’s Web site at http:// decisions under section 303(d)(2) on 303(d)(2) of the Clean Water Act www.epa.gov/region08/water/tmdl, or March 18, 2004. On July 26, 2004, EPA requires that states submit and EPA by writing or calling Ms. Hernandez at approved Colorado’s listing of 117 approve or disapprove lists of waters for the above address. The full waters and associated priority rankings. which existing technology-based administrative record containing EPA disapproved Colorado’s decisions pollution controls are not stringent background technical information is on not to list six water quality limited enough to attain or maintain state water file and may be inspected at the U.S. segments and associated pollutants as quality standards and for which total EPA, Region VIII Technical Library well as one pollutant for a segment maximum daily loads (TMDLs) must be found in the Environmental Information already on the State’s list. EPA prepared. Service Center (EISC). The Library and identified these additional waters and On July 26, 2004, EPA partially Service Center are located on the ground pollutants along with priority rankings approved and partially disapproved floor at Denver Place, 999 18th Street, for inclusion on the 2004 section 303(d) Colorado’s section 303(d) list submittal Denver Colorado. The Library is open to list. EPA solicits public comment on its for the 2004 listing cycle. Specifically, the public from 10 a.m. to 4 p.m. The identification of the additional waters, EPA approved Colorado’s listing of 117 Library can be contacted by calling the associated pollutants and priority waters, associated pollutants, and Service Center at (303) 312–6312 or rankings, for inclusion on Colorado’s associated priority rankings. EPA (800) 227–8917. Arrangements to 2004 section 303(d) list.
TABLE 1.—LIST OF WATERS AND POLLUTANTS FOR ADDITION TO COLORADO’S 2004 CWA SECTION 303(D) LIST
Priority Waterbody description Pollutant(s) Water quality standard not met ranking
Red Mountain Creek (from East Fork of Red Mountain Creek to Copper, lead, zinc ...... Aquatic life use ...... Low. Uncompahgre River) Segment COGUUN06b. West Fork of Clear Creek (from Woods Creek to Clear Creek Zinc ...... Zinc numeric standard (acute) Low. mainstem) Segment COSPCL05. for aquatic life use. Middle South Platte River (from Big Dry Creek to Highway 60) Dissolved oxygen...... Dissolved oxygen numeric Low. Segment COSPMS01. standard for aquatic life use. Blue River Tributaries (Camp Creek, Jones Gulch) Segment pH ...... pH numeric standard for aquat- Low. COUCBL06. ic life use. Blue River Tributaries (Keystone Gulch, Mozart Creek) Segment pH ...... pH numeric standard for aquat- Low. COUCBL08. ic life use. Bear Creek (from Evergreen Lake to Harriman Ditch) Segment Temperature ...... Aquatic life use ...... Low. COSPBE01.
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TABLE 1.—LIST OF WATERS AND POLLUTANTS FOR ADDITION TO COLORADO’S 2004 CWA SECTION 303(D) LIST— Continued
Priority Waterbody description Pollutant(s) Water quality standard not met ranking
Dolores River (from below McPhee Reservoir to Bradfield Ranch Unknown ...... Aquatic life use ...... Low. Bridge) Segment COSJDO04.
Authority: Clean Water Act, 33 U.S.C. 1251 advise the contact listed below as soon advantage of consumer confusion over et seq. as possible. different types of telecommunications Dated: July 30, 2004. ADDRESSES: Direct all Paperwork services. This Third Order on Max H. Dodson, Reduction Act (PRA) comments to Les Reconsideration also contains a Further Assistant Regional Administrator, Office of Smith, Federal Communications Notice of Proposed Rulemaking, in Ecosystems Protection and Remediation. Commission, Room 1–A804, 445 12th which we seek comment on rule [FR Doc. 04–18027 Filed 8–5–04; 8:45 am] Street, SW., Washington, DC 20554 or modification with respect to third party verifications. On July 16, 2004, the BILLING CODE 6560–50–P via the Internet to [email protected]. FOR FURTHER INFORMATION CONTACT: For Commission released the First Order on additional information or copies of the Reconsideration and Fourth Order on information collection(s), contact Les Reconsideration, CC Docket Nos. 94– FEDERAL COMMUNICATIONS Smith at (202) 418–0217 or via the 129 and 00–257, FCC 04–153 COMMISSION Internet at [email protected]. (Reconsideration Order), which the Commission modified rule SUPPLEMENTARY INFORMATION: Notice of Public Information 64.1120(e)(3)(iii). As noted, when OMB Control Number: 3060–0787. Collection(s) Being Submitted to OMB subscribers are switched between Title: Implementation of the for Review and Approval. carriers as a result of a negotiated sale Subscriber Carrier Selection Changes or transfer or the exiting carrier’s Provisions of the Telecommunications July 30, 2004. bankruptcy, we believe the acquiring Act of 1996, Policies and Rules SUMMARY: The Federal Communications carrier should generally be responsible Concerning Unauthorized Changes of Commission, as part of its continuing for carrier change charges associated Consumers’ Long Distance Carriers, CC effort to reduce paperwork burden with a negotiated sale or transfer. Docket No. 94–129. invites the general public and other However, while we maintain this Form Number: N/A. Federal agencies to take this general rule rather than adopting either Type of Review: Revision of a opportunity to comment on the SBC’s or Verizon’s proposed currently approved collection. following information collection(s), as modifications, we do adopt one minor Respondents: Individuals or required by the Paperwork Reduction modification to the rule for particular, household; Business or other for-profit. Act (PRA) of 1995, Pub. L. No. 104–13. limited circumstances. Specifically, entities; and State, local, or tribal An agency may not conduct or sponsor when an acquiring carrier acquires Government. a collection of information unless it customers by default—other than Number of Respondents: 35,036. through bankruptcy—and state law displays a currently valid control Estimated Time per Response: 1–10 would require the exiting carrier to pay number. No person shall be subject to hours. any penalty for failing to comply with Frequency of Response: these costs, we will require the exiting a collection of information subject to the Recordkeeping; On occasion and carrier to pay such costs to meet our Paperwork Reduction Act that does not biennial reporting requirements; Third streamlined slamming rules. The change display a valid control number. party disclosure. in the rule does not impose any new or Comments are requested concerning (a) Total Annual Burden: 146,794 hours. modified information collection Whether the proposed collection of Total Annual Cost: $51,187,500. requirements. The modification to rule information is necessary for the proper Privacy Impact Assessment: Yes. 47 CFR 64.1120(e)(3)(iii) does not affect performance of the functions of the Needs and Uses: On March 17, 2003, the existing annual hourly and cost Commission, including whether the the FCC released the Third Order on changes. information shall have practical utility; Reconsideration and Second Further OMB Control Number: 3060–0966. (b) the accuracy of the Commission’s Notice of Proposed Rulemaking, CC Title: Sections 80.385, 80.475, and burden estimate; (c) ways to enhance Docket No. 94–129, FCC 03–42 (Third 90.303, Automated Marine the quality, utility, and clarity of the Order on Reconsideration), in which the Telecommunications Service (AMTS). information collected; and (d) ways to Commission revised and clarified Form Number: N/A. Type of Review: Revision of a minimize the burden of the collection of certain rules to implement section 258 currently approved collection. information on the respondents, of the 1996 Act. On May 23, 2003, the including the use of automated Respondents: Businesses or other for- Commission also released an Order (CC profit entities, and Individuals or collection techniques or other forms of Docket No. 94–129, FCC 03–116) information technology. households. clarifying certain aspects of the Third Number of Respondents: 20. DATES: Written Paperwork Reduction Order on Reconsideration. The rules Estimated Time per Response: 0.50 Act (PRA) comments should be and requirements implementing section hours. submitted on or before September 7, 258 can be found primarily at 47 CFR Frequency of Response: On occasion 2004. If you anticipate that you will be part 64. The modified and revised rules reporting requirement; Third party submitting comments, but find it will strengthen the ability of our rules disclosure. difficult to do so within the period of to deter slamming, while protecting Total Annual Burden: 10 hours. time allowed by this notice, you should consumers from carriers that may take Total Annual Cost: N/A.
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Privacy Impact Assessment: Yes. station is added, the AMTS licensee Title: Foreign Branching and Needs and Uses: The reporting and/or must make a record of the station’s Investment By Insured State recordkeeping requirements are for both technical and administrative Nonmember Banks. AMTS and amateur radio operators (or information, and upon request, supply OMB Number: 3064–0125. ‘‘ham operators’’), who share AMTS such information to the FCC. The Frequency of Response: On occasion. spectrum. The Automated Maritime station must also send notification of Telecommunications System (AMTS) is the station’s location to the ARRL and Affected Public: All financial a specialized system of coast stations the ISI. In general, the notification institutions. providing integrated and interconnected process(es) functions without the FCC’s Annual Burden: Estimated annual marine voice and data communications, direct involvement, except as required number of respondents, 61; Estimated by 47 CFR 80.475, the AMTS station somewhat like a cellular phone system time per response, 2 hours–400 hours; licensee must maintain a record of the for tugs, barges, and other vessels on Total annual burden hours, 20,298 station’s technical and administrative these waterways. The amateur radio hours. operators (‘‘ham operators’’) use some of functions and also provide a copy to the the same frequencies (219–220 MHz) as FCC upon request. The records of Expiration Date of OMB Clearance: AMTS stations on a secondary, non- amateur radio operators include October 31, 2004. information about individuals or interference basis for digital message SUPPLEMENTARY INFORMATION: The households, and the use(s) and forwarding systems. The reporting Federal Deposit Insurance (FDI) Act disclosure of this information is requirements, as established in 47 CFR requires nonmember banks to obtain governed by the requirements of a 80.383 and 97.303, require amateur FDIC consent to establish or operate a radio licensees (‘‘ham operators’’), who system of records, FCC/WTB–1, ‘‘Wireless Services Licensing Records.’’ branch in a foreign country, or to participate in point-to-point fixed acquire and hold, directly or indirectly, digital message forwarding systems, However, the FCC makes all information stock or other evidences of ownership in such as intercity packet backbone about amateur radio operators publicly any foreign bank or other entity. The networks, and who operate within 398 available on its Universal Licensing miles (640 kms) of an AMTS coast System (ULS) Web page, except that the FDI Act also authorizes the FDIC to station, to notify AMTS station licensees amateur operator’s telephone number(s) impose conditions for such consent and in writing. The amateur radio licensees and his/her e-mail address(es) are to issue regulations related thereto. The must give: (1) Their station’s specific redacted. The public is entitled to information collection activities geographic location for the download this public information, attributable to 12 CFR part 347 and part transmission, and (2) their station’s although ULS does not contain the 303, subpart J are a direct consequence technical characteristics, including locations of the amateur radio of these statutory requirements. transmitter type, operating frequencies, transmitters, information which amateur OMB Reviewer: Mark D. Menchik, emissions, transmitter output power, radio operators (‘‘ham operators’’) have Office of Management and Budget, and antenna arrangement. This to provide to ARRL and to the AMTS Office of Information and Regulatory notification must be submitted at least licensees. Affairs, Washington, DC 20503. 30 days prior to the initiation of the Federal Communications Commission. FDIC Contact: Leneta G. Gregorie, amateur radio licensee’s operations in Marlene H. Dortch, the 219–220 MHz. In addition, under 47 (202) 898–3719, Legal Division, Room Secretary. MB–3082, Federal Deposit Insurance CFR 80.475, applicants and licensees of [FR Doc. 04–18048 Filed 8–5–04; 8:45 am] Automated Maritime Corporation, 550 17th Street, NW., BILLING CODE 6712–01–P Telecommunications System (AMTS) Washington, DC 20429. coast stations must notify two Comments: Comments on these organizations—the American Radio collections of information are welcome Relay League (ARRL) and the Interactive FEDERAL DEPOSIT INSURANCE and should be submitted on or before Systems, Inc. (ISI), of the location of the CORPORATION September 7, 2004 to both the OMB AMTS fill-in stations. ARRL and reviewer and the FDIC contact listed Interactive Systems, Inc. maintain Agency Information Collection above. databases of AMTS locations for the Activities: Submission for OMB benefit of amateur radio operators. Review; Comment Request ADDRESSES: Information about this These notification requirements insure submission, including copies of the that any amateur radio operator seeking AGENCY: Federal Deposit Insurance proposed collection of information, may to commence operations within close Corporation (FDIC). be obtained by calling or writing the proximity of an AMTS station will not ACTION: Notice of information collection FDIC contact listed above. cause any interference to an AMTS to be submitted to OMB for review and Dated in Washington, DC, this 2nd day of licensee. Amateur radio licensees also approval under the Paperwork August, 2004. must give the ARRL written notification Reduction Act of 1995. Federal Deposit Insurance Corporation. of the geographic location of a station at least 30 days prior to transmitting in the SUMMARY: In accordance with the Robert E. Feldman, 219–220 MHz band. As a ‘‘station in a Paperwork Reduction Act of 1995 (44 Executive Secretary. secondary service,’’ amateur stations U.S.C. chapter 35), the FDIC hereby [FR Doc. 04–17952 Filed 8–5–04; 8:45 am] must accept any harmful interference gives notice that it has submitted to the BILLING CODE 6714–01–P from AMTS operations. Furthermore, Office of Management and Budget under 47 CFR 80.475, AMTS licensees (OMB) a request for OMB review and are permitted to operate fill-in stations. approval of the following information While no prior FCC authorization is collection systems described below. required to construct and operate an Type of Review: Renewal of a AMTS fill-in station, at the time the currently approved collection.
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DEPARTMENT OF HEALTH AND Consistent with these objectives, Eligibility for grant awards and other HUMAN SERVICES grants will be made in three (3) priority requirements: Eligibility for grant areas: awards is limited to Community Aging Administration on Aging • Existing Practices. The grantee will Service Providers (CASPs) and Area [Program Announcement No. AoA–04–08] develop detailed model replication Agencies on Aging (AAAs). A CASP is materials for an existing successful defined as a not-for-profit community- Fiscal Year 2004 Program project or approach that is consistent based organization that currently Announcement; Availability of Funds with the purposes of this program. receives funding under the Older and Notice Regarding Applications • Program Enhancements. The Americans Act and has a history and grantee will propose to build-upon and mission focused on the provision of AGENCY: Administration on Aging, HHS. expand their existing model or approach home and community-based services, ACTION: Announcement of availability of in a way that broadens the scope and/ primarily for older people. Area funds and request for applications for or effectiveness of the program and/or Agencies on Aging are agencies the Aging Services Network Integrated gather data to assess the effectiveness of officially designated as such by a State Care Management Grants Program. the program. Unit on Aging under the provisions of • the Older Americans Act. Faith-based SUMMARY: The Administration on Aging New Models or Approaches. The organizations and Tribal organizations announces that it will hold a grantee will propose to design and/or that fit the definition of a CASP or an competition under this program implement a new project consistent AAA are encouraged to apply. An AAA announcement for grant awards for up with the purposes of this program. can only apply as an AAA. Grantees are to twenty (20) projects varying in size The awards will be cooperative required to provide at least 25 percent up to $50,000 each. The approximate agreements in which the grantee and the of the total program costs from non- amount of federal funds available for Administration on Aging work these projects is $600,000 and the collaboratively to clarify the issues to be federal cash or in-kind resources in project period will be one year. addressed by the project. order to be considered for the award. No Legislative authority: The Older Awardee activities for this initiative organization or agency may apply for Americans Act, Public Law 106–501. are as follows: more than one grant under this a. Working collaboratively with AoA competition. (Catalog of Federal Domestic Assistance Executive Order 12372 is not 93.048, Title IV and Title II, Discretionary to refine and implement their project plan. applicable to these grant applications. Projects). Screening criteria: All applications b. Working collaboratively with AoA, Purpose of grant awards: The purpose will be screened to assure a level managed care organizations and other of this grants program is to support the playing field for all applicants. grantees under this initiative to refine design, implementation, and Applications that fail to meet the concepts related to Aging Services dissemination of innovative models and screening criteria described below will Network opportunities concerning approaches that demonstrate how not be reviewed and will receive no managed care. This collaboration will Community Aging Services Providers further consideration: (CASPs) and Area Agencies on Aging take the form of conference calls, web- 1. Postmark Requirements— (AAAs) can either build capacity to based exchanges, on-site discussions, Applications must be postmarked by adopt capitated financing approaches and national meetings. midnight of the deadline date indicated or, partner with Medicare and/or c. Working collaboratively with AoA below, or hand-delivered by 5:30 p.m. Medicaid managed care organizations, to develop and deliver dissemination Eastern Time on that date, or submitted to improve the delivery of services that and replication documents and electronically by midnight on that date. maximize the health and quality of life presentations that are the critical 2. Organizational Eligibility— for older persons. The projects funded products of these grants for Community Eligibility for grant awards is limited to under this program should enhance the Aging Services Provider organizations, Community Aging Service Providers integration of health and social services Area Agencies on Aging and/or (CASPs) and Area Agencies on Aging and generate new knowledge and Medicare and/or Medicaid managed (AAAs). information that will help position the care organizations. 3. Responsiveness to Priority Area Aging Services Network in the evolving AoA activities for this initiative will Description—Applications will be health and long term care environment. include expert technical assistance and screened on whether the application is Recognizing that successful managed the coordination of mutual learning responsive to the priority area care models and approaches already opportunities among AoA, grantees description. exist in the Aging Services Network, under this initiative, other federal 4. Project Narrative—The Project this program will: agencies (CMS, NIH, CDC, AHRQ), Narrative section of the application • Identify and document existing foundations, and other national must not exceed 15 pages. models or approaches that can be organizations and experts appropriate to 5. Other Programmatic replicated by other aging services this initiative. AoA activities will also Requirements—None. provider organizations, area agencies on include: Review of applications: Applications aging, and/or managed care a. Working collaboratively with the will be evaluated against the following organizations (Existing Practices) grantee to refine project plans and criteria: • Facilitate further refinements of resolve implementation issues. Purpose and Need for Assistance (25 existing models and approaches that are b. Reviewing and commenting on points); Approach/Method—Workplan already in place (Program dissemination and replication and Activities (25 points); Outcomes/ Enhancements); documents and presentations that are Benefits/Impacts (20 points); and Level • Support the design and/or the critical products of the grants for of Effort, Program Management, and implementation of new models or Community Aging Services Provider Organizational Capacity (30 points). approaches that support the Aging organizations, Area Agencies on Aging, DATES: The deadline date for the Services Network’s role in managed care and/or Medicare and/or Medicaid submission of applications is September (New Models or Approaches). managed care organizations. 10, 2004.
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ADDRESSES: Application kits are I. Funding Opportunity Description organizations. These efforts complement available by writing to the U.S. multilateral efforts, including The Joint Department of Health and Human Authority: This program is authorized United Nations Programme on HIV/ Services, Administration on Aging, under Sections 307 and 317(k)(2) of the AIDS (UNAIDS), the Global Fund to Public Health Service Act, [42 U.S.C. Washington, DC 20201, by calling 202/ Sections 242l and 247b(k)(2)] as amended Combat HIV, TB and Malaria, World 357–3447, or online at http:// and under Public Law 108–25 (United States Bank funding, and other private sector www.grants.gov. Leadership Against HIV/AIDS, Tuberculosis donation programs. Applications may be mailed to the and Malaria Act of 2003) [22 U.S.C. 7601]. The U.S. Government seeks to reduce the impact of HIV/AIDS in specific U.S. Department of Health and Human Purpose: The purpose of the program Services, Administration on Aging, is to improve the quality of life of countries within sub-Saharan Africa, Office of Grants Management, people living with HIV/AIDS (PLWHAs) Asia, and the Americas through the Washington, DC 20201, attn: Margaret and their families. Nigeria has a President’s Emergency Plan for AIDS Tolson (AoA–04–08). population of 120 million and a current Relief (PEPFAR). Through this new Applications may be delivered to the HIV sero-prevalence rate of 5.8 percent, initiative, CDC’s GAP will continue to U.S. Department of Health and Human thus making it the country with the work with host countries to strengthen Services, Administration on Aging, largest number of HIV infected persons capacity and expand activities in the Office of Grants Management, One in Sub Saharan Africa (3.4 million HIV areas of: (1) Primary HIV prevention; (2) Massachusetts Avenue, NW., Room infected persons). As part of its response HIV care, support, and treatment; and 4604, Washington, DC 20001, attn: to the epidemic, the Government of (3) capacity and infrastructure Margaret Tolson (AoA–04–08). Nigeria, in 2001, requested that the development, especially for surveillance If you elect to mail or hand deliver national Prevention of Mother to Child and training. Targeted countries your application you must submit one Transmission (PMTCT) task force team represent those with the most severe original and two copies of the and the newly convened Antiretroviral epidemics where the potential for application; an acknowledgement card (ARV) committee develop guidelines impact is greatest and where U.S. will be mailed to applicants. and protocols for implementing pilot government agencies are already active. Instructions for electronic mailing of PMTCT programs and ARV treatment Nigeria is one of these targeted grant applications are available at and care programs respectively. The countries. To carry out its activities in these http://www.grants.gov. Centers for Disease Control and Prevention (CDC) announces the countries, CDC is working in a FOR FURTHER INFORMATION CONTACT: U.S. collaborative manner with national Department of Health and Human availability of Fiscal Year (FY) 2005 funds for a cooperative agreement governments and other agencies to Services, Administration on Aging, develop programs of assistance to Office of Grants Management, program to increase United States support to countries in which the CDC’s address the HIV/AIDS epidemic. CDC’s Washington, D.C. 20201, Telephone: program of assistance to Nigeria focuses (202) 357–3440. Global AIDS Program (GAP) is operating. In coordination with host (or on several areas of national priority SUPPLEMENTARY INFORMATION: All grant ‘‘in-country’’) GAP program staff, the including scaling up of prevention and applicants are required to obtain a D–U– applicant will assist in addressing the care strategies for HIV prevention, care, N–S number from Dun and Bradstreet. devastating impact of HIV/AIDS on and treatment. The measurable outcomes of the It is a nine-digit identification number, individuals, families, and communities program will be in alignment with goals which provides unique identifiers of in Nigeria. The funded organization will of the National Center for HIV, STD and single business entities. The D–U–N–S provide technical assistance (TA) to TB Prevention (NCHSTP) to reduce HIV number is free and easy to obtain from implement, monitor, and evaluate the transmission and improve care of https://eupdate.dnb.com/ delivery of PMTCT products in River PLWHAs. They also will contribute to requestoptions.html. State, Nigeria, to reduce HIV the goals of the PEPFAR which are: (1) Dated: August 2, 2004. transmission from mother to child and Within five years treat more than two to prolong the lives of parents infected Josefina G. Carbonell, million HIV-infected persons with with HIV/AIDS. Assistant Secretary for Aging. effective combination anti-retroviral [FR Doc. 04–17941 Filed 8–5–04; 8:45 am] The GAP has established field operations to support national HIV/ therapy (ART); (2) care for ten million BILLING CODE 4154–01–P AIDS control programs in 25 countries. HIV-infected and affected persons The CDC’s GAP exists to help prevent including those orphaned by HIV/AIDS; and (3) prevent seven million infections DEPARTMENT OF HEALTH AND HIV infection, improve care and support, and build capacity to address in 14 countries throughout the world. HUMAN SERVICES Activities: The project sites for this the global AIDS pandemic. GAP cooperative agreement are: Centers for Disease Control and provides financial and TA through 1. College of Health Technology Prevention partnerships with governments, Clinic (PMTCT Implementation Center) community- and faith-based Delivery of Prevention of Mother to and three affiliated satellite centers: organizations, the private sector, and • Civil Servants Hospital, Port Child Transmission of HIV (PMTCT) national and international entities Harcourt. Products in River State, Nigeria working in the 25 resource-constrained • Comprehensive Health Center, countries. CDC/GAP works with the Announcement Type: New. Rumuigbo. Health Resources and Services • Funding Opportunity Number: PA General Hospital, Okrika. Administration (HRSA), the National 2. General Hospital Buguma (PMTCT 04260. Institutes of Health (NIH), the U.S. Implementation Center) and three Catalog of Federal Domestic Agency for International Development affiliate satellite centers: Assistance Number: 93.941. (USAID), the Peace Corps, the • General Hospital, Degema. DATES: Application Deadline: September Departments of State, Labor and • General Hospital, Abonnema. 7, 2004. Defense, and other agencies and • General Hospital, Emohua.
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Awardee activities for this program opting not to breast feed their babies III. Eligibility Information are as follows: within the first six months of delivery. III.1. Eligible Applicants • Provide PMTCT Training of • Test 1,000 infants for HIV at age 15 Trainers (TOTS) to at least 30 months. Applications may be submitted by individuals, including health care In a cooperative agreement, CDC staff public and private nonprofit workers, at the following locations: is substantially involved in the program organizations and by governments and Æ PMTCT Implementation Centers (2): activities, above and beyond routine their agencies, such as: • Private nonprofit organizations. 10 trainees grant monitoring. • Æ Other Hospitals: 12 trainees CDC Activities for this program are as Community-based organizations. Æ • Faith-based organizations. Contractor’s Staff: 5 trainees follows: Æ Non-Governmental Organizations/ • Collaborate with the award III.2. Cost Sharing or Matching Community Based Organizations/ recipient, the Nigerian Ministry of Reproductive Health Services Outlets Matching funds are not required for Health (MOH) and other in-country and this program. (NGO/CBO/RHSO) Faith-based international partners in the organizations: 3 trainees III.3. Other Æ development of plans for program Total TOT Trainees: 30 trainees assistance based on the country needs, • If you request a funding amount The beneficiaries of the Training of the CDC TA portfolio, and HIV greater than the ceiling of the award Trainers will provide training to other prevention activities conducted by other range, your application will be health care workers, from their partners. considered non-responsive, and will not respective institutions: • Provide consultation, scientific and be entered into the review process. You Æ × PMTCT Implementation Centers (2) technical assistance based on the ‘‘CDC will be notified that your application 10: 20 GAP Technical Strategies’’ document to Æ did not meet the submission Contractor’s Staff Capacity Building promote the use of best practices known requirements. Training Workshop (training of at the time. If your application is incomplete or NGOs/CBOs/RHSOs): 30 • Æ Facilitate in-country planning and non-responsive to the requirements Total Health Care Workers Trained: review meetings for the purpose of listed in this section, it will not be 50 ensuring coordination of country-based entered into the review process. You • Increase awareness of HIV/AIDS program TA activities. CDC will act as will be notified that your application and PMTCT through posters, radio liaison and assist in coordinating did not meet submission requirements. jingles, counseling services and other activities as required between the Applicants must: media. The grantee is expected to make applicant and other NGOs, government 1. Have experience in community 30,000 persons aware of HIV/AIDS and of Nigeria agencies, and other CDC, GAP HIV/AIDS programs in the Niger Delta PMTCT. Region of Nigeria. • partners. Provide PMTCT counseling services TA and training may be provided 2. Have at least three years experience (both group and one-on-one counseling directly by CDC staff or through working in the Niger Delta Region of services) to 20,000 pregnant women organizations that have successfully Nigeria relative to development within 12 months from all participating competed for funding under a separate assistance. PMTCT health centers and satellites CDC contract. Note: Title 2 of the United States Code under this initiative in Rivers State. • Section 1611 states that an organization Provide PMTCT counseling and II. Award Information described in Section 501(c)(4) of the Internal Management of HIV/AIDS to 1,000 Type of Award: Cooperative Revenue Code that engages in lobbying pregnant women who have tested Agreement. activities is not eligible to receive Federal positive for HIV/AIDS within 12 months CDC involvement in this program is funds constituting an award, grant, or loan. from all participating PMTCT health listed in the Activities Section above. IV. Application and Submission centers and satellites under this Fiscal Year Funds: FY 2004. Information initiative in Rivers State. Approximate Total Funding: • Provide Voluntary HIV testing to 50 $200,000. IV.1. Address To Request Application percent or 10,000 of counseled PMTCT Approximate Number of Awards: Package pregnant women within the 12-month One. period. The distribution should be 6,000 To apply for this funding opportunity Approximate Average Award: tested in Port Harcourt and 4,000 tested use application form PHS 5161. $200,000. (This amount is for the first in Buguma. Application forms and instructions are • Provide PMTCT services to 1,000 12-month budget period, and includes available on the CDC Web site, at the pregnant women testing positive for both direct and indirect costs). following Internet address: http:// HIV/AIDS. Floor of Award Range: None. www.cdc.gov/od/pgo/forminfo.htm. • Provide ARV treatment and Ceiling of Award Range: $200,000. If you do not have access to the management of 100 pregnant HIV Anticipated Award Date: September Internet, or if you have difficulty infected women with symptoms/ 1, 2004. accessing the forms on-line, you may diagnosis of AIDS. Budget Period Length: 12 months. contact the CDC Procurement and • Provide Nevirapine treatment (200 Project Period Length: Three years. Grants Office Technical Information mg) to 1,000 pregnant HIV infected Throughout the project period, CDC’s Management Section (PGO-TIM) staff at: women at the onset of labor and commitment to continuation of awards 770–488–2700. Application forms can continue treatment for the duration of will be conditioned on the availability be mailed to you. ten months. of funds, evidence of satisfactory • Provide Nevirapine treatment progress by the recipient (as IV.2. Content and Form of Submission (syrup 2 mg/kg) to 1,000 infants within documented in required reports), and Application: You must submit a 24–72 hours of birth. the determination that continued project narrative with your application • Provide Breast Milk Supplement funding is in the best interest of the forms. The narrative must be submitted (BMS) to 100 HIV infected mothers Federal Government. in the following format:
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• Maximum number of pages: 25 If CDC Procurement and Grants Office by exception: With the exception of the your narrative exceeds the page limit, 4 p.m. eastern time on the deadline American University, Beirut, and the only the first pages which are within the date. If you send your application by the World Health Organization, Indirect page limit will be reviewed. United States Postal Service or Costs will not be paid (either directly or • Double spaced. commercial delivery service, you must through sub-award) to organizations • Font size: 12 point unreduced. ensure that the carrier will be able to located outside the territorial limits of • Paper size: 8.5 by 11 inches. guarantee delivery of the application by the United States or to international • Page margin size: One inch. the closing date and time. If CDC organizations regardless of their • Printed only on one side of page. • receives your application after closing location. Held together only by rubber bands due to: (1) Carrier error, when the • The applicant may contract with or metal clips; not bound in any other carrier accepted the package with a other organizations under this program; way. however the applicant must perform a • guarantee for delivery by the closing Must be submitted in English. substantial portion of the activities Your narrative should address date and time, or (2) significant weather delays or natural disasters, you will be (including program management and activities to be conducted over the operations, and delivery of prevention entire project period, and must include given the opportunity to submit documentation of the carrier’s services for which funds are required). the following items in the order listed: • • guarantee. If the documentation verifies You must obtain an annual audit of Plan. these CDC funds (program-specific • Objectives. a carrier problem, CDC will consider the • application as having been received by audit) by a U.S.-based audit firm with Activities. international branches and current • Methods of Monitoring the Project. the deadline. • Methods of Project Evaluation. This announcement is the definitive licensure/authority in-country, and in • Summary budget by line item along guide on application submission accordance with International with a budget justification. address and deadline. It supersedes Accounting Standards or equivalent The budget justification will not be information provided in the application standards(s) approved in writing by instructions. If your application does CDC. counted in the page limit stated above. • Additional information may be not meet the deadline above, it will not A fiscal Recipient Capability included in the application appendices. be eligible for review, and will be Assessment may be required, prior to or The appendices will not be counted discarded. You will be notified that post award, in order to review the toward the narrative page limit. This your application did not meet the applicant’s business management and additional information includes: submission requirements. fiscal capabilities regarding the • Organizational Chart. CDC will not notify you upon receipt handling of U.S. Federal funds. • • Curriculum Vitae/Resumes of of your application. If you have a Antiretroviral Drugs—The purchase Current Staff. question about the receipt of your of ARVs, reagents, and laboratory • Proposed staffing pattern (include application, first contact your courier. If equipment for ARV treatment projects qualifications) required to carry out you still have a question, contact the require pre-approval from the GAP program activities. headquarters. PGO–TIM staff at: 770–488–2700. Before • You are required to have a Dun and calling, please wait two to three days Needle Exchange—No funds Bradstreet Data Universal Numbering after the application deadline. This will appropriated under this Act shall be System (DUNS) number to apply for a allow time for applications to be used to carry out any program of grant or cooperative agreement from the processed and logged. distributing sterile needles or syringes Federal government. The DUNS number for the hypodermic injection of any is a nine-digit identification number, IV.4. Intergovernmental Review of illegal drug. • which uniquely identifies business Applications Prostitution and Related Activities entities. Obtaining a DUNS number is Executive Order 12372 does not apply The U.S. Government is opposed to easy and there is no charge. To obtain to this program. prostitution and related activities, a DUNS number, access http:// which are inherently harmful and IV.5. Funding Restrictions www.dunandbradstreet.com or call 1– dehumanizing, and contribute to the 866–705–5711. Restrictions, which must be taken into phenomenon of trafficking in persons. For more information, see the CDC account while writing your budget, are Any entity that receives, directly or Web site at: http://www.cdc.gov/od/pgo/ as follows: indirectly, U.S. Government funds in funding/pubcommt.htm. • Funds may be spent for reasonable connection with this document If your application form does not have program purposes, including personnel, (‘‘recipient’’) cannot use such U.S. a DUNS number field, please write your travel, supplies, and services. Government funds to promote or DUNS number at the top of the first Equipment may be purchased if deemed advocate the legalization or practice of page of your application, and/or include necessary to accomplish program prostitution or sex trafficking. Nothing your DUNS number in your application objectives; however, prior approval by in the preceding sentence shall be cover letter. CDC officials must be requested in construed to preclude the provision to Additional requirements that may writing. individuals of palliative care, treatment, require you to submit additional • All requests for funds contained in or post-exposure pharmaceutical documentation with your application the budget shall be stated in U.S. prophylaxis, and necessary are listed in section ‘‘VI.2. dollars. Once an award is made, CDC pharmaceuticals and commodities, Administrative and National Policy will not compensate foreign grantees for including test kits, condoms, and, when Requirements.’’ currency exchange fluctuations through proven effective, microbicides. A the issuance of supplemental awards. recipient that is otherwise eligible to IV.3. Submission Dates and Times • The costs that are generally receive funds in connection with this Application Deadline Date: allowable in grants to domestic document to prevent, treat, or monitor September 7, 2004. organizations are allowable to foreign HIV/AIDS shall not be required to Explanation of Deadlines: institutions and international endorse or utilize a multisectoral Applications must be received in the organizations, with the following approach to combating HIV/AIDS, or to
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endorse, utilize, or participate in a relate to the organization’s compliance measure the intended outcome. These prevention method or treatment with this section, ‘‘Prostitution and measures of effectiveness must be program to which the recipient has a Related Activities.’’ submitted with the application and will religious or moral objection. Any All primary grantees receiving U.S. be an element of evaluation. information provided by recipients Government funds in connection with Your application will be evaluated about the use of condoms as part of this document must certify compliance against the following criteria: projects or activities that are funded in prior to actual receipt of such funds in 1. Ability to Carry Out the Project (25 connection with this document shall be a written statement referencing this Points) medically accurate and shall include the document (e.g., ‘‘[Recipient’s name] public health benefits and failure rates certifies compliance with the section, Does the applicant document of such use. ‘Prostitution and Related Activities.’’’) demonstrated capability to achieve the In addition, any foreign recipient addressed to the agency’s grants officer. purpose of the project? must have a policy explicitly opposing, Such certifications are prerequisites to 2. Understanding of the Problem (20 in its activities outside the United the payment of any U.S. Government Points) States, prostitution and sex trafficking, funds in connection with this except that this requirement shall not Does the applicant demonstrate a document. clear and concise understanding of the apply to the Global Fund to Fight AIDS, • Recipients’ compliance with this nature of the problem described in the Tuberculosis and Malaria, the World section, ‘‘Prostitution and Related Health Organization, the International Purpose section of this announcement? Activities,’’ is an express term and Does the proposal specifically include a AIDS Vaccine Initiative or to any United condition of receiving U.S. Government Nations agency, if such entity is a description of the public health funds in connection with this importance of the planned activities to recipient of U.S. Government funds in document, and any violation of it shall connection with this document. be undertaken and realistic presentation be grounds for unilateral termination by of proposed objectives and projects? The following definitions apply for HHS of the agreement with HHS in purposes of this clause: connection with this document prior to 3. Technical Approach (20 Points) • Sex trafficking means the the end of its term. The recipient shall Does the applicant’s proposal include recruitment, harboring, transportation, refund to HHS the entire amount provision, or obtaining of a person for an overall design strategy, including furnished in connection with this measurable time lines? Does the the purpose of a commercial sex act. 22 document in the event it is determined U.S.C. 7102(9). proposal address regular monitoring and by HHS that the recipient has not • A foreign recipient includes an evaluation, and the potential complied with this section, entity that is not organized under the effectiveness of the proposed activities laws of any State of the United States, ‘‘Prostitution and Related Activities.’’ in meeting objectives? If you are requesting indirect costs in the District of Columbia or the 4. Personnel (20 Points) Commonwealth of Puerto Rico. your budget, you must include a copy Are the professional personnel Restoration of the Mexico City Policy, of your indirect cost rate agreement. If involved in this project qualified, 66 FR 17303, 17303 (March 28, 2001). your indirect cost rate is a provisional All recipients must insert provisions rate, the agreement should be less than including evidence of experience in implementing the applicable parts of 12 months of age. working with PMTCT, voluntary this section, ‘‘Prostitution and Related Awards will not allow reimbursement counseling and testing (VCT), and HIV/ Activities,’’ in all subagreements under of pre-award costs. AIDS? this award. These provisions must be Guidance for completing your budget 5. Plans for Administration and express terms and conditions of the can be found on the CDC Web site, at Management of Projects (15 Points) subagreement, acknowledge that each the following Internet address: http:// Are there adequate plans for certification to compliance with this www.cdc.gov/od/pgo/funding/ administering the project? section, ‘‘Prostitution and Related budgetguide.htm. Activities,’’ are a prerequisite to receipt IV.6. Other Submission Requirements 6. Budget (Not Scored) of U.S. Government funds in connection Is the itemized budget for conducting with this document, and must Application Submission Address: Submit the original and two hard copies the project, along with justification, acknowledge that any violation of the reasonable and consistent with stated provisions shall be grounds for of your application by mail or express delivery service to: Technical objectives and planned program unilateral termination of the agreement activities? prior to the end of its term. In addition, Information Management—PA# 04260, all recipients must ensure, through CDC Procurement and Grants Office, V.2. Review and Selection Process 2920 Brandywine Road, Atlanta, GA contract, certification, audit, and/or any Applications will be reviewed for 30341. Applications may not be other necessary means, all the completeness by the Procurement and submitted electronically at this time. applicable requirements in this section, Grants Office (PGO) staff, and for ‘‘Prostitution and Related Activities,’’ V. Application Review Information responsiveness by NCHSTP/GAP. are met by any other entities receiving Incomplete applications and V.1. Criteria U.S. Government funds from the applications that are non-responsive to recipient in connection with this You are required to provide measures the eligibility criteria will not advance document, including without limitation, of effectiveness that will demonstrate through the review process. Applicants the recipients’ sub-grantees, sub- the accomplishment of the various will be notified that their application contractors, parents, subsidiaries, and identified objectives of the cooperative did not meet submission requirements. affiliates. Recipients must agree that agreement. Measures of effectiveness An objective review panel will HHS may, at any reasonable time, must relate to the performance goals evaluate complete and responsive inspect the documents and materials stated in the ‘‘Purpose’’ section of this applications according to the criteria maintained or prepared by the recipient announcement. Measures must be listed in the ‘‘V.1. Criteria’’ section in the usual course of its operations that objective and quantitative, and must above.
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V.3. Anticipated Announcement and These reports must be mailed to the Contact Person: Dornette Spell- Award Dates Grants Management or Contract LeSane, Center for Drug Evaluation and September 1, 2004. Specialist listed in the ‘‘Agency Research (HFD–21), Food and Drug Contacts’’ section of this announcement. Administration, 5600 Fishers Lane, (for VI. Award Administration Information express delivery, 5630 Fishers Lane, rm. VII. Agency Contacts VI.1. Award Notices 1093) Rockville, MD 20857, 301–827– For general questions about this 7001, FAX: 301–827–6776, e-mail: Successful applicants will receive a announcement, contact: Technical [email protected], or FDA Notice of Grant Award (NGA) from the Information Management Section, CDC Advisory Committee Information Line, CDC Procurement and Grants Office. Procurement and Grants Office, 2920 1–800–741–8138 (301–443–0572 in the The NGA shall be the only binding, Brandywine Road, Atlanta, GA 30341, Washington, DC area), code authorizing document between the telephone: 770–488–2700. 3014512536. Please call the Information recipient and CDC. The NGA will be For program technical assistance, Line for up-to-date information on this signed by an authorized Grants contact: Wayne Duncan, Country meeting. Management Officer, and mailed to the Director, CDC Global AIDS Program— Agenda: On September 8, 2004, the recipient fiscal officer identified in the Nigeria, Metro Plaza, Zakariya committee will discuss the FDA draft application. Maimalari Street, Plot 992, Central guidance document entitled ‘‘Guidance Unsuccessful applicants will receive Business District, Abuja, Nigeria, for the Clinical Evaluation of Weight- notification of the results of the telephone: 234–09–670–0798. e-mail: Control Drugs,’’ issued September 24, application review by mail. [email protected]. 1996 (see 69 FR 3588, January 26, 2004, VI.2. Administrative and National For financial, grants management, or including solicitation for comments Policy Requirements budget assistance, contact: Diane [Docket No. 2003D–0570], see also the Flournoy, Grants Management FDA Internet at http:// 45 CFR Part 74 and Part 92. Specialist, CDC Procurement and Grants www.fda.gov.cder/guidance/index.htm For more information on the Code of Office, 2920 Brandywine Road, Atlanta, under the heading ‘‘Clinical/Medical Federal Regulations, see the National GA 30341, telephone: 770–488–2072. e- (Draft)’’). Archives and Records Administration at mail: [email protected]. Procedure: Interested persons may the following Internet address: http:// VIII. Other Information present data, information, or views, www.access.gpo.gov/nara/cfr/cfr-table- orally or in writing, on issues pending None. search.html. before the committee. Written The following additional Alan A. Kotch, submissions may be made to the contact requirements apply to this project: • Acting Deputy Director, Procurement and person by August 31, 2004. Oral AR–4 HIV/AIDS Confidentiality Grants Office, Centers for Disease Control presentations from the public will be Provisions. and Prevention. • scheduled between approximately 11 AR–6 Patient Care. [FR Doc. 04–18099 Filed 8–4–04; 10:33 am] a.m. and 12 noon. Time allotted for each • AR–9 Paperwork Reduction Act BILLING CODE 4163–18–P presentation may be limited. Those Requirements. desiring to make formal oral • AR–14 Accounting System presentations should notify the contact Requirements. DEPARTMENT OF HEALTH AND person before August 31, 2004, and Additional information on these HUMAN SERVICES submit a brief statement of the general requirements can be found on the CDC nature of the evidence or arguments web site at the following Internet Food and Drug Administration they wish to present, the names and address: http://www.cdc.gov/od/pgo/ addresses of proposed participants, and funding/ARs.htm. Endocrinologic and Metabolic Drugs an indication of the approximate time Advisory Committee; Notice of Meeting VI.3. Reporting Requirements requested to make their presentation. You must provide CDC with an AGENCY: Food and Drug Administration, Persons attending FDA’s advisory original, plus two hard copies of the HHS. committee meetings are advised that the following reports in English: ACTION: Notice. agency is not responsible for providing 1. Interim progress report, no less access to electrical outlets. than 90 days before the end of the This notice announces a forthcoming FDA welcomes the attendance of the budget period. The progress report will meeting of a public advisory committee public at its advisory committee serve as your non-competing of the Food and Drug Administration meetings and will make every effort to continuation application, and must (FDA). The meeting will be open to the accommodate persons with physical contain the following elements: public. disabilities or special needs. If you a. Current Budget Period Activities Name of Committee: Endocrinologic require special accommodations due to Objectives. and Metabolic Drugs Advisory a disability, please contact Dornette b. Current Budget Period Financial Committee. Spell-LeSane, at least 7 days in advance Progress. General Function of the Committee: of the meeting. c. New Budget Period Program To provide advice and Notice of this meeting is given under Proposed Activity Objectives. recommendations to the agency on the Federal Advisory Committee Act (5 d. Budget. FDA’s regulatory issues. U.S.C. app. 2). e. Additional Requested Information. Date and Time: The meeting will be f. Measures of Effectiveness. held on September 8, 2004, from 8 a.m. Dated: July 30, 2004. 2. Financial status no more than 90 to 5 p.m. William K. Hubbard, days after the end of the budget period. Location: On September 8, 2004, the Associate Commissioner for Policy and 3. Final financial and performance meeting will be held at the Holiday Inn, Planning. reports, no more than 90 days after the Versailles Ballrooms, 8120 Wisconsin [FR Doc. 04–17949 Filed 8–5–04; 8:45 am] end of the project period. Ave., Bethesda, MD. BILLING CODE 4160–01–S
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DEPARTMENT OF HOMELAND abstract: Primary: Individuals and Somalia (or aliens having no nationality SECURITY households. The information collected who last habitually resided in Somalia) is required by 8 CFR part 214. This form who previously have not applied for Bureau of Citizenship and Immigration will be used by nonimmigrants to apply TPS may be eligible to apply under the Services for an extension of stay or for a change late initial registration provisions. to another nonimmigrant classification. EFFECTIVE DATES: The extension of Agency Information Collection (5) An estimate of the total number of Somalia’s TPS designation is effective Activities: Comment Request respondents and the amount of time September 17, 2004, and will remain in estimated for an average respondent to ACTION: Request OMB approval; effect until September 17, 2005. The 60- respond: 261,867 responses at 45 application to extend/change day re-registration period begins August minutes (.75 hours) per response. Nonimmigrant Status, Form I–539, 6, 2004, and will remain in effect until (6) An estimate of the total public October 5, 2004. (OMB No. 1615–0003). burden (in hours) associated with the FOR FURTHER INFORMATION CONTACT: The Department of Homeland collection: 196,400 annual burden hours. Colleen Cook, Residence and Status Security (DHS), Bureau of Citizenship Services, Office of Programs and and Immigration Services (CIS) has In additional information is required contact: Mr. Richard A. Sloan, Director, Regulations Development, Bureau of submitted the following information Citizenship and Immigration Services, collection request for review and Regulations and Forms Services, Bureau of Citizenship and Immigration Department of Homeland Security, 425 clearance in accordance with the ‘‘I’’ Street, NW., Ullico Building, 3rd Paperwork Reduction Act of 1995. The Services, Department of Homeland Security, Room 4034, 425 I Street, NW., Floor, Washington, DC 20529, telephone proposed information collection is (202) 514–4754. published to obtain comments from the Washington, DC 20536. SUPPLEMENTARY INFORMATION: public and affected agencies. Comments Dated: August 2, 2004. are encouraged and will be accepted for Stephen Tarragon, What Authority Does the Secretary of sixty days until October 5, 2004. Deputy Department Clearance Officer, the Department of Homeland Security Written comments and suggestions Department of Homeland Security. Have To Extend the Designation of TPS from the public and affected agencies [FR Doc. 04–17948 Filed 8–5–04; 8:45 am] for Somalia? concerning the proposed collection of BILLING CODE 4410–10–M On March 1, 2003, the functions of information should address one or more the Immigration and Naturalization of the following four points: Service (Service) transferred from the (1) Evaluate whether the proposed DEPARTMENT OF HOMELAND Department of Justice (DOJ) to the collection of information is necessary SECURITY Department of Homeland Security for the proper performance of the (DHS) pursuant to the Homeland functions of the agency, including Bureau of Citizenship and Immigration Security Act of 2002, Public Law 107– whether the information will have Services 296. The responsibilities for practical utility; [CIS No. 2319–04] administering TPS held by the Service (2) Evaluate the accuracy of the were transferred to the Bureau of agencies estimate of the burden of the Extension of the Designation of Citizenship and Immigration Services proposed collection of information, Temporary Protected Status for (BCIS). including the validity of the Somalia Under section 244 of the Immigration methodology and assumption used; (3) Enhance the quality, utility, and AGENCY: Bureau of Citizenship and and Nationality Act (Act), 8 U.S.C. clarity of the information to be Immigration Services, DHS. 1254a, the Secretary of DHS, after collected; and ACTION: Notice. consultation with appropriate agencies (4) Minimize the burden of the of the Government, is authorized to collection of information on those who SUMMARY: The Temporary Protected designate a foreign state or (part thereof) are to respond, including through the Status (TPS) designation for Somalia for TPS. The Secretary of DHS may then use of appropriate automated, will expire on September 17, 2004. This grant TPS to eligible nationals of that electronic, mechanical, or other notice extends the Secretary of foreign state (or aliens having no technological collection techniques or Homeland Security’s designation of nationality who last habitually resided other forms of information technology, Somalia for 12 months until September in that state). e.g., permitting electronic submission of 17, 2005, and sets forth procedures Section 244(b)(3)(A) of the Act responses. necessary for nationals of Somalia (or requires the Secretary of DHS to review, Overview of this information aliens having no nationality who last at least 60 days before the end of the collection: habitually resided in Somalia) with TPS TPS designation or any extension (1) Type of Information Collection: to re-register and to apply for an thereof, the conditions in a foreign state Extension of currently approved extension of their employment designated for TPS to determine collection. authorization documentation for the whether the conditions for a TPS (2) Title of the Form/Collection: additional 12-month period. Re- designation continue to be met and, if Application to Extend/Change registration is limited to persons who so, the length of an extension of TPS. 8 Nonimmigrant Status. registered under the initial designation U.S.C. 1254a(b)(3)(A). If the Secretary of (3) Agency form number, if any, and (which was announced on September DHS determines that the foreign state no the applicable component of the 16, 1991) and also timely re-registered longer meets the conditions for TPS Department of Homeland Security under each subsequent extension of the designation, he shall terminate the sponsoring the collection: I–539, Bureau designation, or who registered under the designation, as provided in section of Citizenship and Immigration re-designation (which was announced 244(b)(3)(B) of the Act. 8 U.S.C. Services. on September 4, 2001) and also timely 1254a(b)(3)(B). Finally, if the Secretary (4) Affected public who will be asked re-registered under each extension of of DHS does not determine that a or required to respond, as well as a brief the re-designation. Certain nationals of foreign state (or part thereof) no longer
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meets the conditions for designation at produce a Somali central government. DHS also finds that permitting nationals least 60 days before the designation or (DOS Recommendation (May 13, 2004)). of Somalia (or aliens having no extension is due to expire, section The BCIS Resource Information Center nationality who last habitually resided 244(b)(3)(C) of the Act provides for an (RIC) notes that the third and final in Somalia) who meet the eligibility automatic extension of TPS for an phase of the peace talks did not fully requirements of TPS to remain additional period of 6 months (or, in the start as scheduled on May 6, 2004 due temporarily in the United States is not discretion of the Secretary of DHS, a to disagreements among delegates over contrary to the national interest of the period of 12 or 18 months). 8 U.S.C. a power-sharing formula. (RIC Report United States. 8 U.S.C. 1254a(b)(1)(C). 1254a(b)(3)(C). (May 11, 2004)). In January 2004 Somali On the basis of these findings, the leaders signed an agreement to establish Secretary of DHS concludes that the Why Did the Secretary of DHS Decide a new Federal Transitional Parliament. TPS designation for Somalia should be To Extend the TPS Designation for Several faction leaders have since extended for an additional 12-month Somalia? retracted their support for the period. 8 U.S.C. 1254a(b)(3)(C). On September 16, 1991, the Attorney agreement. (DOS Recommendation (May General published a notice in the 13, 2004)). If I Currently Have TPS Through the Federal Register at 56 FR 46804 Fighting has continued throughout Somalia TPS Designation, Do I Still Re- designating TPS for Somalia. The the country, particularly in Mogadishu, Register for TPS? Attorney General extended this TPS Las Anod and Baidoa, as well as in the Yes. If you already have received TPS designation annually, determining in Bari, Bay, Bakol, Gedo, Lower Shabelle, benefits through the Somalia TPS each instance that the conditions Middle Shabelle, and Middle Juba designation, your benefits will expire on warranting such designation continued regions. Inter-clan fighting throughout September 17, 2004. Accordingly, to be met. The Attorney General the country continues to increase. Id. individual TPS beneficiaries must extended and re-designated TPS for The BCIS RIC notes that, although most comply with the re-registration Somalia by publishing a notice in the of the armed conflict has been confined requirements described below in order Federal Register on September 4, 2001, to the central and southern part of to maintain their TPS benefits through at 66 FR 46288, based upon Somalia, tensions have arisen between September 17, 2005. TPS benefits extraordinary and temporary conditions the self-declared republic of Somaliland include temporary protection against resulting from the armed conflict and and the self-declared autonomous removal from the United States, as well lack of functioning state institutions. region of Puntland over the disputed as employment authorization, during The last extension of TPS for Somalia by regions of Sool and Sanaag. (RIC Report the TPS designation period and any the Attorney General was published in (May 11, 2004)). The increasing extension thereof. 8 U.S.C. 1254a(a)(1). the Federal Register on July 26, 2002, at instability in Puntland caused many 67 FR 48950. international humanitarian If I am Currently Registered for TPS, After the transfer of functions and organizations to withdraw international How Do I Re-Register for an Extension? authority from the Service and DOJ to staff from the region. (DOS BCIS and DHS, DHS extended TPS for Recommendation (May 13, 2004)). All persons previously granted TPS Somalia by Notice published in the The BCIS RIC reports a continued under the Somalia designation who Federal Register on July 21, 2003, at 68 complex emergency situation in wish to maintain such status must apply FR 43147. This extension expires on Somalia. Increasing conflict in the north for an extension by filing (1) a Form I– September 17, 2004. is disrupting agricultural activity and 821, Application for Temporary Since the date of the most recent further limiting access to health and Protected Status, without the filing fee; extension, DHS and the Department of social services. A number of Somalis are (2) a Form I–765, Application for State (DOS) have continued to review threatened by the drought in the Employment Authorization; and (3) two 1 conditions in Somalia. It is determined northern and central regions of the identification photographs (1 ⁄2 inches x 1 that a 12-month extension is warranted country. (RIC Report (May 11, 2004)). 1 ⁄2 inches). See the chart below to because the extraordinary and The Sool Plateau in the north and the determine whether you must submit the temporary conditions that prompted regions of Togdheer, Lowere Nugal and one hundred and seventy five dollar designation persist. Further, it is the central area face extreme food ($175) filing fee with Form I–765. determined that it is not contrary to the shortages due to a drought. Id. Applicants for an extension of TPS national interest of the United States to Additionally, Somalia currently lacks benefits do not need to be re- permit nationals of Somalia (or aliens the institutions to address the demands fingerprinted and thus need not pay the having no nationality who last of a large volume of returnees from the seventy-dollar ($70) biometric services habitually resided in Somalia) who United States. (DOS Recommendation fee. Children beneficiaries of TPS who otherwise qualify for TPS to remain (May 13, 2004)). have reached the age of fourteen (14) but temporarily in the United States. 8 Based upon this review, the Secretary were not previously fingerprinted must U.S.C. 1254a(b)(1)(C). of DHS, after consultation with pay the seventy dollar ($70) biometric DOS observes that more than nine appropriate government agencies, finds services fee with the application for years after the withdrawal of the United that the conditions that prompted extension. Nations Operation in Somalia and designation of Somalia for TPS continue An application submitted without the thirteen years after the fall of to be met. 8 U.S.C. 1254a(b)(3). There required fee and/or photos will be Mohammed Siad Barre’s regime, are extraordinary and temporary returned to the applicant. Submit the Somalia still lacks a central government. conditions in Somalia such that it is not completed forms and applicable fee, if The mandate of the Transitional prudent to return nationals of Somalia any, to the BCIS District Office having National Government for Somalia (TNG) (or aliens having no nationality who last jurisdiction over your place of residence expired in August 2003. In October habitually resided in Somalia) if these during the 60-day re-registration period 2002, the Inter-Governmental Authority aliens meet the other statutory that begins August 6, 2004, and ends (IGAD) was established, but has failed to requirements for TPS. The Secretary of October 5, 2004.
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If Then
You are applying for employment authorization until September 17, You must complete and file the Form I–765, Application for Employ- 2005. ment Authorization, with the $175 fee. You already have employment authorization or do not require employ- You must complete and file Form I–765 with no fee.1 ment authorization. You are applying for employment authorization and are requesting a You must complete and file: (1) Form I–765 and (2) a fee waiver re- fee waiver. quest and affidavit (and any other information) in accordance with 8 CFR 244.20. 1 An applicant who does not seek employment authorization documentation does not need to submit the $175 fee, but must still complete and submit Form I–765 for data gathering purposes.
How Does an Application for TPS have been continuously physically the Secretary of DHS will review Affect my Application for Asylum or present and continuously resided in the conditions in Somalia and determine Other Immigration Benefits? United States since September 4, 2001, whether the conditions for TPS An application for TPS does not affect the date of the last re-designation of TPS designation continue to be met at that an application for asylum or any other for Somalia. time, or whether the TPS designation should be terminated. Notice of that immigration benefit. Denial of an What is Late Initial Registration? application for asylum or any other determination, including the basis for immigration benefit does not affect an Some persons may be eligible for late the determination, will be published in applicant’s TPS eligibility, although the initial registration under 8 U.S.C. the Federal Register. grounds for denying one form of relief 1254a(c)(1)(A), 8 U.S.C. 1254a(c)(2), and If the TPS designation is extended at may also be grounds for denying TPS. 8 CFR 244.2. To apply for late initial that time, an alien who has received For example, a person who has been registration an applicant must: TPS benefits must re-register under the (1) Be a national of Somalia (or alien convicted of a particularly serious crime extension in order to maintain TPS who has no nationality and who last is not eligible for asylum or TPS. 8 benefits. If, however, the Secretary of habitually resided in Somalia); DHS terminates the TPS designation, U.S.C. 1158(b)(2)(A)(ii); 8 U.S.C. (2) Have been continuously physically 1254a(c)(2)(B)(ii). Also, a person TPS beneficiaries will maintain the present in the United States since immigration status they had before TPS convicted of any felony or two September 4, 2001; misdemeanors committed in the United (unless that status had since expired or (3) Have continuously resided in the been terminated) or any other status States is not eligible for TPS. 8 U.S.C. United States since September 4, 2001; 1245a(c)(2)(B)(i). they may have acquired while registered and for TPS. Accordingly, if an alien had no (4) Be both admissible as an Can I Apply for Another Immigration lawful immigration status prior to immigrant, except as provided under Benefit While Registered for TPS? receiving TPS and did not obtain any section 244(c)(2)(A) of the Act, and not status during the TPS period, he or she Yes. Registration for TPS does not ineligible under section 244(c)(2)(B) of will revert to that unlawful status upon prevent you from applying for another the Act. non-immigrant status or from filing for Additionally, the applicant must be termination of the TPS designation. adjustment of status based on an able to demonstrate that during the Notice of Extension of Designation of immigrant petition. 8 U.S.C. 1254a(a)(5). registration period for the initial TPS for Somalia TPS alone, however, does not lead to designation (from September 16, 1991 to By the authority vested in DHS under adjustment of status. 8 U.S.C. September 16, 1992), or during the sections 244(b)(1)(C), (b)(3)(A), and 1254a(f)(1). For the purposes of change registration period for the re-designation (b)(3)(C) of the Act, DHS has consulted of status and adjustment of status, a (from September 4, 2001 to September with the appropriate government registered TPS beneficiary is considered 17, 2002), he or she: agencies and determined that the as being in and maintaining lawful (1) Was a nonimmigrant or had been conditions that prompted designation of status as a nonimmigrant. 8 U.S.C. granted voluntary departure status or Somalia for TPS continue to be met. 8 1254a(f)(4). any relief from removal; (2) Had an application for change of U.S.C. 1254a(b)(3)(A). Accordingly, DHS Does This Extension Allow Nationals of orders as follows: Somalia (or Aliens Having No status, adjustment of status, asylum, voluntary departure, or any relief from (1) The designation of Somalia under Nationality Who Last Habitually section 244(b)(1)(C) of the Act is Resided in Somalia) Who Entered the removal or change of status pending or subject to further review or appeal; extended for an additional 12-month United States After September 4, 2001, period from September 17, 2004, to To File for TPS? (3) Was a parolee or had a pending request for reparole; or September 17, 2005. 8 U.S.C. No. This is a notice of an extension of (4) Was the spouse or child of an alien 1254a(b)(3)(C). TPS, not a notice of re-designation of currently eligible to be a TPS registrant. (2) There are approximately 324 TPS for Somalia. An extension of TPS An applicant for late initial nationals of Somalia (or aliens having does not change the required dates of registration must file an application for no nationality who last habitually continuous residence and continuous late registration no later than 60 days resided in Somalia) who have been physical presence in the United States. after the expiration or termination of the granted TPS and who are eligible for re- This extension does not expand TPS conditions described above. 8 CFR registration. availability to those beyond the current 244.2(g). (3) To maintain TPS, a national of TPS eligibility requirements of Somalia. Somalia (or an alien having no To be eligible for benefits under this What Happens When this Extension of nationality who last habitually resided extension, nationals of Somalia (or TPS Expires on September 17, 2005? in Somalia) who was granted TPS aliens having no nationality who last At least 60 days before this extension during the initial designation period or habitually resided in Somalia) must of TPS expires on September 17, 2005, re-designation period must re-register
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for TPS during the 60-day re-registration DEPARTMENT OF HOMELAND The Facility maintains the public period from August 6, 2004, until SECURITY docket for this notice. Comments and October 5, 2004. material received from the public, as Coast Guard (4) To re-register, the applicant must well as documents mentioned in this file the following: (1) Form I–821, [USCG 2004–17572] notice as being available in the docket, will become part of this docket and will Application for Temporary Protected Information Collection Under Review be available for inspection or copying at Status; (2) Form I–765, Application for by the Office of Management and room PL–401 (Plaza level), 400 Seventh Employment Authorization; and (3) two 1 Budget (OMB): OMB Control Number Street SW., Washington, DC, between 9 identification photographs (1 ⁄2 inches 1625–NEW [Formerly 2115–0009] a.m. and 5 p.m., Monday through 1 by 1 ⁄2 inches). Applications submitted Friday, except Federal holidays. You AGENCY: without the required fee and/or photos Coast Guard, DHS. may also find this docket on the Internet will be returned to the applicant. There ACTION: Request for comments. at http://dms.dot.gov. is no fee for filing a Form I–821 for re- SUMMARY: In compliance with the Copies of the complete ICR are registration. If the applicant requests Paperwork Reduction Act of 1995, this available for inspection and copying in employment authorization, he or she request for comments announces that public docket USCG 2004–17572 at the must submit one hundred and seventy the Coast Guard has forwarded one Docket Management Facility between 10 five dollars ($175) or a properly Information Collection Report (ICR), a.m. and 5 p.m., Monday through documented fee waiver request, Standard Numbering System for Friday, except Federal holidays; for pursuant to 8 CFR 244.20, with the Undocumented Vessels, to the Office of inspection and printing on the Internet Form I–765. An applicant who does not Information and Regulatory Affairs at http://dms.dot.gov; and for inspection request employment authorization must (OIRA) of the OMB for review and from the Commandant (CG–611), U.S. nonetheless file Form I–765 along with comment. Our ICR describes the Coast Guard, room 6106, 2100 Second Form I–821, but is not required to information we seek to collect from the Street SW., Washington, DC, between 10 submit the fee. The seventy-dollar ($70) public. Review and comment by OIRA a.m. and 4 p.m., Monday through biometric services fee is required only ensures that we impose only paperwork Friday, except Federal holidays. for children beneficiaries of TPS who burdens commensurate with our FOR FURTHER INFORMATION CONTACT: Mr. have reached the age of 14 but were not performance of duties. Arthur Requina, Office of Information previously fingerprinted. Failure to re- DATES: Comments must reach the Management, 202–267–2326, for register without good cause will result Document Management Facility on or questions on this document; Ms. Andrea in the withdrawal of TPS. 8 U.S.C. before September 7, 2004. M. Jenkins, Program Manager, U.S. 1254a(c)(3)(C). Some persons who had ADDRESSES: To make sure that your Department of Transportation, 202–366– not previously applied for TPS may be comments and related material do not 0271, for questions on the docket. eligible for late initial registration under enter the docket [USCG 2004–17572] SUPPLEMENTARY INFORMATION 8 CFR 244.2. more than once, please submit them by Public Participation and Request for (5) At least 60 days before this only one of the following means: Comments (1)(a) By mail to the Docket extension terminates on September 17, Management Facility, U.S. Department We encourage you to participate in 2005, the Secretary will review the of Transportation, room PL–401, 400 this request for comment by submitting designation of Somalia for TPS and Seventh Street SW., Washington, DC comments and related materials. We determine whether the conditions for 20590–0001. (b) By mail to OIRA, 725 will post all comments received, designation continue to be met. 8 U.S.C. 17th Street NW., Washington, DC 20503, without change, to http://dms.dot.gov, 1254a(b)(3)(A). Notice of that to the attention of the Desk Officer for and they will include any personal determination, including the basis for the Coast Guard. Caution: Because of information you have provided. We the determination, will be published in recent delays in the delivery of mail, have an agreement with DOT to use the Federal Register. 8 U.S.C. your comments may reach the Facility their Docket Management Facility. 1254a(b)(3)(A). more quickly if you choose one of the Please see the paragraph on DOT’s (6) Information concerning the means described below. ‘‘Privacy Act Policy’’ below. Submitting comments: If you submit a extension of designation of Somalia for (2)(a) By delivery to room PL–401 at comment, please include your name and TPS will be available at local BCIS the address given in paragraph (1)(a) above, between 9 a.m. and 5 p.m., address, identify the docket number for offices upon publication of this notice this request for comment [USCG 2004– and on the BCIS Web site at http:// Monday through Friday, except Federal holidays. The telephone number is 202– 17572], indicate the specific section of uscis.gov. 366–9329. (b) By delivery to OIRA, at this document to which each comment Dated: July 19, 2004. the address given in paragraph (1)(b) applies, and give the reason for each Tom Ridge, above, to the attention of the Desk comment. You may submit your Secretary of Homeland Security. Officer for the Coast Guard. comments and material by electronic means, mail, fax, or delivery to the [FR Doc. 04–18005 Filed 8–5–04; 8:45 am] (3) By fax to (a) the Facility at 202– 493–2298 and (b) OIRA at 202–395– Docket Management Facility at the BILLING CODE 4410–10–P 5806, or e-mail to OIRA at address under ADDRESSES; but please [email protected] attention: submit your comments and material by Desk Officer for the Coast Guard. only one means. If you submit them by (4)(a) Electronically through the Web mail or delivery, submit them in an site for the Docket Management System unbound format, no larger than 81⁄2 by at 11 inches, suitable for copying and http://dms.dot.gov. (b) OIRA does not electronic filing. If you submit them by have a Web site on which you can post mail and would like to know that they your comments. reached the Facility, please enclose a
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stamped, self-addressed postcard or estimated burden of the collection; (3) registered by the States in 2002 was envelope. We will consider all ways to enhance the quality, utility, and nearly 13 million. comments and material received during clarity of the information that is the The SNS collects information on the comment period. We may change subject of the collection; and (4) ways to undocumented vessels and vessel this proposed rule in view of them. minimize the burden of collection on owners. States submit reports annually Viewing comments and documents: respondents, including the use of to the Coast Guard on the number, size, To view comments, as well as automated collection techniques or construction, etc., of vessels they have documents mentioned in this preamble other forms of information technology. numbered. That information is used by as being available in the docket, go to Comments to DMS or OIRA must the Coast Guard— http://dms.dot.gov at any time and contain the OMB Control Number of the (1) In publication of an annual conduct a simple search using the ICR addressed. Comments to DMS must ‘‘Boating Statistics’’ report required by docket number. You may also visit the contain the docket number of this 46 U.S.C. 6102(b), and Docket Management Facility in room request, USCG 2004–17572 comments to (2) For allocation of Federal funds to PL–401 on the Plaza level of the Nassif OIRA are best assured of having their assist States in carrying out the Building, 400 Seventh Street SW., full effect if OIRA receives them 30 or Recreational Boating Safety (RBS) Washington, DC, between 9 a.m. and 5 fewer days after the publication of this Program established by 46 U.S.C. p.m., Monday through Friday, except request. Chapter 131. Federal holidays. Privacy Act: Anyone can search the Information Collection Request On a daily basis or as warranted, Federal, State, and local law electronic form of all comments Title: Standard Numbering System for received in dockets by the name of the enforcement personnel use SNS Undocumented Vessels. information from the States’ numbering individual submitting the comment (or OMB Control Number: 1625–NEW. signing the comment, if submitted on systems for enforcement of boating laws Type of Request: Existing collection in or theft and fraud investigations. In behalf of an association, business, labor use without an OMB control number. union, etc.). You may review the addition, when encountering a vessel Affected Public: Owners of all suspected of illegal activity, information Privacy Act Statement of DOT in the undocumented vessels propelled by Federal Register published on April 11, from the SNS increases officer safety by machinery are required by Federal law assisting boarding officers in 2000 (65 FR 19477), or you may visit to apply for a number from the issuing http://dms.dot.gov. determining how best to approach a authority of the State in which the vessel. Although the statutory Regulatory History vessel is to be principally operated. In requirement for numbering of vessels addition, States may require other This request constitutes the 30-day dates back to 1918, the September 11, vessels, such as sailboats or even canoes notice required by OIRA. The Coast 2001 terrorist attacks on the United and kayaks, to be numbered. ‘‘Owners’’ Guard has already published the 60-day States has increased the need for may include individuals or households, notice required by OIRA (69 FR 20946, identification of undocumented vessels non-profit organizations, and small April 19, 2004). That notice elicited two and their owners for port security and businesses (e.g., liveries that offer comments. other missions to safeguard the One comment, from a non-profit recreational vessels for rental by the homeland. organization that operates a sailing public) or other for-profit organizations. Respondents: Owners of all program for children, objected to the Form: None. undocumented vessels propelled by provision in the Standard Numbering Abstract: Subsection 12301(a) of Title machinery. ‘‘Owners’’ may include System (SNS) regulations that allows 46, United States Code, requires individuals or households, non-profit States, at their discretion, to require undocumented vessels equipped with organizations, and small businesses non-motorized vessels to be numbered. propulsion machinery of any kind to be (e.g., liveries that offer recreational This is not a new provision in the law; numbered in the State where the vessel vessels for rental by the public) or other it has been in place for several decades. is principally operated. In 46 U.S.C. for-profit organizations. The State in which the commenter 12302(a), Congress authorized the Burden: The estimated burden is resides does not require non-motorized Secretary to prescribe, by regulation, a 15,507 hours a year. vessels to be numbered, and is not likely Standard Numbering System (SNS). The Secretary shall approve a State Dated: July 30, 2004. to change its laws to do so based simply Clifford I. Pearson, on publication of an information numbering system if that system is consistent with the SNS. The Secretary Assistant Commandant for C4 and collection notice. We do not plan to Information Technology. amend the proposal. has delegated his authority under 46 The second comment, from a national U.S.C. 12301 and 12302 to the [FR Doc. 04–18018 Filed 8–5–04; 8:45 am] organization representing the State Commandant of the U.S. Coast Guard. BILLING CODE 4910–15–P boating programs responsible for DHS Delegation No. 0170.1 applies. The implementing the SNS regulations in regulations requiring the numbering of DEPARTMENT OF HOMELAND their States, supported the notice. undocumented vessels are in 33 CFR part 173, and regulations establishing SECURITY Request for Comments the SNS for States to voluntarily carry Federal Emergency Management The Coast Guard invites comments on out this function are contained in part Agency the proposed collection of information 174. to determine whether the collection is In States that do not have an approved National Fire Academy Board of necessary for the proper performance of system, the Federal Government (U.S. Visitors the functions of the Department. In Coast Guard) must administer the vessel particular, the Coast Guard would numbering system. Currently, all 56 AGENCY: Federal Emergency appreciate comments addressing: (1) States and Territories have approved Management Agency, Emergency The practical utility of the collection; (2) numbering systems. The approximate Preparedness and Response Directorate, the accuracy of the Department’s number of undocumented vessels Department of Homeland Security.
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ACTION: Committee management: Notice management, and from such areas determined to have been adversely of committee establishment. professional organizations as will affected by the catastrophe declared a ensure a balanced representation of fire major disaster by the President in his SUMMARY: The Secretary of the and emergency services interests. declaration of June 30, 2004: Department of Homeland Security has Members will be appointed as Special Benton and Franklin Counties for Public determined that the establishment of the Government Employees (SGEs). National Fire Academy Board of Visitors Assistance. Members of the Board shall be (The following Catalog of Federal Domestic is necessary and in the public interest appointed for terms of up to three (3) in connection with the performance of Assistance Numbers (CFDA) are to be used years, and members may be reappointed for reporting and drawing funds: 97.030, duties of the Under Secretary of the to three subsequent 3-year terms at the Community Disaster Loans; 97.031, Cora Emergency Preparedness and Response discretion of the Secretary. Board Brown Fund Program; 97.032, Crisis Directorate. This determination follows members will continue to serve until Counseling; 97.033, Disaster Legal Services consultation with the Committee their replacement is appointed. In the Program; 97.034, Disaster Unemployment Management Secretariat, General event of a vacancy on the Board, the Assistance (DUA); 97.046, Fire Management Services Administration. Assistance; 97.048, Individual and Secretary may select an alternate Household Housing; 97.049, Individual and Name of Committee: National Fire member or other individual to serve the Academy Board of Visitors. Household Disaster Housing Operations; unexpired term as described in the 97.050, Individual and Household Program— Purpose and Objectives: The appointment letter. In order to provide Committee advises the Secretary of the Other Needs; 97.036, Public Assistance for continuity of member participation, Grants; 97.039, Hazard Mitigation Grant Department of Homeland Security and terms are staggered. No more than half Program.) the Under Secretary of the Emergency of the members shall be replaced (or Preparedness and Response Directorate. reappointed) in any given year unless Michael D. Brown, The Board shall review annually the there are vacancies for reasons other Under Secretary, Emergency Preparedness programs of the Academy and advise than term expiration. and Response, Department of Homeland the Under Secretary through the U.S. Duration: Continuing. Security. Fire Administrator regarding the Responsible DHS Official: Mr. R. [FR Doc. 04–17968 Filed 8–5–04; 8:45 am] operation of the Academy and any David Paulison, U.S. Fire Administrator, BILLING CODE 9110–10–P improvements therein that the Board 16825 South Seton Avenue, deems appropriate. The Board shall Emmitsburg, MD 21727. make interim advisories to the Under DEPARTMENT OF HOMELAND Dated: July 30, 2004. Secretary through the U.S. Fire SECURITY Administrator whenever there is an Michael D. Brown, indicated urgency to do so in fulfilling Under Secretary, Emergency Preparedness Federal Emergency Management its duties. and Response, Department of Homeland Agency 1. In carrying out their Security. [FEMA–1529–DR] responsibilities, the Board shall include [FR Doc. 04–17969 Filed 8–5–04; 8:45 am] in their review: BILLING CODE 9110–17–P California; Amendment No. 2 to Notice a. An examination of Academy of a Major Disaster Declaration programs to determine whether these programs further the basic missions DEPARTMENT OF HOMELAND AGENCY: Federal Emergency which are approved by the Under SECURITY Management Agency, Emergency Secretary; Preparedness and Response Directorate, b. An examination of the physical Federal Emergency Management Department of Homeland Security. Agency plant of the Academy to determine the ACTION: Notice. adequacy of the Academy facilities; and, [FEMA–1528–DR] c. An examination of the funding SUMMARY: This notice amends the notice levels for the Academy programs. Arkansas; Amendment No. 2 to Notice of a major disaster declaration for the 2. The Board shall submit its annual of a Major Disaster Declaration State of California (FEMA–1529-DR), report through the U.S. Fire dated June 30, 2004, and related AGENCY: Federal Emergency Administrator to the Under Secretary, in determinations. Management Agency, Emergency writing, within thirty (30) days Preparedness and Response Directorate, EFFECTIVE DATE: July 29, 2004. following its meeting. This report shall Department of Homeland Security. FOR FURTHER INFORMATION CONTACT: provide detailed comments and recommendations regarding the ACTION: Notice. Magda Ruiz, Recovery Division, Federal operation of the Academy. The Board Emergency Management Agency, SUMMARY: This notice amends the notice Washington, DC 20472, (202) 646–2705. shall submit interim reports through the of a major disaster declaration for the SUPPLEMENTARY INFORMATION: The notice U.S. Fire Administrator to the Under State of Arkansas (FEMA–1528–DR), Secretary whenever there is an of a major disaster declaration for the dated June 30, 2004, and related State of California is hereby amended to indicated need to do so in the determinations. fulfillment of its duties. include the following areas among those Balanced Membership Plans: The EFFECTIVE DATE: July 28, 2004. areas determined to have been adversely Committee shall be comprised of eight FOR FURTHER INFORMATION CONTACT: affected by the catastrophe declared a members. The Secretary shall appoint Magda Ruiz, Recovery Division, Federal major disaster by the President in his the members of the Board from among Emergency Management Agency, declaration of June 30, 2004: professionals in the fields of fire safety, Washington, DC 20472, (202) 646–2705. All counties in the State of California fire prevention, fire control, research SUPPLEMENTARY INFORMATION: The notice are eligible to apply for assistance under and development in fire protection, of a major disaster declaration for the the Hazard Mitigation Grant Program. treatment and rehabilitation of fire State of Arkansas is hereby amended to (The following Catalog of Federal Domestic victims, or local government services include the following areas among those Assistance Numbers (CFDA) are to be used
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for reporting and drawing funds: 97.030, Grants; 97.039, Hazard Mitigation Grant DEPARTMENT OF HOMELAND Community Disaster Loans; 97.031, Cora Program.) SECURITY Brown Fund Program; 97.032, Crisis Michael D. Brown, Counseling; 97.033, Disaster Legal Services Under Secretary, Emergency Preparedness Federal Emergency Management Program; 97.034, Disaster Unemployment and Response, Department of Homeland Agency Assistance (DUA); 97.046, Fire Management Security. Assistance; 97.048, Individual and [FR Doc. 04–17965 Filed 8–5–04; 8:45 am] [FEMA–1531–DR] Household Housing; 97.049, Individual and BILLING CODE 9110–10–P Household Disaster Housing Operations; South Dakota; Amendment No. 2 to 97.050 Individual and Household Program— Notice of a Major Disaster Declaration Other Needs, 97.036, Public Assistance DEPARTMENT OF HOMELAND Grants; 97.039, Hazard Mitigation Grant SECURITY AGENCY: Federal Emergency Program.) Management Agency, Emergency Michael D. Brown, Federal Emergency Management Preparedness and Response Directorate, Agency Under Secretary, Emergency Preparedness Department of Homeland Security. and Response, Department of Homeland [FEMA–1530–DR] ACTION: Notice. Security. [FR Doc. 04–17967 Filed 8–5–04; 8:45 am] New Jersey; Amendment No. 2 to Notice of a Major Disaster Declaration SUMMARY: This notice amends the notice BILLING CODE 9110–10–P of a major disaster declaration for the AGENCY: Federal Emergency State of South Dakota (FEMA–1531– Management Agency, Emergency DEPARTMENT OF HOMELAND DR), dated July 20, 2004, and related Preparedness and Response Directorate, determinations. SECURITY Department of Homeland Security. ACTION: Notice. EFFECTIVE DATE: July 28, 2004. Federal Emergency Management Agency SUMMARY: This notice amends the notice FOR FURTHER INFORMATION CONTACT: of a major disaster declaration for the Magda Ruiz, Recovery Division, Federal [FEMA–1530–DR] State of New Jersey (FEMA–1530–DR), Emergency Management Agency, dated July 16, 2004, and related Washington, DC 20472, (202) 646–2705. New Jersey; Amendment No. 1 to determinations. SUPPLEMENTARY INFORMATION: The notice Notice of a Major Disaster Declaration EFFECTIVE DATE: July 29, 2004. of a major disaster declaration for the FOR FURTHER INFORMATION CONTACT: State of South Dakota is hereby AGENCY: Federal Emergency Magda Ruiz, Recovery Division, Federal amended to include the following area Management Agency, Emergency Emergency Management Agency, among those areas determined to have Preparedness and Response Directorate, Washington, DC 20472, (202) 646–2705. been adversely affected by the Department of Homeland Security. SUPPLEMENTARY INFORMATION: The notice catastrophe declared a major disaster by ACTION: Notice. of a major disaster declaration for the the President in his declaration of July State of New Jersey is hereby amended 20, 2004: to include the following areas among SUMMARY: This notice amends the notice Yankton County for Public Assistance. of a major disaster for the State of New those areas determined to have been (The following Catalog of Federal Domestic Jersey (FEMA–1530–DR), dated July 16, adversely affected by the catastrophe declared a major disaster by the Assistance Numbers (CFDA) are to be used 2004, and related determinations. President in his declaration of July 16, for reporting and drawing funds: 97.030, EFFECTIVE DATE: July 23, 2004. 2004: Community Disaster Loans; 97.031, Cora All counties in the State of New Jersey Brown Fund Program; 97.032, Crisis FOR FURTHER INFORMATION CONTACT: are eligible to apply for assistance under Counseling; 97.033, Disaster Legal Services Magda Ruiz, Recovery Division, Federal the Hazard Mitigation Grant Program Program; 97.034, Disaster Unemployment Emergency Management Agency, Assistance (DUA); 97.046, Fire Management Washington, DC 20472, (202) 646–2705. (The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used Assistance; 97.048, Individual and Household Housing; 97.049, Individual and SUPPLEMENTARY INFORMATION: Notice is for reporting and drawing funds: 97.030, Household Disaster Housing Operations; hereby given that the incident period for Community Disaster Loans; 97.031, Cora 97.050 Individual and Household Program— this disaster is closed effective July 23, Brown Fund Program; 97.032, Crisis Counseling; 97.033, Disaster Legal Services Other Needs, 97.036, Public Assistance 2004. Program; 97.034, Disaster Unemployment Grants; 97.039, Hazard Mitigation Grant (The following Catalog of Federal Domestic Assistance (DUA); 97.046, Fire Management Program.) Assistance Numbers (CFDA) are to be used Assistance; 97.048, Individual and Michael D. Brown, for reporting and drawing funds: 97.030, Household Housing; 97.049, Individual and Household Disaster Housing Operations; Community Disaster Loans; 97.031, Cora Under Secretary, Emergency Preparedness 97.050 Individual and Household Program— Brown Fund Program; 97.032, Crisis and Response, Department of Homeland Other Needs, 97.036, Public Assistance Security. Counseling; 97.033, Disaster Legal Services Grants; 97.039, Hazard Mitigation Grant Program; 97.034, Disaster Unemployment Program.) [FR Doc. 04–17964 Filed 8–5–04; 8:45 am] Assistance (DUA); 97.046, Fire Management BILLING CODE 9110–10–P Assistance; 97.048, Individual and Michael D. Brown, Household Housing; 97.049, Individual and Under Secretary, Emergency Preparedness Household Disaster Housing Operations; and Response, Department of Homeland 97.050 Individual and Household Program— Security. Other Needs, 97.036, Public Assistance [FR Doc. 04–17966 Filed 8–5–04; 8:45 am] BILLING CODE 9110–10–P
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DEPARTMENT OF HOUSING AND e.g., permitting electronic submission of DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT responses. URBAN DEVELOPMENT [Docket No. FR–4910–N–20] This notice also lists the following [Docket No. FR–4903–N–61] information: Notice of Proposed Information Title of Proposal: Customer Service Notice of Submission of Proposed Collection for Public Comment; and Satisfaction Survey, Resident Information Collection to OMB; Home Customer Service and Satisfaction Assessment Subsystem. Equity Conversion Mortgage (HECM) Survey, Resident Assessment Insurance Application for Reverse OMB Control Number: 2507–0001. Subsystem (RASS) Mortgages and Related Documents Description of the need for the AGENCY: AGENCY: Office of the Assistant information and proposed use: The Office of the Chief Information Secretary for Public and Indian Customer Service and Satisfaction Officer, HUD. Housing, HUD. Survey is the instrument that HUD uses ACTION: Notice. ACTION: Notice. to survey residents residing in assisted SUMMARY: The proposed information and insured housing. The survey SUMMARY: The proposed information collection requirement described below assesses residents’ satisfaction with has been submitted to the Office of collection requirement described below housing services and living conditions. will be submitted to the Office of Management and Budget (OMB) for HUD conducts a Customer Service and review, as required by the Paperwork Management and Budget (OMB) for Satisfaction survey of assisted and review, as required by the Paperwork Reduction Act. The Department is insured housing residents annually. A soliciting public comments on the Reduction Act. The Department is random sample of residents is taken soliciting public comments on the subject proposal. within each public housing agency and HUD is requesting approval to collect subject proposal. surveyed on an annual basis in information relating to reverse mortgage DATES: Comments due date: October 5, accordance with Public Housing applications and related documents are 2004. Assessment System (PHAS) used to determine the eligibility of the ADDRESSES: Interested persons are requirements and regulation. PHAs are borrower and proposed mortgage invited to submit comments regarding required to announce the survey and transaction for FHA insurance this proposal. Comments should refer to follow-up on substandard scores. endorsement. This submission is a the proposal by name/or OMB Control Approximately twenty percent of consolidation of additional consumer number and should be sent to: Sherry multifamily residents are surveyed notification requirements formerly Forbear McCown, Reports Liaison annually from a stratified sample of approved under 2502–0534 and 2502– Officer, Public and Indian Housing, selected properties. No implementation 0546. Department of Housing and Urban or follow-up is required for multifamily DATES: properties. Comments Due Date: September Development, 451 7th Street, SW., 7, 2004. Room 4116, Washington, DC 20410– Agency form number, if applicable: ADDRESSES: 5000. Interested persons are Not applicable. invited to submit comments regarding FOR FURTHER INFORMATION CONTACT: Members of affected public: Public this proposal. Comments should refer to Sherry Fobear McCown, (202) 708– housing agencies and multi-family the proposal by name and/or OMB 0713, extension 7651, for copies of the owners. approval Number (2502–0524) and proposed forms and other available Estimation of the total number of should be sent to: HUD Desk Officer, documents. (This is not a toll-free hours needed to prepare the information Office of Management and Budget, New number). collection including number of Executive Office Building, Washington, SUPPLEMENTARY INFORMATION: The respondents: 580,797 residents receive DC 20503; fax: 202–395–6974. Department will submit the proposed the survey, 3170 PHAs submit FOR FURTHER INFORMATION CONTACT: information collection to OMB for implementation and follow-up plans, Wayne Eddins, Reports Management review, as required by the Paperwork HUD receives a total of 216,979 Officer, AYO, Department of Housing Reduction Act of 1995 (44 U.S.C. responses from residents and PHAs and Urban Development, 451 Seventh chapter 35, as amended). This Notice is (total based on 37% response rate for Street, SW., Washington, DC 20410; e- soliciting comments from members of survey); annual submission per resident mail [email protected]; the public and affected agencies respondents and PHAs; average hours telephone (202) 708–2374. This is not a concerning the proposed collection of for resident response is 15 minutes; toll-free number. Copies of available information to: (1) Evaluate whether the average hours for PHA response is 5.45 documents submitted to OMB may be proposed collection of information is hours; the total reporting burden is obtained from Mr. Eddins and at HUD’s necessary for the proper performance of 64,021 hours. Web site at http://www5.hud.gov:63001/ the functions of the agency, including Status of the proposed information po/i/icbts/collectionsearch.cfm. whether the information will have collection: Extension of currently SUPPLEMENTARY INFORMATION: This practical utility; (2) evaluate the approved collection. Notice informs the public that the U.S. accuracy of the agency’s estimate of the Department of Housing and Urban burden of the proposed collection of Authority: Section 3506 of the Paperwork Development (HUD) has submitted to Reduction Act of 1995, 44 U.S.C. chapter 35, information; (3) enhance the quality, as amended. OMB, for emergency processing, a utility, and clarity of the information to survey instrument to obtain information be collected; and (4) minimize the Dated: July 30, 2004. from faith based and community burden of the collection of information Paula O. Blunt, organizations on their likelihood and on those who are to respond, including General Deputy Assistant Secretary for Public success at applying for various funding through the use of appropriate and Indian Housing. programs. This notice is soliciting automated collection techniques or [FR Doc. 04–17944 Filed 8–5–04; 8:45 am] comments from members of the public other forms of information technology; BILLING CODE 4210–33–M and affecting agencies concerning the
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proposed collection of information to: through the use of appropriate Description of the Need for the (1) Evaluate whether the proposed automated collection techniques or Information and Its Proposed Use: The collection of information is necessary other forms of information technology, HECM reverse mortgage applications for the proper performance of the e.g., permitting electronic submission of and related documents are used to functions of the agency, including responses. determine the eligibility of the borrower whether the information will have This notice also lists the following and proposed mortgage transaction for practical utility; (2) Evaluate the information: FHA insurance endorsement. This Title of Proposal: Home Equity accuracy of the agency’s estimate of the submission is a consolidation of Conversion Mortgage (HECM) Insurance burden of the proposed collection of additional consumer notification Application for Reverse Mortgages and information; (3) Enhance the quality, requirements formerly approved under Related Documents. utility, and clarity of the information to OMB Approval Number: 2502–0524. 2502–0534 and 2502–0546. be collected; and (4) Minimize the Form Numbers: Fannie Mae Form Frequency of Submission: On burden of the collection of information 1009, HUD Form 92901, HUD Form occasion, at sale or transfer. on those who are to respond; including 92902.
Number of Annual × Hours per respondents responses response = Burden hours
Reporting Burden ...... 17,000 102,000 0.36 39,950
Total Estimated Burden Hours: requirements for reporting the sale of a comments from members of the public 39,950. mortgage between investors and/or the and affecting agencies concerning the Status: Revision of a currently transfer of the mortgage servicing proposed collection of information to: approved collection. responsibility, as appropriate. (1) Evaluate whether the proposed Authority: Section 3507 of the Paperwork DATES: Comments Due Date: September collection of information is necessary Reduction Act of 1995, 44 U.S.C. 35, as 7, 2004. for the proper performance of the amended. functions of the agency, including ADDRESSES: Interested persons are whether the information will have Dated: July 30, 2004. invited to submit comments regarding practical utility; (2) Evaluate the Wayne Eddins, this proposal. Comments should refer to accuracy of the agency’s estimate of the Departmental Reports Management Officer, the proposal by name and/or OMB burden of the proposed collection of Office of the Chief Information Officer. approval Number (2502–0422) and information; (3) Enhance the quality, [FR Doc. 04–17945 Filed 8–5–04; 8:45 am] should be sent to: HUD Desk Officer, utility, and clarity of the information to Office of Management and Budget, New BILLING CODE 4210–72–P be collected; and (4) Minimize the Executive Office Building, Washington, burden of the collection of information DC 20503; fax: 202–395–6974. on those who are to respond; including DEPARTMENT OF HOUSING AND FOR FURTHER INFORMATION CONTACT: URBAN DEVELOPMENT through the use of appropriate Wayne Eddins, Reports Management automated collection techniques or [Docket No. FR–4903–N–60] Officer, AYO, Department of Housing other forms of information technology, and Urban Development, 451 Seventh e.g., permitting electronic submission of Notice of Submission of Proposed Street, SW., Washington, DC 20410; e- responses. Information Collection to OMB; mail [email protected]; This notice also lists the following Mortgage Record Change telephone (202) 708–2374. This is not a information: toll-free number. Copies of available AGENCY: Office of the Chief Information Title of Proposal: Mortgage Record documents submitted to OMB may be Officer, HUD. Change. obtained from Mr. Eddins and at HUD’s ACTION: Notice. OMB Approval Number: 2502–0422. Web site at http://www5.hud.gov:63001/ Form Numbers: None. SUMMARY: The proposed information po/i/icbts/collectionsearch.cfm. Description of the Need for the collection requirement described below SUPPLEMENTARY INFORMATION: This Information and Its Proposed Use: The has been submitted to the Office of Notice informs the public that the U.S. Mortgage Record Change information is Management and Budget (OMB) for Department of Housing and Urban used by FHA-approved mortgages to review, as required by the Paperwork Development (HUD) has submitted to comply with HUD requirements for Reduction Act. The Department is OMB, for emergency processing, a reporting the sale of a mortgage between soliciting public comments on the survey instrument to obtain information investors and/or the transfer of the subject proposal. from faith based and community mortgage servicing responsibility, as HUD is requesting continued approval organizations on their likelihood and appropriate. to collect Mortgage Record Change success at applying for various funding Frequency of Submission: On information to comply with HUD programs. This notice is soliciting occasion, at sale or transfer.
Number of × Hours per respondents Annual responses response = Burden hours
Reporting Burden ...... 6,000 467 0.1 280,000
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Total Estimated Burden Hours: household pets in the tenant’s dwelling for the proper performance of the 280,000. unit, or discriminate against any person functions of the agency, including Status: Extension of a currently regarding admission to such Housing whether the information will have approved collection. because of ownership or presence of a practical utility; (2) Evaluate the Authority: Section 3507 of the Paperwork pet in the person’s dwelling unit. accuracy of the agency’s estimate of the Reduction Act of 1995, 44 U.S.C. 35, as DATES: Comments Due Date: September burden of the proposed collection of amended. 7, 2004. information; (3) Enhance the quality, Dated: July 30, 2004. ADDRESSES: Interested persons are utility, and clarity of the information to be collected; and (4) Minimize the Wayne Eddins, invited to submit comments regarding this proposal. Comments should refer to burden of the collection of information Departmental Reports Management Officer, on those who are to respond; including Office of the Chief Information Officer. the proposal by name and/or OMB through the use of appropriate [FR Doc. 04–17946 Filed 8–5–04; 8:45 am] approval Number (2502–0342) and should be sent to: HUD Desk Officer, automated collection techniques or BILLING CODE 4210–72–P Office of Management and Budget, New other forms of information technology, Executive Office Building, Washington, e.g., permitting electronic submission of DEPARTMENT OF HOUSING AND DC 20503; fax: 202–395–6974. responses. URBAN DEVELOPMENT FOR FURTHER INFORMATION CONTACT: This notice also lists the following Wayne Eddins, Reports Management information: [Docket No. FR–4903–N–62] Officer, AYO, Department of Housing Title of Proposal: Pet Ownership in and Urban Development, 451 Seventh Notice of Submission of Proposed Assisted Rental Housing for the Elderly Street, SW., Washington, DC 20410; e- Information Collection to OMB; Pet or Handicapped. mail [email protected]; Ownership in Assisted Rental Housing OMB Approval Number: 2502–0342. telephone (202) 708–2374. This is not a for the Elderly or Handicapped toll-free number. Copies of available Form Numbers: None. AGENCY: Office of the Chief Information documents submitted to OMB may be Description of the Need for the Officer, HUD. obtained from Mr. Eddins and at HUD’s Information and Its Proposed Use: Information is distributed to tenants of ACTION: Notice. Web site at http://www5.hud.gov:63001/ po/i/icbts/collectionsearch.cfm. assisted rental housing units detailing SUMMARY: The proposed information SUPPLEMENTARY INFORMATION: This guidelines for pet ownership. The collection requirement described below Notice informs the public that the U.S. information is necessary because no has been submitted to the Office of Department of Housing and Urban owner of federally assisted rental Management and Budget (OMB) for Development (HUD) has submitted to housing for the elderly or handicapped review, as required by the Paperwork OMB, for emergency processing, a may prohibit a tenant from having Reduction Act. The Department is survey instrument to obtain information common household pets in the tenant’s soliciting public comments on the from faith based and community dwelling unit, or discriminate against subject proposal. organizations on their likelihood and any person regarding admission to such Information is distributed to tenants success at applying for various funding housing because of ownership or of assisted rental housing units detailing programs. This notice is soliciting presence of a pet in the person’s guidelines for pet ownership. The comments from members of the public dwelling unit. information is necessary because no and affecting agencies concerning the Frequency of Submission: On owner of federally assisted rent housing proposed collection of information to: occasion, information is distributed at for the elderly or handicapped may (1) Evaluate whether the proposed initial tenancy and/or if pet rules are prohibit a tenant from having common collection of information is necessary revised.
Number of Annual × Hours per respondents responses response = Burden hours
Reporting Burden ...... 8,793 14.05 0.231 28,671
Total Estimated Burden Hours: DEPARTMENT OF HOUSING AND FOR FURTHER INFORMATION CONTACT: 28,671. URBAN DEVELOPMENT Kathy Burruss, Department of Housing Status: Extension of a currently and Urban Development, Room 7262, [Docket No. FR–4901–N–32] approved collection. 451 Seventh Street, SW., Washington, DC 20410; telephone (202) 708–1234; Authority: Section 3507 of the Paperwork Federal Property Suitable as Facilities TTY number for the hearing- and Reduction Act of 1995, 44 U.S.C. 35, as to Assist the Homeless speech-impaired (202) 708–2565, (these amended. AGENCY: Office of the Assistant telephone numbers are not toll-free), or Dated: July 30, 2004. Secretary for Community Planning and call the toll-free Title V information line Wayne Eddins, Development, HUD. at 1–800–927–7588. Departmental Reports Management Officer, ACTION: Notice. SUPPLEMENTARY INFORMATION: In Office of the Chief Information Officer. accordance with the December 12, 1988 [FR Doc. 04–17947 Filed 8–5–04; 8:45 am] SUMMARY: This Notice identifies court order in National Coalition for the unutilized, underutilized, excess, and BILLING CODE 4210–72–P Homeless v Veterans Administration, surplus Federal property reviewed by No. 88–2503–OG (D.D.C.), HUD HUD for suitability for possible use to publishes a Notice, on a weekly basis, assist the homeless. identifying unutilized, underutilized, DATES: Effective August 6, 2004. excess and surplus Federal buildings
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and real property that HUD has Written comments should be submitted Housing Act), 42 U.S.C. 3601 et seq., reviewed for suitability for use to assist to Surrell Silverman, Reports Liaison makes it unlawful to discriminate in any the homeless. Today’s notice is for the Officer, Office of Fair Housing and aspect relating to the sale or rental of purpose of announcing that no Equal Opportunity at 451 Seventh dwellings, in the availability of additional properties have been Street, SW., Room 5124, Washington, residential real estate-related determined suitable or unsuitable this DC 20410–0500. Telephone number transactions, or in the provision of week. (202) 708–4150. Written comments must services and facilities in connection Dated: July 29, 2004. be submitted by close of business (6 therewith because of race, color, 2 Mark R. Johnston, p.m. EDT). religion, sex, disability (handicap), Location of Documents: The HUD familial status, or national origin. Director, Office of Special Needs Assistance draft report is located at [http:// The Fair Housing Act (the Act) and Programs. www.hud.gov/offices/fheo/disabilities/ the Department’s implementing [FR Doc. 04–17678 Filed 8–5–04; 8:45 am] modelcodes/]. The Fair Housing Act, the regulations provide that discrimination BILLING CODE 4210–29–M Fair Housing Act regulations, and the includes the failure to design and Fair Housing Accessibility Guidelines construct covered multifamily dwellings DEPARTMENT OF HOUSING AND can also be obtained through links built for first occupancy after March 13, URBAN DEVELOPMENT provided at this Web site. The report is 1991 to include certain features of designed primarily to provide technical accessible and adaptable design. [Docket No. FR–4943–N–01] assistance in response to the request the Covered multifamily dwellings are Department received from ICC and thus, ‘‘buildings consisting of 4 or more units Notice of Draft Report of the U.S. because the report is responding to code if such buildings have one or more Department of Housing and Urban language, it may be using terms elevators; and ground floor units in Development Review of the Fair unfamiliar to the general public. The other buildings consisting of 4 or more Housing Accessibility Requirements in Department has arranged to have all of units.’’ 42 U.S.C. 3604(f)(7). The Act’s the 2003 International Building Code the source documents that the requirements apply irrespective of type Accessibility Provisions and Department used in the analysis of ownership, covering both rental and Solicitation of Comments available to the public during the period for sale units, as long as there are four AGENCY: Office of the Assistant of this request for public comments. The or more units in the building. Covered Secretary for Fair Housing and Equal source documents that the Department multifamily dwellings must be designed Opportunity, HUD. reviewed are available at http:// and constructed so that: (1) The public _ and common use portions of such ACTION: Notice and solicitation of fairhousing.iccsafe.org/nt 2000. ICC has comments. agreed to provide free of charge access dwellings are readily accessible to and to the chapters of the 2003 IBC that the usable by persons with disabilities; (2) SUMMARY: The United States Department Department reviewed. The 1998 edition All the doors designed to allow passage of Housing and Urban Development of the American National Standards into and within all premises within (HUD or the Department) announces a Institute (ANSI) A117.1 standard, such dwellings are sufficiently wide to draft report of its review of the Fair ‘‘Accessible and Usable Buildings and allow passage by disabled persons in Housing Act’s accessibility Facilities,’’ is available for purchase at wheelchairs; and (3) All premises requirements in the 2003 International that Web address. within such dwellings contain the Building Code.1 The Department Copies of all the relevant documents following features of adaptive design: (a) conducted this review in response to a are also available for viewing at the An accessible route into and through the request from the International Code HUD Library at 451 Seventh St., SW., dwelling; (b) Light switches, electrical Council (ICC). The draft report identifies Washington, DC 20410. To gain outlets, thermostats, and other the variances between the Fair Housing admission to the HUD Library you must environmental controls in accessible Act’s design and construction present identification to the security locations; (c) Reinforcements in requirements and the 2003 International guards and ask to visit the library. bathroom walls to allow later Building Code. Photocopying in the HUD library is installation of grab bars; and (d) Usable The draft report discusses only limited to 40 pages. With the exception kitchens and bathrooms such that an variances that may not meet the Fair of the HUD draft report, all of the source individual in a wheelchair can Housing Act’s design and construction documents are copyrighted and maneuver about the space. 42 U.S.C. requirements. As stated in the therefore not available for 3604(f)(3)(C). These basic accessibility SUPPLEMENTARY INFORMATION section of photocopying. requirements are known as the Act’s this notice, the draft report is a design and construction requirements. FOR FURTHER INFORMATION CONTACT: precursor to a final report that HUD will The Act does not set forth specific Cheryl Kent, Special Advisor for publish in the Federal Register. After technical design criteria that have to be Disability Policy, Office of Fair Housing receipt and review of public comments, followed in order to comply with the and Equal Opportunity, Department of the Department will make its final design and construction requirements. It Housing and Urban Development, 451 revisions to the draft report and then does provide, however, that compliance Seventh Street, SW., Room 5240, issue the final report. with the appropriate requirements of the Washington, DC 20410–0500; telephone American National Standard Institute DATES: Comments Due Date: September (202) 708–2333, extension 7058 (voice). for Buildings and Facilities—Providing 7, 2004. (This is not a toll-free number). Hearing Submission of Comments & Accessibility and Usability for or speech-impaired individuals may Physically Handicapped People, Addresses: Interested persons are access this number through TTY by invited to submit comments regarding calling the toll-free Federal Information 2 the issues discussed in this draft report. The Fair Housing Act refers to people with Relay Service at 800–877–8399 (TTY). ‘‘handicaps.’’ Subsequently, in the Americans with SUPPLEMENTARY INFORMATION: Disabilities Act of 1990 and other legislation. 1 The 2003 International Building Code is a Title VIII Congress adopted the term ‘‘persons with copyrighted work owned by the International Code of the Civil Rights Act of 1968, as disabilities,’’ or ‘‘disability,’’ which is the preferred Council, Inc. amended (commonly known as the Fair usage.
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commonly referred to as ANSI A117.1, the Act, the Guidelines, or ICC/ANSI implement provisions of the Paperwork satisfies the Act’s design and A117.1–1998. If a particular provision of Reduction Act of 1995 (44 U.S.C. 3501 construction requirements for the a code is not discussed, then the reader et seq.), require that interested members interiors of dwelling units. 42 U.S.C. should presume that the position of the of the public and affected agencies have 3604(f)(4). Department is that the provision meets an opportunity to comment on The Act states that Congress did not the requirements of the Act even if the information collection and intend the Department to require states wording of the code provision and the recordkeeping activities (see 5 CFR and units of local government to include Act’s requirements are not identical. 1320.8(d)). We plan to submit a request the Act’s accessibility requirements in The Department will consider all to OMB to renew approval of the their state and local procedures for the comments received by close of business collection of information for the review and approval of newly (6:00 p.m. EDT) on September 7, 2004 Employee Exit Follow-Up Survey. We constructed covered multifamily and will then publish its final report in are requesting a 3-year term of approval dwellings. 42 U.S.C. Sec. 3604(f)(5)(C). the Federal Register. for this information collection activity. However, Congress authorized the Dated: July 30, 2004. Federal agencies may not conduct or Department to encourage the inclusion sponsor and a person is not required to of these requirements into their state Carolyn Peoples, respond to a collection of information and local procedures. Id. In addition, Assistant Secretary for Fair Housing and unless it displays a currently valid OMB Congress directed the Secretary of HUD Equal Opportunity. control number. The OMB control to ‘‘provide technical assistance to states [FR Doc. 04–17942 Filed 8–5–04; 8:45 am] number for this collection of and units of local government and other BILLING CODE 4210–28–P information is 1018–0112. persons to implement [the design and The Fish and Wildlife Service is the construction requirements].’’ principal Federal agency responsible for ICC requested that the Department DEPARTMENT OF THE INTERIOR conserving, protecting, and enhancing determine whether the accessibility fish, wildlife, and plants and their provisions of the 2003 International Fish and Wildlife Service habitats for the continuing benefit of the Building Code meet the accessibility American people. We manage the 95- requirements of the Act, the Information Collection To Be million-acre National Wildlife Refuge Department’s regulations implementing Submitted to the Office of Management System, which encompasses 542 the 1988 Amendments to the Act, and and Budget (OMB) for Approval Under national wildlife refuges, thousands of the Fair Housing Accessibility the Paperwork Reduction Act; Fish and small wetlands and other special Guidelines (the Guidelines). The Wildlife Service Employee Exit Follow- management areas. We also operate 69 Department believes such reviews fall Up Survey (1018–0112) national fish hatcheries, 64 fishery under its authority to provide technical AGENCY: Fish and Wildlife Service, resource offices, and 81 ecological assistance under the Act. The purpose Interior. services field stations. We enforce of the Department’s draft report is to ACTION: Notice; request for comments. Federal wildlife laws, administer the present the results of and seek public Endangered Species Act, manage comment on the Department’s review of SUMMARY: The Fish and Wildlife Service migratory bird populations, restore certain accessibility provisions of the (we/our) will submit the collection of nationally significant fisheries, conserve 2003 International Building Code information listed below to OMB for and restore wildlife habitat such as (‘‘2003 IBC’’), published by ICC. approval under the provisions of the wetlands, and help foreign governments The Department is not promulgating Paperwork Reduction Act. A description with their conservation efforts. We also any new technical requirements or of the information collection oversee the Federal Assistance program standards by way of this draft report. requirement is included in this notice. that distributes hundreds of millions of This draft report and the final report If you wish to obtain copies of the dollars in excise taxes on fishing and will serve solely to respond to ICC’s proposed information collection hunting equipment to State fish and request for technical assistance and to requirement, related forms, or wildlife agencies. We have made it a provide technical assistance to other explanatory material, contact the high priority to recruit and retain valued interested parties. This request for Service Information Collection employees to accomplish these comment on the draft report is not a Clearance Officer at the address listed responsibilities. As part of an active solicitation for changes to the design below. career development program, we have and construction requirements of the instituted an Employee Exit Follow-Up DATES: You must submit comments on Act, the Department’s implementing survey to collect feedback from former or before October 5, 2004. regulations, or the Guidelines. Fish and Wildlife Service employees so Prior to finalizing this report, the ADDRESSES: Send your comments on the that we may discover relevant issues Department seeks public comment on requirement to Hope Grey, Information that impact retention. If this survey the identification of variances and the Collection Clearance Officer, Fish and were not used, there would be no way recommendations contained in the draft Wildlife Service, MS 222–ARLSQ, 4401 we could analyze the reasons for N. Fairfax Drive, Arlington, VA 22203; report. Department staff have carefully _ employee separation. reviewed and commented on the draft Hope [email protected] (e-mail); or (703) During the past three years that we report and would like to hear from 358–2269 (fax). have used this survey, we received persons with disabilities, organizations FOR FURTHER INFORMATION CONTACT: To comments from several respondents. representing persons with disabilities, request a copy of the information These comments ranged from gratitude code officials, home builders, and other collection request, explanatory that we collect this information to interested parties prior to finalizing the information, or related forms, contact skepticism that the survey would result report. Hope Grey at (703) 358–2482 or e-mail in any workplace changes. There were The draft report focuses only on the [email protected]. three comments that addressed specific areas where the 2003 IBC does not meet SUPPLEMENTARY INFORMATION: The Office aspects of the survey. The first the requirements of the Act, the of Management and Budget (OMB) commenter noted that questions 12, 16, Department’s regulations implementing regulations at 5 CFR 1320, which 17, and 18 were particularly difficult to
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answer. The second commenter DEPARTMENT OF THE INTERIOR conservation of a particular species. expressed concern that, because the Section 4(f) of the Act, as amended in survey required the respondent’s job Fish and Wildlife Service 1988, requires public notice and title and Region, anyone looking at the opportunity for public review and completed survey would know who had Notice of Availability of the Scaleshell comment be provided during recovery Mussel (Leptodea leptodon) Draft written it. The third commenter raised plan development. The Service will Recovery Plan for Review and the issue that the survey questions did consider all information presented Comment not adequately capture the problems during a public comment period prior to that would cause an office to have a AGENCY: Fish and Wildlife Service, approval of each new or revised high attrition rate. We have not made Interior. recovery plan. The Service and other any changes to the survey in response ACTION: Notice of document availability. Federal agencies will also take these to these comments. Regarding the first comments into consideration in the commenter’s suggestion, the commenter SUMMARY: The U.S. Fish and Wildlife course of implementing approved found the questions difficult because of Service (Service) announces availability recovery plans. feelings towards the organization’s for public review of the draft recovery The scaleshell was listed as management, not because of the plan for the scaleshell mussel (Leptodea endangered on October 9, 2001. It once questions themselves. The second leptodon), a species that is federally occurred in 55 rivers across 13 states in commenter’s concern did not result in a listed as endangered under the the Mississippi River drainage. The change to the survey question because Endangered Species Act of 1973 (Act), species has undergone a dramatic the reported results are aggregated and as amended (16 U.S.C. 1531 et. seq.). reduction in range and has further not personally identifiable. Finally, The purpose of this plan is to recover declined in the last few decades. regarding the third comment, the this species in order that it can be Currently, only 14 rivers support very removed from the list of Threatened and reported results are giving us valuable small populations in Arkansas, Endangered Species. Currently, only 14 insight into the reasons why employees Missouri, and Oklahoma. The scaleshell rivers support very small populations in are separating from the Fish and occurs in medium to large rivers with Arkansas, Missouri, and Oklahoma. The Wildlife Service. low to medium gradients. It primarily Service solicits review and comment inhabits gravel or mud substrate in Title of Collection: Employee Exit from the public on this draft plan. stable riffles and runs with moderate Follow-Up Survey, authorized by the DATES: Comments on the draft recovery current velocity. The scaleshell requires Merit System Principles (5 U.S.C. 2301). plan must be received on or before good water quality and is usually found OMB Control Number: 1018–0112. September 7, 2004. where a diversity of other mussel Form Number: FWS 3–2186. ADDRESSES: Persons wishing to review species are concentrated. More specific the draft recovery plan may obtain a habitat requirements of scaleshell are Frequency of Collection: Annually. copy by contacting the Field Supervisor, unknown, particularly habitat Description of Respondents: Former U.S. Fish and Wildlife Service, requirements of the juvenile stage. Fish and Wildlife Service employees. Ecological Services Field Office, 608 E. Water quality degradation, Total Annual Burden Hours: 100 Cherry St., Room 200, Columbia, sedimentation, channel instability, and hours. The reporting burden is Missouri 65201–7712 (telephone (573) habitat destruction are contributing to estimated to average 15 minutes per 876–1911) or by accessing the Web site: the decline of the scaleshell throughout respondent. http://midwest.fws.gov/Endangered. its range. FOR FURTHER INFORMATION CONTACT: The scaleshell will be considered for Total Annual Responses: About 400 Mr. Andy Roberts at the above address and downlisting to threatened status when individuals are expected to participate the likelihood of the species becoming in the survey annually. telephone (ext. 110). TTY users may contact Mr. Roberts through the Federal extinct in the foreseeable future has We invite comments concerning this Relay Service at (800) 877–8339. been eliminated by the achievement of submission on: (1) Whether or not the SUPPLEMENTARY INFORMATION: the following criteria: (1) Through collection of information is necessary protection of existing populations, for the proper performance of our career Background successful establishment of development functions, including Restoring an endangered or reintroduced populations, or discovery whether or not the information will threatened animal or plant to the point of additional populations, four stream have practical utility; (2) the accuracy of where it is again a secure self-sustaining populations exist, each in a separate our estimate of the burden of the member of its ecosystem is a primary watershed and each made up of at least collection of information; (3) ways to goal of the Service’s endangered species four local populations that are located enhance the quality, utility, and clarity program. To help guide the recovery in distinct areas of the stream; (2) all of the information to be collected; and, effort, the Service is working to prepare local populations are persistent and (4) ways to minimize the burden of the recovery plans for most of the federally viable in terms of population size, age collection of information on listed threatened and endangered structure, and recruitment; (3) each respondents. The information species native to the United States. local population and their habitat are collections in this program are part of a Recovery plans describe actions sufficiently protected from any present system of records covered by the considered necessary for conservation of and foreseeable threats that would Privacy Act (5 U.S.C. 552(a)). the species, establish criteria for jeopardize their continued existence; (4) tasks will be completed to determine if Dated: July 30, 2004. reclassification and delisting, and provide estimates of the time and costs water quality criteria should be Hope Grey, for implementing the recovery measures included as a delisting criteria and, if Service Information Collection Clearance needed. so, water quality criteria for delisting Officer. The Act requires the development of will be developed; and (5) measures are [FR Doc. 04–17957 Filed 8–5–04; 8:45 am] recovery plans for listed species unless in place to prevent the spread of zebra BILLING CODE 4310–55–P such a plan would not promote the mussels into habitat occupied by the
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scaleshell where zebra mussels have not sent to the Field Supervisor, Ecological where it is again a secure self-sustaining become established. Services Field Office (see ADDRESSES member of its ecosystem is a primary The scaleshell will be considered for section). Comments received will be goal of the Service’s endangered species delisting when the likelihood of the available for public inspection by program. To help guide the recovery species becoming threatened in the appointment during normal business effort, the Service is working to prepare foreseeable future has been eliminated hours. recovery plans for most of the federally by the achievement of the following Authority: The authority for this action is listed threatened and endangered criteria: (1) Through protection of section 4(f) of the Endangered Species Act, species native to the United States. existing populations, successful 16 U.S.C. 1533(f). Recovery plans describe actions establishment of reintroduced Dated: July 14, 2004. considered necessary for conservation of populations, or discovery of additional the species, establish criteria for Ms. Lynn Lewis, populations, a total of eight stream reclassification and delisting, and populations exist in separate Acting Assistant Regional Director, Ecological provide estimates of the time and costs Services, Region 3. watersheds, one located in the Upper for implementing the recovery Mississippi Basin, four in the Middle [FR Doc. 04–17974 Filed 8–5–04; 8:45 am] measures. Mississippi River Basin (including two BILLING CODE 4310–55–P The Act requires the development of east of the Mississippi River), and three recovery plans for listed species unless in the Lower Mississippi River Basin, such a plan would not promote the DEPARTMENT OF THE INTERIOR and each of these is made up of four conservation of a particular species. local and geographically distinct Fish and Wildlife Service Section 4(f) of the Act, as amended in populations; (2) all local populations are 1988, requires that public notice and persistent and viable in terms of Notice of Availability of the opportunity for public review and population size, age structure, and Hungerford’s Crawling Water Beetle comment be provided during recovery recruitment; (3) each local population (Brychius hungerfordi) Draft Recovery plan development. The Service will and their habitat are sufficiently Plan for Review and Comment consider all information presented protected from any present and during a public comment period prior to foreseeable threats that would AGENCY: Fish and Wildlife Service, approval of each new or revised jeopardize their continued existence; (4) Interior. recovery plan. The Service and other measures are in place to prevent the ACTION: Notice of document availability. Federal agencies will also take these spread of zebra mussels into habitat comments into consideration in the SUMMARY: The U.S. Fish and Wildlife occupied by the scaleshell where zebra course of implementing approved Service (Service) announces availability mussels have not become established; recovery plans. for public review of the draft recovery and (5) water quality criteria may be Hungerford’s crawling water beetle plan for the Hungerford’s crawling added to the recovery criteria for was listed as endangered on March 7, water beetle (Brychius hungerfordi), a delisting upon completion of the tasks 1994. At the time of its listing, this species that is federally listed as referred to under the recovery criteria species was known to occur at only endangered under the Endangered for reclassification. Additional detail on three locations—two in Michigan and Species Act of 1973 (Act), as amended downlisting and delisting criteria is one in Ontario, Canada. Since then, two (16 U.S.C. 1531 et seq.). The purpose of available in the draft recovery plan. additional sites in Michigan have been this plan is to recover this species so These criteria will be met through the discovered. The distribution of this that it can be removed from the list of following actions: (1) Prevent the species prior to its discovery in 1952 is Threatened and Endangered Species. extirpation and stabilize existing not known. Currently, only one site is The species is only known to occur at populations through artificial believed to support a stable population four sites in Michigan and one site in propagation; (2) form partnerships and of the species. The species occurs in low Ontario, Canada. The Service solicits use existing programs to protect numbers at the other four sites, and the review and comment from the public on remaining populations, restore habitat, status of these populations is not this draft plan. and improve surface lands; (3) improve known. Hungerford’s crawling water understanding of the biology and DATES: Comments on the draft recovery beetle is an aquatic species that is found ecology of scaleshell; (4) further plan must be received on or before in streams downstream from culverts, delineate the current status and September 7, 2004. beaver and natural debris dams, and distribution of scaleshell; (5) restore ADDRESSES: Persons wishing to review human-made impoundments. It is found degraded habitat in areas of historical the draft recovery plan may obtain a in areas of streams with good aeration, range; (6) reintroduce scaleshell into copy by contacting the Field Supervisor, moderate to fast flow, inorganic portions of its former range; (7) initiate U.S. Fish and Wildlife Service, substrate, and alkaline water conditions. various educational and public outreach Ecological Services Field Office, 2651 Very little information is available on actions to heighten awareness of the Coolidge Road, Suite 101, East Lansing, the life history and habitat requirements scaleshell as an endangered species and Michigan 48823–6316 (telephone (517) of this species. Threats appear to be solicit help with recovery actions; and 351–2555) or by accessing the Web site: related to habitat alteration and (8) track recovery and conduct periodic http://midwest.fws.gov/Endangered. degradation of water quality, and may evaluations with respect to recovery FOR FURTHER INFORMATION CONTACT: Ms. include habitat modification, fish criteria. Carrie Tansy at the above address and management activities, and human telephone (ext. 289). TTY users may disturbance. Factors limiting the species Public Comments Solicited contact Ms. Tansy through the Federal distribution are not known. The small The Service solicits written comments Relay Service at (800) 877–8339. size and limited distribution of on the draft recovery plan. All SUPPLEMENTARY INFORMATION: Hungerford’s crawling water beetle comments received by the date specified make it vulnerable to chance will be considered prior to approval of Background demographic and environmental events. the plan. Written comments and Restoring an endangered or The draft recovery plan recommends materials regarding the plan should be threatened animal or plant to the point research to examine important
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components of the species’ biology and Dated: July 23, 2004. Yurok Tribal Council on December 19, ecology that will contribute greatly to Mr. Robert Krska, 2003. the recovery program. Acting Assistant Regional Director, Ecological Dated: July 30, 2004. Services, Region 3. Hungerford’s crawling water beetle David W. Anderson, will be considered for downlisting to [FR Doc. 04–17975 Filed 8–5–04; 8:45 am] Assistant Secretary—Indian Affairs. threatened status when the likelihood of BILLING CODE 4310–55–P the species becoming extinct in the Yurok Tribe of California Liquor foreseeable future has been eliminated Control Ordinance by the achievement of the following DEPARTMENT OF THE INTERIOR Be it enacted by the Tribal Council of interim criteria: (1) Life history, ecology, Bureau of Indian Affairs the Yurok Tribe of California as follows: population biology, and habitat Article 1: Name: This statute shall be requirements are understood well Yurok Tribe Sale and Consumption of known as the Yurok Tribe Liquor enough to fully identify threats; and (2) Alcoholic Beverages Control Ordinance. a minimum of four U.S. populations, in Article 2: Authority: This statute is at least two different watersheds, have AGENCY: Bureau of Indian Affairs, enacted pursuant to the Act of August had stable or increasing populations for Interior. 15, 1953, (Pub. L. 83–277, 67 Stat. 588, at least 10 years. ACTION: Notice. 18 U.S.C. 1161) and Article VI of the Hungerford’s crawling water beetle Constitution of the Yurok Tribe of will be considered for delisting when SUMMARY: This notice publishes the California. the likelihood of the species becoming Yurok Tribe’s Liquor Control Article 3: Purpose: The purpose of threatened in the foreseeable future has Ordinance. The Ordinance regulates and this statute is to regulate and control the been eliminated by the achievement of controls the possession, sale and possession and sale of liquor on the the following interim criteria: (1) consumption of liquor on the Yurok Yurok Reservation, and to permit Identify and protect habitat necessary Reservation. This ordinance allows for alcohol sales by tribally owned and for long-term survival and recovery; and the possession and sale of alcoholic operated enterprises, and at tribally (2) a minimum of four U.S. populations, beverages on the Yurok Reservation, approved special events, for the purpose in at least two different watersheds, are permits alcohol sales by tribally owned of the economic development of the sufficiently secure and adequately and operated enterprises, and increases Tribe. The enactment of a tribal statute managed to assure long-term viability. the ability of the tribal government to governing liquor possession and sales The recovery criteria are interim control Reservation liquor distribution on the Yurok Reservation will increase because further research is needed to and possession. At the same time, it will the ability of the tribal government to make them fully measurable. As new provide an important source of revenue control Reservation liquor distribution information about the species becomes for the continued operation and and possession, and will provide an available, and if new populations of the strengthening of the tribal government important source of revenue for the species are discovered, the recovery and the delivery of tribal services. continued operations and strengthening criteria will be revised. Additional EFFECTIVE DATE: This Code is effective of the tribal government, the economic detail on downlisting and delisting on August 6, 2004. viability of tribal enterprises, and the criteria is available in the draft recovery FOR FURTHER INFORMATION CONTACT: Clay delivery of tribal government services. plan. Gregory, Acting Regional Director, This Liquor Control Ordinance is in These criteria will be met through the Pacific Regional Office, 2800 Cottage conformity with the laws of the State of following actions: (1) Protect known Way, Sacramento, CA 95825; Telephone California as required by 18 U.S.C. 1161, sites; (2) conduct scientific research to (916) 978–6000 or Ralph Gonzales, and with all applicable federal laws. facilitate recovery; (3) conduct Office of Tribal Services, Bureau of Article 4: Effective Date: This statute additional surveys and monitor existing Indian Affairs, 1951 Constitution shall be effective as of the date of its sites; (4) develop and implement public Avenue, NW., MS–320–SIB, publication in the Federal Register. education and outreach; (5) revise Washington, DC 20240; telephone (202) Article 5: Possession of Alcohol: The recovery criteria and recovery tasks, as 513–7629. introduction or possession of alcoholic appropriate, based on research and new SUPPLEMENTARY INFORMATION: Pursuant beverages shall be lawful within the information; and (6) develop a plan to to the Act of August 15, 1953, Public exterior boundaries of the Yurok monitor B. hungerfordi after it is Law 83–277, 67 Stat. 586, 18 U.S.C. Reservation, provided that such sales delisted. 1161, as interpreted by the Supreme are in conformity with the laws of the Public Comments Solicited Court in Rice v. Rehner, 463 U.S. 713 State of California. (1983), the Secretary of the Interior shall Article 6: Sales of Alcohol: The Service solicits written comments certify and publish in the Federal (a) The sale of alcoholic beverages by on the draft recovery plan. All Register notice of adopted liquor business enterprises owned by and comments received by the date specified ordinances for the purpose of regulating subject to the control of the Tribe shall will be considered prior to approval of liquor transactions in Indian country. be lawful within the exterior boundaries the plan. Written comments and The Yurok Tribe adopted the Liquor of the Yurok Reservation; provided that materials regarding the plan should be Ordinance on December 19, 2003. The such sales are in conformity with the sent to the Field Supervisor, Ecological purpose of this ordinance is to govern laws of the State of California. Services Field Office (see ADDRESSES the sale, possession and distribution of (b) The sale of alcoholic beverages by section). Comments received will be alcohol on the Yurok Reservation. the drink at special events authorized by available for public inspection by This notice is published in the Tribe shall be lawful within the appointment during normal business accordance with the authority delegated exterior boundaries of the Yurok hours. by the Secretary of the Interior to the Reservation; provided that such sales Authority: The authority for this action is Assistant Secretary—Indian Affairs. are in conformity with the laws of the section 4(f) of the Endangered Species Act, I certify that the Yurok Tribe’s Liquor State of California and with prior 16 U.S.C. 1533(f). Ordinance was duly adopted by the approval by the Tribe.
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Article 7: Age Limits: The drinking Dated this 19th day of December 2003. Amendment, directional drilling of oil age within the Yurok Reservation shall Howard McConnell, and gas wells to mitigate surface be the same as that of the State of Chairperson, Yurok Tribal Council. impacts, follow-up on rancher California, which is currently 21 years. Attest: monitoring, discussion on the No person under the age of 21 years Fawn Murphy, Ecological Site Description Effort, shall purchase, possess or consume any Recording Secretary, Yurok Tribal Council. Interim Guidelines for Special Status alcoholic beverage. At such time, if any, [FR Doc. 04–17976 Filed 8–5–04; 8:45 am] Species Plan Amendment, the Access as California Business and Profession Proposal, what are the problems for BILLING CODE 4310–4J–P case 25658, which sets the drinking age threatened and endangered and other for the State of California, is repealed or imperiled species on BLM lands, and amended to raise or lower the drinking DEPARTMENT OF THE INTERIOR election of new officers. age within California, this Article shall Dated: July 30, 2004. automatically become null and void, Bureau of Land Management Linda S.C. Rundell, and the Tribal Council shall be [NM–910–04–1020–PH] State Director. empowered to amend this Article to [FR Doc. 04–17977 Filed 8–5–04; 8:45 am] match the age limit imposed by State New Mexico Resource Advisory BILLING CODE 4310–FB–M law, such amendment to become Council, Notice of Call for Nominations effective upon publication in the Federal Register by the Secretary of the AGENCY: Bureau of Land Management, DEPARTMENT OF THE INTERIOR Interior. Department of the Interior. Article 8: Civil Penalties: The Tribe, ACTION: Notice of public meeting. Bureau of Land Management through its Tribal Council shall have the SUMMARY: In accordance with the authority to enforce this statute by [CO–820–02–5440–DT –C028] Federal Land Policy and Management confiscating any liquor sold, possessed Act and the Federal Advisory Notice of Availability of the Proposed or introduced in violation hereof. The Committee Act of 1972, the U.S. San Juan/San Miguel Resource Tribal Council shall be empowered to Department of the Interior, Bureau of Management Plan Amendment and sell such confiscated liquor for the Land Management, New Mexico Final Environmental Impact Statement benefit of the Tribe and to develop and Resource Advisory Council (RAC) will for a Proposed Ski Area Near Silverton, approve such regulation as may become meet as indicated below. CO necessary for enforcement of this DATES: The meeting will be held on ordinance. AGENCY: Bureau of Land Management, September 14–15, 2004, beginning at 8 Article 9: Prior Inconsistent Interior. a.m. at the Inn of Loretto, 211 Old Santa Enactments: Any prior tribal laws, Fe Trail, Santa Fe, New Mexico. The ACTION: Notice of availability of the resolutions, or statutes, which are meeting will adjourn at approximately 5 proposed San Juan/San Miguel Resource inconsistent with this statute, are hereby p.m. on Tuesday, September 14, 2004, Management Plan Amendment and final repealed to the extent they are and 3:30 p.m. on Wednesday, environmental impact statement (PRMP inconsistent with this statute. September 15, 2004. The two Amendment /FEIS) for a proposed ski Article 10: Sovereign Immunity: established RAC working groups may area near Silverton, Colorado. Nothing contained in this statute is have a late afternoon or an evening intended to, nor does in any way, limit, SUMMARY: Pursuant to section 202 of the meeting on Tuesday, September 14, alter, restrict, or waive the sovereign Federal Land Policy and Management 2004. An optional field trip is planned immunity of the Tribe or any of its Act of 1976 (FLPMA) and section for Monday, September 13, 2004, at agencies from un-consented suit or 102(2)(C) of the National Environmental 12:30 p.m. Policy Act of 1969 (NEPA), the Bureau action of any kind. The public comment period is of Land Management (BLM) has Article 11: Severability: If any scheduled for Monday, September 14, prepared a PRMP Amendment and FEIS provision of this statute is found by any 2004, from 6–7 p.m. The public may for the proposed ski area. The proposed agency or court of competent present written comments to the RAC. area lies in San Juan County, Colorado. jurisdiction to be unenforceable, the Depending on the number of persons The PRMP Amendment/FEIS provides remaining provisions shall be wishing to comment and time available, direction and guidance for the unaffected thereby. individual oral comments may be management of public lands and Article 12: Amendment: This statute limited. may be amended by a majority vote of resources of the ski area, as well as the Tribal Council of the Tribe at a duly FOR FURTHER INFORMATION CONTACT: monitoring and evaluation noticed Tribal Council meeting, such Theresa Herrera, New Mexico State requirements. The PRMP Amendment/ amendment to become effective upon Office, Office of External Affairs, Bureau FEIS would also amend the San Juan/ publication in the Federal Register by of Land Management, P.O. Box 27115, San Miguel RMP (1985) for the affected the Secretary of the Interior. Santa Fe, New Mexico 87502–0115, lands in the planning area. Once 505.438.7517. approved in a Record of Decision (ROD), Certification SUPPLEMENTARY INFORMATION: The 15- the Amended RMP would supercede all This is to certify that this Liquor member RAC advises the Secretary of existing management plans for the Control Ordinance was approved at a the Interior, through the Bureau of Land public lands within the ski area. regularly scheduled meeting of the Management, on a variety of planning DATES: BLM Planning Regulations (43 Yurok Tribal Council on 12/19/03, at and management issues associated with CFR 1610.5–2) state that any person which a quorum was present and that public land management in New who participated in the planning this ordinance was adopted by a vote of Mexico. All meetings are open to the process, and has an interest that may be 6 For, 2 Opposed, 0 Abstentions. This public. At this meeting, topics for adversely affected, may protest. The ordinance has not been rescinded or discussion include: Sierra/Otero Mesa protest must be filed within 30 days of amended in any way. Counties Fluid Mineral Leasing Plan the date that the Environmental
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Protection Agency publishes this notice Silverton Outdoor Learning and slopes within the permit area. The in the Federal Register. Instructions for Recreation Center’s request for long- objective would be to increase skier filing of protests are described in term use of 1,300 acres of BLM– rescue and safe tree-skiing Chapter One of the PRMP Amendment/ administered land for backcountry-type opportunities, primarily for unguided FEIS and are also included in the skiing, summer recreation, and skiers, during periods of high avalanche Supplementary Information section of educational activities. The Proposed hazard above timberline. this notice. Action would require an Amendment of 3. A 1.7 mile trail, less steep than the FOR FURTHER INFORMATION CONTACT: To the San Juan/San Miguel RMP to existing lift trail on private land, would have your name added to our mailing provide for a change in the scope of be developed for emergency list, contact Richard Speegle, Project authorized resource uses. The planning snowmobile access to the top lift Manager, at 970–375–3310, (or e-mail at area addressed in the PRMP terminal. It would also be available for [email protected]) Columbine Amendment/FEIS contains 1,300 acres hiker and mountain biker access in the Field Office, San Juan Public Lands of BLM–administered lands, and 400 summer months. Center, 15 Burnett Ct., Durango, CO acres of private lands owned by the This alternative would incorporate 81301. proponent. The PRMP Amendment/ both approaches to skier safety, from Persons who are not able to inspect FEIS only applies to BLM–administered resort-style risk reduction as envisioned the PRMP Amendment/FEIS either on- lands. Other private lands are included under the Proposed Action to the risk- line or at the information repository within the planning area boundary avoidance approach typical of guided locations may request one of a limited because these lands are interspersed operations (Alternative B). number of printed or CD copies. with the BLM administered-lands. Determination of which areas were open Requests for copies of the PRMP The Draft RMP(DRMP) Amendment/ for unguided skiing and for guided Amendment/FEIS should be directed to Draft EIS(DEIS) published in June 2003, skiing—and which areas were closed to Mr. Speegle, and should clearly state addressed four alternatives: the skiing of any type—would be made on the basis of snow-stability criteria that the request is for a printed copy or Proposed Action (Unguided Skiing detailed in the skier-safety operation CD of the Silverton Outdoor Learning Only), (A) No Action, or continuation of plan. and Recreation Center PRMP current practices, (B) Guided Skiing Only, and (C) the Preferred Alternative, The planning process includes an Amendment/FEIS, and include the opportunity for public, administrative name, mailing address and phone an Integrated Guided and Unguided Operation. The PRMP Amendment/FEIS review of proposed land use plan number of the requesting party. decisions during a 30-day protest period Copies of the PRMP Amendment/FEIS still includes Alternative C as the of the PRMP Amendment/FEIS. Any have been sent to affected Federal, State, Agency Preferred Alternative. However, person who participated in the planning and Local Government agencies and to the PRMP Amendment/FEIS reflects the public and internal comments received process for the PRMP Amendment/FEIS, interested parties. The planning and has an interest which is or may be documents and direct supporting record on DRMP Amendment/DEIS. The significant issues addressed in adversely affected, may protest approval for the analysis for the PRMP the analysis included the following: 1. of this PRMP Amendment/FEIS and Amendment/FEIS will be available for Public safety (including avalanche land use plan decisions contained inspection at the following offices: mitigation); 2. Canada lynx impacts; 3. within it (See 43 CFR 1610.5–2) during —The Bureau of Land Management, Impacts on the local winter economy; 4. this 30-day period. Only those persons Columbine Field Office, 110 W. 11th, Impacts to neighboring private lands; or organizations who participated in the Durango, Colorado 81301 and 5. Public access to the area. Of planning process leading to this PRMP —The Bureau of Land Management, San these, public safety drove the Amendment/FEIS may protest. A Juan Public Lands Center, 15 Burnett development of alternatives. The protesting party may raise only those Ct., Durango Colorado (documents Agency Preferred Alternative (C) issues submitted for the record during can be reviewed at the BLM office Integrated Guided and Unguided the planning process leading up to the during normal working hours). Operation, would blend the unguided publication of this PRMP Amendment/ —Silverton Public Library, 1111 Reese skiing under the Proposed Action with FEIS. These issues may have been raised Street, Silverton, Colorado the Guided Only Operation of by the protesting party or others. New —The Durango Public Library, 1188 2nd Alternative (B), incorporating the skier issues may not be brought into the Ave, Durango, Colorado safety approaches appropriate to both. record at the protest stage. The 30-day —The public may obtain a copy of the The Preferred Alternative (C) would period for filing a plan protest begins PRMP Amendment/FEIS from the include all elements of both the when the Environmental Protection following locations: Proposed Action and the Guided Only Agency publishes in the Federal —The Bureau of Land Management Operation of Alternative (B), with the Register its Notice of Availability of the Columbine Field Office & the San following exceptions: Final Environmental Impact Statement Juan Public Lands Center 1. Skier access to the permit area containing the PRMP Amendment/FEIS. —On the Internet at www.co.blm.gov/ terrain would be staged according to There is no provision for any extension sjra. skier safety hazards. Areas where risks of time. To be considered ‘‘timely’’, your SUPPLEMENTARY INFORMATION: Cirrus were adequately reduced, due to protest, along with all attachments, Ecological Solutions, L.C, an avalanche control efforts and/or must be postmarked no later than the environmental consulting firm in Logan, naturally evolving snow conditions, last day of the protest period. A letter Utah, is assisting the BLM in the would be open to unguided skiing. of protest must be filed in accordance preparation of these documents and in Areas where hazards existed but could with the planning regulations, 43 CFR the planning process for the ski area. be avoided would be open to guide 1610.5–2(a)(1). Protests must be in The EIS is being prepared to provide the skiing only, and areas where the hazard writing. E-mail and faxed protests will public and Bureau decision makers with was too high to reliably avoid, would be not be accepted as valid protests unless comprehensive environmental impact closed. the protesting party also provides the information related to the following 2. Limited tree thinning, limbing and original letter by either regular or Proposed Action: authorization of clean-up on forested, north-facing overnight mail postmarked by the close
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of the protest period. Under these available for public review at the associated ancillary facilities in White conditions, BLM will consider the e- Columbine Field Office, in Durango, Pine County, Nevada. mail or faxed protest as an advance copy Colorado, during regular business hours The proposed White Pine Energy and it will receive full consideration. If (7:45 a.m. to 4:30 p.m.), Monday Station includes up to two 500 to 800 you wish to provide BLM with such through Friday, except holidays. megawatt coal-fired generating units advance notification, please direct faxed Comments, including names and and other related facilities, including protests to the attention of the BLM addresses of respondents, will be but not limited to, a rail loop, coal protest coordinator at 202–452–5112, retained on file in the same office as unloading, handling and storage and e-mails to Brenda_Hudgens- part of the public record for this facilities, solid waste disposal facility, [email protected]. If sent by regular planning effort. Individual respondents water storage and treatment facilities, mail, send to: Director (210), Attention: may request confidentiality. If you wish evaporation pond, cooling towers, Brenda Williams, P.O. Box 66538, to withhold your name or address from electric switchyard and support Washington, DC 20035. For overnight public inspection or from disclosure buildings. Ancillary facilities would (i.e., Federal Express) mailing, send under the Freedom of Information Act, include wells, water pipeline and protests to: Director (210) Attention: you must state this prominently at the related facilities, rail spur, access roads Brenda Williams, 1620 L Street, NW., beginning of your written comment. and electric transmission facilities, Suite 1075, Washington, DC 20036. In Such requests will be honored to the which include electric transmission order to be considered complete, your extent allowed by law. BLM will not lines and two electric substations. protest must contain at a minimum, the accept anonymous comments. All DATES: The publication of this notice following information: submissions from organizations or initiates the public scoping process and 1. The name, mailing address, businesses, and from individuals comment period. Comments on the telephone number, and interest of the identifying themselves as scope of the EIS, including concerns, person filing the protest. representatives or officials of issues, or proposed alternatives that 2. A statement of the issue or issues organizations or businesses, will be should be considered in the EIS should being protested. made available for public inspection in be submitted in writing to the address 3. A statement of the part or parts of their entirety. below. Comments will be accepted until the PRMP Amendment/FEIS being Dated: March 9, 2004. September 7, 2004. This scoping notice protested. To the extent possible, this will be distributed by mail on or about should be done by reference to specific Mark W. Stiles, Center Manager, San Juan Public Lands the date of this notice. All comments pages, paragraphs, sections, tables, received at the public scoping meetings maps, etc. included in the document. Center. Editorial Note: This document was or through submitted written comments 4. A copy of all documents addressing will aid the BLM in identifying the issue or issues that you submitted received in the Office of the Federal Register on July 30, 2004. alternatives and mitigating measures to during the planning process, or a assure all issues are analyzed in the EIS. reference to the date and issue or issues [FR Doc. 04–17851 Filed 8–5–04; 8:45 am] BILLING CODE 4310–JB–P The scoping meetings are scheduled as that were discussed by you for the follows: Tuesday, August 24, 2004, 5 record. p.m. to 8 p.m. at the Bristlecone 5. A concise statement explaining DEPARTMENT OF THE INTERIOR Convention Center, 150 6th St., Ely, why the Colorado BLM State Director’s Nevada. Wednesday, August 25, 2004, 5 proposed decision is believed to be Bureau of Land Management p.m. to 8 p.m. at the Airport Plaza, 1981 incorrect. This is the critical part of your Terminal Way, Reno, Nevada. protest. Take care to document relevant [NV–040–04–5101–ER–F344; N–78091] ADDRESSES: Information and a copy of facts. As much as possible, reference or cite Notice of Intent To Prepare an this notice of intent for the White Pine the planning documents, environmental Environmental Impact Statement (EIS) Energy Station can be obtained by analysis documents, or available for the Proposed White Pine Energy writing to the Bureau of Land planning records (i.e., meeting minutes Station, a Coal-Fired, Water-Cooled, Management, Ely Field Office, HC 33 or summaries, correspondence, etc.). A Electric Power Plant, and Associated Box 33500, Ely, Nevada 89301, or protest that merely expresses Ancillary Facilities in White Pine visiting the Ely Field Office at 702 North disagreement with the Colorado BLM County, Nevada and a Notice of Public Industrial Way, Ely, NV 89301. Written comments on the proposed State Director’s proposed decision, Meetings EIS should be mailed to Doris Metcalf without any data, will not provide us AGENCY: Bureau of Land Management, or Susan Baughman, Bureau of Land with the benefit of your information and Interior. Management, Ely Field Office, HC 33 insight. In this case, the Director’s ACTION: Notice of intent. Box 33500, Ely, Nevada 89301. review will be based on the existing analysis and supporting data. At the end SUMMARY: Under section 102(2)(C) of the FOR FURTHER INFORMATION CONTACT: National Environmental Policy Act of Doris Metcalf at (775) 289–1852, e-mail of the 30-day protest period and after _ the Governor’s consistency review, the 1969, the Bureau of Land Management Doris [email protected], or Susan (BLM), Ely Field Office, will be Baughman at (775) 289–1827, e-mail PRMP Amendment/FEIS, excluding any _ portions under protest, will become directing the preparation of an EIS and Susan [email protected]. final. Approval will be withheld on any conducting public scoping meetings for SUPPLEMENTARY INFORMATION: The portion of the PRMP Amendment/FEIS the proposed White Pine Energy Station, proposed White Pine Energy Station under protest until final action has been a coal-fired, water-cooled, electric would be located in the eastern part of completed on such protest. power plant and associated ancillary Nevada in White Pine County. The Freedom of Information Act facilities. The EIS will assess the proposed power plant site would be Considerations/Confidentiality: Public potential impacts of rights-of-way accessible via an access road from comments submitted for this planning (ROW), a conveyance, or a commercial Highway 93. The water wells, the water review, including names and street lease for a proposed power-generating pipeline and related facilities, rail spur addresses of respondents, will be facility and ROW for the proposed and one electric substation would be
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located in mostly flat terrain along the T. 23 N., R. 64 E., Sections 4, 9, 16, 17, 18, The complainants request that the Steptoe Valley floor. The electric 20, 29, 31, 32, Commission institute an investigation transmission line ROW would begin at T. 24 N., R. 64 E., Sections 2, 10, 11, 15, 22, and, after the investigation, issue a a proposed new electric substation 27, 28, 33, permanent general exclusion order and T. 25 N., R. 64 E., Sections 13, 24, 25, 26, adjacent to the power plant site and 35, permanent cease and desist orders. would mostly follow a previously T. 25 N., R. 65 E., Sections 4, 5, 7, 8, 18, ADDRESSES: The complaint and the permitted utility corridor through T. 26 N., R. 65 E., Sections 23, 26, 27, 33, amended complaint, except for any Steptoe Valley, across the Egan Range, 34. confidential information contained through Butte Valley and terminate near A map of the proposed project is therein, are available for inspection Robinson Summit at the second available for viewing at the Bureau of during official business hours (8:45 a.m. proposed electric substation. The Land Management, Ely Field Office, 702 to 5:15 p.m.) in the Office of the proposed second electric substation North Industrial Way, Ely, NV 89301. Secretary, U.S. International Trade would be accessible via an access road Public Scoping Meetings: Two public Commission, 500 E Street, SW., Room from Highway 50. An additional electric scoping meetings are planned. The 112, Washington, DC 20436, telephone transmission line ROW would be meetings will provide the public an 202–205–2000. Hearing impaired needed to loop an existing electric opportunity to present comments individuals are advised that information transmission line located about 1⁄2 mile concerning the Proposed Action that on this matter can be obtained by south of the proposed second electric will be addressed in the EIS. The contacting the Commission’s TDD substation into the proposed second meetings will be held in an ‘‘open house terminal on 202–205–1810. Persons electric substation. format’’ beginning at 5 p.m. and ending with mobility impairments who will The proposed power plant need special assistance in gaining access development area and ancillary at 8 p.m. Meetings have been scheduled for the following locations: to the Commission should contact the facilities would encompass • Office of the Secretary at 202–205–2000. approximately 2,800 acres: Tuesday, August 24, 2004, 5 p.m. to 8 p.m. at the Bristlecone Convention General information concerning the approximately 1,300 acres would be Commission may be obtained by required for the power plant site and Center, 150 6th St., Ely, Nevada. • Wednesday, August 25, 2004, 5 accessing its Internet server (http:// access, approximately 1,250 acres www.usitc.gov). The public record for would be used for ancillary facilities, p.m. to 8 p.m. at the Airport Plaza, 1981 Terminal Way, Reno, Nevada. this investigation may be viewed on the and approximately 250 acres would be Commission’s electronic docket (EDIS) used for temporary construction Dated: July 12, 2004. at http://edis.usitc.gov. laydown for the ancillary facilities. The Jeffrey A. Weeks, FOR FURTHER INFORMATION CONTACT: facilities would be generally located Acting Field Manager. Benjamin D. M. Wood, Esq., Office of within and/or across the following [FR Doc. 04–18130 Filed 8–5–04; 8:45 am] Unfair Import Investigations, U.S. sections of public land: BILLING CODE 4310–HC–P International Trade Commission, Mount Diablo Meridian, White Pine County, telephone 202–205–2582. Nevada Authority: The authority for institution of INTERNATIONAL TRADE Power Plant Site & Access Road this investigation is contained in section 337 COMMISSION of the Tariff Act of 1930, as amended, and T. 21 N., R. 64 E., Sections 4, 5, 6, in section 210.10 of the Commission’s Rules [Inv. No. 337–TA–518] T. 22 N., R. 64 E., Sections 29, 30, 31 & 32. of Practice and Procedure, 19 CFR 210.10 Rail Spur Notice of Investigation; Certain Ear (2003). Scope of Investigation: Having T. 22 N., R. 64 E., Section 31 Protection Devices T. 22 N., R 63 E., Section 36. considered the complaint, the U.S. AGENCY: International Trade International Trade Commission, on Transmission Line Commission. August 2, 2004, Ordered That— T. 18 N., R. 60 E., Sections 6, 7, 18, 19, ACTION: Institution of investigation (1) Pursuant to subsection (b) of T. 19 N., R. 61 E., Sections 1, 10, 11, 12, 14, pursuant to 19 U.S.C. 1337. section 337 of the Tariff Act of 1930, as 15, 16, 21, 22, 28, 29, 30, 31 amended, an investigation will be T. 19 N., R. 62 E., Section 6, SUMMARY: Notice is hereby given that a instituted to determine whether there is T. 20 N., R. 62 E., Sections 13, 14, 15, 21, 22, 23, 28, 29, 31, 32, complaint was filed with the U.S. a violation of subsection (a)(1)(B) of T. 20 N., R. 63 E., Sections 1, 2, 7, 8, 9, 10, International Trade Commission on July section 337 in the importation into the 11, 17, 18, 2, 2004, under section 337 of the Tariff United States, the sale for importation, T. 21 N., R. 63 E., Sections 1, 2, 11, 14, 23, Act of 1930, as amended, 19 U.S.C. or the sale within the United States after 26, 34, 35, 1337, on behalf of 180s, Inc. and 180s, importation of certain ear protection T. 21 N., R.64 E., Section 5 & 6. LLC of Baltimore, Maryland. An devices by reason of infringement of one Electric Substations & Access Roads amended complaint was filed on July or more of claims 1, 3, 13, 17–19, and T. 21 N., R. 64 E., Section 4, 5, 23, 2004. The amended complaint 21–22 of U.S. Patent No. 5,835,609, and T. 18 N., R. 61 E., Sections 18 & 19. alleges violations of section 337 in the whether an industry in the United importation into the United States, the States exists as required by subsection Water Facilities sale for importation, and the sale within (a)(2) of section 337. T. 19 N., R. 63 E., Sections 24 & 25 the United States after importation of (2) For the purpose of the T. 19 N., R. 64 E., Sections 6, 7, 18, 19, 30, certain ear protection devices by reason investigation so instituted, the following T. 20 N., R. 64 E., Sections 4, 8, 9, 17, 19, of infringement of claims 1, 3, 13, 17– are hereby named as parties upon which 20, 30, 31, 19, and 21–22 of U.S. Patent No. this notice of investigation shall be T. 21 N., R. 64 E., Sections 5, 6, 8, 17, 20, 29, 31, 32, 5,835,609. The complaint further alleges served: T. 22 N., R. 64 E., Sections 5, 6, 7, 18, 19, that an industry in the United States (a) The complainants are—180s, Inc., 20, 29, 30, 32, exists as required by subsection (a)(2) of 701 E. Pratt Street, Suite 180, Baltimore, T. 23 N., R. 63 E., Sections 13, 14, 15, 16, section 337. Maryland 21202–3101. 180s, LLC, 701
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E. Pratt Street, Suite 180, Baltimore, Issued: August 3, 2004. of the Secretary at 202–205–2000. Maryland 21202–3101. By order of the Commission. General information concerning the (b) The respondents are the following Marilyn R. Abbott, Commission may also be obtained by companies alleged to be in violation of Secretary to the Commission. accessing its Internet server at http:// section 337, and are the parties upon [FR Doc. 04–18015 Filed 8–5–04; 8:45 am] www.usitc.gov. The public record for which the complaint is to be served: this investigation may be viewed on the BILLING CODE 7020–02–P Ningbo Electric and Consumer Goods, Commission’s electronic docket (EDIS) Import & Export Corp., 17/F Ling Qiao at http://edis.usitc.gov. Square, 31 Yao Hang Street, Ningbo, INTERNATIONAL TRADE FOR FURTHER INFORMATION CONTACT: Zhejiang 315000, China. Vollmacht COMMISSION Kevin Baer, Esq., Office of Unfair Import Enterprise Co., Ltd., 5F, No. 360, Ruei Investigations, U.S. International Trade Guang Road, Neihu, Taipei, Taiwan. [Inv. No. 337–TA–519] Commission, telephone 202–205–2221. March Trading, 1239 Broadway, Room Notice of Investigation; Certain Authority: The authority for institution of 1606, New York, NY 10010. Alicia this investigation is contained in section 337 International, Inc., d/b/a Lincolnwood Personal Computers, Monitors, and Components Thereof of the Tariff Act of 1930, as amended, and Merchandising, 7354 N. Caldwell in section 210.10 of the Commission’s Rules Avenue, Niles, IL 60714. Hebron AGENCY: International Trade of Practice and Procedure, 19 CFR 210.10 Imports, 4142 W. Lawrence Avenue, Commission. (2003). Chicago, IL 60630. Ross Sales, 231 ACTION: Institution of investigation Scope of Investigation: Having Commack Road, Commack, NY 11725. pursuant to 19 U.S.C. 1337. considered the complaint, the U.S. Value Drugs Rock, Inc., 30 Rockefeller International Trade Commission, on Center, New York, NY 10020. Song’s SUMMARY: Notice is hereby given that a August 2, 2004, Ordered That— Wholesale, 1301–A 14th Street, NE., complaint was filed with the U.S. (1) Pursuant to subsection (b) of Washington, DC 20002. Wang Da, Inc. International Trade Commission on July section 337 of the Tariff Act of 1930, as Retail and Wholesales, 230 Canal Street, 2, 2004, under section 337 of the Tariff amended, an investigation be instituted New York, NY 10013. Act of 1930, as amended, 19 U.S.C. to determine whether there is a (c) Benjamin D. M. Wood, Esq., Office 1337, on behalf of Gateway, Inc. of violation of subsection (a)(1)(B) of of Unfair Import Investigations, U.S. Poway, California. Supplements were section 337 in the importation into the International Trade Commission, 500 E filed on July 16 and 30, 2004. The United States, the sale for importation, Street, SW., Suite 401, Washington, DC complaint alleges violations of section or the sale within the United States after 20436, who shall be the Commission 337 in the importation into the United importation of personal computers or investigative attorney, party to this States, the sale for importation, and the monitors or components thereof by investigation; and sale within the United States after reason of infringement of one or more of (3) For the investigation so instituted, importation of certain personal claims 1–3, 9–11, 13–14, 20–21, 27–28, the Honorable Paul J. Luckern is computers, monitors, and components 30–32, and 38–40 of U.S. Patent No. designated as the presiding 5,881,318, claims 1–3, 5, 7–12, 14–29, administrative law judge. thereof by reason of infringement of claims 1–3, 9–11, 13–14, 20–21, 27–28, 31–36, and 38 of U.S. Patent No. Responses to the complaint and the 5,192,999, and claims 1–2 and 4–6 of notice of investigation must be 30–32, and 38–40 of U.S. Patent No. 5,881,318, claims 1–3, 5, 7–12, 14–29, U.S. Patent No. 6,326,996, and whether submitted by the named respondents in an industry in the United States exists accordance with section 210.13 of the 31–36, and 38 of U.S. Patent No. 5,192,999, and claims 1–2 and 4–6 of as required by subsection (a)(2) of Commission’s Rules of Practice and section 337. Procedure, 19 CFR 210.13. Pursuant to U.S. Patent No. 6,326,996. The complaint further alleges that an (2) For the purpose of the 19 CFR 201.16(d) and 210.13(a), such investigation so instituted, the following responses will be considered by the industry in the United States exists as required by subsection (a)(2) of section are hereby named as parties upon which Commission if received no later than 20 this notice of investigation shall be days after the date of service by the 337. The complainant requests that the served: Commission of the complaint and the (a) The complainant is—Gateway, Commission institute an investigation notice of investigation. Extensions of Inc., 14303 Gateway Place, Poway, and, after the investigation, issue a time for submitting responses to the California 92064. complaint will not be granted unless permanent exclusion order and a (b) The respondent is the following good cause therefor is shown. permanent cease and desist order. company alleged to be in violation of Failure of a respondent to file a timely ADDRESSES: The complaint and its section 337, and is the party upon response to each allegation in the exhibits, except for any confidential which the complaint is to be served: complaint and in this notice may be information contained therein, are Hewlett-Packard Company, 3000 deemed to constitute a waiver of the available for inspection during official Hanover Street, Palo Alto, California right to appear and contest the business hours (8:45 a.m. to 5:15 p.m.) 94304. allegations of the complaint and to in the Office of the Secretary, U.S. (c) Kevin Baer, Esq., Office of Unfair authorize the administrative law judge International Trade Commission, 500 E Import Investigations, U.S. International and the Commission, without further Street, SW., Room 112, Washington, DC Trade Commission, 500 E Street, SW., notice to the respondent, to find the 20436, telephone 202–205–2000. Suite 401, Washington, DC 20436, who facts to be as alleged in the complaint Hearing impaired individuals are shall be the Commission investigative and this notice and to enter both an advised that information on this matter attorney, party to this investigation; and initial determination and a final can be obtained by contacting the (3) For the investigation so instituted, determination containing such findings, Commission’s TDD terminal on 202– the Honorable Delbert R. Terrill, Jr. is and may result in the issuance of a 205–1810. Persons with mobility designated as the presiding limited exclusion order or a cease and impairments who will need special administrative law judge. desist order or both directed against the assistance in gaining access to the A response to the complaint and the respondent. Commission should contact the Office notice of investigation must be
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submitted by the named respondent in (Commerce) to be sold in the United SUMMARY: Notice is hereby given that a accordance with section 210.13 of the States at less than fair value (LTFV). complaint was filed with the U.S. Commission’s Rules of Practice and International Trade Commission on July Background Procedure, 19 CFR 210.13. Pursuant to 1, 2004, under section 337 of the Tariff 19 CFR 201.16(d) and 210.13(a), such The Commission instituted these Act of 1930, as amended, 19 U.S.C.1337, response will be considered by the investigations effective June 20, 2003, on behalf of TALTECH Limited of Commission if received not later than 20 following receipt of a petition filed with Tortola, British Virgin Islands, TAL days after the date of service by the the Commission and Commerce by an Apparel Limited of Kowloon, Hong Commission of the complaint and the ad hoc coalition of U.S. polyethylene Kong, and The Apparel Group Limited notice of investigation. Extensions of retail carrier bag producers (consisting of Addison, Texas. A letter time for submitting the response to the of Inteplast Group, Ltd. (Inteplast), supplementing the complaint was filed complaint and the notice of Livingston, NJ; PCL Packaging, Inc. on July 21, 2004. The complaint, as investigation will not be granted unless (PCL), Barrie, Ontario; Sonoco Products supplemented, alleges violations of good cause therefor is shown. Company (Sonoco), Hartsville, SC; section 337 in the importation into the Superbag Corp. (Superbag), Houston, Failure of the respondent to file a United States, the sale for importation, TX; and Vanguard Plastics, Inc. and the sale within the United States timely response to each allegation in the (Vanguard), Farmers Branch, TX). The complaint and in this notice may be after importation of certain shirts with final phase of the investigations was pucker-free seams by reason of deemed to constitute a waiver of the scheduled by the Commission following right to appear and contest the infringement of claims 1, 4, 20, and 22 notification of preliminary of U.S. Patent No. 5,568,779; claims 1, allegations of the complaint and this determinations by Commerce that notice, and to authorize the 11, 19, and 26 of U.S. Patent No. imports of PRCBs from China, Malaysia, 5,590,615; claims 1, 3, 13, and 16 of U.S. administrative law judge and the and Thailand were being sold at LTFV Commission, without further notice to Patent No. 5,713,292; and claims 16, 19, within the meaning of section 733(b) of 35, and 38 of U.S. Patent No. 6,079,343. the respondent, to find the facts to be as the Act (19 U.S.C. § 1673b(b)). Notice of alleged in the complaint and this notice The complaint further alleges that an the scheduling of the final phase of the industry in the United States exists as and to enter a final determination Commission’s investigations and of a containing such findings, and may required by subsection (a)(2) of section public hearing to be held in connection 337. result in the issuance of a limited therewith was given by posting copies exclusion order or cease and desist of the notice in the Office of the The complainants request that the order or both directed against the Secretary, U.S. International Trade Commission institute an investigation respondent. Commission, Washington, DC, and by and, after the investigation, issue a permanent exclusion order and a Issued: August 3, 2004. publishing the notice in the Federal permanent cease and desist order. By order of the Commission. Register of February 9, 2004 (69 FR Marilyn R. Abbott, 6004). The hearing was held in ADDRESSES: The complaint and Washington, DC, on June 10, 2004, and Secretary to the Commission. supplement, except for any confidential all persons who requested the information contained therein, are [FR Doc. 04–18016 Filed 8–5–04; 8:45 am] opportunity were permitted to appear in available for inspection during official BILLING CODE 7020–02–P person or by counsel. business hours (8:45 a.m. to 5:15 p.m.) The Commission transmitted its in the Office of the Secretary, U.S. determinations in these investigations to International Trade Commission, 500 E INTERNATIONAL TRADE the Secretary of Commerce on August 2, COMMISSION Street, SW., Room 112, Washington, DC 2004. The views of the Commission are 20436, telephone 202–205–2000. contained in USITC Publication 3710 Hearing impaired individuals are [Investigations Nos. 731–TA–1043–1045 (July 2004), entitled Polyethylene Retail advised that information on this matter (Final)] Carrier Bags from China, Malaysia, and can be obtained by contacting the Thailand: Investigations Nos. 731–TA– Commission’s TDD terminal on 202– Polyethylene Retail Carrier Bags from 1043–1045 (Final). 205–1810. Persons with mobility China, Malaysia, and Thailand Issued: August 3, 2004. impairments who will need special Determinations By order of the Commission. assistance in gaining access to the Marilyn R. Abbott, Commission should contact the Office 1 On the basis of the record developed Secretary to the Commission. of the Secretary at 202–205–2000. in the subject investigations, the United [FR Doc. 04–18013 Filed 8–5–04; 8:45 am] General information concerning the States International Trade Commission Commission may also be obtained by BILLING CODE 7020–02–P (Commission) determines, pursuant to accessing its Internet server at http:// section 735(b) of the Tariff Act of 1930 www.usitc.gov. The public record for (19 U.S.C. 1673d(b)) (the Act), that an INTERNATIONAL TRADE this investigation may be viewed on the industry in the United States is COMMISSION Commission’s electronic document materially injured by reason of imports information system (EDIS) at http:// from China, Malaysia, and Thailand of [Inv. No. 337–TA–517] edis.usitc.gov. polyethylene retail carrier bags (PRCBs), Notice of Investigation; Certain Shirts provided for in subheading 3923.21.00 FOR FURTHER INFORMATION CONTACT: Juan With Pucker-Free Seams and Methods of the Harmonized Tariff Schedule of Cockburn, Esq., Office of Unfair Import of Producing Same; Corrected; the United States, that have been found Investigations, U.S. International Trade by the Department of Commerce AGENCY: International Trade Commission, telephone 202–205–2572. Commission. Authority: The authority for institution of 1 The record is defined in sec. 207.2(f) of the ACTION: Institution of investigation this investigation is contained in section 337 Commission’s Rules of Practice and Procedure (19 pursuant to 19 U.S.C. 1337. of the Tariff Act of 1930, as amended, and CFR § 207.2(f)). in section 210.10 of the Commission’s Rules
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of Practice and Procedure, 19 CFR 210.10 notice of investigation. Extensions of Issued: August 4, 2004. (2003). time for submitting the responses to the Marilyn R. Abbott, Scope of Investigation: Having complaint and the notice of Secretary to the Commission. considered the complaint, the U.S. investigation will not be granted unless [FR Doc. 04–18111 Filed 8–4–04; 11:24 am] good cause therefor is shown. International Trade Commission, on BILLING CODE 7020–02–P July 29, 2004, Ordered That — Failure of a respondent to file a timely (1) Pursuant to subsection (b) of response to each allegation in the section 337 of the Tariff Act of 1930, as complaint and in this notice may be amended, an investigation be instituted deemed to constitute a waiver of the DEPARTMENT OF JUSTICE to determine whether there is a right to appear and contest the violation of subsection (a)(1)(B) of allegations of the complaint and this Antitrust Division section 337 in the importation into the notice, and to authorize the United States, the sale for importation, administrative law judge and the Notice Pursuant to the National or the sale within the United States after Commission, without further notice to Cooperative Research and Production importation of certain shirts with the respondent, to find the facts to be as Act of 1993—AAF Association, Inc. pucker-free seams by reason of alleged in the complaint and this notice infringement of claims 1, 4, 20, or 22 of and to enter a final determination Notice is hereby given that, on June U.S. Patent No. 5,568,779; claims 1, 11, containing such findings, and may 30, 2004, pursuant to section 6(a) of the 19, or 26 of U.S. Patent No. 5,590,615; result in the issuance of a limited National Cooperative Research and claims 1, 3, 13, or 16 of U.S. Patent No. exclusion order or cease and desist Production Act of 1993, 15 U.S.C. 4301 5,713,292; or claims 16, 19, 35, or 38 of order or both directed against such et seq. (‘‘the Act’’), AAF Association, U.S. Patent No. 6,079,343; and whether respondent. Inc. has filed written notifications an industry in the United States exists Issued: August 3, 2004. simultaneously with the Attorney as required by subsection (a)(2) of By order of the Commission. General and the Federal Trade section 337. Marilyn R. Abbott, Commission disclosing changes in its (2) For the purpose of the membership status. The notifications investigation so instituted, the following Secretary to the Commission. were field for the purpose of extending are hereby named as parties upon which [FR Doc. 04–18014 Filed 8–5–04; 8:45 am] the Act’s provisions limiting the this notice of investigation shall be BILLING CODE 7020–02–P served: recovery of antitrust plaintiffs to actual (a) The complainants are—TALTECH damages under specified circumstances. Limited, Trident Corporate Services, INTERNATIONAL TRADE Specifically, BBC Technology, San Jose, Ltd., Road Town, Tortola, British Virgin COMMISSION CA; and SeaChange International, Islands. TAL Apparel Limited, TAL Maynard, MA have been added as Building, 4th Floor, 49 Austin Road, [USITC SE–04–022] parties to this venture. Kowloon, Hong Kong. The Apparel No other changes have been made in Group Limited 5080 Spectrum Drive, Sunshine Act Meeting Notice either the membership or planned Suite 800 East Addison, TX 75001 AGENCY: activity of the group research project. (b) The respondents are the following United States International Trade Commission. Membership in this group research companies alleged to be in violation of project remains open, and AAF section 337, and are parties upon which TIME AND DATE: August 23, 2004, at 11 Association, Inc. intends to file the complaint is to be served: Esquel a.m. additional written notification Apparel, Inc. 14 East 33rd Street, 11N PLACE: Room 101, 500 E Street, SW., disclosing all changes in membership. New York, NY 10016. Esquel Washington, DC 20436, telephone: (202) On March 28, 2000, AAF Association, Enterprises, Ltd., 12/F, Harbour Centre, 205–2000. 25 Harbour Road, Wanchai, Hong Kong. Inc. filed its original notification (c) Juan Cockburn, Esq., Office of STATUS: Open to the public. pursuant to section 6(a) of the Act. The Department of Justice published a notice Unfair Import Investigations, U.S. MATTERS TO BE CONSIDERED: International Trade Commission, 500 E in the Federal Register pursuant to Street, S.W., Suite 401, Washington, DC 1. Agenda for future meetings: none. section 6(b) of the Act on June 29, 2000 20436, who shall be the Commission 2. Minutes. (65 FR 40127). investigative attorney, party to this 3. Ratification List. The last notification was filed with investigation; and 4. Inv. No. 731–TA–208 (Second the Department on March 16, 1004. A (3) For the investigation so instituted, Review)(Barbed Wire and Barbless Wire notice was published in the Federal the Honorable Charles E. Bullock is Strand from Argentina)—briefing and Register pursuant to section 6(b) of the designated as the presiding vote. (The Commission is currently Act on April 5, 2004 (69 FR 17709). administrative law judge. scheduled to transmit its determination Responses to the complaint and the and Commissioners’ opinions to the Dorothy B. Fountain, notice of investigation must be Secretary of Commerce on or before Deputy Director of Operations Antitrust submitted by the named respondents in August 30, 2004.) Division. accordance with section 210.13 of the 5. Outstanding action jackets: none. [FR Doc. 04–17994 Filed 8–5–04; 8:45 am] Commission’s Rules of Practice and BILLING CODE 4410–11–M Procedure, 19 CFR 210.13. Pursuant to In accordance with Commission 19 CFR 201.16(d) and 210.13(a), such policy, subject matter listed above, not responses will be considered by the disposed of at the scheduled meeting, Commission if received not later than 20 may be carried over to the agenda of the days after the date of service by the following meeting. Commission of the complaint and the By order of the Commission.
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DEPARTMENT OF JUSTICE DEPARTMENT OF JUSTICE DEPARTMENT OF JUSTICE
Antitrust Division Antitrust Division Antitrust Division
Notice Pursuant to the National Notice Pursuant to the National Notice Pursuant to the National Cooperative Research and Production Cooperative Research and Production Cooperative Research and Production Act of 1993—DVD Copy Control Act of 1993—IMS Global Learning Act of 1993—Information Storage Association (‘‘DVD CCA’’) Consortium, Inc. Industry Consortium—Heat Assisted Magnetic Recording Notice is hereby given that, on July 2, Notice is hereby given that, on June Notice is hereby given that, on June 9, 2004, pursuant to section 6(a) of the 29, 2004, pursuant to section 6(a) of the 2004, pursuant to section 6(a) of the National Cooperative Research and National Cooperative Research and National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301 Production Act of 1993, 15 U.S.C. 4301 Production Act of 1993, 15 U.S.C. 4301 et seq. (‘‘the Act’’), DVD Copy Control et seq. (‘‘the Act’’), IMS Global Learning et seq. (‘‘the Act’’), Information Storage Association (‘‘DVD CCA’’) has filed Consortium, Inc. has filed written Industry Consortium (‘‘INSIC’’) has filed written notifications simultaneously notifications simultaneously with the written notifications on behalf of a joint with the Attorney General and the Attorney General and the Federal Trade research and development venture with Federal Trade Commission disclosing Commission disclosing changes in its Heat Assisted Magnetic Recording changes in its membership status. The membership status. The notifications (‘‘HAMR’’) simultaneously with the notifications were filed for the purpose were filed for the purpose of extending Attorney General and the Federal Trade of extending the Act’s provisions the Act’s provisions limiting the Commission disclosing changes in its limiting the recovery of antitrust recovery of antitrust plaintiffs to actual membership status. The notifications plaintiffs to actual damages under damages under specified circumstances. were filed for the purpose of extending specified circumstances. Specifically, Specifically, SumTotal Systems, Inc., the Act’s provisions limiting the Evatone, Inc., Clearwater, FL; Optrom, Bellevue, WA has been added as a party recovery of antitrust plaintiffs to actual Inc., Miyagi-ken, JAPAN; Rainbo to this venture. Also, Xtensis, London, damages under specified circumstances. Records Mfg. Corp., Santa Monica, CA; United Kingdom; Learning Objects Specifically, National Storage Industry Shanghai Epic Music Manufacturing Network, Inc., Waitsfield, VT; Docent, Consortium, San Diego, CA has changed Operations, Shanghai, People’s Republic Inc., Mountain View, CA; and Click 2 its name to Information Storage Industry Consortium, San Diego, CA. Also, a of China; Shenzhen Vall Technology Learn, Bellevue, WA have been dropped seventh participant has joined the Co., Ltd., Shenzhen, People’s Republic as parties to this venture. INSIC–HAMR Project: specifically, the of China; and Taiwan Thick—Film Ind. No other changes have been made in Regents of the University of Minnesota Corp, Taipei Hsien, Taiwan have been either the membership or planned on behalf of the University of added as parties to this venture. Also, activity of the group research project. Minnesota, Minneapolis, MN. Regency Recordings has changed its Membership in this group research No other changes have been made in name to AAV Regency, Braeside, project remains open, and IMS Global either the membership or planned Victoria, Australia. Learning Consortium, Inc. intends to file activity of the group research project. No other changes have been made in additional written notification Membership in this group research either the membership or planned disclosing all changes in membership. project remains open, and INSIC–HAMR intends to file additional written activity of the group research project. On April 7, 2000, IMS Global notifications disclosing all changes in Membership in this group research Learning Consortium, Inc. filed its membership. project remains open, and DVD CCA original notification pursuant to section intends to file additional written On January 8, 2002, INSIC–HAMR 6(a) of the Act. The Department of filed its original notification pursuant to notification disclosing all changes in Justice published a notice in the Federal section 6(a) of the Act. The Department membership. Register pursuant to section 6(b) of the of Justice published a notice in the On April 11, 2001, DVD CCA filed its Act on September 13, 2000 (65 FR Federal Register pursuant to section original notification pursuant to section 55283). 6(b) of the Act on March 8, 2002 (67 FR 6(a) of the Act. The Department of The last notification was filed with 10761). Justice published a notice in the Federal the Department on April 1, 2004. A Dorothy B. Fountain, Register pursuant to section 6(b) of the notice was published in the Federal Act on August 3, 2001 (66 FR 40727). Deputy Director of Operations, Antitrust Register pursuant to section 6(b) of the Division. The last notification was filed with Act on May 3, 2004 (69 FR 24195). [FR Doc. 04–17996 Filed 8–5–04; 8:45 am] the Department on January 6, 2004. A Dorothy B. Fountain, BILLING CODE 4410–11–M notice was published in the Federal Register pursuant to section 6(b) of the Deputy Director of Operations, Antitrust Act on February 12, 2004 (69 FR 7013). Division. DEPARTMENT OF JUSTICE [FR Doc. 04–17995 Filed 8–5–04; 8:45 am] Dorothy B. Fountain, BILLING CODE 4410–11–M Office of Justice Programs Deputy Director of Operations, Antitrust [OJP (OJP) Docket No. 1407] Division. [FR Doc. 04–17997 Filed 8–5–04; 8:45 am] Meeting of the Global Justice BILLING CODE 4410–11–M Information Sharing Initiative Federal Advisory Committee AGENCY: Office of Justice Programs (OJP), Justice.
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ACTION: Notice of meeting. policymakers in the executive, are to respond, including through the legislative, and judicial branches. The use of appropriate automated, SUMMARY: This is an announcement of a GAC will also advocate for strategies for electronic, mechanical, or other meeting of the Global Justice accomplishing a Global information technological collection techniques or Information Sharing Initiative (Global) sharing capability. other forms of information technology, Federal Advisory Committee (GAC) to Interested persons whose registrations e.g., permitting electronic submission of discuss the Global Initiative, as have been accepted may be permitted to responses. described at http://www.it.ojp.gov/ participate in the discussions at the Agency: Occupational Safety and global. discretion of the meeting chairman and Health Administration. DATES: The meeting will take place on with approval of the DFE. Type of Review: Extension of Tuesday, September 28, 2004, from 1 Dated: August 2, 2004. currently approved collection. p.m. to 5 p.m. et, and Wednesday, J. Patrick McCreary, Title: Course Evaluation. September 29, 2004, from 8:30 a.m. to OMB Number: 1218–0173. Global DFE, Bureau of Justice Assistance, Frequency: On occasion. 12 noon et. Office of Justice Programs. Type of Response: Reporting. ADDRESSES: The meeting will take place [FR Doc. 04–18004 Filed 8–5–04; 8:45 am] Affected Public: Individuals or at the Sheraton Crystal City Hotel, 1800 BILLING CODE 4410–18–P households; business or other for-profit; Jefferson Davis Highway, Arlington, VA not-for-profit institutions; Federal 22202; Phone: (703) 486–1111. Government; and State, Local, or Tribal FOR FURTHER INFORMATION CONTACT: DEPARTMENT OF LABOR Government. J. Patrick McCreary, Global Designated Number of Respondents: 20,900. Federal Employee (DFE), Bureau of Office of the Secretary Number of Annual Responses: 20,900. Justice Assistance, Office of Justice Estimated Time Per Response: 10 Programs, 810 7th Street, Washington, Submission for OMB Review: Comment Request minutes. DC 20531; Phone: (202) 616–0532 [Note: Total Burden Hours: 3,483. this is not a toll-free number]; e-mail: July 13, 2004. Total Annualized capital/startup james.p.mccreary.usdoj.gov. The Department of Labor (DOL) has costs: $0. SUPPLEMENTARY INFORMATION: submitted the following public Total Annual Costs (operating/ information collection request (ICR) to maintaining systems or purchasing Authority the Office of Management and Budget services): $0. This action is authorized under the (OMB) for review and approval in Description: The information Omnibus Crime Control and Safe Streets accordance with the Paperwork collected on the OSHA Form 49 is Act of 1968, Sections 201–03, as Reduction Act of 1995 (Pub. L. 104–13, obtained from students upon amended, 42 U.S.C. 3721–23 (1994). 44 U.S.C. chapter 35). A copy of this completion of a training course. OSHA uses the information to evaluate the Background ICR, with applicable supporting documentation, may be obtained by usefulness, effectiveness, and content of This meeting is open to the public. contacting the Department of Labor courses. Due to security measures, however, (DOL). To obtain documentation, Darrin A. King, members of the public who wish to contact Darrin King on 202–693–4129 Acting Departmental Clearance Officer. attend this meeting must register with (this is not a toll-free number) or email: [FR Doc. 04–18011 Filed 8–5–04; 8:45 am] Mr. J. Patrick McCreary at the above [email protected]. address at least (7) days in advance of Comments should be sent to Office of BILLING CODE 4510–26–P the meeting. Registrations will be Information and Regulatory Affairs, accepted on a space available basis. Attn: OMB Desk Officer for the DEPARTMENT OF LABOR Access to the meeting will not be Occupational Safety and Health allowed without registration. All Administration (OSHA), Office of Employment Standards Administration attendees will be required to sign in at Management and Budget, Room 10235, the meeting registration desk. Please Washington, DC 20503, 202–395–7316 Wage and Hour Division bring photo identification and allow (this is not a toll-free number), within extra time prior to the meeting. 30 days from the date of this publication Minimum Wages for Federal and Anyone requiring special in the Federal Register. Federally Assisted Construction; accommodations should notify Mr. The OMB is particularly interested in General Wage Determination Decisions McCreary at least seven (7) days in comments which: advance of the meeting. • Evaluate whether the proposed General wage determination decisions of the Secretary of Labor are issued in Purpose collection of information is necessary for the proper performance of the accordance with applicable law and are The GAC will act as the focal point for functions of the agency, including based on the information obtained by justice information systems integration whether the information will have the Department of Labor from its study activities in order to facilitate the practical utility; of local wage conditions and data made coordination of technical, funding, and • Evaluate the accuracy of the available from other sources. They legislative strategies in support of the agency’s estimate of the burden of the specify the basic hourly wage rates and Administration’s justice priorities. proposed collection of information, fringe benefits which are determined to The GAC will guide and monitor the including the validity of the be prevailing for the described classes of development of the Global information methodology and assumptions used; laborers and mechanics employed on sharing concept. It will advise the • Enhance the quality, utility, and construction projects of a similar Assistant Attorney General, OJP; the clarity of the information to be character and in the localities specified Attorney General; the President collected; and therein. (through the Attorney General); and • Minimize the burden of the The determinations in these decisions local, state, tribal, and federal collection of information on those who of prevailing rates and fringe benefits
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have been made in accordance with 29 Employment Standards Administration, MI030034 (Jun. 13, 2003) CFR part 1, by authority of the Secretary Wage and Hour Division, Division of MI030035 (Jun. 13, 2003) of Labor pursuant to the provisions of Wage Determinations, 200 Constitution MI030036 (Jun. 13, 2003) the Davis-Bacon Act of March 3, 1931, MI030040 (Jun. 13, 2003) Avenue, NW., Room S–3014, MI030041 (Jun. 13, 2003) as amended (46 Stat. 1494, as amended, Washington, DC 20210. MI030046 (Jun. 13, 2003) 40 U.S.C. 276a) and of other Federal Modification to General Wage MI030047 (Jun. 13, 2003) statutes as may from time to time be Determination Decisions MI030049 (Jun. 13, 2003) enacted containing provisions for the MI030050 (Jun. 13, 2003) payment of wages determined to be The number of the decisions listed to MI030052 (Jun. 13, 2003) prevailing by the Secretary of Labor in the Government Printing Office MI030060 (Jun. 13, 2003) accordance with the Davis-Bacon Act. document entitled ‘‘General Wage MI030062 (Jun. 13, 2003) The prevailing rates and fringe benefits Determination Issued Under the Davis- MI030063 (Jun. 13, 2003) Bacon and related Acts’’ being modified MI030064 (Jun. 13, 2003) determined in these decisions shall, in MI030065 (Jun. 13, 2003) accordance with the provisions of the are listed by Volume and State. Dates of MI030066 (Jun. 13, 2003) foregoing statutes, constitute the publication in the Federal Register are MI030067 (Jun. 13, 2003) minimum wages payable on Federal and in parentheses following the decisions MI030068 (Jun. 13, 2003) federally assisted construction projects being modified. MI030069 (Jun. 13, 2003) MI030070 (Jun. 13, 2003) to laborers and mechanics of the Volume I specified classes engaged on contract MI030104 (Jun. 13, 2003) work of the character and in the New York NY030017 (Jun. 13, 2003) Volume V localities described therein. Connecticut Missouri Good cause is hereby found for not CT030001 (Jun. 13, 2003) MO030001 (Jun. 13, 2003) utilizing notice and public comment CT030003 (Jun. 13, 2003) procedure thereon prior to the issuance Volume VI of these determinations as prescribed in Volume II Alaska 5 U.S.C. 553 and not providing for delay Pennsylvania AK030001 (Jun. 13, 2003) in the effective date as prescribed in that PA030015 (Jun. 13, 2003) AK030006 (Jun. 13, 2003) section, because the necessity to issue Virginia Idaho current construction industry wage VA030055 (Jun. 13, 2003) ID030002 (Jun. 13, 2003) ID030015 (Jun. 13, 2003) Volume III determinations frequently and in large ID030017 (Jun. 13, 2003) volume causes procedures to be None ID030018 (Jun. 13, 2003) impractical and contrary to the public Volume IV ID030019 (Jun. 13, 2003) interest. Oregon General wage determination Illinois OR030001 (Jun. 13, 2003) decisions, and modifications and IL030001 (Jun. 13, 2003) OR030002 (Jun. 13, 2003) supersedes decisions thereto, contain no IL030002 (Jun. 13, 2003) OR030007 (Jun. 13, 2003) expiration dates and are effective from IL030003 (Jun. 13, 2003) South Dakota IL030004 (Jun. 13, 2003) SD030002 (Jun. 13, 2003) their date of notice in the Federal IL030006 (Jun. 13, 2003) Register, or on the date written notice SD030010 (Jun. 13, 2003) IL030021 (Jun. 13, 2003) Utah is received by the agency, whichever is IL030022 (Jun. 13, 2003) UT030001 (Jun. 13, 2003) earlier. These decisions are to be used IL030024 (Jun. 13, 2003) UT030004 (Jun. 13, 2003) in accordance with the provisions of 29 IL030027 (Jun. 13, 2003) UT030005 (Jun. 13, 2003) CFR parts 1 and 5. Accordingly, the IL030028 (Jun. 13, 2003) UT030006 (Jun. 13, 2003) applicable decision, together with any IL030029 (Jun. 13, 2003) UT030007 (Jun. 13, 2003) modifications issued, must be made a IL030031 (Jun. 13, 2003) UT030008 (Jun. 13, 2003) IL030032 (Jun. 13, 2003) part of every contract for performance of UT030034 (Jun. 13, 2003) IL030033 (Jun. 13, 2003) Washington the described work within the IL030034 (Jun. 13, 2003) geographic area indicated as required by WA030001 (Jun. 13, 2003) IL030036 (Jun. 13, 2003) WA030002 (Jun. 13, 2003) an applicable Federal prevailing wage IL030037 (Jun. 13, 2003) WA030003 (Jun. 13, 2003) law and 29 CFR part 5. The wage rates IL030044 (Jun. 13, 2003) WA030005 (Jun. 13, 2003) and fringe benefits, notice of which is IL030045 (Jun. 13, 2003) WA030007 (Jun. 13, 2003) published herein, and which are IL030046 (Jun. 13, 2003) WA030008 (Jun. 13, 2003) contained in the Government Printing IL030050 (Jun. 13, 2003) WA030010 (Jun. 13, 2003) Office (GPO) document entitled IL030051 (Jun. 13, 2003) WA030011 (Jun. 13, 2003) IL030054 (Jun. 13, 2003) ‘‘General Wage Determinations Issued WA030013 (Jun. 13, 2003) IL030063 (Jun. 13, 2003) WA030023 (Jun. 13, 2003) Under The Davis-Bacon And Related IL030064 (Jun. 13, 2003) Acts,’’ shall be the minimum paid by IL030066 (Jun. 13, 2003) Volume VII contractors and subcontractors to IL030067 (Jun. 13, 2003) Arizona laborers and mechanics. IL030068 (Jun. 13, 2003) AZ030001 (Jun. 13, 2003) Any person, organization, or IL030070 (Jun. 13, 2003) AZ030002 (Jun. 13, 2003) governmental agency having an interest Michigan AZ030003 (Jun. 13, 2003) in the rates determined as prevailing is MI030003 (Jun. 13, 2003) AZ030005 (Jun. 13, 2003) encouraged to submit wage rate and MI030005 (Jun. 13, 2003) AZ030010 (Jun. 13, 2003) MI030007 (Jun. 13, 2003) fringe benefit information for AZ030011 (Jun. 13, 2003) MI030012 (Jun. 13, 2003) AZ030012 (Jun. 13, 2003) consideration by the Department. MI030016 (Jun. 13, 2003) AZ030016 (Jun. 13, 2003) Further information and self- MI030020 (Jun. 13, 2003) AZ030017 (Jun. 13, 2003) explanatory forms for the purpose of MI030027 (Jun. 13, 2003) California submitting this data may be obtained by MI030030 (Jun. 13, 2003) CA030004 (Jun. 13, 2003) writing to the U.S. Department of Labor, MI030031 (Jun. 13, 2003) CA030009 (Jun. 13, 2003)
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CA030013 (Jun. 13, 2003) POSTAL RATE COMMISSION II. Description of Proposal CA030027 (Jun. 13, 2003) The Exchange proposes to amend CA030029 (Jun. 13, 2003) Sunshine Act Meetings Article II, Section 3 of the Exchange CA030030 (Jun. 13, 2003) AGENCY: Postal Rate Commission. Constitution to create a mechanism to CA030031 (Jun. 13, 2003) allow the Exchange to contract with CA030032 (Jun. 13, 2003) TIME AND DATE: August 11, 2004 at 9:30 another self-regulatory organization for a.m. General Wage Determination the performance of certain of Amex’s Publication PLACE: Commission conference room, regulatory functions. The amendment Postal Rate Commission, 1333 H Street, would authorize an officer of the General wage determinations issued NW., Suite 300, Washington, DC 20268– Exchange, on behalf of the Exchange, under the Davis-Bacon and related Acts, 0001. subject to approval by the Amex Board, including those noted above, may be STATUS: Open. to enter into one or more agreements found in the Government Printing Office MATTERS TO BE CONSIDERED: Item No. 1: with another self-regulatory (GPO) document entitled ‘‘General Wage Discussion and vote on the Postal Rate organization to provide regulatory determinations Issued Under the Davis- Commission’s fiscal year 2005 budget; services to the Exchange to assist the Bacon and Related Acts’’. This item No. 2: Selection of vice chairman. Exchange in discharging its obligations under Section 6 and Section 19(g) of the publication is available at each of the 50 CONTACT PERSON FOR MORE INFORMATION: Act.5 Under the proposal, any action Regional Government Depository Stephen L. Sharfman, General Counsel, taken by another self-regulatory Libraries and many of the 1,400 202–789–6818 or [email protected]. Government Depository Libraries across organization, or its employees or Dated: August 3, 2004. authorized agents, acting on behalf of the country. Steven W. Williams, Amex pursuant to a regulatory services General wage determinations issued Secretary. agreement will be deemed to be an under the Davis-Bacon and related Acts [FR Doc. 04–18157 Filed 8–5–04; 8:45 am] action taken by the Exchange. However, are available electronically at no cost on BILLING CODE 7710–FW–M the amended Constitution states that the Government Printing Office site at nothing in Article II, Section 3 shall www.access.gpo.gov/davisbacon. They affect the oversight of such other self- are also available electronically by regulatory organization by the SECURITIES AND EXCHANGE Commission. The amended Constitution subscription to the Davis-Bacon Online COMMISSION Service (http:// also provides that Amex will retain davisbacon.fedworld.gov) of the [Release No. 34–50122; File No. SR–Amex– ultimate legal responsibility for, and National Technical Information Service 2004–32] control of, its self-regulatory (NTIS) of the U.S. Department of responsibilities, and that any such Self-Regulatory Organizations; Order Commerce at 1–800–363–2068. This regulatory services agreement shall so Granting Approval to Proposed Rule subscription offers value-added features provide. Change by the American Stock In the proposal, the Exchange noted such as electronic delivery of modified Exchange LLC to Amend Article II, that this rule change would have wage decisions directly to the user’s Section 3 of the Exchange Constitution immediate applicability with respect to desktop, the ability to access prior wage a Regulatory Services Agreement decisions issued during the year, July 29, 2004. (‘‘RSA’’) dated as of April 30, 2004, extensive Help desk Support, etc. I. Introduction between the National Association of Hard-copy subscriptions may be Securities Dealers, Inc. (‘‘NASD’’) and On May 12, 2004, the American Stock purchased from: Superintendent of the Amex.6 Amex determined that, to Exchange LLC (‘‘Amex’’ or ‘‘Exchange’’) best discharge its self-regulatory Documents, U.S. Government Printing filed with the Securities and Exchange responsibilities, it would contract with Office, Washington, DC 20402, (202) Commission (‘‘Commission’’), pursuant the NASD, which is subject to 512–1800. to Section 19(b)(1) of the Securities Commission oversight pursuant When ordering hard-copy Exchange Act of 1934 (‘‘Act’’),1 and Sections 15A and 19 of the Act,7 to subscription(s), be sure to specify the Rule 19b–4 thereunder,2 a proposed rule provide certain regulatory services to State(s) of interest, since subscriptions change to amend Article II, Section 3 of the Exchange Constitution to provide the Amex. Under the RSA, NASD, may be ordered for any or all of the six through its wholly owned subsidiaries separate Volumes, arranged by State. the Amex the ability to contract with another self-regulatory organization for NASD Regulation, Inc. (‘‘NASDR’’) and Subscriptions include an annual regulatory services. The proposed rule NASD Dispute Resolution, Inc. edition (issued in January or February) change was published for comment in (‘‘NASDDR’’), performs certain which includes all current general wage the Federal Register on June 3, 2004.3 23, 2004 (‘‘Amendment No. 1’’). In Amendment No. determinations for the States covered by The Commission received no comments each volume. Throughout the remainder 1 the Exchange advised that on June 22, 2004, the on the proposed rule change. On June proposed rule change was approved by New NASD of the year, regular weekly updates will 24, 2004, Amex filed Amendment No. 1 Holdings, Inc., the holder of the Class B interest in be distributed to subscribers. to the proposal.4 This order approves the Exchange, and as a result, the Exchange’s internal procedures with respect to the proposed Signed at Washington, DC, this 29 day of the proposed rule change. rule change were complete. Amendment No. 1 is a July, 2004. technical amendment, and, therefore, not subject to 1 John Frank, 15 U.S.C. 78s(b)(1). notice and comment. 2 17 CFR 240.19b–4. 5 15 U.S.C. 78f and 15 U.S.C. 78s(g). Acting Chief, Branch of Construction Wage 3 See Securities Exchange Act Release No. 49775 6 Pursuant to applicable provisions of the Determinations. (May 26, 2004), 69 FR 31437. Freedom of Information Act, 18 U.S.C. 1905, and [FR Doc. 04–17698 Filed 8–5–04; 8:45 am] 4 See letter from William Floyd-Jones, Jr., Commission regulations thereunder, 17 CFR 200.83, Associate General Counsel, Amex, to Nancy J. Amex has requested confidential treatment for the BILLING CODE 4510–27–P Sanow, Assistant Director, Division of Market RSA. Regulation, (‘‘Division’’), Commission, dated June 7 15 U.S.C. 78o–3 and 15 U.S.C. 78s.
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regulatory functions as an agent on the disciplining of members and employee acting pursuant to the RSA behalf of Amex. The RSA provides a persons associated with members. will be deemed to be an Amex employee framework for oversight of Amex The Commission has previously for purposes of Amex’s rules. In members and enforcement of Amex stated and continues to believe that particular, Amex represents that for rules and federal securities laws, and contractual regulatory agreements purposes of any rule that requires an describes the services that NASD will between self-regulatory organizations employee or personnel of Amex to perform so as to ensure a regulatory may be permissible in instances where perform a specific regulatory oversight, program that will satisfy applicable it is consistent with the public disciplinary or enforcement function, statutory requirements. Specifically, interest.13 The Commission believes any NASD employee that is performing pursuant to the RSA, NASDR and that it is reasonable and consistent with such function pursuant to the RSA will NASDDR will provide market and trade the public interest to allow a self- be deemed to be an Amex employee for practice surveillance and analysis; regulatory organization to contract with purposes of Amex’s rules as a result of financial and operational regulation; another self-regulatory organization to this rule change. Thus, no changes to options sales practice regulation; perform disciplinary and enforcement Amex’s rules are required as a result of disciplinary and enforcement functions; functions.14 The Commission also this filing.17 believes NASD has the expertise and and dispute resolution services. IV. Conclusion experience to perform these functions, The Amex stated that in performing and thus will be able to assist Amex in It is therefore ordered, pursuant to services under the RSA, the NASD will fulfilling its self-regulatory section 19(b)(2) of the Act,18 that the be operating pursuant to the statutory responsibilities as set forth under the proposed rule change (SR–Amex–2004– self-regulatory responsibilities of the Act. 32) be, and hereby is, approved. Amex under Section 6 and Section 19 The Commission continues to believe, 8 For the Commission, by the Division of of the Act and will apply Amex’s rules. however, that it is important, and Market Regulation, pursuant to delegated The Exchange also stated that any action required by the Act, for ultimate authority.19 taken by NASD or its employees or responsibility and primary liability for Margaret H. McFarland, authorized agents pursuant to the RSA self-regulatory failures to rest with the Deputy Secretary. (or any other SRO with which the Exchange itself rather than the [FR Doc. 04–18003 Filed 8–5–04; 8:45 am] Exchange contracts) will be deemed an contracted self-regulatory BILLING CODE 8010–01–P action taken by the Amex (without, organization.15 Consistent with this however, affecting the Commission’s approach, Amex will bear ultimate legal oversight of such other self-regulatory responsibility for the performance of its SECURITIES AND EXCHANGE organization). The Amex noted, self-regulatory functions, despite the COMMISSION however, that it retains ultimate fact that NASD’s subsidiaries will be responsibility for performance of its carrying out the regulation of Amex’s [Release No. 34–50124; File No. SR–BSE– self-regulatory duties under the RSA. market pursuant to the RSA. 2004–32] Nevertheless, the Commission has III. Discussion Self-Regulatory Organizations; Notice stated and again reiterates that the self- of Filing and Order Granting regulatory organization providing The Commission finds that the Accelerated Approval of the Proposed regulatory services may bear liability for proposed rule change is consistent with Rule Change by the Boston Stock causing, or, in appropriate the requirements of the Act and the Exchange, Inc. Relating to the circumstances, aiding and abetting, rules and regulations thereunder Extension of the Linkage Fee Pilot regulatory failures by the Exchange.16 applicable to a national securities Program exchange and, in particular, the Thus, NASD may bear secondary requirements of Section 6 of the Act.9 liability if the Commission finds that the July 30, 2004. Specifically, the Commission finds that contracted regulatory functions are Pursuant to section 19(b)(1) of the the proposed rule change is consistent being performed so inadequately as to Securities Exchange Act of 1934 with and furthers the objectives of cause a violation of the federal (‘‘Act’’),1 and Rule 19b–4 thereunder,2 Sections 6(b)(1),10 6(b)(6),11 and securities laws by Amex. notice is hereby given that on July 29, 6(b)(7) 12 of the Act, which require that The Commission also notes that Amex 2004, the Boston Stock Exchange, Inc. the Exchange enforce compliance by its has represented that any NASD (‘‘BSE’’ or ‘‘Exchange’’) filed with the members and persons associated with Securities and Exchange Commission 13 See Exchange Act Release No. 42455 (February (‘‘Commission’’) the proposed rule its members with the provisions of the 24, 2000), 65 FR 11388 (March 2, 2000) at Section Act, the rules and regulations III(D)(2) (‘‘ISE Approval Order’’) (approving the change as described in items I and II thereunder, and the rules of the application for registration of the International below, which items have been prepared Exchange; that the rules of the Exchange Securities Exchange, Inc., including authority to by the Exchange. The Commission is contract with another self-regulatory organization to publishing this notice to solicit provide that its members and persons perform regulatory functions). associated with its members shall be 14 Id. In the ISE Approval Order, the Commission comments on the proposed rule from appropriately disciplined for violations also stated that ‘‘[d]iscipline and enforcement are interested persons and is approving the of the Act, the rules and regulations fundamental elements to a regulatory program, and proposed rule change on an accelerated constitute core self-regulatory functions. It is basis. thereunder, and the rules of the essential to the public interest and the protection Exchange; and that the rules of the of investors that these functions are carried out in Exchange provide a fair procedure for an exemplary manner, and the Commission believes 17 Telephone call between William Floyd-Jones, that NASD Regulation has the expertise and Jr., Associate General Counsel, Amex, and Heather experience to perform these functions.’’ Seidel, Attorney-Fellow, Division, Commission, on 8 15 U.S.C. 78f and 15 U.S.C. 78s. 15 See ISE Approval Order at Section III(D)(2), and July 29, 2004. 9 15 U.S.C. 78f. Sections 6(b), 19(g) and 19(h) of the Act. 15 U.S.C. 18 15 U.S.C. 78s(b)(2). 10 15 U.S.C. 78f(b)(1). 78f(b), 78s(g) and 78s(h). 19 17 CFR 200.30–3(a)(12). 11 15 U.S.C. 78f(b)(6). 16 See ISE Approval Order at footnote 68 and 1 15 U.S.C. 78s(b)(1). 12 15 U.S.C. 78f(b)(7). accompanying text. 2 17 CFR 240.19b–4.
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I. Self-Regulatory Organization’s makers on other exchanges that submit number should be included on the Statement of the Terms of Substance of orders to BOX outside of the Linkage. subject line if e-mail is used. To help the the Proposed Rule Change The side of a BOX trade opposite an Commission process and review your BSE proposes to extend the current inbound P or P/A order would be billed comments more efficiently, please use pilot program applicable to Options normally as any other BOX trade. Also, only one method. The Commission will Intermarket Linkage (‘‘Linkage’’) fees for consistent with the Plan, no fees will be post all comments on the Commission’s one year until July 31, 2005. charged to a party sending a Satisfaction Internet Web site (http://www.sec.gov/ The proposed fee schedule is request (‘‘S’’ order) to BOX. However, a rules/sro.shtml). Copies of the available at the principal office of the fee will be charged to the BOX Options submission, all subsequent Exchange and at the Commission’ Participant that was responsible for the amendments, all written statements Public Reference Room. trade-through that caused the S order to with respect to the proposed rule be sent. change that are filed with the II. Self-Regulatory Organization’s BSE now proposes to extend the pilot Commission, and all written Statement of the Purpose of, and program to July 31, 2005, in order to communications relating to the Statutory Basis for, the Proposed Rule remain consistent with the other options proposed rule change between the Change exchanges concerning these fees. Commission and any person, other than In its filing with the Commission, the 2. Statutory Basis those that may be withheld from the Exchange included statements public in accordance with the The Exchange believes that the concerning the purpose of, and basis for, provisions of 5 U.S.C. 552, will be proposal is consistent with the the proposed rule change and discussed available for inspection and copying in requirements of section 6(b) of the Act,4 any comments it received on the the Commission’s Public Reference in general, and furthers the objectives of proposed rule change. The text of these Section, 450 Fifth Street, NW., section 6(b)(4),5 in particular, in that it statements may be examined at the Washington, DC 20549. Copies of such provides for the equitable allocation of places specified in Item III below. The filing also will be available for reasonable dues, fees, and other charges Exchange has prepared summaries, set inspection and copying at the principal among its members. forth in Sections A, B, and C below, of offices of BSE. All comments received the most significant aspects of such B. Self-Regulatory Organization’s will be posted without change; the statements. Statement on Burden on Competition Commission does not edit personal identifying information from A. Self-Regulatory Organization’s The Exchange does not believe that submissions. You should submit only Statement of the Purpose of, and the proposed rule change will impose information that you wish to make Statutory Basis for, the Proposed Rule any burden on competition. available publicly. All submissions Change C. Self-Regulatory Organization’s should refer to File Number SR–BSE– 1. Purpose Statement on Comments on the 2004–32 and should be submitted on or Proposed Rule Change Received From before August 27, 2004. BSE proposes to extend the current Members, Participants, or Others pilot program for Linkage fees on its IV. Commission’s Findings and Order Boston Options Exchange (‘‘BOX’’) The Exchange has neither solicited Granting Accelerated Approval of facility through July 31, 2005. BOX’s nor received comments on the proposed Proposed Rule Change current fee structure for Principal (‘‘P’’) rule change. After careful consideration, the and Principal Acting as Agent (‘‘P/A’’) III. Solicitation of Comments Commission finds that the proposed Orders 3 executed on BOX is operating rule change is consistent with the Interested persons are invited to under a pilot program which expires on requirements of the Act and the rules submit written data, views, and July 31, 2004. Currently, because all and regulations thereunder, applicable arguments concerning the foregoing, Linkage Orders received by BOX are for to a national securities exchange,6 and, including whether the proposed rule the account of a broker-dealer market in particular, with the requirements of change is consistent with the Act. maker on another exchange, the fees section 6(b) of the Act 7 and the rules Comments may be submitted by any of applicable to P and P/A Orders are the and regulations thereunder. The same as fees applicable to market the following methods: Commission finds that the proposed Electronic Comments rule change is consistent with section 3 Under section 2(16) of the Purpose of Creating • 6(b)(4) of the Act,8 which requires that and Operating an Options Intermarket Linkage Use the Commission’s Internet comment form (http://www.sec.gov/ the rules of the Exchange provide for the (‘‘Plan’’) and Chapter XII of the BOX Rules, which equitable allocation or reasonable dues, tracks the language of the Plan, a ‘‘Linkage Order’’ rules/sro.shtml); or means an Immediate or Cancel order routed through • Send an e-mail to rule- fees and other charges among its the Linkage as permitted under the Plan. There are [email protected]. Please include File members and other persons using its three types of Linkage orders: Number SR–BSE–2004–32 on the facilities. The Commission believes that (i) ‘‘P/A Order,’’ which is an order for the the extension of the Linkage fee pilot principal account of a Market Maker (or equivalent subject line. entity on another Participant Exchange that is until July 31, 2005 will give the authorized to represent Public Customer orders), Paper Comments Exchange and the Commission further reflecting the terms of a related unexecuted Public • Send paper comments in triplicate opportunity to evaluate whether such Customer order for which the specialist is acting as fees are appropriate. agent; to Jonathan G. Katz, Secretary, Securities and Exchange Commission, The Commission finds good cause, (ii) ‘‘P Order,’’ which is an order for the principal 9 account of a market maker (or equivalent entity on 450 Fifth Street, NW., Washington, DC pursuant to section 19(b)(2) of the Act, another Participant exchange) and is not a P/A 20549–0609. Order; and All submissions should refer to File 6 In approving this rule, the Commission notes that it has considered its impact on efficiency, (iii) ‘‘Satisfaction Order,’’ which is an order sent Number SR–BSE–2004–32. This file through the Linkage to notify a Participant competition and capital formation. 15 U.S.C. 78c(f). Exchange of a Trade-Through and to seek 7 15 U.S.C. 78f(b). satisfaction of the liability arising from that Trade- 4 15 U.S.C. 78f(b). 8 15 U.S.C. 78f(b)(4). Through. 5 15 U.S.C. 78f(b)(4). 9 15 U.S.C. 78s(b)(2).
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for approving the proposed rule change I. Self-Regulatory Organization’s (2) the DPM for a trading crowd; and (3) prior to the thirtieth day after the date Statement of the Terms of Substance of any e–DPM, and shall each have one of publication of the notice of the filing the Proposed Rule Change vote. Any e–DPM appointed to one or thereof in the Federal Register. The The Exchange proposes to reinstate its more option classes shall be eligible to Commission believes that granting Marketing Fee Voting Procedures,3 vote on marketing fees for those option accelerated approval will preserve the which previously were set forth in classes. (b) Requesting a Trading Crowd Vote. Exchange’s existing pilot program for Interpretation and Policy .12 to CBOE Any eligible trading crowd member Linkage fees without interruption as Rule 8.7. Under those procedures, a (including the DPM and any e–DPM) BSE and the Commission further trading crowd could determine whether can request that a vote be held to consider the appropriateness of Linkage or not to participate in the CBOE’s determine whether or not the trading fees. marketing fee program. Under the crowd should continue to participate in procedures, as proposed to be V. Conclusion the marketing fee program for one or reinstated, electronic DPMs (‘‘e– more of the option classes located at It is therefore ordered, pursuant to DPMs’’) 4 would be incorporated into 5 that station by submitting a written section 19(b)(2) of the Act 10 that the the Marketing Fee Voting Procedures. request to that effect to the Secretary of proposed rule change (SR–BSE–2004– Below is the text of the proposed rule the Exchange. The Exchange shall post 32) is hereby approved on an change. Proposed new language is a notice at the station and provide accelerated basis for a pilot period to italicized. written notice to the e–DPM of the time expire on July 31, 2005. * * * * * and date of any vote to be taken at least For the Commission, by the Division of RULE 8.7 Obligations of Market- 10 calendar days prior to the time of the Market Regulation, pursuant to delegated Makers vote. The marketing fee oversight authority.11 committee shall determine all other (a)–(c) No change. administrative procedures pertaining to Margaret H. McFarland, Interpretations and Policies the vote. Deputy Secretary. (c) Participation in the Marketing Fee [FR Doc. 04–17955 Filed 8–5–04; 8:45 am] .01–.11 No change. Program. A trading crowd shall be .12 Marketing Fee Voting BILLING CODE 8010–01–P deemed to have indicated that it desires Procedures: The following procedures to participate in the Exchange’s specify how a trading crowd determines marketing fee program for one or more SECURITIES AND EXCHANGE whether to participate or not to of the option classes located at that COMMISSION participate in the Exchange’s marketing station if a majority of those eligible fee program. These procedures expire trading crowd members participate in six months from the date of SEC the vote and if a majority of the total [Release No. 34–50130; File No. SR–CBOE– approval, or such earlier time as the 2004–47] votes cast are in favor of participating Commission has approved them on a in the marketing fee program for those permanent basis. option classes. Conversely, a trading Self-Regulatory Organizations; Notice (a) Eligible Voters of Filing and Order Granting crowd shall be deemed to have (i) The term ‘‘trading crowd’’ is indicated that it does not desire to Accelerated Approval of a Proposed synonymous with the term ‘‘station,’’ Rule Change by the Chicago Board participate in the Exchange’s marketing which is defined in Interpretation and fee program for one or more of the Options Exchange, Incorporated Policy .01 to Rule 8.8. Relating to Marketing Fee Voting option classes located at that station if (ii) Eligible Trading Crowd Members: a majority of those eligible trading Procedures Members of a trading crowd that will be crowd members participate in the vote eligible to participate in the vote July 30, 2004. and if a majority of the total votes cast (‘‘eligible trading crowd members’’) are against participating in the Pursuant to Section 19(b)(1) of the shall include (1) those Market-Makers marketing fee program for those option Securities Exchange Act of 1934 who have transacted at least 80% of classes. (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 their Market-Maker contracts and (i) Frequency of Vote: Once a crowd notice is hereby given that on July 19, transactions in each of the three votes to participate in the marketing fee 2004, the Chicago Board Options immediately preceding calendar months program, subsequent votes to determine Exchange, Incorporated (‘‘CBOE’’ or in option classes traded in the trading whether to continue its participation ‘‘Exchange’’) filed with the Securities crowd, and who continue to be present may be held only once every three and Exchange Commission in the trading crowd in the capacity of calendar months. Once a crowd votes (‘‘Commission’’ or ‘‘SEC’’) the proposed a Market-Maker at the time of the vote; not to participate in the marketing fee rule change as described in Items I and program, subsequent votes to determine II below, which Items have been 3 The voting procedures previously were whether to participate in the marketing described in SR–CBOE–2003–20. See Securities prepared by the CBOE. The Commission Exchange Act Release No. 47957 (May 30, 2003), 68 fee program may be held only once is publishing this notice to solicit FR 35035 (June 11, 2003) (‘‘Marketing Fee Voting every thirty days. comments on the proposed rule change Procedures Approval Order’’). (ii) Tie Votes: If a vote conducted in from interested persons, and at the same 4 On July 12, 2004, the SEC approved a proposed accordance with this rule results in a tie, rule change, SR–CBOE–2004–24, which pertains to the status quo for that trading crowd time is granting accelerated approval of the establishment of e–DPMs. See Securities the proposed rule change on a six- Exchange Act Release No. 50003 (July 12, 2004), 69 shall remain in effect. Accordingly, if month pilot basis. FR 43028 (July 19, 2004). the trading crowd currently participates 5 Upon approval of this proposed rule change, the in the marketing fee program and a tie CBOE intends to file a proposed rule change, 10 vote occurs, the marketing fee program Id. pursuant to Section 19(b)(3)(A)(ii) of the Act and 11 17 CFR 200.30–3(a)(12). subparagraph (f)(2) of Rule 19b–4 thereunder, will remain in effect in that trading 1 15 U.S.C. 78s(b)(1). incorporating e–DPMs into the CBOE’s existing crowd. If the trading crowd does not 2 17 CFR 240.19b–4. marketing fee program. participate in the marketing fee at the
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time the tie vote occurs, the marketing Maker contracts and transactions in cast are in favor of not participating in fee will not be implemented in the each of the three immediately preceding the marketing fee program. In the event trading crowd at that time. calendar months in option classes the vote of the members of the trading * * * * * traded in the trading crowd and who crowd is tied, the marketing fee program continue to be present in the trading will remain in effect in the option class II. Self-Regulatory Organization’s crowd in the capacity of a Market-Maker or classes in that trading crowd for the Statement of the Purpose of, and at the time of the vote; 8 next three consecutive months. Statutory Basis for, the Proposed Rule (2) The DPM; and Change (3) Any e-DPM, for those option Trading Crowd Not Participating in Marketing Fee Program In its filing with the Commission, the classes to which the e-DPM has been CBOE included statements concerning appointed. According to the CBOE, twenty days after a trading crowd votes not to the purpose of and basis for its proposal Process To Request a Vote and discussed any comments it received participate in the marketing fee on the proposal. The text of these The CBOE proposes that the DPM, e- program, any eligible trading crowd statements may be examined at the DPM or any other eligible trading crowd member may then request that another places specified in Item III below. The member may request that a vote be held vote be held to determine whether the CBOE has prepared summaries, set forth by submitting a written request to that trading crowd should participate in the in Sections A, B and C below, of the effect to the Secretary of the CBOE. The marketing fee program.11 In this case, if most significant aspects of such CBOE will provide at least ten calendar a majority of the votes cast are in favor statements. days posted notice to the trading crowd of participating in the marketing fee and will provide written notice to the e- program, the trading crowd will be A. Self-Regulatory Organization’s DPM of the time and date of the vote. deemed to have indicated that it wishes Statement of the Purpose of, and The Secretary of the CBOE will verify to participate in the marketing fee Statutory Basis for, the Proposed Rule that the member requesting a vote is an program and the marketing fee program Change eligible trading crowd member and will will be in effect in that trading crowd keep the identity of such individual 1. Purpose for the next three consecutive months. confidential. In the event the vote of the members of On May 30, 2003, the Commission the trading crowd is tied, the trading approved a proposed rule change that Trading Crowd Participating in Marketing Fee Program crowd will be deemed to have indicated adopted Interpretation and Policy .12 to that it does not wish to participate in CBOE Rule 8.7, setting forth voting Proposed Interpretation and Policy the marketing fee program. procedures that specify how a trading .12 to CBOE Rule 8.7 provides that a The CBOE further states that these crowd, including the DPM, determines trading crowd will be deemed to have Marketing Fee Voting Procedures are whether or not to participate in the indicated that it does not wish to substantially similar to procedures CBOE’s marketing fee program.6 The continue participating in the marketing adopted by the American Stock Marketing Fee Voting Procedures were fee program for one or more of the Exchange (‘‘Amex’’).12 implemented as a one-year pilot option classes located at that station Moreover, the CBOE proposes that a program and expired on May 30, 2004. only if: (i) The question is put to a vote marketing fee oversight committee of Although the CBOE has been evaluating of the eligible trading crowd members; 9 the CBOE shall determine whether to make modifications to its (ii) a majority of the eligible trading administrative procedures for marketing fee program, in the interim, crowd members participate in the conducting the vote. If a payment the CBOE proposes to re-institute these vote; 10 and (iii) a majority of the votes accepting firm materially changes its voting procedures on a pilot basis to execution status or a DPM transfers its expire six months after Commission 8 The CBOE states that it routinely monitors DPM appointment to a separate approval of the proposed rule change. Market-Maker trading activity for purposes of organization pursuant to CBOE Rule determining compliance with Interpretation and The Exchange represents that these Policy .03 of CBOE Rule 8.7, relating to 8.89, any eligible trading crowd member procedures are substantially similar to appointment and in-person trading requirements. may then request that a vote be held to those previously approved by the Additionally, the Exchange has committed to determine whether or not the trading Commission before the pilot expired,7 monitor Market-Maker trading activity for purposes crowd should participate in the of determining compliance with the electronic except that the CBOE proposes that the quoting requirements adopted in SR–CBOE–2002– marketing fee program by conducting a Marketing Fee Voting Procedures be 05 (the Hybrid Trading System). See Securities vote pursuant to the above procedures. amended to include e-DPMs in the Exchange Act Release No. 47959 (May 30, 2003), 68 category of trading crowd members who FR 34441 (June 9, 2003). As such, the CBOE 2. Statutory Basis believes that it has the capability to determine who The CBOE believes that, because the are eligible to participate in a marketing constitutes an ‘‘eligible trading crowd member’’ for fee vote, on an option-by-option class purposes of the proposed Marketing Fee Voting reinstated Interpretation and Policy .12 basis, and only for those option classes Procedures. Furthermore, the CBOE believes that to CBOE Rule 8.7 will provide fair and to which they have been appointed. the trading activity and in-person requirements of orderly procedures for the Interpretation and Policy .12 of CBOE Rule 8.7 administration of any marketing fee Eligible Voters in a Trading Crowd ensure that only those members who are currently engaged as Market-Makers in that trading crowd, program, the proposed rule change is Proposed Interpretation and Policy and who have concentrated their activity in that .12 of CBOE Rule 8.7 provides that trading crowd over the last three months, may 11 The CBOE notes that actual votes may only be eligible trading crowd members include: participate in the vote. held once every thirty days. Because there is a ten (1) Those Market-Makers who have 9 The DPM and any e-DPM appointed to the calendar day notice period prior to a vote, however, option class are considered to be eligible trading an eligible trading crowd member may request a transacted at least 80% of their Market- crowd members and, as such, may (but are not vote twenty days after the preceding vote. required to) participate in the vote. The DPM and 12 See Amex Rule 958.11. See Securities 6 See Securities Exchange Act Release No. 47948 any e-DPM are each entitled to only one vote. Exchange Act Release Nos. 48577 (September 30, (June 1, 2003), 68 FR 33749 (June 5, 2003) (SR– 10 To the extent the CBOE’s rules permit a Market- 2003), 68 FR 57943 (October 7, 2003) (File No. SR– CBOE–2003–19). Maker affiliated with an e-DPM to trade in a station, AMEX–2003–80); and 49488 (March 26, 2004), 69 7 See Marketing Fee Voting Procedures Approval that Market-Maker is eligible to vote pursuant to FR 17460 (April 2, 2004) (File No. SR–AMEX– Order, supra note 3. CBOE Rule 8.7, Interpretation and Policy .12(a)(ii). 2004–18).
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consistent with and furthers the Commission and any person, other than The Commission finds good cause for objectives of Section 6(b)(5) of the Act,13 those that may be withheld from the approving the proposed rule change which requires, among other things, that public in accordance with the prior to the 30th day of the date of the rules of the exchange are designed provisions of 5 U.S.C. 552, will be publication of notice of filing thereof in to promote just and equitable principles available for inspection and copying in the Federal Register. The Commission of trade and to remove impediments to the Commission’s Public Reference notes that the proposed Marketing Fee and perfect the mechanisms of a free Room. Copies of the filing also will be Voting Procedures correspond to the and open market. available for inspection and copying at voting procedures that had been in place at the Exchange until recently. B. Self-Regulatory Organization’s the principal office of the CBOE. All Moreover, the CBOE is proposing to Statement on Burden on Competition comments received will be posted without change; the Commission does institute these procedures as a pilot The CBOE does not believe that the not edit personal identifying program that will expire six months proposed rule change will impose any information from submissions. You from the date of this order. Therefore, burden on competition that is not should submit only information that the Commission finds that there is good necessary or appropriate in furtherance you wish to make available publicly. All cause, consistent with Section 19(b)(2) of the purposes of the Act. submissions should refer to File of the Act,17 to approve the proposed C. Self-Regulatory Organization’s Number SR–CBOE–2004–47 and should rule change on an accelerated basis. Statement on Comments on the be submitted on or before August 27, V. Conclusion Proposed Rule Change Received From 2004. It is therefore ordered, pursuant to Members, Participants or Others IV. Commission’s Findings and Order Section 19(b)(2) of the Act,18 that the The CBOE states that no written Granting Accelerated Approval of proposed rule change (File No. SR– comments were solicited or received Proposed Rule Change as a Pilot CBOE–2004–47) be approved until with respect to the proposed rule Program January 30, 2005. change. After careful consideration, the For the Commission, by the Division of III. Solicitation of Comments Commission finds that the proposed Market Regulation, pursuant to delegated authority.19 Interested persons are invited to rule change is consistent with the Margaret H. McFarland, submit written data, views, and requirements of the Act and the rules arguments concerning the foregoing, and regulations thereunder applicable to Deputy Secretary. including whether the proposed rule a national securities exchange.14 [FR Doc. 04–17956 Filed 8–5–04; 8:45 am] change is consistent with the Act. Specifically, the Commission believes BILLING CODE 8010–01–P Comments may be submitted by any of the proposed rule change is consistent the following methods: with Section 6(b)(5) of the Act,15 which requires, among other things, that the SECURITIES AND EXCHANGE Electronic Comments rules of the Exchange be designed to COMMISSION • Use the Commission’s Internet prevent fraudulent and manipulative comment form (http://www.sec.gov/ acts and practices, to promote just and [Release No. 34–50133; File No. SR–NYSE– 2004–36] rules/sro.shtml); or equitable principles of trade, to foster • Send an e-mail to rule- cooperation and coordination with Self-Regulatory Organizations; Notice [email protected]. Please include File persons engaged in regulating, clearing, of Filing and Order Granting Number SR–CBOE–2004–47 on the settling, processing information with Accelerated Approval of a Proposed subject line. respect to, and facilitating transactions Rule Change and Amendment No. 1 in securities, to remove impediments to Paper Comments Thereto by the New York Stock and perfect the mechanism of a free and Exchange, Inc. Amending the NYSE • Send paper comments in triplicate open market and a national market Constitution To Permit Certain to Jonathan G. Katz, Secretary, system, and, in general, to protect Individuals To Serve on the Securities and Exchange Commission, investors and the public interest. Regulation, Enforcement & Listing 450 Fifth Street, NW., Washington, DC The Commission believes that this Standards Committee 20549–0609. proposal, which allows the appropriate All submissions should refer to File eligible trading crowd members to August 2, 2004. Number SR–CBOE–2004–47. This file determine whether to participate in the Pursuant to Section 19(b)(1) of the number should be included on the CBOE’s marketing fee program, Securities Exchange Act of 1934 subject line if e-mail is used. To help the 1 2 promotes member participation in the (‘‘Act’’), and Rule 19b–4 thereunder, Commission process and review your procedures of the CBOE. Further, the notice is hereby given that on July 2, comments more efficiently, please use Commission notes that the proposed 2004, the New York Stock Exchange, only one method. The Commission will Marketing Fee Voting Procedures are Inc. (‘‘NYSE’’ or ‘‘Exchange’’) filed with post all comments on the Commission’s substantially similar to the voting the Securities and Exchange Internet Web site (http://www.sec.gov/ procedures previously in place at the Commission (‘‘Commission’’) the rules/sro.shtml). Copies of the Exchange on a pilot basis and to those proposed rule change as described in submission, all subsequent procedures of another self-regulatory Items I and II below, which Items have amendments, all written statements organization, which have previously been prepared by the NYSE. The with respect to the proposed rule been approved by the Commission.16 Exchange filed Amendment No. 1 to the change that are filed with the Commission, and all written 14 The Commission has considered the proposed 17 15 U.S.C. 78s(b)(2). communications relating to the rule’s impact on efficiency, competition and capital 18 15 U.S.C. 78s(b)(2). proposed rule change between the formation. 15 U.S.C. 78c(f). 19 17 CFR 200.30–3(a)(12). 15 15 U.S.C. 78f(b)(5). 1 15 U.S.C. 78s(b)(l). 13 15 U.S.C. 78f(b)(5). 16 See Amex Rule 958.11, supra note 12. 2 17 CFR 240. 19b–4.
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proposed rule change on July 27, 2004.3 may not use counsel or other advisors structure, directors had two-year, The Commission is publishing this who advise Exchange officers or staggered terms. notice to solicit comments on the employees. Among the committees constituted proposed rule change, as amended, from * * * * * under the new architecture is the RELS interested persons and is approving the Committee, which, among other duties, proposal on an accelerated basis. (b) Joint Committees hears appeals from disciplinary decisions by the Exchange’s Hearing I. Self-Regulatory Organization’s (1) The Regulation, Enforcement & Listing Standards Committee shall be Panels and delisting determinations by Statement of the Terms of Substance of the Exchange’s Listings & Compliance the Proposed Rule Change composed of both directors (other than the Chief Executive Officer) and Board unit. The new annual election and The Exchange is amending Article IV, of Executives members (including at appointment cycle allows for the Section 12(b)(1) of its Constitution least one Industry Member of the Board possibility of a complete or significant (‘‘NYSE Constitution’’). The proposed of Executives), as selected by the Board turnover in the membership of the RELS amendment will permit the Board to and, to assure continuity, may also Committee. Yet, the appellate work of appoint individuals to serve on the include prior members of either this the committee requires knowledge of Regulation, Enforcement & Listing Committee or the Committee for Review the Exchange’s procedures and an Standards Committee (‘‘RELS (as hereinafter defined) who are neither understanding of precedents that make Committee’’) who have served directors nor members of the Board of some continuity from year to year previously on either the RELS Executives, also as selected by the highly desirable. Committee or the Committee for Review Board; provided, however, that a The Exchange advises that it but who are neither Directors nor majority of the members of [such] this recognized this turnover issue in the members of the Board of Executives. [c]Committee[s] voting on a matter context of last year’s revisions to its governance structure and included as subject to a vote of [such] this II. Self-Regulatory Organization’s Article XVI of the NYSE Constitution a Committee shall be directors. The Statement of the Purpose of, and transition period that permitted the [Such] [c]Committee shall report to the Statutory Basis for, the Proposed Rule Board to appoint to the RELS Committee Regulatory Oversight & Regulatory Change former members of the Board who had Budget Committee and shall (i) review served on the predecessor Committee In its filing with the Commission, the and provide general advice with respect for Review.5 This transitional authority Exchange included statements to the Exchange’s programs for market expired at this year’s annual meeting on concerning the purpose of, and basis for, surveillance, member and member June 3, 2004. the proposed rule change, as amended, organization regulation and and discussed any comments it received So that the Board may continue to enforcement, and the listing and de- have this authority, the proposed rule on the proposed rule change, as listing of securities, and (ii) hear appeals amended. The text of these statements change in effect eliminates the sunset of disciplinary determinations and date and moves this authority to Article may be examined at the places specified determinations to de-list a listed in Item III below. The Exchange has IV, Section 12(b)(1) of the NYSE company. The term ‘‘Committee for Constitution, which is where the prepared summaries, set forth in Review’’ shall refer to the predecessor of Sections A, B, and C below, of the most Constitution constitutes the RELS this Committee under the Exchange’s Committee. According to the Exchange, significant aspects of such statements. governance structure in effect prior to The text of thE proposed rule change, the proposed rule change also December 17, 2004. as amended, is below. Proposed new recognizes that the requisite knowledge, language is in italics; proposed * * * * * experience and understanding will in deletions are in [brackets]. A. Self-Regulatory Organization’s due course reside not simply in former * * * * * Statement of the Purpose of, and the members of the predecessor Committee Statutory Basis for, the Proposed Rule for Review, but also in former members Article IV. Board of Directors Change of the RELS Committee itself. In Sec. 12. Standing Committees. The addition, the Exchange proposes to Standing Committees and their 1. Purpose revise a provision in Article IV, Section respective Chairmen shall be appointed On December 17, 2003, the 12(b)(1) of the NYSE Constitution to by the Board at its annual organizational Commission approved changes to the refer to ‘‘this Committee’’ rather than 6 meeting. The Board shall adopt for each NYSE Constitution that restructured the ‘‘such Committees.’’ Standing Committee a charter consistent Exchange’s governance architecture to 2. Statutory Basis with the duties prescribed in the separate the regulatory and marketplace The basis under the Exchange Act for subsections below, and including such functions, among other changes. 4 As this proposed rule change is the additional duties as may be considered part of the new architecture, the appropriate and not inconsistent with Exchange now has both a Board of 5 See NYSE Constitution, Article XVI. this Constitution. Each Standing Directors (‘‘Board’’), which includes six 6 The Commission notes that this provision Committee shall have the authority to to twelve independent directors elected expressly requires that the majority of the members engage independent legal counsel and by the membership, and a Board of of the RELS Committee voting on a matter subject other advisors as it determines Executives, which consists of to a Committee vote must be members of the Board, i.e., independent directors. Moreover, the necessary to carry out its duties, but constituent representatives. The Commission points out that Article IV, Section 14 directors are elected annually and the of the NYSE Constitution, among other things, 3 See letter from Darla C. Stuckey, Corporate members of the Board of Executives are expressly provides that the Board may not delegate, Secretary, NYSE, to Nancy J. Sanow, Assistant appointed annually. Under the and no committee may re-delegate, to the Board of Director, Division of Market Regulation Executives or to any committee not consisting (‘‘Division’’), Commission, dated July 26, 2004 Exchange’s previous governance solely of directors authority to act on any subject (‘‘Amendment No. 1’’). In Amendment No. 1, NYSE matter described in Article IV, Section 12(a) (i.e., marked the proposed rule text to show changes to 4 See Securities Exchange Act Release No. 48946 Standing Committee duties) or (b)(1) (i.e., RELS its Constitution that it failed to reflect in the (December 17, 2003), 68 FR 74678 (December 24, Committee duties), except by effecting a rule change original proposal. 2003). within the meaning of Section 19(b)(1) of the Act.
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requirement under Section 6(b)(1)7 that comments more efficiently, please use prevent fraudulent and manipulative an exchange be organized and have the only one method. The Commission will acts and practices, to promote just and capacity to be able to carry out the post all comments on the Commission’s equitable principles of trade, to remove purposes of the Act, under Section Internet Web site (http://www.sec.gov/ impediments to and perfect the 6(b)(5)8 that an exchange have rules that rules/sro.shtml). Copies of the mechanism of a free and open market are designed to prevent fraudulent and submission, all subsequent and a national market system, and, in manipulative acts and practices, to amendments, all written statements general, to protect investors and the promote just and equitable principles of with respect to the proposed rule public interest, and with the trade, to remove impediments to and change that are filed with the requirements of Section 6(b)(7)13 that perfect the mechanism of a free and Commission, and all written the rules of the exchange provide a fair open market and a national market communications relating to the procedure for the disciplining of system, and, in general, to protect proposed rule change between the members and persons associated with Commission and any person, other than investors and the public interest, and members. The Commission notes that 9 those that may be withheld from the under Section 6(b)(7) that the rules of the RELS Committee’s responsibility for the exchange provide a fair procedure public in accordance with the provisions of 5 U.S.C. 552, will be hearing appeals from disciplinary for the disciplining of members and panels and delisting determinations can persons associated with members. available for inspection and copying in the Commission’s Public Reference foster the need for the Committee to B. Self-Regulatory Organization’s Section, 450 Fifth Street, NW., have members who are knowledgeable Statement on Burden on Competition Washington, DC 20549. Copies of such about the Committee’s procedures and The Exchange does not believe that filing also will be available for familiar with its precedents and the proposed rule change will impose inspection and copying at the principal deliberations. The Commission notes any burden on competition that is not office of the NYSE. All comments that the new annual election and necessary or appropriate in furtherance received will be posted without change; appointment cycle for members of the of the purposes of the Act. the Commission does not edit personal Board and the Board of Executives, identifying information from respectively, could hinder the RELS C. Self-Regulatory Organization’s submissions. You should submit only Committee from retaining experienced Statement on Comments on the information that you wish to make and knowledgeable members. The Proposed Rule Change Received from available publicly. All submissions Commission believes that allowing Members, Participants or Others should refer to File Number SR-NYSE– former members of the Committee for Written comments were neither 2004–36 and should be submitted on or Review and RELS Committee to solicited nor received. However, before August 27, 2004. participate on future RELS Committees members of the exchange were given IV. Commission’s Findings and Order should help ensure the continuity of the notice of the proposed change in a Granting Accelerated Approval of RELS Committee by ameliorating the Proxy Statement issued on April 30, Proposed Rule Change effect that the annual turnover of 2004. members of the Board and Board of NYSE has asked the Commission to III. Solicitation of Comments approve the proposal on an accelerated Executives otherwise could have on the RELS Committee. Interested persons are invited to basis to make the proposal effective on submit written data, views, and or before August 2, 2004, in order that The Commission finds good cause for arguments concerning the foregoing, the existing transitional committee approving the proposed rule change, as including whether the proposed rule members can participate in the appeals amended, prior to the thirtieth day after change is consistent with the Act. scheduled for that day. The Commission the date of publication of notice of filing Comments may be submitted by any of notes that it previously approved a thereof in the Federal Register. The the following methods: proposal for former members of the Commission notes that the next RELS Committee for Review where neither Committee meeting to hear appeals is on Electronic Comments directors or members of the Board of August 2, 2004. The Exchange has • Use the Commission’s Internet Executives to serve on the RELS requested accelerated approval in order comment form (http://www.sec.gov/ Committee during the transition to allow prior Committee for Review 10 rules/sro.shtml); or period, and that the current proposed Members and RELS Committee • Send an e-mail to rule- rule change seeks an extension of that members to serve on the current RELS [email protected]. Please include File policy to former members of the RELS Committee and hear appeals scheduled Committee, as well as members of the Number SR-NYSE–2004–36 on the for that day. Accordingly, the subject line. Committee for Review. After careful consideration, the Commission believes that there is good Paper Comments Commission finds that the proposed cause, consistent with Sections 6(b)(5) 14 rule change, as amended, is consistent and 19(b)(2) of the Act, to approve the Send paper comments in triplicate to proposal, on an accelerated basis. Jonathan G. Katz, Secretary, Securities with the requirements of the Act and the 11 and Exchange Commission, 450 Fifth rules and regulations thereunder, V. Conclusion Street, NW., Washington, DC 20549– applicable to a national securities 0609. All submissions should refer to exchange, and, in particular, with the It is therefore ordered, pursuant to 12 File Number SR–NYSE–2004–36. This requirements of Section 6(b)(5) that an Section 19(b)(2) of the Act,15 that the file number should be included on the exchange have rules that are designed to proposed rule change (SR-NYSE–2004– subject line if e-mail is used. To help the 36), as amended, is hereby approved on 10 Commission process and review your See supra note 4. an accelerated basis. 11 In approving this proposed rule change, the Commission notes that it has considered the 7 15 U.S.C. 78f(b)(1). proposed rule’s impact on efficiency, competition, 13 15 U.S.C. 78f(b)(7) 8 15 U.S.C. 78f(b)(5). and capital formation. 15 U.S.C. 78c(f). 14 15 U.S.C. 78f(b)(5) and 78s(b)(2). 9 15 U.S.C. 78f(b)(7). 12 15 U.S.C. 78f(b)(5). 15 15 U.S.C. 78s(b)(2).
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For the Commission, by the Division of fee categories.5 The Exchange had found assessing only one permit fee when a Market Regulation, pursuant to delegated that a few permit holders did not fit in permit holder becomes associated with authority.16 any existing permit fee categories, and, another member organization is noted in Margaret H. McFarland, consequently, no permit fee was the Fee Schedule Amendment and, Deputy Secretary. applicable. For example, a member pursuant to the proposed rule change, [FR Doc. 04–18001 Filed 8–5–04; 8:45 am] organization may be holding its permit would be retroactively applied from BILLING CODE 8010–01–P solely to be able to reflect its status as February 2, 2004 to April 30, 2004. a Phlx member organization on its The text of the proposed rule change, letterhead, which is common in the as amended, is available at the Exchange SECURITIES AND EXCHANGE securities industry. That member and at the Commission. COMMISSION organization would not have qualified for any of the existing permit fee I. Self-Regulatory Organization’s [Release No. 34–50129; File No. SR–Phlx– Statement of the Purpose of, and 2004–39] categories and, therefore, would not have been subject to a permit fee at all. Statutory Basis for, the Proposed Rule Change Self-Regulatory Organizations; Notice The Exchange is proposing to of Filing of Proposed Rule Change, retroactively apply the ‘‘other’’ permit In its filing with the Commission, the and Amendment No. 1 thereto, by the fee category from February 2, 2004 Phlx included statements concerning Philadelphia Stock Exchange, Inc. through April 30, 2004, the period prior the purpose of and basis for the Relating to Retroactive Application of to the adoption of the ‘‘other’’ permit fee proposed rule change and discussed any Permit Holder Fees category, in order to collect permit fees comments it received on the proposed from member organizations that rule change, as amended. The text of July 30, 2004. previously had not been subject to a these statements may be examined at Pursuant to Section 19(b)(1) of the permit fee. the places specified in Item IV below. Securities Exchange Act of 1934 Additionally, the Exchange proposes The Phlx has prepared summaries, set (‘‘Act’’),1 and Rule 19b–4 thereunder,2 to retroactively apply its billing policy forth in Sections A, B, and C below, of notice is hereby given that on June 30, set forth in the Fee Schedule the most significant aspects of such 2004, the Philadelphia Stock Exchange, Amendment, which set the date of statements. Inc. (‘‘Phlx’’ or the ‘‘Exchange’’) filed notification for terminating a permit as with the Securities and Exchange the date that the permit fee billing A. Self-Regulatory Organization’s Commission (‘‘SEC’’ or ‘‘Commission’’) would cease. From February 2, 2004 Statement of the Purpose of, and the proposed rule change as described through April 30, 2004, the period prior Statutory Basis for, the Proposed Rule in Items I, II, and III below, which Items to the Fee Schedule Amendment, the Change have been prepared by the Phlx. On July effective date of the posting period was 1. Purpose 12, 2004, the Phlx filed Amendment No. used to determine the termination date 1 to the proposed rule change.3 The for a permit, resulting in some member The purpose of the proposed rule Commission is publishing this notice to organizations being billed for an extra change, as amended, is to retroactively solicit comments on the proposed rule month. apply the ‘‘other’’ permit fee category change, as amended, from interested Further, the Exchange is proposing to and the other recently adopted permit persons. retroactively assess only one monthly fee billing practices back to the permit fee in certain limited situations initiation of permit fee billing on I. Self-Regulatory Organization’s where two monthly permit fees February 2, 2004 to more fairly apply Statement of the Terms of Substance of otherwise would be imposed. Prior to Exchange permit fee policies to each the Proposed Rule Change the Fee Schedule Amendment, if a permit holder and their respective The Phlx proposes to retroactively permit was transferred, other than if the member organizations. Retroactively apply its recent amendment to its transfer occurred within the permit applying the recently effective ‘‘other’’ schedule of fees and Charges (‘‘Fee holder’s member organization,6 both category of permit fees should ensure Schedule Amendment’’).4 member organizations would have been that each permit holder has been billed In the Fee Schedule Amendment, the assessed a billing fee. For example, if an appropriate permit fee from February Exchange adopted an ‘‘other’’ permit fee the permit holder transferred from one 2, 2004, the initial date of permit fee category to address the limited member organization to another billing. Additionally, allowing monthly situations where a permit holder might unrelated member organization in the billing of permit fees to cease at the time not fit within any of the existing permit same month, both member organizations a member notifies the Exchange, as were assessed a permit fee in the same opposed to waiting for the effective date 16 17 CFR 200.30–3(a)(12). billing period. In addition, when a of the posting and notice requirements, 1 15 U.S.C. 78s(b)(1). permit holder became associated with should avoid unnecessarily billing a 2 17 CFR 240.19b–4. another member organization as a result member for permit fees for a month 3 See letter from Murray L. Ross, Phlx, to Nancy of a merger, partial sale of the current during which their permit was Sanow, Assistant Director, Division of Market Regulation, SEC, dated July 9, 2004 (‘‘Amendment member organization, or other business terminated. Also, charging only one No. 1’’). In Amendment No. 1, the Exchange combination, a new permit was issued permit fee for the month in which a removed references in two footnotes to the but a monthly permit fee for the new merger or other business combination proposed date that the retroactive fees would take permit would have also been assessed in occurs should avoid unfairly double effect. these limited situations. This policy of billing for a permit fee to a permit 4 See Securities Exchange Act Release No. 49856 (June 15, 2004), 69 FR 3441 (June 21, 2004) (SR– holder changing affiliation due to a Phlx–2004–32) (adopting a new category of permit 5 The ‘‘other’’ permit fee category is intended to merger or other business organizational holders for billing purposes; establishing the date apply to permit holders who solely qualify their changes. of notification of terminating a permit as the date respective member organization. that permit fee billing will cease; and establishing 6 If the permit holder transfers the permit to 2. Statutory Basis that only one monthly permit fee would be assessed another individual within the same member in certain limited situations where two monthly organization, only one monthly permit fee is The Exchange believes that its permit fees would otherwise be imposed). assessed for that permit. proposal to retroactively apply its
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amended schedule of dues, fees and Securities and Exchange Commission, certified development company charges is consistent with Section 6(b) 450 Fifth Street, NW., Washington, DC program upon the environment. These of the Act 7 in general, and furthers the 20549–0609. changes are necessary to reflect changes objectives of Sections 6(b)(4) 8 and All submissions should refer to File in SBA’s loan programs. 6(b)(5) 9 of the Act in particular, in that Number SR–Phlx–2004–39. This file DATES: Comments on both the revised it is an equitable allocation of number should be included on the procedures and the PEA must be reasonable dues, fees, and other charges subject line if e-mail is used. To help the received on or before October 5, 2004. among Exchange members and is Commission process and review your ADDRESSES: Comments should be designed to perfect the mechanism of a comments more efficiently, please use addressed to Eric S. Benderson, free and open market and a national only one method. The Commission will Associate General Counsel, Office of market system, and to protect investors post all comments on the Commission’s General Counsel, Small Business and the public interest. Internet Web site (http://www.sec.gov/ Administration, 409 Third Street, SW., rules/sro.shtml). Copies of the Washington, DC 20416. B. Self-Regulatory Organization’s submission, all subsequent FOR FURTHER INFORMATION CONTACT: Eric Statement on Burden on Competition amendments, all written statements S. Benderson, Associate General The Phlx does not believe that the with respect to the proposed rule Counsel (202) 205–6636; proposed rule change, as amended, will change that are filed with the [email protected]. result in any burden on competition that Commission, and all written is not necessary or appropriate in communications relating to the SUPPLEMENTARY INFORMATION: SBA has furtherance of the purposes of the Act. proposed rule change, as amended, prepared a Programmatic Environmental between the Commission and any Assessment (‘‘PEA’’) to evaluate the C. Self-Regulatory Organization’s effects of the Agency’s 7(a) business Statement on Comments on the person, other than those that may be withheld from the public in accordance loan and 504 certified development Proposed Rule Change Received from company programs (‘‘small business Members, Participants, or Others with the provisions of 5 U.S.C. 552, will be available for inspection and copying loan assistance programs’’) on various Written comments were neither in the Commission’s Public Reference environmental resources. The PEA finds solicited nor received. Room. Copies of such filing also will be that the cumulative effects of these III. Date of Effectiveness of the available for inspection and copying at business loan assistance programs do Proposed Rule Change and Timing for the principal office of the Phlx. All not have a significant adverse impact on Commission Action comments received will be posted these resources. To obtain a copy of this without change; the Commission does PEA, you may send a request to Within 35 days of the date of [email protected] or visit SBA’s Web site publication of this notice in the Federal not edit personal identifying information from submissions. You at http://www.sba.gov/library/ Register or within such longer period (i) reportsroom.html. Interested parties as the Commission may designate up to should submit only information that you wish to make available publicly. All may submit comments on this PEA to 90 days of such date if it finds such the above address. longer period to be appropriate and submissions should refer to File Number SR–Phlx–2004–39 and should Under the National Environmental publishes its reasons for so finding or Policy Act (‘‘NEPA’’), 42 U.S.C. 4321 et. be submitted on or before August 27, (ii) as to which the Exchange consents, seq., and the implementing regulations 2004. the Commission shall: (a) by order promulgated by the Council on approve such rule change, or (b) For the Commission, by the Division of Environmental Quality (‘‘CEQ’’), 40 CFR institute proceedings to determine Market Regulation, pursuant to delegated part 1500, agencies must adopt authority.10 whether the proposed rule change procedures for determining the should be disapproved. Margaret H. McFarland, environmental effects of major Federal Deputy Secretary. IV. Solicitation of Comments actions. SBA’s procedures [FR Doc. 04–18002 Filed 8–5–04; 8:45 am] implementing NEPA are set forth in Interested persons are invited to BILLING CODE 8010–01–P SBA Standard Operating Procedure submit written data, views, and (‘‘SOP’’) 90–57. These procedures were arguments concerning the foregoing, originally published in 45 FR 7358, including whether the proposed rule SMALL BUSINESS ADMINISTRATION February 1, 1980, and are available for change, as amended, is consistent with review at http://www.sba.gov/library/ the Act. Comments may be submitted by National Environmental Policy Act soproom.html. any of the following methods: Procedures SBA’s two primary business loan Electronic Comments AGENCY: U.S. Small Business assistance programs are the 7(a) Guaranteed Loan Program (‘‘7(a) • Use the Commission’s Internet Administration (SBA). Program’’), implemented pursuant to the comment form (http://www.sec.gov/ ACTION: Notice of proposed change in Small Business Act, 15 U.S.C. 636(a), rules/sro.shtml); or procedures. and the 504 Certified Development • Send an e-mail to rule- SUMMARY Company Program (‘‘504 Program’’), [email protected]. Please include File : SBA seeks comment on its implemented pursuant to Title V of the Number SR–Phlx–2004–39 on the proposed revisions to its procedures Small Business Investment Act of 1958, subject line. implementing the National Environmental Policy Act specifically as amended, 15 U.S.C. 695. Under the Paper Comments relating to loans made under these 7(a) Program, SBA guarantees up to 85 • Send paper comments in triplicate business loan assistance programs. SBA percent of loan amount (depending to Jonathan G. Katz, Secretary, also seeks comments on a proposed upon loan size) to encourage assessment of the effects of the Agency’s commercial lenders to make loans to 7 15 U.S.C. 78f(b). 7(a) business loan program and 504 eligible and creditworthy small 8 15 U.S.C. 78f(b)(4). businesses that cannot obtain financing 9 15 U.S.C. 78f(b)(5). 10 17 CFR 200.30–3(a)(12). on reasonable terms through normal
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private lending channels. SBA does not Background current trends to streamline these use any of its own funds unless there is Small businesses make up a major programs, most of SBA’s business loan a default by the borrower in paying the sector of the American economy and guaranties likely will be made in this loan. If a default occurs, SBA pays its play an essential role in maintaining the way in the near future. guaranty obligation to the lender. Nation’s system of private enterprise. (2) It is of paramount importance that Lenders then undertake the liquidation The Small Business Act, which created loan approval be accomplished as of collateral given by the borrower to the SBA, provides as follows: quickly as possible given the needs of secure the loan, and appropriate debt the small businesses applying for the The essence of the American economic loans and the timeframes for loan collection actions against the borrower, system of private enterprise is free to recover any loss on the loan. approval sought by our participating competition. Only through full and free lenders. Under the 504 Program, which is a competition can free markets, free entry into business, and opportunities for the (3) In the vast majority of cases the jobs-creation program, SBA assists small loan applicant comes to the lender with businesses seeking long-term, fixed-rate expression and growth of personal initiative and individual judgment be assured. The an existing business that is in need of financing to acquire or improve capital preservation and expansion of such specific funding, or with a definite assets. SBA implements the program competition is basic not only to the economic business plan, both as to the business through 268 Certified Development well-being but to the security of this Nation. location and the use of proceeds. SBA Companies (‘‘CDCs’’), which are private, Such security and well-being cannot be plays no role in determining either. In mostly non-profit corporations licensed realized unless the actual and potential this regard, SBA is asked for its guaranty to promote local and community capacity of small business is encouraged and developed. It is the declared policy of the at the end of the process, after the small economic development. Typically, a 504 Congress that the Government should aid, business owner has determined the project is funded by three sources: (1) A counsel, assist, and protect, insofar as is purpose and amount of the financing. loan, secured with a senior lien, from a possible, the interests of small-business (4) It is the lender that applies for the private-sector lender for 50 percent of concerns in order to preserve free guaranty, not the small business, and the project cost; (2) an equity competitive enterprise, * * * and to SBA generally has little or no contact contribution from the borrower of at maintain and strengthen the overall economy with the small business during the loan least 10 percent of the project cost; and of the Nation. approval process. (3) a loan covering up to 40 percent of 15 U.S.C. 631, et seq. (5) An SBA-guaranteed loan, though the total cost, which is funded from According to a report published by quite significant to a small business proceeds from the sale to investors of a the SBA Office of Advocacy, Small borrower, when viewed as a Federal debenture issued by a CDC, payment of Business by the Numbers (May 2003), expenditure, is relatively small. which is guaranteed by the SBA. America’s 22.9 million small businesses Approximately three-quarters of all (Although SBA does not actually employ more than 50 percent of the guaranteed loans provided by SBA in guarantee the payment of a 504 loan, but private work force, generate more than Fiscal Year 2002 pertained to loans of rather the debenture which funds the 50 percent of the nation’s non-farm less than $300,000. In fact, the average loan, these loans are referred to below private gross domestic product, and size of an SBA-guaranteed loan in FY as guaranteed loans for the sake of generate 60 to 80 percent of net new 2002 was $237,907. convenience.) SBA does not use any of jobs annually. Small businesses create (6) In addition, approximately 75 its own funds unless there is a default opportunities for women, minorities, percent of all 7(a) loans, and 70 percent by the borrower in paying the veterans and the handicapped to enter of all 504 loans, are made to borrowers debenture-funded loan, in which case the economic mainstream, and play an involved in wholesale or retail the Agency pays the outstanding important role in technological businesses, or the service industry. balance owed on the debenture to the innovation, helping the U.S. to achieve (7) Further, less than 13 percent of investors. After a default, liquidation of a high standard of living, and providing 7(a) or 504 borrowers are located in rural areas, and the vast majority of SBA collateral given by the borrower to a diversity of products and services. loans do not finance new construction. secure the loan, and appropriate debt One of the many ways that Congress Accordingly, the nature of SBA’s collection actions against the borrower, has empowered SBA to fulfill the Agency’s statutory mission to ‘‘aid, small business loan assistance are undertaken to recover any loss on programs, in which SBA’s role is the loan. counsel and assist small businesses,’’ 15 U.S.C. 631, is through the SBA small secondary to that of the lenders, Under SOP 90–57, SBA’s issuance of business loan assistance programs—the expedited loan approval is required, guaranties, given in connection with 7(a) and 504 Programs. These programs guaranteed loans of relatively low dollar loans made under the 7(a) Program and allow SBA to assist small businesses, value are involved, and existing site in connection with debentures for local including many minority and women- locations or ones that have already been and community development loans owned businesses, as well as those planned, makes a loan-by-loan under the 504 Program, are categorically owned by veterans and those with assessment under NEPA impractical and excluded from NEPA except that an disabilities, by encouraging lenders to unnecessary. As discussed above, SBA environmental assessment may be provide loans to small businesses that has undertaken a PEA to determine the required in those cases where loan would not otherwise qualify for extent of any environmental impact of proceeds used for construction and/or financial assistance from private its programs. A primary focus of this purchase of land exceed $300,000. SOP sources. assessment was to determine any 90–57, ¶¶ 7h, 7k. SBA’s NEPA Several features of SBA’s loan possible impact SBA small business procedures, which have not been assistance programs bear emphasis: loan assistance programs may have on revised since their adoption in 1980 (1) In over 60 percent of loans urban sprawl, since that question has despite significant changes in SBA’s stemming from the Agency’s 7(a) and been raised by certain environmental small business loan assistance 504 small business loan assistance groups. As discussed in the PEA, SBA programs, are outdated. For the reasons programs, the lender approves the loan has determined that the Agency’s small discussed below, SBA proposes to and funds it without SBA’s prior review business loan assistance programs do revise its NEPA procedures. and approval. In fact, based upon not promote urban sprawl. Such a
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conclusion is not surprising in light of outset, however, the proper Those cases which have found the existence the fact that small business follows interpretation of the critical words just of major federal action have ordinarily economic development because of the quoted, and, thus, the actual scope of involved highway extensions, large need for customers or clients. But even structures which alter the neighborhood, NEPA’s applicability, has been subject major dams or river projects, and other if this were not the case, the Agency’s to each federal agency’s interpretation projects which can generally be characterized small business loan assistance programs in the context of particular proposed as involving sizable federal funding (over prohibit the use of loan proceeds for programs and actions, informed by one-half million dollars, and usually well speculative real estate ventures or for numerous judicial decisions. over one million), large increments of time real estate development. See 13 CFR for the planning and construction stages, the NEPA’s procedural requirements bind 120.130. displacement of many people or animals, or In the absence of any other known only the Federal government. NEPA the reshaping of large areas of topography. controversy regarding the impact of the does not apply to the actions of state, local, or private entities unless the Id. at 446. business loan programs other than an With respect to the funding of a alleged contribution to urban sprawl, Federal government has, in some manner, become sufficiently involved in project by a Federal agency, the courts the PEA also undertakes a generalized have recognized that significant Federal review of the impacts of the small a particular undertaking of the state, local, or private entity so as to funding can transform a non-federal business loan assistance programs upon project into a ‘‘major Federal action.’’ Ka other components of the environment. ‘‘federalize’’ that project for purposes of NEPA. The CEQ regulations Makani, 295 F.3d at 960; Sierra Club v. As discussed therein, SBA has U.S. Fish and Wildlife Service, 235 F. determined that the cumulative effects implementing the procedural provisions of NEPA and numerous judicial Supp. 2d 1109, 1121 (D. Ore. 2002) of these programs upon the environment (‘‘Given the overwhelming percentage of are very limited. decisions provide guidance for determining what level of Federal federal dollars involved, and the fact Legal Analysis involvement is necessary before the that the amount itself, regardless of the Having reviewed SBA’s existing requirements of NEPA must be met— percentage it represents, is more than $3 NEPA procedures as they relate to the i.e., before the Federal involvement will million, the federal funding contribution alone is probably sufficient Agency’s small business loan assistance be deemed sufficient to qualify the to ‘federalize’ the project.’’). But programs, and having carefully subject project as a ‘‘major Federal regardless of the amount of Federal considered the provisions of NEPA, action.’’ The CEQ regulations define money involved in a specific Federal applicable regulations, the relevant case ‘‘major Federal action’’ as actions ‘‘with project, the key test for determining the law developed during the twenty-three effects that may be major which are presence of a ‘‘major Federal action’’ is years since SBA’s rules were first potentially subject to Federal control whether there is a significant degree of promulgated, and the current nature of and responsibility.’’ SBA’s various small business loan Federal involvement with, and control Case law has articulated the meaning assistance programs, SBA has over, the subject project. See, e.g., The of this standard in a number of different concluded that its current NEPA Environmental Rights Coalition, Inc. v. procedures should be modified. The factual contexts. It is clear that there are Austin, 780 F. Supp. 584, 600–01 (S.D. Agency has determined that NEPA Federal activities and actions that will Ind. 1991). reviews pertaining to individual not be deemed sufficiently significant as As noted by the Fifth Circuit, business loan guaranties need not be to amount to ‘‘major Federal action’’ Determining whether a program is undertaken because an SBA guaranty of under the provisions of NEPA. Ka sufficiently ‘‘federal’’ to render it subject to a business loan does not constitute a Makani ‘O Kohala Ohana Inc. v. Water NEPA will often entail analysis of the major Federal action significantly Supply, 295 F.3d 955, 960 (9th Cir. amount and significance of federal aid. * * * affecting the quality of the environment 2002); Atlanta Coalition on the And in some circumstances, perhaps, the federal character of a state or local project and, thus, does not come within the Transportation Crisis, Inc. v. Atlanta Regional Commission, 599 F.2d 1333, can be established merely by the presence of purview of NEPA. However, because of substantial federal assistance. * * * But we questions raised as to the programmatic 1347 (5th Cir. 1979). According to the think the presence of federal financial impact of those loan guaranties, Ka Makani Court, in order to determine assistance is generally just one factor in the particularly as they may relate to urban whether a particular Federal action is analysis of whether there is sufficient federal sprawl, the Agency has reviewed its sufficiently major so as to trigger control over, responsibility for, or small business loan assistance programs NEPA’s requirements, one must ‘‘look involvement with an action to require to determine what cumulative impact, if ‘to the nature of the federal funds used preparation of an EIS. any, they may have on the environment. and the extent of federal involvement.’’’ Atlanta Coalition, 599 F.2d at 1347. And As set forth in SBA’s PEA, the Agency’s 295 F.3d at 960 (quoting Sierra Club v. the need for Federal control over a small business loan assistance programs Penfold, 857 F.2d 1307, 1314 (9th Cir. project before it will be deemed a do not have a significant effect upon 1988). Another court stated that ‘‘major Federal action’’ is reflected in urban sprawl or the environment. ‘‘Whether a particular federal action is numerous cases pertaining to NEPA. Ka Under NEPA, 42 U.S.C. 4332(2)(C), all ‘major’ depends on the amount of Makani, 295 F.3d 955, 960 and agencies of the Federal Government are federal funds expended, the number of 961(‘‘The USGS and HUD * * * lacked directed to include in every people affected, the length of time the degree of decision-making power, recommendation or report on ‘‘major consumed, and the extent of authority, or control over the [project] Federal actions significantly affecting government planning involved.’’ Como- needed to render it a major federal the quality of the human environment,’’ Falcon Coalition, Inc. v. United States action.’’ Id. at 960; ‘‘Because the final a detailed statement setting forth the Department of Labor, 465 F. Supp. 850, decision-making power remained at all environmental impact of the proposed 857 (D. Minn. 1978), aff’d, 609 F.2d 342 times with [the state agency], we action, any unavoidable adverse (8th Cir. 1979), cert. denied, 446 U.S. conclude that the USGS involvement environmental effects of the proposed 936 (1980). And one case, Township of was not sufficient to constitute ‘major action, alternatives to the proposed Ridley v. Blanchette, 421 F. Supp. 435 federal action.’’’ Id. at 961); action, and certain other data. From the (E.D. Pa. 1976) observed: Mayaguezanos Por La Salud Y El
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Ambiente v. U.S., 198 F.3d 297, 302 (1st without prior SBA consent) are not of role.’’ NAACP v. Medical Center, Inc., 584 Cir. 1999) (‘‘Like the Fourth Circuit, we sufficient magnitude to constitute major F.2d 619, 634 (3d Cir. 1978). look to whether federal approval is the Federal actions under NEPA. 959 F.2d at 512. Finally, the observation prerequisite to the action taken by the Even more significant, however, is the of the Court in Township of Ridley is of private actors and whether the federal clear and irrefutable fact that SBA does particular significance: not have control over the business agency possesses some form of authority In sum, ‘‘major’’ is a term of reasonable over the outcome.’’); United States v. activities of the private borrower, has no connotation, and serves to differentiate Southern Florida Water Management responsibility for the borrower’s between projects which do not involve District, 28 F.3d 1563, 1572 (11th Cir. business activities, and has no authority sufficiently serious effects to justify the costs 1994), cert. denied sub nom. Western over the outcome of the borrower’s of completing an impact statement, and those Palm Beach County Farm Bureau, Inc. efforts. Thus, SBA borrowers approach projects with potential effects which appear v. U.S., 514 U.S. 1107 (1995) (‘‘The lenders with business plans which they to offset the costs in time and resources of touchstone of major federal activity have formulated without SBA direction; preparing a statement. 421 F. Supp. at 446. constitutes a federal agency’s authority they have chosen, or choose, the For loans made under the Preferred to influence nonfederal activity. ‘[T]he location of their businesses without Lender (‘‘PL’’) or Premier Certified federal agency must possess actual directives from SBA; SBA does not Lender (PCL) Programs, there is an power to control the nonfederal direct or even supervise the efforts of additional reason that such loans would activity.’ Sierra Club [v. Hodel, 848 F.2d borrowers to operate, modify, or expand not come within the purview of NEPA. 1068, 1089 (10th Cir. 1988)].’’); their businesses; SBA has no role Under the PL Program, pursuant to the Sugarloaf Citizens Association v. FERC, whatsoever in the day-to-day activities Small Business Act, SBA delegates 959 F.2d 508, 512 (4th Cir. 1992) (‘‘As of the borrowers; and SBA does not responsibility to experienced and stated by the Tenth Circuit, ‘the federal control a borrower’s ability to succeed qualified lenders (generally larger agency must possess actual power to in its business activities. Thus, SBA has lending institutions) to issue an SBA control the non-federal activity.’ Sierra concluded that the absence of a guaranty on a loan without prior Club v. Hodel, 848 F.2d 1068, 1089 significant degree of Agency approval by SBA. Under Section (10th Cir. 1988).’’); Save Barton Creek involvement with, or control over, 7(a)(2)(C) of the Small Business Act, 15 Association v. Federal Highway borrowers’ projects compels a U.S.C. 636(a)(2)(C), Congress has Administration, 950 F.2d 1129, 1134–35 determination that SBA’s role with defined the PL Program as a ‘‘program (5th Cir.), cert. denied, 505 U.S. 1220 regard to those projects does not established by the Administrator * * * (1992). Indeed, in one recent case, constitute a ‘‘major Federal action’’ for under which a written agreement Riverfront Garden District Association, purposes of NEPA. between the lender and the Inc. v. City of New Orleans, 2000 WL Given the relatively small magnitude Administration delegates to the lender 1789952 (E.D. La. Dec. 6, 2000), of the dollar amount of SBA-guaranteed * * * complete authority to make and although the Federal Highway loan funds received by individual close guaranteed loans with a guaranty Administration paid $15,500,000 of the borrowers, and in light of the fact that from the Administration without $88,000,000 cost of the subject project, SBA does not have a significant degree obtaining the prior specific approval of the Court nonetheless concluded, of involvement with, or control over, the the Administration * * *’’ (emphasis added). PL Program lenders, thus, have While the amount of federal money is not projects of the borrowers, it is quite insignificant, the Fifth Circuit’s focus on the appropriate that SBA’s actions with delegated authority to make SBA- ability to influence or control the outcome in regard to any particular loan should not guaranteed loans without any approval material respects in determining whether a be deemed major Federal actions for from SBA. major federal action exists convinces this purposes of NEPA, and that SBA should Under the PCL Program, pursuant to Court that the [project] is not a ‘‘major federal not be subject to the requirements of the Small Business Investment Act of action.’’ * * * The federal government could 1958, as amended, SBA delegates the not exercise discretion and control over the NEPA in connection with individual loans made in connection with its small responsibility to experienced and design, location or choice of alternatives for qualified CDCs to issue an SBA guaranty the nonfederally funded portions. business loan assistance programs. As on a loan without prior approval by p. 6. has been observed by the District Court for the Southern District of New York, SBA. 15 U.S.C. 697e. As to the PCL As noted above, SBA does not provide Program, Congress has mandated that loan proceeds directly to borrowers. It ‘‘* * * it would make no sense to require federal agencies to assess the guaranteed loans made by PCLs shall provides guaranties to lenders, in order not include SBA ‘‘review of the to encourage them to provide loans to environmental impact of private actions over which they have no control, solely decisions by the lender involving small businesses. Proceeds from these creditworthiness, loan closing, or on the basis of the incidental effects of loans are used by the borrowing compliance with legal requirements federal action on the private action.’’ businesses for working capital, to imposed by law or regulation.’’ 15 Landmark West! v. United States Postal purchase inventory, machinery, or U.S.C. 697e. equipment, or to purchase real estate for Service, 840 F. Supp. 994, 1009 Thus, the guaranteed loans made use in the business or fund the cost of (S.D.N.Y. 1993), aff’d, 41 F.3d 1500 (2d under SBA’s PL and PCL Programs are business expansion. And, regardless of Cir. 1994) (Table). Further, as noted by extended without prior SBA review or how the loan proceeds are used by the Fourth Circuit in Sugarloaf Citizens consent. Those guaranteed loans involve borrowers benefiting from SBA’s small Association, decisions by private sector borrowers to business loan assistance programs, the Only proposals for a ‘‘major’’ federal action apply for guaranteed loans from private amount of the federal guaranteed-loan * * * require review by an agency under commercial lenders, and unilateral remains relatively low, as already noted, NEPA. ‘‘Requiring an EIS for anything less determinations by those lenders to loan averaging only approximately $237,907 would needlessly hinder the Government’s ability to carry on its myriad programs and their own money, subject to an SBA in amount. Accordingly, SBA has responsibilities in which it assists, informs, guaranty pertaining to a 7(a) loan or 504 concluded that the size of the guaranties monitors, and reacts to activities of debenture. which it extends (or which are placed individuals, organizations, and states, but in The legislative history of NEPA on loans by lenders authorized to do so which Government plays an insubstantial reflects congressional intent that the
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statute not apply if ‘‘the existing law of $300,000 are used for the purchase of environmental assessments of loans in applicable to such agency’s operations land under the 7(a) Program. SOP 90– excess of $300,000 that involve expressly prohibits or makes full 57, ¶¶ 7h, 7k. As discussed above, SOP construction or the purchase of land compliance with one of the directives 90–57 also provides that an would not, therefore, likely result in impossible.’’ H. Conf. Rep. No. 765, 91st environmental assessment may be significantly greater protection of the Cong., 1st Sess. (1969), reprinted in required if ‘‘the loan is in response to environment. 1969 U.S.C.C.A.N. 2767, 2770 (as a government regulation which pertains As discussed above, Congress has quoted by Douglas County, Or. v. to the environmental impact of the directed that certain lenders have Babbitt, 48 F.3d 1495, 1502 (9th Cir. business operation,’’ but SBA has not considerable independence to approve 1995), cert. denied, 516 U.S. 1042 provided such financing for many years. loan guaranties with virtually no (1996)). In interpreting this legislative Thus, under the ‘‘No Action involvement from SBA. Lender approval history, the Supreme Court concluded Alternative,’’ SBA would, when of loans without significant SBA that ‘‘where a clear and unavoidable appropriate, perform environmental involvement accounts for over sixty conflict in statutory authority exists, assessments on individual guaranties of percent of all 7(a) and 504 loans. NEPA must give way.’’ Flint Ridge Dev. loans or debentures meeting one of Moreover, of the limited number of Co. v. Scenic Rivers Ass’n, 426 U.S. 776, these $300,000 thresholds. guaranties that are actually approved by 791 (1976). Such a conflict exists with SBA, it is of paramount importance that Preferred Alternative respect to the PL and PCL programs. It determinations regarding the issuance of would not be possible for SBA to Under the Preferred Alternative, SBA guaranteed loans be accomplished as perform an environmental assessment or would not perform a NEPA review on quickly as possible given the needs of environmental impact statement under individual guaranteed loans made under the small businesses applying for the NEPA for PL and PCL Program the 7(a) and 504 Programs for the loans and the timeframes for loan guaranteed loans when Congress has reasons discussed earlier, but would approval sought by our participating directed that these guaranteed loans are undertake programmatic reviews as lenders. Further, although SBA assists a to be made without any prior approval deemed appropriate to determine the large number of small businesses, by SBA. SBA has, thus, determined that cumulative impacts of these programs. including firms owned by minorities, the statutory authority for these In addition, as part of its programmatic women and veterans, the average loan programs constitutes a clear and responsibilities, SBA would make size is under $240,000, and more than unavoidable conflict which compels the information resources available to three quarters of all loans are under conclusion that they are not subject to participants in these programs regarding $300,000. NEPA. matters of environmental concern. SBA The Preferred Alternative will most Because of questions as to the would host this ‘‘Environmental effectively facilitate the prompt issuance possible cumulative impact of SBA’s Classroom’’ on its website and would of loans, while continuing to ensure that business loan programs upon the provide information on such the business loan programs do not environment, SBA has undertaken a environmental topics as ‘‘Smart negatively impact the environment. PEA to determine what impact, if any, Growth,’’ decreasing pollution in the Under the Preferred Alternative, SBA the small business loan assistance workplace, environmental regulatory would perform programmatic programs themselves have on the compliance and permitting assistance, assessments of the effects of the small environment. Superfund, Brownfields and business loan assistance programs as environmental audits. deemed appropriate. Through the Discussion of Alternatives performance of programmatic Environmental/Socio-Economic This Section describes the alternatives assessments, SBA could effectively Consequences considered in revising SBA’s NEPA monitor the overall cumulative effects of procedures, and provides a basis for the This section discusses the the small business loan assistance choice of the preferred alternative. The environmental and socio-economic programs. In addition, under the ‘‘No Action Alternative’’ is described consequences of the No-Action Preferred Alternative, SBA would first. The ‘‘Preferred Alternative’’ is then Alternative as compared to the Preferred provide through its website an described. Finally, there is a comparison Alternative. The discussion of environmental classroom, which will of the environmental and environmental and socio-economic post relevant information for program socioeconomic consequences of the No consequences is necessarily generalized participants in order to promote Action Alternative compared to the given the programmatic nature of these awareness of matters of environmental Preferred Alternative. alternatives. concern. As discussed above, SBA has On balance, therefore, SBA believes No Action Alternative concluded that individual loans made that the consideration of the Under the ‘‘No Action Alternative’’, under SBA’s small business loan comparative effects of these alternatives SBA would retain its existing NEPA assistance programs are not major favors the adoption of the Preferred procedures. Under SBA’s SOP 90–57, all federal actions that are subject to NEPA. Alternative. SBA-guaranteed loans made under the Under the No-Action Alternative, 7(a) Program, and local and community environmental assessments may be Proposed Revision of NEPA Procedures development loans and guaranties required if proceeds in excess of for the 7(A) and 504 Programs (which would include guaranteed loans $300,000 from a guaranteed loan are As discussed above, SBA has made under the 504 Program), are used for construction under the 7(a) and determined that there is no legal categorically excluded from NEPA, 504 Programs, or the purchase of land requirement to perform a NEPA analysis except that an environmental under the 7(a) Program. However, given on individual loan guarantees under the assessment may be required in those the Agency’s conclusions that the effects 7(a) and 504 Programs. SBA has also cases where guaranteed loan proceeds of guaranteed business loans over conducted a PEA, which has found that in excess of $300,000 are used for $300,000 do not have a significant the 7(a) and 504 Programs, as a whole, construction under the 7(a) and 504 impact on the environment, set forth in do not have a significant impact on the Programs, and where proceeds in excess SBA’s PEA, requiring individual environment. Therefore, SBA proposes
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to revise the SOP provisions relating to (Pub. L.) 107–252. The proposed new • Date of birth (DOB) (including the these programs, Paragraphs 7h and 7k of routine use disclosure is discussed in month, day and year), and SOP 90–57, as set forth below. the Supplementary Information section • The last four digits of the Social As a housekeeping matter, SBA is below. We invite public comment on Security number (SSN)). consolidating NEPA procedures for the this proposal. The verification process will involve 7(a) and 504 Programs into Paragraph 7k DATES: We filed a report of the proposed the American Association of Motor of SOP 90–57. Therefore, the title of new routine use disclosure with the Vehicle Administrators (AAMVA), State Paragraph 7h will be revised so that it Chairman of the Senate Committee on motor vehicle agencies (MVA), and does not apply to 7(a) loans or 504 Governmental Affairs, the Chairman of SSA. Under this process, State MVAs loans. the House Government Reform will input voter registrants’ names, In addition, SBA is revising its NEPA Committee, and the Director, Office of dates of birth, and the last four digits of procedures for loans made under the Information and Regulatory Affairs, their SSNs into AAMVA’s AAMVAnet 7(a) and 504 Programs to clarify that a Office of Management and Budget system, which in turn will forward the loan-by-loan analysis is not required, (OMB) on July 28, 2004. The proposed information to SSA for matching with and that programmatic assessments will routine use will become effective on SSA records. After matching the input be performed when deemed September 5, 2004, unless we receive data with data in SSA records, SSA will appropriate. Therefore, SBA proposes to comments warranting it not to become return one response code indicating revise paragraph 7k to read as follows: effective. results of the verification, including k. Loans made under the 7(a) and 504 whether death information is recorded ADDRESSES: Interested individuals may Programs in SSA records, as appropriate. comment on this publication by writing SBA will conduct programmatic analyses of to the Executive Director, Office of B. Proposed New Routine Use the 7(a) and 504 Programs when it deems Public Disclosure, Office of the General Disclosure of Data Maintained in the appropriate, but the analysis of individual Counsel, Social Security Master Files of Social Security Number loans is not required. A programmatic Administration, Room 3–A–6 (SSN) Holders and SSN Applications, analysis may be appropriate when: (1) SBA proposes a major programmatic change to Operations Building, 6401 Security 60–0058 either the 7(a) or the 504 Programs, and there Boulevard, Baltimore, Maryland 21235– To implement the provisions of are substantiated indications that either such 6401. All comments received will be section 205(r)(8) of the Social Security Program, as changed, would have a available for public inspection at the Act (42 U.S.C. 405(r)(8)), SSA must significant impact upon the environment; or above address. comply with the Privacy Act (5 U.S.C. (2) an outside party brings to SBA’s attention FOR FURTHER INFORMATION CONTACT: Ms. 552a(b)(3)). To this end, we are specific factual evidence that the 7(a) or 504 Carlotta B. Davis, Social Insurance Program is having a significant impact upon proposing to establish the following the environment. SBA will also provide Specialist, Disclosure Policy Team, new routine use providing for information through its Web site regarding Office of Public Disclosure, Office of the disclosure: matters of environmental concern to General Counsel, Social Security To State and Territory Motor Vehicle participants in these programs. Administration, in Room 3–C–2 Administration officials (or agents or (Authority: 40 CFR 1507.3) Operations Building, 6401 Security contractors on their behalf) and State and Boulevard, Baltimore, Maryland 21235– Territory chief election officials to verify the Ronald E. Bew, 6401, e-mail address at accuracy of information provided by the Associate Deputy Administrator. [email protected] or by telephone State agency with respect to applications for [FR Doc. 04–18086 Filed 8–5–04; 8:45 am] at (410) 965–8028. voter registration, for whom the last four digits of the Social Security number are BILLING CODE 8025–01–P SUPPLEMENTARY INFORMATION: provided instead of a driver’s license I. Background and Purpose of the number. Proposed New Routine Use Disclosure The proposed new routine use will SOCIAL SECURITY ADMINISTRATION A. General Background appear as routine use numbered 41 in Privacy Act of 1974, as Amended; the Master Files of Social Security On October 29, 2002, the President Proposed New Routine Use Disclosure Number (SSN) Holders and SSN signed into law Public Law 107–252, the Applications, 60–0058 system of AGENCY: Social Security Administration Help America Vote Act (HAVA) of 2002. records. We are not republishing the (SSA). Section 303 of HAVA amended section notice of this system of records in its ACTION: Proposed new routine use 205(r) of the Social Security Act by entirety at this time. This system of disclosure. adding paragraph (8) which requires the records was last published in its entirety Commissioner of Social Security to in the Federal Register at 63 F.R. 14165, SUMMARY: In accordance with the enter into agreements with the states 03/24/98. Privacy Act (5 U.S.C. 552a(e)(11)), we and designated territories to assist in are issuing public notice of our intent to verifying information in the voter II. Compatibility of Proposed Routine establish a new routine use disclosure registration process for elections for Use applicable to the SSA system of records federal office. More specifically, this The Privacy Act (5 U.S.C. 552a(a)(7) entitled, Master Files of Social Security provision of law requires the and (b)(3)) and SSA’s disclosure Number (SSN) Holders and SSN Commissioner of Social Security to regulation (20 CFR part 401) permit us Applications, 60–0058. The proposed enter into agreement with state officials to disclose information under a new routine use will allow SSA to for the purpose of verifying the published routine use for a purpose that verify the name, date of birth and the following information about voter is compatible with the purpose for last four digits of the SSN for state voter registrant applicants for whom the last which we collected the information. registration purposes under section four digits of a SSN are provided instead Section 401.150(c) of the regulations 205(r)(8) of the Social Security Act, as of a driver’s license number: permits us to disclose information amended by section 303 of the Help • Name (including the first name and under a routine use where necessary to America Vote Act (HAVA), Public Law any family forename or surname), carry out SSA programs or assist other
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agencies in administering similar DEPARTMENT OF STATE integration organization identified by programs. Section 401.120 of the the Secretary of State. Section 3(3) of the [Public Notice 4796] regulations provides that we will Act defines ‘‘Exporting Authority’’ as disclose information if required by law. Bureau of Economic and Business one or more entities designated by a Section 205(r)(8) of the Social Security Affairs; List of July 29, 2004, of Participant from whose territory a Act requires the Commissioner of Social Participating Countries and Entities shipment of rough diamonds is being Security to verify applicable (Hereinafter Known as ‘‘Participants’’) exported as having the authority to information to be used by states and Under the Clean Diamond Trade Act of validate a Kimberley Process Certificate. territories in their voter registration 2003 (Public Law 108–19) and Section Section 3(4) of the Act defines processes for elections held for federal 2 of Executive Order 13312 of July 29, ‘‘Importing Authority’’ as one or more office. Thus, the proposed routine use is 2003 entities designated by a Participant into appropriate and meets the relevant whose territory a shipment of rough AGENCY: Department of State. diamonds is imported as having the statutory and regulatory criteria. ACTION: Notice authority to enforce the laws and III. Effect of the Proposed Routine Use regulations of the Participant regarding Disclosure on the Rights of Individuals SUMMARY: In accordance with sections 3 imports, including the verification of and 6 of the Clean Diamond Trade Act the Kimberley Process Certificate The proposed routine use will allow of 2003 (Pub. L. 108–19) and section 2 accompanying the shipment. SSA to verify the accuracy of of Executive Order 13312 of July 29, information provided by States and 2003, the Department of State is List of Participants territories with respect to applications identifying all the Participants eligible Pursuant to section 3 of the Clean for voter registration as required by for trade in rough diamonds under the Diamond Trade Act (the Act), section 2 section 205(r)(8) of the Social Security Act, and their respective Importing and of Executive Order 13312 of July 29, Act. Section 205(r)(8) of the Social Exporting Authorities, and revising the 2003, and Delegation of Authority No. Security Act provides that information previously published list of April 22, 245 (April 23, 2001), I hereby identify provided by the Commissioner of Social 2004 (69 FR 23848–23849, April 30, the following entities as of July 29, 2004). Security under agreements with the 2004, as Participants under section 6(b) states and territories is confidential and FOR FURTHER INFORMATION CONTACT: Stan of the Act. Included in this List are the use of the information is limited to the Specht, Special Advisor for Conflict Importing and Exporting Authorities for purpose of verifying voter registrants’ Diamonds, Bureau of Economic and Participants, as required by section 6(b) of the Act. This list revises the information as provided in the Business Affairs, Department of State, previously published list of April 22, agreements. This provision also (202) 647–1713. 2004 (69 FR 23848–23849, April 30, provides that any officer or employee or SUPPLEMENTARY INFORMATION: Section 4 of the Clean Diamond Trade Act (the 2004). former officer or employee of a State, or Angola—Ministry of Geology and any officer or employee or former officer ‘‘Act’’) requires the President to prohibit the importation into, or the exportation Mines. or employee of a contractor of a State Armenia—Ministry of Trade and from, the United States of any rough who, without written authority of the Economic Development. diamond, from whatever source, that Commissioner, publishes or Australia—Exporting Authority— has not been controlled through the communicates any information in the Department of Industry, Tourism and Kimberley Process Certification Scheme individual’s possession by reason of Resources; Importing Authority— (KPCS). Under section 3(2) of the Act, such employment or position as such an Australian Customs Service. ‘‘controlled through the Kimberley officer, shall be guilty of a felony and Belarus—Department of Finance. Process Certification Scheme’’ means an upon conviction shall be fined or Botswana—Ministry of Minerals, importation from the territory of a Energy and Water Resources. imprisoned, or both, as described in Participant or exportation to the section 208 of the Social Security Act. Brazil—Ministry of Mines and Energy. territory of a Participant of rough Bulgaria—Ministry of Finance. Additionally, we will adhere to all diamonds that is either (i) carried out in applicable provisions of the Privacy Act Canada—Natural Resources Canada. accordance with the KPCS, as set forth Central African Republic—Ministry of when disclosing information. Thus, we in regulations promulgated by the Energy and Mining. do not anticipate that the proposed new President, or (ii) controlled under a China—General Administration of routine use will have any unwarranted system determined by the President to Quality Supervision, Inspection and adverse effect on the rights of meet substantially the standards, Quarantine. individuals about whom data will be practices, and procedures of the KPCS. Democratic Republic of the Congo— disclosed. The referenced regulations are Ministry of Mines and Hydrocarbons. Dated: July 28, 2004. contained at 31 CFR part 592 (‘‘Rough Croatia—Ministry of Economy. Diamond Control Regulations’’)(68 FR Jo Anne B. Barnhart, European Community—DG/External 45777, August 4, 2003). Relations/A.2. Commissioner. Section 6(b) of the Act requires the Ghana—Precious Minerals and [FR Doc. 04–17950 Filed 8–5–04; 8:45 am] President to publish in the Federal Marketing Company Ltd. BILLING CODE 4191–02–P Register a list of all Participants, and all Guinea—Ministry of Mines and Importing and Exporting Authorities of Geology. Participants, and to update the list as Guyana—Geology and Mines necessary. Section 2 of Executive Order Commission. 13312 of July 29, 2003, delegates this India—The Gem and Jewellery Export function to the Secretary of State. Promotion Council. Section 3(7) of the Act defines Israel—The Diamond Controller. ‘‘Participant’’ as a state, customs Ivory Coast—Ministry of Mines and territory, or regional economic Energy.
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Japan—Ministry of Economy, Trade Committee (ITAC). The purpose of the Comments should be sent to OMB and Industry. Committee is to advise the Department Office of Information and Regulatory Republic of Korea—Ministry of on matters related to telecommunication Affairs, Attention: Desk Officer for Commerce, Industry and Energy. and information policy matters in Tennessee Valley Authority no later Laos—Ministry of Finance. preparation for international meetings than September 7, 2004. Lesotho—Commissioner of Mines and pertaining to telecommunication and SUPPLEMENTARY INFORMATION: Geology. information issues. Type of Request: Regular submission, Malaysia—Ministry of International The ITAC will meet to discuss the proposal for an extension of a currently Trade and Industry. matters related to the second phase of approved collection, with revisions, Mauritius—Ministry of Commerce. the World Summit on the Information which will expire August 31, 2004. Namibia—Ministry of Mines and Society (WSIS). The meeting will take (OMB Control number: 3316–0105.) Energy. place on Friday, September 10, 2004 Title of Information Collection: TVA Norway—The Norwegian Goldsmiths’ from 10:30 a.m. to 12 p.m. in the Police Customer Satisfaction Survey. Association. auditorium of the Historic National Frequency of Use: On occasion. Romania—National Authority for Academy of Science Building. The Type of Affected Public: Individuals Consumer Protection. National Academy of Sciences is located and Small Business. Russia—Gokhran, Ministry of at 2100 C St., NW., Washington, DC. Small Business or Organizations Finance. Members of the public are welcome to Affected: Yes. Sierra Leone—Government Gold and participate and may join in the Estimated Number of Annual Diamond Office. discussions, subject to the discretion of Responses: 50. Singapore—Singapore Customs. the Chair. Persons planning to attend Estimated Total Annual Burden South Africa—South African this meeting should send the following Hours: 4.25. Diamond Board. data by fax to (202) 647–5957 or e-mail Estimated Average Burden Hours Per Sri Lanka—National Gem and to [email protected] not later than 24 Response: 5 Minutes. Jewellery Authority. hours before the meeting: (1) Name of Need For and Use of Information: Switzerland—State Secretariat for the meeting, (2) your name, and (3) This information collection will be Economic Affairs. organizational affiliation. A valid photo randomly distributed to individuals Taiwan—Bureau of Foreign Trade. ID must be presented to gain entrance to who use TVA facilities and come in Tanzania—Commissioner for the National Academy of Sciences contact with TVA Police Officers (i.e., Minerals. Building. Directions to the meeting campers, boaters, marina operators, etc.) Thailand—Ministry of Commerce. location may be obtained by calling the to provide feedback on the quality of the Togo—Ministry of Mines and ITAC Secretariat at (202) 647–5205 or e- security and safety provided by TVA Geology. mail to [email protected]. Police on TVA-managed public lands. Ukraine—State Gemological Centre of Dated: July 26, 2004. Individuals may also provide feedback Ukraine. Anne Jillson, by accessing the TVA Police Web site United Arab Emirates—Dubai Metals Foreign Affairs Officer, Department of State. (http://www.tva.gov). The information and Commodities Center. [FR Doc. 04–18020 Filed 8–5–04; 8:45 am] collection will be used to evaluate United States of America—Importing BILLING CODE 4710–07–P current security and safety policies and Authority—United States Bureau of to identify new opportunities for Customs and Border Protection; improvement. Exporting Authority—Bureau of the TENNESSEE VALLEY AUTHORITY Census. Jacklyn J. Stephenson, Venezuela—Ministry of Energy and Paperwork Reduction Act of 1995, as Senior Manager, Enterprise Operations Information Services. Mines. Amended by Pub. L. 104–13; Vietnam—Ministry of Trade. Submission for OMB Review; [FR Doc. 04–17978 Filed 8–5–04; 8:45 am] Zimbabwe—Ministry of Mines and Comment Request BILLING CODE 8120–08–P Mining Development. This notice shall be published in the AGENCY: Tennessee Valley Authority. Federal Register. ACTION: Submission for OMB Review; DEPARTMENT OF TRANSPORTATION comment request. Richard L. Armitage, Federal Highway Administration Deputy Secretary of State, Department of SUMMARY: The proposed information [Docket No. FHWA–2004–18748] State. collection described below will be submitted to the Office of Management [FR Doc. 04–18021 Filed 8–5–04; 8:45 am] Agency Information Collection and Budget (OMB) for review, as BILLING CODE 4710–07–P Activities; Request for Comments; required by the Paperwork Reduction Renewal of OMB Clearance for Act of 1995 (44 U.S.C. Chapter 35, as Information Collection; Customer amended). The Tennessee Valley DEPARTMENT OF STATE Satisfaction Surveys Authority is soliciting public comments [Public Notice 4778] on this proposed collection as provided AGENCY: Federal Highway Notice of Meeting; United States by 5 CFR 1320.8(d)(1). Requests for Administration (FHWA), DOT. International Telecommunication information, including copies of the ACTION: Notice and request for Advisory Committee Information information collection proposed and comments. Meeting on the World Summit on the supporting documentation, should be Information Society directed to the Agency Clearance SUMMARY: The FHWA invites public Officer: Alice D. Witt, Tennessee Valley comments about our intention to request The Department of State announces a Authority, 1101 Market Street (EB 5B), the Office of Management and Budget’s meeting of the U.S. International Chattanooga, Tennessee 37402–2801; (OMB) approval for a clearance renewal Telecommunication Advisory (423) 751–6832. (SC: 000XYDJ) for an existing information collection
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that involves generic customer will vary with each survey; however, we the Coastwise Trade Laws for the vessel satisfaction surveys. We are required by estimate an average burden of 15 THE BEAST. the Paperwork Reduction Act of 1995 to minutes for each survey. We estimate publish this notice in the Federal that FHWA will survey approximately SUMMARY: As authorized by Pub. L. 105– Register. 50,000 respondents annually during the 383 and Pub. L. 107–295, the Secretary next three years. Therefore, the of Transportation, as represented by the DATES: Please submit comments by Maritime Administration (MARAD), is October 5, 2004. estimated total annual burden is 12,500 hours. authorized to grant waivers of the U.S.- ADDRESSES: You may mail or hand Public Comments Invited: You are build requirement of the coastwise laws deliver comments to the U.S. asked to comment on any aspect of this under certain circumstances. A request Department of Transportation, Dockets information collection, including: (1) for such a waiver has been received by Management Facility, Room PL–401, Whether the proposed collection is MARAD. The vessel, and a brief 400 Seventh Street, SW., Washington, necessary for the FHWA’s performance; description of the proposed service, is DC 20590; telefax comments to (202) (2) the accuracy of the estimated listed below. The complete application 493–2251; or submit electronically at burden; (3) ways for the FHWA to is given in DOT docket 2004–18770 at http://dmses.dot.gov/submit. All enhance the quality, usefulness, and http://dms.dot.gov. Interested parties comments should include the docket clarity of the collected information; and may comment on the effect this action number in this notice’s heading. All (4) ways that the burden could be may have on U.S. vessel builders or comments may be examined and copied minimized, including the use of businesses in the U.S. that use U.S.-flag at the above address from 9 a.m. to 5 computer technology, without reducing vessels. If MARAD determines, in p.m., Monday through Friday, except the quality of the collected information. accordance with Pub. L. 105–383 and Federal holidays. If you desire a receipt The agency will summarize and/or MARAD’s regulations at 46 CFR part you must include a self-addressed include your comments in the request 388 (68 FR 23084; April 30, 2003), that stamped envelope or postcard or, if you for OMB’s clearance of this information the issuance of the waiver will have an submit your comments electronically, collection. unduly adverse effect on a U.S.-vessel you may print the acknowledgment Electronic Access: Internet users may builder or a business that uses U.S.-flag page. access all comments received by the vessels in that business, a waiver will FOR FURTHER INFORMATION CONTACT: Mr. U.S. DOT Dockets, Room PL–401, by not be granted. Comments should refer Mike Burk, 202–366–8035, Corporate using the universal resource locator to the docket number of this notice and Management, Federal Highway (URL): http://dms.dot.gov. It is available the vessel name in order for MARAD to Administration, Department of 24 hours each day, 365 days each year. properly consider the comments. Transportation, 400 Seventh Street, Please follow the instructions online for Comments should also state the SW., Washington, DC 20590. Office more information and help. An commenter’s interest in the waiver hours are from 7:30 a.m. to 5 p.m., electronic copy of this document may be application, and address the waiver Monday through Friday, except Federal downloaded using a modem and criteria given in § 388.4 of MARAD’s holidays. suitable communications software from regulations at 46 CFR part 388. DATES: SUPPLEMENTARY INFORMATION: Title: the Government Printing Office Submit comments on or before Customer Satisfaction Surveys. Electronic Bulletin Board Service at September 7, 2004. OMB Control No: 2125–0590. telephone number 202–512–1661. ADDRESSES: Comments should refer to Background: Executive Order 12862, Internet users may reach the Federal docket number MARAD 2004 18770. ‘‘Setting Customer Service Standards’’ Register’s home page at http:// Written comments may be submitted by requires that Federal agencies provide www.nara.gov/fedreg and the hand or by mail to the Docket Clerk, the highest quality service to our Government Printing Office’s database U.S. DOT Dockets, Room PL–401, customers by identifying them and at http://www.access.gpo.gov/nara. Department of Transportation, 400 7th determining what they think about our Authority: The Paperwork Reduction Act St., SW., Washington, DC 20590–0001. services and products. The surveys of 1995; 44 U.S.C. Chapter 35, as amended; You may also send comments covered in the existing generic clearance and 49 CFR 1.48. electronically via the Internet at http:// dmses.dot.gov/submit/. All comments will provide the FHWA a means to Issued on: July 29, 2004. gather this data directly from our will become part of this docket and will James R. Kabel, be available for inspection and copying customers. The information obtained Chief, Management Programs and Analysis from the surveys will be used to assist at the above address between 10 a.m. Division. and 5 p.m., e.t., Monday through Friday, in evaluating service delivery and [FR Doc. 04–17953 Filed 8–5–04; 8:45 am] processes. The responses to the surveys except federal holidays. An electronic will be voluntary and will not involve BILLING CODE 4910–22–P version of this document and all information that is required by documents entered into this docket is available on the World Wide Web at regulations. There will be no direct DEPARTMENT OF TRANSPORTATION costs to the respondents other than their http://dms.dot.gov. time. The FHWA plans to provide an Maritime Administration FOR FURTHER INFORMATION CONTACT: electronic means for responding to the Michael Hokana, U.S. Department of Transportation, Maritime majority of the surveys via the World [Docket Number: 2004 18770] Wide Web. Administration, MAR–830 Room 7201, Respondents: State and local Requested Administrative Waiver of 400 Seventh Street, SW., Washington, governments, highway industry the Coastwise Trade Laws DC 20590. Telephone 202–366–0760. organizations, general public. SUPPLEMENTARY INFORMATION: As Frequency: Generally, on an annual AGENCY: Maritime Administration, described by the applicant the intended basis. Department of Transportation. service of the vessel THE BEAST is: Estimated Total Annual Burden ACTION: Invitation for public comments Intended Use: Passenger Charter with Hours: The burden hours per response on a requested administrative waiver of Captain for day sailing.
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Geographic Region: South Florida. before an agency submits a proposed requirements for the geometry, Dated: July 30, 2004. collection of information to OMB for configuration, strength and energy By order of the Maritime Administrator. approval it must first publish a absorption capability of rear impact document in the Federal Register guards on full trailers and semi-trailers Joel C. Richard, providing a 60-day comment period and over 10,000 pounds GVWR Secretary, Maritime Administration. otherwise consult with members of the manufactured on or after January 26, [FR Doc. 04–18009 Filed 8–5–04; 8:45 am] public and affected agencies concerning 1998. NHTSA’s Office of Planning, BILLING CODE 4910–81–P each proposed collection of information. Evaluation, and Budget is planning a The OMB has promulgated regulations highway crash data collection effort that describing what must be included in will provide adequate information to DEPARTMENT OF TRANSPORTATION such a document. Under OMB’s perform an evaluation of the National Highway Traffic Safety regulation (at 5 CFR 1320.8(d)), an effectiveness of ABS and rear impact guards for heavy trucks. This study will Administration agency must ask for public comment on the following: estimate the actual safety benefits [U.S. DOT Docket Number NHTSA–2004– (i) Whether the proposed collection of (crashes, injuries, and fatalities avoided) 18776] information is necessary for the proper achieved by the standards and provide performance of the functions of the a basis for assessing whether the Reports, Forms, and Record Keeping agency, including whether the standards are functioning as intended. Requirements information will have practical utility; Highway crash data will be analyzed to AGENCY: National Highway Traffic (ii) The accuracy of the agency’s the extent that the experiences of heavy Safety Administration (NHTSA), estimate of the burden of the proposed trucks equipped with ABS and rear Department of Transportation. collection of information, including the impact guards can be compared with the ACTION: Request for public comment on validity of the methodology and experiences of heavy trucks not so proposed collection of information. assumptions used; equipped. (iii) How to enhance the quality, Estimated Annual Burden: The SUMMARY: Before a Federal agency can utility, and clarity of the information to annual burden is estimated to be 4,036 collect certain information from the be collected; hours. public, it must receive approval from (iv) How to minimize the burden of Number of Respondents: The state the Office of Management and Budget the collection of information on those police in one state will report (OMB). Under procedures established who are to respond, including the use information on a total of 12,500 crashes. by the Paperwork Reduction Act of of appropriate automated, electronic, Issued on: August 2, 2004. 1995, before seeking OMB approval, mechanical, or other technological Noble N. Bowie, Federal agencies must solicit public collection techniques or other forms of Associate Administrator for Planning, comment on proposed collections of information technology, e.g. permitting Evaluation, and Budget. information, including extensions and electronic submission of responses. [FR Doc. 04–17991 Filed 8–5–04; 8:45 am] In compliance with these reinstatement of previously approved BILLING CODE 4910–59–P collections. requirements, NHTSA asks for public This document describes one comments on the following proposed collection of information for which collections of information: DEPARTMENT OF TRANSPORTATION NHTSA intends to seek OMB approval. Title: Highway Crash Data Collection DATES: Comments must be received on for the Evaluation of Antilock Brake Surface Transportation Board or before October 5, 2004. Systems (ABS) and Rear Impact Guards on Heavy Vehicles. [STB Finance Docket No. 34521] ADDRESSES: Comments must refer to the OMB Control Number: 2127–0614. Cleveland Commercial Railroad docket notice numbers cited at the Affected Public: State and Local Company, LLC—Change in Operators beginning of this notice and be Governments. submitted to Docket Management, Room Form Number: N/A. Exemption—Wheeling & Lake Erie PL–401, 400 Seventh Street, SW., Abstract: As required by the Railway Company Washington, DC 20590. Please identify Government Performance and Results Cleveland Commercial Railroad the proposed collection of information Act of 1993 and Executive Order 12866 Company, LLC (CCR), a noncarrier, has for which a comment is provided, by (58 FR 51735), NHTSA reviews existing filed a verified notice of exemption referencing its OMB Clearance Number. regulations to determine if they are under 49 CFR 1150.31 to operate a line It is requested, but not required, that 2 achieving policy goals. Federal Motor of railroad owned by Wheeling & Lake copies of the comment be provided. The Vehicle Safety Standard (FMVSS) 105 Erie Railway Company (W&LE). Docket Section is open on weekdays (49 CFR 571.105) and FMVSS 121 (49 Pursuant to a Lease and Operating from 10 a.m. to 5 p.m. CFR 571.121) require ABS and a Agreement entered into on June 21, FOR FURTHER INFORMATION CONTACT: malfunction indicator lamp (MIL) on all 2004, between CCR and W&LE, CCR Complete copies of each request for new heavy vehicles with a Gross will lease and operate W&LE’s rail line collection of information may be Vehicle Weight Rating (GVWR) of extending from a connection with obtained at no charge from Marcia 10,000 pounds or more. Implementation W&LE at milepost 15.5 at Falls Junction, Tarbet, NHTSA 400 Seventh Street, of the standards was performed over a in Glenwillow, OH, to milepost 5.1, in SW., Room 5208, NPO–321, three-year period: air-brake truck Cleveland, OH, a distance of Washington, DC 20590. Marcia Tarbet’s tractors manufactured on or after March approximately 10.4 miles, in Cuyahoga telephone number is (202) 366–2570. 1, 1997, air-brake trailers and single-unit County, OH. The line has been operated Please identify the relevant collection of trucks manufactured on or after March previously by Connotton Valley information by referring to its OMB 1, 1998, and hydraulic brake trucks Railway, Inc. (CVR).1 Control Number. manufactured on or after March 1, 1999. SUPPLEMENTARY INFORMATION: Under the FMVSS 223 (49 CFR 571.223) and 224 1 See Connotton Valley Railway, Inc.—Lease and Paperwork Reduction Act of 1995, (49 CFR 571.224) set minimum Operation Exemption—Wheeling & Lake Erie
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The parties indicated that the If the verified notice contains false or Bishop, Law Offices of Bishop & Nosich, transaction was scheduled to be misleading information, the exemption LLC, 143 West Main Street, Cortland, consummated not less than 7 days after is void ab initio. Petitions to reopen the OH 44410. the exemption was filed, which would proceeding to revoke the exemption Board decisions and notices are have been July 15, 2004. under 49 U.S.C. 10502(d) may be filed available on our Web site at http:// by any time. The filing of a petition to www.stb.dot.gov. Railway Company, STB Finance Docket No. 34264 revoke will not automatically stay the (STB served Nov. 7, 2002). On June 18, 2004, CVR’s Decided: July 30, 2004. lease of the line terminated, and CVR ceased all transaction. operations on the line. W&LE has been providing An original and 10 copies of all By the Board, David M. Konschnik, rail service to customers on the line since June 18, Director, Office of Proceedings. 2004, pursuant to its underlying common carrier pleadings, referring to STB Finance obligation as owner of the line. Upon Docket No. 34521, must be filed with Vernon A. Williams, consummation of the change in operators the Surface Transportation Board, 1925 Secretary. authorized by the exemption, CVR’s authority to K Street, NW., Washington, DC 20423– [FR Doc. 04–18010 Filed 8–5–04; 8:45 am] lease and operate the line will terminate. W&LE states that CVR consents to the proposed change in 0001. In addition, a copy of each BILLING CODE 4915–01–P operators of the line. pleading must be served on Jami L.
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Part II
Farm Credit Administration 12 CFR Parts 607, 614, 615, and 620 Assessment and Apportionment of Administrative Expenses; Loan Policies and Operations; Funding and Fiscal Affairs, Loan Policies and Operations, and Funding Operations; Disclosure to Shareholders; Capital Adequacy Risk- Weighting Revisions; Proposed Rule
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FARM CREDIT ADMINISTRATION Laurie A. Rea, Senior Policy Analyst, made minor revisions to these categories Office of Policy and Analysis, Farm in 1998.5 Risk-weighting is used to 12 CFR Parts 607, 614, 615, and 620 Credit Administration, McLean, VA assign on- and off-balance sheet 22102–5090, (703) 883–4479; TTY positions appropriate capital RIN 3052–AC09 (703) 883–4434; requirements and to compute the risk- or adjusted asset base for FCS banks’ and Assessment and Apportionment of Jennifer A. Cohn, Senior Attorney, associations’ permanent capital, core Administrative Expenses; Loan Office of General Counsel, Farm surplus, and total surplus ratios. The Policies and Operations; Funding and Credit Administration, McLean, VA current risk-weighting categories are Fiscal Affairs, Loan Policies and 22102–5090, (703) 883–4020, TTY similar to those outlined in the Accord Operations, and Funding Operations; (703) 883–2020. on International Convergence of Capital Disclosure to Shareholders; Capital SUPPLEMENTARY INFORMATION: Measurement and Capital Standards Adequacy Risk-Weighting Revisions (1988, as amended in 1998) (Basel I. Objectives Accord), which were also adopted by AGENCY: Farm Credit Administration. The objectives of this proposed rule the other financial regulatory agencies. ACTION: Proposed rule. are to: Our risk-based capital requirements are • SUMMARY: The Farm Credit Ensure FCS institutions maintain contained in subparts H and K of part Administration (FCA) proposes to capital levels commensurate with their 615 of our regulations. relative exposure to credit risk; change its regulatory capital standards B. Implications of the New Basel Capital • Help achieve a more consistent on recourse obligations, direct credit Accord substitutes, residual interests, asset- and regulatory capital treatment with the 1 In April 2003, the Basel Committee mortgage-backed securities, guarantee other financial regulatory agencies for issued a consultative document on the arrangements, claims on securities transactions involving similar risk; • proposed New Basel Capital Accord firms, and certain qualified residential Address a recent recommendation (Basel II). Basel II discusses potential loans. We are modifying our risk-based by the United States General modifications to the current Basel capital requirements to more closely Accounting Office (GAO) to take Accord, including the capital treatment match a Farm Credit System (FCS or appropriate measures to reduce of securitizations. The standards System) institution’s relative risk of loss potential safety and soundness issues established by our proposal enhance on these credit exposures to its capital that may arise from capital arbitrage; risk sensitivity in a manner consistent requirements. In doing so, we propose and • with the standardized approach to to risk-weight recourse obligations, Allow FCS institutions’ capital to credit risk under Basel II. The direct credit substitutes, residual be used more efficiently in serving standardized approach establishes fixed interests, and asset- and mortgage- agriculture and rural America and risk weights corresponding to each backed securities based on external supporting other System mission supervisory risk weight category and credit ratings from nationally activities. makes use of external credit assessments recognized statistical rating II. Background to enhance risk sensitivity compared organizations (NRSROs). In addition, with the current Basel Accord. our proposal will make our regulatory A. Basis of Current Risk-Based Capital Similarly, under our proposal we use capital treatment more consistent with Rules external credit ratings assigned by that of the other financial regulatory Since the late 1980s, the regulatory NRSROs as a basis for determining the agencies for transactions and assets capital requirements applicable to credit quality and the resulting capital involving similar risk and address federally regulated financial treatment for credit exposures.6 financial structures and transactions institutions, including FCS institutions, According to their most recent press developed by the market since our last have been based, in part, on the risk- release (May 11, 2004), the Basel update. We also propose to make a based capital framework developed Committee has achieved consensus on number of nonsubstantive changes to under the guidance of the Basel the remaining issues regarding the our regulations to make them easier to Committee on Banking Supervision proposals for the new international use. (Basel Committee).2 We first adopted capital standard. The Basel Committee risk-weighting categories for System DATES: Please send your comments to us also confirmed that the standardized assets as part of the 1988 regulatory by November 4, 2004. and foundation approaches will be capital revisions 3 required by the ADDRESSES: You may send comments by implemented from year-end 2006. Agricultural Credit Act of 1987 4 and electronic mail to ‘‘[email protected],’’ However, the Committee indicated that through the Pending Regulations section 1 We refer collectively to the Office of the another year of impact analysis will be of FCA’s Web site, ‘‘http:// Comptroller of the Currency (OCC), the Board of needed to evaluate the most advanced www.fca.gov,’’ or through the Governors of the Federal Reserve System (Federal approaches, and therefore these will not governmentwide ‘‘http:// Reserve Board), the Federal Deposit Insurance be implemented until year-end 2007. As www.regulations.gov’’ Web site. You Corporation (FDIC), and the Office of Thrift Supervision (OTS) as the ‘‘other financial regulatory we continue to review Basel II and may also send comments to S. Robert agencies.’’ assess its implications and Coleman, Director, Regulation and 2 The Basel Committee is a committee of central appropriateness for FCS institutions, we Policy Division, Office of Policy and banks and bank supervisors/regulators from the may make further revisions to our Analysis, Farm Credit Administration, major industrialized countries that formulate capital regulations. In the interim, we standards and guidelines related to banking and 1501 Farm Credit Drive, McLean, VA recommend them for adoption by member countries welcome comments on the proposed 22102–5090 or by fax to (703) 734–5784. and others. All Basel Committee documents You may review copies of all comments mentioned in this preamble are available on the 5 See 63 FR 39219 (July 22, 1998). we receive at our office in McLean, Committee’s Web site at www.bis.org/bcbs/. 6 An NRSRO is a rating organization that the Virginia. 3 See 53 FR 39229 (October 6, 1988). Securities and Exchange Commission recognizes as 4 Agricultural Credit Act of 1987, Pub. L. 100–233 an NRSRO. See 12 CFR 615.5131(j). See also 66 FR FOR FURTHER INFORMATION CONTACT: (January 6, 1988). 59632, 59639, 59655, 59662 (November 29, 2001).
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new framework and its applicability to and the Advanced Measurement Farmer Mac and FCS institutions.’’ 16 FCS institutions. Approaches for operational risk. The This proposed rulemaking takes ANPRM also specifies the criteria that important steps to reduce potential C. Rules Recently Adopted by the Other would be used to determine banking safety and soundness issues that may Financial Regulatory Agencies organizations that would be required to result from securitization and In developing these proposed use the advanced approaches.12 guarantee/credit protection changes, we also took into consideration Our proposal does not address the arrangements that FCS institutions recent changes the other financial advanced approach for positions in engage in with the Federal Agricultural regulatory agencies made to their capital securitizations (or any other credit Mortgage Corporation (Farmer Mac), rules. These changes are briefly exposures). The focus of this proposed domestic banks, and securities firms. In described below. rule is on improving the risk sensitivity particular, we take measures to ensure In November 2001, the other financial of the current risk-based capital through that FCS institutions cannot alter their regulatory agencies issued a final rule the use of external credit ratings. capital requirements simply by using that amended their risk-based capital different structures, arrangements or regulations for positions that banking D. FCA Rulemakings counterparties without changing the organizations 7 hold in recourse nature of the risks they assume or retain. obligations, direct credit substitutes, On February 19, 2003, the FCA Board residual interests, and asset- and adopted an interim final rule that III. Scope of Our Proposal amended our capital rules to allow mortgage-backed securities.8 The other Our proposal embraces many of the financial regulatory agencies intended System institutions to use a lower risk Basel Committee’s objectives for for these changes to produce more weighting for highly rated investments 13 improving risk sensitivity in regulatory consistent capital treatment for credit in non-agency asset-backed securities capital rules and aligns our risk-based risks associated with exposures arising (ABS) and mortgage-backed securities capital framework closely with the rules from these positions. More specifically, (MBS), which have reduced exposure to 14 of the other financial regulatory the new risk-based standards tie capital credit risk. This was one of the agencies. However, because the scope of requirements for these transactions to changes the other financial regulatory the FCS institutions’ activities differs their relative risk exposure, as measured agencies made in November 2001. from the activities of banking by credit ratings received from an Because this change was narrow and organizations, our proposal is not NRSRO. noncontroversial, relieved a regulatory identical to their rules. Their rules focus Similarly, in April 2002, the other burden, and immediately furthered the on traditional securitization activities, financial regulatory agencies, consistent mission of the System, we adopted it where a banking organization sells with the proposed changes to the Basel without prepromulgation comment. assets or credit exposures to increase its Accord, issued a rule that amended This change became effective on May liquidity and manage credit risk. Our their risk-based capital standards for 13, 2003. We issued the interim final proposal places more emphasis on banking organizations with regard to the rule with a request for comments but capital treatment of investments in ABS risk weighting of claims on, and claims received none. and MBS held for liquidity and other guaranteed by, qualifying securities Additionally, on April 22, 2004, FCA types of structured financial firms.9 The capital requirements for adopted changes to the risk-based transactions and arrangements where an these claims are also tied in a similar capital treatment for other financing FCS institution transfers, retains, or manner to their relative risk exposure as institutions (OFIs).15 Those assumes credit risk to manage its credit measured by NRSRO credit ratings. amendments also aimed to enhance the risk profile. Examples of these other In January 2002, the other financial risk sensitivity of FCA’s risk-based types of transactions and arrangements regulatory agencies (except the OTS) capital rules through changes in risk are synthetic securitizations, financial adopted a joint final rule governing the weightings. This proposed rule guarantee arrangements, long-term regulatory capital treatment of equity incorporates the changes made to our standby purchase commitments, and investments in nonfinancial companies risk weightings through the OFI credit derivatives. held by banking organizations under rulemaking. Like the other financial regulatory various legal authorities.10 Among other agencies, we are also proposing a changes in regulatory capital treatment, E. GAO Recommendation on Capital ratings-based approach for claims on this joint final rule addresses the risk Arbitrage securities firms. Additionally, similar to weighting of investments in small In a recent report, the GAO the rules that the other financial business investment companies (SBICs). recommended that the FCA ‘‘[c]reate a regulatory agencies have adopted, our In August 2003, the other financial plan to implement actions currently proposal also addresses risk weighting regulatory agencies issued for comment under consideration to reduce potential for authorized investments in their views on the proposed framework safety and soundness issues that may nonfinancial companies. Subtitle H of for implementing the Basel II in the arise from capital arbitrage activities of the Consolidated Farm and Rural United States.11 The advance notice of Development Act,17 as amended by proposed rulemaking (ANPRM) 12 Internationally active banking organizations section 6029 of the Farm Security and describes significant elements of the with total assets of $250 billion or more or total on- Rural Investment Act of 2002,18 Advanced Internal Ratings-Based balance sheet foreign exposures of $10 billion or authorizes System institutions to invest approach for credit risk (including more would be required to adopt the advanced in rural business investment companies credit exposures from securitizations) approaches. All other banks would continue to apply the general risk-based capital rules, unless (RBICs). RBICs are similar to SBICs, in they opt-in. 7 Banking organizations include banks, bank 13 Non-agency securities are securities not issued 16 United States General Accounting Office, holding companies, and thrifts. See 66 FR 59614 or guaranteed by the United States Government, a Farmer Mac: Some Progress Made, but Greater (November 29, 2001). Government agency (as defined in § 615.5201(f)), or Attention to Risk Management, Mission, and 8 See 66 FR 59614 (November 29, 2001). a Government-sponsored agency (as defined in Corporate Governance Is Needed, GAO–04–116, at 9 See 67 FR 16971 (April 9, 2002). § 615.5201(g)). page 59 (2003). 10 See 67 FR 3784 (January 25, 2002). 14 See 68 FR 15045 (March 28, 2003). 17 Pub. L. 87–128 (August 8, 1961). 11 See 68 FR 45900 (August 4, 2003). 15 See 69 FR 29852 (May 26, 2004). 18 Pub. L. 107–171 (May 3, 2002).
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which banking organizations are B. Asset Securitization enhancements are ‘‘residual interests’’ for regulatory capital purposes. allowed to invest. This proposal necessitates an A seller may also arrange for a third Furthermore, as the other financial understanding of asset securitization party to provide credit enhancement 24 regulatory agencies have done, we are and other structured transactions that making explicit our authority to modify are used as tools to manage and transfer in an asset securitization. If another a stated risk weight or credit conversion credit risk. Therefore, we have included financial institution provides the third- factor, if warranted, on a case-by-case the following background explanation to party enhancement, then that institution basis. aid our readers. assumes some portion of the assets’ credit risk. In this proposed rule, all Asset securitization is the process by We invite comments on whether we forms of third-party enhancements, i.e., which loans or other credit exposures should make any additional all arrangements in which an FCS are pooled and reconstituted into modifications to our risk-based capital institution assumes credit risk from securities, with one or more classes or rules to more closely align capital third-party assets or other claims that it positions that may then be sold. requirements for FCS institutions with has not transferred, are referred to as Securitization provides an efficient their relative risk exposure and ‘‘direct credit substitutes.’’ mechanism for institutions to sell loan requirements for other banking Many asset securitizations use a assets or credit exposures and thereby to organizations. We also invite comments combination of recourse and third-party increase the institution’s liquidity. For on whether FCA should delay or enhancements to protect investors from purposes of this preamble, references to accelerate implementation of any credit risk. When third-party ‘‘securitizations’’ also include aspects of this proposal. enhancements are not provided, the structured financial transactions or institution ordinarily retains virtually IV. Overview arrangements and synthetic all of the credit risk on the assets. transactions 22 that generally create A. General Approach stratified credit risk positions, which C. Risk Management We propose revisions to our capital may or may not be in the form of a While asset securitization can rules that would implement a ratings- security, whose performance is enhance both credit availability and based approach for risk-weighting dependent upon a pool of loans or other profitability, managing the risks positions in recourse obligations, credit exposures. For example, in a associated with this activity poses residual interests (other than credit- synthetic securitization, loans are not significant challenges. While not new to enhancing interest-only strips), direct sold or transferred, but rather the FCS institutions, these risks may be less performance of securities is tied to a credit substitutes, and asset- and obvious and more complex than reference pool of loan assets or other mortgage-backed securities. Highly rated traditional lending activities. credit exposures.23 positions will receive a favorable (less Specifically, securitization can involve Securitizations typically carve up the than 100-percent) risk weighting. credit, liquidity, operational, legal, and risk of credit losses from the underlying Positions that are rated below reputation risks that may not be fully assets and distribute it to different investment grade 19 will receive a less recognized by management or parties. The ‘‘first dollar,’’ or most favorable risk weighting (generally adequately incorporated into risk subordinate, loss position is first to greater than 100-percent risk weight). management systems. The capital absorb credit losses; the most ‘‘senior’’ treatment required by this proposed rule The FCA proposes to apply this investor position is last to absorb losses; approach to positions based on their addresses credit risk presented in and there may be one or more loss securitizations and other credit risk inherent risks rather than how they positions in between (‘‘second dollar’’ might be characterized or labeled. mitigation techniques. Therefore, it is loss positions). Each loss position essential that an institution’s As noted, our proposed ratings-based functions as a credit enhancement for compliance with capital standards be approach provides risk weightings for a the more senior positions in the complemented by effective risk variety of assets that have a wide range structure. management practices and strategies. of credit ratings. We provide risk Recourse, in connection with sales of Similar to the other financial weightings for investments that are whole loans or loan participations, is regulatory agencies, the FCA expects rated below investment grade, although now frequently associated with asset FCS institutions to identify, measure, they are not eligible investments under securitizations. Depending on the type monitor, and control securitization risks our current investment regulations.20 of securitization, the sponsor of a and explicitly incorporate the full range This proposed rule does not, however, securitization may provide a portion of of those risks into their risk expand the scope of eligible the total credit enhancement internally, management systems. The board and investments. It merely explains how to as part of the securitization structure, management are responsible for risk weight an investment that was through the use of excess spread adequate policies and procedures that eligible when purchased if its credit accounts, overcollateralization, retained address the economic substance of their rating subsequently deteriorates. Such subordinated interests, or other similar activities and fully recognize and ensure investments must still be disposed of in on-balance sheet assets. When these or appropriate management of related accordance with § 615.5143.21 other on-balance sheet internal risks. Additionally, FCS institutions enhancements are provided, the must be able to measure and manage 19 Investment grade means a credit rating of AAA, their risk exposure from securitized AA, A or BBB or equivalent by an NRSRO. 22 For examples of synthetic securitization positions, either retained or acquired. 20 See § 615.5140. structures, see Banking Bulletin 99–43, December The formality and sophistication with 21 Section 615.5143 provides that an institution 1999 (OCC); Supervision and Regulation Letter 99– must dispose of an ineligible investment within 6 32, Capital Treatment for Synthetic Collateralized which the risks of these activities are months unless FCA approves, in writing, a plan that Loan Obligations, November 15, 1999 (Federal authorizes divestiture over a longer period of time. Reserve Board). 24 The terms ‘‘credit enhancement’’ and An institution must dispose of an ineligible 23 Synthetic transactions bundle credit risks ‘‘enhancement’’ refer to both recourse arrangements investment as quickly as possible without associated with on-balance sheet assets or off- (including residual interests) and direct credit substantial financial loss. balance sheet items and sell them into the market. substitutes.
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incorporated into an institution’s risk appropriate capital requirements for principal payments with interest and fee management system should be FCS institutions and continue to apply cash flows will not otherwise negate the commensurate with the nature and the structural and risk management regulatory capital treatment of that asset volume of its securitization activities.25 requirements outline in the 1999 as a credit-enhancing interest-only strip. guidance.26 Credit-enhancing interest-only strips V. Section-by-Section Analysis of include both purchased and retained Proposed Changes 2. Credit-Enhancing Interest-Only Strip interest-only strips that serve in a credit- The following discussion provides We propose to define the term enhancing capacity, even though explanations, where necessary, of the ‘‘credit-enhancing interest-only strip’’ as purchased interest-only strips generally more complex changes we propose. an on-balance sheet asset that, in form do not result in the creation of capital Most of the changes are necessary to or in substance, (1) Represents the on the purchaser’s balance sheet. more closely align our rules with those contractual right to receive some or all of the other financial regulatory of the interest due on transferred assets; 3. Credit-Enhancing Representations agencies and to recognize relative risk and (2) exposes the institution to credit and Warranties exposure. As mentioned above, we have risk directly or indirectly associated When an institution transfers or also made a number of organizational with the transferred assets that exceeds purchases assets, including servicing and plain language changes to make our its pro rata claim on the assets, whether rights, it customarily makes or receives rules easier to follow. These changes are through subordination provisions or representations and warranties discussed later in this preamble. other credit enhancement techniques. concerning those assets. These representations and warranties give A. Section 615.5201—Definitions FCA proposes to reserve the right to identify other cash flows or related certain rights to other parties and Because this rule would implement a interests as credit-enhancing interest- impose obligations upon the seller or new risk-weighting approach for only strips based on the economic servicer of those assets. To the extent recourse obligations, residual interests, substance of the transaction. such representations and warranties direct credit substitutes, and other Credit-enhancing interest-only strips function as credit enhancements to securitization and guarantee include any balance sheet asset that protect asset purchasers or investors arrangements, we are proposing to represents the contractual right to from credit risk, the proposed rule treats amend § 615.5201 to add a number of receive some or all of the remaining them as recourse or direct credit new definitions relating to these interest cash flow generated from assets substitutes. activities. We are also proposing to that have been transferred into a trust More specifically, credit-enhancing update certain other definitions as (or other special purpose entity), after representations and warranties are warranted. For the most part, to achieve taking into account trustee and other defined in the proposal as consistency with the other financial administrative expenses, interest representations and warranties that: (1) regulatory agencies, we are proposing to payments to investors, servicing fees, Are made or assumed in connection adopt the same definitions as the other and reimbursements to investors for with a transfer of assets (including loan- agencies. losses attributable to the beneficial servicing assets); and (2) obligate an 1. Credit Derivative interests they hold, as well as institution to protect investors from reinvestment income and ancillary losses arising from credit risk in the We propose to define credit derivative 27 assets transferred or loans serviced. As as a contract that allows one party (the revenues on the transferred assets. Credit-enhancing interest-only strips proposed, the term includes promises to protection purchaser) to transfer the are generally carried on the balance protect a party from losses resulting credit risk of an asset or off-balance from the default or nonperformance of sheet credit exposure to another party sheet at the present value of the reasonably expected net cash flow, another party or from an insufficiency (the protection provider). The value of in the value of collateral. a credit derivative is dependent, at least adjusted for some level of prepayments if relevant, and discounted at an The proposed definition is consistent in part, on the credit performance of a with the other financial regulatory ‘‘reference asset.’’ appropriate market interest rate. Typically, transfers of assets accounted agencies’ long-standing recourse The proposed definitions of treatment of representations and ‘‘recourse’’ and ‘‘direct credit for as a sale under generally accepted accounting principles (GAAP) result in warranties that effectively guarantee substitute’’ cover credit derivatives to performance or credit quality of the extent that an institution’s credit the seller recording a gain on the portion of the transferred assets that has transferred loans. However, a number of risk exposure exceeds its pro rata factual warranties unrelated to ongoing interest in the underlying obligation. been sold. This gain is recognized as income, thus increasing the institution’s performance or credit quality are The ratings-based approach therefore typically made. These warranties entail applies to rated instruments such as capital position. Under the proposed rule, FCA would operational risk, as opposed to credit credit-linked notes issued as part of a risk inherent in a financial guaranty, synthetic securitization. look to the economic substance of the transaction and reserve the right to and are excluded from the definitions of Credit derivatives can have a variety recourse and direct credit substitute. of structures. Therefore, we will identify other cash flows or spread- related assets as credit-enhancing Warranties that create operational risk continue to evaluate credit derivatives include warranties that assets have been on a case-by-case basis. Furthermore, we interest-only strips on a case-by-case basis. For example, including some underwritten or collateral appraised in will continue to use the December 1999 conformity with identified standards guidance on synthetic securitizations 26 and warranties that permit the return of issued by the Federal Reserve Board and See Banking Bulletin 99–43, December 1999 (OCC); Supervision and Regulation Letter 99–32, assets in instances of incomplete the OCC as a guide for determining Capital Treatment for Synthetic Collateralized Loan documentation, misrepresentation, or Obligations, November 15, 1999 (Federal Reserve fraud. FCA expects FCS institutions to 25 This proposal would not grant any new Board). authorities to System institutions. It merely 27 According to the Statement of Financial be able to demonstrate effective provides risk weightings for investments and Accounting Standards No. 140, ancillary revenues management of operational risks created transactions that are otherwise authorized. include late charges on transferred assets. by warranties.
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Warranties or assurances that are 4. Direct Credit Substitute administering the risk-based capital treated as recourse or direct credit The proposed definition of direct requirements. substitutes include warranties on the credit substitute complements the 6. Financial Standby Letter of Credit actual value of asset collateral or that definition of recourse. We propose the ensure the market value corresponds to Section 615.5201(o) of our regulations term ‘‘direct credit substitute’’ to refer to currently defines the term ‘‘standby appraised value or the appraised value an arrangement in which an institution will be realized in the event of letter of credit.’’ We propose to change assumes, in form or in substance, credit the term to financial standby letter of foreclosure and sale. Also, premium risk directly or indirectly associated refund clauses, which can be triggered credit, but propose no substantive with an on- or off-balance sheet asset or by defaults, are generally credit changes to the definition. exposure that was not previously owned enhancements. A premium refund by the institution (third-party asset) and 7. Government Agency clause is a warranty that obligates the the risk assumed by the institution seller who has sold a loan at a price in This term is currently defined in two exceeds the pro rata share of the excess of par, i.e., at a premium, to places in our capital regulations: institution’s interest in the third-party refund the premium, either in whole or § 615.5201(f), which is our definitions asset. If the institution has no claim on in part, if the loan defaults or is prepaid section, and § 615.5210(f)(2)(i)(D), the third-party asset, then the within a certain period of time. which is our section on computing the institution’s assumption of any credit However, certain premium refund permanent capital ratio. We propose to clauses are not considered credit risk is a direct credit substitute. The modify the § 615.5201(f) definition by enhancements, including: term explicitly includes items such as replacing it with the definition of the following: Government agency currently in (1) Premium refund clauses covering • loans for a period not to exceed 120 Financial standby letters of credit § 615.5210(f)(2)(i)(D), and then delete days from the date of transfer. These that support financial claims on a third the definition in § 615.5210(f)(2)(i)(D). warranties may cover only those loans party that exceed an institution’s pro We believe these changes would rata share in the financial claim; streamline the regulation. We do not that were originated within 1 year of the • date of the transfer; and Guarantees, surety arrangements, intend to change the meaning of this (2) Premium refund clauses covering credit derivatives, and similar term. assets guaranteed, in whole or in part, instruments backing financial claims by the United States Government, a that exceed an institution’s pro rata 8. Government-Sponsored Agency United States Government agency, or a share in the financial claim; The term Government-sponsored United States Government-sponsored • Purchased subordinated interests agency is also currently defined in two agency, provided the premium refund that absorb more than their pro rata places in our capital regulations clause is for a period not to exceed 120 share of losses from the underlying (§ 615.5201(g), which is in the days from the date of transfer. assets; definitions section, and Clean-up calls, an option that permits • Credit derivative contracts under § 615.5210(f)(2)(ii)(A), which is in the a servicer or its affiliate to take investors which the institution assumes more section on computing the permanent out of their positions prior to repayment than its pro rata share of credit risk on capital ratio). We propose to modify the of all loans, are also generally treated as a third-party asset or exposure; definition in § 615.5201(g) by replacing credit enhancements. A clean-up call is • Loans or lines of credit that provide it with the § 615.5210(f)(2)(ii)(A) not recourse or a direct credit substitute credit enhancement for the financial definition of Government-sponsored only if the agreement to repurchase is obligations of a third party; agency, and then delete the redundant limited to 10 percent or less of the • Purchased loan-servicing assets if definition in § 615.5210(f)(2)(ii)(A). This original pool balance. Repurchase of any the servicer is responsible for credit proposed change simply streamlines our loans 30 days or more past due would losses or if the servicer makes or regulations and does not change the invalidate this exemption. assumes credit-enhancing meaning of the term Government- Similarly, a loan-servicing representations and warranties with sponsored agency. arrangement is considered as recourse respect to the loans serviced (servicer Under this proposal, the term or a direct credit substitute if the cash advances are not direct credit ‘‘Government-sponsored agency’’ would institution, as servicer, is responsible for substitutes); and be defined as an agency or credit losses associated with the • Clean-up calls on third-party assets. instrumentality chartered or established serviced loans. However, a cash advance However, clean-up calls that are 10 to serve public purposes specified by made by a servicer to ensure an percent or less of the original pool the United States Congress but whose uninterrupted flow of payments to balance and that are exercisable at the obligations are not explicitly guaranteed investors or the timely collection of the option of the institution are not direct by the full faith and credit of the United loans is specifically excluded from the credit substitutes. States Government. This definition definitions of recourse and direct credit 5. Externally Rated includes Government-sponsored substitute, provided that the servicer is enterprises, such as Fannie Mae and entitled to reimbursement for any The proposal defines externally rated Farmer Mac, as well as Federal agencies, significant advances and this to mean that an instrument or obligation such as the Tennessee Valley Authority, reimbursement is not subordinate to has received a credit rating from at least that issue obligations that are not other claims. To be excluded from one NRSRO. The use of external credit explicitly guaranteed by the United recourse and direct credit substitute ratings provides a way to determine States’ full faith and credit. treatment, an independent credit credit quality relied upon by investors assessment of the likelihood of and other market participants to 9. Nationally Recognized Statistical repayment of the servicer’s cash differentiate the regulatory capital Rating Organization advance should be made prior to treatment for loss positions representing We propose to define NRSRO as a advancing funds, and the institution different gradations of risk. This use rating organization that the Securities should only make such an advance if permits more equitable treatment of and Exchange Commission (SEC) prudent lending standards are met. transactions and structures in recognizes as an NRSRO. This definition
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is identical to the existing definition in incorporates existing practices regarding and Rural Development Act, as § 615.5131(j) of our regulations. retention of risk in asset sales. The other amended (7 U.S.C. 1921 et seq.) by financial regulatory agencies noted that adding a new subtitle H, establishing a 10. Non-OECD Bank third-party enhancements, e.g., new ‘‘Rural Business Investment We propose to define non-OECD bank insurance protection, purchased by the Program.’’ The new subtitle permits FCS as a bank and its branches (foreign and originator of a securitization for the institutions to establish or invest in domestic) organized under the laws of a benefit of investors, do not constitute RBICs, subject to specified limitations. country that does not belong to the recourse. The purchase of While the Secretary of Agriculture is OECD group of countries.28 enhancements for a securitization or responsible for promulgating regulations 11. OECD Bank other structured transaction where the governing RBICs, the FCA continues to institution is completely removed from be responsible for addressing any issues We propose to define OECD bank as any credit risk will not, in most pertaining to FCS institutions’ a bank and its branches (foreign and instances, constitute recourse. However, investments in RBICs, including risk- domestic) organized under the laws of a if the purchase or premium price is paid weighting those investments. We define country that belongs to the OECD group over time and the size of the payment RBICs by referring to the statutory of countries. For purposes of our capital is a function of the third party’s loss definition as codified in 7 U.S.C. regulations, this term would include experience on the portfolio, such an 2009cc(14). That provision defines RBIC U.S. depository institutions. arrangement indicates an assumption of as ‘‘a company that (A) has been granted 12. Permanent Capital credit risk and would be considered final approval by the Secretary [of recourse. Agriculture] * * * and; (B) has entered We propose to add language to clarify into a participation agreement with the that permanent capital is subject to 14. Residual Interest Secretary [of Agriculture].’’ adjustments such as dollar-for-dollar The proposed rule defines residual reduction of capital for residual interest as any on-balance sheet asset 16. Securitization interests or other high-risk assets as that: (1) Represents an interest The proposed rule defines described in proposed § 615.5207. We (including a beneficial interest) created securitization as the pooling and do not propose any other changes. by a transfer that qualifies as a sale (in repackaging by a special purpose entity 13. Recourse accordance with GAAP) of financial or trust of assets or other credit assets, whether through a securitization exposures that can be sold to investors. The proposed rule defines the term or otherwise; and (2) exposes an Securitization includes transactions that ‘‘recourse’’ to mean an arrangement in institution to credit risk directly or create stratified credit risk positions which an institution retains, in form or indirectly associated with the whose performance is dependent upon in substance, any credit risk directly or transferred asset that exceeds a pro rata an underlying pool of credit exposures, indirectly associated with an asset it has share of that institution’s claim on the including loans and commitments. sold (in accordance with GAAP) that asset, whether through subordination exceeds a pro rata share of the provisions or other credit enhancement 17. Other Terms institution’s claim on the asset. If an techniques. We also propose to add definitions for institution has no claim on an asset it Residual interests generally include the following terms: has sold, then the retention of any credit credit-enhancing interest-only strips, • risk is recourse. A recourse obligation Bank spread accounts, cash collateral • Face Amount typically arises when an institution accounts, retained subordinated • Financial Asset transfers assets in a sale and retains an interests (and other forms of • Qualified Residential Loan explicit obligation to repurchase assets overcollateralization), and similar assets • Qualifying Securities Firm or to absorb losses due to a default on that function as a credit enhancement. • Risk Participation the payment of principal or interest or Residual interests generally do not • Servicer Cash Advance any other deficiency in the performance include interests purchased from a third • Traded Position of the underlying obligor or some other party. However, a purchased credit- • U.S. Depository Institution party. Recourse may also exist enhancing interest-only strip is a Finally, we propose to carry over the implicitly if an institution provides residual interest because of its similar remaining existing definitions without credit enhancement beyond any risk profile. substantive change. contractual obligation to support assets This functional based definition it has sold. reflects the fact that financial structures B. Sections 615.5210 and 615.5211— Our proposed definition of recourse is vary in the way they use certain assets Ratings-Based Approach for Positions in consistent with the other regulators’ as credit enhancements. Therefore, Securitizations long-standing use of this term and residual interests include any retained 1. Sections 615.5210 and 615.5211— on-balance sheet asset that functions as General 28 OECD stands for the Organization for Economic a credit enhancement in a securitization Cooperation and Development. The OECD is an As described in the overview section international organization of countries that are or other structured transaction, committed to democratic government and the regardless of its characterization in of this preamble, each loss position in market economy. For purposes of our capital financial or regulatory reports. an asset securitization structure regulations, as well as those of the other financial functions as a credit enhancement for regulatory agencies and the Basel Accord, OECD 15. Rural Business Investment the more senior loss positions in the countries are those countries that are full members Companies of the OECD or that have concluded special lending structure. Historically, neither our risk- arrangements associated with the International The proposed rule adds a definition based capital standards nor those of the Monetary Fund’s General Arrangements to Borrow, for RBICs. Section 6029 of the Farm other financial regulatory agencies excluding any country that has rescheduled its Security and Rural Investment Act of varied the capital requirements for external sovereign debt within the previous 5 years. 29 The OECD currently has 30 member countries. An 2002 amended the Consolidated Farm different credit enhancements or loss up-to-date listing of member countries is available positions to reflect differences in the at www.oecd.org or www.oecdwash.org. 29 Pub. L. 107–171. relative credit risks represented by the
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positions. To address this issue, the approach to all positions in 3. Section 615.5210(b)—Application of other financial regulatory agencies securitizations that are not guaranteed the Ratings-Based Approach implemented a multilevel, ratings-based by the full faith and credit of the United Under proposed § 615.5210, the approach to assess capital requirements States. capital requirement for a position that on recourse obligations, residual Furthermore, the use of credit ratings qualifies for the ratings-based approach interests (except credit-enhancing would provide an objective basis for is computed by multiplying the face interest-only strips), direct credit determining credit quality as relied amount of the position by the substitutes, and senior and subordinated upon by investors or other market appropriate risk weight as determined positions in asset-backed securities and participants. These ratings would then by the position’s external credit rating. mortgage-backed securities based on be used to differentiate the regulatory In the case of unrated positions in their relative exposure to credit risk. capital treatment for loss positions securitizations guaranteed by The approach uses credit ratings from based on different gradations of risk. Government-sponsored agencies NRSROs to measure relative exposure to This approach would enable us to apply beginning 18 months after the effective credit risk and determine the associated the risk-based capital treatment to a date of the final rule, the issuer’s credit risk-based capital requirement. wide variety of transactions and rating will be used to determine the Under this rulemaking, we are structures in a more equitable manner. appropriate risk-weight for the position. proposing to adopt similar Additionally, § 615.5210(f) of the A position that is traded and requirements. These changes would externally rated qualifies for the ratings- bring our regulations into close proposed regulation would grant FCA based approach if its long-term external alignment with those of the other the authority to override the use of rating is one grade below investment financial regulatory agencies for certain ratings or the ratings on certain grade or better (e.g., BB or better) or its externally rated positions in instruments, either on a case-by-case short-term external rating is investment securitizations with similar risks. We basis or through broader supervisory grade or better (e.g., A–3, P–3).31 If the are also proposing to apply a ratings- policy, if necessary or appropriate to position receives more than one external based approach to unrated positions in address the risk that an instrument rating, the lowest rating would apply. Government-sponsored agency poses to FCS institutions. This requirement eliminates the securitizations based on the issuer’s 2. Section 615.5210(b)—Positions that potential for rating shopping. Currently, credit rating beginning 18 months after Qualify for the Ratings-Based Approach the effective date of a final rule. individual securities issued and Currently, the other financial Under § 615.5210(b) of our proposed guaranteed by Government-sponsored regulatory agencies do not apply a rule, certain positions in securitizations agencies generally do not have external ratings-based approach to securities qualify for the ratings-based approach. ratings from NRSROs. If, however, a issued by Government-sponsored These positions in securitizations are position in an agency securitization agencies; these securities are generally eligible for the ratings-based approach, does have an external rating, that rating risk-weighted at 20 percent. The other provided the positions have favorable must be used to determine the financial regulatory agencies do, external ratings (as explained below) by appropriate risk-weighting for the however, apply the ratings-based at least one NRSRO. Eighteen months position. A position that is externally rated but approach to rated positions in privately after the effective date of the final rule, not traded qualifies for the ratings-based issued mortgage securities (e.g. the ratings based approach will be approach if it satisfies the following collateralized mortgage obligations and implemented for unrated positions in criteria: real estate investment conduits) that are securitizations that are guaranteed by • It must be externally rated by more backed by agency mortgage pass- Government-sponsored agencies based through securities. Further, the other than one NRSRO; on the issuer credit rating of the agency. • Its long-term external rating must be financial regulatory agencies uniformly During the transition period before this one grade below investment grade or risk-weight stripped mortgage backed provision is effective, FCS institutions securities issued by Government- better (e.g., BB or better) or its short- may continue to risk-weight their term external rating must be investment sponsored agencies at 100 percent unrated positions in securitizations that because of their higher risk assessment. grade or better (e.g., A–3, P–3). If the are guaranteed by Government- position receives more than one external Additionally, the other financial sponsored agencies at 20-percent, regulatory agencies reserve the authority rating, the lowest rating would apply; regardless of whether the agency • The ratings must be publicly to require a higher risk weighting on any maintains an issuer rating by an available; and position (including positions in NRSRO. • The ratings must be based on the Government-sponsored agency More specifically, the following same criteria used to rate traded securitizations) based on the underlying positions in securitizations qualify for positions. risks of the position. The proposed rule also specifically The market has historically regarded the ratings-based approach if they provides that an unrated position that is securities issued by Government- satisfy the criteria set forth below: guaranteed by a Government-sponsored sponsored agencies as posing minimal • Recourse obligations; agency would qualify for the ratings- credit risk. However, we are concerned • Direct credit substitutes; based approach based on the that subordinated positions, residual • Residual interests (other than Government-sponsored agency’s issuer interests, or exposures to counterparties 30 credit-enhancing interest-only strips); credit rating beginning 18 months after (including Government-sponsored and the effective date of the final rule. agencies) that are not highly rated or are • Asset- and mortgage-backed Under the ratings-based approach, the unrated may pose significant risks to securities. capital requirement for a position that FCS institutions. We are also concerned qualifies for the ratings-based approach about the unique structural and 30 We propose to exclude credit-enhancing operational risks that securitizations interest-only strips from the ratings-based approach 31 These ratings are examples only. Different may present. Therefore, we believe it is because of their high-risk profile, as discussed NRSROs may have different ratings for the same appropriate to apply the ratings-based under section V.C.1. of this preamble. grade.
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is computed by multiplying the face appropriate risk weight determined in amount of the position by the accordance with the following tables: 32
RISK-BASED CAPITAL REQUIREMENTS FOR LONG-TERM ISSUE OR ISSUER RATINGS
33 Risk weight Rating category Rating examples (in percent)
Highest or second highest investment grade ...... AAA or AA ...... 20. Third highest investment grade ...... A ...... 50. Lowest investment grade ...... BBB ...... 100. One category below investment grade ...... BB ...... 200. More than one category below investment grade, or unrated ...... B or below or Unrated ...... Not eligible for the ratings-based approach.
RISK-BASED CAPITAL REQUIREMENTS FOR SHORT-TERM ISSUE RATINGS
Risk weight Short-term rating category Rating examples (in percent)
Highest investment grade ...... A–1, P–1 ...... 20. Second highest investment grade ...... A–2, P–2 ...... 50. Lowest investment grade ...... A–3, P–3 ...... 100. Below investment grade, or unrated ...... B or lower (Not Prime) ...... Not eligible for the ratings—based approach.
The charts for long-term and short- that are one grade below investment extremely high. They are generally term ratings are not identical because grade or lower (e.g., B or lower, Not subordinated to all other positions, and rating agencies use different Prime).35 these assets are subject to valuation methodologies. Each short-term rating We emphasize that credit-enhancing concerns that might lead to loss as category covers a range of longer-term positions in securitizations of explained further below. Additionally, rating categories. For example, a P–1 Government-sponsored agencies are the lack of an active market makes these rating could map to a long-term rating subject to the same capital treatment as assets difficult to independently value as high as Aaa or as low as A3. positions in non-agency securitizations and relatively illiquid. These proposed amendments would with similar risk profiles. For example, In particular, there are a number of not change the risk-weight requirement if an FCS institution retains or concerns regarding residual interests. A that FCA recently adopted for eligible purchases an unrated subordinated banking organization can asset- and mortgage-backed securities interest in a Government-sponsored inappropriately generate ‘‘paper profits’’ that continue to be highly rated.34 These agency securitization that provides a (or mask actual losses) through incorrect amendments simply make our rule credit enhancement for the entire pool cash flow modeling, flawed loss language more consistent with that used of loans in the securitization, then the assumptions, inaccurate prepayment by the other financial regulatory FCS institution must hold capital dollar- estimates, and inappropriate discount agencies for these types of transactions. for-dollar for the amount of that rates. Such practices often lead to an inflation of capital, falsely making the C. Section 615.5210(c)—Treatment of position. banking organization appear more Positions in Securitizations That Do Not Under the dollar-for-dollar treatment, financially sound. Also, embedded Qualify for the Ratings-Based Approach an FCS institution must deduct from capital and assets the face amount of the within residual interests, including 1. Section 615.5210(c)(1), (c)(2), and position. This means, in effect, one credit-enhancing interest-only strips, is (c)(3)—Positions Subject to Dollar-for- dollar in total capital must be held a significant level of credit and Dollar Capital Treatment against every dollar held in these prepayment risk that make their We propose to subject certain positions, even if this capital valuation extremely sensitive to changes positions in asset securitizations that do requirement exceeds the full risk-based in underlying assumptions. For these not qualify for the ratings-based capital charge. reasons we, like the other financial approach to dollar-for-dollar capital We propose the dollar-for-dollar regulatory agencies, concluded that a treatment. These positions include: treatment for the credit-enhancing and higher capital requirement is warranted • Residual interests that are not highly subordinated positions listed for unrated residual interests and all externally rated; above because these positions raise a credit-enhancing interest-only strips. • Credit-enhancing interest-only number of supervisory concerns that the Furthermore, the ‘‘low-level exposure strips; and other financial regulatory agencies also rule,’’ discussed below, does not apply • Positions that have long-term share.36 The level of credit risk exposure to these positions in securitizations. For external ratings that are two grades associated with deeply subordinated example, if an FCS institution holds a below investment grade or lower (e.g., B assets, particularly subinvestment grade 10-percent residual interest that is not or lower) or short-term external ratings and unrated residual interests, is externally rated in a $100 million
32 See paragraphs (b)(14), (c)(3), (d)(6), and (e) of a plus or minus sign to show relative standing 34 See 68 FR 15045, March 24, 2003. proposed § 615.5211. within a major rating category. Under the proposed 35 See paragraphs (c)(1), (c)(2), and (c)(3) of 33 These ratings are examples only. Different rule, ratings refer to the major rating category proposed § 615.5210. without regard to modifiers. For example, an NRSROs may have different ratings for the same 36 investment with a long-term rating of ‘‘A-’’ would See 66 FR 59614 (November 29, 2001). grade. Further, ratings are often modified by either be risk weighted at 50 percent.
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securitization, its capital charge would substitutes that can be assumed through 3. Sections 615.5210(c)(5) and be $10 million. If an FCS institution either on- or off-balance sheet credit 615.5211(d)(7)—Stripped Mortgage- purchases a $25 million position in an exposures that are not externally rated. Backed Securities (SMBS) ABS that is subsequently downgraded to Under § 615.5210(c)(4) of this proposal, Under proposed §§ 615.5210(c)(5) and B or lower, its capital charge would be FCS institutions would be required to 615.5211(d)(7), SMBS and similar $25 million, the full amount of the hold capital against the entire instruments, such as interest-only strips position. outstanding amount of assets supported that are not credit-enhancing or We note that the final rules adopted (e.g., all more senior positions) by an principal-only strips (including such by the other financial regulatory on-balance recourse obligation or direct instruments guaranteed by Government- agencies impose both a dollar-for-dollar credit substitute that is unrated. This sponsored agencies), are assigned to the risk weighting for residual interests that treatment parallels our approach for off- 100-percent risk-weight category. Even do not qualify for the ratings-based balance sheet recourse obligations and if highly rated, these securities do not approach and a concentration limit on direct credit substitutes, as discussed receive the more favorable capital a subset of those residual interests— later under the computation of credit treatment available to other mortgage credit-enhancing interest-only strips— equivalent amounts. For example, if an securities because of their higher market for the purpose of calculating a bank’s risk profile. Typically, SMBS contain a leverage ratio. Under their combined FCS institution retains an on-balance sheet first-loss position through a higher degree of price volatility approach, credit-enhancing interest- associated with mortgage prepayments. only strips are limited to 25 percent of recourse arrangement or direct credit substitute in a pool of rural housing As indicated previously, credit- a banking organization’s Tier 1 capital. enhancing positions in securitization Everything above that amount is loans that qualify for a 50-percent risk weight, the FCS institution would are subject to dollar-for-dollar capital deducted from Tier 1 capital. Generally, treatment. under the other financial regulatory include the full amount of the assets in agencies’ rules, all other residual the pool, risk-weighted at 50 percent, in 4. Section 615.5211(d)—Unrated interests that do not qualify for the its risk-weighted assets for purposes of Positions in Asset-Backed Securities ratings-based approach (including any determining its risk-based capital ratios. and Mortgage-Backed Securities 38 credit-enhancing interest-only strips The low-level exposure rule provides Unrated positions in mortgage- and that were not deducted from Tier 1 that the dollar amount of risk-based asset-backed securities that do not capital) are subject to a dollar-for-dollar capital required for assets transferred qualify for the ratings-based approach risk weighting. The combined capital with recourse should not exceed the would generally be assigned to the 100- charge is limited to the face amount of maximum dollar amount for which an percent risk-weight category under the a banking organization’s residual FCS institution is contractually liable. proposal. This would include unrated interests. The other financial regulatory positions in securitizations guaranteed As indicated previously, we are agencies currently permit their banking by Government-sponsored agencies proposing a one-step approach for these without issuer credit ratings beginning positions in securitizations. This would organizations to use three alternative approaches (i.e., internal ratings, 18 months after the effective date of the require FCS institutions to deduct from final rule. capital and assets the face amount of program ratings, and computer programs) for determining the capital The FCA recognizes that the proposed their position. The resulting total capital risk-based capital requirements can requirements for certain unrated direct charge is virtually the same under both provide a more favorable treatment for credit substitutes and recourse approaches. However, we found that the certain unrated positions in obligations in asset-backed commercial one-step approach is easier to apply to securitizations than those rated below FCS institutions because the way they paper programs. The other financial investment grade. For this reason, FCA compute their regulatory capital regulatory agencies also recently issued will look to the substance of the standards differs from the way other an interim final rule and a proposed transaction to determine whether a banking organizations compute their rule on the capital treatment for asset- higher capital requirement is warranted standards. backed commercial paper programs that based on the risk characteristics of the 2. Section 615.5210(c)(4)—Unrated are consolidated onto the balance sheets position. Additionally, because of the Recourse Obligations and Direct Credit of the sponsoring banks. This change is many advantages, including pricing, Substitutes the result of a recently issued liquidity, and favorable capital accounting interpretation, Financial treatment on highly rated positions in As discussed in the definitions Accounting Standards Board asset securitizations, we believe this section, the contractual retention of Interpretation No. 46, Consolidation of overall regulatory approach provides credit risk by an FCS institution Variable Interest Entities.39 At this time, ample incentives for all participants to associated with assets it has sold the FCA has decided not to address the obtain external ratings. generally constitutes recourse.37 The capital requirements for asset-backed definitions of recourse and direct credit D. Section 615.5210(d)—Senior commercial paper programs due to the substitute complement each other, and Positions Not Externally Rated limited involvement FCS institutions there are many types of recourse For senior positions not externally arrangements and direct credit presently have in these programs. FCA will continue to determine the capital rated, the following capital treatment applies under proposed § 615.5210(d). If 37 requirements for such programs on a As previously discussed, the proposed rule an FCS institution retains an unrated defines the term ‘‘recourse’’ to mean an case-by-case basis, but does request position that is senior or preferred in all arrangement in which an institution retains, in form further comment on the appropriate or in substance, any credit risk directly or indirectly respects (including collateral and capital treatment for these activities. associated with an asset it has sold, if the credit risk maturity) to a rated position that is exceeds a pro rata share of the institution’s claim on the asset. If an institution has no claim on an traded, the position is treated as if it had asset that it has sold, then the retention of any 38 See proposed § 615.5210(e). the same rating assigned to the rated credit risk is recourse. 39 See 68 FR 56530 (October 1, 2003). position. These senior unrated positions
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qualify for the risk weighting of the portions of claims guaranteed by, examination of the unique features of subordinated rated positions as long as Government-sponsored agencies are these transactions will help create the the subordinate rated position is: (1) generally assigned to the 20-percent appropriate incentives for FCS Traded; and (2) remains outstanding for risk-weight category.40 For example, institutions to carefully select their the entire life of the unrated position, this risk-based capital treatment applies counterparties and fully understand the thus providing full credit support for to investments in debt securities or risks transferred, retained, or assumed the term of the unrated position. other similar obligations issued by through these arrangements. FCS agencies. Beginning eighteen months E. Section 615.5210(e)—Low-Level institutions should also take appropriate after the effective date of the final rule, Exposure Rule measures to manage additional this provision would exclude, positions Section 615.5210(e) of the proposed operational risks that may be created by in securitizations guaranteed by these arrangements. FCS institutions rule limits the maximum risk-based Government-sponsored agencies, such should thoroughly review and capital requirement to the lesser of the as asset- and mortgage-backed understand all the legal definitions and maximum contractual exposure or the securities, which we have already full capital charge against the discussed, and claims on Government- parameters of these instruments, outstanding amount of assets transferred sponsored agencies that are described in including credit events that constitute with recourse. When the proposed low- the next section of this preamble. default, as well as representations and level exposure rule applies, an warranties, to determine how well the institution would generally hold capital 2. Sections 615.5211(b)(7), (c)(4) and contract will perform under a variety of dollar-for-dollar against the amount of (d)(11)—Treatment of Assets Covered by economic conditions. Credit Protection Provided by its maximum contractual exposure. We believe it is appropriate to Thus, if the maximum contractual Government-Sponsored Agencies and differentiate the capital requirements for exposure to loss retained or assumed in OECD Banks these types of arrangements based on an connection with recourse obligation or a This proposal addresses the risk- direct credit substitute is less than the assessment of the risks retained, based capital treatment for assets transferred to investors or other third full risk-based capital requirement for covered by credit protection provided parties, or assumed in the form of the assets enhanced, the risk-based by Government-sponsored agencies and counterparty risk. Thus, we are capital requirement is limited to the OECD banks. maximum contractual exposure. FCS institutions use a variety of credit proposing to implement a ratings-based In the absence of any other recourse risk mitigation strategies to alter their approach for assigning capital provisions, the on-balance sheet amount risk profiles. Credit protection may be requirements to assets covered by credit of assets retained or assumed in obtained through credit default swaps, protection arrangements, including connection with a recourse obligation or loss purchase commitments, guarantees, credit derivatives (e.g., credit default direct credit substitute represents the and other similar arrangements. These swaps), loss purchase commitments, maximum contractual exposure. For transactions or arrangements often guarantees and other similar example, assume that $100 million of contain a number of structural arrangements.41 loans is sold and securitized and an FCS complexities and may impose The implementation of this provision institution provides a $5 million credit additional operational and counterparty beginning 18 months after the effective enhancement through a recourse risk on FCS institutions that use these obligation. Instead of holding 7 percent date of the final rule will allow FCS arrangements. In an Informational institutions to assess their current risk or $7 million of capital, the low-level Memorandum dated October 23, 2003, exposure limits the risk-based mitigation techniques, counterparty risk the agency specifically informed FCS exposures, and long-term capital requirement to the $5 million maximum institutions of its concerns regarding adequacy objectives and make any contractual loss exposure, with $5 excessive risk exposure to single adjustments that are necessary. million held dollar-for-dollar against counterparties and suggested that FCS capital. institution boards consider engaging in The following table indicates the risk F. Section 615.5211—Risk Categories— business transactions only with weightings for assets covered by credit Balance Sheet Assets counterparties rated in one of the two protection or guarantees based on the highest rating categories by an NRSRO. provider’s credit rating when this 1. Section 615.5211(b)(6)—Securities We believe FCS institutions should provision becomes effective. and Other Claims on, and Portions of enter into these types of financial Claims, Guaranteed by Government- arrangements only with sophisticated Sponsored Agencies entities that are financially strong and Under proposed § 615.5211(b)(6), well capitalized. We believe a ratings- securities and other claims on, and based approach coupled with a close
42 BBB or below Credit Protection Provider Credit Rating AAA to AA A or unrated
Risk weight of assets covered (in percent) ...... 20 50 100
During the transition period, FCS institutions may continue to risk weight
40 Assets in this category include, for example, 41 As under our existing regulations, all other bank’s rating or lack thereof. See proposed asset- or mortgage-backed securities that are issued claims on OECD banks will continue to be risk- § 615.5211(b)(6). or guaranteed by Government-sponsored agencies. weighted at 20 percent regardless of the OECD 42 These ratings are examples only. Different NRSROs may have different ratings for the same Continued
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assets covered by credit protection the first loss position plus the capital proposal aims to level the playing field contracts with OECD banks and charge for the remaining assets or the among OECD banks, Government- Government-sponsored agencies at 20 full capital charge (e.g., 7 percent) for all sponsored agencies and securities firms percent. After the transition period the assets covered by the arrangement. (that meet certain qualifying standards) ends, FCS institutions may only risk- For example, if an FCS institution that provide guarantees. weight loan assets (or portions of assets) retains a 2-percent first loss position in Specifically, we propose to adopt a 0- covered by these arrangements at 20 $100 of loan assets covered by a percent risk weight for claims on, or percent provided the Government- guarantee from an OECD bank rated guaranteed by, qualifying securities sponsored agency or OECD bank ‘‘A,’’ the FCS institution’s combined firms that are collateralized by cash on providing the credit protection capital charge for all the assets would be deposit in the institution or by maintains an issuer credit rating in one $2 for the first loss position plus $98 securities issued or guaranteed by the of the two highest investment grade risk weighted at 50 percent multiplied United States or OECD central ratings from at least one NRSRO (if the by 7 percent, or $5.43. governments, provided that a positive credit protection provider is rated by As noted previously, we believe the margin of collateral is required to be more than one NRSRO the lowest rating use of credit ratings provides an maintained on such a claim on a daily applies).43 If the credit protection objective basis for determining credit basis, taking into account any change in provider is rated in the third investment risk as relied upon by investors or other the institution’s exposure to the obligor grade category (e.g., ‘‘A’’) by an NRSRO, market participants. We believe this or counterparty under the claim in a 50-percent risk weight will apply to approach results in a more equitable relation to the market value of the the assets covered by the contract. If the treatment for all types of credit collateral held in support of the claim.47 credit protection provider is rated in the protection providers under our capital We also propose to reduce from 100 lowest investment grade category or rules. Furthermore, this allows FCA to percent to 20 percent the risk weighting below, or is not rated, a 100-percent risk differentiate capital requirements based applied to all other claims on and weight will apply to the assets covered on an FCS institution’s relative claims guaranteed by qualifying by the contract.44 exposure to risk. Because the nature and securities firms that satisfy specified Additionally, FCS institutions may structure of such arrangements may vary external rating requirements.48 recognize the credit protection in significantly, FCA reserves the authority Specifically, we propose to adopt a 20- calculating their capital requirements to evaluate each arrangement percent risk weighting for all claims on only if the guarantee, credit derivative, individually and to make an appropriate and claims guaranteed by a qualifying or agreement represents a direct claim capital determination as circumstances securities firm that has a long-term on the protection provider and it may warrant. issuer credit rating in one of the two explicitly references specific assets. The The other financial regulatory highest investment-grade rating agreement must also have legal certainty agencies have not yet implemented the categories from an NRSRO, or if the and be irrevocable and unconditional ratings-based approach suggested under claim is guaranteed by the qualifying (there should be no clause in the the Basel II proposal for claims on, or securities firm’s parent company with contract that allows the protection 49 guarantees by, OECD banks or such a rating. provider to unilaterally cancel the credit Government-sponsored agencies. The We note that this ratings criteria is coverage, and there should be no clause methodology that we propose to apply consistent with our proposed criteria for that prevents the protection provider to certain guarantee/credit derivative obtaining a 20-percent risk weight on from being obligated to pay out in a arrangements is a limited application of assets covered by certain credit timely manner). FCS institutions must the ratings-based approach proposed protection arrangements with also satisfy the FCA that they have under Basel II for individual claims on Government-sponsored agencies and established appropriate controls to and guarantees by banks (i.e., OECD banks described above. This manage any additional operational risks Standardized Approach).45 As proposal applies a higher rating that might be associated with such previously noted, at this time we are standard to securities firms than the arrangements. other financial regulatory agencies In situations where an FCS institution continuing to evaluate Basel II and may propose additional amendments to more adopted to ensure consistency assumes a first loss position on loan throughout our rules. Otherwise, the assets covered by credit protection fully implement a ratings-based approach for other types of claims on or potential for capital arbitrage would contracts, the FCS institution must hold exist when securities firms provide capital on a dollar-for-dollar basis to guarantees by financial institutions through a future rulemaking. guarantees or credit protection through support its first loss position. The structured transactions and agreements. remaining balance covered by the 3. Section 615.5211(a)(5), (b)(15), and If we did not apply the higher standard contract may be risk weighted based on (b)(16)—Treatment of Claims on to securities firms, an institution could the guarantor’s or counterparty’s credit Qualifying Securities Firms receive a more favorable capital rating as explained above. Under the We are adding claims on qualifying treatment by obtaining credit protection proposal, an FCS institution’s risk-based from a securities firm than a capital requirement is limited to the securities firms to the current risk-based capital requirements.46 In doing so, our Government-sponsored agency or OECD maximum dollar amount for which an bank, even when the underlying risk FCS institution is contractually liable on 45 See The New Basel Capital Accord Consultative was the same. To avoid this result, we Document, Basel Committee on Banking have crafted the regulations so that the grade. Further, ratings are often modified by either Supervision, April 2003. a plus or minus sign to show relative standing 46 Under proposed § 615.5201, ‘‘qualifying within a major rating category. Under the proposed securities firm’’ means: (1) A securities firm imposed on depository institutions in OECD rule, ratings refer to the major rating category incorporated in the United States that is a broker- countries. without regard to modifiers. For example, an dealer that is registered with the SEC and that 47 Proposed § 615.5211(a)(5). investment with a long-term rating of ‘‘A-’’ would complies with the SEC’s net capital regulations; and 48 Proposed § 615.5211(b)(15). be risk weighted at 50 percent. (2) a securities firm incorporated in any other 49 If ratings are available from more than one 43 See proposed § 615.5211(b)(7). OECD-based country, if the institution is subject to NRSRO, the lowest rating will be used to determine 44 See proposed § 615.5211(c)(4). supervision and regulation comparable to that whether the rating standard has been met.
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capital treatment is commensurate with rancher, or producer or harvester of investments that can receive the 100- the underlying risks. aquatic products.52 A qualified percent risk weight because a System Finally, we propose a 20-percent risk residential loan must be secured by a institution is precluded by statute from weight for certain collateralized claims first lien mortgage or deed of trust, must making an investment in a RBIC in on qualifying securities firms without have been approved in accordance with excess of 5 percent of the capital and regard to satisfaction of the rating prudent underwriting standards, must surplus of the institution.56 This standard, provided the claim arises not be past due 90 days or more or statutory limitation imposes adequate under a contract that: carried in nonaccrual status, and must controls on risk from these investments. • Is a reverse repurchase/repurchase have a monthly amortization schedule. G. Section 615.5212(b)(4)(i)— agreement or securities lending/ In addition, the secured residence and Computation of Credit-Equivalent borrowing transaction executed under residential site must have a deed Amounts for Direct Credit Substitutes standard industry documentation; separate from other adjoining land and and Recourse Obligations • Is collateralized by liquid and a permanent right-of-way access. readily marketable debt or equity We propose this change because we We propose to modify our current securities; believe that all residential loans that methodology for determining the credit • Is marked-to-market daily; meet the standards set forth in the equivalent amount of off-balance sheet • Is subject to a daily margin definition of qualified residential loan, direct credit substitutes and propose to maintenance requirement under the whether made to farmers, ranchers, or add a similar provision for recourse standard documentation; and aquatic producers or harvesters or not, obligations. Under the proposal, the • Can be liquidated, terminated, or pose the same level of risk. This view credit equivalent amount for a direct accelerated immediately in bankruptcy is consistent with that of the other credit substitute or recourse obligation or similar proceeding, and the security financial regulatory agencies. Under is the full amount of the credit- or collateral agreement will not be their rules, a loan that is fully secured enhanced assets for which an institution stayed or voided, under applicable law by a first lien on a one- to four-family directly or indirectly retains or assumes of the relevant country.50 residential property is assigned to the credit risk multiplied by a 100-percent 50-percent risk-weight category as long conversion factor.57 To determine the 4. Section 615.5211(c)(2)—Treatment of as the loan has been approved in institution’s risk-weighted assets for an Qualified Residential Loans accordance with prudent underwriting off-balance sheet recourse obligation or Existing § 613.3030 authorizes System standards and is not past due 90 days a direct credit substitute, the credit institutions to provide financing to rural or more or carried in nonaccrual equivalent amount is assigned to the homeowners for the purpose of buying, status.53 The other financial regulatory risk weight category appropriate to the remodeling, improving, and repairing agencies do not distinguish whether obligor in the underlying transaction, rural homes. ‘‘Rural homeowner’’ is such a loan is made to a farmer or a non- after considering any associated defined as an individual who resides in farmer. guarantees or collateral. a rural area and is not a bona fide Consistent with the position of the The proposal eliminates the current farmer, rancher, or producer or other financial regulatory agencies, any anomalies between direct credit harvester of aquatic products. ‘‘Rural residential loan that does not meet the substitutes and recourse arrangements home’’ means a single-family definition of a qualified residential loan that expose an institution to the same moderately priced dwelling located in a would be assigned to the 100-percent amount of risk but different capital rural area that will be owned and risk-weight category. requirements. These changes would also occupied as the rural homeowner’s 5. Section 615.5211(d)(8)—Treatment of provide consistent risk-based capital principal residence. ‘‘Rural area’’ means Investments in Rural Business treatment for positions with similar risk open country within a state or the Investment Companies exposures regardless of whether they are Commonwealth of Puerto Rico, which structured as on- or off-balance sheet may include a town or village that has As previously discussed, the Farm transactions. For example, as noted a population of not more than 2,500 Security and Rural Investment Act (Pub. previously, for a direct credit substitute persons. Existing § 615.5210(f)(2)(iii)(B) L. 107–171) recently amended the that is an on-balance sheet asset, e.g., a assigns these rural home loans, Consolidated Farm and Rural purchased subordinated security, an provided they are secured by first lien Development Act, 7 U.S.C. 1921 et seq., institution must also calculate risk- mortgages or deeds of trust, to the 50- to permit FCS institutions to establish or weighted assets using the amount of the percent risk-weight category. However, invest in RBICs subject to certain direct credit substitute and the full residential loans to bona fide farmers, limitations. A RBIC has a similar amount of the assets it supports, ranchers, and producers and harvesters mission and objectives to serve rural meaning all the more senior positions in of aquatic products are currently entrepreneurs as a SBIC does to serve the structure. This is another change considered to be agricultural loans and qualifying small businesses. Currently, necessary to make our rules consistent are risk-weighted at 100 percent under the other financial regulatory agencies with the current rules established by the risk-weight investments in SBICs at 100 § 615.5210(f)(2)(iv). other financial regulatory agencies. Proposed § 615.5211(c)(2) would percent and deduct from capital an H. Section 615.5210(f)—Reservation of assign a 50-percent risk weight to all escalating percentage of SBIC Authority qualified residential loans, as defined in investments that exceed 15 percent of capital.54 FCA proposes to risk-weight proposed § 615.5201. To be a qualified Financial institutions are developing RBICs at 100 percent.55 FCA is not residential loan, a loan must be either: novel transactions that do not fit into proposing to limit the amount of RBIC (i) A rural home loan, as authorized by conventional risk-weight categories or § 613.3030,51 or (ii) a single-family credit conversion factors in the current 52 As discussed above, these loans currently standards. Financial institutions are also residential loan to a bona fide farmer, receive a 100-percent risk weighting. 53 See, e.g., FDIC regulations at 12 CFR Part 325, devising novel instruments that 50 See proposed § 615.5211(b)(16). Appendix A, II.C., Category 3. 51 As discussed above, these loans are currently 54 See 67 FR 3784, January 25, 2002. 56 7 U.S.C. 2009cc–9(b). included in the 50-percent risk-weight category. 55 See proposed § 615.5211(d)(8). 57 See proposed § 615.5212(b)(4)(i).
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nominally fit into a particular category, institution has liabilities booked in that revenue from the specific projects but impose levels of risk on the currency (§ 615.5211(a)(4)). We also financed.68 We are making these financial institutions that are not propose to revise the language in revisions to further distinguish the commensurate with the risk-weight §§ 615.5211(a)(1), 615.5211(a)(2), and varying degrees of risk associated with category for the asset, exposure or 615.5211(a)(3).59 Finally, we propose to investments in different types of instrument. Accordingly, § 615.5210(f) delete existing § 615.5210(f)(2)(i)(C), revenue bonds. This change also of the proposed rule more explicitly which puts goodwill in the 0-percent parallels the rules of the other financial indicates that FCA, on a case-by-case category. Proposed § 615.5207(g) (which regulatory agencies. We also propose to basis, may determine the appropriate we propose to carry over without make plain language changes to risk weight for any asset or credit substantive change from existing § 615.5211(c)(1).69 equivalent amount and the appropriate § 615.5210(e)(7)) provides that an 4. Section 615.5211(d)—100-Percent credit conversion factor for any off- institution must deduct from total Category balance sheet item in these capital an amount equal to all goodwill circumstances. Exercise of this authority before it assigns assets to the risk- The existing 100-percent risk-weight may result in a higher or lower risk weighting categories. Thus, it is category lists only four assets, including weight or credit equivalent amount for unnecessary to assign goodwill to a risk- a catch-all: All other assets not specified these assets or off-balance sheet items. weighting category. in the other risk-weight categories, This reservation of authority explicitly including, but not limited to, leases, 2. Section 615.5211(b)—20-Percent recognizes the retention of sufficient fixed assets, and receivables. Consistent Category discretion to ensure that novel financial with the other financial regulatory assets, exposures, and instruments will We propose to reorganize the order of agencies, and to provide clearer be treated appropriately under the the assets listed in the 20-percent risk- guidance, we propose to itemize many regulatory capital standards. weight category.60 We propose to add of the assets that are currently included the following assets in addition to the within the catch-all, including: VI. Other Changes changes previously discussed: • • Claims on, or portions of claims In addition to the changes detailed Portions of loans and other claims guaranteed by, non-OECD central above, we also propose to make a collateralized by cash on deposit governments (except such claims that number of other changes. We propose (§ 615.5211(b)(9)); • are included in other risk-weighting most of these changes for clarity or plain Portions of claims collateralized by categories), and all claims on non-OECD language purposes or to eliminate securities issued by official state and local governments obsolete references. These changes are multinational lending institutions or (§ 615.5211(d)(3)); regional development institutions in described below. • Industrial development bonds and which the United States Government is similar obligations issued under the A. Section 615.5211—Changes to Listing a shareholder or contributing member auspices of states or political of Balance Sheet Assets (§ 615.5211(b)(12)); and subdivisions of the OECD-based group We propose to clarify the listing of • Investments in shares of mutual of countries for the benefit of a private balance sheet assets identified in each funds whose portfolios are permitted to party or enterprise where that party or risk-weight category in proposed hold only assets that qualify for the zero enterprise, not the government entity, is § 615.5211 to more closely align the or 20-percent risk-weight categories obligated to pay the principal and regulatory language with our long- (§ 615.5211(b)(13)). We propose to revise the language in interest (§ 615.5211(d)(4)); standing policy positions. This new • regulatory language also mirrors the § 615.5211(b)(3),61 (b)(4),62 (b)(5),63 Premises, plant, and equipment; language used by the other financial (b)(6),64 (b)(8),65 (b)(10),66 and (b)(11)67 other fixed assets; and other real estate to make them easier to read. owned (§ 615.5211(d)(5)). regulatory agencies to the extent • applicable to System institutions. Over If they have not already been 3. Section 615.5211(c)—50-Percent deducted from capital, investments in the years, we have interpreted our risk- Category weighting categories consistently with unconsolidated companies, joint the other financial regulatory agencies. In the 50-percent risk-weight category, ventures, or associated companies; In some instances, however, the listing we propose to add a listing for revenue deferred-tax assets; and servicing assets of assets included in each category is bonds or similar obligations, including (§ 615.5211(d)(9)); and • not as specific or clear as that of the loans and leases, that are obligations of All other assets not specified, other financial regulatory agencies. We a state or political subdivisions of the including, but not limited to, leases and propose these amendments for the United States or other OECD countries receivables (§ 615.5211(d)(12)). but for which the government entity is purpose of clarity and consistency with B. Other Nonsubstantive Changes the other financial regulatory agencies. committed to repay the debt only out of We propose to change the heading of 1. Section 615.5211(a)—0-Percent 59 See existing § 615.5210(f)(2)(i)(A), (f)(2)(i)(B), § 615.5200 from ‘‘General’’ to ‘‘Capital Category and (f)(2)(i)(C). planning’’ to better reflect the content of 60 Except where otherwise indicated, all We propose to reorganize the order of references are to the proposed regulation. this section. We do not propose any the assets listed in the 0-percent risk- 61 Consolidated from existing other changes to this section. weight category.58 We propose to add a § 615.5210(f)(2)(ii)(D) and (f)(2)(ii)(E). We propose to break up § 615.5210, listing for portions of local currency 62 Existing § 615.5210(f)(2)(ii)(F). which is cumbersome to use because of claims on, or unconditionally 63 Consolidated from existing its length, into seven separate regulatory guaranteed by, non-OECD central § 615.4210(f)(2)(ii)(B) and (f)(2)(ii)(J). sections. The newly redesignated 64 This provision is not contained in current FCA governments (including non-OECD regulations. sections are: central banks), to the extent the 65 Consolidated from existing § 615.5210(f)(2)(ii)(A) and (f)(2)(ii)(C). 68 Proposed § 615.5211(c)(5). This provision is not 58 Except where otherwise indicated, all 66 See existing § 615.5210(f)(2)(ii)(G). contained in current FCA regulations. references are to the proposed regulation. 67 See existing § 615.5210(f)(2)(ii)(H). 69 See existing § 615.5210(f)(2)(iii)(A).
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• § 615.5206—Permanent capital ratio 12 CFR Part 620 PART 615—FUNDING AND FISCAL computation AFFAIRS, LOAN POLICIES AND Accounting, Agriculture, Banks, • § 615.5207—Capital adjustments OPERATIONS, AND FUNDING banking, Reporting and recordkeeping and associated reductions to assets OPERATIONS requirements, Rural areas. • § 615.5208—Allotment of allocated 5. The authority citation for part 615 investments For the reasons stated in the continues to read as follows: • preamble, we propose to amend parts § 615.5209—Deferred-tax assets Authority: Secs. 1.5, 1.7, 1.10, 1.11, 1.12, • 607, 614, 615, and 620 of chapter VI, § 615.5210—Risk-adjusted assets title 12 of the Code of Federal 2.2, 2.3, 2.4, 2.5, 2.12, 3.1, 3.7, 3.11, 3.25, 4.3, • 4.3A, 4.9, 4.14B, 4.25, 5.9, 5.17, 6.20, 6.26, § 615.5211—Risk categories— Regulations as follows: balance sheet assets 8.0, 8.3, 8.4, 8.6, 8.7, 8.8, 8.10, 8.12 of the • PART 607—ASSESSMENT AND Farm Credit Act (12 U.S.C. 2013, 2015, 2018, § 615.5212—Credit conversion 2019, 2020, 2073, 2074, 2075, 2076, 2093, factors—off-balance sheet items APPORTIONMENT OF 2122, 2128, 2132, 2146, 2154, 2154a, 2160, ADMINISTRATIVE EXPENSES This reorganization should make these 2202b, 2211, 2243, 2252, 2278b, 2278b–6, provisions easier to use. We do not 2279aa, 2279aa–3, 2279aa–4, 2279aa–6, 1. The authority citation for part 607 2279aa–7, 2279aa–8, 2279aa–10, 2279aa–12); intend any substantive changes with continues to read as follows: sec. 301(a) of Pub. L. 100–233, 101 Stat. 1568, this reorganization. 1608. We propose to delete an obsolete Authority: Secs. 5.15, 5.17 of the Farm Credit Act (12 U.S.C. 2250, 2252) and 12 Subpart H—Capital Adequacy reference to the Farm Credit System U.S.C. 3025. Financial Assistance Corporation in 6. Revise the heading of § 615.5200 to § 615.5201. § 607.2 [Amended] read as follows: We propose to add paragraph (k) to 2. Amend § 607.2(b) introductory text § 615.5200 Capital planning. newly redesignated § 615.5207 for by removing the reference clarity. ‘‘§ 615.5210(f)’’ and adding in its place * * * * * We propose to make minor, ‘‘§ 615.5210.’’ 7. Revise § 615.5201 to read as nonsubstantive, plain language, and follows: organizational changes throughout the PART 614—LOAN POLICIES AND § 615.5201 Definitions. revised regulation. OPERATIONS For the purpose of this subpart, the Because we propose to reorganize this following definitions apply: regulation, references to the regulation 3. The authority citation for part 614 continues to read as follows: Allocated investment means earnings in other FCA regulations need to be allocated but not paid in cash by a updated. Accordingly, we propose to Authority: 42 U.S.C. 4012a, 4104a, 4104b, System bank to an association or other make conforming reference updates in 4106, and 4128; secs. 1.3, 1.5, 1.6, 1.7, 1.9, recipient. parts 607, 614, and 620 of this chapter. 1.10, 1.11, 2.0, 2.2, 2.3, 2.4, 2.10, 2.12, 2.13, Bank means an institution that: 2.15, 3.0, 3.1, 3.3, 3.7, 3.8, 3.10, 3.20, 3.28, (1) Engages in the business of VII. Regulatory Flexibility Act 4.12, 4.12A, 4.13B, 4.14, 4.14A, 4.14C, 4.14D, banking; 4.14E, 4.18, 4.18A, 4.19, 4.25, 4.26, 4.27, Pursuant to section 605(b) of the (2) Is recognized as a bank by the bank Regulatory Flexibility Act (5 U.S.C. 601 4.28, 4.36, 4.37, 5.9, 5.10, 5.17, 7.0, 7.2, 7.6, 7.8, 7.12, 7.13, 8.0, 8.5, of the Farm Credit supervisory or monetary authority of the et seq.), the FCA hereby certifies that the Act (12 U.S.C. 2011, 2013, 2014, 2015, 2017, country of its organization or principal proposed rule will not have a significant 2018, 2019, 2071, 2073, 2074, 2075, 2091, banking operations; impact on a substantial number of small 2093, 2094, 2097, 2121, 2122, 2124, 2128, (3) Receives deposits to a substantial entities. Each of the banks in the 2129, 2131, 2141, 2149, 2183, 2184, 2201, extent in the regular course of business; System, considered together with its 2202, 2202a, 2202c, 2202d, 2202e, 2206, and affiliated associations, has assets and 2206a, 2207, 2211, 2212, 2213, 2214, 2219a, (4) Has the power to accept demand annual income in excess of the amounts 2219b, 2243, 2244, 2252, 2279a, 2279a–2, deposits. that would qualify them as small 2279b, 2279c–1, 2279f, 2279f–1, 2279aa, Commitment means any arrangement entities. Therefore, System institutions 2279aa–5); sec. 413 of Pub. L. 100–233, 101 that legally obligates an institution to: are not ‘‘small entities’’ as defined in the Stat. 1568, 1639. (1) Purchase loans or securities; Regulatory Flexibility Act. (2) Participate in loans or leases; Subpart J—Lending and Leasing (3) Extend credit in the form of loans List of Subjects Limits or leases; 12 CFR Part 607 (4) Pay the obligation of another; 4. Revise § 614.4351(a) introductory (5) Provide overdraft, revolving credit, Accounting, Agriculture, Banks, text to read as follows: or underwriting facilities; or banking, Reporting and recordkeeping § 614.4351 Computation of lending and (6) Participate in similar transactions. requirements, Rural areas. leasing limit base Credit conversion factor means that 12 CFR Part 614 number by which an off-balance sheet (a) Lending and leasing limit base. An item is multiplied to obtain a credit Agriculture, Banks, banking, Flood institution’s lending and leasing limit equivalent before placing the item in a insurance, Foreign trade, Reporting and base is composed of the permanent risk-weight category. recordkeeping requirements, Rural capital of the institution, as defined in Credit derivative means a contract areas. § 615.5201 of this chapter, with that allows one party (the protection adjustments applicable to the institution 12 CFR Part 615 purchaser) to transfer the credit risk of provided for in § 615.5207 of this an asset or off-balance sheet credit Accounting, Agriculture, Banks, chapter, and with the following further exposure to another party (the banking, Government securities, adjustments: protection provider). The value of a Investments, Rural areas. * * * * * credit derivative is dependent, at least
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in part, on the credit performance of a Deferred-tax assets that are (7) Clean-up calls on third-party ‘‘reference asset.’’ dependent on future income or future assets. However, clean-up calls that are Credit-enhancing interest-only strip events means: 10 percent or less of the original pool (1) The term credit-enhancing (1) Deferred-tax assets arising from balance and that are exercisable at the interest-only strip means an on-balance deductible temporary differences option of the institution are not direct sheet asset that, in form or in substance: dependent upon future income that credit substitutes. (i) Represents the contractual right to exceed the amount of taxes previously Direct lender institution means an receive some or all of the interest due paid that could be recovered through institution that extends credit in the on transferred assets; and loss carrybacks if existing temporary form of loans or leases to eligible (ii) Exposes the institution to credit differences (both deductible and taxable borrowers in its own right and carries risk directly or indirectly associated and regardless of where the related tax- such loan or lease assets on its books. with the transferred assets that exceeds deferred effects are recorded on the Externally rated means that an its pro rata claim on the assets, whether institution’s balance sheet) fully reverse; instrument or obligation has received a through subordination provisions or (2) Deferred-tax assets dependent credit rating from at least one NRSRO. other credit enhancement techniques. upon future income arising from Face amount means: (2) FCA reserves the right to identify operating loss and tax carryforwards; (1) The notional principal, or face other cash flows or related interests as (3) Deferred-tax assets arising from value, amount of an off-balance sheet credit-enhancing interest-only strips. In temporary differences that could be item; determining whether a particular recovered if existing temporary (2) The amortized cost of an asset not interest cash flow functions as a credit- differences that are dependent upon held for trading purposes; and (3) The fair value of a trading asset. enhancing interest-only strip, FCA will other future events (both deductible and Financial asset means cash or other consider the economic substance of the taxable and regardless of where the monetary instrument, evidence of debt, transaction. related tax-deferred effects are recorded evidence of an ownership interest in an Credit-enhancing representations and on the institution’s balance sheet) fully entity, or a contract that conveys a right warranties reverse. to receive from or exchange cash or (1) The term credit-enhancing Direct credit substitute means an another financial instrument with representations and warranties means arrangement in which an institution another party. representations and warranties that: assumes, in form or in substance, credit risk directly or indirectly associated Financial standby letter of credit (i) Are made or assumed in with an on- or off-balance sheet asset or means a letter of credit or similar connection with a transfer of assets exposure that was not previously owned arrangement that represents an (including loan-servicing assets), and by the institution (third-party asset) and irrevocable obligation to a third-party (ii) Obligate an institution to protect the risk assumed by the institution beneficiary: investors from losses arising from credit exceeds the pro rata share of the (1) To repay money borrowed by, or risk in the assets transferred or loans institution’s interest in the third-party advanced to, or for the account of, a serviced. asset. If the institution has no claim on second party (the account party); or (2) Credit-enhancing representations the third-party asset, then the (2) To make payment on behalf of the and warranties include promises to institution’s assumption of any credit account party, in the event that the protect a party from losses resulting risk is a direct credit substitute. Direct account party fails to fulfill its from the default or nonperformance of credit substitutes include, but are not obligation to the beneficiary. another party or from an insufficiency limited to: Government agency means an agency in the value of the collateral. (1) Financial standby letters of credit or instrumentality of the United States (3) Credit-enhancing representations that support financial claims on a third Government whose obligations are fully and warranties do not include: party that exceed an institution’s pro and explicitly guaranteed as to the (i) Early-default clauses and similar rata share in the financial claim; timely repayment of principal and warranties that permit the return of, or (2) Guarantees, surety arrangements, interest by the full faith and credit of the premium refund clauses covering, loans credit derivatives, and similar United States Government. for a period not to exceed 120 days from instruments backing financial claims Government-sponsored agency means the date of transfer. These warranties that exceed an institution’s pro rata an agency or instrumentality chartered may cover only those loans that were share in the financial claim; or established to serve public purposes originated within 1 year of the date of (3) Purchased subordinated interests specified by the United States Congress the transfer; that absorb more than their pro rata but whose obligations are not explicitly (ii) Premium refund clauses covering share of losses from the underlying guaranteed by the full faith and credit assets guaranteed, in whole or in part, assets; of the United States Government. by the United States Government, a (4) Credit derivative contracts under Institution means a Farm Credit Bank, United States Government agency, or a which the institution assumes more Federal land bank association, Federal United States Government-sponsored than its pro rata share of credit risk on land credit association, production agency, provided the premium refund a third-party asset or exposure; credit association, agricultural credit clause is for a period not to exceed 120 (5) Loans or lines of credit that association, Farm Credit Leasing days from the date of transfer; provide credit enhancement for the Services Corporation, bank for (iii) Warranties that permit the return financial obligations of a third party; cooperatives, agricultural credit bank, of assets in instances of fraud, (6) Purchased loan-servicing assets if and their successors. misrepresentation, or incomplete the servicer is responsible for credit Nationally recognized statistical documentation; or losses or if the servicer makes or rating organization (NRSRO) means a (iv) Clean-up calls if the agreements to assumes credit-enhancing rating organization that the Securities repurchase are limited to 10 percent or representations and warranties with and Exchange Commission recognizes less of the original pool balance (except respect to the loans serviced. Servicer as an NRSRO. where loans 30 days or more past due cash advances as defined in this section Non-OECD bank means a bank and its are repurchased). are not direct credit substitutes; and, branches (foreign and domestic)
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organized under the laws of a country or implied right for such capital to be defaulter or to the estate of a defaulter, that does not belong to the OECD group retired at the end of the revolvement even if the defaulter or the estate of the of countries. cycle or at any other time; and defaulter is a net creditor under the Nonagreeing association means an (B) The institution clearly states in the contract; association that does not have an notice of allocation that such capital (3) The contract creates a single allotment agreement in effect with a may only be retired at the sole obligation either to pay or receive the Farm Credit Bank or agricultural credit discretion of the board of directors in net amount of the sum of positive and bank pursuant to § 615.5207(b)(2). accordance with statutory and negative mark-to-market values for all OECD means the group of countries regulatory requirements and that no derivative contracts subject to the that are full members of the express or implied right to have such qualifying bilateral netting contract; Organization for Economic Cooperation capital retired at the end of the (4) The institution receives a legal and Development, regardless of entry revolvement cycle or at any other time opinion that represents, to a high degree date, as well as countries that have is thereby granted; of certainty, that in the event of legal concluded special lending arrangements (5) Term preferred stock with an challenge the relevant court and with the International Monetary Fund’s original maturity of at least 5 years and administrative authorities would find General Arrangement to Borrow, on which, if cumulative, the board of the institution’s exposure to be the net excluding any country that has directors has the option to defer amount; rescheduled its external sovereign debt dividends, provided that, at the (5) The institution establishes a within the previous 5 years. beginning of each of the last 5 years of procedure to monitor relevant law and OECD bank means a bank and its the term of the stock, the amount that to ensure that the contracts continue to branches (foreign and domestic) is eligible to be counted as permanent satisfy the requirements of this section; organized under the laws of a country capital is reduced by 20 percent of the and that belongs to the OECD group of original amount of the stock (net of (6) The institution maintains in its countries. For purposes of this subpart, redemptions); files adequate documentation to support this term includes U.S. depository (6) Financial assistance provided by the netting of a derivatives contract. institutions. the Farm Credit System Insurance Qualifying securities firm means: Performance-based standby letter of Corporation that the FCA determines (1) A securities firm incorporated in credit means any letter of credit, or appropriate to be considered permanent the United States that is a broker-dealer similar arrangement, however named or capital; and that is registered with the Securities and described, that represents an irrevocable (7) Any other debt or equity Exchange Commission (SEC) and that obligation to the beneficiary on the part instruments or other accounts the FCA complies with the SEC’s net capital of the issuer to make payment as a result has determined are appropriate to be regulations (17 CFR 240.15c3–1); and (2) A securities firm incorporated in of any default by a third party in the considered permanent capital. The FCA any other OECD-based country, if the performance of a nonfinancial or may permit one or more institutions to institution is able to demonstrate that commercial obligation. include all or a portion of such Permanent capital, subject to instrument, entry, or account as the securities firm is subject to adjustments as described in § 615.5207, permanent capital, permanently or on a supervision and regulation (covering its includes: temporary basis, for purposes of this direct and indirect subsidiaries, but not (1) Current year retained earnings; part. necessarily its parent organizations) (2) Allocated and unallocated Qualified residential loan: comparable to that imposed on earnings (which, in the case of earnings (1) The term qualified residential loan depository institutions in OECD allocated in any form by a System bank means: countries. Such regulation must include to any association or other recipient and (i) A rural home loan, as authorized risk-based capital requirements retained by the bank, must be by § 613.3030, and comparable to those imposed on considered, in whole or in part, (ii) A single-family residential loan to depository institutions under the permanent capital of the bank or of any a bona fide farmer, rancher, or producer Accord on International Convergence of such association or other recipient as or harvester of aquatic products. Capital Measurement and Capital provided under an agreement between (2) A qualified residential loan must Standards (1988, as amended in 1998) the bank and each such association or be secured by a first lien mortgage or (Basel Accord). other recipient); deed of trust, must have been approved Recourse means an institution’s (3) All surplus; in accordance with prudent retention, in form or in substance, of (4) Stock issued by a System underwriting standards, must not be any credit risk directly or indirectly institution, except: past due 90 days or more or carried in associated with an asset it has sold (in (i) Stock that may be retired by the nonaccrual status, and must have a accordance with generally accepted holder of the stock on repayment of the monthly amortization schedule. In accounting principles) that exceeds a holder’s loan, or otherwise at the option addition, the secured residence and pro rata share of the institution’s claim or request of the holder; residential site must have a deed on the asset. If an institution has no (ii) Stock that is protected under separate from other adjoining land and claim on an asset it has sold, then the section 4.9A of the Act or is otherwise a permanent right-of-way access. retention of any credit risk is recourse. not at risk; Qualifying bilateral netting contract A recourse obligation typically arises (iii) Farm Credit Bank equities means a bilateral netting contract that when an institution transfers assets in a required to be purchased by Federal meets at least the following conditions: sale and retains an explicit obligation to land bank associations in connection (1) The contract is in writing; repurchase assets or to absorb losses due with stock issued to borrowers that is (2) The contract is not subject to a to a default on the payment of principal protected under section 4.9A of the Act; walkaway clause, defined as a provision or interest or any other deficiency in the (iv) Capital subject to revolvement, that permits a non-defaulting performance of the underlying obligor unless: counterparty to make lower payments or some other party. Recourse may also (A) The bylaws of the institution than it would make otherwise under the exist implicitly if an institution clearly provide that there is no express contract, or no payment at all, to a provides credit enhancement beyond
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any contractual obligation to support party. However, purchased credit- federally insured banks and depository assets it has sold. Recourse obligations enhancing interest-only strips are institutions chartered and include, but are not limited to: residual interests. headquartered in the 50 states of the (1) Credit-enhancing representations Risk-adjusted asset base means the United States, the District of Columbia, and warranties made on transferred total dollar amount of the institution’s Puerto Rico, and United States assets; assets adjusted in accordance with territories and possessions. The (2) Loan-servicing assets retained § 615.5207 and weighted on the basis of definition encompasses banks, mutual pursuant to an agreement under which risk in accordance with §§ 615.5211 and or stock savings banks, savings or the institution will be responsible for 615.5212. building and loan associations, losses associated with the loans Risk participation means a cooperative banks, credit unions, serviced. Servicer cash advances as participation in which the originating international banking facilities of defined in this section are not recourse party remains liable to the beneficiary domestic depository institutions, and obligations; for the full amount of an obligation (e.g., U.S.-chartered depository institutions (3) Retained subordinated interests a direct credit substitute) owned by foreigners. The definition that absorb more than their pro rata notwithstanding that another party has excludes branches and agencies of share of losses from the underlying acquired a participation in that foreign banks located in the U.S. and assets; obligation. bank holding companies. (4) Assets sold under an agreement to Rural Business Investment Company repurchase, if the assets are not already has the definition given in 7 U.S.C. § 615.5210 [Removed] included on the balance sheet; 2009cc(14). 8. Remove existing § 615.5210. (5) Loan strips sold without Securitization means the pooling and 9. Add new §§ 615.5206 through contractual recourse where the maturity repackaging by a special purpose entity 615.5212 to read as follows: of the transferred portion of the loan is or trust of assets or other credit shorter than the maturity of the § 615.5206 Permanent capital ratio exposures that can be sold to investors. computation. commitment under which the loan is Securitization includes transactions that drawn; create stratified credit risk positions (a) The institution’s permanent capital (6) Credit derivatives issued that whose performance is dependent upon ratio is determined on the basis of the absorb more than the institution’s pro an underlying pool of credit exposures, financial statements of the institution rata share of losses from the transferred including loans and commitments. prepared in accordance with generally assets; and Servicer cash advance means funds accepted accounting principles except (7) Clean-up call on assets the that a mortgage servicer advances to that the obligations of the Farm Credit institution has sold. However, clean-up ensure an uninterrupted flow of System Financial Assistance calls that are 10 percent or less of the payments, including advances made to Corporation issued to repay banks in original pool balance and that are cover foreclosure costs or other connection with the capital preservation exercisable at the option of the expenses to facilitate the timely and loss-sharing agreements described institution are not recourse collection of the loan. A servicer cash in section 6.9(e)(1) of the Act shall not arrangements. advance is not a recourse obligation or be considered obligations of any Residual interest: a direct credit substitute if: institution subject to this regulation (1) The term residual interest means (1) The servicer is entitled to full prior to their maturity. any on-balance sheet asset that: reimbursement and this right is not (b) The institution’s asset base and (i) Represents an interest (including a subordinated to other claims on the cash permanent capital are computed using beneficial interest) created by a transfer flows from the underlying asset pool; or average daily balances for the most that qualifies as a sale (in accordance (2) For any one loan, the servicer’s recent 3 months. with generally accepted accounting obligation to make nonreimbursable (c) The institution’s permanent capital principles) of financial assets, whether advances is contractually limited to an ratio is calculated by dividing the through a securitization or otherwise; insignificant amount of the outstanding institution’s permanent capital, adjusted and principal amount on that loan. in accordance with § 615.5207 (the (ii) Exposes an institution to credit Stock means stock and participation numerator), by the risk-adjusted asset risk directly or indirectly associated certificates. base (the denominator) as determined in with the transferred asset that exceeds a Total capital means assets minus § 615.5210, to derive a ratio expressed pro rata share of the institution’s claim liabilities, valued in accordance with as a percentage. on the asset, whether through generally accepted accounting (d) Until September 27, 2002, subordination provisions or other credit principles (GAAP), except that payments of assessments to the Farm enhancement techniques. liabilities do not include obligations to Credit System Financial Assistance (2) Residual interests generally retire stock protected under section Corporation, and any part of the include credit-enhancing interest-only 4.9A of the Act. obligation to pay future assessments to strips, spread accounts, cash collateral Traded position means a position the Farm Credit System Financial accounts, retained subordinated retained, assumed, or issued that is Assistance Corporation that is interests (and other forms of externally rated, where there is a recognized as an expense on the books overcollateralization), and similar assets reasonable expectation that, in the near of a bank or association, shall be that function as a credit enhancement. future, the rating will be relied upon by: included in the capital of such bank or (3) Residual interests further include (1) Unaffiliated investors to purchase association for the purpose of those exposures that, in substance, the position; or determining its compliance with cause the institution to retain the credit (2) An unaffiliated third party to enter regulatory capital requirements, to the risk of an asset or exposure that had into a transaction involving the extent allowed by section 6.26(c)(5)(G) qualified as a residual interest before it position, such as a purchase, loan, or of the Act. If the bank directly or was sold. repurchase agreement. indirectly passes on all or part of the (4) Residual interests generally do not U.S. depository institution means payments to its affiliated associations include interests purchased from a third branches (foreign and domestic) of pursuant to section 6.26(c)(5)(D) of the
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Act, such amounts shall be included in to the allocating bank and 0 percent to (l) Capital may also need to be the capital of the associations and shall the recipient. All equities of the bank reduced for potential loss exposure on not be included in the capital of the that are purchased by a recipient are any recourse obligations, direct credit bank. After September 27, 2002, no considered as permanent capital of the substitutes, residual interests, and payments of assessments or obligations issuing bank. credit-enhancing interest-only-strips in to pay future assessments may be (d) A bank for cooperatives and a accordance with § 615.5210. included in the capital of the bank or recipient of allocated earnings from association. such bank may enter into an agreement § 615.5208 Allotment of allocated investments. specifying a dollar amount and/or § 615.5207 Capital adjustments and (a) The following conditions apply to associated reductions to assets. percentage allotment of the recipient’s allocated earnings in the bank between agreements that a Farm Credit Bank or For the purpose of computing the the bank and the recipient. Such agricultural credit bank enters into with institution’s permanent capital ratio, the agreement must comply with the an affiliated association pursuant to following adjustments must be made provisions of paragraph (b) of this § 615.5207(b)(2): prior to assigning assets to risk-weight section, except that, in the absence of an (1) The agreement must be for a term categories and computing the ratio: agreement, the allocated investment of 1 year or longer. (a) Where two Farm Credit System (2) The agreement must be entered must be allotted 100 percent to the institutions have stock investments in into on or before its effective date. allocating bank and 0 percent to the each other, such reciprocal holdings (3) The agreement may be amended recipient. All equities of a bank that are must be eliminated to the extent of the according to its terms, but no more purchased by a recipient shall be offset. If the investments are equal in frequently than annually except in the considered as permanent capital of the amount, each institution must deduct event that a party to the agreement is issuing bank. from its assets and its total capital an merged or reorganized. (e) Where a bank or association amount equal to the investment. If the (4) On or before the effective date of invests in an association to capitalize a investments are not equal in amount, the agreement, a certified copy of the loan participation interest, the investing each institution must deduct from its agreement, and any amendments institution must deduct from its total total capital and its assets an amount thereto, must be sent to the field office capital an amount equal to its equal to the smaller investment. The of the Farm Credit Administration investment in the participating elimination of reciprocal holdings responsible for examining the institution. required by this paragraph must be institution. A copy must also be sent made prior to making the other (f) The double-counting of capital by within 30 calendar days of adoption to adjustments required by this section. a service corporation chartered under the bank’s other affiliated associations. (b) Where a Farm Credit Bank or an section 4.25 of the Act and its (5) Unless the parties otherwise agree, agricultural credit bank is owned by one stockholder institutions must be if the bank and the association have not or more Farm Credit System eliminated by deducting an amount entered into a new agreement on or institutions, the double counting of equal to the institution’s investment in before the expiration of an existing capital is eliminated in the following the service corporation from its total agreement, the existing agreement will manner: capital. automatically be extended for another (1) All equities of a Farm Credit Bank (g) Each institution must deduct from 12 months, unless either party notifies or agricultural credit bank that have its total capital an amount equal to all the Farm Credit Administration in been purchased by other Farm Credit goodwill, whenever acquired. writing of its objection to the extension institutions are considered to be (h) To the extent an institution has prior to the expiration of the existing permanent capital of the Farm Credit deducted its investment in another agreement. Bank or agricultural credit bank. Farm Credit institution from its total (b) In the absence of an agreement (2) Each Farm Credit Bank or capital, the investment may be between a Farm Credit Bank or an agricultural credit bank and each of its eliminated from its asset base. agricultural credit bank and one or more affiliated associations may enter into an (i) Where a Farm Credit Bank and an associations, or in the event that an agreement that specifies, for the purpose association have an enforceable written agreement expires and at least one party of computing permanent capital only, a agreement to share losses on specifically has timely objected to the continuation dollar amount and/or percentage identified assets on a predetermined of the terms of its agreement, the allotment of the association’s allocated quantifiable basis, such assets must be following formula applies with respect investment between the bank and the counted in each institution’s risk- to the allocated investments held by association. Section 615.5208 provides adjusted asset base in the same those associations with which there is conditions for allotment agreements or proportion as the institutions have no agreement (nonagreeing defines allotments in the absence of agreed to share the loss. associations), and does not apply to the such agreements. (j) The permanent capital of an allocated investments held by those (c) A Farm Credit Bank or agricultural institution must exclude the net effect of associations with which the bank has an credit bank and a recipient, other than all transactions covered by the agreement (agreeing associations): an association, of allocated earnings definition of ‘‘accumulated other (1) The allotment formula must be from such bank may enter into an comprehensive income’’ contained in calculated annually. agreement specifying a dollar amount the Statement of Financial Accounting (2) The permanent capital ratio of the and/or percentage allotment of the Standards No. 130, as promulgated by Farm Credit Bank or agricultural credit recipient’s allocated earnings in the the Financial Accounting Standards bank must be computed as of the date bank between the bank and the Board. that the existing agreement terminates, recipient. Such agreement must comply (k) For purposes of calculating capital using a 3-month average daily balance, with the provisions of paragraph (b) of ratios under this part, deferred-tax excluding the allocated investment from this section, except that, in the absence assets are subject to the conditions, nonagreeing associations but including of an agreement, the allocated limitations, and restrictions described in any allocated investments of agreeing investment must be allotted 100 percent § 615.5209. associations that are allotted to the bank
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under applicable allocation agreements. allotted 50 percent to the bank and 50 reversal of existing taxable temporary The permanent capital ratio of each percent to the nonagreeing association. differences may not be deducted from nonagreeing association must be (ii) If the additional capital needed by assets and from equity capital. computed as of the same date using a 3- the bank is greater than the total of the (2) All existing temporary differences month average daily balance, and must allocated investments of the should be assumed to fully reverse at be computed excluding its allocated nonagreeing associations, all of the the calculation date. investment in the bank. remaining allocated investments of the (3) Projected future taxable income (3) If the permanent capital ratio for nonagreeing associations must be should not include net operating loss the Farm Credit Bank or agricultural allotted to the bank. carryforwards to be used within 1 year credit bank calculated in accordance (c) If a payment or part of a payment or the amount of existing temporary with § 615.5211 is 7 percent or above, to the Farm Credit System Financial differences expected to reverse within the allocated investment of each Assistance Corporation pursuant to that year. nonagreeing association whose section 6.9(e)(3)(D)(ii) of the Act would (4) Financial projections must include permanent capital ratio calculated in cause a bank to fall below its minimum the estimated effect of tax-planning accordance with § 615.5211 is 7 percent permanent capital requirement, the strategies that are expected to be or above must be allotted 50 percent to bank and one or more association shall implemented to minimize tax liabilities the bank and 50 percent to the amend their allocation agreements to and realize tax benefits. Financial association. increase the allotment of the allocated projections for the current fiscal year (4) If the permanent capital ratio of investment to the bank sufficiently to (adjusted for any significant changes the Farm Credit Bank or agricultural enable the bank to make the payment to that have occurred or are expected to credit bank calculated in accordance the Farm Credit System Financial occur) may be used when applying the with § 615.5211 is 7 percent or above, Assistance Corporation, provided that capital limit at an interim date within the allocated investment of each the associations would continue to meet the fiscal year. nonagreeing association whose capital their minimum permanent capital (5) The deferred tax effects of any ratio is below 7 percent must be allotted requirement. In the case of a to the association until the association’s unrealized holding gains and losses on nonagreeing association, the Farm available-for-sale debt securities may be capital ratio reaches 7 percent or until Credit Administration may require a all of the investment is allotted to the excluded from the determination of the revision of the allotment sufficient to amount of deferred-tax assets that are association, whichever occurs first. Any enable the bank to make the payment to remaining unallotted allocated dependent upon future taxable income the Farm Credit System Financial and the calculation of the maximum investment must be allotted 50 percent Assistance Corporation, provided that to the bank and 50 percent to the allowable amount of such assets. If these the association would continue to meet deferred-tax effects are excluded, this association. its minimum permanent capital (5) If the permanent capital ratio of treatment must be followed consistently requirement. The Farm Credit over time. the Farm Credit Bank or agricultural Administration Board may, at the credit bank calculated in accordance request of one or more of the § 615.5210 Risk-adjusted assets. with § 615.5211 is less than 7 percent, institutions affected, waive the (a) Computation. Each asset on the the amount of additional capital needed requirements of this paragraph if the by the bank to reach a permanent capital institution’s balance sheet and each off- Board deems it is in the overall best balance-sheet item, adjusted by the ratio of 7 percent must be determined, interest of the institutions affected. and an amount of the allocated appropriate credit conversion factor in investment of each nonagreeing § 615.5209 Deferred-tax assets. § 615.5212, is assigned to one of the risk categories specified in § 615.5211. The association must be allotted to the Farm For purposes of calculating capital aggregate dollar value of the assets in Credit Bank or agricultural credit bank, ratios under this part, deferred-tax each category is multiplied by the as follows: assets are subject to the conditions, percentage weight assigned to that (i) If the total of the allocated limitations, and restrictions described in category. The sum of the weighted investments of all nonagreeing this section. associations is greater than the (a) Each institution must deduct an dollar values from each of the risk additional capital needed by the bank, amount of deferred-tax assets, net of any categories comprises ‘‘risk-adjusted the allocated investment of each valuation allowance, from its assets and assets,’’ the denominator for nonagreeing association must be its total capital that is equal to the computation of the permanent capital multiplied by a fraction whose greater of: ratio. numerator is the amount of capital (1) The amount of deferred-tax assets (b) Ratings-based approach. (1) Under needed by the bank and whose that is dependent on future income or the ratings-based approach: denominator is the total amount of future events in excess of the amount (i) Beginning 18 months after the allocated investments of the that is reasonably expected to be effective date of this section, a position nonagreeing associations, and such realized within 1 year of the most recent in a securitization that is unrated and amount must be allotted to the bank. calendar quarter-end date, based on guaranteed by a Government-sponsored Next, if the permanent capital ratio of financial projections for that year, or agency is assigned to the appropriate any nonagreeing association is less than (2) The amount of deferred-tax assets risk-weight category based on the issuer 7 percent, a sufficient amount of that is dependent on future income or credit rating of the agency. unallotted allocated investment must future events in excess of 10 percent of (ii) A rated position in a securitization then be allotted to each nonagreeing the amount of core surplus that exists (provided it satisfies the criteria association, as necessary, to increase its before the deduction of any deferred-tax specified in paragraph (b)(3) of this permanent capital ratio to 7 percent, or assets. section) is assigned to the appropriate until all such remaining investment is (b) For purposes of this calculation: risk-weight category based on its allotted to the association, whichever (1) The amount of deferred-tax assets external rating. occurs first. Any unallotted allocated that can be realized from taxes paid in (2) Provided they satisfy the criteria investment still remaining must be prior carryback years and from the specified in paragraph (b)(3) of this
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section, the following positions qualify (4) Any recourse obligation or direct conversion factor otherwise specified in for the ratings-based approach: credit substitute (e.g., a purchased § 615.5212 for the item. In making this (i) Recourse obligations; subordinated security) that is not determination, the FCA will consider (ii) Direct credit substitutes; externally rated is risk weighted using the similarity of the asset or off-balance (iii) Residual interests (other than the amount of the recourse obligation or sheet item to assets or off-balance sheet credit-enhancing interest-only strips); direct credit substitute and the full items explicitly treated in §§ 615.5211 and amount of the assets it supports, i.e., all or 615.5212, as well as other relevant (iv) Asset-or mortgage-backed the more senior positions in the factors. securities. structure. This treatment is subject to (3) A position specified in paragraph the low-level exposure rule set forth in § 615.5211 Risk categories—balance sheet (b)(2) of this section qualifies for a paragraph (e) of this section. This assets. ratings-based approach provided it amount is then placed into a risk-weight Section 615.5210(c) specifies certain satisfies the following criteria: category according to the obligor or, if balance sheet assets that are not (i) If the position is traded and relevant, the guarantor or the nature of assigned to the risk categories set forth externally rated, its long-term external the collateral. below. All other balance sheet assets are rating must be one grade below (5) Any stripped mortgage-backed assigned to the percentage risk investment grade or better (e.g., BB or security or similar instrument, such as categories as follows: better) or its short-term external rating an interest-only strip that is not credit- (a) Category 1: 0 Percent must be investment grade or better (e.g., enhancing or a principal-only strip, is (1) Cash (domestic and foreign). A–3, P–3). If the position receives more assigned to the 100-percent risk-weight (2) Balances due from Federal Reserve than one external rating, the lowest category described in § 615.5211(d)(7). Banks and central banks in other OECD rating applies. (d) Senior positions not externally countries. (ii) If the position is not traded and is rated. For a position in a securitization (3) Direct claims on, and portions of externally rated, that is not externally rated but is senior claims unconditionally guaranteed by, (A) It must be externally rated by in all features to a traded position the U.S. Treasury, government agencies, more than one NRSRO; (including collateralization and or central governments in other OECD (B) Its long-term external rating must maturity), an institution may apply a countries. be one grade below investment grade or risk weight to the face amount of the (4) Portions of local currency claims better (e.g., BB or better) or its short- senior position based on the traded on, or unconditionally guaranteed by, term external rating must be investment position’s external rating. This section non-OECD central governments grade or better (e.g., A–3, P–3 or better). will apply only if the traded position (including non-OECD central banks), to If the ratings are different, the lowest provides substantial credit support for the extent the institution has liabilities rating applies; the entire life of the unrated position. booked in that currency. (C) The ratings must be publicly (e) Low-level exposure rule. If the (5) Claims on, or guaranteed by, available; and maximum contractual exposure to loss qualifying securities firms that are (D) The ratings must be based on the retained or assumed by an institution in collateralized by cash on deposit in the same criteria used to rate traded connection with a recourse obligation or institution or by securities issued or positions. a direct credit substitute is less than the guaranteed by the United States (iii) Beginning 18 months after the effective risk-based capital requirement (including U.S. Government agencies) or effective date of this section, the for the credit-enhanced assets, the risk- OECD central governments, provided position is unrated and is guaranteed by based capital required under paragraph that a positive margin of collateral is a Government-sponsored agency. (c)(4) of this section is limited to the required to be maintained on such a (c) Positions in securitizations that do institution’s maximum contractual claim on a daily basis, taking into not qualify for a ratings-based exposure, less any recourse liability account any change in the institution’s approach. The following positions in account established in accordance with exposure to the obligor or counterparty securitizations do not qualify for a generally accepted accounting under the claim in relation to the market ratings-based approach, whether or not principles. This limitation does not value of the collateral held in support of they are guaranteed by Government- apply when an institution provides the claim. sponsored agencies. They are treated as credit enhancement beyond any (b) Category 2: 20 Percent indicated. contractual obligation to support assets (1) Cash items in the process of (1) For any residual interest that is not it has sold. collection. externally rated, the institution must (f) Reservation of authority. The FCA (2) Loans and other obligations of and deduct from capital and assets the face may, on a case-by-case basis, determine investments in Farm Credit institutions. amount of the position (dollar-for-dollar the appropriate risk weight for any asset (3) All claims (long- and short-term) reduction). or credit equivalent amount that does on, and portions of claims (long- and (2) For any credit-enhancing interest- not fit wholly within one of the risk short-term) guaranteed by, OECD banks only strip, the institution must deduct categories set forth in § 615.5211 or that (excluding claims described in from capital and assets the face amount imposes risks that are not paragraphs (b)(7), (c)(4) or (d)(11) of this of the position (dollar-for-dollar commensurate with the risk weight section). reduction). otherwise specified in § 615.5211 for the (4) Short-term (remaining maturity of (3) For any position that has a long- asset or credit equivalent. In addition, 1 year or less) claims on, and portions term external rating that is two grades the FCA may, on a case-by-case basis, of short-term claims guaranteed by, non- below investment grade or lower (e.g., B determine the appropriate credit OECD banks. or lower) or a short-term external rating conversion factor for any off-balance (5) Portions of loans and other claims that is one grade below investment sheet item that does not fit wholly conditionally guaranteed by the U.S. grade or lower (e.g., B or lower, Not within one of the credit conversion Treasury, government agencies, or Prime), the institution must deduct from factors set forth in § 615.5212 or that central governments in other OECD capital and assets the face amount of the imposes risks that are not countries and portions of local currency position (dollar-for-dollar reduction). commensurate with the credit claims conditionally guaranteed by non-
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OECD central governments to the extent (14) Recourse obligations, direct (iii) The other financing institution that the institution has liabilities booked credit substitutes, residual interests has endorsed all obligations it pledges in that currency. (other than credit-enhancing interest- to its funding Farm Credit bank with (6) Securities and other claims on, only strips) and asset- or mortgage- full recourse. and portions of claims guaranteed by, backed securities that: (c) Category 3: 50 Percent Government-sponsored agencies (i) Are externally rated in the highest (1) All other investment securities (excluding positions in securitizations or second highest investment grade with remaining maturities under 1 year, described in § 615.5210 and claims that category, e.g., AAA, AA, in the case of if the securities are not eligible for the are described in (b)(7), (c)(4) or (d)(11) long-term ratings, or the highest rating ratings-based approach or subject to the of this section), without regard to issuer category, e.g., A–1, P–1, in the case of dollar-for-dollar capital treatment. credit rating. short-term ratings; or (2) Qualified residential loans. (7)(i) Until 18 months after this rule’s (ii)(A) Until 18 months after the (3) Recourse obligations, direct credit effective date, assets or portions of effective date of this section, are unrated substitutes, residual interests (other assets covered by credit protection and are guaranteed by a Government- than credit-enhancing interest-only provided by Government-sponsored sponsored agency; strips) and asset- or mortgage-backed agencies and OECD banks through (B) Beginning 18 months after the securities that: credit derivatives (e.g., credit default effective date of this section, are unrated (i) Are rated in the third highest swaps), loss purchase commitments, and are guaranteed by a Government- investment grade category, e.g., A, in the guarantees, and other similar sponsored agency with an issuer credit case of long-term ratings, or the second arrangements; rating in the highest or second highest highest rating category, e.g., A–2, P–2, (ii) Beginning 18 months after the investment grade category, e.g., AAA or in the case of short-term ratings; or (ii) Beginning 18 months after the effective date of this section, assets or AA. effective date of this section, are unrated portions of assets covered by credit (15) Claims on, and claims guaranteed and are guaranteed by a Government- protection provided by Government- by, qualifying securities firms provided sponsored agency with an issuer credit sponsored agencies and OECD banks that: rating in the third highest investment through credit derivatives (e.g., credit (i) The qualifying securities firm, or at grade category, e.g., A. default swaps), loss purchase least one issue of its long-term debt, has (4) Beginning 18 months after the commitments, guarantees, and other a rating in one of the highest two effective date of this section, assets or similar arrangements, provided the investment grade rating categories from portions of assets covered by credit Government-sponsored agencies and an NRSRO (if the securities firm or debt protection provided by Government- OECD banks have an issuer credit rating has more than one NRSRO rating the sponsored agencies and OECD banks in one of the two highest investment lowest rating applies); or through credit derivatives (e.g., credit grade ratings from at least one NRSRO (ii) The claim is guaranteed by a default swaps), loss purchase (if the credit protection provider is rated qualifying securities firm’s parent commitments, guarantees, and other by more than one NRSRO the lowest company with such a rating. (16) Certain collateralized claims on similar arrangements, provided the rating applies). qualifying securities firms without Government-sponsored agencies and (8) Portions of loans and other claims regard to satisfaction of the rating OECD banks have an issuer credit rating (including repurchase agreements) standard, provided that the claim arises in the third highest investment grade collateralized by securities issued or under a contract that: category, e.g., A, from at least one guaranteed by the U.S. Treasury, (i) Is a reverse repurchase/repurchase NRSRO (if they are rated by more than government agencies, Government- agreement or securities lending/ one NRSRO the lowest rating applies). sponsored agencies or central borrowing transaction executed under (5) Revenue bonds or similar governments in other OECD countries. standard industry documentation; obligations, including loans and leases, (9) Portions of loans and other claims (ii) Is collateralized by liquid and that are obligations of state or political collateralized by cash held by the readily marketable debt or equity subdivisions of the United States or institution or its funding bank. securities; other OECD countries but for which the (10) General obligation claims on, and (iii) Is marked-to-market daily; government entity is committed to repay portions of claims guaranteed by, the (iv) Is subject to a daily margin the debt only out of revenue from the full faith and credit of states or other maintenance requirement under the specific projects financed. political subdivisions or OECD standard documentation; and (6) Claims on other financing countries, including U.S. state and local (v) Can be liquidated, terminated, or institutions that: governments. accelerated immediately in bankruptcy (i) Are not covered by the provisions (11) Claims on, and portions of claims or similar proceeding, and the security of paragraph (b)(17) of this section, but guaranteed by, official multinational or collateral agreement will not be otherwise meet similar capital, risk lending institutions or regional stayed or avoided, under applicable law identification and control, and development institutions in which the of the relevant country. operational standards, or U.S. Government is a shareholder or a (17) Claims on other financing (ii) Carry an investment-grade or contributing member. institutions provided that: higher NRSRO rating or the claim is (12) Portions of claims collateralized (i) The other financing institution guaranteed by a parent company with by securities issued by official qualifies as an OECD bank or it is such a rating, and multilateral lending institutions or owned and controlled by an OECD bank (iii) The other financing institution regional development institutions in that guarantees the claim, or has endorsed all obligations it pledges which the U.S. Government is a (ii) The other financing institution has to its funding Farm Credit bank with shareholder or contributing member. a rating in one of the highest three full recourse. (13) Investments in shares of mutual investment-grade rating categories from (d) Category 4: 100 Percent. This funds whose portfolios are permitted to a NRSRO or the claim is guaranteed by category includes all assets not specified hold only assets that qualify for the zero a parent company with such a rating, in the categories above or below nor or 20-percent risk categories. and deducted dollar-for-dollar from capital
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and assets as discussed in § 615.5210(c). portions of assets covered by credit (3) 50 Percent This category comprises standard risk protection provided by Government- (i) Transaction-related contingencies assets such as those typically found in sponsored agencies and OECD banks (e.g., bid bonds, performance bonds, a loan or lease portfolio and includes: through credit derivatives (e.g., credit warranties, and performance-based (1) All other claims on private default swaps), loss purchase standby letters of credit related to a obligors; commitments, guarantees, and other particular transaction). (2) Claims on, or portions of claims similar arrangements, provided the guaranteed by, non-OECD banks with a Government-sponsored agencies and (ii) Unused loan commitments with remaining maturity exceeding 1 year; OECD banks have an issuer credit rating an original maturity greater than 14 and in the lowest investment grade category, months, including underwriting (3) Claims on, or portions of claims e.g., BBB, or below from at least one commitments and commercial credit guaranteed by, non-OECD central NRSRO (if they are rated by more than lines. governments that are not included in one NRSRO the lowest rating applies) or (iii) Revolving underwriting facilities paragraphs (a)(4) or (b)(4) of this section, are unrated; (RUFs), note issuance facilities (NIFs) and all claims on non-OECD state and (12) Claims on other financing and other similar arrangements local governments. institutions that do not otherwise pursuant to which the institution’s (4) Industrial-development bonds and qualify for a lower risk-weight category customer can issue short-term debt similar obligations issued under the under this section; and obligations in its own name, but for auspices of states or political (13) All other assets not specified which the institution has a legally subdivisions of the OECD-based group above, including but not limited to binding commitment to either: of countries for the benefit of a private leases and receivables. (A) Purchase the obligations its party or enterprise where that party or (e) Category 5: 200 Percent. Recourse customer is unable to sell by a stated enterprise, not the government entity, is obligations, direct credit substitutes, date; or obligated to pay the principal and residual interests (other than credit- interest. enhancing interest-only strips) and (B) Advance funds to its customer if (5) Premises, plant, and equipment; asset- or mortgage-backed securities that the obligations cannot be sold. other fixed assets; and other real estate are rated one category below the lowest (4) 100 Percent owned. investment grade category, e.g., BB. (i) The full amount of the assets (6) Recourse obligations, direct credit supported by direct credit substitutes substitutes, residual interests (other § 615.5212 Credit conversion factors—off- balance sheet items. and recourse obligations for which an than credit-enhancing interest-only institution directly or indirectly retains (a) The face amount of an off-balance strips) and asset- or mortgage-backed or assumes credit risk. For risk sheet item is generally incorporated into securities that: participations in such arrangements risk-weighted assets in two steps. For (i) Are rated in the lowest investment acquired by the institution, the full most off-balance sheet items, the face grade category, e.g., BBB, in the case of amount of assets supported by the main amount is first multiplied by a credit long-term ratings, or the third highest obligation multiplied by the acquiring conversion factor. (In the case of direct rating category, e.g., A–3, P–3, in the institution’s percentage share of the risk credit substitutes and recourse case of short-term ratings; or participation. The capital requirement obligations the full amount of the assets (ii) Beginning 18 months after the under this paragraph is limited to the enhanced are multiplied by a credit effective date of this section, are unrated institution’s maximum contractual conversion factor). The resultant credit and are guaranteed by a Government- exposure, less any recourse liability equivalent amount is assigned to the sponsored agency that has an issuer account established under generally appropriate risk-weight category credit rating in or below the lowest accepted accounting principles. investment grade category, e.g., BBB, or described in § 615.5211 according to the that is unrated. obligor or, if relevant, the guarantor or (ii) Acquisitions of risk participations (7) Stripped mortgage-backed the collateral. in bankers acceptances. securities and similar instruments, such (b) Conversion factors for various (iii) Sale and repurchase agreements, as interest-only strips that are not credit- types of off-balance sheet items are as if not already included on the balance enhancing and principal-only strips follows: sheet. (including such instruments guaranteed (1) 0 Percent (iv) Forward agreements (i.e., by Government-sponsored agencies). (i) Unused commitments with an contractual obligations) to purchase (8) Investments in Rural Business original maturity of 14 months or less; assets, including financing facilities (ii) Unused commitments with an Investment Companies. with certain drawdown. (9) If they have not already been original maturity greater than 14 months deducted from capital: if: (c) Credit equivalents of interest rate (i) Investments in unconsolidated (A) They are unconditionally contracts and foreign exchange companies, joint ventures, or associated cancellable by the institution; and contracts. (1) Credit equivalents of companies. (B) The institution has the contractual interest rate contracts and foreign (ii) Deferred-tax assets. right to, and in fact does, make a exchange contracts (except single- (iii) Servicing assets. separate credit decision based upon the currency floating/floating interest rate (10) All non-local currency claims on borrower’s current financial condition swaps) are determined by adding the foreign central governments, as well as before each drawing under the lending replacement cost (mark-to-market value, local currency claims on foreign central arrangement. if positive) to the potential future credit governments that are not included in (2) 20 Percent. Short-term, self- exposure, determined by multiplying any other category; liquidating, trade-related contingencies, the notional principal amount by the (11) Beginning 18 months after the including but not limited to commercial following credit conversion factors as effective date of this section, assets or letters of credit. appropriate.
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CONVERSION FACTOR MATRIX [In Percent]
Remaining maturity Interest rate Exchange rate Commodity
1 year or less ...... 0.0 1.0 10.0 Over 1 to 5 years ...... 0.5 5.0 12.0 Over 5 years ...... 1.5 7.5 15.0
(2) For any derivative contract that swaps are determined by their (8) Any deductions made by an does not fall within one of the categories replacement cost (mark-to-market). institution in the computation of its in the above table, the potential future permanent capital pursuant to credit exposure is be calculated using Subpart K—Surplus and Collateral § 615.5207 shall also be made in the the commodity conversion factors. The Requirements computation of its total surplus. net current exposure for multiple * * * * * derivative contracts with a single 10. Amend § 615.5301 by revising counterparty and subject to a qualifying paragraphs (b)(3), (i)(2), and (i)(8) to § 615.5330 [Amended] bilateral netting contract is the net sum read as follows: 11. Amend § 615.5330 by removing of all positive and negative mark-to- § 615.5301 Definitions. the reference ‘‘§ 615.5210(f)’’ and adding market values for each derivative in its place ‘‘§ 615.5210’’ in paragraphs contract. The positive sum of the net (b) * * * (a)(2) and (b)(3). current exposure is added to the (3) The deductions that must be made adjusted potential future credit by an institution in the computation of PART 620—DISCLOSURE TO exposure for the same multiple its permanent capital pursuant to SHAREHOLDERS § 615.5207(e), (f), (h), and (j) shall also contracts with a single counterparty. 12. The authority citation for part 620 be made in the computation of its core The adjusted potential future credit continues to read as follows: exposure is computed as Anet = (0.4 x surplus. Deductions required by Authority: Secs. 5.17, 5.19, 8.11 of the Agross) + 0.6 (NGR x Agross) where: § 615.5207(a) shall also be made to the Farm Credit Act (12 U.S.C. 2252, 2254, (i) Anet is the adjusted potential future extent that they do not duplicate credit exposure; deductions calculated pursuant to this 2279aa–11); secs. 424 of Pub. L. 100–233, 101 Stat. 1568, 1656. (ii) Agross is the sum of potential future section and required by credit exposures determined by § 615.5330(b)(2). Subpart A—General multiplying the notional principal * * * * * § 620.1 [Amended] amount by the appropriate credit (i) * * * conversion factor; and 13. Amend § 620.1(j) by removing the (2) Allocated equities, including (iii) NGR is the ratio of the net current reference ‘‘§ 615.5201(l)’’ and adding in allocated surplus and stock, that are not credit exposure divided by the gross its place ‘‘§ 615.5201.’’ current credit exposure determined as subject to a plan or practice of the sum of only the positive mark-to- revolvement or retirement of 5 years or Dated: July 30, 2004. markets for each derivative contract less and are eligible to be included in Jeanette C. Brinkley, with the single counterparty. permanent capital pursuant to Secretary, Farm Credit Administration Board. (3) Credit equivalents of single- § 615.5201; and [FR Doc. 04–17570 Filed 8–5–04; 8:45 am] currency floating/floating interest rate * * * * * BILLING CODE 6705–01–P
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Part III
Securities and Exchange Commission 17 CFR Parts 240, 241, and 242 Short Sales; Final Rule and Notice
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SECURITIES AND EXCHANGE Commission, 450 Fifth Street, NW., (2) define ownership of a security to COMMISSION Washington, DC 20549–1001, at (202) address security futures products and 942–0772: James Brigagliano, Assistant unconditional contracts to purchase 17 CFR Parts 240, 241 and 242 Director, Lillian Hagen, Alexandra securities; [Release No. 34–50103; File No. S7–23–03] Albright, and Elizabeth Sandoe, Special • Rule 201, which would replace Counsels, or Peter Chepucavage, Rule 10a–1 and apply a uniform price RIN 3235–AJ00 Attorney Fellow. test for exchange-listed and Nasdaq Short Sales SUPPLEMENTARY INFORMATION: The NMS securities based upon the Commission is adopting Rules 200, consolidated best bid instead of the AGENCY: Securities and Exchange 202T, and 203 of Regulation SHO 1 and current tick test based upon the last Commission. amending Rule 105 of Regulation M,2 reported sale; ACTION: Final rule; interpretation. and Rule 10a–13 under the Exchange • Rule 202T, which would establish a Act. procedure for the Commission to SUMMARY: The Securities and Exchange Table of Contents suspend on a temporary basis the Commission (‘‘Commission’’) is operation of Rule 10a–1 and any short adopting new Regulation SHO, under I. Introduction II. Price Test—Proposed Rule 201 sale price test of any exchange or the Securities Exchange Act of 1934 national securities association for (‘‘Exchange Act’’). Regulation SHO III. Rule 200—Definitions and Marking Requirements specified securities; and defines ownership of securities, IV. Rule 202T—Pilot Program • Rule 203, which would replace specifies aggregation of long and short V. Rule 203—Locate and Delivery current Rule 10a–2, incorporate positions, and requires broker-dealers to Requirements for Short Sales provisions of the existing self-regulatory mark sales in all equity securities VI. Rule 203(a)—Long Sales organization (‘‘SRO’’) ‘‘locate’’ rules into ‘‘long,’’ ‘‘short,’’ or ‘‘short exempt.’’ VII. Rule 105 of Regulation M—Short Sales a uniform Commission rule applicable in Connection with a Public Offering Regulation SHO also includes a to all equity securities, wherever they temporary rule that establishes VIII. Paperwork Reduction Act IX. Cost-Benefit Analysis are traded, and impose additional procedures for the Commission to delivery requirements on broker-dealers suspend temporarily the operation of X. Consideration of Promotion of Efficiency, Competition, and Capital Formation for securities in which a substantial the current ‘‘tick’’ test and any short sale XI. Final Regulatory Flexibility Analysis amount of failures to deliver have price test of any exchange or national XII. Statutory Basis and Text of Adopted occurred. securities association, for specified Amendments We also proposed revisions to Rule securities. Regulation SHO also requires 105 of Regulation M (short selling in short sellers in all equity securities to I. Introduction connection with a public offering) to locate securities to borrow before A short sale is the sale of a security eliminate the current shelf offering selling, and also imposes additional that the seller does not own or any sale exception, and provide interpretive delivery requirements on broker-dealers that is consummated by the delivery of guidance addressing sham transactions for securities in which a substantial a security borrowed by, or for the designed to evade the rule. number of failures to deliver have account of, the seller. In order to deliver occurred. The Commission is also the security to the purchaser, the short We received letters from 462 adopting amendments that remove the commenters in response to proposed seller will borrow the security, typically 5 shelf offering exception, and issuing from a broker-dealer or an institutional Regulation SHO. The responses varied interpretive guidance addressing sham investor. The short seller later closes out widely, with some commenters arguing transactions designed to evade the position by purchasing equivalent for more stringent short sale regulation Regulation M. securities on the open market, or by and others advocating the elimination of The Commission is deferring using an equivalent security it already many or all short sale restrictions. consideration of the proposal to replace owned, and returning the security to the After considering the comments the current ‘‘tick’’ test with a new lender. In general, short selling is used received, and upon further examination uniform bid test restricting short sales to to profit from an expected downward of current market practices and the a price above the consolidated best bid, price movement, to provide liquidity in purposes underlying short sale and also deferring consideration of the response to unanticipated demand, or to proposed exceptions to the uniform bid hedge the risk of a long position in the 5 The comment letters and a comprehensive test. The Commission will reconsider summary of the comments are available for same security or in a related security. inspection in the Commission’s Public Reference any further action on these proposals On October 28, 2003, the Commission Room in File No. S7–23–03, or may be viewed at after the completion of the pilot proposed Regulation SHO, which would http://www.sec.gov/rules/proposed/s72303.shtml. established by Regulation SHO. replace Rules 3b–3, 10a–1, and 10a–2 The 438 different letters from 462 commenters under the Exchange Act.4 As proposed, reflect the number of different letters received; thus DATES: Effective Date: September 7, form letters, referred to as ‘‘letter types’’ on the 2004 except part 241 will be effective Regulation SHO contained the following Commission’s Web site (www.sec.gov), counted as August 6, 2004 and § 242.202T will be rules: one letter. For example, 18 individuals sent Letter effective from September 7, 2004 to • Rule 200, which would replace Type A, 21 individuals sent Letter Type B, 18 Rule 3b–3 and: (1) Define the term individuals sent Letter Type C, 19 individuals sent August 6, 2007. Letter Type D, two individuals sent Letter Type E, Compliance Date: The compliance ‘‘short sale’’ to allow multi-service two individuals sent Letter Type F, 15 individuals date for §§ 242.200 and 203 is January broker-dealers to aggregate their sent Letter Type G, two individuals sent Letter Type 3, 2005. The compliance date for positions by separate trading units; and H, 15 individuals sent Letter Type I, and four individuals sent Letter Type J. In addition, although § 242.202T is the same as its effective submitted under Regulation SHO, Letter Types H, 1 date, September 7, 2004. 17 CFR 242.200 through 242.203. I, and J substantively refer to amendments to NASD 2 FOR FURTHER INFORMATION CONTACT: Any 17 CFR 242.105. Rule 3370. See Securities Exchange Act Release No. 3 17 CFR 240.10a–1. 49285 (February 19, 2004), 69 FR 8717 (February of the following attorneys in the Office 4 Securities Exchange Act Release No. 48709 25, 2004). They are included in the total here of Trading Practices, Division of Market (October 28, 2003), 68 FR 62972 (November 6, 2003) because commenters indicated that they were Regulation, Securities and Exchange (‘‘Proposing Release’’). submitted in response to proposed Regulation SHO.
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regulation,6 we have decided to adopt on market volatility, price efficiency, consolidated best bid at the time of certain provisions of proposed and liquidity, and to obtain empirical execution.11 Regulation SHO and to defer data to help assess whether a short sale The comments we received on the consideration of other provisions. We price test should be removed, in part or proposed price test varied widely. Some are adopting proposed Rule 200, with in whole, for some or all securities, or commenters (including the Investment some minor modifications. Rule 200, if retained, should be applied to Company Institute (‘‘ICI’’), North which incorporates Rule 3b–3, defines additional securities. American Securities Administrators ownership for short sale purposes, and The Commission’s Office of Economic Association (‘‘NASAA’’), and many clarifies the requirement to determine a Analysis (‘‘OEA’’) will gather and smaller investors) advocated more seller’s net aggregate position. We have analyze data during the pilot period to stringent short sale regulation. These also decided to incorporate into Rule assess trading behavior in the absence of commenters, favored extending the 200 the proposed requirements to mark short sale price restrictions. proposed bid test to smaller issuers and sales in all equity securities ‘‘long,’’ Additionally, researchers are urged imposition of stricter locate and ‘‘short,’’ or ‘‘short exempt.’’ 7 We believe encouraged to provide the Commission delivery requirements. Other that the ownership, aggregation, and with their own empirical analyses of the commenters, despite supporting many marking requirements are important for pilot.9 of the initiatives, argued for maintaining all short sale regulations. We are adopting additional proposals the current ‘‘tick’’ test. The New York We are also adopting Rule 202T, in Regulation SHO, which we believe Stock Exchange (‘‘NYSE’’), a proponent which creates a procedure for the are necessary and appropriate regardless of retaining the tick test, also contended Commission to establish, through a of whether short sales are subject to a that the NYSE should be allowed to separate order, a pilot program pursuant price test, to clarify provisions and to maintain a tick test for short sales on the to which the Commission may exclude address commenters’ concerns. As exchange even if the Commission designated securities from the operation adopted, Rule 203 creates a uniform determines to eliminate price 12 of the tick test of Rule 10a–1 and any Commission rule requiring broker- restrictions on short sales. short sale price test rule of any exchange dealers, prior to effecting short sales in Additionally, the NYSE letter stated that or national securities association all equity securities, to ‘‘locate’’ it was representing the views of its (‘‘pilot’’). Concurrently with this release, issuers. None of these issuers submitted securities available for borrowing, and 13 we are issuing an order establishing a imposes additional delivery comments separately. A number of commenters, including pilot program employing the procedures requirements on broker-dealers for 8 some of the largest broker-dealers (e.g., of Rule 202T. We have determined not securities in which a substantial amount J.P. Morgan, UBS Securities, Lehman to proceed with the uniform bid test of of failures to deliver have occurred Brothers), the Securities Industry proposed Rule 201 until we have (‘‘threshold securities’’). We believe that Association (‘‘SIA’’), and one regional obtained the results of the pilot. Rule strong and uniform requirements in this exchange, Chicago Stock Exchange 10a–1, as well as all SRO price tests, area will reduce short selling abuses. (‘‘CHX’’), advocated that the will be maintained in present form for The locate and delivery requirements securities not included in the pilot. Commission consider further the will act as a restriction on so-called necessity of any price test (either the We believe that conducting a pilot ‘‘naked’’ short selling.10 pursuant to Rule 202T is an important current tick test or the proposed bid We are also adopting amendments to test). Generally, these commenters component of evaluating the overall Rule 105 of Regulation M in order to effectiveness of price test restrictions on supported the pilot as a good first step, eliminate the shelf exception. In the but argued that the pilot should be short sales. The pilot will allow us to Proposing Release we sought comment obtain data on the impact of short shortened from the proposed two-year on how to address ‘‘sham’’ transactions duration to one year to expedite this selling in the absence of a price test to that are structured to give the false assist in determining, among other process. These commenters, and other appearance that short sales are being broker-dealers (e.g., Goldman Sachs, things, the extent to which a price test covered with open market shares, when is necessary to further the objectives of Citigroup, Merrill Lynch, and Morgan in fact, the short seller has arranged to Stanley), raised various concerns about short sale regulation, to study the effects cover the short sale with offering shares, of relatively unrestricted short selling the proposed price test, and opposed the thereby violating Rule 105. We are Commission requiring market issuing interpretive guidance relating to 6 In adopting the tick test, the Commission sought to achieve three objectives: (i) allowing relatively ‘‘sham’’ transactions that violate Rule 11 Additionally, the Commission sought comment unrestricted short selling in an advancing market; 105. on an alternative price test that would allow short (ii) preventing short selling at successively lower selling at a price equal to or above the consolidated prices, thus eliminating short selling as a tool for II. Price Test—Proposed Rule 201 best bid if the current best bid is above the previous driving the market down; and (iii) preventing short bid (i.e., an upbid). Under this alternative, short sellers from accelerating a declining market by We proposed Rule 201 of Regulation selling would be restricted to a price at least one exhausting all remaining bids at one price level, SHO to replace Rule 10a–1’s tick test cent above the consolidated best bid if the current causing successively lower prices to be established with a price test using the consolidated best bid is below the previous bid (i.e., a downbid). by long sellers. See Securities Exchange Act Release best bid as the reference point for 12 The Specialist Association also argued for No. 13091 (December 21, 1976), 41 FR 56530 permissible short sales. Specifically, maintaining the current tick test on exchange-listed (December 28, 1976). As we stated in the Proposing securities, and also opposed the proposed pilot Release, short selling provides the market with at subparagraph (b) of proposed Rule 201 program, arguing that it is likely to have least two important benefits: market liquidity and would have required that all short sales unwarranted and unintended adverse effects on the pricing efficiency. Proposing Release, 68 FR at in covered securities be effected at a securities included in the pilot, and could 62974. price at least one cent above the disadvantage these issuers compared to peer issuers 7 This marking requirement had been proposed in that remain subject to the tick test. Rule 201(c). The marking requirements as adopted 13 The letter from the American Society of in Rule 200 apply to short sales in all equity 9 The Commission expects to make information Corporate Secretaries (‘‘ASCS’’), an organization of securities, in contrast to paragraphs (c) and (d) of obtained during the pilot publicly available. corporate issuers, did not opine on the pilot or the current Rule 10a–1, which only apply to exchange- 10 ‘‘Naked’’ short selling, while not defined in the proposed bid test, but rather focused exclusively on listed securities. federal securities laws or SRO rules, generally refers the effects of short selling on proxy voting. The 8 Securities Exchange Act Release No. 50104 (July to selling short without having borrowed the Commission expects to determine at a future date 28, 2004). securities to make delivery. whether to take action with regard to that issue.
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participants to expend time and order for a person to claim ownership of holder the right, but not the obligation, resources to re-program systems for the the securities underlying the contract. to acquire the securities. proposed bid test prior to the Given our decision to maintain the We believe that the ownership completion of a pilot, especially if a status quo on the short sale price test in language in Rule 3b–3 implicitly possible outcome following the Rule 10a–1, we have determined not to contemplates that there is a high degree completion of the pilot is the removal of amend the current definition of of certainty that the person presently a price test altogether based on the ‘‘unconditional contract’’ found in Rule will obtain possession of the security. results of the pilot.14 3b–3(b). Our decision primarily relates The distant time element of a futures We have decided that the prudent to our intent to preserve the operation product is inconsistent with this course of action is to defer consideration of the current price test during the position. Moreover, the sale of securities of the proposed uniform bid test until application of Rule 202T’s pilot related to a future-dated delivery after the conclusion of any pilot program. Amending qualifications for contract necessitates borrowing for established pursuant to Rule 202T. As ownership of securities would affect net delivery, thus rendering the sale of the noted, the purpose of the pilot is to long positions, and thus have an impact related securities a short sale. Therefore, assist the Commission in considering on various trading strategies. However, a futures contract is more analogous to alternatives, such as: (1) Eliminating a we will continue to consider whether other derivative products than to an Commission-mandated price test for an any future changes to the unconditional unconditional contract. appropriate group of securities, which contract provision are appropriate, and Therefore, we are adopting the may be all securities; (2) adopting a may revisit our decision upon proposed language relating to uniform bid test, and any exceptions, termination of any pilot that will be ownership of securities underlying a with the possibility of extending a implemented pursuant to Rule 202T. security futures contract. This uniform bid test to securities for which interpretation is consistent with existing there is currently no price test; or (3) 2. Ownership of Securities Underlying Commission guidance concerning the leaving in place the current price tests.15 Securities Futures Products—Rule manner in which Rule 3b–3 addresses 200(b)(6) instances where a person owns a III. Rule 200—Definitions and Marking derivative instrument that entitles the Requirements We proposed Rule 200(b)(6) to achieve consistency with existing person to acquire securities underlying We are adopting Rule 200 to Commission guidance that defines when the instrument, e.g., options, rights, incorporate Rule 3b–3 of the Exchange a person shall be deemed to own a warrants, convertibles, and security 16 21 Act, with some amendments to the security underlying a security futures futures. rule’s current text. One of the key contract.18 The proposed amendment 3. Aggregation Units—Rule 200(f) changes in Rule 200 is the requirement provided that a person holding a long to mark sell orders in all equity We are adopting aggregation unit security futures position is not securities ‘‘long,’’ ‘‘short,’’ or ‘‘short netting in Rule 200(f). Historically, a considered to own the underlying exempt.’’ Additionally, Rule 200 allows multi-service broker-dealer was security, for Rule 200 purposes, until broker-dealers to calculate net positions considered one entity, so all of its the security future stops trading and the in a particular security within defined positions were aggregated to determine future will be physically settled. In the trading units; incorporates the block- the firm’s net position.22 However, firm- Proposing Release, we stated that positioner exception from current Rule wide aggregation often interfered with termination of trading is the moment at 10a–1(e)(13); and codifies prior the trading of independent units within which an open position in a security interpretations related to the ownership the broker-dealer. The staff of the future, either a long or short position, of security futures products, and the Division of Market Regulation therefore can no longer be closed or liquidated unwinding of certain index arbitrage issued a no-action letter allowing multi- either by buying or selling an opposite positions.17 service broker-dealers to aggregate their position. At that point, the person positions within defined trading units.23 A. Ownership obligated to deliver would be We proposed to incorporate trading unit considered short, and a person entitled 1. Unconditional Contracts To Purchase aggregation, for purposes of determining to acquire the securities would be Securities—Rule 200(b)(2) the trading unit’s net position, into considered long.19 Regulation SHO.24 As proposed, paragraph (b) of Rule One commenter addressed the Rule 200 would have amended the definition 200 proposal and asserted that a person of unconditional contract to require the 21 See Guidance Release. who holds a security future, which 22 specification of a fixed price and Under Rule 3b–3, a seller of an equity security obligates the person to take delivery of subject to Rule 10a–1 must aggregate all of its amount of securities to be purchased in the underlying securities by physical positions in that security in order to determine settlement, should be considered long whether the seller has a ‘‘net long position’’ in the 14 See e.g., letter from The American Stock 20 security. 17 CFR 240.3b–3. See also Securities Exchange (‘‘Amex’’); letter from CHX. Amex the securities. Additionally, the Exchange Act Release No. 20230 (September 27, estimated that it would take the exchange three and commenter argued that securities 1983), 48 FR 45119, 45120 (October 3, 1983) (to a half months to make the necessary surveillance futures products are ‘‘materially determine whether a person has a ‘‘net long changes and would cost roughly $125,000. CHX different’’ from options, rights, warrants, position’’ in a security, all accounts must be represented that the aggregate cost to the exchange aggregated); Securities Exchange Act Release No. and its floor members would amount to at least and convertibles, which merely give the 27938 (April 23, 1990), 55 FR 17949, 17950 $500,000. (aggregation must be based on a listing of securities 15 As a result, all existing exceptions and 18 See Commission Guidance on the Application positions in all proprietary accounts as determined exemptions from Rule 10a–1 remain in effect. In of Certain Provisions of the Securities Act of 1933, at least once each trading day). addition, at this time, because we are not adopting the Securities Exchange Act of 1934, and Rules 23 1998 SEC No-Act LEXIS 1038 (November 23, the proposed uniform bid test, we have deferred a thereunder to Trading in Security Futures Products, 1998) (aggregation unit netting no-action letter). decision on our proposal to codify prior exemptive Securities Exchange Act Release No. 46101 (June 24 For firms not relying on the aggregation unit relief. See Proposing Release, Section VII. 21, 2002), 67 FR 43234 (June 27, 2002) (‘‘Guidance exception, we understand that available technology 16 Rule 3b–3 sets forth the definition of ‘‘short Release’’). allows firms to aggregate their firm-wide positions sale’’ and identifies the specific instances for 19 Guidance Release at II.B.2.; Proposing Release on a real-time basis. To the extent that a firm is determining a long position. 17 CFR 240.3b–3. at n. 179. unable to accomplish real-time aggregation on a 17 See Proposing Release, Section X. 20 See letter from LEK Securities. firm-wide basis, it should be able to demonstrate
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As proposed and adopted, Rule 200(f) position. Block positioning occurs when staff no-action letter.32 Proposed Rule permits trading unit aggregation if a a broker-dealer acts as principal in 200(d) contained additional provisions registered broker-dealer meets the taking all or part of a block order placed that were not contained in the prior no- following requirements: (1) The broker- by a customer in order to facilitate a action letter. Three commenters dealer has a written plan of organization transaction that might otherwise be supported the relief, but stated that the that identifies each aggregation unit, difficult to effect in the ordinary course relief was too limited.33 Generally, these 28 specifies its trading objective(s), and of trading. The block positioner may commenters preferred the relief as 25 supports its independent identity; (2) then seek to sell the securities so provided by the Merrill Lynch letter. We each aggregation unit within the firm acquired. The exemption for block have carefully reviewed the comments determines at the time of each sale its positioners addresses the interaction and have determined to include the net position for every security that it between the price test under Rule 10a– additional provisions in connection trades; (3) all traders in an aggregation 1 and the determination of the seller’s unit pursue only the trading objectives net position under Rule 3b–3.29 A with the liquidation of an index or strategy(ies) of that aggregation unit; broker-dealer that engages in block- arbitrage position. The Commission still and (4) individual traders are assigned positioning will continue to be able to believes that a market decline restriction to only one aggregation unit at any disregard economically neutral bona- is appropriate and in the public interest, time.26 fide arbitrage, risk arbitrage, and bona- and will avoid incremental selling We believe that these conditions are fide hedge positions involving short pressure at the close of trading on a necessary to prevent potential abuses stock components in determining its net volatile trading day and at the opening associated with establishing aggregation position in the block-positioned of trading on the following day, since units within multi-service broker- security. trading activity at these times may have dealers. Specifically, we require a Under subparagraph (e) of Rule 200, a substantial effect on the market’s written plan of organization as a means we are adopting relief for sales effected short-term direction. to demonstrate that each unit is in connection with the unwinding of an As proposed and adopted, the independent and engaged in separate index arbitrage position. Rule 200(e) exception for unwinding index arbitrage trading strategies without regard to provides a limited relaxation of the other trading units. Aggregation of the requirement that a person selling a positions provided in Rule 200(e) is unit’s net position prior to each sale security aggregate all of the person’s limited to the following conditions: (1) limits the potential for abuse associated positions in that security to determine The index arbitrage position involves a with coordination among units. The whether he or she has a net long long basket of stock and one or more final two conditions, limiting traders to position. In a manner similar to that short index futures traded on a board of the pursuit of the trading strategies or permitted under the block positioner trade or one or more standardized objectives of the particular aggregation exception in Rule 200(d), this provision options contracts; (2) such person’s net unit and the assignment to only one allows market participants to liquidate short position is solely the result of one aggregation unit at a time, are both (or unwind) certain existing index or more short positions created and designed to maintain the independence arbitrage positions involving long maintained in the course of bona-fide of the units. Thus, if two or more traders baskets of stocks and short index futures arbitrage, risk arbitrage, or bona-fide or groups of traders (i.e., desks) within or options without aggregating short hedge activities; and (3) the sale does the same firm coordinate their trading stock positions in other proprietary not occur during a period commencing activities, those traders or groups must accounts if and to the extent that those at the time that the Dow Jones Industrial be in the same aggregation unit.27 short stock positions are fully hedged. Average (‘‘DJIA’’) has declined below its 4. Block Positioners and Liquidation of To qualify for the relief, the liquidation closing value on the previous trading Index Arbitrage Positions—Rule 200(d) of the index arbitrage position must day by at least two percent and and (e) relate to a securities index that is the terminating upon the establishment of subject of a financial futures contract (or the closing value of the DJIA on the next As proposed, we are incorporating the options on such futures) traded on a block positioner exception (currently succeeding trading day during which contract market, or a standardized the DJIA has not declined by two found in subsection (e)(13) of Rule 10a– options contract,30 notwithstanding that percent or more from its closing value 1) into Rule 200(d) because this such person may not have a net long on the previous day. If a market decline provision directly relates to the position in that security.31 calculation of a broker-dealer’s net Aggregation relief for index arbitrage triggers the application of subparagraph positions was originally granted in a (e)(2), a broker-dealer must aggregate all why such aggregation is impracticable and that the of its other positions in that security to alternative method employed (e.g., on a daily basis) 28 accurately reflects firm ownership positions. Securities Exchange Act Release No. 15533 (January 29, 1979), 44 FR 6084 (January 31, 1979) 32 25 As noted in the Proposing Release, the See letter re: Merrill Lynch, Pierce, Fenner & independence of the units would be evidenced by (noting that the Commission has long recognized Smith, Inc. (December 17, 1986); Securities a variety of factors, such as separate management the important role that block positioning plays in Exchange Act Release No. 27938 (April 23, 1990), structures, location, business purpose, and profit providing liquidity for large securities transactions 55 FR 17949 (April 30, 1990) (clarifying and and loss treatment. and in maintaining fair and orderly markets). emphasizing certain aspects of the limited relief 29 26 Two commenters focused on expanding See Securities Exchange Act Release No. 20230 granted in the Merrill Lynch letter). The Merrill aggregation unit netting to non-broker-dealers. See (September 27, 1983) 48 FR 45119 (October 3, 1983) Lynch letter provided no-action relief if: (i) The letters from LEK Securities; MFA. The Commission (proposing the block positioner exception); see also firm has a long stock position as part of an index has determined not to extend aggregation unit Securities Exchange Act Release No. 20715 (March arbitrage position; (ii) the stock is being sold in the netting to entities that lack self-regulatory oversight 6, 1984), 49 FR 9414 (March 13, 1984) (adopting the course of ‘‘unwinding’’ an index arbitrage position; and are not subject to Commission examination. block positioner exception). and (iii) the sale would be a short sale, as defined The lack of regulatory oversight may facilitate the 30 ‘‘Standardized options contract’’ is defined in in Rule 3b–3, solely as a result of the netting of the creation of units that are not truly independent or Rule 9b–1(a)(4) under the Exchange Act. 17 CFR index arbitrage long position with one or more short separate. 240.9b–1(a)(4). positions created in the course of bona-fide hedge 27 As with any rule, broker-dealers relying on this 31 The Commission proposed to codify this relief activities. exception should be prepared to monitor for in 1992, but the proposal was not adopted. See 33 See letters from LEK Securities; Willkie Farr & compliance with its conditions, and maintain Securities Exchange Act Release No. 30772 (June 3, Gallagher, LLP (‘‘Willkie Farr’’) (sent on behalf of records documenting such compliance. 1992), 57 FR 24415 (June 9, 1992). J.P. Morgan Securities and UBS Securities).
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determine whether the seller has a net seller is entitled to rely on an exception Some commenters opposed any long position.34 from the tick test of Rule 10a–1, or the suspension of a price test for short sales, price test of an exchange or national and expressed concern about possible B. Order-Marking Requirements—Rule securities association.36 Short sales of pricing anomalies and disparate trading 200(g) pilot securities effected during any pilot activity in securities within the same We are adopting the new order- period should be marked ‘‘short industry where one security is subject to marking requirements proposed in Rule exempt.’’ a price test and another is not.39 We 201(c) and incorporating them into Rule The new marking requirements will considered these suggestions together 200(g). Since the new marking eliminate the prior discrepancy between with other comments that not only requirements apply to all equity how Rule 3b–3 defined a short sale and supported the pilot, but recommended securities, not just exchange-listed the marking provisions previously that the pilot criteria be expanded to securities, we are removing them from found in Rule 10a–1. In addition, the include, among other things, less liquid current Rule 10a–1. The new order- new marking requirements should securities; securities with position limit marking requirements differentiate facilitate the surveillance and tiers for listed options; and stocks that between ‘‘long,’’ ‘‘short,’’ and ‘‘short monitoring of compliance with Rule currently qualify for the Regulation M exempt’’ orders for all exchange-listed 10a–1. The change to the marking exception for actively-traded and over-the-counter equity securities. requirements will provide information securities.40 Under the former marking that shows when exceptions from Rule A number of commenters stated that requirements in Rule 10a–1(d), a broker- 10a–1 are used. the proposed two-year time span for the dealer could only mark an order to sell pilot would be too long.41 For example, a security ‘‘long’’ if the security was IV. Rule 202T—Pilot Program Nasdaq asserted that the pilot should carried in the account for which the sale A. General only last as long as absolutely necessary, is to be effected, or the broker-dealer is to minimize the impact on issuers and We proposed Rule 202T to provide a informed that the seller owns the the market, and suggested a six-month procedure for the Commission to security to be sold, and will deliver the or twelve-month pilot. The NYSE suspend, on a pilot basis, the trading security to the account for which the expressed concern that a two-year pilot restrictions of the Commission’s short sale is effected as soon as possible is ‘‘an exceptionally long time,’’ sale price test, as well as any short sale without undue inconvenience or especially if there were no quick 35 price test of any exchange or national expense. We had proposed changing mechanism to shorten or end the pilot securities association, for short sales in the marking requirement so that a sale if it proves to dislocate market prices. such securities as the Commission could only be marked ‘‘long’’ if the The STA favored a six-month pilot. seller owns the security being sold and designates by order as necessary or After careful consideration of the either the security to be delivered is in appropriate in the public interest and comments received, we are adopting a the physical possession or control of the consistent with the protection of modified version of proposed Rule broker-dealer, or will be in the physical investors, after giving due consideration 202T. As adopted, Rule 202T provides possession or control of the broker- to the security’s liquidity, volatility, 37 procedures for the Commission to dealer prior to settlement of the market depth and trading market. We suspend any short sale price test for transaction. stated our belief that temporary such securities and for such time As adopted, an order can be marked suspension of Commission and SRO periods as the Commission deems ‘‘long’’ when the seller owns the price tests is an essential component of security being sold and the security evaluating the overall effectiveness of Theodore J. Siegel; Todd Sherman; SIA; Dan either is in the physical possession or such restrictions, and would permit the Solomon; The Securities Traders Association control of the broker-dealer, or it is collection of data on the impact of short (‘‘STA’’); Securities Traders Association of New reasonably expected that the security selling in the absence of a price test. York (‘‘STANY’’); Jimmie E. Williams; Willkie Farr. will be in the physical possession or Overall, thirty-eight commenters 39 See, e.g., letters from Anthony Gentile; Robert 38 Morrow; NYSE; The Specialists Association. The control of the broker or dealer no later expressed support for a pilot program. NYSE asserted that a pilot will create a confusing than settlement. We added the language system that will ‘‘slow trading, lead to errors and ‘‘reasonably expected’’ because we 36 In this situation, the seller may be entitled to baffle market participants’’ as well as create acknowledge that it may be difficult for rely on an exception if the seller ‘‘owns the security ‘‘artificially anomalous price situations, particularly sold and intends to deliver such security as soon for securities within the same industry where some a person to know with certainty at the as possible without undue inconvenience or are subject to a ‘tick’ or ‘bid’ test and others are time of sale that a security will be in the expense.’’ 17 CFR 240.10a–1(e)(1). Additionally, the not.’’ possession or control of the broker- seller may be entitled to rely on an exception from 40 Some commenters suggested expanding the dealer prior to settlement. However, if a Rule 203(b)(2)(ii), as adopted, if the seller owns the scope of stocks that may be included in a pilot. See person owns the security sold and does security sold pursuant to Rule 200, and the seller letters from CBOE; Coreina Chan; Timothy K. intends to deliver the security as soon as all Dolnier; Charles W. Hansford; Zachary Hepner; not reasonably believe that the security restrictions on delivery have been removed, and no Gregory Kleiman; Michael Lucarello; Nasdaq; will be in the possession or control of later than 35 days after trade date. See Rule [email protected]; Tal Plotkin; David the broker-dealer prior to settlement, the 203(b)(2)(ii), discussed further in Part V.A.1.c., Schwarz; Dan Solomon; STA; STANY; Hiro sale should be marked ‘‘short.’’ The sale infra. However, without an exception to the price Shinohara; Daniel C. Sweeney. Additionally, some test, this sale should be marked ‘‘short.’’ advocated including less liquid Nasdaq NMS and could be marked ‘‘short exempt’’ if the 37 See Proposing Release, Section V. listed securities, while others argued for including 38 See letters from James Angel; Archipelago groups of stocks with the two highest position limit 34 We have adopted language that closely Holdings (‘‘ARCA’’); Yuseff J. Burgess; Chicago tiers for listed options. See letters from STA; resembles the block positioner exception in Rule Board Options Exchange (‘‘CBOE’’); Dario Cosic; STANY; CBOE. SIA’s letter suggested using stocks 200(d) since we believe that the economic rationale Davis Polk; Timothy K. Dolnier; Tolga Erman; Chris that currently qualify for the Regulation M for and the operation of both exceptions are Freddo; Kristopher Goldhair; Chris Gregg; Marc exception for actively-traded securities because analogous. Securities Exchange Act Release No. Griffin; Charles W. Hansford; Zachary Hepner; ICI; they are less susceptible to market manipulation 30772 (June 3, 1992), 57 FR 24415 (June 9, 1992) Mike Ianni; Brian Ingram; Kevin Karlberg; Gregory and because programming costs may be less as at n. 60 (citing Securities Exchange Act Release No. Kleiman; LEK Securities; Michael Lucarello; Hal many broker-dealers already have systems in place 20230, 48 FR at 45119); Securities Exchange Act Lux and Leon M. Metzger; Managed Funds to identify such stocks. Release No. 20715 (March 6, 1984), 49 FR 9414 Association (‘‘MFA’’); Raymond J. Murphy; Nasdaq 41 See letters from James Angel; Charles Schwab (March 13, 1984)). Stock Market (‘‘Nasdaq’’); [email protected]; Capital Markets (‘‘Charles Schwab’’); Nasdaq; 35 17 CFR 240.10a–1(d). Tal Plotkin; David Schwarz; Sinan Selcuk; NYSE; STA; STANY.
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necessary or appropriate, in the public abusive or manipulative behavior. We applies to all trades in listed securities, interest and consistent with the note, however, that most of the more whenever they occur, including in the protection of investors after giving due liquid securities that will be appropriate after-hours market and after the consideration to the securities’ liquidity, for a pilot are traded on exchanges or consolidated transaction reporting volatility, market depth and trading other organized markets with high system ceases to operate.48 A significant market. Any such pilot would levels of transparency and surveillance. number of commenters objected to this commence by separate order of the This would enhance the ability of the position, arguing that there is limited Commission, which would allow the Commission and SROs to monitor liquidity after regular trading hours, and Commission to act quickly should trading behavior during the operation of that the trades do not generate price adverse findings result from any pilot. any pilot and to surveil for manipulative effects associated with the abusive As part of that process, we would short selling. Moreover, the general anti- practices that the short sale rule is consider the concerns expressed by fraud and anti-manipulation provisions designed to prevent.49 These some commenters that any pilot last of the federal securities laws will commenters further argued that many only as long as absolutely necessary to continue to apply to trading activity in short sales that are executed after-hours allow the Commission to gather these securities, thus prohibiting trading are facilitating trades that are sufficient data. The order establishing activity designed to improperly provisionally agreed to during regular any such pilot would identify the pilot influence the price of a security.45 In trading hours, and accordingly provide stocks and set forth the methodology we addition, a pilot would suspend only liquidity to investors.50 would use in selecting pilot and control the operation of the price test, while the Moreover, some commenters asserted group stocks. Any such order would other requirements of Regulation SHO, that many after-hours trades are also indicate the factors we plan to including the order-marking, locate and currently executed overseas due to the analyze in the pilot, such as the impact delivery requirements, would remain in operation of Rule 10a–1.51 Excepting on market quality, price changes caused effect.46 short sales executed after-hours on a by short selling, costs imposed by the Further, as adopted, Rule 202T makes pilot basis may result in these trades tick test, and the use of alternative explicit that no SRO ‘‘shall have a rule being executed in the United States, means to establish short positions. that is not in conformity with or thus allowing for increased surveillance By separate order, the Commission is conflicts with’’ the suspension of a price of these trades and providing increased establishing a pilot that includes a test for the securities selected for the liquidity to potential U.S. buyers. subset of securities from a broad-based pilot. Although a few commenters In response to the comments received, index. The order identifies the pilot asserted that SRO price tests should Rule 202T, as adopted, establishes a stocks and sets forth the methodology remain in effect even if the Commission procedure by which we may suspend on we used in selecting pilot and control determined to eliminate price a pilot basis the tick test of Rule 10a– 47 group stocks.42 We believe that a pilot restrictions on short sales, as we noted 1(a) and any SRO short sale price test established under Rule 202T using a in the Proposing Release, we believe it during such time periods as the subset of securities from a broad-based would be inconsistent with, and Commission finds necessary or index will provide a balanced and detrimental to the goals of, Rule 202T appropriate and consistent with the targeted approach to assessing the and any pilot to allow SRO price tests protection of investors. Any such pilot to continue to apply to securities subject would commence by order of the efficacy of a price test for short sales. 52 There is the potential that prices and to the pilot. A pilot would be intended Commission. The order described trading activity may vary between to allow the Commission to, among above establishes a pilot removing any securities included in a pilot and other things, study the effects of price test for short sales of certain similar securities subject to the price relatively unrestricted short selling on securities effected during certain after- test.43 However, to the extent there are trading behavior for a select group of hours periods. stocks. If pilot stocks remained subject price and trading activity variations, V. Rule 203—Locate and Delivery to SRO price tests, the empirical data this is precisely the empirical data that Requirements for Short Sales the Commission seeks to obtain and would be compromised and the value of analyze as part of our assessment as to the study undermined. As a result, Rule A. ‘‘Locate’’ Requirement 202T, as adopted, prohibits the SROs whether the price test should be We are adopting proposed Rule 203, from applying a price test for short sales removed or modified, in part or whole, with some modifications, after in securities selected for a pilot during for actively-traded securities or other considering the comments received.53 the operation of any pilot. securities. 44 We appreciate the concerns expressed B. After-Hours Trading 48 Proposing Release, Section XIV.A. After the by some commenters that issuers subject consolidated tape ceases to operate, the tick test We included in the Proposing Release rule prevents any person from effecting a short sale to a pilot could be unfairly our interpretation that the tick test at a price that is lower than the last sale reported disadvantaged because of potentially to the tape. 49 See, e.g., letters from James Angel; Charles 45 See, e.g., Securities Act of 1933 (‘‘Securities 42 The Commission may in the future issue other Act’’) Section 17(a), and Exchange Act Sections Schwab; Davis Polk; Goldman; Citigroup; Merrill orders adopting other pilot programs. 9(a), 10(b), and 15(c) and Rules 10b–5 and 15c1– Lynch; Morgan Stanley; LEK Securities; MFA; SIA; 43 See, e.g., letter from SONECON, LLC. 2 thereunder. Susquehanna International Group, LLP; Willkie Farr. 44 No individual issuers submitted comment 46 Also, the order permits the Commission to act 50 letters opposing a pilot or expressing concern about quickly to modify the pilot to address any adverse See, e.g., letters from Goldman, Citigroup, the possible disparate trading of securities subject results, should we determine that continued Merrill Lynch, Morgan Stanley. to a pilot or about the possible adverse impact on operation of an established pilot would not be 51 See, e.g., letter from SIA. their securities should the price test be removed necessary or appropriate in the public interest or 52 The order that is being issued concurrently from short selling in their stock on a temporary inconsistent with the protection of investors. with this release includes a pilot for short sales basis. However, the NYSE submitted a letter 47 The NYSE asserted that it should be allowed occurring after hours. See, n. 8, supra. expressing concern ‘‘on behalf of its members and to maintain a tick test for short sales on the NYSE 53 Most commenters welcomed the Commission’s its listed companies’’ that strongly supported even if the Commission determines to eliminate proposal as a means to address potential continuing price restrictions and expressed concern price restrictions on short sales. The Specialist manipulation through so called ‘‘naked’’ short about unscrupulous market participants forcing Association also argued for maintaining the current selling, and additionally welcomed replacing the prices lower in stocks not subject to a price test. tick test on exchange-listed securities. Continued
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As adopted, Rule 203(b) creates a the locate requirement should apply to that the security sold short is available uniform Commission rule requiring a a regulated entity—the broker-dealer for borrowing without directly broker-dealer, prior to effecting a short effecting the sale—and have modified contacting the source of the borrowed sale in any equity security, to ‘‘locate’’ the adopted rule accordingly.57 securities.60 In order for it to be securities available for borrowing. For Therefore, the rule as adopted makes reasonable that a broker-dealer rely on covered securities, Rule 203 supplants clear that the broker-dealer effecting the such lists, the information used to current overlapping SRO rules. short sale has the responsibility to generate the ‘‘Easy to Borrow’’ list must 58 Specifically, the rule prohibits a broker- perform the locate. be less than 24 hours old, and securities We requested comment in the dealer from accepting a short sale order on the list must be readily available in any equity security from another Proposing Release on the manner in such that it would be unlikely that a person, or effecting a short sale order for which persons could satisfy the failure to deliver would occur.61 the broker-dealer’s own account unless ‘‘reasonable grounds’’ determination in the broker-dealer has (1) borrowed the the proposed rule. In particular, we Therefore, absent adequately security, or entered into an arrangement asked whether blanket assurances that documented mitigating circumstances, to borrow the security, or (2) has stock is available for borrowing, i.e., repeated failures to deliver in securities reasonable grounds to believe that the ‘‘Easy to Borrow’’ or ‘‘Hard to Borrow’’ included on an ‘‘Easy to Borrow’’ list security can be borrowed so that it can lists, provide an accurate assessment of would indicate that the broker-dealer’s be delivered on the date delivery is the current lending market in a manner reliance on such a list did not satisfy the due.54 The locate must be made and that would not impede liquidity and the ‘‘reasonable grounds’’ standard of Rule documented prior to effecting a short ability of market participants to 203.62 sale, regardless of whether the seller’s establish short positions, while at the Broker-dealers create ‘‘Hard to short position may be closed out by same time guarding against potential Borrow’’ lists to identify securities that 55 purchasing securities the same day. problems inherent with large extended are in limited supply. Thus, locates for settlement failures.59 After considering The rule provides for some limited securities on ‘‘Hard to Borrow’’ lists are the comments received, we believe that, exceptions, including for short sales likely to be difficult. However, the fact effected in connection with bona-fide absent countervailing factors, ‘‘Easy to that a particular lender placed certain market making, as discussed in further Borrow’’ lists may provide ‘‘reasonable detail below. grounds’’ for a broker-dealer to believe securities on a ‘‘Hard to Borrow’’ list As proposed, Rule 203(b) would have cannot be taken to mean that the lender allowed the ‘‘person for whose account 57 See, e.g., letter from NYSE. represents that securities that are not on the short sale is executed’’ to perform a 58 A broker-dealer may obtain an assurance from the ‘‘Hard to Borrow’’ list are easy to locate.56 We agree with commenters that a customer that such party can obtain securities borrow. Commenters viewed ‘‘Hard to from another identified source in time to settle the Borrow’’ lists with circumspection,63 trade. This may provide the ‘‘reasonable grounds’’ current disparate SRO requirements with a uniform required by Rule 203(b)(1)(ii). However, where a and we understand that such lists are Commission rule. See, e.g., letters from NYSE; broker-dealer knows or has reason to know that a not widely used by broker-dealers. Nasdaq; SIA. customer’s prior assurances resulted in failures to Therefore, the fact that a security is not 54 Any broker-dealer using the United States deliver, assurances from such customer would not jurisdictional means to effect short sales in provide the ‘‘reasonable grounds’’ required by on a hard to borrow list cannot satisfy securities traded in the United States would be 203(b)(1)(ii). The documentation required by Rule the ‘‘reasonable grounds’’ test of Rule subject to Regulation SHO, regardless of whether 203(b)(1)(iii) should include the source of securities 203(b)(1)(ii). the broker-dealer is registered with the Commission cited by the customer. The broker-dealer also or relying on an exemption from registration. In should be able to demonstrate that there are addition, Commission staff members have engaged ‘‘reasonable grounds’’ to rely on the customer’s 60 In its comment letter, the SIA noted that in in discussions with staff of The Investment Dealers assurances, e.g., through documentation showing developing ‘‘Easy to Borrow’’ lists, broker-dealer Association of Canada (‘‘IDA’’), who have that previous borrowings arranged by the customer stock loan desks use information from a number of confirmed that the IDA intends to issue an resulted in timely deliveries in settlement of the sources, including institutional lenders that have interpretation that failure of IDA members to customer’s transactions. sophisticated systems for estimating borrow supply. comply with the requirements of Regulation SHO 59 According to the current NASD ‘‘affirmative Broker-dealer stock loan desks also consider the may be considered a breach of IDA rules. This determination’’ rule, the manner by which a availability of inventory at their own firms and would be consistent with an interpretation that the potential availability from other broker-dealers that IDA recently issued regarding an amendment to member or person associated with a member NASD Rule 3370, noting that IDA members would annotates compliance with the affirmative act as conduit lenders. Much of this information is be required to make an affirmative determination determination requirement is to be decided by each available through electronic feeds and is updated that the member will receive delivery of the member. Members may rely on ‘‘blanket’’ or frequently. See letter from SIA. security from its customer or that the member can standing assurances (i.e., ‘‘Easy to Borrow’’ lists) 61 A broker-dealer could look to a lender’s borrow the security on behalf of the customer by that securities will be available for borrowing on statement to the broker-dealer regarding the amount settlement date. It was stated that failure of IDA settlement date. For short sales executed in Nasdaq of securities available to lend on an ‘‘Easy to members to make such an affirmative determination National Market (‘‘NNM’’) or exchange-listed Borrow’’ list. may be considered a breach of IDA rules. securities, members also may rely on ‘‘Hard to 62 Of course, securities that are ‘‘threshold Borrow’’ lists identifying NNM or listed securities Investment Dealers Association of Canada Member securities’’ pursuant to Rule 203(c) should generally that are difficult to borrow or unavailable for Regulation Notice MR0282 (April 13, 2004). The not be included on ‘‘Easy to Borrow’’ lists. NASD amendment had extended the affirmative borrowing on settlement date provided that: (i) Any 63 See, e.g., letter from NYSE. In particular, the determination requirements to short sale orders that securities restricted pursuant to NASD Rule 11830 NYSE stated that, ‘‘We believe that the use of ‘easy NASD members receive from non-member broker- must be included on such a list; and (ii) the creator dealers. Securities Exchange Act Release No. 48788 of the list attests in writing (on the document or to borrow’ lists, together with an industry-wide list (November 14, 2003), 68 FR 65978 (November 24, otherwise) that any NNM or listed securities not of securities where there is evidence of significant 2003); NASD Notice to Members 04–03 (January, included on the list are easy to borrow or are settlement failures (i.e., those for which there are 2004); NASD Notice to Members 04–21. available for borrowing. Members are permitted to fails to deliver at a clearing agency of 10,000 shares 55 This is consistent with the current practice use Easy to Borrow or Hard to Borrow lists provided or more and that is equal to at least one-half of one under NASD Rule 3370. See, e.g., Ko Securities, Inc. that: (i) The information used to generate the list, percent of the issue’s total shares outstanding) and Terrance Y. Yoshikawa, Securities Exchange is no more than 24 hours old; and (ii) the member prepared daily by the National Securities Clearing Act Release No. 48550 (September 26, 2003) delivers the security on settlement date. Should a Corporation (‘NSCC’) as proposed, would be a more (holding that an affirmative determination, i.e., a member relying on an Easy to Borrow or Hard to appropriate means of determining whether a ‘‘locate,’’ must be made before the securities are Borrow list fail to deliver the security on settlement security sold short could be borrowed. sold short regardless of whether the short seller date, the NASD deems such conduct inconsistent Consequently, the Exchange believes that broker- repurchases securities on the same day). with the terms of Rule 3370, absent mitigating dealers should be required to make an affirmative 56 Several commenters addressed this issue. See, circumstances adequately documented by the determination for those securities that are not on e.g., letters from NYSE; SIA. member. See NASD Rule 3370(b)(4)(C). the ‘easy to borrow’ list.’’
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1. Exceptions From the Locate security. In addition, where a market by settlement date.71 Rule 203(b)(2)(ii) Requirement maker posts continually at or near the as adopted provides that in all a. Broker-Dealer Accepting Short Sale best offer, but does not also post at or situations, delivery should be made on Order From Another Broker-Dealer— near the best bid, the market maker’s the sale as soon as all restrictions on Rule 203(b)(2)(i) activities would not generally qualify as delivery have been removed, and in any bona-fide market making for purposes of event no later than 35 days after trade Rule 203(b)(2)(i) provides a new the exception.68 Further, bona-fide date, at which time the broker-dealer exception from the uniform locate market making does not include that sold on behalf of the person must requirement of Rule 203(b)(1) for a transactions whereby a market maker either borrow securities or close out the registered broker or dealer that receives enters into an arrangement with another open position by purchasing securities a short sale order from another broker-dealer or customer in an attempt of like kind and quantity.72 registered broker or dealer that is to use the market maker’s exception for Two commenters advocated required to comply with 203(b)(1). For the purpose of avoiding compliance maintaining the current exception from example, where an introducing broker- with Rule 203(b)(1) by the other broker- the ‘‘affirmative determination’’ dealer submits a short sale order for dealer or customer.69 requirements of NASD Rule 3370 for execution, either on a principal or short sales that result in fully hedged or 64 agency basis, to another broker-dealer, c. Additional Exception From the Locate arbitraged positions.73 One comment the introducing broker-dealer has the Requirement—Rule 203(b)(2)(ii) letter requested an exception from the responsibility of complying with the Pursuant to the suggestions of other proposed locate and delivery locate requirement. The broker-dealer commenters, we are including an requirements of Rule 203 in a situation that received the order from the additional exception from the uniform where a market participant has a long introducing broker-dealer would not be locate requirement of Rule 203(b)(1) for position in warrants or rights which are required to perform the locate. However, situations where a broker-dealer effects exercisable within 90 days and are a broker or dealer would be required to a sale on behalf of a customer that is subject to a fixed price per share perform a locate where it contractually deemed to own the security pursuant to conversion ratio.74 The other comment undertook to do so or the short sale Rule 200, although, through no fault of letter requested an exception from the order came from a person that is not a the customer or the broker-dealer, it is proposed locate and delivery 65 registered broker-dealer. not reasonably expected that the requirements in the situation where a b. Bona-Fide Market Making security will be in the physical market participant is long in-the-money possession or control of the broker- call options.75 The commenter argued We are adopting the proposed dealer by settlement date, and is thus a exception from the uniform ‘‘locate’’ ‘‘short’’ sale under the marking 71 Another situation could be where a customer requirement, as Rule 203(b)(2)(iii), for requirements of Rule 200(g) as owns stock that was formerly restricted, but short sales executed by market makers, pursuant to Rule 144 under the Securities Act of adopted.70 Such circumstances could as defined in Section 3(a)(38) of the 1933, the securities may be sold without restriction. include the situation where a Exchange Act,66 including specialists In connection with a sale of such security, the convertible security, option, or warrant security may not be capable of being delivered on and options market makers, but only in has been tendered for conversion or settlement date, due to processing to remove the connection with bona-fide market restricted legend. See, e.g., letter from Feldman exchange, but the underlying security is making activities.67 Bona-fide market Weinstein, LLP (‘‘Feldman’’). not reasonably expected to be received 72 making does not include activity that is We believe that 35 days is a reasonable outer related to speculative selling strategies limit to allow for restrictions on a security to be 68 Moreover, a market maker that continually removed if ownership is certain. We note that or investment purposes of the broker- executed short sales away from its posted quotes Section 220.8(b)(2) of Regulation T of the Federal dealer and is disproportionate to the would generally be unable to rely on the bona-fide Reserve Board allows 35 days to pay for securities usual market making patterns or market making exception. delivered against payment if the delivery delay is practices of the broker-dealer in that 69 See also NASD IM–3350(c)(2) (‘‘A market due to the mechanics of the transaction. 12 CFR maker would be deemed in violation of the Rule if 220.8(b)(2). it entered into an arrangement with a member or a 73 See NASD Rule 3370(b)(2)(B), which states in 64 This could include an electronic customer whereby it used its exemption from the pertinent part that, ‘‘[n]o member shall effect a communications network (ECN). rule to sell short at the bid at successively lower ‘short’ sale for its own account in any security 65 Of course, an executing broker-dealer who prices, accumulating a short position, and unless the member or person associated with a executes a short sale pursuant to an order from an subsequently offsetting those sales through a member makes an affirmative determination that introducing broker as part of a scheme to transaction at a prearranged price, for the purpose the member can borrow the securities or otherwise manipulate the security, or where, for example, it of avoiding compliance with the Rule, and with the provide for delivery of the securities by settlement knows that the introducing broker did not perform understanding that the market maker would be date. This requirement will not apply to * * * the locate, could be liable under the securities laws, guaranteed by the member or customer against transactions that result in fully hedged or arbitraged for, among other violations, committing or aiding losses on the trades.’’). Although the IM–3350 positions.’’ Rule 3370(b) provides guidelines in and abetting a violation of Rule 203(b)(1). See, e.g., interpretation applies expressly to the bid test in determining the availability of the exception. Sections 15(b)(4)(e) and 20(e) of the Exchange Act. NASD Rule 3350, the NASD previously found that 74 See first and fourth letters from Saul Ewing, 15 U.S.C. 78t. the standards set forth are equally applicable to the LLP., on behalf of Greenwood Partners. The 66 Section 3(a)(38) states: ‘‘The term ‘market market maker exemption in NASD Rule 3370. See commenter noted the situation where a market maker’ means any specialist permitted to act as a NASD Hearing Panel Decision as to Respondents participant views the issuer’s warrants as being dealer, any dealer acting in the capacity of a block John Fiero and Fiero Brothers, Inc. (December 6, overly rich in comparison to the pricing of the positioner, and any dealer who, with respect to a 2000); See also Section 20(b) of the Exchange Act, warrants, and will thus sell the underlying stock security, holds himself out (by entering quotations 15 U.S.C. 78t. short and purchase the warrants. It also stated that, in an inter-dealer quotation system or otherwise) as 70 Pursuant to Rule 200(g), a broker or dealer shall because the stock borrow programs for many being willing to buy and sell such security for his mark an order to sell a security ‘‘long’’ only if the smaller issuers are virtually non-existent, the own account on a regular or continuous basis.’’ 15 seller is deemed to own the security being sold market participant engaging in this activity may be U.S.C. 78c(a)(38). pursuant to 17 CFR 242.200 and either: (i) The required to sell short naked. In order to guard 67 As noted in the Proposing Release, we believe security to be delivered is in the physical against potential ‘‘death spiral’’ activity, it was that a narrow exception for market makers engaged possession or control of the broker or dealer; or (ii) requested that the exception be limited to warrants in bona-fide market making activities is necessary it is reasonably expected that the security will be with a fixed price per share conversion ratio. because they may need to facilitate customer orders in the physical possession or control of the broker 75 See third letter from Saul Ewing, LLP. in a fast moving market without possible delays or dealer no later than the settlement of the Specifically, the commenter, writing on behalf of an associated with complying with the ‘‘locate’’ transaction. See, supra Part III.B. for a further unnamed private equity fund, argued that the fund requirement. discussion of the order marking requirements. Continued
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that excepting short sales in such observed high levels of fails in some aggregate fails to deliver at a registered situations promotes the ability of ETFs. Rather than providing a blanket clearing agency of 10,000 shares or more smaller issuers to acquire financing. exception from the requirements of Rule per security; that the level of fails is We have decided not to incorporate 203, we would prefer instead to address equal to at least one-half of one percent an exception from the locate and the treatment of ETFs through the of the issuer’s total shares outstanding; delivery requirements of Rule 203 for exemptive process, which would be and the security is included on a list short sales that result in bona-fide fully consistent with the prior treatment of published by an SRO.83 We believe this hedged or arbitraged positions. Because ETFs.79 In considering any exemptive threshold characterizes situations where ‘‘bona-fide’’ hedging and arbitrage can request, the Commission would evaluate the ratio of unfulfilled delivery be difficult to ascertain, we are the causes of large fails in certain ETFs, obligations at the clearing agency at concerned about including a blanket as well as potential remedies to resolve which trades are settled represents a exception for some activity that may such fails, if necessary. significant number of shares relative to have the potential to harm issuers and the company’s total shares outstanding. B. Short Sales in Threshold Securities— shareholders.76 During the period of the We believe that such circumstances Rule 203(b)(3) pilot, we prefer instead to address the warrant action designed to address situations noted by the commenters, and 1. Threshold Securities potential negative effects.84 This other similarly situated entities, through The Commission has decided to narrowly targeted threshold will not the exemptive process, to the extent burden the vast majority of securities 77 adopt, with certain modifications from warranted. This will allow us to what was proposed, additional where there are not similar concerns 85 consider the particular facts and requirements targeted at stocks that regarding settlement. Our OEA circumstances relevant to each request, have a substantial amount of failures to analyzed recent data from NSCC on fails as well as any potentially negative deliver. As adopted, Rule 203(b)(3) to deliver and calculated that ramifications, and, should we gain requires any participant of a registered approximately 3.9% of all exchange- comfort with the described clearing agency (‘‘participant’’) 80 to take listed and Nasdaq securities, and 4.0% transaction(s), fashion appropriate action on all failures to deliver that exist relief. in such securities ten days after the 83 For example, if an issuer had 1,000,000 shares Additionally, we have declined at this outstanding, one-half of one percent (.005) would normal settlement date, i.e., 13 time to include an express exception be 5,000 shares. An aggregate fail to deliver position consecutive settlement days.81 at a clearing agency of 10,000 shares or more would from the locate requirements of Rule Specifically, the participant is required thus exceed the specified level of fails. If an issuer 203(b)(1) for transactions in exchange to close out the fail to deliver position had 10,000,000 shares outstanding, one-half of one traded funds (‘‘ETFs’’).78 We have percent would be 50,000 shares. An aggregate fail by purchasing securities of like kind to deliver position at a clearing agency of 50,000 and quantity. shares or greater would exceed the specified level provides financing to smaller issuers, with a typical of fails. transaction generally involving a private placement With slight modification from the 84 We are incorporating the same threshold that of restricted stock in a company at a fixed price in proposal, a ‘‘threshold security’’ is exchange for an agreement to provide cash for such is currently used in NASD Rule 11830. Because of defined in Rule 203(c)(6) as any equity this, it is our belief that implementation will not shares upon the closing of the transaction. In order security of an issuer that is registered to hedge the risk of market price changes in the impose excessive programming costs on the restricted shares, the fund would buy over-the- under Section 12, or that is required to industry, although we note that some programming counter put options from a counterparty. It was file reports pursuant to Section 15(d) of modifications will be necessary to extend the argued, however, that the counterparty would want the Exchange Act 82 where, for five current calculation beyond the current universe of to hedge its risk by purchasing an in-the-money call Nasdaq securities. consecutive settlement days: there are 85 option, and shorting the underlying stock. It was As noted by some commenters, there may be similarly argued that due to the dearth of many different causes of fails to deliver that could borrowable shares in some smaller issuers, the sales 79 Prior exemptions from Rule 10a–1 have been be unrelated to a market participant engaging in could be naked short sales. granted for transactions in certain ETFs. See, e.g., naked short selling. Thus, imposing a lower 76 In a recent matter, the Commission accepted Letter re: SPDRs (January 27, 1993); Letter re: threshold or, as suggested by some commenters, offers of settlement from Rhino Advisors and MidCap SPDRs (April 21, 1995); Letter re: Select prohibiting all fails, might be impracticable or an Thomas Badian, Rhino’s president, in connection Sector SPDRs (December 14, 1998); Letter re: Units overly-broad method of addressing any potential with trading in the common stock of Sedona of the Nasdaq-100 Trust (March 3, 1999); Letter re: abuses, and could also disrupt the efficient Corporation by Rhino on behalf of certain foreign ETFs (August 17, 2001) (class letter). functioning of the Continuous Net Settlement entities. The Commission alleged that Rhino and 80 ‘‘Participant’’ is defined in Section 3(a)(24) of system (‘‘CNS’’) operated by the National Securities Badian, acting in their capacities as investment the Exchange Act. 15 U.S.C. 78c(a)(24). A Clearing Corporation (‘‘NSCC’’). For example, one advisors, manipulated Sedona’s stock price ‘‘registered clearing agency’’ is a clearing agency, as commenter noted that some fails are caused by downward by engaging in naked short selling of defined in Section 3(a)(23)(A) of the Exchange Act, custodian banks failing to deliver on behalf of their Sedona’s stock in accounts maintained in the names (15 U.S.C. 78c(a)(23)(A)), that is registered with the customers for a number of reasons, such as where of others. In the complaint filed in the action, the Commission pursuant to Section 17A of the a foreign domiciled customer engages in arbitrage Commission alleged that Rhino manipulated Exchange Act, 15 U.S.C. 78q–1. involving American Depositary Receipts (‘‘ADRs’’) Sedona’s stock price to enhance an offshore entity’s 81 Rule 203(c)(5) defines ‘‘settlement day’’ to and operates under the international arbitrage economic interests in a $3 million convertible mean any business day on which deliveries of exemption provided in Rule 10a–1(e)(8). See letter debenture issued by Sedona and that, by depressing securities and payments of money may be made from LEK Securities. Sedona’s stock price, Rhino increased the number through the facilities of a registered clearing agency. Additionally, some commenters addressed of shares that the offshore entity received when it 82 As proposed, the restrictions of Rule 203 would NSCC’s securities lending program. See, e.g., letter exercised its conversion rights under the debenture. have covered equity securities registered under from NASAA at 3. In responding to comments on See Rhino Advisors, Inc. and Thomas Badian, Section 12 of the Exchange Act. We are also the stock borrow program, NSCC noted that the Litigation Release No. 18003 (February 27, 2003); extending the delivery restrictions to equity program can reduce fails and give purchasers an see also SEC v. Rhino Advisors, Inc. and Thomas securities of issuers subject to Exchange Act increased chance of receiving those securities on Badian, Civ. Action No. 03 Civ 1310 (SDNY March reporting pursuant to Section 15(d). This would settlement date. See letter from NSCC at 6–7. The 5, 2003). thus mandate coverage of those companies that are Commission notes that NSCC’s stock borrow 77 See Section 203(d) of Regulation SHO, 17 CFR required to provide ongoing public disclosure about program, as approved by the Commission, permits 242.203(d), and Section 36 of the Exchange Act. 15 the company, its actions, and its performance. As NSCC to borrow securities for the purpose of U.S.C. 78mm. the calculation of the threshold that would trigger completing settlements only if participants have 78 Two commenters requested an exception to the the delivery requirements of Rule 203 depends on made those securities available to NSCC for this locate and delivery requirements for ETFs. The identifying the aggregate fails to deliver as a purpose and those securities are on deposit in the commenters maintain that ETFs should not be percentage of the issuer’s total shares outstanding, participant’s account at The Depository Trust subject to the requirements of Rule 203 because it is necessary to limit the requirement to Company (‘‘DTC’’). See Securities Exchange Act ETFs have the ability to continuously create and companies that are subject to the reporting Release No. 17422 (December 29, 1980), 46 FR 3104 redeem shares. See letters from Amex; Nasdaq. requirements of the Exchange Act. (January 13, 1981).
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of all securities, would meet this The SROs derive the information intended effects of reducing potentially threshold.86 necessary to calculate the list of manipulative behavior, we may In order to be deemed a threshold threshold securities from data on fails to consider additional rulemaking that security, and thus subject to the deliver currently received from NSCC.91 could require broker-dealers to identify restrictions of Rule 203(b)(3), a security individual accounts that are causing 2. Close-out Requirement must exceed the specified fail level for fails to deliver. As proposed, the rule would have a period of five consecutive settlement We have considered the comments specified that, for short sales of any days. Similarly, in order to be removed received, and have adopted a rule that security meeting this threshold, the from the list of threshold securities, a differs in the mechanics from the security must not exceed the specified selling broker-dealer must deliver the proposed rule, but continues to preserve level of fails for a period of five security no later than two days after the the goal of limiting failures to deliver in consecutive settlement days.87 This settlement date. If for any reason such threshold securities. As adopted, Rule five-day requirement will address the security were not delivered within two 203(b)(3) requires action if a fail in a potential situation where a security days after the settlement date, the rule threshold security remains open ten exceeds the fails level on one day, based would have restricted the broker-dealer, days after the settlement date, i.e., for on an aberrant fail to deliver that may including market makers, from thirteen consecutive settlement days.93 not be indicative of the usual pattern of executing additional short sales for the Specifically, Rule 203(b)(3) requires a that particular security, and thus would next 90 days in such security for the participant of a clearing agency prevent potential ‘‘flickering’’ of person for whose account the failure to registered with the Commission 94 to securities in and out of the list of deliver occurred, unless the broker- take action to close out the fail to threshold securities.88 Rule 203(b)(3) is dealer or the person for whose account deliver that has remained for thirteen intended to address potential abuses the short sale is executed, borrowed the consecutive settlement days by that may occur with large, extended security or entered into a bona-fide purchasing securities of like kind and fails to deliver.89 We believe that the arrangement to borrow the security, quantity.95 In addition, Rule five-day requirement will facilitate the prior to executing the short sale. In identification of securities with addition, the rule would have required 93 extended fails. the registered clearing agency that We note that some commenters believed that processed the transaction to refer the imposing the delivery requirements two days after As is currently the practice for Nasdaq settlement, i.e., after five settlement days, would securities that exceed the threshold party failing to deliver to the NASD and capture many instances of ordinary course designated in NASD Rule 11830, the the designated examining authority for settlement delays, rather than address potentially pertinent SRO will be responsible for such broker-dealer for appropriate abusive activity. See, e.g., letters from CBOE; SIA; action; and to withhold a benefit of any Willkie Farr. OEA took a snapshot of fails data publishing a daily list of the threshold received from NSCC from April 19 through April securities that are listed on their mark-to-market amounts or payments 30, 2004, which confirmed a rate of decline over a markets, or for which the SRO bears the that otherwise would be made to the course of settlement days. Similar rates of decline primary surveillance responsibility.90 party failing to deliver. were found using data obtained from NSCC for Some commenters argued that under other periods during the past six months. In addition, because Rule 203(b)(3) would require a 86 Some stocks that are quoted in the Pink Sheets the confines of current settlement participant to close out all fails to deliver in are not reporting issuers, and thus there is not a practices and procedures, it is not threshold securities, whether resulting from short readily available means to determine the total practical to assign delivery failures to a sales or long sales, extending the time period to ten shares outstanding in such securities. If, however, particular clearing firm customer days after settlement would make the close-out we incorporate non-reporting issuers that have account. It was noted that because requirement consistent with 17 CFR 240.15c–3– aggregate fails in excess of 10,000 shares, only an 3(m). Ten days after settlement is also the additional 1% of all securities would be added. NSCC’s continuous net settlement timeframe currently identified in NASD Rule These securities will not be subject to the additional (‘‘CNS’’) system nets all buys and sells 11830. requirements imposed upon threshold securities, in each security for each NSCC 94 A participant of a registered clearing agency although broker-dealers effecting short sales in participant, broker-dealers cannot includes registered broker-dealers, and entities that these securities are subject to the locate may not be registered broker-dealers, but are requirements of Rule 203(b)(1). determine which customer’s transaction responsible for the settlement of transactions at a 87 For example, an issuer that had 10,000,000 or account gave rise to a failure to registered clearing agency, such as the Canadian shares outstanding and an aggregate fail to deliver deliver.92 We note that while this may Depository for Securities (‘‘CDS’’). position greater than 50,000 shares for at least five be the current situation in the industry, 95 The following examples illustrate potential consecutive settlement days, would be a threshold if the Commission believes that the scenarios involving threshold security XYZ: (i) If a security, and would no longer be a threshold participant has a 100 share fail to deliver position security after the aggregate fail to deliver position rules as adopted are not having the in XYZ for 13 consecutive settlement days, the was less than 50,000 shares for at least five participant is required to purchase 100 shares; (ii) consecutive settlement days. will be disseminated prior to the commencement of If a participant has a 100 share fail to deliver 88 For example, we note the situation involving each trading day. position in XYZ, and the fail to deliver position ADR arbitrage as described in n. 85, supra. 91 As NSCC noted in its comment letter, it is increases by 100 shares each day for 13 consecutive 89 A person that sells a security and fails to providing the Commission, the NYSE, the NASD, settlement days, yielding a 1300 share fail to deliver deliver, with the intent of triggering the close-out and Amex with a daily report listing information on position, then the participant is required to requirement of Rule 203(b)(3) and creating a short all participant short obligations for all equity purchase 100 shares at the end of the 13th day, 100 squeeze that could benefit a person’s long position, securities with aggregate clearing short positions shares the next day, etc., until the entire fail to could be deemed to be engaging in manipulative greater than 10,000 shares. The SROs will calculate deliver position is closed out; (iii) If a participant behavior. whether the aggregate fails at NSCC exceed 0.5% of has a 100 share fail to deliver position in XYZ, 90 It is expected that the NYSE will calculate and the issuer’s total shares outstanding. which is then reduced to a 50 share fail to deliver disseminate a list of NYSE-listed securities that 92 See, e.g., letter from SIA. The SIA, as well as position during the following 13 consecutive exceed the specified fails level for at least five several other commenters, stated the belief that buy- settlement days, then the participant is required to consecutive settlement days. Amex will calculate ins were more practical since it is possible to close out 50 shares; or (iv) If a participant has a 100 and disseminate a list of Amex-listed securities that allocate the costs of a buy-in among multiple short share fail to deliver position in XYZ, which is exceed the specified fails level for at least five sellers, whereas application of the proposed netted to zero five settlement days later, and then consecutive settlement days, in addition, the NASD account trading restriction is not feasible. Other a new 100 share position is established the will calculate and disseminate a list of all over-the- commenters stated that the fear of a mandatory buy- following day, the participant would not be counter securities, including Nasdaq, OTCBB, and in and threat of a market loss would be a greater required to close out the initial 100 shares, but Pink Sheet securities that exceed the specified fails deterrent than the proposed restriction and would be required to close out the subsequent 100 level for at least five consecutive settlement days. withholding of the mark. See, e.g., letter from H. share fail to deliver position if it remained for 13 It is expected that the lists of threshold securities Glenn Bagwell, Jr. consecutive settlement days.
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203(b)(3)(iii) states that the participant, responsible for settlement. Thus, 4. Market Makers and any broker-dealer for which it clears participants that are able to identify the We received a number of comments transactions, including any market accounts of broker-dealers for which from market makers, including options maker that would otherwise be entitled they clear may allocate the market makers, on the proposal not to to rely on the bona-fide market making responsibility to close out open fail to provide an exception for market makers exception, is prohibited from effecting deliver positions to the particular from the special delivery requirements further short sales in the particular account(s) whose trading activities have applicable to securities that meet the threshold security without borrowing, caused the fail to deliver position. designated threshold.100 Some of these or entering into a bona-fide arrangement Absent such identification, however, the commenters stated that the effect of not to borrow, the security until the fail to participant would remain subject to the including such an exception would be deliver position is closed out. To the close out requirement. to cease altogether options trading in extent that the participant can identify 3. Other Proposed Requirements securities that are difficult to borrow, as the broker-dealer(s) or account(s) that it was argued that no options market have contributed to the fail to deliver We are not adopting the additional maker would make markets without the position, the requirement to borrow or requirements of proposed Rule ability to hedge by selling short the arrange to borrow prior to effecting 203(b)(3)(ii), which would have underlying security.101 In addition, further short sales should apply to only required a registered clearing agency another commenter stated that the those particular broker-dealer(s) or that processed the transaction to refer heightened delivery requirements for account(s). Rule 203(b)(3)(v) states that the party failing to deliver to the NASD threshold securities could drain where a participant enters into an and the designated examining authority liquidity in other securities where there arrangement with a counterparty to for such broker-dealer for appropriate is no current indication of significant purchase securities as required by Rule action; and withhold a benefit of any settlement failures.102 The commenter 203(b)(3), and the broker or dealer mark-to-market amounts or payments believed that, while a blanket exception knows or has reason to know that the that otherwise would be made to the from the heightened delivery counterparty will not deliver the party failing to deliver. Since the requirements would be preferable, at a securities, the broker or dealer will not Proposing Release was issued, minimum the implementation of any have fulfilled the requirements of the Commission staff and the SROs have such provision should not apply to 96 rule. developed new procedures to identify market maker positions acquired prior The requirement to close out fail to and inquire regarding failures to deliver to the effective date of the rule, and deliver positions in threshold securities that achieve the goals of the proposed likewise should not apply to any short that remain for thirteen consecutive notification requirement. This includes position acquired prior to the time that settlement days does not apply to any the daily dissemination by NSCC to the the subject security meets the positions that were established prior to Commission and the SROs of a report designated threshold. the security becoming a threshold listing information on all participant We note that the close out security.97 However, if a participant’s short obligations for all equity securities requirements of Rule 203(b)(3) will only fail to deliver position is subsequently with aggregate clearing short positions apply to fail to deliver positions in reduced below the pre-existing position, greater than 10,000 shares, which is threshold securities, and will not apply then the fail to deliver position excepted being used by the SROs to initiate to any fail to deliver positions by this subparagraph shall be the lesser established prior to the security meeting 98 inquiries with members concerning the amount. Rule 203(b)(3)(iv) also the threshold.103 As such, we believe provides that a participant may cause of the fails and whether there was compliance with regulatory that this addresses in part the reasonably allocate its responsibility to commenters’ concerns that market close out open fail positions in requirements. In addition, NSCC and other makers would need to assess the threshold securities to another broker- probability of a security meeting the dealer for which the participant is commenters noted that, due to the manner in which the CNS system threshold at some point in the future. Moreover, we expect that a small 96 currently calculates each participant net This includes the situation where a broker- percentage of securities for which there dealer that was required to close out a fail to deliver position in a security, it is not possible in a security exceeding the threshold entered into are associated options will exceed the to distinguish between obligations to 104 an arrangement to buy from a counterparty, and deliver that are the result of short sales threshold. In light of this, we believe thus net out the broker-dealer’s position at CNS, but that the effects of not including a market the broker-dealer knew or had reason to know that as opposed to long sales.99 As such, it the counterparty did not intend to deliver the is not possible to determine whether a 100 See, e.g., letters from Knight; Susquehanna; security, which thus created another fail in the CNS mark paid to a participant is a ‘‘benefit’’ system. Pacific Exchange (‘‘PCX’’); Amex; and joint letter 97 Rule 203(b)(3)(i). This is consistent with the received in connection with a fail to from Amex, CBOE, International Securities current operation of NASD Rule 11830. deliver position resulting from a short Exchange (‘‘ISE’’); The Options Clearing Corporation (‘‘OCC’’), PCX, Philadelphia Stock 98 For example, if a participant had a 100 share sale. Exchange (‘‘PHLX’’) (‘‘Joint Options Letter’’). fail to deliver position in XYZ security prior to XYZ We are not adopting at this time the 101 becoming a threshold security, and if XYZ See Joint Options Letter. subsequently became a threshold security, the proposal that would require NSCC to 102 See letter from Susquehanna. In particular, participant would not be required to close out the withhold mark-to-market amounts paid this commenter believed that market makers would 100 share fail, even if it remained for 13 to individuals. However, the need to assess for each assigned security the probability that it would become a threshold consecutive settlement days. Therefore, if after Commission intends to pay close becoming a threshold security the fail to deliver security at some point in the future, and in position in XYZ increased to 200 shares, and attention to the operation and efficacy of circumstances in which this is thought to be a remained for 13 consecutive settlement days, the the provisions we are adopting in Rule realistic possibility, the market maker would need participant would be required to close out 100 203, and will consider whether any to decide whether to incorporate the added risks into pricing or relinquish market maker status in shares. If, after becoming a threshold security, the further action is warranted. participant’s total fail to deliver position in XYZ fell the particular security. to 50 shares, and then rose to 150 shares and 103 See Rule 203(b)(3)(i). remained for 13 consecutive settlement days, the 99 See letter from NSCC at p. 5 for further 104 OEA has estimated that approximately 4.1% of participant would be required to close out 100 discussion regarding the operation of the CNS all securities that have options traded on them shares, rather than only 50 shares. system. would meet the threshold.
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maker exception from the heightened requirements applicable to long sales of sale, the broker or dealer knew that the delivery requirement will not be as securities, largely as proposed. Rule seller owned the securities and the severe as some of the commenters have 203(a) incorporates current Rule 10a–2. seller had represented that he or she described. Moreover, while some of As proposed, Rule 203(a) would have would deliver them to the broker in these commenters have opined that provided that if a broker-dealer knows time for settlement. Although we options market makers are not or should know that a sale was marked believe it was implicit in the proposed responsible for significant failures to long, the broker-dealer must make rule text (and in current Rule 10a–2), we deliver,105 other commenters and delivery when due and cannot use are including in the rule text the academics have questioned this borrowed securities to do so. The predicate that the seller fails to make assertion.106 proposed rule would have provided that such delivery after advising the broker- Therefore, while market makers the delivery requirements would not dealer that he or she would deliver the (including options market makers) apply in three situations: to the loan of securities in time for settlement.110 engaged in bona-fide market making a security through the medium of a loan As adopted, Rule 203(a) requires that will continue to be excepted from the to another broker or dealer; where the if a broker-dealer knows or should know locate requirement of Rule 203(b)(1), broker or dealer knows or has been that a sale of an equity security is even when effecting short sales in reasonably informed by the seller that marked long, the broker-dealer must threshold securities, we have decided at the seller owns the security and will make delivery when due and cannot use this time not to extend an exception to deliver it to the broker or dealer prior borrowed securities to do so. This market makers from the requirements to to the scheduled settlement of the delivery obligation does not apply in close out fails to deliver in such transaction; or where an exchange or three circumstances: (1) The loan of a securities that remain for thirteen securities association finds, prior to the security through the medium of a loan consecutive settlement days. Moreover, loan or fail, that the sale resulted from to another broker or dealer; (2) where as discussed previously, Rule a good-faith mistake, the broker-dealer the broker or dealer knows or has been 203(b)(3)(iii) provides that until the exercised due diligence, and either that reasonably informed by the seller that market maker, or the participant that requiring a buy-in would result in the seller owns the security and will clears for the market maker, takes action undue hardship or that the sale had deliver it to the broker or dealer prior to close out any such fails to deliver that been effected at a permissible price. The to the scheduled settlement of the remain ten days after the normal proposed requirements would have transaction and the seller fails to make settlement date, the market maker shall extended to all securities, not just to such delivery;111 or (3) where an be unable to rely on the exception in those registered on an exchange. exchange or securities association finds, Rule 203(b)(2)(iii) from the requirement Three commenters supported the prior to the loan or arrangement to loan to ‘‘borrow or arrange to borrow’’ for proposed changes, believing that they any security for delivery, or failure to further short sales in such security. would ensure greater consistency across deliver, that the sale resulted from a We have, however, included a limited markets and securities.107 One good-faith mistake, the broker-dealer exception from the close out commenter requested that the rule exercised due diligence, and either that requirement to allow registered options except long sales that fail, through no requiring a buy-in would result in market makers to sell short threshold fault of the seller, because of processing undue hardship or that the sale had securities in order to hedge options delays.108 In addition, two commenters been effected at a permissible price.112 positions, or to adjust such hedges, if suggested that the proposed Rule did The new rule is consistent with the the options positions were created prior not adequately address long sale Commission’s view that delivery to the time that the underlying security delivery fails.109 requirements are important for all became a threshold security. Any fails After considering comments received, securities, particularly those with a to deliver from short sales that are not we are adopting the changes proposed, lower market capitalization that may be effected to hedge pre-existing options with one modification. Pursuant to more susceptible to abuse. Moreover, positions, and that remain for thirteen proposed Rule 203(a), one of the Rule 203(a) provides that on a long sale, consecutive settlement days, are subject circumstances in which a fail or a broker-dealer cannot fail or loan to the mandatory close out requirement. delivery of borrowed shares would have shares unless, in advance of the sale, it We will, however, take into been permitted was where, prior to the ascertained that the customer owned the consideration information that shows shares, and had been reasonably that this provision operates significantly 107 See letters from H. Glenn Bagwell, Jr.; informed that the seller would deliver differently from our expectations. Feldman; LEK Securities. the security prior to settlement of the 108 See letter from Feldman. We have addressed transaction. This requirement is VI. Rule 203(a)—Long Sales this situation by providing an exception in Rule consistent with changes being made to We are adopting subparagraph (a) of 203(b)(2)(ii) for situations where a broker effects a sale on behalf of a customer that is deemed to own the order marking requirements, which Rule 203, which covers delivery the security pursuant to Rule 200, although, require that for an order to be marked through no fault of the customer or the broker- 105 See Joint Options Letter. dealer, it is not reasonably expected that the 110 See Rule 203(a)(2)(ii). 106 See letter from SIA (which noted in pertinent security will be in the physical possession or 111 It may be unreasonable for a broker-dealer to part, ‘‘[t]he SEC and SROs may also want to control of the broker-dealer by settlement date, and treat a sale as long where orders marked ‘‘long’’ consider whether to utilize their existing authority is thus a ‘‘short’’ sale under the marking from the same customer repeatedly require to determine to what extent non-bona-fide market requirements of Rule 200(g) as adopted. borrowed shares for delivery or result in ‘‘fails to making trading activities by market makers does or 109 See Letter Type A; SIA. The Commission deliver.’’ A broker-dealer also may not treat a sale does not contribute to extended fails.’’); see also disagrees with these comments. We believe that the as long if the broker-dealer knows or has reason to Evans, Geczy, Musto & Reed, Failure Is an Option: provisions of Rule 203(a) are appropriate to guard know that the customer borrowed the shares being Impediments to Short Selling and Options Prices, against fails to deliver on long sales, in that a broker sold. Working Paper, The Wharton School at the may fail to deliver borrowed shares on long sale 112 As with other provisions of Regulation SHO, University of Pennsylvania and the University of fails only in the limited circumstances set forth in this provision requires good faith conduct by the North Carolina (March 1, 2003) (finding that the the rule. In addition, Rule 203(b)(3) requires a broker-dealer. Therefore, where the broker-dealer options market maker exemption from the participant to close out all fails to deliver that did not in good faith believe that the customer requirement to locate stock to borrow on short sales remain in threshold securities for 13 consecutive would deliver the securities in time for settlement, may create significant profits for the market settlement days. 17 CFR 240.15c–3–3(m) also the broker-dealer cannot borrow or lend securities makers). addresses fails to deliver on long sales. to deliver when the customer fails.
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long, the seller must own the this manipulative conduct can offerings, we believe that the shelf security.113 negatively affect the issuer, which exception presents an increased receives reduced offering proceeds as a potential for the type of manipulative VII. Rule 105 of Regulation M—Short result of the lower offering price, and conduct that Regulation M is designed Sales in Connection with a Public harms the market by inhibiting the to prevent. Offering capital raising process. In addition, the We received three comment letters on A. Generally presence of such shorting activity can Rule 105. 120 One commenter argued Rule 105 of Regulation M prohibits a lead other investors, who believe that that the exception should be retained short seller from covering short sales the short selling is the result of an because allowing offerees to act on their with offering securities purchased from evaluation of the stock’s value, to sell conviction that the proposed offering is an underwriter or broker or dealer short as well. By prohibiting such overpriced by shorting in advance of artificial selling activity, the Rule pricing, leads to the creation of a ‘‘true’’ participating in the offering, if the short 121 sale occurred during the Rule’s contributes to the integrity of the capital market price. As noted above, Rule restricted period, typically the five-day raising process. 105 does not prevent short sellers from contributing to pricing efficiency by period prior to pricing.114 The reason B. Shelf Offerings for the prohibition is that pre-pricing short selling in advance of an offering. Another commenter urged the short sales that are covered with offering In the Proposing Release, we Commission to retain the exception for shares artificially distort the market proposed to amend Rule 105 to shelf offerings that occur on an price for the security, preventing the eliminate the shelf offering 117 ‘‘overnight’’ or ‘‘bought deal basis’’ market from functioning as an exception. We are adopting the where no red herring or preliminary independent pricing mechanism and amendment as proposed. prospectus is distributed.122 The eroding the integrity of the offering When the Commission initially Commission believes that even though price.115 Prices of ‘‘follow-on adopted the shelf exception in Rule 105, no preliminary prospectus is issued in offerings’’116 are typically based on a it stated that it might be necessary for these takedowns, manipulative pre- stock’s closing price prior to the time of the Commission to reevaluate the pricing short sales could take place if pricing, and thus short sales during the exception in the event such offerings 118 other marketing efforts prior to the period immediately preceding pricing became more common. One of the reasons for the adoption of the shelf offering put investors on notice of the that reduce the market price can result offering. We therefore believe that in a lower offering price. The goal of offering exception was the generally accepted view that shelf offerings were granting a blanket exception for these Rule 105 is to promote offering prices offerings is not appropriate. that are based upon open market prices not as susceptible to manipulation as 119 By providing that shelf offering prices determined by supply and demand non-shelf offerings. At the time Regulation M was adopted, it was our will be based upon market prices that rather than artificial forces. are not artificially influenced, the Rule 105 does not prohibit pre-pricing understanding that potential investors generally were not aware of a takedown amendment will benefit both issuers short sales, in recognition of the fact and investors. It will promote the that if such sales are motivated by a from a shelf registration until immediately prior to its occurrence, and integrity of the capital raising process, short seller’s evaluation of the stock’s enhance investor confidence in our future performance, they can contribute thus pre-pricing short sales were arguably not focused on the prospective markets, and help protect issuers to pricing efficiency and the creation of conducting shelf offerings from a correct market price. Rule 105 does, offering. Today, however, shelf offerings can have many characteristics of non- receiving reduced offering proceeds as a however, prohibit using offering shares result of manipulative conduct.123 to cover any such pre-pricing short shelf offerings. They are likely to utilize sales. A trader who sells short pre- the same marketing efforts—road shows C. Sham Transactions pricing and knows or has a high degree and other special selling efforts—that In the Proposing Release, the of assurance that he will be able to are used with non-shelf offerings, and Commission noted its concern with obtain covering shares in the offering thus investors often have notice of a sham transactions that are structured to does not assume the same market risk as shelf offering before it occurs. Moreover, appear to comply with Rule 105, but a short seller who intends to cover using since the initial adoption of Rule 105, which in fact violate the Rule. Such open market shares, and may not be equity shelf offerings have become transactions are undertaken to give the contributing to pricing efficiency and commonplace. appearance that pre-pricing short sales true price discovery. Therefore, the rule We believe that using offering shares are not covered with offering shares, but prohibits pre-pricing short sales, to cover short sales effected prior to instead are covered with shares effected within five days of pricing of an pricing of a shelf offering has the same purchased in the open market. We offering, from being covered with negative effect as in non-shelf offerings. sought comment on how to address offering securities acquired from an In light of the increased use of shelf underwriter or other broker-dealer 120 See letters from The Bond Market Association participating in the offering. Moreover, 117 See Proposing Release, Section XVI. (‘‘TBMA’’); Feldman; SIA. 118 See Anti-Manipulation Rules Concerning 121 See letter from Feldman, at 5. Securities Offerings; Final Rule, Securities 122 See letter from SIA. 113 See, supra part III.B. for a discussion of the Exchange Act Release No. 38067, 62 FR 520, 538 123 One commenter asked the Commission to order marking requirements. (January 3, 1997) (‘‘Regulation M Release’’), where consider excluding non-equity securities offerings 114 17 CFR 242.105. the Commission stated ‘‘it may be necessary for the from the scope of Rule 105, claiming that the type 115 As noted in the Proposing Release, Rule 105 Commission to reevaluate this exclusion if the of manipulative activity with which Rule 105 is of Regulation M applies to offerings of securities for availability of shelf registration is further expanded concerned is less likely to occur in debt offerings cash pursuant to a registration statement or a or offerings of shelf-registered equity become more than in equity offerings. See TBMA letter. We notification on Form 1–A filed under the Securities common-place.’’ continue to believe that bond offerings present a Act. 119 See Short Sales in Connection With a Public potential for manipulation, and we have therefore 116 A ‘‘follow-on offering’’ is an issuance of Offering, Securities Exchange Act Release No. determined that non-equity offerings will continue additional securities by an issuer that is subject to 26028, 53 FR 33455, 33458 (August 25, 1988) to be subject to the prohibitions of Rule 105. The the reporting requirements pursuant to Sections 13 (‘‘Rule 10b–21(T) Release’’), adopting Rule 10b- Commission will consider granting exemptive relief or 15(d) of the Exchange Act. 15 U.S.C. 78m, 78o(d). 21(T). on a case-by-case basis where warranted.
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these transactions. We did not receive We do not believe it necessary or Nasdaq NMS, Nasdaq SmallCap, any comments on this issue. We have desirable to add rule language to OTCBB, and Pink Sheet securities. By decided to issue interpretive guidance address these kinds of trading, as this adopting Rule 200(g) of Regulation SHO, to address transactions that violate Rule activity violates the current rule and can Rule 10a–1(c) is being repealed and any 105 by utilizing offering-shares to cover vary in its details. The Commission will collection of information under Rule short sales made in the pre-pricing continue to enforce Rule 105 in the face 10a–1 is being eliminated. restricted period, while structuring the of sham transactions designed to evade Sell orders of exchange-listed and transactions so as to falsely give the the Rule. In addition, if such sham Nasdaq securities are already marked appearance that the short sale has been transactions are used as part of a ‘‘long,’’ ‘‘short,’’ or ‘‘short exempt’’ covered using shares purchased in the fraudulent or manipulative scheme, the pursuant to Rule 10a–1, NYSE Rule open market. Transactions structured in conduct may also violate the 440B.20, and the ITS Plan. Nasdaq NMS this way violate Rule 105. Some Commission’s anti-fraud and anti- and Nasdaq SmallCap securities are also examples of sham transactions that manipulation provisions, including but currently subject to a marking would violate Rule 105 follow. These not limited to, Sections 9(a) and 10(b) of requirement pursuant to NASD Rule examples are illustrative, and are not the Exchange Act.127 4991. Rule 200(g) of Regulation SHO meant to be exhaustive. VIII. Paperwork Reduction Act simply codifies current industry practice for exchange-listed and Nasdaq 1. Arrangements To Purchase The adopted amendments to securities into a uniform marking In the first example of a sham Regulation SHO contain collection of requirement. transaction, short sales are effected information requirements within the Rule 203(b)(1) contains a requirement during the pre-pricing restricted period meaning of the Paperwork Reduction that broker-dealer must locate securities and are covered using offering securities Act of 1995.128 We published a notice available for borrowing prior to effecting obtained through an arrangement with a requesting comment on the collection of a short sale transaction. Subparagraph third party who acquires the securities information requirements in the (iii) of Rule 203(b)(1) requires in the primary offering.124 In this Proposing Release, and submitted these documentation of compliance with Rule transaction, the trader is attempting to requirements to the Office of 203(b)’s locate requirement. We note, accomplish indirectly what he or she Management and Budget (‘‘OMB’’) for however, that current SRO rules already cannot do directly, i.e., a type of short review in accordance with 44 U.S.C. require a written record documenting sale transaction prohibited by Rule 3507(d) and 5 CFR 1320.11. OMB has compliance with their locate rules.129 105.125 approved these requests. We did not receive comments on the proposed B. Use of Information 2. Sell/Buy and Buy/Sell collection of information requirements. The information required by In the second example of a sham Compliance with the adopted Regulation SHO is necessary for the transaction, a trader effects pre-pricing amendments to Regulation SHO and execution of the Commission’s mandate short sales during the Rule 105 Rule 105 of Regulation M will be under the Exchange Act to prevent restricted period, receives offering mandatory. The Commission will not fraudulent, manipulative and deceptive shares, sells the offering shares into the keep the information required by the acts and practices by broker-dealers. open market, and then amendments confidential. An agency The purpose of the information contemporaneously or nearly may not conduct or sponsor, and a collected is to enable the Commission, contemporaneously purchases an person is not required to respond to, an a national securities exchange or equivalent number of the same class of information collection unless it displays national securities association to shares as the offering shares, which are a currently valid OMB control number. monitor whether a person effecting a then used to cover the short sales. The title of the affected collection is short sale covered by proposed Where the transaction is structured such ‘‘Regulation SHO’’ under OMB control Regulation SHO is acting in accordance that there is no legitimate economic number 3235–0589. with Regulation SHO. In particular, purpose or substance to the A. Summary of Collections of requiring each order to be marked either contemporaneous purchase and sale, no Information ‘‘long,’’ ‘‘short,’’ or ‘‘short exempt’’ genuine change in beneficial would aid in ensuring compliance with Rule 200(g) contains a requirement ownership,126 and/or little or no market Rule 203 and current Rule 10a–1. that all sell orders in equity securities be risk, that transaction may be a sham Moreover, the ‘‘short exempt’’ category marked ‘‘long,’’ ‘‘short,’’ and ‘‘short transaction that violates Rule 105. will aid in surveillance for compliance exempt.’’ Currently, Rule 10a–1(c) with the exceptions from these rules. prohibits the execution of a sell order 124 The Commission has previously stated its C. Respondents concern with transactions where an intermediary is for a security covered by Rule 10a–1 used to purchase covering-shares from the offering. unless the order is marked either ‘‘long’’ The marking provision in Rule 200(g) See Rule 10b–21(T) Release, 53 FR at 33460. or ‘‘short.’’ Regulation SHO contains a will apply to all 6,553 active brokers or 125 See also Exchange Act Section 20(b), 15 U.S.C. new collection of information because dealers that are registered with the 78t. the collection would cover a much 126 See also Exchange Act Section 9(a )(1), 15 Commission. The Commission has U.S.C. 78i(a)(1). For example, an individual places larger number of securities. Rule 200(g) considered each of these respondents limit orders to sell and buy the same amount of of Regulation SHO adds two elements to for the purposes of calculating the shares, and the transaction is crossed in the the existing marking requirement. First, reporting burden under proposed individual’s brokerage account. There is no change a new category for ‘‘short exempt’’ in beneficial ownership and no market risk Regulation SHO. orders is being added. Second, the associated with the transaction, i.e., these are ‘‘wash D. Total Annual Reporting and sales.’’ Although the individual has attempted to marking requirement is being extended disguise the fact that the offering shares are being to apply to all equity securities, Recordkeeping Burdens used to cover the short sale, in fact, he is covering including exchange-listed securities, Rule 200(g) of Regulation SHO his pre-pricing short sale with shares obtained in the offering. See, e.g., Ascend Capital, LLC, requires all brokers or dealers to mark Securities Exchange Act Release No. 48188 (July 17, 127 15 U.S.C. 78i(a), 78j(b). 2003). 128 44 U.S.C. 3501. 129 NASD Rule 3370(b)(4)(B).
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all sell orders appropriately as ‘‘long,’’ computer systems and surveillance a person owns a security that entitles a ‘‘short,’’ or ‘‘short exempt’’ for all equity mechanisms and for information person to acquire securities underlying securities. We estimate that all of the gathering, management, and the instrument, e.g., options, rights, approximately 6,553 active registered recordkeeping systems or procedures, as warrants, and convertibles. broker-dealers 130 effect sell orders in well as any potential benefits resulting Additionally, by codifying existing securities covered by proposed from the proposals for registrants, guidance, Regulation SHO clarifies and Regulation SHO. For purposes of the issuers, investors, brokers or dealers, facilitates compliance with the short Paperwork Reduction Act, the other securities industry professionals, sale rule for persons trading in Commission staff has estimated that a regulators, and others. Commenters securities futures. were requested to provide analysis and total of 1,465,563,860 trades are ii. Costs executed annually.131 data to support their views on the costs Currently, under both Commission and benefits associated with proposed We do not believe that codifying and SRO rules, broker-dealers are Regulation SHO and proposed existing guidance will impose costs or obligated to document certain order amendments to Rule 105 of Regulation result in lost business opportunities. information. Rule 10a–1 requires sell M. We received very few comments Although the Commission did not orders of exchange-listed and Nasdaq providing cost or benefit estimates. receive comments quantifying the costs securities to be marked ‘‘long,’’ ‘‘short,’’ related to the codification, we note that A. Costs and Benefits of the Adopted the guidance is well established and has or ‘‘short exempt.’’ NYSE Rule 440B.20, Amendments in Regulation SHO the ITS Plan, and NASD Rule 4991 132 been adhered to by the industry.134 We believe that Regulation SHO additionally impose a marking b. Aggregation Units requirement. Rule 200(g) of Regulation simplifies and updates short sale SHO simply codifies the current regulation in light of numerous market i. Benefits practice for exchange-listed and Nasdaq developments since short sale Permitting aggregation unit netting securities into a uniform marking regulation was first adopted in 1938. provides enhanced flexibility and requirement. First, Rule 200 incorporates current liquidity to both broker-dealers and the Based on the number of annual trades Rule 3b–3 to provide ownership market as a whole. Subject to four and number of active registered broker- definitions for short sale purposes, expressed conditions, Rule 200(f) dealers, the average annual responses by clarifies the requirement to determine a permits multi-service broker-dealers to each respondent is approximately seller’s net aggregate position, and calculate net positions in a particular 223,647. Each response of marking requires sales in all equity securities to security within defined trading units orders ‘‘long,’’ ‘‘short,’’ or ‘‘short be marked ‘‘long,’’ ‘‘short,’’ or ‘‘short apart from the positions held by other exempt’’ takes approximately .000139 exempt.’’ Second, Rule 202T establishes aggregation units within the firm. This hours (.5 seconds) to complete.133 Thus, procedures for the Commission to allows multi-service firms to pursue the total estimated annual hour burden exclude designated securities from the different trading strategies, within per year is 203,713 burden hours operation of the tick test of Rule 10a– certain parameters, without being (1,465,563,860 responses @ 0.000139 1 and any short sale price test rule of restricted by limitations associated with hours/response). A reasonable estimate any exchange or national securities firm-wide aggregation. The greater for the paperwork compliance for the association. Third, Rule 203 trading flexibility, through use of proposed rules for each broker-dealer is incorporates current provisions aggregation unit netting, should approximately 31 burden hours applicable to long sales under current improve the liquidity provided by these (223,647 responses @ .000139 hours/ Rule 10a–2. Rule 203 additionally firms. response) or a total of 203,713 burden creates a uniform Commission rule ii. Costs hours/6,553 respondents. requiring broker-dealers to ‘‘locate’’ securities available for borrowing prior We believe that there are no costs IX. Cost-Benefit Analysis to effecting short sales in all equity associated with aggregation unit netting We are sensitive to the costs and securities, and imposes additional since firms are not required to use benefits of our rules and we have requirements on securities that have a aggregation units. Aggregation of net considered the costs and benefits of our substantial amount of failures to deliver. positions within defined trading units is adopted rules. To assist us in evaluating Finally, the amendments to Rule 105 of entirely optional and will likely be used the costs and benefits, in the Proposing Regulation M, eliminate the current by firms that believe it is cost effective Release, we encouraged commenters to shelf offering exception, such that short to do so. However, firms that choose to discuss any costs or benefits that the sales may not be covered with offering make use of aggregation unit netting rules might impose. In particular, we securities purchased from an must comply with requirements set requested comment on the potential underwriter or other broker-dealer forth in Rule 200(f).135 Compliance with costs for any modification to both participating in the shelf offering. aggregation unit netting requirements 1. Rule 200: Definitions may impose fewer costs to broker- 130 This number is based on 2003 FOCUS Report dealers than if the firms use alternative filings reflecting registered broker-dealers. This a. Ownership of Securities Underlying means, such as establishing separate number does not include broker-dealers that are Securities Futures Products delinquent on FOCUS Report filings. broker-dealers for each trading desk’s 131 In calendar year 2003, there were i. Benefits strategy to ensure the independence of approximately 722,753,000 trades on the NYSE, each trading desk. Industry sources 733,410,000 on Nasdaq NMS and Nasdaq SmallCap, The codification of existing Commission guidance regarding when a maintain that the costs associated with and over 9,400,860 in OTCBB, Pink Sheet, and aggregation unit netting are nominal. other (gray market) securities. person is deemed to own a security Furthermore, the technology to facilitate 132 For Nasdaq NMS and Nasdaq SmallCap underlying a securities futures contract securities. provides important compliance benefits. 133 As stated in the Proposing Release, we believe 134 See Guidance Release, at n. 18, supra. it is reasonable that it would take 0.5 seconds (or The interpretation is designed to ensure 135 Firms that find difficulty in complying with .000139 hours) to mark an order ‘‘long,’’ ‘‘short,’’ or consistency with the way current Rule the aggregation unit netting conditions in Rule ‘‘short exempt.’’ 3b–3 addresses several instances where 200(f) may submit requests for exemptive relief.
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aggregation unit netting is widely will incur additional costs.139 Therefore, nominal costs on broker-dealers. available. Rule 200(e)(3) may increase costs for According to industry sources, some short sellers during certain times of broker-dealers already use the short c. Liquidation of Index Arbitrage market decline. We estimate that any exempt classification when marking Position costs incurred will be limited to certain sell orders. Additionally, SRO i. Benefits compliance with Rule 10a–1’s tick test. rules already either require or advise The safeguard simply limits the relief members to utilize the ‘‘short exempt’’ Codifying the liquidation index from the price test for short sales of designation on such sell orders. arbitrage relief, in Rule 200(e), facilitates securities held in an index arbitrage However, broker-dealers not already pricing efficiency while preserving the position. The Commission did not adopt using the ‘‘short exempt’’ classification fundamental objectives of short sale a blanket prohibition of short sales will incur a one-time cost associated price regulation. By focusing on the during a market decline; rather, the with programming. Industry sources timing of the liquidation of all the index effect of subparagraph (e)(2) is to require estimated that implementation costs arbitrage positions, rather than on the such sales to comply with the short sale would be approximately $100,000 to timing of the establishment of price test. $125,000. individual index arbitrage positions,136 The Commission recognizes that there d. Order Marking Requirement Rule 200(e) relieves firms from the is an ongoing paperwork burden cost compliance burdens of tracking i. Benefits associated with adding the ‘‘short different positions of fungible securities The new order marking requirements exempt’’ category and extending the according to the timing or provide important benefits for investors marking requirement to all equity circumstances related to their and the market as a whole. First, securities. The paperwork burden is acquisition. Additionally, it reduces the because the new order-marking estimated to be approximately 31 possibility of unintended effects that requirements extend beyond exchange- burden hours for each active broker- may penalize buy-side index arbitrage listed equity securities to include over- dealer registered with the strategies involving the purchase of the-counter equity securities, i.e., Commission.140 stocks during times of market stress. OTCBB and Pink Sheet securities, they We do not believe the new order Subparagraph (e)(3) of Rule 200 provide a uniform practice designed to marking requirements will impose provides a 2% market decline ensure consistency within the equity additional monitoring or surveillance restriction 137 so that markets can avoid markets. Second, the marking costs for registered broker-dealers. incremental selling pressure during requirement will generate information Registered broker-dealers already have volatile trading days. The safeguard identifying when and under what established systems in place to comply benefits all market participants by circumstances certain exceptions to the with current SRO rules. limiting selling pressure at the close of price test are used. Third, the new The Commission estimates that little trading on a volatile trading day and at marking requirements benefit the to no costs will arise from the the opening of trading on the following surveillance of previously undetected requirement that sell orders be marked day, since trading activity at these times violations of Rule 10a–1. Under the long only in cases where the securities may have a substantial effect on the prior requirements, orders marked to be sold are owned by the customer market’s short-term direction. Lastly, ‘‘long,’’ despite having to borrow shares and either are presently, or reasonably inclusion of the 2% safeguard provides to consummate delivery, were handled expected to be, in the customer’s consistency within the equities markets. and executed as long sales. account prior to settlement. Most In 1999, the NYSE amended its rules on Furthermore, the requirement of customer securities are not held by index arbitrage restrictions to include physical possession or control, or the investors in physical form, but rather the 2% trigger.138 The Commission’s reasonable expectation that the security are held indirectly through their broker- adoption of the same trigger provides a will be in the possession or control of dealer in ‘‘street name.’’ Furthermore, uniform protective measure. the broker-dealer no later than commenters did not indicate any settlement, in order to mark an order significant burden associated with the ii. Costs ‘‘long,’’ benefits the clearance and requirement. If the unwinding of the index settlement process. Clearance and 2. Rule 202T: Pilot settlement systems are designed to arbitrage position occurs during a Rule 202T establishes procedures for period when the DJIA has declined by preserve financial integrity and minimize the likelihood of systematic the Commission to temporarily suspend 2%, short sellers will not be permitted the trading restrictions of the to use the price test exemption, and thus disturbances by instituting risk- management systems. Requiring a Commission’s short sale price test, as broker-dealer to have possession or well as any short sale price test of any 136 As provided in the Merrill Lynch Letter. See exchange or national securities Securities Exchange Act Release No. 27938, n. control of the securities before it can supra. mark an order long, assists in mitigating association, for short sales in such 137 For Rule 200(e)(3) relief, the sale does not settlement and credit risks that can securities as the Commission designates occur during a period commencing at the time that affect the stability and integrity of the the Dow Jones Industrial Average (‘‘DJIA’’) has 140 This is an average of approximately 223,647 declined below its closing value on the previous financial system as a whole. annual responses by each respondent. Each trading day by at least two percent and terminating ii. Costs response of marking orders ‘‘long,’’ ‘‘short,’’ or upon the establishment of the closing value of the ‘‘short exempt’’ takes approximately .000139 hours DJIA on the next succeeding trading day during The addition of the classification of (.5 seconds) to complete. Thus, the total which the DJIA has not declined by two percent or ‘‘short exempt’’ to the marking approximate estimated annual hour burden per year more from its closing value on the previous day. is 203,713 burden hours (1,465,563,860 responses at 138 Securities Exchange Act Release No. 41041 requirements will impose certain 0.000139 hours per response). A reasonable (February 11, 1999) 64 FR 8424 (February 19, 1999) estimate for the paperwork compliance for the (approval of amendments to NYSE Rule 80A). We 139 Short sellers would have to aggregate in the proposed rules for each broker-dealer is note that NYSE 80A removes the stabilizing usual way, with all of the seller’s other positions approximately 31 burden hours (223,647 responses requirement if the DJIA moves within 2% of the in that security, to determine whether the seller has at .000139 hours per response) or a total of 203,713 previous day’s close. a net long position. burden hours between 6,553 respondents.
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by order as necessary or appropriate in could be derived with respect to the in the absence of price restrictions or the public interest and consistent with general impact of such short selling. pricing anomalies between securities in the protection of investors after giving Consequently, we believe that it is the same industry subject to a pilot and due consideration to the security’s beneficial to establish a pilot to obtain similar securities not subject to the price liquidity, volatility, market depth and empirical data in order to assist us in test. These commenters also asserted trading market. ascertaining whether to implement a that a pilot might create a confusing system that will slow trading, lead to a. Benefits price test, in whole or in part, for short sales in some or all securities, including errors and confound market We believe establishing procedures securities not currently subject to any participants. for the Commission to adopt a pilot price test. Most of the more liquid securities that pursuant to Rule 202T is an essential would be appropriate for a pilot are component of evaluating the overall b. Costs traded on exchanges or other organized effectiveness of price test restrictions on As an aid in evaluating costs, we markets with high levels of transparency short sales. Any such pilot would be sought comment in the Proposing and surveillance. This would enhance intended to: provide data on the impact Release concerning the public’s views as the ability of the Commission and SROs of short selling in the absence of a price well as any supporting information. to monitor trading behavior during the test; study the effects of relatively Specifically, we sought detailed operation of any pilot and to surveil for unrestricted short selling on market comment on the extent of required manipulative short selling.143 Moreover, volatility, price efficiency, and liquidity; system changes and costs associated the general anti-fraud and anti- and obtain empirical data to help us with implementation of a pilot program. manipulation provisions of the federal assess whether a price test is necessary Many industry commenters favored the securities laws would continue to apply to further the objectives of short sale creation of a pilot.141 Operation of the to trading activity in these securities, regulation and whether short sale price pilot could cause additional costs to thus prohibiting trading activity tests should be removed, in part or in brokers, dealers, SROs, and potentially designed to improperly influence the whole, for actively traded securities or to issuers and investors. SROs and price of a security.144 To the extent for all securities, or if retained, whether broker-dealers might need to make there are price and trading activity it should be extended to securities for system changes in order to exclude the variations, this is precisely the which there currently is no price test. selected securities from the empirical data that the Commission We believe that there will be both Commission’s tick test as well as any seeks to obtain and analyze as part of short-term and long-term benefits from SRO price test. our assessment as to whether the price any such pilot. In the short-term, the Based on comments from the test should be removed, in part or removal of the price test for a specified industry, we estimate that a pilot whole, for pilot securities or other period would immediately ease established under Rule 202T could securities. In addition, a pilot would restrictions on short sales and might require broker-dealer firms to suspend only the operation of the price benefit investors and the markets reconfigure systems that currently set test, while the other requirements of without necessarily compromising the price test restrictions on short sales, Regulation SHO, including the order policy goals that a prophylactic price which could impose modest costs. We marking, locate and delivery test is designed to address. Removing anticipate that firms would have to requirements, would remain in effect. such restrictions could facilitate market remove existing price test restrictions The Commission, by further order, participants’ hedging activities in the for short sales of specified securities. can terminate or extend the period of a securities included in the pilot, and The implementation of these pilot, remove or add some or all might facilitate short selling that modifications would require a readily securities selected for a pilot as it increases market liquidity and pricing identifiable, one-time adjustment. determines necessary or appropriate in efficiency. Short selling in the absence Market participants already remove the the public interest or to protect of a price test might increase the NASD’s short sale rule, Rule 3350, after investors. Thus, costs associated with number of shares available to traditional market hours, as it is not any manipulative short selling or price purchasers and reduce the risk that the applicable during that time,142 so variations may be ameliorated through price paid by investors is artificially application of any pilot to Nasdaq the termination of the pilot or removal high because of a temporary contraction securities would not likely require the of affected securities. of selling interest due to short sale price development of any new programs or restrictions. 3. Rule 203: Locate and Delivery In the long-term, a pilot would allow surveillance systems. Requirements for Short Sales Some commenters expressed a the Commission to obtain empirical data a. Benefits necessary to consider alternatives, such concern about pilot-related costs borne as eliminating a Commission mandated by issuers. According to these As adopted, Rule 203(b) creates a price test for an appropriate group of commenters, these costs could arise uniform Commission rule requiring securities, which may be all securities; from possible manipulative short selling adopting a uniform bid test, possibly 143 No individual issuers submitted comment 141 See letters from James Angel; ARCA; Yuseff J. letters opposing the pilot or expressing concern extended to securities for which there is Burgess; CBOE; Dario Cosic; Davis Polk; Timothy K. about the possible disparate trading of securities currently no price test; or leaving in Dolnier; Tolga Erman; Chris Freddo; Kristopher subject to the pilot or about the possible adverse place the current price tests. Goldhair; Chris Gregg; Marc Griffin; Charles W. impact on their securities should the price test be Historically, the possibility of Hansford; Zachary Hepner; ICI; Mike Ianni; Brian removed from short selling in their stock on a Ingram; Kevin Karlberg; Gregory Kleiman; LEK temporary basis. The NYSE submitted a letter considering such alternatives has been Securities; Michael Lucarello; Lux & Metzger; MFA; expressing concern, ‘‘on behalf of its members and hampered by a lack of data concerning Raymond J. Murphy; Nasdaq; its listed companies’’ strongly supporting continued short selling, particularly with regard to [email protected]; Tal Plotkin; David price restrictions and expressing concern about listed-securities. Without empirical data Schwarz; Sinan Selcuk; Theodore J. Siegel; Todd unscrupulous market participants forcing prices Sherman; SIA; Dan Solomon; STA; STANY; Jimmie lower in stocks not subject to a price test. relating to short selling in the absence E. Williams; Willkie Farr. 144 See, e.g., Securities Act Section 17(a), and of a price test in today’s market, we 142 See NASD Head Trader Alert #2000–55 Exchange Act Sections 9(a), 10(b), and 15(c) and believe that only broad conclusions (August 7, 2000). Rules 10b–5 and 15c1–2 thereunder.
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broker-dealers to follow specified the Commission in its enforcement that is required to have already procedures for short sellers in all equity efforts regarding naked short selling complied with Rule 203(b)(1). This securities, wherever traded. Rule 203(b) activity. Certain issuers have taken steps exception relieves the executing broker- requires that, prior to effecting short to make their securities either dealer from engaging in a second locate sales in all equity securities, broker- ‘‘certificate only,’’ which require for the transaction. This exception dealers must ‘‘locate’’ securities physical certification of company limits the possibility of over borrowing available for borrowing. This uniform ownership for all share transfers, or as well as any delay in execution. rule furthers the goals of regulatory ‘‘custody only,’’ which restricts A third exception to the locate simplification and avoidance of ownership of their securities by requirement covers situations where a regulatory arbitrage. Specifically, Rule depositories or financial intermediaries, broker effects a sale on behalf of a 203(b) prohibits a broker-dealer from which they assert has been done to customer who owns the security executing a short sale in any equity avoid the effects of naked short selling pursuant to Rule 200, but through no security, for the broker-dealer’s own of their securities. These custody fault of the customer or broker-dealer, it account or the account of another arrangements are highly costly to the is not reasonably expected that the person, unless the broker-dealer has (1) clearing agencies, depositories and security will be in the possession or borrowed the security, or entered into financial intermediaries. Imposing a control of the broker-dealer by an arrangement to borrow the security, requirement to close-out large fails at settlement date. Under the newly or (2) has reasonable grounds to believe the clearing level may decrease costs on adopted marking requirement, this sale that the security can be borrowed so that the clearing agency by reducing the would be marked ‘‘short.’’ Such it can be delivered on the date delivery requests for ‘‘certificate only’’ issues.145 situations could include where a is due. Rule 203 requires that the locate convertible security, option, or warrant b. Costs be made and documented prior to has been tendered for conversion, but effecting any short sale, regardless of The Commission recognizes that the underlying security is not whether the seller’s short position may locate and delivery requirements may reasonably expected to be received by be closed out by purchasing securities increase costs for some market settlement date. the same day. The Commission has also participants who engage in short selling. There may be costs associated with adopted additional requirements The Commission is, however, including implementing these locate requirements targeted at ‘‘threshold securities’’ that an exception from the locate for OTCBB and Pink Sheet securities. have a substantial amount of failures to requirements of Rule 203(b)(1) for short For example, a number of commenters deliver, i.e., any equity security of an sales executed by market makers in noted that there might not be a broad issuer registered under Section 12 or connection with bona-fide market pool of lendable securities in such required to file reports under Section 15 making activities. In addition, any costs issuers, due to the inability of firms to of the Exchange Act where there are that initially may be incurred should be hypothecate shares bought on margin, fails to deliver at a registered clearing mitigated over time because the uniform and due to the absence of institutional agency of 10,000 shares or more per rule should lead to regulatory lenders in these securities. This could security; that the level of fails is equal simplification with regard to training affect the ability of these small issuers to at least one-half of one percent of the and surveillance. to obtain financing through the issuance issue’s total shares outstanding; and the The rule includes certain exceptions of convertible debentures, in that market security is included on a list published from the locate requirement, which participants that buy these convertible by an SRO. In order to be subject to the mitigate many associated cost burdens. debentures may not be able to sell short restrictions of Rule 203, a security must The rule provides an exception for for hedging purposes if they are unable exceed the designated level of fails for bona-fide market making. This to locate the issuer’s securities. a period of five consecutive settlement exception covers short sales executed by In addition, other commenters also days. Similarly, in order to be removed market makers, including specialists noted that, due to the absence of stock from the list of threshold securities, a and options market makers, in available for borrowing in these issuers, security must not exceed the threshold connection with bona-fide market requiring short sellers to locate such for a period of five consecutive making activities. Excepting bona-fide securities could essentially remove the settlement days. market making activity from the locate ability to take short positions in these A broker-dealer is required to take requirement will benefit investors and stocks, and would help to facilitate additional steps should a fail in a the market by preserving necessary issuers, promoters, or other threshold security remain 10 days after market liquidity. shareholders that may be attempting to the normal settlement date, i.e., for 13 A second exception is for broker- manipulatively push up the company’s consecutive settlement days. dealers that receive a short sale order stock price. These commenters noted Specifically, Rule 203(b)(3) requires the from another registered broker-dealer their belief that some issuers and their participant of a registered clearing associated stock promoters may also be agency to take action to close out the fail 145 The Commission approved a rule change filed using the recent controversy over naked to deliver by purchasing securities of by DTC that clarified that DTC’s rules permit only short selling to engage in fraud, or like kind and quantity. its participants to withdraw securities from the otherwise distract investors from depository. See Securities Exchange Act Release The new locate and delivery No. 47978 (June 4, 2003), 68 FR 35037 (June 11, fundamental problems with the requirements will protect and enhance 2003). In addition, the Commission recently company. the operation, integrity, and stability of proposed a rule, ‘‘Issuer Restrictions or Prohibitions It is the Commission’s belief that the markets. For example, the on Ownership by Securities Intermediaries,’’ which removing all restrictions on the ability would prohibit a registered transfer agent from requirements of Rule 203 include transferring any equity security registered pursuant to effect naked short sales is not the securities with lower market to Section 12 of the Exchange Act, or any equity proper recourse against potential issuer capitalization that may be more security that subjects an issuer to reporting under fraud, as it may simply encourage susceptible to abuse. Also, adopting Section 15(d) of the Exchange Act, if such security another type of manipulation or is subject to any restriction or prohibition on uniform rules will further the goals of transfer to or from a securities intermediary. See exacerbate other potentially negative regulatory simplification and avoidance Securities Exchange Release No. 49804 (June 4, consequences associated with large of regulatory arbitrage, as well as assist 2004), 69 FR 32783 (June 10, 2004). failures to deliver. Nevertheless, the
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Commission is cognizant of these borrow for future short sales if there was delivery requirements to all securities, concerns and is taking action to combat not compliance with the requirement to including those not registered on an such activities. For example, the close-out fails to deliver in threshold exchange. In addition, Rule 203(a) Commission continues to bring securities would decrease liquidity, makes clear that a broker or dealer may enforcement actions for issuer fraud, impose large borrowing costs and not fail to deliver, nor may it loan including actions against some of the execution delay. Also, some securities for delivery on a sale marked companies that have claimed to be commenters, including options market ‘‘long,’’ unless, prior to the sale, the ‘‘victims’’ of naked short selling.146 In makers and options exchanges, noted broker or dealer knew that the seller addition, the Commission recently that if we do not include such an owned the securities and the seller proposed other steps to protect investors exception would be to cease altogether represented that he would deliver them by deterring fraud and abuse in the options trading in securities that are to the broker in time for settlement but securities markets through the use of difficult to borrow, as it was argued that failed to do so. ‘‘shell companies.’’ 147 no options market maker would make a. Benefits The greatest costs associated with markets without the ability to hedge. Rule 203’s requirements relate to We note that the close out Extending the long sale delivery controlling failures in threshold requirements of Rule 203(b)(3) will only requirements to all securities will 148 securities. Participants of a registered apply to short sales in securities that benefit investors and the markets, clearing agency, broker-dealers, market meet the designated threshold level of because as with short sales, delivery makers, and SROs may incur costs in fails, and similar to the current requirements are important in securities making initial system changes necessary operation of NASD Rule 11830, will not with lower market capitalization that to implement these new requirements, apply to any short sales effected prior to may be more susceptible to abuse. as well as maintaining ongoing the security meeting the threshold. We Moreover, Rule 203(a) states that a compliance and surveillance have noted the above concerns, but broker-dealer cannot fail or loan shares mechanisms. Comments from the believe that they may be exaggerated, on a long sale unless, in advance of the industry maintained that any one-time especially considering that OEA has sale, the broker-dealer ascertains that programming costs would be the customer owned the shares. This 149 estimated that threshold securities ‘‘manageable’’ or ‘‘nominal.’’ Since represent approximately 4% of the change, together with changes being NSCC already provides to the SROs equities markets.151 Also, any cost made to the long sale order marking information on all issuers that have estimates related to the narrowly requirements, provide an important failed to deliver in excess of 10,000 applied borrowing requirement appear benefit to the market by making clear a shares, this will mitigate any cost extremely speculative.152 In light of this, broker’s obligation to confirm the long burdens on accessing the information. we do not expect that excluding a seller’s ownership of the shares prior to Furthermore, this information can be market maker exception from the close executing the sale. matched with the readily available out requirement of Rule 203(b)(3) would information on an issuer’s total shares b. Costs have such adverse consequences. outstanding to determine whether the Although we sought public comment security meets the definition of a 4. Rule 203: Requirements for Long on costs, we did not receive any threshold security under Regulation Sales comments relating to Rule 203(a). We SHO. recognize that there may be some costs Rule 203(a) incorporates Rule 10a–2, However, some industry sources associated with extending the delivery which covered delivery requirements argued that the ongoing cost of requiring requirements to all securities, including applicable to long sales of securities broker-dealers, including market costs related to system changes and registered or admitted to unlisted makers,150 to borrow or arrange to surveillance. However, since market trading privileges on a national participants already must comply with 146 securities exchange. As adopted, Rule See, e.g., SEC vs. Universal Express, Inc., et. the current language of Rule 10a–2, we 203(a) generally provides that if a al., Litigation Release No. 18636 (March 24, 2004). expect any costs will be nominal. The Securities Exchange Act Release No. 49566 (April broker-dealer knows or should know benefit of a uniform delivery scheme for 15, 2004). that a sale is marked long, the broker- 147 Securities Exchange Act Release No. 49566 long sales justifies any costs that will be dealer must make delivery when due (April 15, 2004). The proposal would prohibit the incurred by market participants. use of Form S–8, under the Securities Act, by a and cannot use borrowed securities to shell company. In addition, the release proposes do so.153 Rule 203(a) extends these 5. Rule 105 of Regulation M amendments to Form 8–K, under the Exchange Act, to require a shell company, when reporting an event Rule 105 of Regulation M prohibits a 151 that causes it to cease being a shell company, to file OEA has also estimated that approximately short seller from covering short sales with the Commission the same type of information 4% of all securities that have options traded on that it would be required to file to register a class them would be threshold securities. with offering securities purchased from of securities under the Exchange Act. The 152 Industry participants could not produce a an underwriter, broker or dealer provisions in this release target regulatory problems quantifiable estimate for the cost related to the participating in the offering if the short that the Commission has identified where shell ‘‘borrow or arrange to borrow’’ requirement for sale occurred during the Rule’s companies have been used as vehicles to commit failing to close-out deliveries in threshold securities fraud and abuse the regulatory processes. that remain open for ten days past the settlement restricted period, typically the five-day 148 The general locate requirement for short sales date. Additionally, some industry participants period prior to pricing. The reason for will not impose additional costs on broker-dealers, provided inconsistent statements regarding the the prohibition is that pre-pricing short since current SRO rules require broker-dealers to amount of securities for which a locate is given, sales that are covered with offering effect such a locate. compared to whether a short sale execution actually 149 Industry participants appeared more occurs. The estimated range is anywhere from 10% shares artificially distorts the market concerned with having enough time to make the to 80%. price for the security, preventing the necessary programming and systems upgrades than 153 As in former Rule 10a–2, these prohibitions do market from functioning as an the actual costs related to such upgrades. not apply to the loan of a security that occurs by independent pricing mechanism and 150 We have decided at this time not to extend to way of a loan to another broker or dealer, or where market makers an exception from the additional an exchange or securities association finds, prior to eroding the integrity of the offering requirements to close out fails to deliver in the loan or fail, that the sale resulted from a good securities exceeding the threshold that remain ten faith mistake, the broker-dealer exercised due result in undue hardship or that the sale had been days after settlement date. diligence, and either that requiring a buy-in would effected at a permissible price.
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price. The goal of Rule 105 is to promote evaluation of the stock’s future position at a lower price in order to offering prices that are based upon open performance. generate a risk-free profit. market prices determined by supply and Elimination of the shelf exception X. Consideration of Promotion of demand rather than artificial forces. The will benefit issuers and investors by promoting shelf-offering prices that are Efficiency, Competition, and Capital Rule is prophylactic, and prohibits the Formation conduct irrespective of the short seller’s based upon market prices that are not intent in effecting the short sale. artificially influenced. This will Section 3(f) of the Exchange Act 155 requires us, when engaging in Typically, follow-on offering prices safeguard the integrity of the capital rulemaking and where we are required are based on a stock’s closing price prior raising process with respect to shelf to consider or determine whether an to pricing, and thus short sales during offerings and enhance investor action is necessary or appropriate in the the period immediately preceding confidence in our markets. The amended rule will also protect issuers public interest, to consider, in addition pricing that reduce the market price can conducting shelf offerings from to the protection of investors, whether result in a lower offering price. Rule 105 receiving reduced offering proceeds as a the action will promote efficiency, does not prohibit pre-pricing short sales, result of manipulative conduct. competition, and capital formation. but it does prevent short sellers from Section 23(a)(2) of the Exchange Act 156 covering the short sales with offering b. Costs requires the Commission in adopting shares. A trader who sells short pre- We recognize that the amendments to rules under the Exchange Act, to pricing because the trader knows or has Rule 105 may result in some costs to consider the anticompetitive effects of a high degree of certainty that he or she certain market participants. Eliminating any rules it adopts under the Exchange will be able to obtain covering shares in the shelf exception may impair a short Act. Section 23(a)(2) prohibits us from the offering at a lower price does not seller’s ability to effect a covering adopting any rule that would impose a assume the same market risk as a short transaction because there are fewer burden on competition not necessary or seller who intends to cover with open shares available with which one may appropriate in furtherance of the market shares and is not engaged in an cover. It may also impact traders and purposes of the Exchange Act. In the evaluation of the stock’s ‘‘true value.’’ firms that derive significant revenue Proposing Release, we solicited This manipulative conduct can from covering pre-pricing shorts with comment on the proposals’ effects on negatively impact the issuer, which shelf offering shares. efficiency, competition, and capital receives reduced offering proceeds as a We anticipate these changes to Rule formation. Additionally we requested, result of the lower offering price, and 105 may impose compliance costs, in but did not receive, comments regarding harms the market by inhibiting the the form of increased surveillance, on the impact of the proposed amendments capital raising process. broker-dealers. However, we do not on the economy generally pursuant to The adopted amendments to Rule 105 expect the change to result in a major the Small Business Regulatory eliminate the shelf offering exception. increase in costs or prices for consumers Enforcement Fairness Act of 1996.157 At the time of adoption of the exception, or individual industries. Rather, the We have considered the proposed the Commission viewed shelf offerings change will curtail the potential for amendments in Regulation SHO in light as uncommon and generally less manipulative activity that might of the standards of Section 23(a)(2) of susceptible to manipulation than non- otherwise create a temporary mispricing the Exchange Act and believe the shelf offerings.154 Today, shelf offerings of securities and reduce offering adopted amendments should not are common, and investors generally proceeds. The change will provide a impose any burden on competition not have notice of them before they occur protective measure against abusive necessary or appropriate in furtherance because they are likely to utilize the conduct that hampers the capital raising of the Exchange Act. We note, however, same marketing efforts—road shows and process and negatively impacts issuers. that there are several areas in Regulation other selling efforts—that are used with Any costs associated with restricting SHO where issuers may be treated non-shelf offerings. a short sellers’ ability to cover with differently. offering shares is balanced by the First, in any pilot created pursuant to a. Benefits benefits derived from preventing the Rule 202T, the price test could be Eliminating the shelf exception from manipulative activity of effecting pre- suspended for issuers selected, while Rule 105 will provide a number of pricing short sales and covering with the price test would continue to apply important benefits to issuers, investors, offering shares. Moreover, although the to issuers in the same industry that are and the market as a whole. The Commission recognizes that the not selected for the pilot. Some amendment updates Rule 105 by amendments may diminish a short commenters expressed a concern about adopting a uniform standard for shelf seller’s ability to effect a covering the pilot imposing costs on issuers and non-shelf offerings, which are much transaction by restricting the sources selected, relative to possible more similar today than when the from which he may cover, Rule 105 will manipulative short selling in the exception was adopted because of continue to allow the beneficial effects absence of price restrictions or pricing changes in the way most shelf offerings of short selling to reach the market. anomalies. These commenters also are sold. Both shelf and non-shelf Short selling in advance of a shelf asserted that the pilot would create a offerings are susceptible to the offering will remain available to confusing system that would slow manipulation that Rule 105 is intended enhance pricing efficiency. trading, lead to errors, and confound Lastly, the amendments to Rule 105 of to prevent. In both cases, pre-pricing market participants. Regulation M do not impose a ban on short sales that are covered with offering We believe that most of the more pre-pricing short sales. Rather, the shares exert downward pressure on liquid securities that would be amendments prohibit short sellers from pricing that is not connected to any appropriate for a pilot are traded on covering the short sales with offering exchanges or other organized markets shares. The amendments will prevent a 154 Potential investors generally were not aware of a takedown until immediately prior to its trader who sells short pre-pricing 155 15 U.S.C. 78c(f). occurrence, and thus their pre-pricing short sales because the trader knows he or she will 156 15 U.S.C. 78w(a)(2). were arguably non-manipulative. obtain offering shares to cover the short 157 Pub. L. 104–121, tit. II, 110 Stat. 857 (1996).
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with high level of transparency and Flexibility Act.159 This FRFA relates to approach that incorporates the surveillance. The Commission and new Regulation SHO, adopted under the provisions of existing SRO rules while SROs would monitor trading behavior Exchange Act, which replaces Rules 3b– imposing additional restrictions where during the operation of any pilot and 3 and 10a–2, and amends Rule 105 of we believe appropriate to address naked surveil for manipulative short selling Regulation M. short selling while protecting and activity. Furthermore, the general anti- Rule 200 of Regulation SHO defines enhancing the operation, integrity, and fraud and anti-manipulation provisions ownership of securities, specifies stability of the markets. As a part of this of the federal securities laws will aggregation of long and short positions, effort to improve locate and delivery continue to apply to trading activity in and also includes the requirement that requirements, Rule 200 clarifies marking these securities, thus prohibiting trading sales in all equity securities be marked requirements and thus clarifies when a activity designed to improperly ‘‘long,’’ ‘‘short,’’ or ‘‘short exempt.’’ participant must locate stocks for influence the price of a security.158 Regulation SHO includes a temporary delivery. Rule 202T establishes Moreover, to the extent there are price rule, Rule 202T, that establishes procedures for the Commission to and trading activity variations, this is procedures to allow the Commission to temporarily remove price restrictions for precisely the empirical data that the suspend the operation of the current short sales from certain securities so Commission seeks to obtain and analyze ‘‘tick’’ test in Rule 10a–1, and any short that we can obtain empirical data on the as part of our assessment as to whether sale price test for any exchange or impact of short selling in the absence of the price test should be removed, in part national securities association, for a price test and to assess whether a short or whole, for the pilot securities or other specified securities. Rule 203 of sale price test should be removed, in securities. Regulation SHO requires short sellers in part or in whole, for some or all By further order, the Commission can all equity securities to locate securities securities. terminate or extend the period of the to borrow before selling, and also The amendments to Rule 105 of pilot as it determines necessary or imposes heightened delivery Regulation M prohibit covering certain appropriate in the public interest or to requirements on securities that have short sales with securities acquired in a fails to deliver at a registered clearing protect investors or to remove or add shelf offering. The amendments are in agency of 10,000 shares or more per some or all securities selected for the response to the recognition that shelf security, and that is equal to at least pilot, any costs associated with offerings are much more common in one-half of one percent of the issues manipulative short selling or price today’s markets and with increased total shares outstanding. The variations may be ameliorated through transparency they are susceptible to the Commission is also adopting the termination of the pilot or removal same potential for manipulation and amendments to Rule 105 of Regulation of affected securities. abuse as non-shelf offerings. The M to remove the shelf offering Secondly, the additional requirements elimination of the shelf offering exception. of Rule 203(b)(3) will apply to any exception in Rule 105 is designed to equity security of an issuer registered A. Need for and Objectives of the reduce the potential that pre-pricing under Section 12 or required to file Amendments short sales will exert downward price reports pursuant to Section 15 of the Regulation SHO and the amendments pressure on the market price of a shelf Exchange Act where, for five offering. consecutive settlement days, there are to Rule 105 of Regulation M are designed, in part, to fulfill several fails to deliver at a registered clearing B. Significant Issues Raised by Public objectives, including: (1) Establish agency of 10,000 shares or more per Comments uniform locate and delivery security, and that is equal to at least requirements in order to address The Initial Regulatory Flexibility one-half of one percent of the issue’s potentially abusive naked short selling Analysis (‘‘IRFA’’) appeared in the total shares outstanding. The additional and other problems associated with Proposing Release.160 We requested requirements will not apply to any failures to deliver; (2) clarify marking comment in the IRFA on the impact the issuers that are not registered under requirements for short sales in all equity proposals would have on small entities Section 12 or required to file reports securities; (3) establish a procedure to and how to quantify the impact. We did pursuant to Section 15 of the Exchange temporarily suspend Commission and not receive any comment letters Act, and are thus not required to SRO short sale price tests in order to addressing the IRFA; however, a few provide ongoing public disclosure about evaluate the overall effectiveness and commenters discussed certain costs that the company, its actions, and its necessity of such restrictions; and (4) would be incurred by small broker- performance. As the calculation of the prohibit certain short sales from being dealers and issuers if some or all of the threshold that would trigger the covered with securities obtained from proposals in Regulation SHO were requirements of Rule 203(b)(3) depends shelf offerings. adopted.161 on identifying the aggregate fails to Moreover, the rules are consistent deliver as a percentage of the issuer’s with the objective of simplifying and 160 See Proposing Release, Section XXII. total shares outstanding, it is necessary modernizing short sale regulation, 161 For example, one commenter expressed to limit the requirement to companies providing controls where they are most concern about the Commission’s proposal for firms that are subject to the reporting needed, and temporarily removing to aggregate their positions in securities on a requirements of the Exchange Act. contemporaneous basis throughout the day. The restrictions where they may be commenter claimed such a requirement would XI. Final Regulatory Flexibility unnecessary. Rule 203(b) of Regulation require system changes for those broker-dealers Analysis SHO provides stronger locate and who have not implemented the aggregation units, i.e., smaller broker-dealers, and would be The Final Regulatory Flexibility delivery requirements designed to significantly expensive without the attenuating Analysis (‘‘FRFA’’) has been prepared in address abusive naked short selling, i.e., benefits. See letter from SIA. Also, other accordance with the Regulatory a security could only be sold short to commenters were concerned about the impact of the extent that there was stock available Regulation SHO on small issuers, claiming it would increase the cost of capital to them by imposing 158 See, e.g., Securities Act Section 17(a), and to borrow. Rule 203 is a targeted locate and delivery requirements in the absence of Exchange Act Sections 9(a), 10(b), and 15(c) and a hedging exemption. See letters from Saul Ewing Rules 10b–5 and 15c1–2 thereunder. 159 5 U.S.C. 603. and Feldman.
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C. Small Entities Subject to the that the greatest cost associated with Federal Regulations is amended as Amendments such requirements is related to follows. 162 implementation time and training. Paragraph (c)(1) of Rule 0–10 states PART 240—GENERAL RULES AND that the term ‘‘small business’’ or ‘‘small E. Agency Action To Minimize the Effect REGULATIONS, SECURITIES organization,’’ when referring to a on Small Entities EXCHANGE ACT OF 1934 broker-dealer, means a broker or dealer that had total capital (net worth plus As required by the Regulatory I Flexibility Act, we have considered 1. The authority citation for part 240 subordinated liabilities) of less than continues to read in part as follows: $500,000 on the date in the prior fiscal alternatives that would accomplish our year as of which its audited financial stated objectives, while minimizing any Authority: 15 U.S.C. 77c, 77d, 77g, 77j, significant adverse impact on small 77s, 77z–2, 77z–3, 77eee, 77ggg, 77nnn, statements were prepared pursuant to 77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78i, 78j, § 240.17a–5(d); and that is not affiliated entities. Several alternatives were considered but rejected, while other 78j–1, 78k, 78k–1, 78l, 78m, 78n, 78o, 78p, with any person (other than a natural 78q, 78q–1, 78s, 78u–5, 78w, 78x, 78ll, person) that is not a small business or alternatives were taken into account in 78mm, 79q, 79t, 80a–20, 80a–23, 80a–29, small organization. In the IRFA of the the adoption of Regulation SHO and the 80a–37, 80b–3, 80b–4, 80b–11, and 7201 et Proposing Release, we estimated that as amendments to Rule 105 of Regulation seq.; and 18 U.S.C. 1350, unless otherwise of 2002 there were approximately 880 M. The final rules and rule amendments noted. broker dealers that qualified as small meet the Commission’s stated goals by * * * * * entities, as defined above. Presently, we applying short sale restrictions where § 240.3b–3 [Removed] estimate that as of 2003 there are they are most needed and easing them, approximately 906 broker-dealers that on a temporary basis to obtain greater § 240.10a–2 [Removed] qualify as small entities, as defined empirical data, where they may be above. unnecessary. I 2. Sections 240.3b–3 and 240.10a–2 are In the Proposing Release, we sought Regulation SHO and the amendments removed and reserved. to Rule 105 of Regulation M should not comment on the costs on small entities § 240.10a–1 [Amended] to modify, and in some cases install, adversely affect small entities because systems and surveillance mechanisms to they impose minimal new reporting, I 3. Section 240.10a–1 is amended by: ensure compliance with the new rules, record keeping or compliance I a. Removing the authority citations including implementing the pilot, requirements. Moreover, it is not following the section; marking, and locate and delivery appropriate to develop separate I b. Removing and reserving paragraphs requirements. No commenters requirements for small entities with (c) and (d); and responded with cost estimates respect to Regulation SHO and the I c. Removing paragraph (e)(13). pertaining to the requested data listed adopted amendments to Rule 105 of above. Nevertheless, we estimate the Regulation M, because we think all PART 241—INTERPRETATIVE costs related to upgrades of systems and issuers, including issuers that are small RELEASES RELATING TO THE surveillance mechanisms will be entities, should be subject to short sale SECURITIES EXCHANGE ACT OF 1934 minimal. Industry sources stated that locate and delivery requirements, AND GENERAL RULES AND most broker-dealers, including small marking requirements, and the easing of REGULATIONS THEREUNDER broker-dealers, already have the restrictions on short sales subject of the necessary systems in place. Therefore, pilot. As stated in the Proposing I 4. Part 241 is amended by adding such entities will only be required to Release, we believe that it is beneficial Release No. 34–50103 and the release modify their systems for compliance. to establish uniform standards date of July 28, 2004 to the list of specifying procedures for all short interpretive releases. D. Projected Reporting, Recordkeeping, selling. and Other Compliance Requirements PART 242—REGULATIONS M, SHO, Regulation SHO may impose some XII. Statutory Basis and Text of ATS, AND AC AND CUSTOMER new compliance and marking Adopted Amendments MARGIN REQUIREMENTS FOR requirements on broker-dealers that are Pursuant to the Exchange Act and, SECURITY FUTURES small entities. Some small entities that particularly, Sections 2, 3(b), 9(h), 10, trade securities that may be subject to 11A, 15, 17(a), 17A, 23(a), and 36 I 5. The authority citation for part 242 the pilot program will have to make thereof, 15 U.S.C. 78b, 78c(b), 78i(h), continues to read as follows: changes to exclude these securities from 78j, 78k–1, 78o, 78q(a), 78q–1, 78w(a), Authority: 15 U.S.C. 77g, 77q(a), 77s(a), Commission and SRO price test and 78mm, the Commission is adopting 78b, 78c, 78g(c)(2), 78i(a), 78j, 78k–1(c), 78l, restrictions. Moreover, small entities §§ 242.200, 242.202T, 242.203, along 78m, 78mm, 78n, 78o(b), 78o(c), 78o(g), may have to make systems changes for with amendments to Regulation M, Rule 78q(a), 78q(b), 78g(h), 78w(a), 78dd–1, 80a– additional marking requirements for 105, and interpretative guidance set 23, 80a–29, and 80a–37. short sales in listed securities, i.e., forth in part 241. I adding a ‘‘short exempt’’ designation.163 6. The part heading for part 242 is We sought comment on the reporting, List of Subjects revised as set forth above. recordkeeping, and compliance costs on 17 CFR Parts 240 and 242 § 242.105 [Amended] small entities with regard to, among other things, implementing the pilot and Brokers, Fraud, Reporting and I 7. Section 242.105, paragraph (b) is the marking requirements. We estimate recordkeeping requirements, Securities. amended by removing the phrase 17 CFR Part 241 ‘‘offerings filed under § 230.415 of this 162 17 CFR 240.0–10(c)(1). chapter or to’’. 163 We believe this cost should be minimal Securities. I because some self-regulatory organizations already 8. Part 242 is amended by adding a I either require or advise members to utilize the For the reasons set out in the preamble, new subject heading and §§ 242.200 ‘‘short exempt’’ designation. Title 17, Chapter II, of the Code of through 242.203 to read as follows:
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Regulation SHO—Regulation of Short contracts as defined in 17 CFR of this section, either unconditionally or Sales 240.9b√1(a)(4); and on specified terms and conditions, to (2) If and to the extent that the broker- Sec. any transaction or class of transactions, 242.200 Definition of ‘‘short sale’’ and dealer’s short position in the security is or to any security or class of securities, marking requirements. the subject of offsetting positions or to any person or class of persons. 242.201 Price test [Reserved]. created and maintained in the course of § 242.201 Price test [Reserved]. 242.202T Temporary short sale rule bona-fide arbitrage, risk arbitrage, or suspension. bona fide hedge activities; and § 242.202T Temporary short sale rule 242.203 Borrowing and delivery (3) The sale does not occur during a suspension. requirements. period commencing at the time that the (a) The provisions of 17 CFR 240.10a– Dow Jones Industrial Average has Regulation SHO—Regulation of Short 1(a) and any short sale price test for any declined by two percent or more from Sales exchange or national securities its closing value on the previous day association shall not apply to short sales § 242.200 Definition of ‘‘short sale’’ and and terminating upon the establishment in such securities, or during such time marking requirements. of the closing value of the Dow Jones periods, as the Commission designates (a) The term short sale shall mean any Industrial Average on the next by order as necessary or appropriate in sale of a security which the seller does succeeding trading day. the public interest and consistent with not own or any sale which is (f) In order to determine its net the protection of investors after giving consummated by the delivery of a position, a broker or dealer shall due consideration to the security’s security borrowed by, or for the account aggregate all of its positions in a security liquidity, volatility, market depth and of, the seller. unless it qualifies for independent trading market. All other provisions of (b) A person shall be deemed to own trading unit aggregation, in which case 17 CFR 240.10a–1, § 242.200, and a security if: each independent trading unit shall § 242.203 shall remain in effect. (1) The person or his agent has title aggregate all of its positions in a security (b) No self-regulatory organization to it; or to determine its net position. shall have a rule that is not in (2) The person has purchased, or has Independent trading unit aggregation is conformity with or conflicts with any entered into an unconditional contract, available only if: binding on both parties thereto, to (1) The broker or dealer has a written order issued pursuant to paragraph (a) purchase it, but has not yet received it; plan of organization that identifies each of this section. or aggregation unit, specifies its trading (c) This temporary section will expire (3) The person owns a security objective(s), and supports its on August 6, 2007. convertible into or exchangeable for it independent identity; § 242.203 Borrowing and delivery and has tendered such security for (2) Each aggregation unit within the requirements. conversion or exchange; or firm determines, at the time of each sale, (a) Long sales. (1) If a broker or dealer (4) The person has an option to its net position for every security that it knows or has reasonable grounds to purchase or acquire it and has exercised trades; believe that the sale of an equity such option; or (3) All traders in an aggregation unit security was or will be effected pursuant (5) The person has rights or warrants pursue only the particular trading to an order marked ‘‘long,’’ such broker to subscribe to it and has exercised such objective(s) or strategy(s) of that or dealer shall not lend or arrange for rights or warrants; or aggregation unit and do not coordinate the loan of any security for delivery to (6) The person holds a security that strategy with any other aggregation the purchaser’s broker after the sale, or futures contract to purchase it and has unit; and fail to deliver a security on the date received notice that the position will be (4) Individual traders are assigned to delivery is due. physically settled and is irrevocably only one aggregation unit at any time. bound to receive the underlying (g) A broker or dealer must mark all (2) The provisions of paragraph (a)(1) security. sell orders of any equity security as of this section shall not apply: (c) A person shall be deemed to own ‘‘long,’’ ‘‘short,’’ or ‘‘short exempt.’’ (i) To the loan of any security by a securities only to the extent that he has (1) An order to sell shall be marked broker or dealer through the medium of a net long position in such securities. ‘‘long’’ only if the seller is deemed to a loan to another broker or dealer; (d) A broker or dealer shall be deemed own the security being sold pursuant to (ii) If the broker or dealer knows, or to own a security, even if it is not net paragraphs (a) through (f) of this section has been reasonably informed by the long, if: and either: seller, that the seller owns the security, (1) The broker or dealer acquired that (i) The security to be delivered is in and that the seller would deliver the security while acting in the capacity of the physical possession or control of the security to the broker or dealer prior to a block positioner; and broker or dealer; or the scheduled settlement of the (2) If and to the extent that the broker (ii) It is reasonably expected that the transaction, but the seller failed to do or dealer’s short position in the security security will be in the physical so; or is the subject of offsetting positions possession or control of the broker or (iii) If, prior to any loan or created in the course of bona fide dealer no later than the settlement of the arrangement to loan any security for arbitrage, risk arbitrage, or bona fide transaction. delivery, or failure to deliver, a national hedge activities. (2) A short sale order shall be marked securities exchange, in the case of a sale (e) A broker-dealer shall be deemed to ‘‘short exempt’’ if the seller is relying on effected thereon, or a national securities own a security even if it is not net long, an exception from the tick test of 17 association, in the case of a sale not if: CFR 240.10a–1, or any short sale price effected on an exchange, finds: (1) The broker-dealer is unwinding test of any exchange or national (A) That such sale resulted from a index arbitrage position involving a long securities association. mistake made in good faith; basket of stock and one or more short (h) Upon written application or upon (B) That due diligence was used to index futures traded on a board of trade its own motion, the Commission may ascertain that the circumstances or one or more standardized options grant an exemption from the provisions specified in § 242.200(g) existed; and
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(C) Either that the condition of the security became a threshold security; of the Securities Exchange Act of 1934 market at the time the mistake was provided, however, that if the fail to (‘‘Exchange Act’’) (15 U.S.C. 78c(a)(38)). discovered was such that undue deliver position at the clearing agency is (2) For purposes of this section, the hardship would result from covering the subsequently reduced below the fail to term participant has the same meaning transaction by a ‘‘purchase for cash’’ or deliver position on the settlement day as in section 3(a)(24) of the Exchange that the mistake was made by the immediately preceding the day that the Act (15 U.S.C. 78c(a)(24)). seller’s broker and the sale was at a security became a threshold security, permissible price under any applicable then the fail to deliver position excepted (3) For purposes of this section, the short sale price test. by this paragraph (b)(3)(i) shall be the term registered clearing agency means a (b) Short sales. (1) A broker or dealer lesser amount; clearing agency, as defined in section may not accept a short sale order in an (ii) The provisions of this paragraph 3(a)(23)(A) of the Exchange Act (15 equity security from another person, or (b)(3) shall not apply to the amount of U.S.C. 78c(a)(23)(A)), that is registered effect a short sale in an equity security the fail to deliver position in the with the Commission pursuant to for its own account, unless the broker or threshold security that is attributed to section 17A of the Exchange Act (15 dealer has: short sales by a registered options U.S.C. 78q–1). (i) Borrowed the security, or entered market maker, if and to the extent that (4) For purposes of this section, the into a bona-fide arrangement to borrow the short sales are effected by the term security future has the same the security; or registered options market maker to (ii) Reasonable grounds to believe that meaning as in section 3(a)(55) of the establish or maintain a hedge on options Exchange Act (15 U.S.C. 78c(a)(55)). the security can be borrowed so that it positions that were created before the can be delivered on the date delivery is security became a threshold security; (5) For purposes of this section, the due; and (iii) If a participant of a registered term settlement day means any business (iii) Documented compliance with clearing agency has a fail to deliver day on which deliveries of securities this paragraph (b)(1). position at a registered clearing agency and payments of money may be made (2) The provisions of paragraph (b)(1) in a threshold security for thirteen through the facilities of a registered of this section shall not apply to: consecutive settlement days, the clearing agency. (i) A broker or dealer that has participant and any broker or dealer for accepted a short sale order from another (6) For purposes of this section, the which it clears transactions, including registered broker or dealer that is term threshold security means any any market maker that would otherwise required to comply with paragraph equity security of an issuer that is be entitled to rely on the exception (b)(1) of this section, unless the broker registered pursuant to section 12 of the provided in paragraph (b)(2)(iii) of this or dealer relying on this exception Exchange Act (15 U.S.C. 78l) or for section, may not accept a short sale contractually undertook responsibility which the issuer is required to file order in the threshold security from for compliance with paragraph (b)(1) of reports pursuant to section 15(d) of the another person, or effect a short sale in this section; Exchange Act (15 U.S.C. 78o(d)): the threshold security for its own (ii) Any sale of a security that a (i) For which there is an aggregate fail account, without borrowing the security person is deemed to own pursuant to to deliver position for five consecutive § 242.200, provided that the broker or or entering into a bona-fide arrangement to borrow the security, until the settlement days at a registered clearing dealer has been reasonably informed agency of 10,000 shares or more, and that the person intends to deliver such participant closes out the fail to deliver position by purchasing securities of like that is equal to at least 0.5% of the security as soon as all restrictions on issue’s total shares outstanding; delivery have been removed. If the kind and quantity; person has not delivered such security (iv) If a participant of a registered (ii) Is included on a list disseminated within 35 days after the trade date, the clearing agency reasonably allocates a to its members by a self-regulatory broker-dealer that effected the sale must portion of a fail to deliver position to organization; and borrow securities or close out the short another registered broker or dealer for (iii) Provided, however, that a security position by purchasing securities of like which it clears trades or for which it is shall cease to be a threshold security if kind and quantity; responsible for settlement, based on the aggregate fail to deliver position at (iii) Short sales effected by a market such broker or dealer’s short position, a registered clearing agency does not maker in connection with bona-fide then the provisions of this paragraph exceed the level specified in paragraph market making activities in the security (b)(3) relating to such fail to deliver (c)(6)(i) of this section for five for which this exception is claimed; and position shall apply to the portion of consecutive settlement days. (iv) Transactions in security futures. such registered broker or dealer that was (3) If a participant of a registered allocated the fail to deliver position, and (d) Exemptive authority. Upon written clearing agency has a fail to deliver not to the participant; and application or upon its own motion, the position at a registered clearing agency (v) A participant of a registered Commission may grant an exemption in a threshold security for thirteen clearing agency shall not be deemed to from the provisions of this section, consecutive settlement days, the have fulfilled the requirements of this either unconditionally or on specified participant shall immediately thereafter paragraph (b)(3) where the participant terms and conditions, to any transaction close out the fail to deliver position by enters into an arrangement with another or class of transactions, or to any purchasing securities of like kind and person to purchase securities as security or class of securities, or to any quantity: required by this paragraph (b)(3), and person or class of persons. (i) The provisions of this paragraph the participant knows or has reason to By the Commission. (b)(3) shall not apply to the amount of know that the other person will not Dated: July 28, 2004. the fail to deliver position that the deliver securities in settlement of the participant of a registered clearing purchase. Jill M. Peterson, agency had at a registered clearing (c) Definitions. (1) For purposes of Assistant Secretary. agency on the settlement day this section, the term market maker has [FR Doc. 04–17571 Filed 8–5–04; 8:45 am] immediately preceding the day that the the same meaning as in section 3(a)(38) BILLING CODE 8010–01–P
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SECURITIES AND EXCHANGE dollar volume for the securities in the Commission and self-regulatory COMMISSION Russell 3000 index in 2003 was $22.9 organizations (‘‘SROs’’) to monitor million dollars. trading behavior during the Pilot and [Release No. 50104/July 28, 2004] We selected the securities to be surveil for manipulative short selling. Securities Exchange Act of 1934; included in the Pilot by first excluding The remaining stocks in the Russell the 32 securities in the Russell 3000 3000 index will function as the control Order Suspending the Operation of 9 Short Sale Price Provisions for index as of June 25, 2004 that are not group. The securities in the control Designated Securities and Time Nasdaq national market securities group are similar to the stocks in the Periods (‘‘NNM’’), listed on the American Stock Pilot group in terms of the percentage of Exchange (‘‘Amex’’), or listed on the NYSE, Amex, and Nasdaq securities, as The Securities and Exchange New York Stock Exchange (‘‘NYSE’’) well as securities for which there are Commission (‘‘Commission’’), by this because short sales in these securities associated options and single stock Order, is establishing a Pilot (‘‘Pilot’’) are currently not subject to a price test. futures.10 suspending the provisions of Rule 10a– We also excluded issuers whose initial We are establishing the Pilot as part 1(a) under the Securities Exchange Act public offerings commenced after April of the Commission’s review of short sale of 1934 (the ‘‘Act’’) 1 and any short sale 30, 2004.5 We then sorted the remaining regulation.11 The Pilot is in the public price test of any exchange or national securities into three groups—Amex, interest because it will assist us in securities association for: (1) Short Nasdaq NNM and NYSE—and ranked assessing whether changes to short sale sales 2 in the stocks identified in the securities in each group by average regulation are necessary in light of Appendix A to this Order; (2) short sales daily dollar volume over the one year current market practices and the in any security included in the Russell prior to the issuance of this order from purposes underlying short sale 1000 index effected between 4:15 p.m. highest to lowest for the period.6 In each regulation.12 The Pilot will enable us to EST and the open of the consolidated group, we then selected every third obtain empirical data to help assess tape 3 on the following day; and (3) short stock from the remaining stocks.7 whether short sale regulation should be sales in any security not included in The Pilot stocks consist of 50% NYSE removed, in part or in whole, for paragraphs (1) and (2) above effected in listed securities, 2.2% Amex listed actively-traded securities, or if retained, the period between the close of the securities, and 47.8% Nasdaq NNM should be applied to additional consolidated tape and the open of the securities. The Pilot stocks include securities. The Pilot will allow us to consolidated tape the following day. stocks that have associated options study trading behavior in the absence of The Commission is establishing this trading on a registered options exchange a short sale price test on the stocks Pilot for a one-year period commencing or Nasdaq (63.7% of Pilot stocks) and selected by comparing the trading on January 3, 2005. The Commission associated securities futures (2.8% of behavior of the control group stocks to may issue subsequent orders that affect Pilot stocks).8 that of the Pilot stocks through the operation of the Pilot. The The Pilot includes securities with empirical analysis. We will examine, Commission finds that the Pilot is varying levels of liquidity, which will among other things, the impact of price necessary and appropriate in the public enable us to examine whether the tests on market quality (including interest and consistent with the absence of a short sale price test affects volatility and liquidity), whether any protection of investors.4 less liquid and more liquid securities price changes are caused by short differently. We do not believe that there selling, costs imposed by a price test, I. Short Selling In Designated Securities is sufficient volatility in these securities and the use of alternative means to During the term of the Pilot, all short so as to make them inappropriate for establish short positions. selling in the securities identified in inclusion in the Pilot. In addition, these We do not believe that any variations Appendix A to this Order shall be securities have significant market depth, in prices and trading activity between effected without regard to the provisions and are traded on exchanges or other the Pilot stocks and similar securities of Rule 10a–1(a) and any short sale price organized markets with high levels of not subject to the price test will be test of any exchange or national transparency and surveillance, which problematic. The risk of any adverse securities association. As discussed will enhance the ability of the impact on the Pilot securities is below, the Commission has selected a expected to be small, particularly subset of stocks from the Russell 3000 5 Similarly, we excluded spin-offs commencing relative to the benefits of obtaining index for inclusion in the Pilot, after after April 30, 2004. empirical data regarding trading 6 giving due consideration to the Securities selected for inclusion in the Pilot will behavior in the absence of a short sale remain in the Pilot even if during the term of the price test.13 A large number of Pilot liquidity, volatility, market depth and Pilot they cease being included in the Russell 3000 trading market of these securities. index. 9 A pilot that includes a subset of 7 In each group, we started our selection with the Like the group of pilot stocks, the control group will exclude any securities as to which there is securities from the Russell 3000 second stock in order to have a more representative daily dollar volume sample. The most currently no price test (i.e., securities that are not provides a balanced and targeted representative stock in a group of three stocks exchange-listed or Nasdaq NNM). approach to assessing the efficacy of a ranked by volume would be the middle stock. Thus, 10 Specifically, the control group is composed of price test for short sales for a broad to select the most representative sample for the 49.9% NYSE listed securities, 2.2% Amex listed range of securities. The average daily pilot, we would select the second stock of every securities, 47.9% Nasdaq securities, 62.7% with three stocks; in other words, every third stock associated options, and 3.7% with associated single starting with the second. stock futures. 1 17 CFR 240.10a–1. 8 The percentage of the stocks selected for the 11 See Securities Exchange Act Release No. 50103 2 ‘‘Short sale’’ is defined in Rule 200 of Regulation Pilot that are NYSE or Amex listed, or Nasdaq (July 28, 2004) (‘‘Adopting Release’’). SHO, 17 CFR 242.200. NNM, or for which there are associated options or 12 Adopting Release. 3 The term ‘‘consolidated tape’’ refers to the securities futures, are representational of the 13 The general anti-fraud and anti-manipulation effective transaction reporting plan of the Russell 3000 index as a whole. Specifically, the provisions of the federal securities laws will Consolidated Tape Association. Russell 3000 index is composed of 49.9% NYSE continue to apply to trading in these securities, thus 4 In addition, pursuant to Section 3(f) of the Act, listed securities, 2.2% Amex listed securities, prohibiting trading activity designed to improperly the Commission has considered the Pilot’s impact 47.9% Nasdaq NNM securities, 63% with influence the price of a security. See, e.g., Section on efficiency, competition, and capital formation. associated options, and 3.4% with associated single 17(a) of the Securities Act of 1933, 15 U.S.C. 77q(a), 15 U.S.C. 78c(f). stock futures. and Sections 9(a), 10(b), and 15(c) of the Act, 15
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stocks are actively traded, and as we broad range of securities; it comprises short sale price test enhances a broker- have previously stated, we believe that 1,000 of the largest companies in the dealer’s ability to facilitate customer actively traded securities are less Russell 3000 index (approximately 92% orders in a security at a specific susceptible to manipulation.14 In of the total market capitalization of the reference price, such as the closing price addition, the Commission and the SROs Russell 3000 index).18 Although there is or volume weighted average price, that will monitor trading activity during the limited trading volume in these are often executed in the after-market. Pilot and surveil for manipulative short securities after 4:15 p.m., we believe the For these reasons, we believe that it selling. liquidity is sufficient to allow us to is appropriate that the Pilot include the We believe that a one-year Pilot will examine the impact of removing short suspension of all price tests for all allow the Commission sufficient time to sale price tests. securities included in the Russell 1000 gather and analyze data necessary to Moreover, we believe securities in the index for short sales effected between reach conclusions regarding trading Russell 1000 index are less susceptible 4:15 p.m. and the open of the behavior in the absence of short sale to manipulative short selling in the consolidated tape the following day.20 price restrictions. The Commission, absence of a price test after 4:15 p.m. We are also removing the price tests however, may, by further order, than securities of issuers with a lower during the one-year Pilot period for terminate, extend the period of, or market capitalization. A subset of the short sales in any other security effected modify the Pilot as it determines Russell 3000, the Russell 1000 securities when the consolidated tape is not necessary or appropriate in the public generally trade on exchanges or other operating. This portion of the Pilot is interest or for the protection of organized market centers, and we important because it will allow us to investors. In addition, the Pilot will believe that as a result, the investment study the effect of removal of a price test suspend only the operation of short sale community widely follows Russell 1000 on a broader segment of the market than price tests. All other short sale rules, index securities. Any aberrations in the other parts of the Pilot while the including the other provisions of Rule price are likely to be observed and consolidated tape is not operating. It 10a–1,15 the marking, locate and addressed quickly. In addition, while will also allow us to study whether, and delivery requirements adopted under after-hours trading has grown in recent to what extent, removal of the price test Regulation SHO,16 and applicable SRO years, the volume is relatively small after hours will affect regular trading in rules, will remain in effect. compared to the volume of trading the security on the following day. occurring during regular trading hours Moreover, we do not believe this II. Short Selling During After-Hours when liquidity is greatest and prices portion of the Pilot will pose any threat Trading reflect active market interest.19 Thus, to liquidity or increase volatility in During the Pilot, short sales: (1) In any the impact of any manipulative short these securities after-hours. Historically, security included in the Russell 1000 selling after hours would be less than the Commission has found that there is index effected after 4:15 p.m. e.s.t. and the effect of such activity during regular little evidence that significant trading the open of the consolidated tape on the market hours because after-hours prices activity occurs when the consolidated 21 following day; and (2) in any security are not widely viewed as indicative of tape is not operating, and there is little not included either in paragraph (1) or normal market prices. Further, we do transparency or market depth. in the designated securities described in not believe that there is sufficient Nevertheless, the Commission and the Section I above effected between the volatility in these securities after hours SROs will monitor the trading and our close of the consolidated tape and the so as to make them inappropriate for analysis of data obtained from the Pilot open of the consolidated tape on the inclusion in the Pilot. The lack of will also focus on the impact of after- following day, shall be effected without significant market depth in these hours short selling. regard to the provisions of Rule 10a–1(a) securities after hours will allow us to III. Conclusion examine what effect, if any, removing a and any short sale price test of any The Commission finds that exchange or national securities short sale price test has where information on buy and sell orders is establishing the Pilot for the reasons association. stated above is necessary and Securities in the Russell 1000 index not as readily available. This portion of the Pilot will allow us appropriate in the public interest and are appropriate for inclusion in a Pilot to examine whether removing a price consistent with the protection of examining short sales between 4:15 p.m. test after the close of regular trading in investors. The Pilot will allow the and the close of the consolidated tape.17 securities included in the Russell 1000 Commission to obtain empirical data The Russell 1000 index represents a index would benefit investors and the and study the effects of short selling in markets by increasing liquidity and the absence of price test restrictions. U.S.C. 78i(a), 78j(b) and 78o(c), and Rules 10b–5 Accordingly, and 15c1–2 thereunder, 17 CFR 240.10b–5 and pricing efficiency in these securities in 240.15c1–2. Moreover, the Commission expects that the after-hours market. We will also be A. It is hereby ordered that the SROs will actively monitor trading in the Pilot able to study whether the absence of a suspension of the short sale price tests securities to identify any improper or abusive short described below in Paragraph B shall selling during the course of the Pilot. 18 Securities selected for inclusion in this portion commence on January 3, 2005, and shall 14 See Securities Exchange Act Release No. 38067, of the after-hours Pilot will remain in the Pilot even terminate on December 31, 2005. The 62 FR 520 (Jan. 3, 1997) (adopting anti- if during the term of the Pilot they cease being Commission from time to time may manipulation rules including an exception to the included in the Russell 1000 index. rules for trading activity in securities with high issue further orders affecting the 19 For example, based on a sample of a trading average daily trading volume (‘‘ADTV’’)). day in January of 2000, only 3% of the share operation of this Order. 15 17 CFR 240.10a–1. volume in NYSE-listed securities was effected after 16 17 CFR 242.200, 242.203. 4 p.m. Similarly, share volume from post-4:00 p.m. 20 The consolidated tape operates from 8 a.m. to 17 Regular trading-hours are between 9:30 a.m. trades in Nasdaq securities for the same date 8 p.m. e.s.t. See Securities Exchange Act Release and 4:00 p.m. e.s.t. See Electronic Communication accounted for only 3% of the daily total. A vast No. 44983 (October 25, 2001), 66 FR 55225, 55227 Networks and After-Hours Trading Report by the majority of this after-hours trading volume in both (November 1, 2001). The NASD’s short sale rule, Division of Market Regulation, June 2000, at 4. markets was effected shortly after the regular Rule 3350, is currently not applicable beyond However, trade reporting can be delayed and session closed through market structured after- traditional market hours (9:30 a.m. to 4 p.m. Eastern continue past 4:00 p.m. Therefore, for purposes of market execution opportunities, i.e., crossing- Time). See NASD Notice to Members 94–68. the Pilot we have set 4:15 p.m. as the end of regular sessions. Electronic Communication Networks and 21 Electronic Communication Networks and After- trading activity. After-Hours Trading Report at 12–13. Hours Trading Report at 13.
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B. It is further ordered that the Ticker Ticker provisions of Rule 10a–1(a) and any symbol Company name symbol Company name short sale price test of any exchange or national securities association are AHG ..... APRIA HEALTHCARE GROUP BDG ..... BANDAG INC suspended with respect to: AHR ..... ANTHRACITE CAPITAL INC BDN ..... BRANDYWINE REALTY TRUST AHS ...... AMN HEALTHCARE SERVICES BEAS ... BEA SYSTEMS INC (1) Short sales in the securities set AINV ..... APOLLO INVESTMENT CORP BEAV ... BE AEROSPACE INC forth in Appendix A to this Order; AIQ ...... ALLIANCE IMAGING INC BEBE ... BEBE STORES INC (2) Short sales in any security AKAM ... AKAMAI TECHNOLOGIES BEC ...... BECKMAN COULTER INC included in the Russell 1000 index ALD ...... ALLIED CAPITAL CORP BEN ...... FRANKLIN RESOURCES INC effected between 4:15 p.m. e.s.t. and the ALEX .... ALEXANDER & BALDWIN INC BF.B ..... BROWN FORMAN CORP open of the consolidated tape on the ALGN ... ALIGN TECHNOLOGY INC BFS ...... SAUL CENTERS INC following day; and ALKS .... ALKERMES INC BGFV ... BIG 5 SPORTING GOODS (3) Short sales in any security not ALL ...... ALLSTATE CORP BGP ..... BORDERS GROUP INC included in paragraphs (1) and (2) above ALOG ... ANALOGIC CORP BHS ...... BROOKFIELD HOMES CORP ALSC .... ALLIANCE SEMICONDUCTOR BIIB ...... BIOGEN IDEC INC effected between the close of the ALX ...... ALEXANDERS INC BIO ...... BIO-RAD LABORATORIES INC consolidated tape and the open of the AMD ..... ADVANCED MICRO DEVICES BIOV .... BIOVERIS CORPORATION consolidated tape on the following day. AMED ... AMEDISYS INC BJ ...... BJS WHOLESALE CLUB INC All other provisions of Rule 10a–1 AML ...... AMLI RESIDENTIAL PPTYS BLC ...... BELO CORP shall remain in effect. AMMD .. AMERICAN MEDICAL SYSTEMS BLS ...... BELLSOUTH CORP C. It is further ordered that no self- AMRI .... ALBANY MOLECULAR RESRCH BMC ..... BMC SOFTWARE INC regulatory organization shall have a rule AMTD ... AMERITRADE HOLDING CORP BNI ...... BURLINGTON NORTHERN that is not in conformity with or ANDW .. ANDREW CORP BOBE ... BOB EVANS FARMS INC ANEN ... ANAREN INC BPOP ... POPULAR INC conflicts with the provisions of ANH ..... ANWORTH MORTGAGE ASSET BR ...... BURLINGTON RESOURCES INC Paragraph B. All other provisions of the ANSI ..... ADVANCED BRCD ... BROCADE COMMUNICATIONS rules of any self-regulatory organization NEUROMODULATION BRCM .. BROADCOM CORP shall remain in effect. ANSR ... ANSWERTHINK INC BRL ...... BARR PHARMACEUTICALS IN By the Commission. ANSS ... ANSYS INC BRO ..... BROWN & BROWN INC AOS ..... SMITH A O CORP BRW ..... BRISTOL WEST HLDGS INC Jill M. Peterson, AOT ...... APOGENT TECHNOLOGIES BRY ...... BERRY PETROLEUM CO Assistant Secretary. APC ...... ANADARKO PETROLEUM CORP BSBN ... BSB BANCORP Appendix A APCC ... AMERICAN PWR CONVERSION BSC ...... BEAR STEARNS COS INC APH ...... AMPHENOL CORP BSTE .... BIOSITE INC The following securities are subject to this APOG ... APOGEE ENTERPRISES INC BSX ...... BOSTON SCIENTIFIC CO Order: APOL ... APOLLO GROUP INC BTRX ... BARRIER THERAPEUTICS INC APPB ... APPLEBEES INTERNATIONAL BWS ..... BROWN SHOE INC Ticker APPX ... AMERICAN PHARMA PARTNERS BXS ...... BANCORPSOUTH INC symbol Company name APSG ... APPLIED SIGNAL TECH BYD ...... BOYD GAMING CORP ARE ...... ALEXANDRIA REAL ESTATE CAC ..... CAMDEN NATIONAL CORP A ...... AGILENT TECHNOLOGIES INC ARTC ... ARTHROCARE CORP CACH ... CACHE INC AAI ...... AIRTRAN HOLDINGS INC ARW ..... ARROW ELECTRONICS INC CAH ..... CARDINAL HEALTH INC AAON ... AAON INC ARXX ... AEROFLEX INC CAI ...... CACI INTERNATIONAL INC ABC ...... AMERISOURCEBERGEN CORP ASBC ... ASSOCIATED BANC CORP CAKE ... CHEESECAKE FACTORY INC ABCO ... ADVISORY BOARD CO ASCA ... AMERISTAR CASINOS INC CAL ...... CONTINENTAL AIRLINES INC ABCW .. ANCHOR BANCORP INC ASGR ... AMERICA SERVICE GROUP CALM ... CAL MAINE FOODS INC ABGX ... ABGENIX INC ASKJ .... ASK JEEVES INC CAM ..... COOPER CAMERON CORP ABK ...... AMBAC FINANCIAL GRP INC ASTE .... ASTEC INDUSTRIES INC CAMD .. CALIFORNIA MICRO DEVICES ABMD ... ABIOMED INC ATAC ... AFTERMARKET TECHNOLOGY CARS ... CAPITAL AUTOMOTIVE REIT ABR ...... ARBOR REALTY TRUST INC ATG ...... AGL RESOURCES INC CASY ... CASEYS GENERAL STORES ABRX ... ABLE LABORATORIES INC ATI ...... ALLEGHENY TECHNOLOGIES CATY ... CATHAY GENERAL BANCORP ABT ...... ABBOTT LABORATORIES ATK ...... ALLIANT TECHSYSTEMS CB ...... CHUBB CORP ACAI ..... ATLANTIC COAST AIRLINES ATMI .... ATMI INC CBB ...... CINCINNATI BELL INC ACAP ... AMERICAN PHYSICIANS CAP ATML ... ATMEL CORP CBSH ... COMMERCE BANCSHARES INC ACMR .. A C MOORE ARTS & CRAFTS ATN ...... ACTION PERFORMANCE COS CBSS ... COMPASS BANCSHARES INC ACTI ..... ACTIVCARD CORP ATR ...... APTARGROUP INC CBT ...... CABOT CORP ACV ...... ALBERTO CULVER CO ATRX ... ATRIX LABS INC CBU ..... COMMUNITY BANK SYSTEMS AD ...... ADVO INC AUGT ... AUGUST TECHNOLOGY CORP CCCG .. CCC INFORMATION SVCS ADIC .... ADVANCED DIGITAL INFO AV ...... AVAYA INC CCE ..... COCA COLA ENTERPRISE ADLR ... ADOLOR CORP AVID ..... AVID TECHNOLOGY INC CCRN ... CROSS COUNTRY ADVNB ADVANTA CORP AVTR ... AVATAR HOLDINGS INC HEALTHCARE AEIS ..... ADVANCED ENERGY INDS INC AVX ...... AVX CORP CCRT ... COMPUCREDIT CORP AES ...... AES CORP AVY ...... AVERY DENNISON CORP CCU ..... CLEAR CHANNEL COMM INC AF ...... ASTORIA FINANCIAL CORP AWBC .. AMERICANWEST BANCORP CDE ..... COEUR D ALENE MINES CORP AFC ...... ALLMERICA FINANCIAL CORP AWE ..... AT&T WIRELESS SERVICES CDI ...... CDI CORP AFCO ... APPLIED FILMS CORP AWR ..... AMERICAN STATES WATER CO CDIS .... CAL DIVE INTERNATIONAL AFFX .... AFFYMETRIX INC AXE ...... ANIXTER INTERNATIONAL CDT ...... CABLE DESIGN TECHNOLOGY AFR ...... AMERICAN FINANCIAL RLTY AYI ...... ACUITY BRANDS INC CEG ..... CONSTELLATION ENERGY GRP AGE ..... EDWARDS AG INC AZR ...... AZTAR CORP CENT ... CENTRAL GARDEN & PET CO AGII ...... ARGONAUT GROUP INC B ...... BARNES GROUP INC CERN ... CERNER CORP AGN ..... ALLERGAN INC BBA ...... BOMBAY CO INC CEY ...... CERTEGY INC AGP ..... AMERIGROUP CORP BBOX ... BLACK BOX CORP CFBX ... COMMUNITY FIRST BANK AGR.B .. AGERE SYSTEMS INC BBT ...... BB&T CORP CFC ...... COUNTRYWIDE FINANCIAL AGYS ... AGILYSYS INC BC ...... BRUNSWICK CORP CG ...... LOEWS CORP—CAROLINA GR AHC ..... AMERADA HESS CORP BCSI ..... BLUE COAT SYSTEMS INC CGC ..... CASCADE NATURAL GAS CORP
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Ticker Ticker Ticker symbol Company name symbol Company name symbol Company name
CGX ..... CONSOLIDATED GRAPHIC CYTK ... CYTOKINETICS INC ETM ..... ENTERCOM COMMUNICATIONS CHCO .. CITY HOLDING CO DAR ..... DARLING INTERNATIONAL ETR ...... ENTERGY CORP CHE ..... CHEMED CORPORATION DBRN ... DRESS BARN INC EV ...... EATON VANCE CORP CHFC ... CHEMICAL FINANCIAL CORP DCI ...... DONALDSON INC EXLT .... EXULT INC CHH ..... CHOICE HOTELS INTL INC DCLK ... DOUBLECLICK INC EYET .... EYETECH PHARMACEUTICALS CHK ..... CHESAPEAKE ENERGY CORP DCN ..... DANA CORP FAC ...... FIRST ACCEPTANCE CORP CHRD ... CHORDIANT SOFTWARE INC DDIC .... DDI CORP FADV ... FIRST ADVANTAGE CORP CHRS ... CHARMING SHOPPES INC DDS ..... DILLARDS INC FBC ...... FLAGSTAR BANCORP INC CHTT ... CHATTEM INC DECK ... DECKERS OUTDOOR CORP FBTX .... FRANKLIN BANK CORP CHUX ... O CHARLEYS INC DGII ...... DIGI INTL INC FCE.A .. FOREST CITY ENTRPRS CI ...... CIGNA CORP DGIN .... DIGITAL INSIGHT CORP FCH ...... FELCOR LODGING TRUST INC CIA ...... CITIZENS INC DHC ..... DANIELSON HOLDING CORP FCNCA FIRST CITIZENS BANCSHRS CIMA .... CIMA LABS INC DIS ...... DISNEY WALT CO FCX ...... FREEPORT-MCMORAN C&G CK ...... CROMPTON CORP DJO ...... DJ ORTHOPEDICS INC FD ...... FEDERATED DEPT STORE CKEC ... CARMIKE CINEMAS INC DKS ...... DICKS SPORTING GOODS INC FDS ...... FACTSET RESEARCH SYSTEMS CKFR ... CHECKFREE CORP DLTR .... DOLLAR TREE STORES INC FFFL .... FIDELITY BANKSHARES INC CKH ..... SEACOR HOLDINGS INC DMRC .. DIGIMARC CORP FFIN ..... FIRST FINL BANKSHARES CKR ..... CKE RESTAURANTS INC DOV ..... DOVER CORP FIC ...... FAIR ISAAC CORP CL ...... COLGATE PALMOLIVE CO DOVP ... DOV PHARMACEUTICAL INC FIF ...... FINANCIAL FED CORP CLE ...... CLAIRES STORES INC DP ...... DIAGNOSTIC PRODUCTS CORP FINL ..... FINISH LINE INC CLFC .... CENTER FINANCIAL CORP DPMI .... DUPONT PHOTOMASKS INC FISI ...... FINANCIAL INSTNS INC CLRS ... CLARUS CORP DPTR ... DELTA PETROLEUM CORP FL ...... FOOT LOCKER INC CLSR ... CLOSURE MEDICAL CORP DRE ..... DUKE REALTY CORP FLB ...... FIRST NATL BANKSHARES CLZR .... CANDELA CORP DRXR ... DREXLER TECHNOLOGY CORP FLO ...... FLOWERS FOODS INC CMLS ... CUMULUS MEDIA INC DSS ...... QUANTUM CORP FLR ...... FLUOR CORP CMPC .. COMPUCOM SYSTEMS INC DTAS ... DIGITAS INC FLYR .... NAVIGANT INTERNATIONAL CMS ..... CMS ENERGY CORP DTPI ..... DIAMONDCLUSTER INTL INC FMER ... FIRSTMERIT CORP CMTL ... COMTECH TELECOMM DTSI ..... DIGITAL THEATRE SYSTEMS FMKT ... FREEMARKETS INC CMTY ... COMMUNITY BANKS INC DUSA ... DUSA PHARMACEUTICALS INC FOBB ... FIRST OAK BROOK BANCSHRS CNA ..... CNA FINANCIAL CORP DV ...... DEVRY INC FOE ...... FERRO CORP CNB ..... COLONIAL BANCGROUP INC DVD ..... DOVER MOTORSPORTS INC FON ..... SPRINT FON GROUP CNMD .. CONMED CORP EAC ...... ENCORE ACQUISITION CO FORR ... FORRESTER RESEARCH INC CNT ...... CENTERPOINT PPTYS TRUST EAS ...... ENERGY EAST CORP FPIC ..... FPIC INSURANCE GROUP INC COCO .. CORINTHIAN COLLEGES INC EASI ..... ENGINEERED SUPPORT SYS FPL ...... FPL GROUP INC COKE ... COCA COLA BOTTLING EBAY ... EBAY INC FR ...... FIRST INDUSTRIAL RLTY TR COLB ... COLUMBIA BKG SYSTEM INC EBF ...... ENNIS BUSINESS FORMS INC FRED ... FREDS INC COO ..... COOPER COMPANIES INC ECLG ... ECOLLEGE COM FRK ...... FLORIDA ROCK INDUSTRIES COP ..... CONOCOPHILLIPS ECSI ..... ENDOCARDIAL SOLUTIONS FRME ... FIRST MERCHANTS CORP CORI .... CORILLIAN CORP ED ...... CONSOLIDATED EDISON INC FRNT ... FRONTIER AIRLINES INC COSI .... COSI INC EDLG ... EDUCATION LENDING GROUP FRT ...... FEDERAL REALTY INVT COST ... COSTCO WHOLESALE CORP EDS ...... ELECTRONIC DATA SYSTEMS FRX ...... FOREST LABS INC CPB ...... CAMPBELL SOUP CO EFD ...... EFUNDS CORP FSH ...... FISHER SCIENTIFIC INTL CPHD ... CEPHEID INC EFII ...... ELECTRONICS FOR IMAGING FSLA .... FIRST SENTINEL BANCORP CPKI ..... CALIFORNIA PIZZA KITCHEN EFX ...... EQUIFAX INC FTBK .... FRONTIER FINANCIAL CORP CPRT ... COPART INC EGN ..... ENERGEN CORP FTI ...... FMC TECHNOLOGIES INC CPS ...... CHOICEPOINT INC EGOV ... NIC INC FUL ...... FULLER H B CO CPWM .. COST PLUS INC EIX ...... EDISON INTERNATIONAL G ...... GILLETTE CO CRA ..... APPLERA CORP CELERA EL ...... ESTEE LAUDER COMPANIES GAS ..... NICOR INC CRD.B .. CRAWFORD & CO ELNK .... EARTHLINK INC GBBK ... GREATER BAY BANCORP CRN ..... CORNELL COMPANIES INC ELON ... ECHELON CORP GBCI .... GLACIER BANCORP INC CRS ..... CARPENTER TECHNOLOGY ELY ...... CALLAWAY GOLF CO GBND ... GENERAL BINDING CORP CRWN .. CROWN MEDIA HOLDINGS INC EMC ..... E M C CORP GBP ..... GABLES RESIDENTIAL TRUST CSC ..... COMPUTER SCIENCES CORP ENDP ... ENDO PHARMACEUTICALS GBX ..... GREENBRIER COMPANIES INC CSE ...... CAPITALSOURCE INC ENMC .. ENCORE MEDICAL CORP GCO ..... GENESCO INC CSS ...... CSS INDUSTRIES INC ENTG ... ENTEGRIS INC GDI ...... GARDNER DENVER INC CSTR ... COINSTAR INC ENZ ...... ENZO BIOCHEM INC GDYS ... GOODYS FAMILY CLOTHING CSX ...... CSX CORP EOG ..... EOG RESOURCES INC GEF ...... GREIF INC CTB ...... COOPER TIRE & RUBBER CO EOP ..... EQUITY OFFICE PPTYS TR GERN ... GERON CORP CTBI ..... COMMUNITY TRUST BANCORP EPAX ... AMBASSADORS GROUP INC GET ...... GAYLORD ENTMT CO CTCO ... COMMONWEALTH TEL ENT EPEX ... EDGE PETROLEUM CORP GGG ..... GRACO INC CTIC ..... CELL THERAPEUTICS INC EPIC ..... EPICOR SOFTWARE CORP GGP ..... GENERAL GROWTH PPTYS INC CTL ...... CENTURYTEL INC EPIX ..... EPIX MEDICAL INC GIFI ...... GULF ISLAND FABRICATION CTO ..... CONSOLIDATED TOMOKA LAND EQR ..... EQUITY RESIDENTIAL GISX .... GLOBAL IMAGING SYSTEMS CTR ...... CATO CORP EQT ...... EQUITABLE RESOURCES INC GKSRA G&K SERVICES INC CTS ...... CTS CORP ERES ... ERESEARCHTECHNOLOGY INC GLT ...... GLATFELTER CTSH ... COGNIZANT TECH SOLUTIONS ESCA ... ESCALADE INC GLW ..... CORNING INC CTXS ... CITRIX SYSTEMS INC ESIO .... ELECTRO SCIENTIFIC INDS GMRK .. GULFMARK OFFSHORE INC CUB ..... CUBIC CORP ESL ...... ESTERLINE TECHNOLOGIES GMT ..... GATX CORP CUNO .. CUNO INC ESPD ... ESPEED INC GPC ..... GENUINE PARTS CO CUZ ...... COUSINS PROPERTIES INC ESS ...... ESSEX PROPERTY TRUST INC GPI ...... GROUP 1 AUTOMOTIVE INC CV ...... CENTRAL VERMONT PUB SVC ESST .... ESS TECHNOLOGY INC GPP ..... GOVERNMENT PPTYS TRUST CVTX ... CV THERAPEUTICS INC ESV ...... ENSCO INTERNATIONAL INC GPT ...... GREENPOINT FINANCIAL CYPB ... CYPRESS BIOSCIENCES INC ET ...... E TRADE FINANCIAL CORP GRC ..... GORMAN RUPP CO
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Ticker Ticker Ticker symbol Company name symbol Company name symbol Company name
GS ...... GOLDMAN SACHS GROUP INC ISRG .... INTUITIVE SURGICAL INC MAA ..... MID–AMER APT CMNTYS GT ...... GOODYEAR TIRE & RUBBER ISSC ..... INNOVATIVE SOLUTIONS MAG ..... MAGNETEK INC GTI ...... GRAFTECH INTL LTD IT ...... GARTNER INC MAPX ... MAPICS INC GTK ...... GTECH HOLDINGS CORP ITCD ..... ITC DELTACOM INC MATK ... MARTEK BIOSCIENCES CORP GTY ...... GETTY REALTY CORP ITLA ..... ITLA CAPITAL CORP MATW .. MATTHEWS INTERNATIONAL GW ...... GREY WOLF INC ITW ...... ILLINOIS TOOL WORKS INC MAY ..... MAY DEPARTMENT STORES CO GWR .... GENESEE & WYOMING INC IUSA ..... INFOUSA INC MBTF ... MBT FINANCIAL CORP GWW ... GRAINGER W W INC IVD ...... IVAX DIAGNOSTICS INC MCBC .. MACATAWA BANK CORP GY ...... GENCORP INC JBL ...... JABIL CIRCUIT INC MCDTA MCDATA CORP HARB ... HARBOR FLORIDA BANCSHRS JBLU .... JETBLUE AIRWAYS CORP MCH ..... MILLENNIUM CHEMICALS HAS ...... HASBRO INC JCI ...... JOHNSON CONTROLS INC MCRL ... MICREL INC HBAN ... HUNTINGTON BANCSHARES JCOM ... J2 GLOBAL COMMUNICATIONS MDC ..... MDC HOLDINGS INC HBEK ... HUMBOLDT BANCORP JEF ...... JEFFERIES GROUP INC MDCO .. MEDICINES CO HBHC ... HANCOCK HOLDING CO JJSF ..... J & J SNACK FOODS CO MEDT ... MEDSOURCE TECHNOLOGIES HC ...... HANOVER COMPRESSOR CO JJZ ...... JACUZZI BRANDS INC MERQ .. MERCURY INTERACTIVE CORP HCA ..... HCA INC JKHY .... HENRY JACK & ASSOCIATES METH ... METHODE ELECTRS INC HCP ..... HEALTH CARE PROPERTY INV JLG ...... JLG INDUSTRIES INC MFA ..... MFA MORTGAGE INVESTMENTS HD ...... HOME DEPOT INC JNJ ...... JOHNSON & JOHNSON MFW .... M & F WORLDWIDE CORP HDI ...... HARLEY DAVIDSON INC JOYG ... JOY GLOBAL INC MGG .... MGM MIRAGE HET ...... HARRAHS ENTMT INC JUPM ... JUPITERMEDIA CORP MHC ..... MANUFACTURED HOME HH ...... HOOPER HOLMES INC KBH ...... KB HOME CMNTYS HHS ..... HARTE HANKS INC KERX ... KERYX BIOPHARMACEUTICALS MHO ..... M/I HOMES INC HIH ...... HIGHLAND HOSPITALITY KEX ...... KIRBY CORP MICU .... MICURON PHARMACEUTICALS HIW ...... HIGHWOODS PROPERTIES INC KEYS ... KEYSTONE AUTOMOTIVE INDS MIDD .... MIDDLEBY CORP HLR ...... HOLLINGER INTERNATIONAL KFED ... K FED BANCORP MIL ...... MILLIPORE CORP HLTH .... WEBMD CORP KLAC .... KLA-TENCOR CORP MIPS .... MIPS TECHNOLOGIES INC HME ..... HOME PROPERTIES INC KMRT ... KMART HOLDING CORP MKC ..... MCCORMICK & CO INC HMX ..... HARTMARX CORP KNGT ... KNIGHT TRANSN INC MKL ...... MARKEL CORP HNR ..... HARVEST NATURAL RES KNTA ... KINTERA INC MKSI .... MKS INSTRUMENTS INC HOMS .. HOMESTORE INC KO ...... COCA COLA CO MLAN ... MIDLAND CO HOTT ... HOT TOPIC INC KOPN ... KOPIN CORP MMC .... MARSH & MCLENNAN COS HP ...... HELMERICH & PAYNE INC KR ...... KROGER CO MNRO .. MONRO MUFFLER BRAKE INC HRB ..... BLOCK H & R INC KRB ...... MBNA CORP MNST ... MONSTER WORLDWIDE INC HRH ..... HILB ROGAL & HOBBS CO KRI ...... KNIGHT RIDDER INC MODI .... MODINE MANUFACTURING CO HSY ...... HERSHEY FOODS CORP KROL ... KROLL INC MOGN .. MGI PHARMA INC HTCH ... HUTCHINSON TECHNOLOGY KRT ...... KRAMONT REALTY TRUST MON ..... MONSANTO CO HTLD .... HEARTLAND EXPRESS INC KSE ...... KEYSPAN CORP MONE .. MATRIXONE INC HUG ..... HUGHES SUPPLY INC KSS ...... KOHLS CORP MOV ..... MOVADO GROUP INC HVT ...... HAVERTY FURNITURE INC KSWS .. K-SWISS INC MPG ..... MAGUIRE PPTYS INC HYC ..... HYPERCOM CORP KTO ...... K2 INC MPX ..... MARINE PRODUCTS CORP IAAI ...... INSURANCE AUTO AUCTIONS KYPH ... KYPHON INC MRD ..... MACDERMID INC ICBC .... INDEPENDENCE CMNTY BANK L ...... LIBERTY MEDIA CORP MRGE .. MERGE TECHNOLOGIES INC ICCI ...... INSIGHT COMMUNICATIONS LABS .... LABONE INC MRO ..... MARATHON OIL CORP ICOS .... ICOS CORP LACO ... LAKES ENTERTAINMENT INC MRX ..... MEDICIS PHARMACEUTICAL ICST ..... INTEGRATED CIRCUIT SYS LAWS ... LAWSON PRODUCTS INC MSA ..... MINE SAFETY APPLIANCES IDA ...... IDACORP INC LBY ...... LIBBEY INC MSCC .. MICROSEMI CORP IDC ...... INTERACTIVE DATA CORP LCI ...... LANNETT CO INC MSEX ... MIDDLESEX WATER CO IDNX .... IDENTIX INC LEG ...... LEGGETT & PLATT INC MSFG ... MAINSOURCE FINANCIAL GRP IES ...... INTEGRATED ELECTRICAL LEND ... ACCREDITED HOME LENDERS MSM ..... MSC INDL DIRECT INC IFLO ..... I-FLOW CORP LEXG ... LEXICON GENETICS INC MTEX ... MANNATECH INC IFSIA .... INTERFACE INC LFB ...... LONGVIEW FIBRE CO MTG ..... MGIC INVESTMENT CORP IGT ...... INTL GAME TECHNOLOGY LG ...... LACLEDE GROUP INC MTN ..... VAIL RESORTS INC IHI ...... INFORMATION HOLDINGS INC LHO ...... LASALLE HOTEL PROPERTIES MTRX ... MATRIX SERVICE CO ILA ...... AQUILA INC LIFC ..... LIFECELL CORP MTW .... MANITOWOC CO INC ILE ...... ISOLAGEN INC LIN ...... LINENS N THINGS INC MUSA ... METALS USA INC ILXO ..... ILEX ONCOLOGY INC LIZ ...... LIZ CLAIBORNE INC MVL ...... MARVEL ENTERPRISES INC IMCL .... IMCLONE SYSTEMS INC LKQX ... LKQ CORP MW ...... MENS WEARHOUSE INC IMDC .... INAMED CORP LLY ...... LILLY ELI & CO MWD .... MORGAN STANLEY IMKTA .. INGLES MARKETS INC LNET .... LODGENET ENTMT CORP NABC ... NEWALLIANCE BANCSHARES IMMC ... IMMUNICON CORP LNR ...... LNR PROPERTY CORP NABI ..... NABI BIOPHARMACEUTICALS IN ...... INFONET SVCS CORP LPNT .... LIFEPOINT HOSPITALS NAFC ... NASH FINCH CO INCY .... INCYTE CORP LPX ...... LOUISIANA PACIFIC CORP NATI ..... NATIONAL INSTRS CORP INDB .... INDEPENDENT BANK MA LSCC ... LATTICE SEMICONDUCTOR NAVG ... NAVIGATORS GROUP INC INET ..... INET TECHNOLOGIES INC LSCP .... LASERSCOPE NBIX ..... NEUROCRINE BIOSCIENCES INHO .... INDEPENDENCE HOLDING CO LSE ...... CAPITAL LEASE FUNDING NBL ...... NOBLE ENERGY INC INSU .... INSITUFORM TECHNOLOGIES LSS ...... LONE STAR TECHNOLOGIES NCS ..... NCI BUILDING SYSTEMS INC INT ...... WORLD FUEL SVCS CORP LSTR .... LANDSTAR SYSTEMS INC NDC ..... NDCHEALTH CORP INTC ..... INTEL CORP LTC ...... LTC PROPERTIES INC NEU ..... NEW MARKET CORPORATION INTU ..... INTUIT LTD ...... LIMITED BRANDS INC NFB ...... NORTH FORK BANCORP IO ...... INPUT/OUTPUT INC LTRE .... LEARNING TREE INTL INC NFP ...... NATIONAL FINL PARTNERS ION ...... IONICS INC LUM ..... LUMINENT MORTGAGE CAP NHI ...... NATIONAL HEALTH INVS INC IPAS ..... IPASS INC LXP ...... LEXINGTON CORP PPTYS NITE ..... KNIGHT TRADING GROUP INC ISIS ...... ISIS PHARMACEUTICALS LZ ...... LUBRIZOL CORP NLS ...... NAUTILUS GROUP INC
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Ticker Ticker Ticker symbol Company name symbol Company name symbol Company name
NLY ...... ANNALY MORTAGE MGMT INC PFGC ... PERFORMANCE FOOD GROUP RLI ...... RLI CORP NMG.A NEIMAN MARCUS GROUP INC PFGI ..... PROVIDENT FINANCIAL GRP RLRN ... RENAISSANCE LEARNING INC NNBR ... NN INC PFS ...... PROVIDENT FINANCIAL SVCS RMBS ... RAMBUS INC NNI ...... NELNET INC PFSB .... PENNFED FINANCIAL SVCS RMK ..... ARAMARK CORP NOVN ... NOVEN PHARMACEUTICALS PGNX ... PROGENICS PHARMACEUTICAL ROG ..... ROGERS CORP NPBC ... NATIONAL PENN BANCSHARES PH ...... PARKER HANNIFIN CORP ROH ..... ROHM & HAAS CO NPSP ... NPS PHARMACEUTICALS INC PHCC ... PRIORITY HEALTHCARE ROL ...... ROLLINS INC NR ...... NEWPARK RESOURCES INC PHLY .... PHILADELPHIA CONS HLDG ROV ..... RAYOVAC CORP NRGN .. NEUROGEN CORP PICO .... PICO HOLDINGS INC RRA ..... RAILAMERICA INC NSIT ..... INSIGHT ENTERPRISES INC PII ...... POLARIS INDUSTRIES INC RRI ...... RELIANT ENERGY INC NST ...... NSTAR PILL ...... PROXYMED PHARMACY INC RSG ..... REPUBLIC SERVICES INC NTEC ... NEOSE TECHNOLOGIES INC PLAB .... PHOTRONICS INC RSH ..... RADIOSHACK CORP NTLI ..... NTL INC PLD ...... PROLOGIS RSYS ... RADISYS CORP NTY ...... NBTY INC PLRE .... PRICE LEGACY CORP RTI ...... RTI INTERNATIONAL METALS NU ...... NORTHEAST UTILITIES PLUG ... PLUG POWER INC RUSHB RUSH ENTERPRISES INC NUE ..... NUCOR CORP PLXS .... PLEXUS CORP SAFM ... SANDERSON FARMS INC NUTR ... NUTRACEUTICAL INTL CORP PLXT .... PLX TECHNOLOGY INC SBAC ... SBA COMMUNICATIONS CORP NVLS .... NOVELLUS SYSTEMS INC PMCS ... PMC–SIERRA INC SBNY ... SIGNATURE BANK NVR ..... NVR INC PMTI .... PALOMAR MEDICAL TECH SBSE ... SBS TECHNOLOGIES INC NXST ... NEXSTAR BROADCASTING PNK ...... PINNACLE ENTMT INC SCHL ... SCHOLASTIC CORP NYM ..... NYMAGIC INC PNM ..... PNM RESOURCES INC SCHN ... SCHNITZER STEEL INDS NYT ...... NEW YORK TIMES CO PNR ..... PENTAIR INC SCHS ... SCHOOL SPECIALTY INC OCA ..... ORTHODONTIC CTRS OF AMER POP ..... POPE & TALBOT INC SCLN ... SCICLONE PHARMACEUTICALS OCAS ... OHIO CASUALTY CORP POS ..... CATALINA MARKETING CORP SCMF ... SOUTHERN CMNTY FINL CORP OI ...... OWENS ILLINOIS INC POWL .. POWELL INDUSTRIES INC SCS ...... STEELCASE INC OIS ...... OIL STATES INTERNATIONAL POZN ... POZEN INC SEBL .... SIEBEL SYSTEMS INC OME ..... OMEGA PROTEIN CORP PPC ...... PILGRIMS PRIDE CORP SECD ... SECOND BANCORP INC OMEF ... OMEGA FINANCIAL CORP PPL ...... PPL CORP SEH ...... SPARTECH CORP OMI ...... OWENS & MINOR INC PPP ...... POGO PRODUCING CO SEIC ..... SEI INVESTMENTS CO ONB ..... OLD NATIONAL BANCORP PRFS ... PENNROCK FINANCIAL SVCS SFCC ... SFBC INTERNATIONAL INC ONXX ... ONYX PHARMACEUTICALS INC PRM ..... PRIMEDIA INC SFD ...... SMITHFIELD FOODS INC OPNT ... OPNET TECHNOLOGIES INC PRSF ... PORTAL SOFTWARE INC SFE ...... SAFEGUARD SCIENTIFICS ORCL ... ORACLE CORP PRSP ... PROSPERITY BANCSHARES SFN ...... SPHERION CORP ORLY ... O REILLY AUTOMOTIVE INC PRTR ... PARTNERS TRUST FINL GRP SFSW ... STATE FINANCIAL SERVICES OS ...... OREGON STEEL MILLS INC PSA ...... PUBLIC STORAGE INC SGA ..... SAGA COMMUNICATIONS OSBC ... OLD SECOND BANCORP INC PSB ...... PS BUSINESS PARKS INC SGEN ... SEATTLE GENETICS INC OSG ..... OVERSEAS SHIPHOLDNG GRP PSD ...... PUGET ENERGY INC SHLM ... SCHULMAN A INC OSI ...... OUTBACK STEAKHOUSE INC PSFT .... PEOPLESOFT INC SHW ..... SHERWIN WILLIAMS CO OSIP .... OSI PHARMACEUTICALS PSRC ... PALMSOURCE INC SIR ...... SIRVA INC OSTK ... OVERSTOCK COM INC PSS ...... PAYLESS SHOESOURCE INC SJI ...... SOUTH JERSEY INDUSTRIES OSUR ... ORASURE TECHNOLOGIES INC PSSI ..... PSS WORLD MEDICAL INC SJW ..... SJW CORP OTL ...... OCTEL CORP PTMK ... PATHMARK STORES INC SLFI ..... STERLING FINL CORP PA OTTR ... OTTER TAIL CORP PVH ...... PHILLIPS VAN HEUSEN SLG ...... SL GREEN REALTY CORP OVRL ... OVERLAND STORAGE INC PVTB .... PRIVATEBANCORP INC SLR ...... SOLECTRON CORP OVTI ..... OMNIVISION TECHNOLOGIES PWAV .. POWERWAVE TECHNOLOGIES SMHG .. SANDERS MORRIS HARRIS OXM ..... OXFORD INDUSTRIES INC PWER .. POWER–ONE INC SMSC ... STANDARD MICROSYSTEM PACR ... PACER INTERNATIONAL INC PWR ..... QUANTA SERVICES INC SMTC ... SEMTECH CORP PAS ...... PEPSIAMERICAS INC PX ...... PRAXAIR INC SNH ..... SENIOR HOUSING PPTYS TR PAX ...... PAXSON COMMUNICATION PXLW ... PIXELWORKS INC SNRR ... SUNTERRA CORP PAYX ... PAYCHEX INC PXP ...... PLAINS EXPLORATION & PRO SNS ...... STEAK N SHAKE CO PBI ...... PITNEY BOWES INC QSFT ... QUEST SOFTWARE INC SNWL ... SONICWALL INC PBKS ... PROVIDENT BANKSHARES QSII ...... QUALITY SYSTEMS INC SO ...... SOUTHERN CO PCAR ... PACCAR INC QUIX .... QUIXOTE CORP SONE ... S1 CORPORATION PCCC ... P C CONNECTION R ...... RYDER SYSTEM INC SORC ... SOURCE INTERLINK COS INC PCG ..... PG&E CORP RA ...... RECKSON ASSOCS RLTY SRCL ... STERICYCLE INC PCH ..... POTLATCH CORP RAE ...... RAE SYSTEMS INC SRDX ... SURMODICS INC PCL ...... PLUM CREEK TIMBER CO INC RAH ..... RALCORP HOLDINGS INC SRNA ... SERENA SOFTWARE INC PCSA ... AIRGATE PCS INC RAVN ... RAVEN INDUSTRIES INC SRP ...... SIERRA PACIFIC RESOURCES PCTY ... PARTY CITY CORP RBC ..... REGAL BELOIT CORP SRZ ...... SUNRISE SENIOR LIVING PCU ..... SOUTHERN PERU COPPER RBNC ... REPUBLIC BANCORP INC MI SSI ...... SPECTRASITE INC PCYC ... PHARMACYCLICS INC RBPAA ROYAL BANCSHARES OF PENN SSP ...... SCRIPPS E W CO PD ...... PHELPS DODGE CORP RCRC ... RC2 CORP STEI ..... STEWART ENTERPRISES PDLI ..... PROTEIN DESIGN LABS INC RDC ..... ROWAN COMPANIES INC STFC .... STATE AUTO FINANCIAL PDX ...... PEDIATRIX MEDICAL GROUP RDI ...... READING INTERNATIONAL IN STK ...... STORAGE TECHNOLOGY CORP PEET .... PEETS COFFEE & TEA INC REG ..... REGENCY CENTERS CORP STL ...... STERLING BANCORP PEG ..... PUBLIC SVC ENTERPRISE RF ...... REGIONS FINANCIAL CORP STMP ... STAMPS COM INC PEGA ... PEGASYSTEMS INC RGLD ... ROYAL GOLD INC STN ...... STATION CASINOS INC PENG ... PRIMA ENERGY CORP RGR ..... STURM RUGER & CO INC STRA ... STRAYER EDUCATION INC PENN ... PENN NATIONAL GAMING INC RGS ..... REGIS CORP STRT .... STRATTEC SECURITY CORP PEP ...... PEPSICO INC RHD ..... R H DONNELLEY CORP STSI ..... STAR SCIENTIFIC INC PER ...... PEROT SYSTEMS CORP RJR ...... REYNOLDS R J TOB HLDGS STT ...... STATE STREET CORP PETS .... PETMED EXPRESS INC RKT ...... ROCK–TENN CO STZ ...... CONSTELLATION BRANDS PFE ...... PFIZER INC RL ...... POLO RALPH LAUREN CO SUI ...... SUN COMMUNITIES INC
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Ticker Ticker Ticker symbol Company name symbol Company name symbol Company name
SUNN ... SUNTRON CORP TTC ...... TORO CO WEN ..... WENDYS INTERNATIONAL INC SUNW .. SUN MICROSYSTEMS INC TTEC .... TELETECH HOLDINGS INC WEYS .. WEYCO GROUP INC SUP ...... SUPERIOR INDUSTRIES INTL TTMI ..... TTM TECHNOLOGIES INC WFR ..... MEMC ELECTRIC MATERIALS SUPX ... SUPERTEX INC TWX ..... TIME WARNER INC WFSG .. WILSHIRE FINANCIAL SVCS SVM ..... SERVICEMASTER CO TXI ...... TEXAS INDUSTRIES INC WHQ .... W–H ENERGY SVCS INC SWBT ... SOUTHWEST BANCORP OF TEX TXN ...... TEXAS INSTRUMENTS INC WIND ... WIND RIVER SYSTEMS INC SWK ..... STANLEY WORKS TXT ...... TEXTRON INC WLT ..... WALTER INDUSTRIES INC SWW .... SITEL CORP TXU ...... TXU CORP WMGI ... WRIGHT MEDICAL GROUP INC SWX ..... SOUTHWEST GAS CORP UBA ...... URSTADT BIDDLE PPTYS INS SWY ..... SAFEWAY INC UCBH ... UCBH HOLDINGS INC WMT .... WAL MART STORES INC SYD ...... SYBRON DENTAL SPECIALTIE UCI ...... UICI WNC .... WABASH NATIONAL CORP SYK ...... STRYKER CORP UCL ...... UNOCAL CORP WON .... WESTWOOD ONE INC SYX ...... SYSTEMAX INC UFPI ..... UNIVERSAL FOREST PRODS WOR .... WORTHINGTON INDUSTRIES SYY ...... SYSCO CORP UGI ...... UGI CORP WPI ...... WATSON PHARMACEUTICALS TARR ... TARAGON REALTY INVS INC UHAL ... AMERCO WPO .... WASHINGTON POST CO TASR ... TASER INTL INC UIC ...... UNITED INDUSTRIAL CORP WPSC .. WHEELING PITTSBURGH CORP TBCC ... TBC CORP ULBI ..... ULTRALIFE BATTERIES INC WR ...... WESTAR ENERGY INC TCC ...... TRAMMELL CROW CO ULCM ... ULTICOM INC WRC .... WESTPORT RESOURCES CORP TCR ...... CORNERSTONE RLTY INC TR UNF ...... UNIFIRST CORP MASS WRE ..... WASHINGTON REAL ESTATE TDW ..... TIDEWATER INC UOPX ... APOLLO GRP UNIV PHOENIX WRLD .. WORLD ACCEPTANCE CORP TDY ...... TELEDYNE TECHNOLOGIES URS ..... URS CORP WSBA .. WESTERN SIERRA BANCORP TECUA TECUMSEH PRODS CO USG ..... U S G CORP WSBC .. WESBANCO INC TELK .... TELIK INC USON ... US ONCOLOGY INC WSBK .. WILSHIRE STATE BANK TERN ... TERAYON COMM SYSTEMS INC UTHR ... UNITED THERAPEUTICS WSO .... WATSCO INC TG ...... TREDEGAR CORP UVN ..... UNIVISION COMMUNICATIONS TGI ...... TRIUMPH GROUP INC UVV ...... UNIVERSAL CORP WST ..... WEST PHARMACEUTICAL SVCS TGIC .... TRIAD GUARANTY INC VAR ...... VARIAN MEDICAL SYSTEMS WSTL ... WESTELL TECHNOLOGIES INC TGT ...... TARGET CORP VARI ..... VARIAN INC WTBA ... WEST BANCORPORATION INC THFF .... FIRST FINANCIAL CORP VCBI ..... VIRGINIA COMM BANCORP WW ...... WATSON WYATT & CO HLDGS THO ..... THOR INDUSTRIES INC VECO ... VEECO INSTRUMENTS INC WWE .... WORLD WRESTLING ENTMNT THOR ... THORATEC CORP VFC ...... V F CORP WWY .... WRIGLEY WM JR CO THX ...... HOUSTON EXPLORATION CO VGR ..... VECTOR GROUP LTD WXH ..... WINSTON HOTELS INC TIF ...... TIFFANY & CO VICR .... VICOR CORP WY ...... WEYERHAEUSER CO TKLC .... TEKELEC VITA ..... ORTHOVITA INC WYE ..... WYETH TKR ...... TIMKEN CO VITL ..... VITAL SIGNS INC XLNX .... XILINX INC TLAB .... TELLABS INC VLO ...... VALERO ENERGY CORP XLTC .... EXCEL TECHNOLOGY INC TLB ...... TALBOTS INC VLY ...... VALLEY NATIONAL BANCORP XRIT ..... X-RITE INC TLRK .... TULARIK INC VMSI .... VENTANA MEDICAL SYSTEMS XTO ...... XTO ENERGY INC TMA ..... THORNBURG MORTGAGE INC VRC ..... VARCO INTERNATIONAL INC Y ...... ALLEGHANY CORP TMG ..... TRANSMONTAIGNE INC VRNT ... VERINT SYSTEMS INC YRK ...... YORK INTERNATIONAL CORP TMWD .. TUMBLEWEED COMMUNI- VRTX ... VERTEX PHARMACEUTICALS ZBRA ... ZEBRA TECHNOLOGIES CORP CATION VSAT .... VIASAT INC ZGEN ... ZYMOGENETICS INC TOL ...... TOLL BROTHERS INC VSH ...... VISHAY INTERTECHNOLOGY ZHNE ... ZHONE TECHNOLOGIES INC TOY ...... TOYS R U.S. INC VTA ...... VESTA INS GROUP INC ZIGO .... ZYGO CORP TPTI ..... TIPPINGPOINT TECH INC VTIV ..... VENTIV HEALTH INC ZILA ..... ZILA INC TQNT ... TRIQUINT SEMICONDUCTOR VVTV .... VALUEVISION MEDIA INC ZION .... ZIONS BANCORPORATION TR ...... TOOTSIE ROLL INDUSTRIES VXGNE VAXGEN INC TRCA ... TERCICA INC WAB ..... WABTEC CORP ZLC ...... ZALE CORP TRMK ... TRUSTMARK CORP WASH .. WASHINGTON TRUST ZMH ..... ZIMMER HOLDINGS INC TRST .... TRUSTCO BANK CORP NY BANCORP ZQK ...... QUIKSILVER INC TRZ ...... TRIZEC PROPERTIES INC WAT ..... WATERS CORP TSA ...... SPORTS AUTHORITY INC WBS ..... WEBSTER FINANCIAL CORP [FR Doc. 04–17572 Filed 8–5–04; 8:45 am] TSFG ... SOUTH FINANCIAL GROUP WEBM .. WEBMETHODS INC BILLING CODE 8010–01–P
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Part IV
Department of Housing and Urban Development Proposed Fair Market Rents for the Housing Choice Voucher Program and Moderate Rehabilitation Single Room Occupancy Program Fiscal Year 2005; Notice
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DEPARTMENT OF HOUSING AND a Federal Register notice issued on or assistance payments are limited by URBAN DEVELOPMENT about October 1, 2004. HUD will accept FMRs established by HUD for different comments during the 60-day period areas. In the Housing Choice Voucher [Docket No. FR–4937–N–01] following the initial 30-day comment program, the FMR is the basis for determining the ‘‘payment standard Proposed Fair Market Rents for the period. Comments received during the amount’’ used to calculate the Housing Choice Voucher Program and 60-day period will be considered for maximum monthly subsidy for an Moderate Rehabilitation Single Room inclusion in a subsequent FY2005 assisted family (see 24 CFR 982.503). In Occupancy Program Fiscal Year 2005 Federal Register FMR notice. ADDRESSES: Interested persons are general, the FMR for an area is the AGENCY: Office of the Secretary, HUD. invited to submit comments regarding amount that would be needed to pay the ACTION: Notice of Proposed Fiscal Year HUD’s estimates of the FMRs as gross rent (shelter rent plus utilities) of (FY) 2005 Fair Market Rents (FMRs). published in this notice to the Office of privately owned, decent, and safe rental the General Counsel, Rules Docket housing of a modest (non-luxury) nature SUMMARY: Section 8(c)(1) of the United Clerk, Room 10276, Department of with suitable amenities. The interim States Housing Act of 1937 (USHA) Housing and Urban Development, 451 rule published on October 2, 2000 (65 requires the Secretary to publish Fair Seventh Street, SW., Washington, DC FR 58870), established 50th percentile Market Rents (FMRs) annually to be 20410–0001. Communications should FMRs for certain areas. effective on October 1 of each year. The refer to the above docket number and Electronic Data Availability: This Department’s regulations at 24 CFR part title and should contain the information Federal Register notice is available 888 provide a notice and comment specified in the ‘‘Request for electronically from the HUD news page: process for developing FMRs. Today’s Comments’’ section. To ensure that the http://www.hudclips.org. Federal notice proposes FMRs for FY2005. The information is fully considered by all of Register notices also are available proposed numbers would amend FMR the reviewers, each commenter is electronically from the U.S. Government schedules used to determine payment requested to submit two copies of its Printing Office Web site: http:// standard amounts for the Housing comments, one to the Rules Docket www.gpoaccess.gov/fr/index.html. Choice Voucher program, to determine Clerk and the other to the Economic and II. Procedures for the Development of initial renewal rents for some expiring Market Analysis Staff in the appropriate FMRs project-based section 8 contracts, and to HUD field office. A copy of each Section 8(a) of the USHA requires the determine initial rents for housing communication submitted will be Secretary of HUD to publish FMRs assistance payment (HAP) contracts in available for public inspection and periodically, but not less frequently the Moderate Rehabilitation Single copying during regular business hours than annually. The Departments Room Occupancy program. Other (8 a.m. to 5 p.m. eastern time) at the regulations provide that HUD will programs may require use of FMRs for above address. develop proposed FMRs, publish them other purposes. FOR FURTHER INFORMATION CONTACT: for public comment, analyze the Proposed FY2005 FMRs are based on Deborah Hernandez, Director, Office of comments, and publish final FMRs. (See 40th percentile recent mover FMR Housing Voucher Programs, telephone 24 CFR 888.115.) Final FY2005 FMRs estimates for most areas, but FMRs for (202) 708–2934, responsible for will be published on or before October 38 metropolitan areas are shown at the decisions on how fair market rents are 1, 2004, as required by section 8(c)(1) of 50th percentile FMR standard. The 50th used; or Mark Johnston, Office of the USHA. percentile FMRs were initiated in 2001 Special Needs Assistance Programs, to increase housing choice opportunities telephone (202) 708–4300, responsible III. Fair Market Rent Schedules in metropolitan areas where high for administration of the Mod Rehab This notice proposes revised FMRs for percentages of vouchers were being Single Room Occupancy program. For FY2005. These are the first FMRs used in high poverty census tracts. For technical information on the calculated using 2000 Census data, informational purposes, 40th percentile methodology used to develop fair which only recently became available in FMRs for the 38 areas that currently market rents or a listing of all fair the level of detail (recent mover, have 50th percentile FMRs are also market rents, please call the HUD USER standard-quality unit rents by number of listed. information line at 800–245–2691 or bedrooms) necessary to calculate FMRs. The proposed FY2005 FMRs in this access the information on the HUD Web The Department refers to the use of new notice are the first to utilize new Office site, http://www.huduser.org/datasets/ decennial census data to revise FMRs as of Management and Budget (OMB) area fmr.html. Further questions on the ‘‘rebenchmarking.’’ This process definitions and 2000 Census data methodology may be addressed to Marie involves replacing the base year FMR (which became available in September L. Lihn, Economic and Market Analysis estimates with those developed from 2003). The FMR estimates have been Division, Office of Economic Affairs, new Census data and then updating the trended to April 2005, the mid-point of telephone (202) 708–0590, e-mail Census-based estimates from the date of FY2005. [email protected]. Hearing- or the Census to the midpoint of the DATES: Comments Due Date: September speech-impaired persons may use the program year during which the FMRs 7, 2004. Due to a number of technical Telecommunications Device for the Deaf will be in effect. The proposed FY2005 and policy issues associated with (TTY) at (800) 927–7589. (Other than FMRs for all areas in the country have rebenchmarking the FY2004 FMRs with the HUD USER and TTY numbers, been rebenchmarked, either with 2000 Census data, the proposed FY2005 telephone numbers are not toll-free.) Census data or with Random Digit FMRs are being published later than SUPPLEMENTARY INFORMATION: Dialing surveys or American Housing usual. HUD is required to publish FMRs Surveys conducted after the date of the for effect by October 1, 2004. To meet I. Background 2000 Census. this requirement, HUD is allowing a 30- Section 8 of the USHA (42 U.S.C. In addition to the use of Census 2000 day comment submission period for the 1437f) authorizes housing assistance to data for FMRs, these FMRs also reflect FMRs proposed in this notice. Reviews aid lower income families in renting a change in metropolitan area of these comments will be reflected in safe and decent housing. Housing definitions. Please see the following
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section on Metropolitan Area Schedules B(1) and B(2) at the end of metropolitan areas and parts of Definitions for a discussion of housing this document list the proposed FMR metropolitan areas that previously market areas and HUD’s use of OMB- levels for rental housing. Schedule B(1) qualified for 50th percentile FMRs but defined metropolitan area. Due to the lists the proposed 2005 FMRs for all no longer do so because of OMB area rebenchmarking and the changes in area areas using the estimated 40th or 50th definitional changes. definitions, the proposed FMRs for percentile FMR standard. An asterisk in Schedule B(1) contains 40th many areas differ from the normal Schedule B(1) identifies the FMR areas percentile FMRs for most areas, but updating of last year’s FMRs. where use of 50th percentile FMRs had provides 50th percentile FMRs for the been authorized. There are some following metropolitan FMR areas:
Albuquerque, NM ...... Atlanta-Sandy Springs-Marietta, GA. Austin-Round Rock, TX ...... Baton Rouge, LA. Buffalo-Niagara Falls, NY ...... Chicago-Naperville-Joliet, IL. Cleveland-Elyria-Mentor, OH ...... Dallas-Plano-Irving, TX. Denver-Aurora, CO ...... Detroit-Livonia-Dearborn, MI. Fort Lauderdale-Pompano Beach-Deerfield Beach, FL ...... Fort Worth-Arlington, TX. Grand Rapids-Wyoming, MI ...... Houston-Baytown-Sugar Land, TX. Kansas City, MO-KS ...... Las Vegas-Paradise, NV. Miami-Miami Beach-Kendall, FL ...... Minneapolis-St. Paul-Bloomington, MN-WI. Newark-Union, NJ-PA ...... Oakland-Fremont-Hayward, CA. Oklahoma City, OK ...... Oxnard-Thousand Oaks-Ventura, CA. Philadelphia, PA ...... Phoenix-Mesa-Scottsdale, AZ. Richmond-Petersburg, VA ...... Sacramento-Arden-Arcade-Roseville, CA. St. Louis, MO-IL ...... Salt Lake City-Ogden, UT. San Antonio, TX ...... San Diego-Carlsbad-San Marcos, CA. San Jose-Sunnyvale-Santa Clara, CA ...... Santa Ana-Anaheim-Irvine, CA. Tampa-St. Petersburg-Clearwater, FL ...... Tulsa, OK. Virginia Beach-Norfolk-Newport News, VA-NC ...... Washington-Arlington-Alexandria, DC-VA-MD-WV. West Palm Beach-Boca Raton-Boynton Beach, FL ...... Wichita, KS.
For informational purposes, Schedule The new 2000 Census-based Metropolitan Statistical Area concept. B(2) of this document provides the 40th metropolitan area standards use Special note should be made of the fact percentile FMR standard for the 38 areas somewhat different terminology than that the new metropolitan area that have a 50th percentile rent shown previously in use. The 1980 and 1990 definitions are county-based. This in Schedule B(1). FMR areas are listed Census-based standards identified two results in significant changes in how by State; a FMR area that covers parts types of metropolitan areas: (1) some New England metropolitan areas of two States will be shown under each Metropolitan Statistical Areas (MSAs), are defined. State listing. and (2) Consolidated Metropolitan While a Metropolitan Division is a FMRs for the Moderate Rehabilitation Statistical Areas (CMSAs). CMSAs were subdivision of a large Metropolitan program are 120 percent of the Schedule large metropolitan areas that had two or Statistical Area, it functions as a distinct B(1) Fair Market Rents (see 24 CFR more large, distinct subparts referred to social, economic, and cultural area 882.408(a) and 888.113(e)(1)). The as Primary Metropolitan Statistical within the larger region. Metropolitan payment standard amount for a single- Areas (PMSAs). For instance, the Divisions are given separate statistical room occupancy unit in the Rental Baltimore-Washington metropolitan identities (e.g., Census reports will Voucher program is 75 percent of the area was categorized as a CMSA, and it provide separate estimates for these efficiency FMR listed in Schedule B(1). was split into a Baltimore PMSA and a areas). Federal agencies that had been Manufactured home space rents are Washington, DC PMSA. Counties were using Primary Metropolitan Statistical set at 40 percent of the Schedule B(1) the building blocks for metropolitan Areas for program administrative and FMR and include utilities. Exceptions to area definitions except in New England, fund allocation purposes were directed this calculated rent are based on surveys where aggregations of townships were by OMB to consider replacing them of space rents plus utilities and are used to define metropolitan areas. HUD with Metropolitan Divisions because of shown on Schedule D. FMR areas were defined using MSA and the conceptual similarities. PMSA definitions. Many metropolitan areas have been IV. Metropolitan Area Definitions The terms ‘‘Consolidated revised to include counties previously A housing market area is a geographic Metropolitan Statistical Area’’ and designated as nonmetropolitan areas. area where housing units of similar ‘‘Primary Metropolitan Statistical Area’’ Some of these formerly nonmetropolitan characteristics are in competition with are now obsolete. Under the 2000 counties will find that the proposed each other. With a few exceptions standards, the term ‘‘Metropolitan FY2005 FMRs are substantially higher. identified below, HUD uses OMB- Statistical Area’’ is used for all Counties with substantial increases in defined metropolitan areas as the metropolitan areas. These areas are also the FMR may find program geographic basis for defining housing referred to as Core-Based Statistical implementation difficult because of markets because of the correspondence Areas (CBSAs). A large metropolitan insufficient funding. These counties that typically exists between these CBSA area may be divided into should apply to the Office of Public and definitions and housing market area ‘‘Metropolitan Divisions,’’ which consist Indian Housing for exception rents definitions. of a county or group of counties within below 90 percent of the FMR standard As part of the 2000 Census process, a Metropolitan Statistical Area that has (See 24 CFR 982.503) when appropriate. OMB released new metropolitan area a population core of at least 2.5 million. The revised OMB definitions identify definitions on June 6, 2003, and A Metropolitan Division is similar in two types of nonmetropolitan areas. A updated them on February 18, 2004. concept to the now obsolete Primary ‘‘Micropolitan Area’’ consists of one or
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more counties that meet certain be both high enough to permit a are developed annually for the population size and other criteria. selection of units in neighborhoods and metropolitan and nonmetropolitan parts Remaining nonmetropolitan areas low enough to serve as many families as of each of the 10 HUD regions. The RDD consist of individual nonmetropolitan possible. factors are used to update the base-year counties that lack the ‘‘Micropolitan FMRs are set at a percentile within estimates for all FMR areas that are not Area’’ designation. the rent distribution of standard quality covered by a metropolitan CPI survey. HUD has made two changes to OMB rental housing units in each FMR area The decennial Census provides area definitions in establishing (see 24 CFR 888.113). FMRs are based statistically reliable rent data for use in proposed FY2005 FMR areas. One on the distribution of rents for units that establishing base-year FMRs. The RDD change is legislatively mandated, and are occupied by recent movers. The telephone survey technique is based on requires establishing separate FMRs for distribution does not include rents for a sampling procedure that uses Westchester County, New York, even units less than two years old and is computers to select statistically random though it is part of the New York City adjusted for public housing units. samples of telephone numbers that are Metropolitan Area. The other change Attached FMR Schedule B(1) provides then contacted to seek information on relates to Virginia independent cities, FY2005 FMRs at the 40th or 50th rental housing. RDD surveys are which are treated as county-equivalents percentile of rents paid by recent conducted for two purposes: (1) For by the Census but which are too small movers for all areas. The 50th percentile developing FMR estimates for selected to be considered distinct housing FMRs were assigned to large individual FMR areas, and (2) for market areas. For FMR program metropolitan areas that had high developing HUD regional gross rent- purposes, Virginia independent cities program concentrations in high poverty change factors. The HUD Regional are associated with a metropolitan area areas. Schedule B(2) provides FY2005 surveys are conducted annually. or nonmetropolitan county. FMRs at the 40th percentile for the 38 Contingent on funding, HUD conducts Independent cities that fall within areas that are currently set at the 50th 60 to 80 individual FMR area surveys metropolitan or micropolitan areas are percentile. The 40th percentile rent each year. In late 2005, Census considered a part of those areas and will standard means that 40 percent of all American Community Survey (ACS) be listed in their respective standard-quality rental housing units data will begin to become available that metropolitan, micropolitan, or rented by recent movers have rents at or will provide highly reliable annual rent nonmetropolitan area. below this dollar amount. Public estimates for most metropolitan areas, Housing Authorities (PHAs) have and eliminate the need for HUD regional VIRGINIA NONMETROPOLITAN COUNTY discretion to increase their payment RDD surveys as well as most local RDD FMR AREA AND INDEPENDENT CIT- standards to 110 percent of published surveys. The ACS will collect the same IES INCLUDED WITH COUNTY FMRs. Because the variation in rents type of rent data as the decennial between the 40th and 60th percentiles is Census. ACS data will be used to County Cities so small, a 10 percent increase in a rent replace HUD regional RDD surveys in set at the 40th percentile produces a Allegheny ...... Clifton Forge, Cov- FY 2006 FMRs, and area-specific ACS rent standard that is, on average, equal FMR estimates will also become ington. to the 55th percentile of rents paid by Carroll ...... Galax. available for use. The AHS is used to Greensville ...... Emporia. recent movers (i.e., 55 percent of all develop between Census revisions for Rockbridge ...... Buena Vista and Lex- recent mover rents are below this rent the largest metropolitan areas on a four- ington. level). year cycle. Those surveys used in the Southhampton ...... Franklin. FY2005 FMRs were conducted in 2002. Wise ...... Norton. Data Sources HUD has used the most accurate and Areas With FMRs Based on 2000 Census Fiftieth percentile FMRs were current data available to develop the Data originally assigned to 39 areas. Current FMR estimates. The sources of survey OMB definitions split four of these areas data used for the base-year estimates For areas where the base-year into metropolitan divisions: Chicago, are: estimates were developed from the 2000 Detroit, Philadelphia and Washington, (1) The 2000 Census, which provides Census, the 40th and, where DC. The core part of these areas remains statistically reliable rent data for all appropriate, 50th percentile gross rent qualified for 50th percentile FMRs, but FMR areas, of standard-quality units occupied by the parts put into separate metropolitan (2) Random Digit Dialing (RDD) recent movers was calculated separately divisions are no longer qualified. In telephone surveys of individual FMR for each number of bedrooms. The rent addition, the merger of Bergen-Passaic areas, which are based on a sampling distributions were modified to eliminate into the New York City Division means procedure that uses computers to select public housing units, so that only that those counties are no longer statistically random samples of rental market-rent units are considered. FMRs qualified to have 50th percentile FMRs. housing, and are calculated for all metropolitan areas Therefore, under the new metropolitan (3) American Housing Surveys (AHS) or divisions, and all nonmetropolitan area definitions, only 38 areas have 50th of the largest metropolitan areas and counties or micropolitan areas. percentile FMRs. have statistical accuracy comparable to The rents for three-bedrooms units the decennial Census. continue to reflect HUD’s policy to set V. Method Used To Develop FMRs The base-year FMRs are updated higher rents for three-bedroom and FMR Standard: FMRs are gross rent using trending factors based on larger units than would result from estimates that include both shelter rent Consumer Price Index (CPI) data for using normal market rents. This paid by the tenant to the landlord, and rents and utilities or on HUD regional adjustment was intended to increase the the cost of tenant-paid utilities, except rent-change factors developed from likelihood that the largest families, who telephones. HUD sets FMRs to assure regional RDD surveys. There are 76 have the most difficulty leasing units, that a sufficient supply of rental housing metropolitan areas that are covered by will be successful in finding eligible is available to program participants. To metropolitan CPI surveys. For all other program units. The adjustment added accomplish this objective, FMRs must areas, RDD regional rent-change factors 8.7 percent to the three-bedroom FMRs
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and corresponding increases for four- estimates. Three-quarters of the 2000 recent movers. Both one- and two- bedroom and larger units. CPI change factor was used to bring the bedroom units are used because there The FMR for unit sizes larger than FMR estimates forward from April to usually are consistent relationships four bedrooms were calculated by December of 2000, followed by the between one- and two-bedroom rents in adding 15 percent to the four-bedroom annual CPI data for 2001, 2002, and local housing markets, and use of data FMR for each extra bedroom. For 2003. An annual trending factor of three on one-bedroom rents can be used to example, the FMR for a five-bedroom percent, based on the average annual improve the accuracy of two-bedroom unit is 1.15 times the four-bedroom increase in the median gross rent as FMR estimates. One-bedroom survey FMR, and the FMR for a six-bedroom measured in the 1990 and 2000 Census, rents are converted into two-bedroom unit is 1.30 times the four-bedroom was used to update estimates from the equivalent rents using the average FMR. FMRs for single-room occupancy last date for which CPI data were Census differential between one- and units are 0.75 times the zero-bedroom available until the midpoint of the fiscal two-bedroom rents. (efficiency) FMR. year in which the estimates were used. RDD surveys exclude public housing A further adjustment was made for Trending to cover the period from units, newly built units and non-cash areas with local bedroom-size intervals January 1, 2004, to April 1, 2005, was rental units. They do not exclude above or below what are considered to needed. The 15-month trending factor substandard units because there is no be reasonable ranges. Experience has was 3.75 percent (3 percent times 15/ practical way to determine housing shown that highly unusual bedroom 12). quality from telephone interviews. Such ratios typically reflect inadequate For areas without local CPI surveys, surveys, however, also exclude units sample sizes or peculiar local the same process was used except that without a telephone, and past analysis circumstances that HUD would not regional RDD survey data were has shown that the slightly downward want to recognize in setting FMRs (e.g., substituted for CPI data. Regional RDD rent estimate bias caused by including luxury efficiency apartments in New surveys were done for 20 areas—the some substandard units is almost York City). Bedroom interval ranges metropolitan and nonmetropolitan part exactly offset by the slightly upward were established based on an analysis of of each of the 10 HUD regions. Areas bias that results from only surveying the range of such intervals for all covered by CPI metropolitan surveys units with telephones. This relationship metropolitan areas. The final ranges were excluded from the RDD held true across a variety of areas. used were: efficiency units must be metropolitan regional surveys. RDD surveys that meet HUD criteria between .66 and .84 of the two-bedroom The use of the 2000 Census rent data have a high degree of statistical FMR, one-bedroom units must be and the change in OMB area definitions accuracy. There is a 95 percent between .78 and .89 of the two-bedroom resulted in significant revisions for a likelihood that the 40th or 50th unit, three-bedroom units must be large number of FMR areas this year. percentile recent mover contract rent between 1.21 and 1.42 of the two- The availability of more detailed local estimates developed using this approach bedroom unit and four-bedroom units information on public housing, which is are within three to four percent of the must be between 1.23 and 1.66 of the excluded from FMR estimates, also actual 40th or 50th percentile. Virtually two-bedroom unit. Rents were then affected these estimates. Because of all of the estimates will be within five adjusted if they were non-sequential extensive metropolitan geographical percent of the actual 40th or 50th (e.g., efficiency rents were not allowed definitional changes, FMRs for many percentile value. to be higher than one-bedroom rents). old and new areas cannot be directly A number of RDD surveys were State minimum FMRs will no longer compared. Counties offer the best unit conducted after the 2000 Census. be used. Instead, for low-population of comparison, but don’t work well in Approximately one-half of these could nonmetropolitan counties with small New England. Approximately 22 not be used because of large changes in Census recent-mover rent samples, percent of all counties have proposed the OMB-defined geographic area. Of Census-defined county group data were FY2005 FMRs that are less than their the areas which did not change or used as the basis for determining rents final FY2004 FMRs, and 36 percent of changed very little under the new OMB for each bedroom size. (Census county counties had increases of more than 10 definitions, RDD survey results are used groups consist of an aggregation of percent over the FY2004 FMRs as a to replace FMR estimates counties with similar social and result of rebenchmarking. A rebenchmarked using the 2000 Census economic characteristics.) This disproportionate number of areas with only when the Census-based estimate is adjustment was made to protect against increases are small nonmetropolitan outside the 95 percent confidence unrealistically high or low FMRs due to counties. interval of the RDD survey estimate (i.e., insufficient sample sizes. The areas A number of RDDs will be conducted there is only a five percent likelihood covered by this new estimation method in the summer of 2004 for metropolitan that the Census-based estimate is have less than 33 two-bedroom Census areas with unusual changes to ensure correct). For areas where the RDD sample observations. that their FY2005 FMRs are accurate. survey results are determined to have a After base 2000 Census estimates Areas where completed surveys show statistically significant difference, RDD were established for each FMR area and that an increase over proposed FMR surveys are used to provide a bedroom size, they were updated from levels is warranted will be given higher rebenchmarked FMR instead of the the estimated Census date of April 1, FMRs in the final FMR publication. Census. These estimates are updated in 2000, to April 1, 2005, the midpoint of essentially the same manner as Census FY2005, the year in which these FMRs Areas With FMRs Based on Local RDD estimates. will be in effect. Update factors were Survey Data The proposed FMRs include RDD based either on the area-specific CPI HUD uses RDD telephone surveys to surveys completed in 2001 and 2002. survey data that were available for the obtain statistically reliable FMR Survey results for surveys conducted in largest metropolitan areas or on HUD estimates for selected areas. The RDD 2000 produced contract rent estimates regional RDD survey data. technique involves use of large, very similar to the Census estimates, so For areas with local CPI surveys, CPI randomly selected samples to obtain they are not used. The survey estimate annual data on rents and utilities were data on current rents paid for one- and confidence intervals are partly used to update the Census rent two-bedroom rental units occupied by dependent on the FMR standard
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selected. The RDD surveys used in place VI. Request for Comments address: http://www.huduser.org/ of Census data for Schedule B(1) were datasets/fmr.html. for the following areas: HUD seeks public comments on FMR Other survey methodologies are levels for specific areas. Comments on 2001 Surveys: Muncie, IN; New acceptable in providing data to support FMR levels must include sufficient comments, if the survey methodology Orleans, LA; Orlando, FL; Riverside, information (including local data and a CA; San Jose, CA; Payne County, OK; can provide statistically reliable, full description of the rental housing unbiased estimates of the gross rent. Jackson County, NC; McDowell County, survey methodology used) to justify any NC; and Polk County, NC. Survey samples should preferably be proposed changes. Changes may be randomly drawn from a complete list of 2002 Surveys: Baltimore, MD; proposed in all or any one or more of Jacksonville, FL; Pittsburgh, PA; rental units for the FMR area. If this is the unit-size categories on the schedule. not feasible, the selected sample must Norfolk, VA; St. Louis, MO; and Salinas, Recommendations and supporting data CA. be drawn to be statistically must reflect the rent levels that exist representative of the entire rental The RDD surveys used in place of within the entire FMR area. housing stock of the FMR area. Surveys Census-based estimates for Schedule For the supporting data, HUD must include units at all rent levels and B(2) were for the following areas: recommends the use of professionally be representative by structure type 2001 Surveys: Buffalo, NY; conducted RDD telephone surveys to (including single-family, duplex, and Minneapolis, MN; and San Jose, CA. test the accuracy of FMRs for areas other small rental properties), age of 2002 Surveys: Norfolk, VA and St. where there is a sufficient number of housing unit, and geographic location. Louis, MO. Section 8 units to justify the survey cost The decennial Census should be used as of approximately $20,000 to $30,000. Areas With FMRs Based on AHS Data a means of verifying if a sample is Areas with 500 or more program units representative of the FMR area’s rental HUD used AHS data to calculate rents usually meet this cost criterion, and housing stock. from the distributions of two-bedroom areas with fewer units may meet it if Most surveys cover only one- and units occupied by recent movers. Public actual rents for two-bedroom units are two-bedroom units, which has statistical housing units, newly constructed units, significantly different from the FMRs advantages. If the survey is statistically and units that fail a housing quality test proposed by HUD. In addition, HUD has acceptable, HUD will estimate FMRs for are excluded from the rental housing developed a version of the RDD survey other bedroom sizes using ratios based distributions before the FMRs are methodology for smaller, on the decennial Census. A PHA or calculated. nonmetropolitan PHAs. This contractor that cannot obtain the Thirteen areas were covered by AHS methodology is designed to be simple recommended number of sample surveys conducted in 2002. Two of enough to be done by the PHA itself, responses after reasonable efforts should these surveys could not be used because rather than by professional survey consult with HUD before abandoning its of differences in AHS and new OMB organizations, at a cost of $5,000 or less. survey; in such situations HUD is metropolitan area definitions. Another PHAs in nonmetropolitan areas may, prepared to relax normal sample size two surveys did not have enough recent in certain circumstances, conduct requirements. mover cases to provide reliable surveys of groups of counties. HUD HUD will consider increasing estimates. More current AHS results must approve all county-grouped manufactured home space FMRs where were used to replace FMR estimates surveys in advance. PHAs are cautioned public comment demonstrates that 40 based on Census or RDD survey data if that the resulting FMRs will not be percent of the two-bedroom FMR is not the Census- or RDD-based estimate was identical for the counties surveyed; each adequate. In order to be accepted as a outside the 95 percent confidence individual FMR area will have a basis for revising the manufactured interval of the AHS estimate. The AHS separate FMR based on the relationship home space FMRs, comments must results produced statistically different of rents in that area to the combined include a pad rental survey of the FMR estimates and were used to rents in the cluster of FMR areas. In mobile home parks in the area, identify rebenchmark FMRs for the following addition, PHAs are advised that the utilities included in each park’s areas in Schedule B(1): Dallas, TX; counties whose FMRs are based on the rental fee, and provide a copy of the Phoenix, AZ; Portland, OR; and Santa combined rents in the cluster of FMR applicable public housing authority’s Ana, CA. areas will not have their FMRs revised utility schedule. Dallas and Phoenix are 50th unless the grouped survey results show Accordingly, the Fair Market Rent percentile FMR areas and the AHS rent a revised FMR above the combined rent Schedules, which will not be codified in was also used to rebenchmark the FMR level. 24 CFR part 888, are proposed to be for these two areas at the 40th percentile PHAs that plan to use the RDD survey amended as shown in the Appendix to rent shown in Schedule B(2). technique should obtain a copy of the this notice: appropriate survey guide. Larger PHAs Dated: July 30, 2004. Manufactured Home Space Rents should request HUD’s survey guide Alphonso Jackson, Manufactured home space rents are entitled ‘‘Random Digit Dialing Surveys; Secretary. set at 40 percent of the two-bedroom A Guide to Assist Larger Public Housing rent. Exceptions to this rent are granted Agencies in Preparing Fair Market Rent Fair Market Rents for the Housing when justified by survey data. All Comments.’’ Smaller PHAs should Choice Voucher Program approved exceptions to these rents that obtain the guide entitled ‘‘Rental Schedules B and D—General were in effect in FY2004 were updated Housing Surveys; A Guide to Assist Explanatory Notes to 2005 using the relevant update factor. Smaller Public Housing Agencies in If the result of this computation was Preparing Fair Market Rent Comments.’’ 1. Geographic Coverage higher than 40 percent of the These guides are available from HUD a. Metropolitan Area FMRs—FMRs rebenchmarked two-bedroom rent, the USER on (800) 245–2691, or from HUD’s are market-wide rent estimates that are exception remains and is listed in Web site, in Microsoft Word or Adobe intended to provide housing Schedule D. Acrobat format, at the following opportunities throughout the geographic
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area in which rental-housing units are VIRGINIA NONMETROPOLITAN COUNTY example, the FMR for a five-bedroom in direct competition. FMR AREA AND INDEPENDENT CIT- unit is 1.15 times the four-bedroom b. Nonmetropolitan Area FMRs— IES INCLUDED WITH COUNTY FMR, and the FMR for a six-bedroom FMRs also are established for unit is 1.30 times the four-bedroom nonmetropolitan counties and for County Cities FMR. FMRs for single-room occupancy county equivalents in the United States, units are 0.75 times the zero-bedroom and for FMR areas in Puerto Rico, the Allegheny ...... Clifton Forge and FMR. Covington. Virgin Islands, and the Pacific Islands. Carroll ...... Galax. 3. Arrangement of FMR Areas and c. Virginia Independent Cities—FMRs Greensville ...... Emporia Identification of Constituent Parts for the areas in Virginia shown in the Rockbridge ...... Buena Vista and Lex- table below were established by ington. a. The FMR areas in Schedule B(1) are combining the Census data for the Southhampton ...... Franklin listed alphabetically by metropolitan nonmetropolitan counties with the data Wise ...... Norton FMR area and by nonmetropolitan for the independent cities that are county within each State. The exception located within the county borders. 2. Bedroom Size Adjustments rent FMRs for manufactured home Because of space limitations, the FMR Schedule B(1) shows the FMRs for spaces in Schedule D are listed listing in Schedule B(1) includes only zero-bedroom through four-bedroom alphabetically by State. the name of the nonmetropolitan units. The FMRs for unit sizes larger b. Two nonmetropolitan counties are county. The full definitions of these than four bedrooms are calculated by listed alphabetically on each line of the areas, including the independent cities, adding 15 percent to the four-bedroom nonmetropolitan county listings. are as follows: FMR for each extra bedroom. For BILLING CODE 4210–62–P
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[FR Doc. 04–17884 Filed 8–3–04; 11:10 am] BILLING CODE 4210–62–C
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Part V
Department of the Interior Fish and Wildlife Service
50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Establishment of an Additional Manatee Protection Area in Lee County, Florida; Proposed Rule and Final Rule
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DEPARTMENT OF THE INTERIOR Myers, Florida. See additional Rhode Island on the Atlantic Coast and information on the public comment as far west as Texas on the Gulf Coast. Fish and Wildlife Service process in the SUPPLEMENTARY Recent information indicates that the INFORMATION section. overall manatee population has grown 50 CFR Part 17 ADDRESSES: A formal public hearing since the species was listed (U.S. Fish RIN 1018–AT65 will be held at the Harborside and Wildlife Service 2001). However, in Convention Hall, 1375 Monroe Street, in order for us to determine that an Endangered and Threatened Wildlife Fort Myers, Florida. The draft endangered species has recovered to a and Plants; Establishment of an Environmental Assessment for this point that it warrants removal from the Additional Manatee Protection Area in action is available for review upon List of Endangered and Threatened Lee County, FL written request to the Field Supervisor, Wildlife and Plants, the species must South Florida Field Office, U.S. Fish have improved in status to the point at AGENCY: Fish and Wildlife Service, which listing is no longer appropriate Interior. and Wildlife Service, 1339 20th Street, Vero Beach, Florida 32960. under the criteria set out in section ACTION: Proposed rule; availability of 4(a)(1) of the ESA. supplemental information. If you wish to comment on the Human activities, and particularly proposed rule or draft environmental waterborne activities, can result in the SUMMARY: We, the Fish and Wildlife assessment, you may submit your take of manatees. Take, as defined by Service (Service), propose to establish comments by any one of several the ESA, means to harass, harm, pursue, an additional manatee protection area in methods: hunt, shoot, wound, kill, trap, capture, Lee County, Florida (Pine Island-Estero 1. You may submit written comments collect, or to attempt to engage in any Bay Manatee Refuge). We are proposing and information by mail to the Field such conduct. Harm means an act which this action under the Endangered Supervisor, South Florida Field Office, kills or injures wildlife (50 CFR 17.3). Species Act of 1973, as amended (ESA), U.S. Fish and Wildlife Service, Attn: Such an act may include significant and the Marine Mammal Protection Act Proposed Manatee Refuge, 1339 20th habitat modification or degradation that of 1972, as amended (MMPA), based on Street, Vero Beach, Florida 32960. kills or injures wildlife by significantly our determination that there is 2. You may hand-deliver written impairing essential behavioral patterns, substantial evidence showing such comments to our South Florida Field including breeding, feeding, or establishment is necessary to prevent Office, at the above address, or fax your sheltering. Harass includes intentional the taking of one or more manatees. In comments to (772) 562–4288. or negligent acts or omissions that create evaluating the need for the proposed 3. You may send comments by the likelihood of injury to wildlife by designation of an additional manatee electronic mail (e-mail) to annoying it to such an extent as to protection area, we considered the [email protected]. For directions on significantly disrupt normal behavioral biological needs of the manatee, the how to submit electronic comment files, patterns, which include, but are not level of take at these sites, and the see the ‘‘Public Comments Solicited’’ limited to, breeding, feeding, or likelihood of additional take of section. sheltering (50 CFR 17.3). manatees due to human activity at these The MMPA sets a general FOR FURTHER INFORMATION CONTACT: Jay sites. These factors were the basis for moratorium, with certain exceptions, on Slack or Kalani Cairns (see ADDRESSES designating this area as a manatee refuge the take and importation of marine by an emergency rule authorized under section), telephone (772) 562–3909; or visit our Web site at http:// mammals and marine mammal products the ESA and MMPA on April 7, 2004. and makes it unlawful for any person to verobeach.fws.gov. The emergency designation is take, possess, transport, purchase, sell, temporary, lasting only 120 days, and SUPPLEMENTARY INFORMATION: export, or offer to purchase, sell, or will expire on August 5, 2004. We Background export, any marine mammal or marine announced in the emergency rule that mammal product unless authorized. we would begin proceedings to establish The West Indian manatee (Trichecus Take, as defined by section 3(13) of the these areas as a manatee refuge through manatus) is Federally listed as an MMPA, means to harass, hunt, capture, rulemaking; this proposed rule is part of endangered species under the ESA (16 or kill, or attempt to harass, hunt, that process. In a federally designated U.S.C. 1531 et seq.) (32 FR 4001), and capture, or kill any marine mammal. manatee refuge, watercraft are required is further protected under the MMPA Harassment is defined under section to proceed at either ‘‘slow speed’’ or at (16 U.S.C. 1361–1407). Manatees reside 3(18) of the MMPA as any act of pursuit, not more than 25 miles per hour, on an in freshwater, brackish, and marine torment, or annoyance which—(i) has annual or seasonal basis, as marked. habitats in coastal and inland the potential to injure a marine mammal While adjacent property owners must waterways of the southeastern United or marine mammal stock in the wild; or comply with the speed restrictions, a States. The majority of the population (ii) has the potential to disturb a marine designation does not preclude ingress can be found in waters of the State of mammal or marine mammal stock in the and egress to private property. We also Florida throughout the year, and nearly wild by causing disruption of behavioral announce the availability of a draft all manatees winter in peninsular patterns, including, but not limited to, environmental assessment for this Florida during the winter months. The migration, breathing, nursing, breeding, action. A separate final rule concerning manatee is a cold-intolerant species and feeding, or sheltering. manatee protection in Lee County, FL, requires warm water temperatures Human use of the waters of the is published elsewhere in this issue of generally above 20 °Celsius southeastern United States has the Federal Register. (68 °Fahrenheit) to survive during increased as a function of residential DATES: We will consider comments on periods of cold weather. During the growth and increased visitation. This both the proposed rule and the draft winter months, most manatees rely on increased use is particularly evident in environmental assessment that are warm water from natural springs and the State of Florida. The population of received by October 5, 2004. We will industrial discharges for warmth. In Florida has grown by 124 percent since hold a public hearing on September 8, warmer months, they expand their range 1970 (6.8 million to 15.2 million, U.S. 2004, from 6:30 p.m. to 9:30 p.m. in Fort and occasionally are seen as far north as Census Bureau) and is expected to
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exceed 18 million by 2010, and 20 lasting only 120 days, and will expire it must consider the rights of voters, million by the year 2020. According to on August 5, 2004. We announced in fishermen and water-skiers and the a report by the Florida Office of the emergency rule that, within 10 days restrictions adopted by the FFWCC must Economic and Demographic Research after establishing the emergency not unduly interfere with those rights. (2000), it is expected that, by the year protection area, in accordance with this In this instance the court found that the 2010, 13.7 million people will reside in section, the Service would begin Rule for four of the regulated areas did the 35 coastal counties of Florida. In a proceedings to establish the area in not meet the State standard for the parallel fashion to residential growth, accordance with 50 CFR 17.103. frequency of sightings and the rule visitation to Florida has also increased. As defined in 50 CFR 17.102, we may unduly interfered with the rights of It is expected that Florida will have 83 establish two types of manatee voters. Thus, the designated manatee million visitors annually by the year protection areas: manatee refuges and protection zones were invalidated and 2020, up from 48.7 million visitors in manatee sanctuaries. A manatee refuge the citations were dismissed. The 1998. In concert with this increase of is an area in which we have determined absence of zones and enforcement in human population growth and visitation that certain waterborne activities would these areas increases the potential for is the increase in the number of result in the taking of one or more manatees to suffer injury and death from watercraft that travel Florida waters. In manatees, or that certain waterborne watercraft collisions. The Court’s ruling 2003, 743,243 vessels were registered in activities must be restricted to prevent does not affect Federal speed zones in the State of Florida. This represents an the taking of one or more manatees, Lee County. The Service established increase of 26 percent since 1993. These including but not limited to, a taking by Shell Island as a manatee refuge in numbers differ from those in our harassment. A manatee sanctuary is an November 2002 (67 FR 68450) and the recently published manatee rules area in which we have determined that Caloosahatchee River–San Carlos Bay as because new data have since become any waterborne activity would result in a manatee refuge in August 2003 (68 FR available from the State of Florida. The the taking of one or more manatees, 46870). apparent decline in number of vessels including but not limited to, a taking by The legal basis for the action to be registered between 2001 and 2003 is due harassment. A waterborne activity is taken by the Service differs markedly to a change in the way registrations are defined as including, but not limited to, from that in the FFWCC v. Wilkinson counted. The earlier (2001) numbers swimming, diving (including skin and case. The Service’s action is not based included all registrations occurring scuba diving), snorkeling, water skiing, on state law but rather is based upon a during the year and therefore double- surfing, fishing, the use of water federal regulation, 50 CFR 17.103 which counted vessels that were sold and re- vehicles, and dredge and fill activities. provides the standard for designation of a manatee protected area. Specifically, registered during the same year. Reasons for Proposing a Manatee The increase in and projected growth this regulation provides that the Refuge of human use of manatee habitat has Director may establish a manatee had direct and indirect impacts on this In deciding to propose this rule, we protection area ‘‘* * * whenever there endangered species. Direct impacts reviewed a recent State court ruling is substantial evidence showing such include injuries and deaths from overturning State-designated manatee establishment is necessary to prevent watercraft collisions, deaths and injuries speed zones in Lee County (State of the taking of one or more manatees. from water control structure operations, Florida Fish and Wildlife Conservation Manatees are especially vulnerable to lethal and sublethal entanglements with Commission v. William D. Wilkinson, fast-moving power boats. The slower a commercial and recreational fishing Robert W. Watson, David K. Taylor, boat is traveling, the more time a gear, and alterations of behavior due to James L. Frock [2 cases], Jason L. manatee has to avoid the vessel and the harassment. Indirect impacts include Fluharty, Kenneth L. Kretsh, Harold more time the boat operator has to habitat destruction and alteration, Stevens, Richard L. Eyler, and John D. detect and avoid the manatee. Nowacek including decreases in water quality Mills, County Court of the 20th Judicial et al. (2000) documented manatee throughout some aquatic habitats, Circuit) as well as the best available avoidance of approaching boats. Wells decreases in the quantity of warm water information to evaluate manatee and et al. (1999) confirmed that, at a in natural spring areas, the spread of human interactions in the former State- response distance of 20 meters, a marine debris, and general disturbance speed zones affected by the ruling. manatee’s time to respond to an from human activities. In the State of Florida Fish and oncoming vessel increased by at least 5 Federal authority to establish Wildlife Conservation Commission seconds if the vessel was traveling at protection areas for the Florida manatee (FFWCC) v. Wilkinson, et al., boaters, slow speed. Therefore, the potential for is provided by the ESA and the MMPA who were issued citations for alleging take of manatees can be greatly reduced and is codified in 50 CFR, part 17, different violations of Rule 68C–22.005 if boats are required to travel at slow subpart J. We have discretion, by (Rule), challenged the Rule adopted by speed in areas where manatees can be regulation, to establish manatee the FFWCC regulating the operation and expected to occur. protection areas whenever there is speed of motorboat traffic in Lee County The waterbodies encompassed in this substantial evidence showing such waters to protect manatees. In its ruling proposed designation receive extensive establishment is necessary to prevent the court determined that under Florida manatee use either on a seasonal or the taking of one or more manatees. In law the FFWCC can regulate the year-round basis as documented in accordance with 50 CFR 17.106, operation and speed of motorboats in radio telemetry and aerial survey data manatee protection areas may be order to protect manatees from harmful (FWC 2003). The areas contain feeding established on an emergency basis when collisions with motorboats, however: (1) habitats and serve as travel corridors for such takings are imminent. Such was In the area to be regulated, manatee manatees (FWC 2003). Although the case for the emergency designation sightings must be frequently frequent residents are likely accustomed to the of these areas within Lee County as a and, based upon available scientific presence of speed zones in the area, manatee refuge. The emergency rule was information, it has been determined that which existed as State regulations since published in the Federal Register on manatees inhabit these areas on a 1999, some of those regulations are no April 7, 2004 (69 FR 18279). The regular, periodic or continuous basis; longer in effect. Therefore, without this emergency designation is temporary, and (2) when the FFWCC adopts rules proposed Federal designation,
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watercraft can be expected to travel at ‘‘Slow speed’’ means the speed at shallow water embayments within the high speeds in areas frequented by which a watercraft proceeds when it is proposed area, should or should not be manatees, which would result in the fully off plane and completely settled in designated as manatee refuges, take of one or more manatees. Also, the water. Due to the different speeds at including data in support of these while the State court invalidated State- which watercraft of different sizes and reasons; designated speed limits in the areas configurations may travel while in 2. Current or planned activities in the adjacent to navigation channels, it did compliance with this definition, no subject areas and their possible effects not invalidate the 25-mile-per-hour specific speed is assigned to slow speed. on manatees; speed limit in the navigation channels A watercraft is not proceeding at slow 3. Any foreseeable economic or other that traverse the affected area. speed if it is: (1) On a plane, (2) in the impacts resulting from the proposed Therefore, the speed limit in the process of coming up on or coming off designations; navigation channel is now lower than of plane, or (3) creating an excessive 4. Potential adverse effects to the that of the surrounding, shallower areas. wake. A watercraft is proceeding at slow manatee associated with designating As a result, shallow-draft high-speed speed if it is fully off plane and manatee protection areas for the species; boats capable of traveling outside the completely settled in the water, not and navigation channels can be expected to creating an excessive wake. 5. Any actions that could be be operated at high speeds (greater than ‘‘Wake’’ means all changes in the considered in lieu of, or in conjunction 25 miles per hour) in the areas more vertical height of the water’s surface with, the proposed designations that likely to be frequented by manatees. In caused by the passage of a watercraft, would provide comparable or improved manatee protection. the areas encompassed by this proposed including a vessel’s bow wave, stern We request that you identify whether designation that receive more seasonal wave, and propeller wash, or a use by manatees, the slow speed you are commenting on the proposed combination of these. rule or draft environmental assessment. requirements would begin on April 1. ‘‘Water vehicle, watercraft,’’ and There is a history of manatee Comments and materials received, as ‘‘vessel’’ include, but are not limited to, well as supporting documentation used mortalities in the area as a result of boats (whether powered by engine, collisions with watercraft. At least 14 in the preparation of this proposed rule, wind, or other means), ships (whether will be available for public inspection, carcasses of manatees killed in powered by engine, wind, or other collisions with watercraft have been by appointment, during normal business means), barges, surfboards, personal hours from 8 a.m. to 4:30 p.m., at the recovered in or immediately adjacent to watercraft, water skis, or any other the designated areas since 1999 (FWC above address. You may obtain copies of device or mechanism the primary or an the draft environmental assessment 2003), and two more carcasses have incidental purpose of which is been recovered recently from sites that from the above address or by calling locomotion on, or across, or underneath (772) 562–3909 or from our Web site at were former State speed zones the surface of the water. eliminated by the Court’s ruling. http://verobeach.fws.gov. Necropsies revealed that these animals Area Proposed for Designation as a Comments submitted electronically died of wounds from a boat collision. Manatee Refuge should be embedded in the body of the Manatees make extensive use of these e-mail message itself or attached as a Pine Island–Estero Bay Manatee Refuge areas; there is a history of take at these text-file (ASCII) and should not use sites; future take will occur without the The Pine Island–Estero Bay Manatee special characters and encryption. protection measures; protection Refuge encompasses waterbodies in Lee Please also include ‘‘Attn: RIN 1018– measures will be insufficient upon County including portions of Matlacha AT65,’’ your full name, and return expiration of the emergency Pass and San Carlos Bay south of Green address in your e-mail message. designation; and we do not anticipate Channel Marker 77 and north of the Comments submitted to any alternative protection measures Intracoastal Waterway, portions of Pine [email protected] will receive an being enacted by State or local Island Sound in the vicinity of York and automated response confirming receipt government in sufficient time to reduce Chino Islands, portions of Punta Rassa of your message. If you do not receive the likelihood of take occurring. For Cove and Shell Creek in San Carlos Bay a confirmation from the system that we these reasons, we believe that and the mouth of the Caloosahatchee have received your e-mail message, substantial evidence shows that River, and portions of Estero Bay and contact us directly by calling our South establishment of a manatee refuge is associated waterbodies. These Florida Field Office (see ADDRESSES necessary to prevent the take of one or waterbodies are designated, as posted, section). more manatees in these areas. The as either slow speed or with a speed Our practice is to make all comments, proposed refuge covers the exact same limit of 25 miles per hour, on either a including names and home addresses of areas as those set forth in the April 7, seasonal or annual basis. Legal respondents, available for public review 2004, emergency rule (69 FR 18279). descriptions and maps are provided in during regular business hours. the ‘‘Regulation Promulgation’’ section Individual respondents may request that Definitions of this notice. we withhold their home address from The following terms are defined in 50 the rulemaking record, which we will CFR 17.102. We present them here to Public Comments Solicited honor to the extent allowable by law. In aid in understanding this proposed rule. We solicit comments or suggestions some circumstances, we would ‘‘Planing’’ means riding on or near the from the public, other concerned withhold also from the rulemaking water’s surface as a result of the governmental agencies, the scientific record a respondent’s identity, as hydrodynamic forces on a watercraft’s community, industry, or any other allowable by law. If you wish for us to hull, sponsons (projections from the interested party concerning this withhold your name and/or address, side of a ship), foils, or other surfaces. proposed rule. We particularly seek you must state this prominently at the A watercraft is considered on plane comments concerning: beginning of your comments. However, when it is being operated at or above the 1. The reasons why this area, we will not consider anonymous speed necessary to keep the vessel particularly the waters known as Long comments. We will make all planing. Cut and Short Cut as well as any submissions from organizations or
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businesses, and from individuals this county. For the proposed manatee zone requirements in certain counties. identifying themselves as refuge, the areas are year-round or Speed zone exemptions were issued to representatives or officials of seasonal slow speed, or year-round or 27 permit holders (one permit holder organizations or businesses, available seasonal speed limits of 25 miles per did not renew during the last cycle) in for public inspection in their entirety. hour. Affected waterborne activities the former State zones that comprise the We will consider all comments and include, but are not limited to, proposed manatee refuge area. information received during the 60-day transiting, cruising, water skiing, In order to gauge the economic effect comment period on this proposed rule fishing, marine construction, and the of this proposed rule, both benefits and prior to a determination and will refine use of all water vehicles. This proposed costs must be considered. Potential this proposal, if and when appropriate. rule will impact recreational boaters, economic benefits related to this Accordingly, the final decision may commercial charter boats, and proposed rule include increased differ from this proposal. commercial fishermen, primarily in the manatee protection and tourism related form of restrictions on boat speeds in to manatee viewing, increased fisheries Clarity of the Rule specific areas. We will experience health, and decreased seawall Executive Order 12866 requires each increased administrative costs due to maintenance costs. Potential economic agency to write regulations/notices that this proposed rule. Conversely, the costs are related to increased are easy to understand. We invite your proposed rule may also produce administrative activities related to comments on how to make this economic benefits for some parties as a implementing the proposed rule and proposed rule easier to understand, result of increased manatee protection affected waterborne activities. Economic including answers to questions such as and decreased boat speeds in the costs are measured primarily by the the following: (1) Are the requirements manatee refuge areas. number of recreationists who use in the proposed rule clearly stated? (2) Regulatory impact analysis requires alternative sites for their activity or have Does the proposed rule contain the comparison of expected costs and a reduced quality of the waterborne unnecessary technical language or benefits of the proposed rule against a activity experience at the designated jargon that interferes with the clarity? ‘‘baseline,’’ which typically reflects the sites. In addition, the proposed rule may (3) Does the format of the proposed rule regulatory requirements in existence have some impact on commercial (grouping and order of sections, use of prior to the rulemaking. For purposes of fishing because of the need to maintain headings, paragraphing, etc.) aid or this analysis, the baseline assumes that slower speeds in some areas. The reduce its clarity? (4) Is the description the Pine Island–Estero Bay area has no extension of slower speed zones in this of the proposed rule in the regulating speed limits other than the 25 proposed rule is not expected to affect SUPPLEMENTARY INFORMATION section of miles per hour in the navigation enough waterborne activity to create a the preamble helpful in understanding channels. The State-designated speed significant economic impact (i.e., an the proposed rule? (5) What else could zones, other than in the navigation annual impact of over $100 million). channels, have been voided by a State we do to make the proposed rule easier Economic Benefits to understand? Court decision. However, residents and Send a copy of any comments that other water users have lived with speed We believe that the proposed concern how we could make this restrictions in this area since 1999 and designation of the Pine Island–Estero Bay Manatee Refuge in this proposed proposed rule easier to understand to: have established business and rule will increase the level of manatee Office of Regulatory Affairs, Department recreational patterns on the water to protection in these areas. A potential of the Interior, Room 7229, 1849 C accommodate their needs and desires economic benefit is increased tourism Street, NW., Washington, DC 20240. for water-based recreation. Even though the baseline is set at no speed zones, the resulting from an increase in manatee Required Determinations actual economic effects may very well protection. To the extent that some portion of Florida’s tourism is due to the Regulatory Planning and Review be insignificant because almost all users have been previously subject to these existence of the manatee in Florida In accordance with the criteria in restrictions. Thus, the proposed rule is waters, the protection provided by this Executive Order 12866, the Office of expected to have only an incremental proposed rule may result in an Management and Budget (OMB) has effect. As discussed below, the net economic benefit to the tourism determined that this proposed rule is a economic impact is not expected to be industry. We are not able to make an significant regulatory action, as it may significant, but cannot be monetized estimate of this benefit given available raise novel legal or policy issues. OMB given available information. information. has reviewed this rule. The economic impacts of this In addition, due to reductions in boat a. Based on experience with similar proposed rule would be due to the wake associated with speed zones, rulemakings in this area, this proposed changes in speed zone restrictions in the property owners may experience some rule will not have an annual economic manatee refuge area. These speed zone economic benefits related to decreased impact of over $100 million or adversely changes are summarized in the expenditures for maintenance and affect an economic sector, productivity, proposed rule. repair of shoreline stabilization jobs, the environment, or other units of In addition to speed zone changes, the structures (i.e., seawalls along the government. It is not expected that any proposed rule no longer allows for the water’s edge). Speed reductions may significant economic impacts would speed zone exemption process in place also result in increased boater safety. result from the establishment of a under State regulations. Florida’s Another potential benefit of slower manatee refuge (approximately 30 miles Manatee Sanctuary Act allows the State speeds is that fisheries in these areas of waterways) in Lee County in the State to provide exemptions from speed zone may be more productive because of less of Florida. requirements for certain commercial disturbance. These types of benefits The purpose of this proposed rule is activities, including fishing and events cannot be quantified with available to establish a manatee refuge in Lee such as high-speed boat races. Under information. County, Florida. We are proposing to State law, commercial fishermen and Based on previous studies, we believe prevent the take of manatees by professional fishing guides can apply for that this proposed rule produces some controlling certain human activity in permits granting exemption from speed economic benefits. However, given the
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lack of information available for to a significant economic impact. Until exemptions are commercial fishermen. estimating these benefits, the magnitude recently, speed zones were in place in According to one commercial mullet of these benefits is unknown. this area, and recreationists have fisherman with a State permit, the adjusted their activities to accommodate exemption is worthless to him. The Economic Costs them. State’s permit exempts him from the The economic impact of the speed zones restrictions in Matlacha Affected Commercial Charter Boat designation of a manatee refuge results Pass; however, the schools of mullet Activities from the fact that, in certain areas, boats which he targets are primarily in the are required to go slower than under Various types of charter boats use the Caloosahatchee River, an area where he current conditions. Some impacts may waterways in the affected counties, cannot get an exemption because of the be felt by recreationists who have to use primarily for fishing and nature tours. Caloosahatchee River Manatee Refuge alternative sites for their activity or who The number of charter boats using the established in 2003. Nevertheless, have a reduced quality of the Pine Island–Estero Bay area is currently because a manatee refuge designation waterborne activity experience unknown. For nature tours, the will not prohibit any commercial fishing throughout the designated site because extension of slow speed zones is activity and because there is a channel of the proposed rule. For example, the unlikely to cause a significant impact, available for boats to travel up to 25 extra time required for anglers to reach because these boats are likely traveling miles per hour in the affected areas, the fishing grounds could reduce onsite at slow speeds. The extra time required Service believes that it is unlikely that fishing time and could result in lower for commercial charter boats to reach the proposed rule will result in a consumer surplus for the trip. Other fishing grounds could reduce onsite significant economic impact on the impacts of the proposed rule may be felt fishing time and could result in fewer commercial fishing industry. It is by commercial charter boat outfits, trips. The fishing activity is likely important to note that, in 2001, the total commercial fishermen, and agencies occurring at a slow speed and will not annual value of potentially affected that perform administrative activities be affected. Added travel time may fisheries was approximately $8.3 related to implementing the proposed affect the length of a trip, which could million (2001$); this figure represents rule. We hope to gather more result in fewer trips overall, creating an the economic impact on commercial information on the economic costs economic impact. According to one fisheries in these counties in the during the public comment period. professional guide with a State speed unlikely event that the fisheries would zone exemption permit, the exemption Affected Recreational Activities be entirely shut down, which is not the is important to him financially. The situation associated with this proposed For some boating recreationists, the exemption allows him to take clients to rule. inconvenience and extra time required areas where they spend more time to cross additional slow speed areas fishing instead of traveling to fish, an Agency Administrative Costs may reduce the quality of the important requirement for paying The cost of implementing the waterborne activity, or cause them to customers. Without the exemption, he proposed rule has been estimated based forgo the activity. This will manifest in doesn’t take clients on a half-day charter on historical expenditures by the a loss of consumer surplus to these to fish an area with an idle or slow Service for manatee refuges and recreationists. In addition, to the extent speed zone at the risk of losing the sanctuaries established previously. The that recreationists forgo recreational charter. As his primary source of Service expects to spend approximately activities, this could result in some income, the loss of a charter has a $600,000 (2002$) for posting and regional economic impact. In this significant affect on his ability to make signing 15 previously designated section, we examine the waterborne a living. Instead, he will travel to areas manatee protection areas (an average of activities taking place in each area and where there are no speed zones in order $40,000 per area). This represents the the extent to which they may be affected for his clients to fish. amount that the Service will pay by designation of the proposed manatee contractors for creation and installation refuge. The resulting potential economic Affected Commercial Fishing Activities of manatee refuge signs. While the impacts are discussed below. These Several commercial fisheries will number and location of signs needed to impacts cannot be quantified because experience some impact due to the post the Pine Island–Estero Bay manatee the number of recreationists and anglers regulation. To the extent that the refuge is not known, the cost of using the designated sites is not known. regulation establishes additional speed manufacturing and posting signs to Recreationists engaging in cruising, zones in commercial fishing areas, this delineate the manatee refuge in this fishing, and waterskiing may experience will increase the time spent on the proposed rule is not expected to exceed some inconvenience by having to go fishing activity, affecting the efficiency the amount being spent to post slower or use undesignated areas; of commercial fishing. While limited previously designated manatee however, the extension of slow speed data are available to address the size of protection areas (Service 2003a). zones is not likely to result in a the commercial fishing industry in the Furthermore, there are unknown significant economic impact. manatee refuges, county-level data additional costs associated with the Currently, not enough data are generally provide an upper bound semi-annual requirement for seasonal available to estimate the loss in estimate of the size of the industry and conversion (flipping) of regulatory signs consumer surplus that water skiers will potential economic impact. as well as routine maintenance of these experience. While some may use Given available data, the impact on posts and signs. In addition, the Service substitute sites, others may forgo the the commercial fishing industry of anticipates that it will spend additional activity. The economic impact extending slow speed zones in the Pine funds for enforcement of a newly associated with these changes on Island–Estero Bay area cannot be designated manatee refuge if a final rule demand for goods and services is not quantified. The designation will likely is published. These costs, including the known. However, given the number of affect commercial fishermen by way of cost of fuel, cannot be accurately recreationists potentially affected, and added travel time, which can result in estimated at this time. The costs of the fact that alternative sites are an economic impact. Some of the 27 enforcement may also include hiring available, it is not expected to amount active permit holders with speed limit and training new manatee enforcement
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officers and special agents as well as the designations have been eliminated, to businesses is not known, however a 25 associated training, equipment, upkeep, prevent the taking of one or more percent loss of business income is and clerical support (Service 2003b). manatees in that area. significant regardless of the level of Finally, there are some costs for c. This proposed rule will not business income. We acknowledge that education and outreach to inform the materially affect entitlements, grants, there could be a significant loss of public about this new manatee refuge user fees, loan programs, or the rights income to those permit holders who rely area. and obligations of their recipients. on speed to carry out their business While the State of Florida has 12,000 Minimal restriction to existing human activities; however, the Service believes miles of rivers and 3 million acres of uses of the sites would result from this that the 27 permit holders do not lakes, this proposed rule will affect proposed rule. No entitlements, grants, constitute a substantial number. approximately 30 waterway miles. The user fees, loan programs or effects on This proposed rule will add to travel speed restrictions in this proposed rule the rights and obligations of their time for recreational boating and will cause inconvenience due to added recipients are expected to occur. commercial activities resulting from travel time for recreationists and d. OMB has determined that this rule extension of existing speed zones. commercial charter boats and may raise novel legal or policy issues. Because the only restrictions on fishermen. As a result, the proposed Therefore, OMB has reviewed this recreational activity result from added rule will impact the quality of proposed rule pursuant to E.O. 12866. travel time, and alternative sites are waterborne activity experiences for Regulatory Flexibility Act available for all waterborne activities, some recreationists and may lead some we believe that the economic effect on recreationists to forgo the activity. This We certify that this proposed rule will small entities resulting from changes in proposed rule does not prohibit not have a significant economic effect recreational use patterns will not be recreationists from participating in any on a substantial number of small entities significant. The economic effects on activities. Alternative sites are available as defined under the Regulatory most small businesses resulting from for all waterborne activities that may be Flexibility Act (5 U.S.C. 601 et seq.). An this proposed rule are likely to be affected by this proposed rule. The initial/final Regulatory Flexibility indirect effects related to reduced distance that recreationists may have to Analysis is not required. Accordingly, a demand for goods and services if travel to reach an undesignated area Small Entity Compliance Guide is not recreationists choose to reduce their varies. The regulation will likely impact required. level of participation in waterborne some portion of the charter boat and In order to determine whether the activities. Similarly, because the only commercial fishing industries in these proposed rule will have a significant restrictions on commercial activity areas as well. The inconvenience of economic effect on a substantial number result from the inconvenience of added having to go somewhat slower in some of small entities, we utilize available travel time, and boats can continue to areas may result in changes to information on the industries most travel up to 25 mph in the navigation commercial and recreational behavior, likely to be affected by the designation channels, we believe that any economic resulting in some regional economic of the manatee refuge. Currently, no effect on small commercial fishing or impacts. Given available information, information is available on the specific charter boat entities (other than the 27 the net economic impact of designating number of small entities that are permit holders) will not be significant. the manatee refuge is not expected to be potentially affected. However, 27 active Also, the indirect economic impact on significant (i.e., an annual economic permit holders (one applicant did not small businesses that may result from impact of over $100 million). While the renew his/her exemption during the last reduced demand for goods and services level of economic benefits that may be cycle) were exempt from the State speed from commercial entities is likely to be attributable to the manatee refuge is limits in the proposed refuge area. insignificant. unknown, these benefits would cause a Because these zones have been in place The employment characteristics of reduction in the economic impact of the since 1999, people have adjusted to Lee County are shown in Table 1 for the proposed rule. them, and there were no other permit year 1997. We included the following b. This rule will not create holders, it is reasonable to expect that SIC (Standard Industrial Classification) inconsistencies with other agencies’ the proposed rule will impact only the categories, because they include actions. The precedent to establish 27 permit holders in the former State businesses most likely to be directly manatee protection areas has been speed zones. They are primarily affected by the designation of a manatee established primarily by State and local commercial fishing boats and fishing refuge: governments in Florida. We recognize guides. Both would be considered small the important role of State and local businesses. The 27 permit holders had Fishing, hunting, trapping (SIC 09) partners and continue to support and State exemptions from the speed Water transportation (SIC 44) encourage State and local measures to restrictions based on an application that Miscellaneous retail (SIC 59) improve manatee protection. We are stated they would suffer at least a 25 Amusement and recreation services (SIC designating the Pine Island–Estero Bay percent income loss without the permit. 79) area, where previously existing State The usual income level for these Non-classifiable establishments (NCE)
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TABLE 1.—EMPLOYMENT CHARACTERISTICS OF LEE COUNTY IN FLORIDA—1997 (INCLUDES SIC CODES 09, 44, 59, 79, AND NCEA
Select SIC codes (Includes SIC codes 09, 44, 59, 79, and NCEa Total mid- Mid-March Total es- Number of Number of Number of Number of March em- employ- tablish- County ployment mentb (se- Total es- establish- establish- establish- establish- ments (all tablish- ments (1–4 ments (5–9 ments (10– ments (all indus- lect SIC industries) tries) (codes) ments employ- employ- 19) em- (20+ em- ees) ees) ployees) ployees)
Lee ...... 135,300 7,734 11,386 974 602 193 92 87 a Descriptions of the SIC codes included in this table as follows: SIC 09—Fishing, hunting, and trapping; SIC 44—Water transportation; SIC 59—Miscellaneous retail service division; SIC 79—Amusement and recreation services; and NCE—Non-classifiable establishments division. b Table provides the high-end estimate whenever the Census provides a range of mid-March employment figures for select counties and SIC codes. Source: U.S. Census County Business Patterns (http://www.census.gov/epcd/cbp/view/cbpview.html).
As shown in Table 1, the vast majority Small Business Regulatory Enforcement there are unforeseen changes in costs or (over 80 percent) of these business Fairness Act prices for consumers stemming from establishments in Lee County have This proposed rule is not a major rule this proposed rule. The recreational fewer than ten employees, with the under 5 U.S.C. 804(2). This proposed charter boat and commercial fishing largest number of establishments rule: industries may be affected by lower employing fewer than four employees. a. Does not have an annual effect on speed limits for some areas when Any economic impacts associated with the economy of $100 million or more. traveling to and from fishing grounds. this proposed rule will affect some As shown above, this proposed rule may However, because of the availability of proportion of these small entities. cause some inconvenience in the form 25-miles-per-hour navigational channels, this impact is likely to be Since the proposed designation is for of added travel time for recreationists limited. Further, only 27 active permit a manatee refuge, which only requires a and commercial fishing and charter boat holders were exempt from the former reduction in speed, we do not believe businesses because of speed restrictions State speed zones. The impact will most the designation would cause significant in manatee refuge areas, but this should not translate into any significant likely stem from only these permit economic effect on a substantial number holders. of small businesses. Currently available business reductions for the many small information does not allow us to businesses in the affected county. An c. Does not have significant adverse quantify the number of small business unknown portion of the establishments effects on competition, employment, entities such as charter boats or shown in Table 1 could be affected by investment, productivity, innovation, or commercial fishing entities that may this proposed rule. Because the only the ability of U.S.-based enterprises to incur direct economic impacts due to restrictions on recreational activity compete with foreign-based enterprises. result from added travel time, and the inconvenience of added travel times As stated above, this proposed rule may alternative sites are available for all resulting from the proposed rule, but generate some level of inconvenience to waterborne activities, we believe that certainly the 27 current permit holders recreationists and commercial users due the economic impact on small entities have potential for inclusion in this to added travel time, but the resulting resulting from changes in recreational economic impacts are believed to be category for this proposed rule. The use patterns will not be significant. The minor and will not interfere with the Service does not believe the 27 permit economic impacts on small business normal operation of businesses in the holders constitute a substantial number. resulting from this proposed rule are affected counties. Added travel time to Public comments on this proposed rule likely to be indirect effects related to traverse some areas is not expected to be will be used for further refinement of reduced demand for goods and services a major factor that will impact business the impact on small entities and the if recreationists choose to reduce their activity. general public, should the final rule level of participation in waterborne establish this area as a permanent activities. Similarly, because the only Unfunded Mandates Reform Act manatee refuge. In addition, the restrictions on commercial activity In accordance with the Unfunded inconvenience of slow speed zones may result from the inconvenience of added cause some recreationists to change Mandates Reform Act (2 U.S.C. 1501 et travel time, and boats can continue to seq.): their behavior, which may cause some travel up to 25 miles per hour in the loss of income to some small businesses. navigational channels, we believe that a. This proposed rule will not The number of recreationists who will any economic impact on most small ‘‘significantly or uniquely’’ affect small change their behavior, and how their commercial fishing or charter boat governments. A Small Government behavior will change, is unknown; entities will not be significant. Also, the Agency Plan is not required. The therefore, the impact on potentially indirect economic impact on small designation of manatee refuges and affected small business entities cannot businesses that may result from reduced sanctuaries will not impose obligations be quantified. However, because boaters demand for goods and services from that have not previously existed on will experience only minimal added commercial entities is likely to be State or local governments. travel time in most affected areas and insignificant. b. This proposed rule will not the fact that speed zones were in place b. Will not cause a major increase in produce a Federal mandate of $100 until recently, we believe that this costs or prices for consumers, million or greater in any year. As such, designation will not cause a significant individual industries, Federal, State, or it is not a ‘‘significant regulatory action’’ economic impact on a substantial local government agencies, or under the Unfunded Mandates Reform number of small entities. geographic regions. It is unlikely that Act.
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Takings Government-to-Government basis. We (c) * * * In accordance with Executive Order have evaluated possible effects on (13) The Pine Island–Estero Bay 12630, this proposed rule does not have federally recognized Indian tribes and Manatee Refuge. (i) Watercraft are significant takings implications. A have determined that there are no required to proceed at slow speed all takings implication assessment is not effects. year in all waters of Matlacha Pass, south of a line that bears 90° and 270° required. The manatee protection areas Energy Supply, Distribution or Use are located over publicly-owned from Matlacha Pass Green Channel On May 18, 2001, the President issued submerged water bottoms. Marker 77 (approximate latitude Executive Order 13211 on regulations 26°40′00″ North, approximate longitude Federalism that significantly affect energy supply, 82°06″00′ West), and north of Pine In accordance with Executive Order distribution, and use. Executive Order Island Road (State Road 78), excluding: 13132, this proposed rule does not have 13211 requires agencies to prepare (A) The portion of the marked significant Federalism effects. A Statements of Energy Effects when channel otherwise designated in Federalism assessment is not required. undertaking certain actions. Because paragraph (c)(15)(iii) of this section; This proposed rule will not have this proposed rule is not a significant (B) All waters of Buzzard Bay east and substantial direct effects on the State, in regulatory action under Executive Order northeast of a line beginning at a point 12866 and it only requires vessels to (approximate latitude 26°40′00″ North, the relationship between the Federal ° ′ ″ Government and the State, or on the continue their operation as they have in approximate longitude 82 05 20 West) distribution of power and the past, it is not expected to on the southwest shoreline of an responsibilities among the various significantly affect energy supplies, unnamed mangrove island east of distribution, and use. Therefore, this Matlacha Pass Green Channel Marker 77 levels of government. We coordinated ° with the State of Florida to the extent action is a not a significant energy and bearing 219 to the action and no Statement of Energy northeasternmost point (approximate possible on the development of this ° ′ ″ proposed rule. Effects is required. latitude 26 39 58 North, approximate longitude 82°05′23″ West) of another Civil Justice Reform References Cited unnamed mangrove island, then In accordance with Executive Order A complete list of all references cited running along the eastern shoreline of 12988, the Office of the Solicitor has in this proposed rule is available upon said island to its southeasternmost point ° ′ ″ determined that this proposed rule does request from the South Florida Field (approximate latitude 26 39 36 North, ° ′ ″ not unduly burden the judicial system Office (see ADDRESSES section). approximate longitude 81 05 09 West), ° and meets the requirements of sections then bearing 115 to the westernmost Author ° ′ ″ 3(a) and 3(b)(2) of the Order. point (approximate latitude 26 39 34 The primary author of this document North, approximate longitude 82°05′05″ Paperwork Reduction Act is Kalani Cairns (see ADDRESSES West) of the unnamed mangrove island This proposed regulation does not section). to the southeast, then running along the contain collections of information that Authority western shoreline of said island to its require approval by the Office of southwesternmost point (approximate Management and Budget (OMB) under The authority to establish manatee latitude 26°39′22″ North, approximate 44 U.S.C. 3501 et seq. We may not protection areas is provided by the longitude 82°04′53″ West), then bearing conduct or sponsor, and you are not Endangered Species Act of 1973, as 123° to the northwesternmost point required to respond to, a collection of amended (16 U.S.C. 1531 et seq.), and (approximate latitude 26°39′21″ North, information unless it displays a the Marine Mammal Protection Act of approximate longitude 82°04′52″ West) currently valid OMB control number. 1972 (16 U.S.C. 1361–1407), as of an unnamed mangrove island, then amended. running along the western shoreline of National Environmental Policy Act List of Subjects in 50 CFR Part 17 said island to its southeasternmost point We have analyzed this proposed rule (approximate latitude 26°39′09″ North, in accordance with criteria of the Endangered and threatened species, approximate longitude 82°04′44″ West), National Environmental Policy Act. Exports, Imports, Reporting and then bearing 103° to the This proposed rule does not constitute recordkeeping requirements, northwesternmost point (approximate a major Federal action significantly Transportation. latitude 26°39′08″ North, approximate affecting the quality of the human Proposed Regulation Promulgation longitude 82°04′41″ West) of a peninsula on the unnamed mangrove environment. An Environmental Accordingly, we propose to amend island to the southeast, then running Assessment has been prepared and is part 17, subchapter B of chapter I, title along the southwestern shoreline of said available for review by written request 50 of the Code of Federal Regulations, island to its southeasternmost point to the Field Supervisor (see ADDRESSES as follows: section). (approximate latitude 26°38′51″ North, ° ′ ″ PART 17—[AMENDED] approximate longitude 82 04 18 West), Government-to-Government then bearing 99° to the southernmost Relationship With Tribes 1. The authority citation for part 17 point (approximate latitude 26°38′50″ In accordance with the President’s continues to read as follows: North, approximate longitude 82°04′03″ memorandum of April 29, 1994, Authority: 16 U.S.C. 1361–1407; 16 U.S.C. West) of the unnamed mangrove island ‘‘Government-to-Government Relations 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– to the east, then bearing 90° to the line’s with Native American Tribal 625, 100 Stat. 3500; unless otherwise noted. terminus at a point (approximate ° ′ ″ Governments’’ (59 FR 22951), Executive 2. Amend § 17.108 by revising latitude 26 38 50 North, approximate ° ′ ″ Order 13175 and the Department of the paragraph (c)(13) to read as follows: longitude 82 03 55 West) on the eastern Interior’s manual at 512 DM 2, we shoreline of Matlacha Pass; and readily acknowledge our responsibility § 17.108 List of designated manatee (C) All waters of Pine Island Creek to communicate meaningfully with protection areas. and Matlacha Pass north of Pine Island federally recognized Tribes on a * * * * * Road (State Road 78) and west and
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southwest of a line beginning at a point northwest of and parallel to the main latitude 26°33′52″ North, approximate (approximate latitude 26°39′2m29″ marked channel of the Intracoastal longitude 82°04′53″ West) on the North, approximate longitude 82°06′29″ Waterway, west of a line that bears 302° western shoreline of Matlacha Pass and West) on the western shoreline of from Intracoastal Waterway Green bearing 22° to a point (approximate Matlacha Pass and bearing 160° to the Channel Marker 99 (approximate latitude 26°34′09″ North, approximate westernmost point (approximate latitude 26°31′00″ North, approximate longitude 82°04′45″ West) on the latitude 26°39′25″ North, approximate longitude 82°00′52″ West), and east of a southern shoreline of the unnamed longitude 82°06′28″ West) of an line that bears 360° from Intracoastal island to the northeast, then running unnamed island, then running along the Waterway Red Channel Marker 10 along the southern and eastern western shoreline of said island to its (approximate latitude 26°29′16″ North, shorelines of said island to a point southernmost point (approximate approximate longitude 82°03′35″ West), (approximate latitude 26°34′15″ North, latitude 26°39′18″ North, approximate excluding: approximate longitude 82°04′39″ West) longitude 82°06′24″ West), then bearing (A) The portions of the marked on its northeastern shoreline, then 128° to the northernmost point channels otherwise designated in bearing 24° to a point (approximate (approximate latitude 26°39′12″ North, paragraphs (c)(15) (iv) and (v) of this latitude 26°34′21″ North, approximate approximate longitude 82°06′17″ West) section; longitude 82°04′36″ West) on the of an unnamed mangrove island to the (B) All waters of Matlacha Pass south southern shoreline of the large unnamed south, then running along the eastern of Pine Island Road (State Road 78) and island to the north, then running along shoreline of said island to its west of the western shoreline of West the southern and eastern shorelines of southeasternmost point (approximate Island and a line beginning at the said island to a point (approximate ° ′ ″ southernmost point (approximate latitude 26°34′31″ North, approximate latitude 26 39 00 North, approximate ° ′ ″ longitude 82°06′09″ West), then bearing latitude 26 37 25 North, approximate longitude 82°04′29″ West) on its eastern ° longitude 82°04′17″ West) of West shoreline, then bearing 41° to the 138 to a point (approximate latitude ° 26°38′45″ North, approximate longitude Island and bearing 149 to the southernmost point (approximate ° ′ ″ 82°05′53″ West) on the northern northernmost point (approximate latitude 26 34 39 North, approximate latitude 26°37′18″ North, approximate longitude 82°04′22″ West) of another shoreline of Bear Key, then running ° ′ ″ along the northern shoreline of Bear Key longitude 82 04 12 West) of the unnamed island to the northeast, then to its easternmost point (approximate unnamed mangrove island to the south, running along the eastern shoreline of latitude 26°38′44″ North, approximate then running along the eastern shoreline said island to its northwesternmost ° ′ ″ longitude 82°05′46″ West), then bearing of said island to its southernmost point point (approximate latitude 26 35 22 ° ′ ″ ° ′ ″ 85° to the westernmost point (approximate latitude 26 36 55 North, North, approximate longitude 82 04 07 approximate longitude 82°04′02″ West), ° (approximate latitude 26°38′45″ North, West), then bearing 2 to the then bearing 163° to the line’s terminus approximate longitude 82°05′32″ West) southernmost point (approximate at a point (approximate latitude ° ′ ″ of Deer Key, then running along the latitude 26 35 32 North, approximate 26°36′44″ North, approximate longitude ° ′ ″ northern shoreline of Deer Key to its longitude 82 04 07 West) of the 82°03′58″ West) on the eastern shoreline easternmost point (approximate latitude unnamed island to the north, then of Little Pine Island; 26°38′46″ North, approximate longitude running along the eastern shoreline of ° ′ ″ ° (C) All waters of Matlacha Pass, said island to its northernmost point 82 05 22 West), then bearing 103 to Pontoon Bay, and associated ° ′ ″ the northwesternmost point (approximate latitude 26 35 51 North, ° ′ ″ embayments south of Pine Island Road approximate longitude 82°03′59″ West), (approximate latitude 26 38 45 North, (State Road 78) and east of a line ° approximate longitude 82°05′17″ West) then bearing 353 to the line’s terminus beginning at a point (approximate at a point (approximate latitude of the unnamed mangrove island to the latitude 26°38′12″ North, approximate ° ′ ″ east, then running along the western 26 36 08 North, approximate longitude longitude 82°03′46″ West) on the 82°04′01″ West) on the eastern shoreline shoreline of said island to its northwestern shoreline of the southernmost point (approximate of Little Pine Island; and embayment on the east side of Matlacha (E) All waters of Punta Blanca Bay latitude 26°38′30″ North, approximate ° ′ ″ Pass, immediately south of Pine Island and Punta Blanca Creek, east of the longitude 82 05 04 West), then bearing Road and then running along the eastern ° eastern shoreline of Matlacha Pass and 106 to the westernmost point shoreline of the unnamed island to the ° ″ east and north of the eastern and (approximate latitude 26 38‘30 North, south to its southeasternmost point ° ′ ″ northern shorelines of San Carlos Bay. approximate longitude 82 04 57 West) (approximate latitude 26°37′30″ North, (iii) Watercraft may not exceed 25 of the unnamed island to the southeast, approximate longitude 82°03′22″ West), miles per hour, all year, in all waters then running along the northern and then bearing 163° to the within the main marked channel in eastern shorelines of said island to a northwesternmost point of the unnamed ° ′ ″ Matlacha Pass south of Green Channel point (approximate latitude 26 38 23 island to the south, then running along Marker 77 (approximate latitude ° ′ ″ North, approximate longitude 82 04 51 the western shoreline of said island to 26°40′00″ North, approximate longitude West) on its eastern shoreline, then its southernmost point (approximate 82°06′00″ West) and north of a line ° bearing 113 to the northernmost point latitude 26°37′15″ North, approximate perpendicular to the channel at a point of West Island (approximate latitude longitude 82°03′15″ West), then bearing in the channel 1⁄4 mile northwest of the ° ′ ″ 26 38 21 North, approximate longitude 186° to the line’s terminus at a point Pine Island Road Bridge (State Road 78). ° ′ ″ 82 04 37 West), then running along the (approximate latitude 26°37′10″ North, (iv) Watercraft may not exceed 25 western shoreline of West Island to the approximate longitude 82°03′16″ West) miles per hour, all year, in all waters point where the line intersects Pine on the eastern shoreline of Matlacha within the main marked channel in Island Road (State Road 78). Pass; Matlacha Pass south of a line (ii) Watercraft are required to proceed (D) All waters of Pine Island Creek perpendicular to the channel at a point at slow speed all year in all waters of south of Pine Island Road (State Road in the channel 1⁄4 mile southeast of the Matlacha Pass, St. James Creek, and San 78); and all waters of Matlacha Pass, Pine Island Road Bridge (State Road 78), Carlos Bay, south of Pine Island Road Rock Creek, and the Mud Hole, west of and north of a line 500 feet northwest (State Road 78), north of a line 500 feet a line beginning at a point (approximate of and parallel to the main marked
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channel of the Intracoastal Waterway (approximate latitude 26°28′45″ North, northwest of the general contour of the (just north of Green Channel Marker 1). approximate longitude 82°06′38″ West), northwestern shoreline of Shell Point (v) Watercraft may not exceed 25 north of a line beginning at said Red and a line that bears approximately 74° miles per hour, all year, in all waters Intracoastal Waterway Channel Marker from the northernmost tip (approximate within the marked channel in Matlacha 20 and bearing 86° to a point latitude 26°31′31″ North, approximate Pass that intersects the main Matlacha (approximate latitude 26°28′50″ North, longitude 81°59′57″ West) of Shell Point Pass channel near Green Channel approximate longitude 82°05′48″ West) to said Intracoastal Waterway Green Marker 15 (approximate latitude 1⁄4 mile south of York Island, then Channel Marker 93, excluding the 26°31′57″ North, approximate longitude running parallel to and 1⁄4 mile south of Intracoastal Waterway between markers 82°03′38″ West) and intersects the main the general contour of the southern 93 and 99 (which is already designated marked channel of the Intracoastal shorelines of York Island and Pine as a Federal manatee protection area, Waterway near Green Channel Marker Island to the line’s terminus at a point requiring watercraft to proceed at slow 101 (approximate latitude 26°30′39″ on a line bearing 360° from Red speed, and is not impacted by this North, approximate longitude 82°01′00″ Intracoastal Waterway Channel Marker proposed rulemaking). West). 10 (approximate latitude 26°29′16″ (x) Watercraft are required to proceed (vi) Watercraft are required to proceed North, approximate longitude 82°03′35″ at slow speed from April 1 through at slow speed from April 1 through West), and west and southwest of the November 15 and at not more than 25 November 15 in all canals and boat general contour of the western and miles per hour the remainder of the year basins of St. James City and the waters southern shorelines of Pine Island and in all waters of Hell Peckney Bay known as Long Cut and Short Cut; and a line that bears 360° from said Red southeast of Hurricane Bay, northeast of all waters of Pine Island Sound and San Intracoastal Waterway Channel Marker the northern shorelines of Julies Island Carlos Bay south of a line beginning at 10, excluding the portion of the marked and the unnamed island immediately the southernmost tip (approximate channel otherwise designated in northwest of Julies Island and a line that latitude 26°31′28″ North, approximate paragraph (c)(15)(vii) of this section. bears 312° from the northwesternmost longitude 82°06′19″ West) of a mangrove (vii) Watercraft may not exceed 25 point of Julies Island (approximate peninsula on the western shore of Pine miles per hour from April 1 through latitude 26°26′37″ North, approximate Island approximately 2,200 feet north of November 15 in all waters of the marked longitude 81°54′57″ West), northwest of Galt Island and bearing 309° to the channel that runs north of the power Estero Bay, and southwest of a line southeasternmost point (approximate lines from the Cherry Estates area of St. beginning at the southernmost point latitude 26°31′32″ North, approximate James City into Pine Island Sound, east (approximate latitude 26°27′23″ North, longitude 82°06′25″ West) of another of the western boundary of the zone approximate longitude 81°55′11″ West) mangrove peninsula, then running along designated in paragraph (c)(15)(vi) of of an unnamed mangrove peninsula in the southern shoreline of said peninsula this section, and west of a line northwest Hell Peckney Bay and bearing to its southwesternmost point perpendicular to the power lines that 191° to the northernmost point (approximate latitude 26°31′40″ North, begins at the easternmost point (approximate latitude 26°27′19″ North, approximate longitude 82°06′38″ West), (approximate latitude 26°30′25″ North, approximate longitude 81°55′11″ West) then bearing 248° to a point approximate longitude 82°06′15″ West) of an unnamed mangrove island, then (approximate latitude 26°31′40″ North, of the mangrove island on the north side running along the northern shoreline of approximate longitude 82°06′39″ West) of the power lines approximately 1,800 said island to its southeasternmost point on the eastern shoreline of an unnamed feet southwest of the Galt Island (approximate latitude 26°27′11″ North, mangrove island, then running along the Causeway. approximate longitude 81°55′05″ West), southern shoreline of said island to its (viii) Watercraft are required to then bearing 115° to a point southwesternmost point (approximate proceed at slow speed all year in all (approximate latitude 26°27′03″ North, latitude 26°31′39″ North, approximate waters of San Carlos Bay and Punta approximate longitude 81°54′47″ West) longitude 82°06′44″ West), then bearing Rassa Cove east of a line that bears 352° on the northwest shoreline of an 206° to the line’s terminus at the from the northernmost tip of the unnamed mangrove island, then northernmost point of the Mac Keever northern peninsula on Punta Rassa running along the northern shoreline of Keys (approximate latitude 26°31′09″ (approximate latitude 26°29′44″ North, said island to its northeasternmost point North, approximate longitude 82°07′09″ approximate longitude 82°00′33″ West), (approximate latitude 26°27′02″ North, West), east of a line beginning at said and south of a line that bears 122° from approximate longitude 81°54′33″ West), northernmost point of the Mac Keever Intracoastal Waterway Green Channel and then bearing 37° to the line’s Keys and running along and between Marker 99 (approximate latitude terminus at the westernmost point of an the general contour of the western 26°31′00″ North, approximate longitude unnamed mangrove peninsula in shorelines of said keys to a point 82°00′52″ West), including all waters of eastern Hell Peckney Bay. (approximate latitude 26°30′27″ North, Shell Creek and associated waterways. (xi) Watercraft are required to proceed approximate longitude 82°07′08″ West) (ix) Watercraft are required to proceed at slow speed from April 1 through on the southernmost of the Mac Keever at slow speed all year in all waters of November 15 and at not more than 25 Keys, then bearing 201° to a point San Carlos Bay and the Caloosahatchee miles per hour the remainder of the year (approximate latitude 26°30′01″ North, River, including the residential canals of in all waters of Hendry Creek south of approximate longitude 82°07′19″ West) Cape Coral, northeast of a line that bears a line that bears 270° from a point approximately 150 feet due east of the 302° and 122° from Intracoastal (approximate latitude 26°28′40″ North, southeasternmost point of Chino Island, Waterway Green Channel Marker 99 approximate longitude 81°52′56″ West) then bearing approximately 162° to Red (approximate latitude 26°31′00″ North, on the eastern shoreline of Hendry Intracoastal Waterway Channel Marker approximate longitude 82°00′52″ West), Creek; and all waters of Estero Bay 22 (approximate latitude 26°28′57″ west of a line that bears 346° from southeast and east of Hell Peckney Bay, North, approximate longitude 82°06′55″ Intracoastal Waterway Green Channel a line that bears 340° from a point West), then bearing approximately 117° Marker 93 (approximate latitude (approximate latitude 26°25′56″ North, to the line’s terminus at Red Intracoastal 26°31′37″ North, approximate longitude approximate longitude 81°54′25″ West) Waterway Channel Marker 20 81°59′46″ West), and north and on the northern tip of an unnamed
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mangrove peninsula on the northeastern on the eastern shoreline of Little (D) All waters within the portion of shoreline of Estero Island, and the Hickory Island, excluding Spring Creek the marked channel leading to the Gulf northern shoreline of Estero Island, and the portions of the marked channels of Mexico through New Pass, west of the south of Hendry Creek and a line that otherwise designated under paragraph North-South channel and east of State bears 135° and 315° from Red Channel (c)(15)(xiii) of this section and the Road 865; all waters of the marked Marker 18 (approximate latitude 26°27′ portion of Hickory Bay designated in channel leading to Mullock Creek north 46″ North, approximate longitude paragraph (c)(15)(xiii) of this section. of a line beginning at a point 81°52′00″ West) in Mullock Creek, and (xiii) Watercraft may not exceed 25 (approximate latitude 26° 24′36″ North, north of a line that bears 72° from the miles per hour all year in: approximate longitude 81° 52′30″ West) northernmost point (approximate (A) All waters of Big Hickory Bay on the eastern shoreline of Coon Key ° latitude 26°24′22″ North, approximate north of a line that bears 90 from a and bearing 106° to a point ° ′ ″ longitude 81°52′34″ West) of Black point (approximate latitude 26 20 51 (approximate latitude 26° 24′39″ North, ° ′ ″ Island, including the waters of North, approximate longitude 81 50 33 approximate longitude 81° 52′34″ West) Buccaneer Lagoon at the southern end West) on the eastern shoreline of Little on the southwestern shoreline of the of Estero Island, but excluding: Hickory Island, west of a line beginning unnamed mangrove island north of (A) The portions of the marked at a point (approximate latitude Black Island, and south of Red Channel ° ′ ″ channels otherwise designated in 26 20 38 North, approximate longitude Marker 18 (approximate latitude ° ′ ″ paragraph (c)(15)(xiii) of this section; 81 50 24 West) on the southern 26°27′46″ North, approximate longitude (B) The Estero River; and shoreline of Big Hickory Bay and 81°52′00″ West); (C) To waters of Big Carlos Pass east bearing 338° to a point (approximate of a line beginning at a point latitude 26°21′39″ North, approximate (E) All waters of the marked channel (approximate latitude 26°24′34″ North, longitude 81°50′48″ West) on the water leading from the Mullock Creek Channel approximate longitude 81°53′05″ West) in the northwestern end of Big Hickory to the Estero River, west of the mouth on the eastern shoreline of Estero Island Bay near the eastern end of Broadway of the Estero River. (This designation and bearing 36° to a point (approximate Channel, south of a line beginning at only applies if a channel is marked in latitude 26°24′40″ North, approximate said point on the water in the accordance with permits issued by all longitude 81°53′00″ West) on the northwestern end of Big Hickory Bay applicable State and Federal authorities. southern shoreline of Coon Key, south and bearing 242° to the northernmost In the absence of a properly permitted of a line beginning at a point point (approximate latitude 26°21′39″ channel, this area is as designated under (approximate latitude 26°24′36″ North, North, approximate longitude 81°50′50″ paragraph (c)(15)(xi) of this section); approximate longitude 81°52′30″ West) West) of the unnamed mangrove island (F) All waters of the marked channel on the eastern shoreline of Coon Key south of Broadway Channel, and east of commonly known as Alternate Route and bearing 106° to a point the eastern shoreline of said mangrove Channel, with said channel generally (approximate latitude 26°24′39″ North, island and a line beginning at the running between Channel Marker 1 approximate longitude 81°52′34″ West) southernmost point of said island (approximate latitude 26°24′29″ North, on the southwestern shoreline of the (approximate latitude 26°21′07″ North, approximate longitude 81°51′53″ West) unnamed mangrove island north of approximate longitude 81°50′58″ West) and Channel Marker 10 (approximate Black Island, and west of a line and bearing 167° to a point on Little latitude 26°24′00″ North, approximate beginning at a point (approximate Hickory Island (approximate latitude longitude 81°51′09″ West); ° ′ ″ latitude 26 24 36 North, approximate 26°21′03″ North, approximate longitude (G) All waters of the marked channel ° ′ ″ longitude 81 52 30 West) on the 81°50′57″ West); commonly known as Coconut Channel, southern shoreline of said unnamed (B) All waters of the main marked with said channel generally running mangrove island north of Black Island North-South channel in northern Estero between Channel Marker 1 ° and bearing 192 to the northernmost Bay from Green Channel Marker 37 (approximate latitude 26°23′44″ North, ° ′ ″ ° ′ ″ point (approximate latitude 26 24 22 (approximate latitude 26 26 02 North, approximate longitude 81°50′55″ West) ° ′ ″ ° ′ ″ North, approximate longitude 81 52 34 approximate longitude 81 54 29 West) and Channel Marker 23 (approximate West) of Black Island. to Green Channel Marker 57 latitude 26°24′00″ North, approximate ° ′ ″ (xii) Watercraft are required to (approximate latitude 26 25 08 North, longitude 81°50′30″ West); proceed at slow speed from April 1 approximate longitude 81°53′29″ West); through November 15 and at not more (C) All waters of the main marked (H) All waters of the marked channel than 25 miles per hour the remainder of North-South channel in southern Estero commonly known as Southern Passage the year in all waters of Estero Bay and Bay south of a line beginning at a point Channel, with said channel generally Big Hickory Bay south of a line that (approximate latitude 26°24′36″ North, running between Channel Marker 1 ° ° ′ ″ (approximate latitude 26°22′58″ North, bears 72 from the northernmost point approximate longitude 81 52 30 West) ° ′ ″ (approximate latitude 26°24′22″ North, on the southern shoreline of the approximate longitude 81 51 57 West) approximate longitude 81°52′34″ West) unnamed mangrove island north of and Channel Marker 22 (approximate ° latitude 26°23′27″ North, approximate of Black Island, east of the centerline of Black Island and bearing 192 to the ° ′ ″ State Road 865 (but including the waters northernmost point (approximate longitude 81 50 46 West); and of the embayment on the eastern side of latitude 26°24′22″ North, approximate (I) All waters of the marked channel Black Island and the waters inshore of longitude 81°52′34″ West) of Black leading from the Southern Passage the mouth of Big Hickory Pass that are Island, and north and east of Red Channel to Spring Creek, west of the west of State Road 865), and north of a Channel Marker 62 (approximate mouth of Spring Creek. line that bears 90° from a point latitude 26° 21′31″ North, approximate (xiv) Maps of the Pine Island–Estero (approximate latitude 26°20′51″ North, longitude 81° 51′20″ West) in Broadway Bay Manatee Refuge follow: approximate longitude 81°50′33″ West) Channel; BILLING CODE 4310–55–P
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Dated: July 15, 2004. Paul Hoffman, For Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 04–17906 Filed 8–5–04; 8:45 am] BILLING CODE 4310–55–C
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DEPARTMENT OF THE INTERIOR at these sites that would, in our view, the ESA, means to harass, harm, pursue, make such establishment unnecessary to hunt, shoot, wound, kill, trap, capture, Fish and Wildlife Service prevent the taking of one or more collect, or to attempt to engage in any manatees. such conduct. Harm means an act which 50 CFR Part 17 DATES: In accordance with 50 CFR kills or injures wildlife (50 CFR 17.3). RIN 1018–AT65 17.106, the effective date for this action Such an act may include significant will be August 6, 2004, which will also habitat modification or degradation that Endangered and Threatened Wildlife be the date of publication in the kills or injures wildlife by significantly and Plants; Establishment of an following newspapers: Fort Myers impairing essential behavioral patterns, Additional Manatee Protection Area in News-Press; Cape Coral Daily Breeze; including breeding, feeding, or Lee County, Florida and Naples Daily News. This emergency sheltering. Harass includes intentional action will remain in effect for 120 days or negligent acts or omissions that create AGENCY: Fish and Wildlife Service, the likelihood of injury to wildlife by Interior. after publication in the Federal Register (until December 6, 2004). annoying it to such an extent as to ACTION: Emergency rule. significantly disrupt normal behavioral ADDRESSES: The complete file for this patterns, which include, but are not SUMMARY: We, the Fish and Wildlife rule is available for inspection, by limited to, breeding, feeding, or Service (Service), as required by appointment, during normal business sheltering (50 CFR 17.3). regulation, hereby provide notice of the hours at the South Florida ES Field The MMPA sets a general termination of the emergency Office, U.S. Fish and Wildlife Service, moratorium, with certain exceptions, on establishment of the Pine Island-Estero 1339 20th Street, Vero Beach, Florida the take and importation of marine Bay Refuge, which was created when a 32960. mammals and marine mammal products rule was published in the Federal FOR FURTHER INFORMATION CONTACT: Jay and makes it unlawful for any person to Register on April 7, 2004, and will Slack or Bert Byers (see ADDRESSES take, possess, transport, purchase, sell, expire effective August 5, 2004. We are section), telephone (772) 562–3909. export, or offer to purchase, sell, or publishing a proposed rule to establish SUPPLEMENTARY INFORMATION: export, any marine mammal or marine these areas as the Pine Island-Estero Bay mammal product unless authorized. Manatee Refuge by standard rulemaking Background Take, as defined by section 3(13) of the elsewhere in this issue of the Federal The West Indian manatee (Trichecus MMPA, means to harass, hunt, capture, Register. In order to provide for manatus) is federally listed as an or kill, or attempt to harass, hunt, continued protection of this area during endangered species under the ESA (16 capture, or kill any marine mammal. the rulemaking process, while allowing U.S.C. 1531 et seq.) (32 FR 4001) and is Harassment is defined by section 3(18) adequate time for public hearings and further protected under the MMPA (16 of the MMPA as any act of pursuit, comments on the proposed designation, U.S.C. 1361–1407). Manatees reside in torment, or annoyance which—(i) has we are hereby using our emergency freshwater, brackish, and marine the potential to injure a marine mammal authority to re-establish the temporary habitats in coastal and inland or marine mammal stock in the wild; or Pine Island-Estero Bay Refuge, effective waterways of the southeastern United (ii) has the potential to disturb a marine August 6, 2004. The area established by States. The majority of the population mammal or marine mammal stock in the this rule will be a manatee refuge and can be found in waters of the State of wild by causing disruption of behavioral watercraft will be required to proceed at Florida throughout the year, and nearly patterns, including, but not limited to, either ‘‘slow speed’’ or at not more than all manatees winter in peninsular migration, breathing, nursing, breeding, 25 miles per hour, on an annual or Florida during the winter months. The feeding, or sheltering. seasonal basis, as marked. While manatee is a cold-intolerant species and Human use of the waters of the adjacent property owners must comply requires warm water temperatures southeastern United States has with the speed restrictions, the generally above 20° Celsius (68° increased as a function of residential designation will not preclude ingress Fahrenheit) to survive during periods of growth and increased visitation. This and egress to private property. This cold weather. During the winter months, increased use is particularly evident in action is authorized under the most manatees rely on warm water from the State of Florida. The population of Endangered Species Act of 1973, as natural springs and industrial Florida has grown by 124 percent since amended (ESA), and the Marine discharges for warmth. In warmer 1970 (6.8 million to 15.2 million, U.S. Mammal Protection Act of 1972, as months, they expand their range and are Census Bureau) and is expected to amended (MMPA), based on our occasionally seen as far north as Rhode exceed 18 million by 2010, and 20 determination that there is substantial Island on the Atlantic Coast and as far million by the year 2020. According to evidence of imminent danger of taking west as Texas on the Gulf Coast. a report by the Florida Office of one or more manatees and the Recent information indicates that the Economic and Demographic Research emergency designation of a manatee overall manatee population has grown (2000), it is expected that, by the year refuge is necessary to prevent such since the species was listed (Service 2010, 13.7 million people will reside in taking. In evaluating the need for 2001). However, in order for us to the 35 coastal counties of Florida. In a emergency designation of this manatee determine that an endangered species parallel fashion to residential growth, protection area, we considered the has recovered to a point that it warrants visitation to Florida has also increased. biological needs of the manatee, the removal from the List of Endangered It is expected that Florida will have 83 level of take at these sites, and the and Threatened Wildlife and Plants, the million visitors annually by the year likelihood of additional take of species must have improved in status to 2020, up from 48.7 million visitors in manatees due to human activity. We the point at which listing is no longer 1998. In concert with this increase of anticipate making a final determination appropriate under the criteria set out in human population growth and visitation on these sites in a final rule within the section 4(a)(1) of the ESA. is the increase in the number of 120-day effective period of this Human activities, and particularly watercraft that travel Florida waters. In emergency designation, unless State or waterborne activities, can result in the 2003, 743,243 vessels were registered in local governments implement measures take of manatees. Take, as defined by the State of Florida. This represents an
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increase of 26 percent since 1993. The water vehicles, and dredge and fill boat is traveling, the more time a number of vessels reported here differs activities. manatee has to avoid the vessel and the from that reported in our April 7, 2004, more time the boat operator has to Reasons for Emergency Determination rule establishing a temporary, detect and avoid the manatee. Nowacek emergency refuge on these sites because In deciding to implement this et al. (2000) documented manatee new data have since become available emergency rule, we assessed the effects avoidance of approaching boats. Wells from the State of Florida. The apparent of a recent State court ruling et al. (1999) confirmed that, at a decline in number of vessels registered overturning critically important, State- response distance of 20 meters, a between 2001 and 2003 is due to a designated manatee protection zones in manatee’s time to respond to an change in the way registrations were Lee County. In this case, (State of oncoming vessel increased by at least 5 counted. The earlier (2001) numbers Florida Fish and Wildlife Conservation seconds if the vessel was traveling at included all registrations occurring Commission (FFWCC) v. William D. slow speed. Therefore, the potential for during the year and, therefore, double- Wilkinson, Robert W. Watson, David K. take of manatees can be greatly reduced counted vessels that were sold and re- Taylor, James L. Frock (2 Cases), Jason if boats are required to travel at slow registered during the same year. L. Fluharty, Kenneth L. Kretsh, Harold speed in areas where manatees can be The large increase in human use of Stevens, Richard L. Eyler, and John D. expected to occur. manatee habitat has had direct and Mills), who were issued citations for The waterbodies encompassed in this indirect impacts on this endangered alleging different violations of Rule emergency designation receive species. Direct impacts include injuries 68C–22.005 (Rule), challenged the Rule extensive manatee use either on a and deaths from watercraft collisions, adopted by the FFWCC regulating the seasonal or year-round basis as deaths and injuries from water control operation and speed of motorboat traffic documented in radio telemetry and in Lee County waters to protect structure operations, lethal and aerial survey data (FWCC 2003). The manatees. In its ruling the court sublethal entanglements with areas contain feeding habitats and serve determined that under Florida law the commercial and recreational fishing as travel corridors for manatees (FWCC FFWCC can regulate the operation and gear, and alterations of behavior due to 2003). They have also been regulated at speed of motorboats in order to protect harassment. Indirect impacts include either slow speed or with a 25-mile-per- manatees from harmful collisions with habitat destruction and alteration, hour speed limit by State government motorboats, however: (1) In the area to including decreases in water quality since 1999 prior to the State court ruling be regulated, manatee sightings must be throughout some aquatic habitats, in (FFWCC) v. William D. Wilkinson et frequent and, based upon available decreases in the quantity of warm water al. in December, 2003. Without this scientific information, it has been in natural spring areas, the spread of emergency Federal designation, determined that manatees inhabit this watercraft can be expected to travel at marine debris, and general disturbance these areas on a regular, periodic or high speeds in areas frequented by from human activities. continuous basis; and (2) when the manatees, which would result in the Federal authority to establish FFWCC adopts rules it must consider take of one or more manatees. In fact, protection areas for the Florida manatee the rights of voters, fishermen and boat operators could inadvertently be is provided by the ESA and the MMPA water-skiers and the restrictions encouraged to travel at high speeds. and is codified in 50 CFR, part 17, adopted by the FFWCC must not unduly While the State court invalidated speed subpart J. We have discretion, by interfere with those rights. In this limits in the areas adjacent to navigation regulation, to establish manatee instance the court found that the Rule channels, it did not invalidate the 25- protection areas whenever there is for four of the regulated areas did not mile-per-hour speed limit in the substantial evidence showing such meet the State standard for the navigation channels that traverse the establishment is necessary to prevent frequency of sightings and the rule affected area. Therefore, the speed limit the taking of one or more manatees. In unduly interfered with the rights of in the navigation channel is now lower accordance with 50 CFR 17.106, areas voters. Thus, the designated manatee than that of the surrounding, shallower may be established on an emergency protection zones were invalidated and areas. As a result, shallow-draft high- basis when such takings are imminent. the citations were dismissed. speed boats capable of traveling outside We may establish two types of The legal basis for the action to be the navigation channels can be expected manatee protection areas—manatee taken by the Service differs markedly to be operated at high speeds (greater refuges and manatee sanctuaries. A from that in the FFWCC v. Wilkinson than 25 miles per hour) in the areas manatee refuge, as defined in 50 CFR case. The Service’s action is not based more likely to be frequented by 17.102, is an area in which we have on State law but rather is based upon a manatees. determined that certain waterborne Federal regulation, 50 CFR 17.106(a) There is a history of manatee activities would result in the taking of which provides the standard for an mortalities in the area as a result of one or more manatees, or that certain emergency designation of a protected collisions with watercraft. At least 18 waterborne activities must be restricted area. Specifically, this regulation carcasses of manatees killed in to prevent the taking of one or more provides that a manatee protection area collisions with watercraft have been manatees, including but not limited to, may be established ‘‘* * * at any time recovered in or immediately adjacent to taking by harassment. A manatee [the Director] determines that there is the designated areas since 1999 (http:/ sanctuary, as defined in 50 CFR 17.102, substantial evidence that there is /www.floridamarine.org, 2004), with is an area in which we have determined imminent danger of a taking of one or four carcasses recently recovered in that any waterborne activity would more manatees, and that such close proximity to the sites following result in the taking of one or more establishment is necessary to prevent the State court action. Necropsies manatees, including but not limited to, such a taking.’’ revealed that these animals died of taking by harassment. A waterborne We also reviewed the best available wounds received from boat collisions. activity is defined as including, but not information to evaluate manatee and On August 6, 2004, we published a limited to, swimming, diving (including human interactions in these areas. proposed rule to establish the Pine skin and scuba diving), snorkeling, Manatees are especially vulnerable to Island-Estero Bay Manatee Refuge as a water skiing, surfing, fishing, the use of fast-moving power boats. The slower a permanent manatee protected area by
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normal rulemaking procedures. Future Federal Actions Area Designated as a Manatee Refuge However, the current emergency refuge by Emergency Rule is temporary and will expire on August Once this emergency rule is in effect, Pine Island-Estero Bay Manatee Refuge 5, 2004, prior to the closing of the the emergency designation is temporary public review and comment period on and applies to these areas for only 120 The Pine Island-Estero Bay Manatee the proposed rule. Without the days. We believe the danger to manatees Refuge encompasses water bodies in Lee emergency designation, these areas due to watercraft collisions in the Pine County including portions of Matlacha would not receive the needed protection Island-Estero Bay area is not only Pass and San Carlos Bay south of Green because of the time necessary to imminent, but also ongoing and year- Channel Marker ‘‘77’’ and north of the complete the normal rulemaking round. Accordingly, we are proceeding Intracoastal Waterway, portions of Pine process. with the normal rulemaking process to Island Sound in the vicinity of York and Chino Islands, portions of Punta Rassa For these reasons, we believe that establish an additional manatee Cove and Shell Creek in San Carlos Bay there is imminent danger of take of one protection area in Lee County, Florida, and the mouth of the Caloosahatchee or more manatees in these areas and in accordance with 50 CFR 17.103. As River, and portions of Estero Bay and emergency designation of a manatee part of this process, we have published a proposed rule in the Federal Register associated water bodies. These water refuge is necessary to prevent such bodies are designated, as posted, as taking. Manatees utilize these areas, on August 6, 2004. We anticipate publishing a final rule prior to either slow speed or with a speed limit there is a history of take at these sites, of 25 miles per hour, on either a December 4, 2004, when this emergency future take is imminent, protection seasonal or annual basis. Legal rule expires. measures are insufficient, and we do not descriptions and maps are provided in anticipate any alternative protection Definitions the ‘‘Regulation Promulgation’’ section measures being enacted by State or local of this notice. government in sufficient time to reduce ‘‘Planing’’ means riding on or near the the likelihood of take occurring. water’s surface as a result of the Clarity of the Rule Effective Date hydrodynamic forces on a watercraft’s Executive Order 12866 requires each hull, sponsons (projections from the agency to write regulations/notices that We are making this rule effective side of a ship), foils, or other surfaces. are easy to understand. We invite your upon publication. In accordance with A watercraft is considered on plane comments on how to make this the Administrative Procedure Act, we when it is being operated at or above the emergency rule easier to understand, find good cause as required by 5 U.S.C. speed necessary to keep the vessel including answers to questions such as 553(d)(3) to make this rule effective planing. the following: (1) Are the requirements sooner than 30 days after publication in in the emergency rule clearly stated? (2) ‘‘Slow speed’’ means the speed at the Federal Register. As discussed Does the emergency rule contain which a watercraft proceeds when it is under ‘‘Reasons for Emergency unnecessary technical language or fully off plane and completely settled in Determination,’’ the emergency manatee jargon that interferes with the clarity? the water. Due to the different speeds at refuge established April 7, 2004, is (3) Does the format of the emergency temporary, lasting only through August which watercraft of different sizes and rule (grouping and order of sections, use 5, 2004. Since the standard rulemaking configurations may travel while in of headings, paragraphing, etc.) aid or process for creating a permanent refuge compliance with this definition, no reduce its clarity? (4) Is the description here could not be completed before specific speed is assigned to slow speed. of the emergency rule in the expiration of the emergency refuge, re- A watercraft is not proceeding at slow SUPPLEMENTARY INFORMATION section of establishment of the emergency manatee speed if it is: (1) on a plane, (2) in the the preamble helpful in understanding protection area must be effective August process of coming up on or coming off the proposed rule? (5) What else could 6, 2004, in order to prevent a lapse in of plane, or (3) creating an excessive we do to make the emergency rule easier protection. Any further delay in making wake. A watercraft is proceeding at slow to understand? this manatee refuge effective would speed if it is fully off plane and Send a copy of any comments that result in further risks of manatee completely settled in the water, not affect how we could make this mortality, injury, and harassment during creating an excessive wake. emergency rule easier to understand to: Office of Regulatory Affairs; Department the period of delay. In view of the ‘‘Wake’’ means all changes in the of the Interior, Room 7229; 1849 C finding of substantial evidence that vertical height of the water’s surface Street, NW., Washington, DC 20240. taking of manatees is imminent and in caused by the passage of a watercraft, fact has already occurred in or in close including a vessel’s bow wave, stern Required Determinations proximity to the site, we believe good wave, and propeller wash, or a Regulatory Planning and Review cause exists to make this rule effective combination of these. August 6, 2004. For the same reasons, In accordance with the criteria in we also believe that we have good cause ‘‘Water vehicle, watercraft,’’ and Executive Order 12866, this rule is not under 5 U.S.C. 553(b)(3)(B) to issue this ‘‘vessel’’ include, but are not limited to, a significant regulatory action. The rule without prior notice and public boats (whether powered by engine, Office of Management and Budget procedure. We believe such emergency wind, or other means), ships (whether makes the final determination under action is in the public interest because powered by engine, wind, or other Executive Order 12866. of the imminent threat to manatees and means), barges, surfboards, personal a. Based on experience with similar the time required to complete the watercraft, water skis, or any other rulemakings in this area, this rule will standard rulemaking process, which device or mechanism the primary or an not have an annual economic impact of would probably result in additional take incidental purpose of which is over $100 million or adversely affect an of manatees. This rule does not locomotion on, or across, or underneath economic sector, productivity, jobs, the supersede any more stringent State or the surface of the water. environment, or other units of local regulations. government. It is not expected that any
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significant economic impacts would Sanctuary Act allows the State to speeds is that fisheries in these areas result from the establishment of a provide exemptions from speed zone may be more productive because of manatee refuge (approximately 30 river requirements for certain commercial reduced disturbance. These types of miles) in Lee County in the State of activities, including fishing and events benefits cannot be quantified with Florida. such as high-speed boat races. Under available information. The purpose of this rule is to establish State law, commercial fishermen and Based on previous studies, we believe an emergency manatee refuge in Lee professional fishing guides can apply for that this rule produces some economic County, Florida. We are preventing the permits granting exemption from speed benefits. However, given the lack of take of manatees by controlling certain zone requirements in certain counties. information available for estimating human activity in this County. For the Speed zone exemptions were issued to these benefits, the magnitude of these manatee refuge, the areas are year-round 27 permit holders in the former State benefits is unknown. or seasonal slow speed, or year-round or zones that comprise the proposed Economic Costs seasonal speed limits of 25 miles per manatee refuge area. One permit holder hour. Affected waterborne activities from previous years did not renew at the The economic impact from the include, but are not limited to, last opportunity. designation of a manatee protection area transiting, cruising, water skiing, In order to gauge the economic effect affects boaters in these areas, in that fishing, marine construction, and the of this rule, both benefits and costs must boats are required to go slower than use of all water vehicles. This rule will be considered. Potential economic under current conditions. Some impacts impact recreational boaters, commercial benefits related to this rule include may be felt by recreationists who have charter boats, and commercial increased manatee protection and to use alternative sites for their activity fishermen, primarily in the form of tourism related to manatee viewing, or who have a reduced quality of the restrictions on boat speeds in specific increased number of marine waterborne activity experience at the areas. We will experience increased construction permits issued, increased designated sites because of the rule. For administrative costs due to this rule. fisheries health, and decreased seawall example, the extra time required for Conversely, the rule may also produce maintenance costs. Potential economic anglers to reach fishing grounds could economic benefits for some parties as a costs are related to increased reduce onsite fishing time and could result of increased manatee protection administrative activities related to result in lower consumer surplus for the and decreased boat speeds in the implementing the rule and affected trip. Other impacts of the rule may be manatee refuge areas. waterborne activities. Economic costs felt by commercial charter boat outfits, Regulatory impact analysis requires are measured primarily by the number commercial fishermen, and agencies the comparison of expected costs and of recreationists who use alternative that perform administrative activities benefits of the rule against a ‘‘baseline,’’ sites for their activity or have a reduced related to implementing the rule. which typically reflects the regulatory quality of the waterborne activity Affected Recreational Activities requirements in existence prior to the experience at the designated sites. In rulemaking. For purposes of this addition, the rule may have some For some boating recreationists, the analysis, the baseline assumes that the impact on commercial fishing because inconvenience and extra time required Pine Island-Estero Bay area has no of the need to maintain slower speeds to cross additional slow speed areas regulating speed limits other than the 25 in some areas. The extension of slower may reduce the quality of the miles per hour in the navigation speed zones in this rule is not expected waterborne activity or cause them to channels. The State-designated speed to affect enough waterborne activity to forgo the activity. This will manifest in zones, other than in the navigation create a significant economic impact a loss of consumer surplus to these channels, have been lifted by a State (i.e., an annual impact of over $100 recreationists. In addition, to the extent Court decision. However, residents and million). that recreationists forgo recreational other water users have lived with speed activities, this could result in some restrictions in this area for many years Economic Benefits regional economic impact. In this and have established business and We believe that the designation of the section, we examine the waterborne recreational patterns on the water to Pine Island-Estero Bay Manatee Refuge activities taking place in each area and accommodate their needs and desires in this rule will increase the level of the extent to which they may be affected for water-based recreation. Even though manatee protection in these areas. A by designation of the manatee refuges. the baseline is set at no speed zones, the potential economic benefit is increased The resulting potential economic actual economic effects may very well tourism resulting from an increase in impacts are discussed below. These be insignificant for this 120-day manatee protection. To the extent that impacts cannot be quantified because emergency rule because almost all users some portion of Florida’s tourism is due the number of recreationists and anglers have been previously subject to these to the existence of the manatee in using the designated sites is not known. restrictions. Thus, the rule is expected Florida waters, the protection provided Recreationists engaging in cruising, to have only an incremental effect. As by this rule may result in an economic fishing, and waterskiing may experience discussed below, the net economic benefit to the tourism industry. We are some inconvenience by having to go impact is not expected to be significant, not able to make an estimate of this slower or use undesignated areas; but cannot be monetized given available benefit given available information. however, the extension of slow speed information. In addition, due to reductions in boat zones is not likely to result in a The economic impacts of this rule wake associated with speed zones, significant economic impact. would be due to the changes in speed property owners may experience some Currently, not enough data are zone restrictions in the manatee refuge economic benefits related to decreased available to estimate the loss in areas. These speed zone changes are expenditures for maintenance and consumer surplus that water skiers will summarized in the emergency rule. repair of shoreline stabilization experience. While some may use In addition to speed zone changes, the structures (i.e., seawalls along the substitute sites, others may forgo the rule no longer allows for the speed zone water’s edge). Speed reductions may activity. The economic impact exemption process in place under State also result in increased boater safety. associated with these changes on regulations. Florida’s Manatee Another potential benefit of slower demand for goods and services is not
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known. However, given the number of industry. It is important to note that, in attributable to the manatee refuge is recreationists potentially affected, and 2001, the total annual value of unknown, these benefits would cause a the fact that alternative sites are potentially affected fisheries was reduction in the economic impact of the available, it is not expected to amount approximately $8.3 million (2001$); this rule. to a significant economic impact. Until figure represents the economic impact b. The precedent to establish manatee recently, speed zones were in place in on commercial fisheries in these protection areas has been established this area and recreationists have counties in the unlikely event that the primarily by State and local adjusted their activities to accommodate fisheries would be entirely shut down, governments in Florida. We recognize them. It is not expected that for a 120- which is not the situation associated the important role of State and local day emergency rule there would be a with this rule. partners and continue to support and significant loss in consumer surplus encourage State and local measures to Agency Administrative Costs from this activity. improve manatee protection. We are The cost of implementing the rule has designating the Pine Island-Estero Bay Affected Commercial Charter Boat been estimated based on historical area, where previously existing State Activities expenditures by the Service for manatee designations have been eliminated, to Various types of charter boats use the refuges and sanctuaries established protect the manatee population in that waterways in the affected counties, previously. Since temporary signage is area. primarily for fishing and nature tours. still in place from the previous c. This rule will not materially affect The number of charter boats using the emergency refuge in this location, and is entitlements, grants, user fees, loan Pine Island-Estero Bay areas is currently still appropriate, we anticipate little or programs, or the rights and obligations unknown. For nature tours, the no additional costs for re-establishment of their recipients. Minimal restriction extension of slow speed zones is of a 120 manatee refuge here. The to existing human uses of the sites unlikely to cause a significant impact, Service will likely spend additional would result from this rule. No because these boats are likely traveling funds for enforcement at the newly entitlements, grants, user fees, loan at slow speeds. The extra time required designated manatee refuge for 120 days. programs, or effects on the rights and for commercial charter boats to reach These costs cannot be accurately obligations of their recipients are fishing grounds could reduce onsite estimated at this time. The costs of expected to occur. fishing time and could result in fewer enforcement may include hiring and d. This rule does not raise novel legal trips. The fishing activity is likely training new law enforcement agents or policy issues. We have previously occurring at a slow speed and will not and special agents, and the associated established other manatee protection be affected. Added travel time may training, equipment, upkeep, and areas. affect the length of a trip, which could clerical support (Service 2003b). Regulatory Flexibility Act result in fewer trips overall, creating an Finally, there are some costs for economic impact. education and outreach to inform the We certify that this rule will not have public about this new manatee refuge a significant economic effect on a Affected Commercial Fishing Activities area. substantial number of small entities as Several commercial fisheries will While the State of Florida has 12,000 defined under the Regulatory Flexibility experience some impact due to the miles of rivers and 3 million acres of Act (5 U.S.C. 601 et seq.). An initial/ regulation. To the extent that the lakes, this rule will affect approximately final Regulatory Flexibility Analysis is regulation establishes additional speed 30 river miles. The speed restrictions in not required. Accordingly, a Small zones in commercial fishing areas, this this rule will cause inconvenience due Entity Compliance Guide is not will increase the time spent on the to added travel time for recreationists required. fishing activity, affecting the efficiency and commercial charter boats and In order to determine whether the rule of commercial fishing. While limited fishermen. As a result, the rule will will have a significant economic effect data are available to address the size of impact the quality of waterborne on a substantial number of small the commercial fishing industry in the activity experiences for some entities, we utilize available information manatee refuges, county-level data recreationists, and may lead some on the industries most likely to be generally provide an upper bound recreationists to forgo the activity. This affected by the designation of the estimate of the size of the industry and rule does not prohibit recreationists manatee refuge. Currently, no potential economic impact. from participating in any activities. information is available on the specific Given available data, the impact on Alternative sites are available for all number of small entities that are the commercial fishing industry of waterborne activities that may be potentially affected. However, 27 active extending slow speed zones in the Pine affected by this rule. The distance that permit holders were exempt from the Island-Estero Bay area cannot be recreationists may have to travel to speed limits in the proposed refuge area. quantified. The designation will likely reach an undesignated area varies. The Because these zones have been in place affect commercial fishermen by way of regulation will likely impact some since 1999 and people have adjusted added travel time, which can result in portion of the charter boat and and there were no other permit holders, an economic impact. Some of the 27 commercial fishing industries in these it is reasonable to expect that the active permit holders with speed limit areas as well. The inconvenience of emergency rule will impact only the 27 exemptions are commercial fishermen. having to go somewhat slower in some permit holders in the former State speed However, because the manatee refuge areas may result in changes to zones. They are primarily commercial designation will not prohibit any commercial and recreational behavior, fishing boats and fishing guides. Both commercial fishing activity, and resulting in some regional economic would be considered small businesses. because there is a channel available for impacts. Given available information, The 27 permit holders had State boats to travel up to 25 miles per hour the net economic impact of designating exemptions from the speed restrictions in the affected areas, the Service the manatee refuge is not expected to be based on an application that stated they believes that it is unlikely that the rule significant (i.e., an annual economic would suffer at least a 25 percent will result in a significant economic impact of over $100 million). While the income loss without the permit. The impact on the commercial fishing level of economic benefits that may be usual income level for these businesses
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is not known, however a 25 percent loss resulting from changes in recreational reduced demand for goods and services of business income is significant use patterns will not be significant. The from commercial entities is likely to be regardless of the level of business economic effects on most small insignificant. income. We acknowledge that there businesses resulting from this rule are The employment characteristics of could be a significant loss of income to likely to be indirect effects related to a Lee County are shown in Table 1 for the those permit holders that rely on speed reduced demand for goods and services year 1997. We included the following to carry out their business activities, if recreationists choose to reduce their SIC (Standard Industrial Classification) however, the Service believes that the level of participation in waterborne categories, because they include 27 permit holders do not constitute a activities. Similarly, because the only businesses most likely to be directly substantial number. restrictions on commercial activity affected by the designation of a manatee This rule will add to travel time for result from the inconvenience of added refuge: recreational boating and commercial travel time, and boats can continue to • Fishing, hunting, trapping (SIC 09); activities resulting from extension of travel up to 25 mph in the navigation • Water transportation (SIC 44); existing speed zones. Because the only channels, we believe that any economic • restrictions on recreational activity effect on small commercial fishing or Miscellaneous retail (SIC 59); result from added travel time, and charter boat entities (other than the 27 • Amusement and recreation services alternative sites are available for all permit holders) will not be significant. (SIC 79); waterborne activities, we believe that Also, the indirect economic impact on • Non-classifiable establishments the economic effect on small entities small businesses that may result from (NCE).
TABLE 1.—EMPLOYMENT CHARACTERISTICS OF LEE COUNTY IN FLORIDA—1997 (INCLUDES SIC CODES 09, 44, 59, 79, AND NCE a
Select SIC Codes (Includes SIC Codes 09, 44, 59, 79, and NCE a Total mid- Mid-March March em- Total estab- Number of employment b Total estab- Number of Number of Number of County ployment b lishments (all establish- (all indus- (select SIC industries) lishments establish- establish- ments (10– establish- tries) Codes) (all indus- ments (1–4 ments (5–9 19 employ- ments (20+ tries) employees) employees) ees) employees)
Lee ...... 135,300 7,734 11,386 974 602 193 92 87 a Descriptions of the SIC codes included in this table as follows: SIC 09–Fishing, hunting, and trapping; SIC 44–Water transportation; SIC 59– Miscellaneous retail service division; SIC 79—Amusement and recreation services; and NCE–non-classifiable establishments division. b Table provides the high-end estimate whenever the Census provides a range of mid-March employment figures for select counties and SIC codes. Source: U.S. Census County Business Patterns (http://www.census.gov/epcd/cbp/view/cbpview.html).
As shown in Table 1, the majority refinement of the impact on small in manatee refuge areas, but this should (over 80 percent) of these business entities and the general public. In not translate into any significant establishments in Lee County have addition, the inconvenience of slow business reductions for the many small fewer than ten employees, with the speed zones may cause some businesses in the affected county. An largest number of establishments recreationists to change their behavior, unknown portion of the establishments employing fewer than four employees. which may cause some loss of income shown in Table 1 could be affected by Any economic impacts associated with to some small businesses. The number this rule. Because the only restrictions this rule will affect some proportion of of recreationists that will change their on recreational activity result from these small entities. behavior, and how their behavior will added travel time, and alternative sites Since the emergency designation is change, is unknown; therefore, the are available for all waterborne for a manatee refuge, which only impact on potentially affected small activities, we believe that the economic requires a reduction in speed, we do not business entities cannot be quantified. impact on small entities resulting from believe the designation would cause However, because boaters will changes in recreational use patterns will significant economic effect on a experience only minimal added travel not be significant. The economic substantial number of small businesses. time in most affected areas and the fact impacts on small business resulting Currently available information does not that speed zones were in place until allow us to quantify the number of small from this rule are likely to be indirect recently, we believe that this effects related to a reduced demand for business entities, such as charter boats designation will not cause a significant goods and services if recreationists or commercial fishing entities, that may economic impact on a substantial choose to reduce their level of incur direct economic impacts due to number of small entities. the inconvenience of added travel times participation in waterborne activities. resulting from the rule, but it is safe to Small Business Regulatory Enforcement Similarly, because the only restrictions assume that the current 27 permit Fairness Act on commercial activity result from the holders may constitute the affected This rule is not a major rule under 5 inconvenience of added travel time, and parties for a 120-day rule. The Service U.S.C. 804 (2). This rule: boats can continue to travel up to 25 does not believe the 27 permit holders a. Does not have an annual effect on miles per hour in the navigational constitute a substantial number. Prior to the economy of $100 million or more. channels, we believe that any economic establishing the Pine Island-Estero Bay As shown above, this rule may cause impact on most small commercial as a permanent manatee refuge, public some inconvenience in the form of fishing or charter boat entities will not comments on our proposed rule added travel time for recreationists and be significant. Also, the indirect published elsewhere in this issue of the commercial fishing and charter boat economic impact on small businesses Federal Register will be used for further businesses because of speed restrictions that may result from reduced demand
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for goods and services from commercial significant Federalism effects. A Statements of Energy Effects when entities is likely to be insignificant. Federalism assessment is not required. undertaking certain actions. Because b. Will not cause a major increase in This rule will not have substantial this rule is not a significant regulatory costs or prices for consumers, direct effects on the State, in the action under Executive Order 12866 and individual industries, Federal, State, or relationship between the Federal it only requires vessels to continue their local government agencies, or Government and the State, or on the operation as they have in the past, it is geographic regions. It is unlikely that distribution of power and not expected to significantly affect there are unforeseen changes in costs or responsibilities among the various energy supplies, distribution, and use. prices for consumers stemming from levels of government. We coordinated Therefore, this action is a not a this rule. The recreational charter boat with the State of Florida to the extent significant energy action and no and commercial fishing industries may possible on the development of this Statement of Energy Effects is required. be affected by lower speed limits for rule. some areas when traveling to and from References Cited Civil Justice Reform fishing grounds. However, because of A complete list of all references cited the availability of 25-miles-per-hour In accordance with Executive Order in this final rule is available upon navigational channels, this impact is 12988, the Office of the Solicitor has request from the Vero Beach Field likely to be limited. Further, only 27 determined that this rule does not Office (see ADDRESSES section). active permit holders were exempt from unduly burden the judicial system and the former State speed zones. The meets the requirements of sections 3(a) Author impact will most likely stem from only and 3(b)(2) of the Order. The primary author of this document these permit holders. Paperwork Reduction Act is Kalani Cairns (see ADDRESSES c. Does not have significant adverse section). effects on competition, employment, This regulation does not contain any investment, productivity, innovation, or collections of information that require Authority the ability of U.S.-based enterprises to approval by the Office of Management The authority to establish manatee compete with foreign-based enterprises. and Budget (OMB) under the Paperwork protection areas is provided by the As stated above, this rule may generate Reduction Act of 1995 (44 U.S.C. 3501 Endangered Species Act of 1973, as some level of inconvenience to et seq.). A Federal agency may not amended (16 U.S.C. 1531 et seq.), and recreationists and commercial users due conduct or sponsor, and a person is not the Marine Mammal Protection Act of to added travel time, but the resulting required to respond to, a collection of 1972 (16 U.S.C. 1361–1407), as economic impacts are believed to be information unless it displays a amended. minor and will not interfere with the currently valid OMB control number. List of Subjects in 50 CFR Part 17 normal operation of businesses in the National Environmental Policy Act affected counties. Added travel time to Endangered and threatened species, traverse some areas is not expected to be We have analyzed this rule in Exports, Imports, Reporting and a major factor that will impact business accordance with criteria of the National recordkeeping requirements, activity. Environmental Policy Act. This rule Transportation. does not constitute a major Federal Unfunded Mandates Reform Act action significantly affecting the quality Regulation Promulgation of the human environment. An In accordance with the Unfunded Accordingly, we amend part 17, Mandates Reform Act (2 U.S.C. 1501 et Environmental Assessment has been prepared and is available for review by subchapter B of chapter I, title 50 of the seq.): Code of Federal Regulations, as follows: a. This rule will not ‘‘significantly or written request to the Field Supervisor uniquely’’ affect small governments. A (see ADDRESSES section). PART 17—[AMENDED] Small Government Agency Plan is not Government-to-Government required. The designation of manatee Relationship With Tribes 1. The authority citation for part 17 refuges and sanctuaries, while imposing continues to read as follows: In accordance with the President’s regulations for at least a limited period, Authority: 16 U.S.C. 1361–1407; 16 U.S.C. will not impose obligations on State or memorandum of April 29, 1994, 1531–1544; 16 U.S.C. 4201–4245; Pub.L. 99– local governments that have not ‘‘Government-to-Government Relations 625, 100 Stat. 3500; unless otherwise noted. previously existed. with Native American Tribal b. This rule will not produce a Governments’’ (59 FR 22951), Executive 2. Amend § 17.108 by adding Federal mandate of $100 million or Order 13175 and the Department of the paragraph (c) (13) as follows: greater in any year. As such, it is not a Interior’s manual at 512 DM 2, we readily acknowledge our responsibility § 17.108 List of designated manatee ‘‘significant regulatory action’’ under protection areas. the Unfunded Mandates Reform Act. to communicate meaningfully with federally recognized Tribes on a * * * * * Takings Government-to-Government basis. We (c) * * * In accordance with Executive Order have evaluated possible effects on (13) The Pine Island-Estero Bay 12630, this rule does not have federally recognized Indian tribes and Manatee Refuge. (i) Watercraft are significant takings implications. A have determined that there are no required to proceed at slow speed all takings implication assessment is not effects. year in all waters of Matlacha Pass, required. The manatee protection areas south of a line that bears 90° and 270° Energy Supply, Distribution or Use are located over publicly-owned from Matlacha Pass Green Channel submerged water bottoms. On May 18, 2001, the President issued Marker ‘‘77’’ (approximate latitude Executive Order 13211 on regulations 26°40′00″ North, approximate longitude Federalism that significantly affect energy supply, 82°06′00″ West), and north of Pine In accordance with Executive Order distribution, and use. Executive Order Island Road (State Road No. 78), 13132, this rule does not have 13211 requires agencies to prepare excluding:
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(A) The portion of the marked latitude 26°39′18″ North, approximate approximate longitude 82°03′35″ West), channel otherwise designated in longitude 82°06′24″ West), then bearing excluding: paragraph (c)(13)(iii) of this section; 128° to the northernmost point (A) The portions of the marked (B) All waters of Buzzard Bay east and (approximate latitude 26°39′12″ North, channels otherwise designated in northeast of a line beginning at a point approximate longitude 82°06′17″ West) paragraphs (c)(13 )(iv) and (v) of this (approximate latitude 26°40′00″ North, of an unnamed mangrove island to the section; ° ′ ″ approximate longitude 82 05 20 West) south, then running along the eastern (B) All waters of Matlacha Pass south on the southwest shoreline of an shoreline of said island to its of Pine Island Road (State Road No. 78) unnamed mangrove island east of southeasternmost point (approximate and west of the western shoreline of Matlacha Pass Green Channel Marker ° ′ ″ West Island and a line beginning at the ° latitude 26 39 00 North, approximate ‘‘77’’ and bearing 219 to the longitude 82°06′09″ West), then bearing southernmost point (approximate latitude 26°37′25″ North, approximate northeasternmost point (approximate 138° to a point (approximate latitude ° ′ ″ longitude 82°04′17″ West) of West latitude 26 39 58 North, approximate 26°38′45″ North, approximate longitude longitude 82°05′23″ West) of another Island and bearing 149° to the 82°05′53″ West) on the northern unnamed mangrove island, then northernmost point (approximate shoreline of Bear Key, then running running along the eastern shoreline of latitude 26°37′18″ North, approximate along the northern shoreline of Bear Key said island to its southeasternmost point longitude 82°04′12″ West) of the ° ′ ″ to its easternmost point (approximate (approximate latitude 26 39 36 North, ° ′ ″ unnamed mangrove island to the south, ° ′ ″ latitude 26 38 44 North, approximate then running along the eastern shoreline approximate longitude 81 05 09 West), ° ′ ″ ° longitude 82 05 46 West), then bearing of said island to its southernmost point then bearing 115 to the westernmost ° ° ′ ″ 85 to the westernmost point (approximate latitude 26°36′55″ North, point (approximate latitude 26 39 34 ° ′ ″ North, approximate longitude 82°05′05″ (approximate latitude 26 38 45 North, approximate longitude 82°04′02″ West), ° ′ ″ West) of the unnamed mangrove island approximate longitude 82 05 32 West) then bearing 163° to the line’s terminus to the southeast, then running along the of Deer Key, then running along the at a point (approximate latitude western shoreline of said island to its northern shoreline of Deer Key to its 26°36′44″ North, approximate longitude southwesternmost point (approximate easternmost point (approximate latitude 82°03′58″ West) on the eastern shoreline latitude 26°39′22″ North, approximate 26°38′46″ North, approximate longitude of Little Pine Island; longitude 82°04′53″ West), then bearing 82°05′22″ West), then bearing 103° to (C) All waters of Matlacha Pass, 123° to the northwesternmost point the northwesternmost point Pontoon Bay, and associated (approximate latitude 26°39′21″ North, (approximate latitude 26°38′45″ North, embayments south of Pine Island Road approximate longitude 82°04′52″ West) approximate longitude 82°05′17″ West) (State Road No. 78) and east of a line of an unnamed mangrove island, then of the unnamed mangrove island to the beginning at a point (approximate running along the western shoreline of east, then running along the western latitude 26°38′12″ North, approximate said island to its southeasternmost point shoreline of said island to its longitude 82°03′46″ West) on the (approximate latitude 26°39′09″ North, southernmost point (approximate northwestern shoreline of the approximate longitude 82°04′44″ West), latitude 26°38′30″ North, approximate embayment on the east side of Matlacha then bearing 103° to the longitude 82°05′04″ West), then bearing Pass, immediately south of Pine Island northwesternmost point (approximate 106° to the westernmost point Road and then running along the eastern latitude 26°39′08″ North, approximate (approximate latitude 26°38′30″ North, shoreline of the unnamed island to the longitude 82°04′41″ West) of a approximate longitude 82°04′57″ West) south to its southeasternmost point ° ′ ″ peninsula on the unnamed mangrove of the unnamed island to the southeast, (approximate latitude 26 37 30 North, ° ′ ″ island to the southeast, then running then running along the northern and approximate longitude 82 03 22 West), ° along the southwestern shoreline of said eastern shorelines of said island to a then bearing 163 to the island to its southeasternmost point point (approximate latitude 26°38′23″ northwesternmost point of the unnamed (approximate latitude 26°38′51″ North, North, approximate longitude 82°04′51″ island to the south, then running along approximate longitude 82°04′18″ West), West) on its eastern shoreline, then the western shoreline of said island to then bearing 99° to the southernmost bearing 113° to the northernmost point its southernmost point (approximate ° ′ ″ ° ′ ″ point (approximate latitude 26 38 50 of West Island (approximate latitude latitude 26 37 15 North, approximate ° ′ ″ ° ′ ″ North, approximate longitude 82 04 03 26°38′21″ North, approximate longitude longitude 82 03 15 West), then bearing West) of the unnamed mangrove island 82°04′37″ West), then running along the 186(to the line’s terminus at a point ° ° ′ ″ to the east, then bearing 90 to the line’s western shoreline of West Island to the (approximate latitude 26 37 10 North, approximate longitude 82°03′16″ West) terminus at a point (approximate point where the line intersects Pine ° ′ ″ on the eastern shoreline of Matlacha latitude 26 38 50 North, approximate Island Road (State Road No. 78). longitude 82°03′55″ West) on the eastern Pass; shoreline of Matlacha Pass; and (ii) Watercraft are required to proceed (D) All waters of Pine Island Creek (C) All waters of Pine Island Creek at slow speed all year in all waters of south of Pine Island Road (State Road and Matlacha Pass north of Pine Island Matlacha Pass, St. James Creek, and San No. 78); and all waters of Matlacha Pass, Road (State Road No. 78) and west and Carlos Bay, south of Pine Island Road Rock Creek, and the Mud Hole, west of southwest of a line beginning at a point (State Road No. 78), north of a line 500 a line beginning at a point (approximate (approximate latitude 26°39′29″ North, feet northwest of and parallel to the latitude 26°33′52″ North, approximate approximate longitude 82°06′29″ West) main marked channel of the Intracoastal longitude 82°04′53″ West) on the on the western shoreline of Matlacha Waterway, west of a line that bears 302° western shoreline of Matlacha Pass and Pass and bearing 160° to the from Intracoastal Waterway Green bearing 22° to a point (approximate westernmost point (approximate Channel Marker ‘‘99’’ (approximate latitude 26°34′09″ North, approximate latitude 26°39′25″ North, approximate latitude 26°31′00″ North, approximate longitude 82°04′45″ West) on the longitude 82°06′28″ West) of an longitude 82°00′52″ West), and east of a southern shoreline of the unnamed unnamed island, then running along the line that bears 360° from Intracoastal island to the northeast, then running western shoreline of said island to its Waterway Red Channel Marker ‘‘10’’ along the southern and eastern southernmost point (approximate (approximate latitude 26°29′16″ North, shorelines of said island to a point
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(approximate latitude 26°34′15″ North, 26°31′57″ North, approximate longitude 1⁄4 mile south of York Island, then approximate longitude 82°04′39″ West) 82°03′38″ West) and intersects the main running parallel to and 1⁄4 mile south of on its northeastern shoreline, then marked channel of the Intracoastal the general contour of the southern bearing 24° to a point (approximate Waterway near Green Channel Marker shorelines of York Island and Pine latitude 26°34′21″ North, approximate ‘‘101’’ (approximate latitude 26°30′39″ Island to the line’s terminus at a point longitude 82°04′36″ West) on the North, approximate longitude 82°01′00″ on a line bearing 360° from Red southern shoreline of the large unnamed West). Intracoastal Waterway Channel Marker ° ′ ″ island to the north, then running along (vi) Watercraft are required to proceed ‘‘10’’ (approximate latitude 26 29 16 ° ′ ″ the southern and eastern shorelines of at slow speed from April 1 through North, approximate longitude 82 03 35 said island to a point (approximate November 15 in all canals and boat West), and west and southwest of the ° ′ ″ latitude 26 34 31 North, approximate basins of St. James City and the waters general contour of the western and ° ′ ″ longitude 82 04 29 West) on its eastern known as Long Cut and Short Cut; and southern shorelines of Pine Island and ° ° shoreline, then bearing 41 to the all waters of Pine Island Sound and San a line that bears 360 from said Red southernmost point (approximate Carlos Bay south of a line beginning at Intracoastal Waterway Channel Marker latitude 26°34′39″ North, approximate ‘‘10,’’ excluding the portion of the ° ′ ″ the southernmost tip (approximate longitude 82 04 22 West) of another latitude 26°31′28″ North, approximate marked channel otherwise designated in unnamed island to the northeast, then longitude 82°06′19″ West) of a mangrove paragraph (c)(13 )(vii) of this section. running along the eastern shoreline of peninsula on the western shore of Pine (vii) Watercraft may not exceed 25 said island to its northwesternmost Island approximately 2,200 feet north of miles per hour from April 1 through ° ′ ″ November 15 in all waters of the marked point (approximate latitude 26 35 22 Galt Island and bearing 309° to the ° ′ ″ channel that runs north of the power North, approximate longitude 82 04 07 southeasternmost point (approximate ° lines from the Cherry Estates area of St. West), then bearing 2 to the latitude 26°31′32″ North, approximate James City into Pine Island Sound, east southernmost point (approximate longitude 82°06′25″ West) of another ° ′ ″ of the western boundary of the zone latitude 26 35 32 North, approximate mangrove peninsula, then running along ° ′ ″ designated in paragraph (c)(13)(vi) of longitude 82 04 07 West) of the the southern shoreline of said peninsula this section, and west of a line unnamed island to the north, then to its southwesternmost point running along the eastern shoreline of perpendicular to the power lines that (approximate latitude 26°31′40″ North, said island to its northernmost point begins at the easternmost point approximate longitude 82°06′38″ West), (approximate latitude 26°35′51″ North, (approximate latitude 26°30′25″ North, then bearing 248° to a point approximate longitude 82°03′59″ West), approximate longitude 82°06′15″ West) (approximate latitude 26°31′40″ North, then bearing 353° to the line’s terminus of the mangrove island on the north side approximate longitude 82°06′39″ West) at a point (approximate latitude of the power lines approximately 1,800 on the eastern shoreline of an unnamed 26°36′08″ North, approximate longitude feet southwest of the Galt Island mangrove island, then running along the 82°04′01″ West) on the eastern shoreline Causeway. southern shoreline of said island to its of Little Pine Island; and (viii) Watercraft are required to southwesternmost point (approximate proceed at slow speed all year in all (E) All waters of Punta Blanca Bay ° ′ ″ latitude 26 31 39 North, approximate waters of San Carlos Bay and Punta and Punta Blanca Creek, east of the ° ′ ″ longitude 82 06 44 West), then bearing Rassa Cove east of a line that bears 352° eastern shoreline of Matlacha Pass and ° east and north of the eastern and 206 to the line’s terminus at the from the northernmost tip of the northernmost point of the MacKeever northern peninsula on Punta Rassa northern shorelines of San Carlos Bay. ° ′ ″ (iii) Watercraft may not exceed 25 Keys (approximate latitude 26 31 09 (approximate latitude 26°29′44″ North, ° ′ ″ miles per hour, all year, in all waters North, approximate longitude 82 07 09 approximate longitude 82°00′33″ West), within the main marked channel in West), east of a line beginning at said and south of a line that bears 122° from Matlacha Pass south of Green Channel northernmost point of the MacKeever Intracoastal Waterway Green Channel Marker ‘‘77’’ (approximate latitude Keys and running along and between Marker ‘‘99’’ (approximate latitude 26°40′00″ North, approximate longitude the general contour of the western 26°31′00″ North, approximate longitude 82°06′00″ West) and north of a line shorelines of said keys to a point 82°00′52″ West), including all waters of perpendicular to the channel at a point (approximate latitude 26°30′27″ North, Shell Creek and associated waterways. ° ′ ″ in the channel 1⁄4 mile northwest of the approximate longitude 82 07 08 West) (ix) Watercraft are required to proceed Pine Island Road Bridge (State Road No. on the southernmost of the MacKeever at slow speed all year in all waters of 78). Keys, then bearing 201° to a point San Carlos Bay and the Caloosahatchee (iv) Watercraft may not exceed 25 (approximate latitude 26°30′01″ North, River, including the residential canals of miles per hour, all year, in all waters approximate longitude 82°07′19″ West) Cape Coral, northeast of a line that bears within the main marked channel in approximately 150 feet due east of the 302° and 122° from Intracoastal Matlacha Pass south of a line southeasternmost point of Chino Island, Waterway Green Channel Marker ‘‘99’’ perpendicular to the channel at a point then bearing approximately 162° to Red (approximate latitude 26°31′00″ North, in the channel 1⁄4 mile southeast of the Intracoastal Waterway Channel Marker approximate longitude 82°00′52″ West), Pine Island Road Bridge (State Road No. ‘‘22’’ (approximate latitude 26°28′57″ west of a line that bears 346° from 78), and north of a line 500 feet North, approximate longitude 82°06′55″ Intracoastal Waterway Green Channel northwest of and parallel to the main West), then bearing approximately 117° Marker ‘‘93’’ (approximate latitude marked channel of the Intracoastal to the line’s terminus at Red Intracoastal 26°31′37″ North, approximate longitude Waterway (just north of Green Channel Waterway Channel Marker ‘‘20’’ 81°59′46″ West), and north and Marker ‘‘1✖). (approximate latitude 26°28′45″ North, northwest of the general contour of the (v) Watercraft may not exceed 25 approximate longitude 82°06′38″ West), northwestern shoreline of Shell Point miles per hour, all year, in all waters north of a line beginning at said Red and a line that bears approximately 74° within the marked channel in Matlacha Intracoastal Waterway Channel Marker from the northernmost tip (approximate Pass that intersects the main Matlacha ‘‘20’’ and bearing 86° to a point latitude 26°31′31″ North, approximate Pass channel near Green Channel (approximate latitude 26°28′50″ North, longitude 81°59′57″ West) of Shell Point Marker ‘‘15’’ (approximate latitude approximate longitude 82°05′48″ West) to said Intracoastal Waterway Green
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Channel Marker ‘‘93,’’ excluding the 81°52′00″ West) in Mullock Creek, and (A) All waters of Big Hickory Bay Intracoastal Waterway between markers north of a line that bears 72° from the north of a line that bears 90° from a ‘‘93’’ and ‘‘99’’ (which is already northernmost point (approximate point (approximate latitude 26°20′51″ designated as a Federal manatee latitude 26°24′22″ North, approximate North, approximate longitude 81°50′33″ protection area, requiring watercraft to longitude 81°52′34″ West) of Black West) on the eastern shoreline of Little proceed at slow speed, and is not Island, including the waters of Hickory Island, west of a line beginning impacted by this rulemaking). Buccaneer Lagoon at the southern end at a point (approximate latitude (x) Watercraft are required to proceed of Estero Island, but excluding: 26°20′48″ North, approximate longitude at slow speed from April 1 through (A) The portions of the marked 81°50′24″ West) on the southern November 15 and at not more than 25 channels otherwise designated in shoreline of Big Hickory Bay and miles per hour the remainder of the year paragraph (c)(13)(xiii) of this section; bearing 338° to a point (approximate in all waters of Hell Peckney Bay (B) The Estero River; and latitude 26°21′39″ North, approximate ° ′ ″ southeast of Hurricane Bay, northeast of (C) To waters of Big Carlos Pass east longitude 81 50 48 West) on the water the northern shorelines of Julies Island of a line beginning at a point in the northwestern end of Big Hickory and the unnamed island immediately (approximate latitude 26°24′34″ North, Bay near the eastern end of Broadway northwest of Julies Island and a line that ° ′ ″ Channel, south of a line beginning at ° approximate longitude 81 53 05 West) bears 312 from the northwesternmost on the eastern shoreline of Estero Island said point on the water in the point of Julies Island (approximate and bearing 36° to a point (approximate northwestern end of Big Hickory Bay ° ′ ″ ° latitude 26 26 37 North, approximate latitude 26°24′40″ North, approximate and bearing 242 to the northernmost ° ′ ″ ° ′ ″ longitude 81 54 57 West), northwest of longitude 81°53′00″ West) on the point (approximate latitude 26 21 39 ° ′ ″ Estero Bay, and southwest of a line southern shoreline of Coon Key, south North, approximate longitude 81 50 50 beginning at the southernmost point of a line beginning at a point West) of the unnamed mangrove island (approximate latitude 26°27′23″ North, ° ′ ″ south of Broadway Channel, and east of ° ′ ″ (approximate latitude 26 24 36 North, approximate longitude 81 55 11 West) approximate longitude 81°52′30″ West) the eastern shoreline of said mangrove of an unnamed mangrove peninsula in on the eastern shoreline of Coon Key island and a line beginning at the northwest Hell Peckney Bay and bearing ° southernmost point of said island ° and bearing 106 to a point ° ′ ″ 191 to the northernmost point (approximate latitude 26°24′39″ North, (approximate latitude 26 21 07 North, (approximate latitude 26°27′19″ North, ° ′ ″ approximate longitude 81°52′34″ West) approximate longitude 81 50 58 West) approximate longitude 81°55′11″ West) ° on the southwestern shoreline of the and bearing 167 to a point on Little of an unnamed mangrove island, then unnamed mangrove island north of Hickory Island (approximate latitude running along the northern shoreline of ° ′ ″ Black Island, and west of a line 26 21 03 North, approximate longitude said island to its southeasternmost point ° ′ ″ beginning at a point (approximate 81 50 57 West); (approximate latitude 26°27′11″ North, (B) All waters of the main marked latitude 26°24′36″ North, approximate approximate longitude 81°55′05″ West), North-South channel in northern Estero longitude 81°52′30″ West) on the then bearing 115° to a point Bay from Green Channel Marker ‘‘37’’ southern shoreline of said unnamed (approximate latitude 26°27′03″ North, (approximate latitude 26°26′02″ North, ° ′ ″ mangrove island north of Black Island ° ′ ″ approximate longitude 81 54 47 West) ° approximate longitude 81 54 29 West) on the northwest shoreline of an and bearing 192 to the northernmost to Green Channel Marker ‘‘57’’ point (approximate latitude 26°24′22″ ° ′ ″ unnamed mangrove island, then ° ′ ″ (approximate latitude 26 25 08 North, running along the northern shoreline of North, approximate longitude 81 52 34 approximate longitude 81°53′29″ West); said island to its northeasternmost point West) of Black Island. (C) All waters of the main marked (approximate latitude 26°27′02″ North, (xii) Watercraft are required to North-South channel in southern Estero approximate longitude 81°54′33″ West), proceed at slow speed from April 1 Bay south of a line beginning at a point and then bearing 37° to the line’s through November 15 and at not more (approximate latitude 26°24′36″ North, terminus at the westernmost point of an than 25 miles per hour the remainder of approximate longitude 81°52′30″ West) unnamed mangrove peninsula in the year in all waters of Estero Bay and on the southern shoreline of the eastern Hell Peckney Bay. Big Hickory Bay south of a line that unnamed mangrove island north of ° (xi) Watercraft are required to proceed bears 72 from the northernmost point Black Island and bearing 192° to the at slow speed from April 1 through (approximate latitude 26°24′22″ North, northernmost point (approximate November 15 and at not more than 25 approximate longitude 81°52′34″ West) latitude 26°24′22″ North, approximate miles per hour the remainder of the year of Black Island, east of the centerline of longitude 81°52′34″ West) of Black in all waters of Hendry Creek south of State Road No. 865 (including the Island, and north and east of Red a line that bears 270° from a point waters of the embayment on the eastern Channel Marker ‘‘62’’ (approximate (approximate latitude 26°28′40″ North, side of Black Island and the waters latitude 26°21′31″ North, approximate approximate longitude 81°52′56″ West) inshore of the mouth of Big Hickory longitude 81°51′20″ West) in Broadway on the eastern shoreline of Hendry Pass that are west of State Road No. Channel; Creek; and all waters of Estero Bay 865), and north of a line that bears 90° (D) All waters within the portion of southeast and east of Hell Peckney Bay, from a point (approximate latitude the marked channel leading to the Gulf a line that bears 340° from a point 26°20′51″ North, approximate longitude of Mexico through New Pass, west of the (approximate latitude 26°25′56″ North, 81°50′33″ West) on the eastern shoreline North-South channel and east of State approximate longitude 81°54′25″ West) of Little Hickory Island, excluding Road No. 865; all waters of the marked on the northern tip of an unnamed Spring Creek and the portions of the channel leading to Mullock Creek north mangrove peninsula on the northeastern marked channels otherwise designated of a line beginning at a point shoreline of Estero Island, and the under paragraph (c)(13)(xiii) of this (approximate latitude 26°24′36″ North, northern shoreline of Estero Island, section and the portion of Hickory Bay approximate longitude 81°52′30″ West) south of Hendry Creek and a line that designated in paragraph (c)(13)(xiii) of on the eastern shoreline of Coon Key bears 135° and 315° from Red Channel this section. and bearing 106° to a point Marker ‘‘18’’ (approximate latitude (xiii) Watercraft may not exceed 25 (approximate latitude 26°24′39″ North, 26°27′46″ North, approximate longitude miles per hour all year in: approximate longitude 81°52′34″ West)
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on the southwestern shoreline of the Channel, with said channel generally Channel, with said channel generally unnamed mangrove island north of running between Channel Marker ‘‘1’’ running between Channel Marker ‘‘1’’ Black Island, and south of Red Channel (approximate latitude 26°24′29″ North, (approximate latitude 26°22′58″ North, Marker ‘‘18’’ (approximate latitude approximate longitude 81°51′53″ West) approximate longitude 81°51′57″ West) 26°27′46″ North, approximate longitude and Channel Marker ‘‘10’’ (approximate and Channel Marker ‘‘22’’ (approximate ° ′ ″ ° ′ ″ 81 52 00 West); latitude 26 24 00 North, approximate latitude 26°23′27″ North, approximate ° ′ ″ (E) All waters of the marked channel longitude 81 51 09 West); longitude 81°50′46″ West); and leading from the Mullock Creek Channel (G) All waters of the marked channel to the Estero River, west of the mouth commonly known as Coconut Channel, (I) All waters of the marked channel of the Estero River. (This designation with said channel generally running leading from the Southern Passage only applies if a channel is marked in between Channel Marker ‘‘1’’ Channel to Spring Creek, west of the accordance with permits issued by all (approximate latitude 26°23′44″ North, mouth of Spring Creek. applicable State and Federal authorities. approximate longitude 81°50′55″ West) (xiv) Maps of the Pine Island-Estero In the absence of a properly permitted and Channel Marker ‘‘23’’ (approximate Bay Manatee Refuge follow: ° ′ ″ channel, this area is as designated under latitude 26 24 00 North, approximate BILLING CODE 4310–55–P paragraph (c)(13)(xi) of this section.); longitude 81°50′30″ West); (F) All waters of the marked channel (H) All waters of the marked channel commonly known as Alternate Route commonly known as Southern Passage
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Dated: August 2, 2004. Paul Hoffman, Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 04–17970 Filed 8–3–04; 4:22 pm] BILLING CODE 4310–55–C
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Reader Aids Federal Register Vol. 69, No. 151 Friday, August 6, 2004
CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING AUGUST
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. 33 CFR Presidential Documents 3 CFR Executive orders and proclamations 741–6000 Administrative Orders: 100...... 46994, 46996 117...... 46998, 47771 The United States Government Manual 741–6000 Presidential Determinations: Proposed Rules: Other Services No. 2004-40 of July 117...... 47045 Electronic and on-line services (voice) 741–6020 21, 2004 ...... 46399 165...... 47047 Privacy Act Compilation 741–6064 36 CFR Public Laws Update Service (numbers, dates, etc.) 741–6043 5 CFR 242...... 46999 TTY for the deaf-and-hard-of-hearing 741–6086 531...... 47353 8 CFR 37 CFR ELECTRONIC RESEARCH 274a...... 47763 Proposed Rules: World Wide Web 202...... 47396 10 CFR Full text of the daily Federal Register, CFR and other publications 38 CFR Proposed Rules: is located at: http://www.gpoaccess.gov/nara/index.html 3...... 46426 50...... 46452 Federal Register information and research tools, including Public 431...... 47486 Inspection List, indexes, and links to GPO Access are located at: 40 CFR http://www.archives.gov/federallregister/ 12 CFR 9...... 47210 E-mail 52 ...... 47365, 47366, 47773 229...... 47290 63...... 47001 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is Proposed Rules: 81...... 47366 an open e-mail service that provides subscribers with a digital 607...... 47984 122...... 47210 form of the Federal Register Table of Contents. The digital form 614...... 47984 123...... 47210 of the Federal Register Table of Contents includes HTML and 615...... 47984 124...... 47210 PDF links to the full text of each document. 620...... 47984 125...... 47210 To join or leave, go to http://listserv.access.gpo.gov and select 14 CFR 180 ...... 47005, 47013, 47022 Online mailing list archives, FEDREGTOC-L, Join or leave the list 300...... 47377 (orchange settings); then follow the instructions. 23...... 47354 Proposed Rules: 39...... 46979, 47763 51...... 47828 PENS (Public Law Electronic Notification Service) is an e-mail 71...... 47357 service that notifies subscribers of recently enacted laws. 52...... 47399 73...... 47358 63...... 47049 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html Proposed Rules: 72...... 47828 and select Join or leave the list (or change settings); then follow 39 ...... 46456, 47028, 47031, 73...... 47828 the instructions. 47035, 47038, 47040, 47041, 74...... 47828 FEDREGTOC-L and PENS are mailing lists only. We cannot 47388, 47391, 47393, 47802, 77...... 47828 respond to specific inquiries. 47804, 47806, 47808, 47811, 78...... 47828 47814 Reference questions. Send questions and comments about the 81...... 47399 96...... 47828 Federal Register system to: [email protected] 17 CFR 180...... 47051 The Federal Register staff cannot interpret specific documents or 240...... 48008 300...... 47068, 47072 regulations. 241...... 48008 242...... 48008 42 CFR FEDERAL REGISTER PAGES AND DATE, AUGUST Proposed Rules: 21 CFR 403...... 46632 46095–46398...... 2 1...... 47765 405...... 47488 46399–46978...... 3 510...... 47360, 47361 410...... 47488 46979–47352...... 4 522...... 47361, 47362 411...... 46632, 47488 47353–47762...... 5 524...... 47361, 47363 414...... 47488 47763–48128...... 6 417...... 46632, 46866 26 CFR 418...... 47488 1 ...... 46401, 46982, 47364 422...... 46866 14a...... 46401 423...... 46632 602...... 46982 424...... 47488 Proposed Rules: 484...... 47488 1 ...... 47043, 47395, 47816, 486...... 47488 47822 44 CFR 29 CFR 64...... 46435 1910...... 46986 65...... 47780, 47786 67...... 46436, 46437 32 CFR Proposed Rules: 519...... 47766 67 ...... 47830, 47831, 47832
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46 CFR 71...... 47378 114...... 47378 115...... 47378 125...... 47378 126...... 47378 167...... 47378 169...... 47378 175...... 47378 176...... 47378 47 CFR 0...... 46438 1 ...... 46438, 47788, 47790 2...... 46438 25...... 47790 73 ...... 46447, 47385, 47795 90...... 46438 95...... 46438 Proposed Rules: 2...... 46462 73 ...... 46474, 46476, 47399 90...... 46462 49 CFR 375...... 47386 Proposed Rules: 171...... 47074 172...... 47074 173...... 47074 175...... 47074 178...... 47074 571...... 47075 50 CFR 17 ...... 47212, 47330, 48115 100...... 46999 402...... 47732 635...... 47797 648...... 47798 660...... 46448 679 ...... 46451, 47025, 47026 Proposed Rules: 17...... 47834, 48102
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REMINDERS and collection; published Commercial items Air quality implementation The items in this list were 7-7-04 acquisition; comments due plans; approval and editorially compiled as an aid TRANSPORTATION by 8-9-04; published 6-8- promulgation; various to Federal Register users. DEPARTMENT 04 [FR 04-12937] States: Inclusion or exclusion from Federal Aviation Reporting contract Hawaii; comments due by this list has no legal Administration performance outside 8-9-04; published 7-9-04 United States; comments [FR 04-15527] significance. Airworthiness directives: due by 8-9-04; published Environmental statements; Empresa Brasileira de 6-8-04 [FR 04-12934] availability, etc.: Aeronautica, S.A. RULES GOING INTO Technical data conformity; (EMBRAER); published 7- Coastal nonpoint pollution written assurance; EFFECT AUGUST 6, 2004 2-04 control program— comments due by 8-9-04; Minnesota and Texas; AGRICULTURE published 6-8-04 [FR 04- Open for comments DEPARTMENT COMMENTS DUE NEXT 12936] until further notice; Agricultural Marketing WEEK Personnel, military and civilian: published 10-16-03 [FR Service DoD dependents; early 03-26087] Nectarines and peaches AGRICULTURE intervention and special Pesticides; tolerances in food, grown in— DEPARTMENT education services; animal feeds, and raw comments due by 8-9-04; agricultural commodities: California; published 7-7-04 Agricultural Marketing Service published 6-10-04 [FR 04- Fenpyroximate; comments ENVIRONMENTAL 12497] due by 8-9-04; published PROTECTION AGENCY Cotton classing, testing and standards: EDUCATION DEPARTMENT 6-10-04 [FR 04-13146] Air programs; State authority Elementary and secondary Solid waste: delegations: Classification services to growers; 2004 user fees; education: Hazardous waste; Nevada; published 6-7-04 Open for comments until Disadvantaged children; identification and listing— Air quality implementation further notice; published academic achievement Exclusions; comments due plans; approval and 5-28-04 [FR 04-12138] improvement; comments by 8-9-04; published 6- promulgation; various Kiwifruit grown in— due by 8-9-04; published 25-04 [FR 04-14460] States: 6-24-04 [FR 04-14358] California; comments due by Water pollution; effluent California; published 6-7-04 8-12-04; published 7-28- ENERGY DEPARTMENT guidelines for point source District of Columbia; 04 [FR 04-17271] Energy Efficiency and categories: published 8-6-04 Meat and poultry products AGRICULTURE Renewable Energy Office processing facilities; Open FEDERAL DEPARTMENT Consumer products; energy COMMUNICATIONS conservation program: for comments until further Cooperative State Research, notice; published 12-30-99 COMMISSION Energy conservation Education, and Extension [FR 04-12017] Practice and procedure: standards—- Service Water programs: Application fees schedule; Grants: Commercial packaged boilers; test procedures Water quality standards— published 7-7-04 Food and Agricultural and efficiency Coastal and Great Lakes Regulatory fees (2004 FY); Sciences National Needs standards; Open for recreation waters; assessment and Graduate and comments until further bacteriological criteria; collection; published 7-7- Postgraduate Fellowship notice; published 12-30- establishment; 04 Program; comments due 99 [FR 04-17730] comments due by 8-9- HOMELAND SECURITY by 8-11-04; published 7- 04; published 7-9-04 ENERGY DEPARTMENT DEPARTMENT 12-04 [FR 04-15779] [FR 04-15614] Federal Energy Regulatory Coast Guard COMMERCE DEPARTMENT Commission FEDERAL Ports and waterways safety: National Oceanic and COMMUNICATIONS Atmospheric Administration Electric rate and corporate COMMISSION Lake Eustis, FL; safety regulation filings: zone; published 7-29-04 Fishery conservation and Radio stations; table of management: Virginia Electric & Power assignments: Regattas and marine parades: Co. et al.; Open for SBIP-Fountain Powerboats Alaska; fisheries of comments until further Alabama; comments due by Kilo Run and Super Boat Exclusive Economic notice; published 10-1-03 8-9-04; published 6-22-04 Pro-Am Race; published Zone— [FR 03-24818] [FR 04-13994] Pacific halibut fisheries; Colorado; comments due by 8-4-04 ENVIRONMENTAL subsistence fishing; 8-9-04; published 6-22-04 INTERIOR DEPARTMENT PROTECTION AGENCY comments due by 8-9- [FR 04-13995] Fish and Wildlife Service 04; published 7-9-04 Air pollution; standards of New Mexico; comments due Endangered and threatened [FR 04-15548] performance for new by 8-9-04; published 6-25- stationary sources: species: COURT SERVICES AND 04 [FR 04-14484] Large municipal waste Florida manatee; protection OFFENDER SUPERVISION FEDERAL DEPOSIT combustors; emission areas— AGENCY FOR THE INSURANCE CORPORATION guidelines; comments due Additions; published 8-6- DISTRICT OF COLUMBIA Deposit insurance coverage: 04 by 8-13-04; published 7- Semi-annual agenda; Open for 14-04 [FR 04-15942] Assessments; certified Florida manatee; withdrawal comments until further Air quality implementation statements; comments of two areas designated notice; published 12-22-03 plans; approval and due by 8-9-04; published as Federal protection [FR 03-25121] promulgation; various 6-8-04 [FR 04-12922] areas; published 7-7-04 DEFENSE DEPARTMENT States; air quality planning HEALTH AND HUMAN SECURITIES AND Acquisition regulations: purposes; designation of SERVICES DEPARTMENT EXCHANGE COMMISSION Architect-engineer services areas: Food and Drug Securities: contracting; comments Ohio; comments due by 8- Administration Self-regulatory organizations; due by 8-9-04; published 9-04; published 7-8-04 Animal drugs, feeds, and fees calculation, payment 6-8-04 [FR 04-12935] [FR 04-15203] related products:
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Bovine spongiform comments due by 8-13- Boeing; comments due by format, survivability, and encephalopathy prevention 04; published 6-14-04 [FR 8-9-04; published 6-23-04 information availability in U.S. cattle; Federal 04-13221] [FR 04-14182] requirements; comments mitigation measures; SECURITIES AND Bombardier; comments due due by 8-13-04; published comments due by 8-13- EXCHANGE COMMISSION by 8-9-04; published 7-8- 6-14-04 [FR 04-13241] 04; published 7-14-04 [FR Fair and Accurate Credit 04 [FR 04-15515] TRANSPORTATION 04-15882] Transactions Act; Empresa Brasileira de DEPARTMENT Foods and cosmetics: implementation: Aeronautica S.A. Prohibited cattle materials; (EMBRAER); comments Research and Special Affiliate marketing limitations Programs Administration use; recordkeeping (Regulation S-M); due by 8-9-04; published requirements; comments comments due by 8-13- 7-8-04 [FR 04-15517] Hazardous materials: due by 8-13-04; published 04; published 7-14-04 [FR Eurocopter France; Hazardous materials 7-14-04 [FR 04-15880] 04-15875] comments due by 8-13- transportation— Reports and guidance Securities: 04; published 6-14-04 [FR documents; availability, etc.: 04-12905] Compressed oxygen, Ownership reports and other oxidizing gases, Evaluating safety of McDonnell Douglas; trading by officers, and chemical oxygen antimicrobial new animal comments due by 8-9-04; directors, and principal generators on aircraft; drugs with regard to their published 7-13-04 [FR 04- security holders; comments due by 8-13- microbiological effects on comments due by 8-9-04; 15761] bacteria of human health 04; published 5-6-04 published 6-25-04 [FR 04- Rolls-Royce Corp.; [FR 04-10277] concern; Open for 14406] comments due by 8-9-04; comments until further published 6-9-04 [FR 04- TREASURY DEPARTMENT notice; published 10-27-03 SMALL BUSINESS ADMINISTRATION 13010] Internal Revenue Service [FR 03-27113] Rolls-Royce Deutschland Disaster loan areas: Income taxes: HOMELAND SECURITY Ltd. & Co. KG; comments Maine; Open for comments DEPARTMENT due by 8-9-04; published Tax exempt bonds; solid until further notice; Coast Guard 6-9-04 [FR 04-12958] waste disposal facilities; published 2-17-04 [FR 04- comments due by 8-9-04; Anchorage regulations: 03374] Class D airspace; comments Maryland; Open for due by 8-12-04; published published 5-10-04 [FR 04- OFFICE OF UNITED STATES comments until further 6-28-04 [FR 04-14633] 10500] TRADE REPRESENTATIVE notice; published 1-14-04 Class E airspace; comments [FR 04-00749] Trade Representative, Office due by 8-9-04; published 7- of United States Drawbridge operations: 8-04 [FR 04-15555] LIST OF PUBLIC LAWS Generalized System of Connecticut; comments due Prohibited areas; comments Preferences: by 8-9-04; published 6-10- due by 8-12-04; published This is a continuing list of 04 [FR 04-13076] 2003 Annual Product 6-28-04 [FR 04-14631] public bills from the current Review, 2002 Annual TRANSPORTATION session of Congress which HOUSING AND URBAN Country Practices Review, DEVELOPMENT DEPARTMENT have become Federal laws. It and previously deferred may be used in conjunction DEPARTMENT Maritime Administration product decisions; with ‘‘PLUS’’ (Public Laws Community development block petitions disposition; Open Merchant Marine training: Update Service) on 202–741– grants: for comments until further Maritime education and 6043. This list is also Small cities and insular notice; published 7-6-04 training; comments due by available online at http:// areas programs; [FR 04-15361] 8-9-04; published 6-8-04 www.archives.gov/ comments due by 8-9-04; TRANSPORTATION [FR 04-12765] federal—register/public—laws/ published 6-10-04 [FR 04- DEPARTMENT TRANSPORTATION public—laws.html. 12954] Federal Aviation DEPARTMENT The text of laws is not LIBRARY OF CONGRESS Administration National Highway Traffic published in the Federal Copyright Office, Library of Air carrier certification and Safety Administration Register but may be ordered Congress operations: Civil monetary penalties; in ‘‘slip law’’ (individual Copyright office and Portable oxygen inflation adjustment; procedures: pamphlet) form from the concentrators devices use comments due by 8-13-04; Superintendent of Documents, Sound recordings use under onboard aircraft; published 6-14-04 [FR 04- U.S. Government Printing statutory licenses; notice comments due by 8-13- 13056] Office, Washington, DC 20402 and recordkeeping for 04; published 7-14-04 [FR Motor vehicle safety (phone, 202–512–1808). The use; comments due by 8- 04-15969] standards: text will also be made 12-04; published 7-13-04 Aircraft: Child restraint systems— available on the Internet from [FR 04-15854] Bilateral agreements; Recordkeeping GPO Access at http:// NUCLEAR REGULATORY maintenance provisions; requirements; comments www.gpoaccess.gov/plaws/ COMMISSION implementation; comments due by 8-13-04; index.html. Some laws may Environmental statements; due by 8-9-04; published published 6-14-04 [FR not yet be available. availability, etc.: 5-11-04 [FR 04-10643] 04-13052] Fort Wayne State Airports: Defect and noncompliance— H.R. 4363/P.L. 108–285 Developmental Center; Passenger facility charges; Defect and noncompliance Helping Hands for Open for comments until application and application reports and notification; Homeownership Act of 2004 further notice; published approval procedures; manufacturer notification (Aug. 2, 2004; 118 Stat. 917) 5-10-04 [FR 04-10516] comments due by 8-9-04; to dealers of safety H.R. 4759/P.L. 108–286 RAILROAD RETIREMENT published 6-9-04 [FR 04- related defects; BOARD 13050] comments due by 8-9- United States-Australia Free Railroad Unemployment Airworthiness directives: 04; published 6-23-04 Trade Agreement Insurance Act: Airbus; comments due by 8- [FR 04-14072] Implementation Act (Aug. 3, Employers’ contributions and 9-04; published 6-8-04 Event data recorders; 2004; 118 Stat. 919) contribution reports; [FR 04-12678] minimum recording, data Last List August 4, 2004
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