6–7–05 Tuesday Vol. 70 No. 108 June 7, 2005
Pages 32977–33334
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i II Federal Register / Vol. 70, No. 108 / Tuesday, June 7, 2005
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Contents Federal Register Vol. 70, No. 108
Tuesday, June 7, 2005
Agriculture Department Defense Base Closure and Realignment Commission See Animal and Plant Health Inspection Service NOTICES See Commodity Credit Corporation Meetings, 33126–33130 See Cooperative State Research, Education, and Extension Service Defense Department See Natural Resources Conservation Service NOTICES Arms sales notification, transmittal letter, etc., 33130–33134 Animal and Plant Health Inspection Service Meetings: RULES Defense Education Benefits Board of Actuaries, 33134 Plant protection and quarantine: Defense Intelligence Agency Advisory Board, 33134 Phytosanitary treatments, 33264–33326 Drug Enforcement Administration NOTICES Centers for Disease Control and Prevention Applications, hearings, determinations, etc.: NOTICES Bergman, Stuart A., M.D., 33193–33194 Grants and cooperative agreements; availability, etc.: Canon, Robert M., M.D., 33194 Breast and prostate cancer data quality and patterns of Graham, Carlin Paul, Jr., M.D., 33194–33195 care study, 33146–33154 Joy’s Ideas, 33195–33199 Incidence, Natural History, and Quality of Life of Kobrin, Kennard, M.D., 33199–33200 Diabetes in Youth, 33154–33165 Nearing, Scott H., D.D.S., 33200–33203 Meetings: Prakasam, Felix K., M.D., 33203–33206 Los Alamos Historical Document Retrieval and Rodriguez, Roger A., M.D., 33206–33207 Assessment Project Study Team, 33165 Smith, Robert A., M.D., 33207–33209 Public safety and health protection: Special Exposure Cohort at Iowa Army Ammunition Education Department Plant; employee class designation, 33165 NOTICES Postsecondary education: Children and Families Administration Federal student aid programs— NOTICES Applications, reports, etc.; award year deadline dates, Grants and cooperative agreements; availability, etc.: 33134–33140 Environmental impact mitigation on Indian lands, 33165– 33177 Energy Department See Federal Energy Regulatory Commission Coast Guard PROPOSED RULES Environmental Protection Agency Ports and waterways safety; regulated navigation areas, RULES safety zones, security zones, etc.: Air pollutants, hazardous; national emission standards: Oahu, Maui, Hawaii, and Kauai, HI, 33047–33053 Electric utility steam generating units and removal of coal- and oil-fired electric utility steam generating Commerce Department units from Section 112(c) list; correction, 33000– See International Trade Administration 33002 See National Oceanic and Atmospheric Administration Executive Office of the President See Presidential Documents Commodity Credit Corporation PROPOSED RULES Farm Credit Administration Loan and purchase programs: NOTICES Collection of State commodity assessments, 33043–33045 Meetings; Sunshine Act, 33144
Cooperative State Research, Education, and Extension Federal Aviation Administration Service RULES Airworthiness directives: NOTICES BAE Systems (Operations) Ltd., 32982–32984 Reports and guidance documents; availability, etc.: Boeing, 32984–32986, 32996–32998 Agricultural research and extension formula funds; State Bombardier, 32986–32988, 32998–33000 plans of work; guidelines, 33055–33062 Extra Flugzeugproduktions und Vertriebs GmbH, 32990– 32992 Customs and Border Protection Bureau Grob-Werke, 32988–32990 PROPOSED RULES Precise Flight, Inc., 32992–32996 Foreign trade zones: PROPOSED RULES Expanded weekly entry procedure; revisions; withdrawn, Airworthiness directives: 33046 McDonnell Douglas, 33045
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Federal Emergency Management Agency International Trade Administration RULES NOTICES Flood elevation determinations: Antidumping: Various States, 33002–33015 Softwood lumber products from— Canada, 33063–33082 Federal Energy Regulatory Commission Stainless steel plate in coils from— NOTICES Taiwan, 33083–33084 Agency information collection activities; proposals, Welded carbon steel pipe and tube from— submissions, and approvals, 33140–33142 Turkey, 33084–33088 Electric rate and corporate regulation filings, 33142–33144 Countervailing duties: Softwood lumber products from— Federal Reserve System Canada, 33088–33116 NOTICES Banks and bank holding companies: International Trade Commission Formations, acquisitions, and mergers, 33144–33145 NOTICES Import investigations: Fish and Wildlife Service Pet food treats, 33192–33193 RULES Endangered and threatened species: Justice Department Critical habitat designations— See Drug Enforcement Administration Munz’s onion, 33015–33033 Labor Department Food and Drug Administration NOTICES NOTICES Organization, functions, and authority delegations: Agency information collection activities; proposals, Ombudsman for Energy Employees Occupational Illness submissions, and approvals, 33177–33182 Compensation Program Act, 33328–33329 Reports and guidance documents; availability, etc.: Bar Code Labor Requirements-Questions and Answers; Land Management Bureau industry guidance, 33182–33183 NOTICES Alaska Native claims selection: General Services Administration Golovin Native Corp., 33189 NOTICES Realty actions; sales, leases, etc.: Environmental statements; notice of intent: Alaska, 33189–33190 Washington, D.C.; St. Elizabeth’s West Campus Colorado, 33190 redevelopment, 33145–33146 National Institutes of Health Health and Human Services Department NOTICES See Centers for Disease Control and Prevention Inventions, Government-owned; availability for licensing, See Children and Families Administration 33183–33185 See Food and Drug Administration Meetings: See Health Resources and Services Administration National Heart, Lung, and Blood Institute, 33185 See National Institutes of Health National Institute of Allergy and Infectious Diseases, 33186 Health Resources and Services Administration National Institute of Dental and Craniofacial Research, PROPOSED RULES 33185–33186 Grant appeal process; simplification, 33053–33054 National Institute of Neurological Disorders and Stroke, 33185 Homeland Security Department National Library of Medicine, 33186–33187 See Coast Guard Scientific Review Center, 33187–33188 See Customs and Border Protection Bureau See Federal Emergency Management Agency National Oceanic and Atmospheric Administration See Transportation Security Administration RULES Fishery conservation and management: Housing and Urban Development Department Atlantic highly migratory species— NOTICES Atlantic bluefin tuna, 33033–33042 Agency information collection activities; proposals, Caribbean, Gulf, and South Atlantic fisheries— submissions, and approvals, 33188–33189 Gulf of Mexico grouper, 33033 Northeastern United States fisheries— Interior Department Summer flounder, 33042 See Fish and Wildlife Service NOTICES See Land Management Bureau Endangered and threatened species: See National Park Service Findings on petitions, etc.— See Surface Mining Reclamation and Enforcement Office Pacific herring; Cherry Point stock, 33116–33122 Marine mammals: Internal Revenue Service Incidental taking; authorization letters, etc.— NOTICES Eglin Air Force Base, FL; Naval Explosive Ordnance Meetings: Disposal School (NEODS) Training Operations; Taxpayer Advocacy Panels, 33256–33257 cetaceans, 33122–33126
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National Park Service Transportation Department NOTICES See Federal Aviation Administration National Register of Historic Places: NOTICES Pending nominations, 33190–33191 Aviation proceedings: Agreements filed; weekly receipts, 33253–33254 Natural Resources Conservation Service Certificates of public convenience and necessity and NOTICES foreign air carrier permits; weekly applications, Environmental statements; notice of intent: 33254 South Kona Watershed, HI, 33062–33063 Nuclear Regulatory Commission Transportation Security Administration RULES NOTICES Spent nuclear fuel and high-level radioactive waste; Agency information collection activities; proposals, independent storage; licensing requirements: submissions, and approvals, 33188 Approved spent fuel storage casks; list, 32977–32982 NOTICES Treasury Department Environmental statements; availability, etc.: See Internal Revenue Service PPD, Inc., 33209–33210 See United States Mint Meetings; Sunshine Act, 33210 PROPOSED RULES Operating licenses, amendments; no significant hazards Foreign trade zones: considerations; biweekly notices, 33210–33225 Expanded weekly entry procedure; revisions; withdrawn, 33046 Presidential Documents NOTICES PROCLAMATIONS Agency information collection activities; proposals, Special observances: submissions, and approvals, 33254–33256 National Child’s Day (Proc. 7909), 33331–33334 Securities and Exchange Commission United States Mint NOTICES NOTICES Self-regulatory organizations; proposed rule changes: Agency information collection activities; proposals, American Stock Exchange LLC, 33226–33228 submissions, and approvals, 33257 Chicago Board Options Exchange, Inc., 33228–33230 Chicago Stock Exchange, Inc., 33230–33232 Veterans Affairs Department International Securities Exchange, Inc., 33232–33233 NOTICES National Association of Securities Dealers, Inc., 33234– Agency information collection activities; proposals, 33238 submissions, and approvals, 33257–33261 National Stock Exchange, 33238–33243 Pacific Exchange, Inc., 33244–33250 Philadelphia Stock Exchange, Inc., 33250–33252 Applications, hearings, determinations, etc.: Separate Parts In This Issue Exelon Corp., 33225–33226 Part II Small Business Administration Agriculture Department, Animal and Plant Health NOTICES Inspection Service, 33264–33326 Meetings: District and regional advisory councils— Part III Wisconsin, 33252 Regulatory Fairness Boards— Labor Department, 33328–33329 Region III; hearing, 33252–33253 Part IV State Department Presidential Documents, 33331–33334 NOTICES Committees; establishment, renewal, termination, etc.: Enterprise for the Americas Board, 33253 Meetings: Reader Aids International Telecommunication Advisory Committee, Consult the Reader Aids section at the end of this issue for 33253 phone numbers, online resources, finding aids, reminders, Shipping Coordinating Committee, 33253 and notice of recently enacted public laws. To subscribe to the Federal Register Table of Contents Surface Mining Reclamation and Enforcement Office LISTSERV electronic mailing list, go to http:// NOTICES listserv.access.gpo.gov and select Online mailing list Agency information collection activities; proposals, archives, FEDREGTOC-L, Join or leave the list (or change submissions, and approvals, 33191–33192 settings); then follow the instructions.
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CFR PARTS AFFECTED IN THIS ISSUE
A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.
3 CFR Proclamations: 7909...... 33333 7 CFR 300...... 33264 301...... 33264 305...... 33264 318...... 33264 319...... 33264 Proposed Rules: 1405...... 33043 10 CFR 72...... 32977 14 CFR 39 (8 documents) ...... 32982, 32984, 32986, 32988, 32990, 32992, 32996, 32998 Proposed Rules: 39...... 33045 19 CFR Proposed Rules: 146...... 33046 33 CFR Proposed Rules: 165...... 33047 40 CFR 63...... 33000 42 CFR Proposed Rules: 50...... 33053 44 CFR 65...... 33002 50 CFR 17...... 33015 622...... 33033 635 (2 documents) ...... 33033, 33039 648...... 33042
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Rules and Regulations Federal Register Vol. 70, No. 108
Tuesday, June 7, 2005
This section of the FEDERAL REGISTER storage of spent nuclear fuel at civilian application. The NRC staff performed a contains regulatory documents having general nuclear reactor power sites, with the detailed safety evaluation of the applicability and legal effect, most of which objective of establishing one or more proposed CoC amendment request and are keyed to and codified in the Code of technologies that the [Nuclear found that an acceptable safety margin Federal Regulations, which is published under Regulatory] Commission may, by rule, is maintained. In addition, the NRC staff 50 titles pursuant to 44 U.S.C. 1510. approve for use at the sites of civilian has determined that there continues to The Code of Federal Regulations is sold by nuclear power reactors without, to the be reasonable assurance that public the Superintendent of Documents. Prices of maximum extent practicable, the need health and safety and the environment new books are listed in the first FEDERAL for additional site-specific approvals by will be adequately protected. REGISTER issue of each week. the Commission.’’ Section 133 of the This rule revises the HI–STORM 100 NWPA states, in part, ‘‘[t]he cask design listing in § 72.214 by adding Commission shall, by rule, establish Amendment No. 2 to CoC No. 1014. The NUCLEAR REGULATORY procedures for the licensing of any amendment consists of changes to the COMMISSION technology approved by the Technical Specifications (TS) as Commission under section 218(a) for described above. The particular TS 10 CFR Part 72 use at the site of any civilian nuclear which are changed are identified in the RIN 3150–AH64 power reactor.’’ NRC staff’s SER for Amendment No. 2. To implement this mandate, the NRC The NRC published a direct final rule List of Approved Spent Fuel Storage approved dry storage of spent nuclear (70 FR 9504; February 28, 2005) and the Casks: HI–STORM 100 Revision fuel in NRC-approved casks under a companion proposed rule (70 FR 9550) in the Federal Register to revise the AGENCY: Nuclear Regulatory general license, publishing a final rule Commission. in 10 CFR part 72 entitled, ‘‘General Holtec International HI–STORM 100 License for Storage of Spent Fuel at cask system listing in 10 CFR 72.214 to ACTION: Final rule. Power Reactor Sites’’ (55 FR 29181; July include Amendment No. 2 to the CoC. SUMMARY: The Nuclear Regulatory 18, 1990). This rule also established a The comment period ended on March Commission (NRC) is amending its new subpart L within 10 CFR part 72 30, 2005. One comment letter was regulations to revise the Holtec entitled, ‘‘Approval of Spent Fuel received on the proposed rule. The International HI–STORM 100 cask Storage Casks’’ containing procedures comments were considered to be system listing within the ‘‘List of and criteria for obtaining NRC approval significant and adverse and warranted approved spent fuel storage casks’’ to of dry storage cask designs. The NRC withdrawal of the direct final rule. A include Amendment No. 2 to Certificate subsequently issued a final rule on May notice of withdrawal was published in of Compliance (CoC) Number 1014. 1, 2000 (65 FR 25241), that approved the the Federal Register on May 12, 2005; Amendment No. 2 modifies the cask Holtec International HI–STORM 100 70 FR 24936. Additionally, the NRC design to include changes to materials cask design and added it to the list of staff amended the TS and the SER to used in construction, changes to the NRC-approved cask designs in § 72.214 clarify the leak rate test requirement, as types of fuel that can be loaded, changes as CoC No. 1014. discussed in the response to Comment 4. to shielding and confinement Discussion methodologies and assumptions, The NRC finds that the amended HI– revisions to various temperature limits, On March 4, 2002, and as STORM 100 cask system, as designed changes in allowable fuel enrichments, supplemented on October 31, 2002; and when fabricated and used in and other changes to reflect current NRC August 6 and November 14, 2003; accordance with the conditions staff guidance and use of industry February 20, April 23, July 22, August specified in its CoC, meets the codes, under a general license. 13, October 14, and December 3, 2004, requirements of part 72. Thus, use of the the certificate holder, Holtec amended Holtec International HI– DATES: Effective Date: This final rule is International, submitted an application STORM 100 cask system, as approved effective June 7, 2005. to the NRC to amend CoC No. 1014 to by the NRC, will provide adequate FOR FURTHER INFORMATION CONTACT: modify the cask design to include protection of public health and safety Jayne M. McCausland, telephone (301) changes to materials used in and the environment. With this final 415–6219, e-mail [email protected], of the construction, changes to the types of rule, the NRC is approving the use of the Office of Nuclear Material Safety and fuel that can be loaded, changes to Holtec International HI–STORM 100 Safeguards, U.S. Nuclear Regulatory shielding and confinement cask system under the general license in Commission, Washington, DC 20555– methodologies and assumptions, 10 CFR part 72, subpart K, by holders 0001. revisions to various temperature limits, of power reactor operating licenses SUPPLEMENTARY INFORMATION: changes in allowable fuel enrichments, under 10 CFR part 50. Simultaneously, and other changes to reflect current staff the NRC is issuing a final SER and CoC Background guidance and use of industry codes, that will be effective on June 7, 2005. Section 218(a) of the Nuclear Waste under a general license. The specific Single copies of the CoC and SER are Policy Act of 1982, as amended changes requested in Amendment No. 2 available for public inspection and/or (NWPA), requires that ‘‘[t]he Secretary to CoC No. 1014 are listed in the Safety copying for a fee at the NRC Public [of Energy] shall establish a Evaluation Report (SER). No other Document Room, 11555 Rockville Pike, demonstration program, in cooperation changes to the HI–STORM–100 cask Rockville, MD. Copies of the public with the private sector, for the dry system design were requested in this comments are available for review in the
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NRC Public Document Room, 11555 LAR 1014 to incorporate a permissible of ‘‘damaged fuel’’ versus ‘‘fuel debris’’ Rockville Pike, Rockville, MD. spent fuel cladding temperature limit of including a bounding description of 4000 °C.’’ ‘‘damaged fuel’’ and ‘‘fuel debris’’ Summary of Public Comments on the Response: Amendments to a CoC are should be included. Damaged fuel could Proposed Rule reviewed under the same criteria as are range from a rod that marginally failed The NRC received one comment letter used for the approval of the original CoC a leak test to a fuel fragment. Small, on the proposed rule from the New (10 CFR 72.246). The applicant for an unclad bits of fuel would need to be England Coalition. A copy of the amendment must show that any changes properly containerized and those comment letter is available for review in meet all applicable requirements to containers certified to some degree. the NRC Public Document Room, 11555 store spent fuel safely in the cask. Response: The definitions of Rockville Pike, Rockville, MD. As stated However, the applicant is not required ‘‘damaged fuel’’ and ‘‘fuel debris’’ are in the proposed rule (70 FR 9550; to show that a change, which might be given in section 1.0, Definitions, of February 28, 2005), the NRC considered viewed as reducing engineering Appendix B to the TS attached to the this amendment to be a conservatism, is offset by some CoC for Certificate Number 1014, noncontroversial and routine action. increased gain or benefit elsewhere as Amendment No. 2. The definitions Therefore, the NRC published a direct long as the change meets all regulatory contain commonly used terminology to final rule (70 FR 9504; February 28, requirements for safety. The commenter distinguish between these two classes of 2005) concurrent with the proposed rule acknowledges that all the changes contents. The definitions are repeated (70 FR 9550; February 28, 2005). The appear to be within the bounds of here: NRC indicated that if it received a regulations. The NRC staff specifically ‘‘DAMAGED FUEL ASSEMBLIES are ‘‘significant adverse comment’’ on the examined the effects of incorporating fuel assemblies with known or proposed rule, the NRC would publish the storage of high burnup fuel and suspected cladding defects, as a document withdrawing the direct final incorporating a permissible single spent determined by a review of records, rule and subsequently publish a final fuel cladding temperature limit of greater than pinhole leaks or hairline rule that addressed comments made on 400 °C. It should be noted that the cracks, empty fuel rod locations that are the proposed rule. The NRC believes commenter made an error in stating that not filled with dummy fuel rods, or some of the issues raised by the Amendment No. 2 raised ‘‘permissible those that cannot be handled by normal commenter were ‘‘significant adverse spent fuel cladding temperature limit’’ means. Fuel assemblies that cannot be comments.’’ Therefore, the NRC to 4000 °C. The staff has reviewed the handled by normal means due to fuel published a notice withdrawing the SER of Amendment No. 2 and found 5 cladding damage are considered FUEL direct final rule (70 FR 24936; May 12, references to the fuel temperature of DEBRIS.’’ 2005). This subsequent final rule 400 °C on pages 4–2, 4–6, 8–1(2), and ‘‘FUEL DEBRIS is ruptured fuel rods, addresses the issues raised by the 8–2. There was no mention of a 4000 °C severed rods, loose fuel pellets or fuel commenter that were within the scope temperature in the SER. The 570 °C assemblies with known or suspected of the proposed rule. temperature was mentioned a number of defects which cannot be handled by normal means due to fuel cladding Comments on Amendment 2 to the times. Consequently, the potential for a zirconium cladding exothermic reaction damage.’’ Holtec International HI–STORM 100 ° ‘‘Damaged fuel assemblies’’ and ‘‘fuel Cask System would not be an issue at 400 C. Comment 2: The commenter referred debris’’ must be enclosed in a specially The commenter provided specific to an NRC staff statement that no review designed ‘‘damaged fuel container’’ comments on the draft CoC, the NRC of the existing CoC was repeated. The before being loaded into the cask. staff’s preliminary SER, the TS, and the commenter believes this may be an error Comment 4: The commenter referred applicant’s Topical Safety Analysis if it also means that no review was to a section in the SER that stated that Report. As a result of public comments, undertaken to ascertain if the changes the change requested in this amendment both TS 3.1.1 and SER section 8.4 were affect conditions, assumptions, and affected the inspection and leak testing amended to clarify the leak rate test other inputs in determining compliance of the final closure welds. The applicant requirement. Other sections of the SER in the original application. applied the criteria described in ISG–15, were changed to conform with the Response: The NRC staff did not state ‘‘Materials Evaluation,’’ and ISG–18, clarification of SER section 8.4. A that no review of the existing CoC was ‘‘The Design/Qualification of Final review of the comments and the NRC repeated. The SER states that the staff’s Closure Welds on Austenitic Stainless staff’s responses follows: evaluation focused mainly on Steel Canisters as Confinement Comment 1: The commenter stated modifications requested in the Boundary for Spent Fuel Storage and that most changes in the CoC amendment and did not reassess Containment Boundary for Spent Fuel amendment ‘‘appear to diminish previously approved portions of the Transportation,’’ in the amendment engineering conservation and increase CoC, TS, and the Final Safety Analysis request. The commenter further stated impact or risk.’’ The commenter noted Report (FSAR), or those areas of the that ISG–15 provides an NRC-approved that ‘‘while the changes appear to be FSAR modified by Holtec as allowed by alternative to the ASME Code for the within the bounds of regulation, it is not 10 CFR 72.48. inspection of final closure welds for apparent that NRC or the CoC holder Comment 3: The commenter referred austenitic materials. The inspection have demonstrated that diminished to a specific section in the SER which techniques described by ISG–15 will engineering conservation and increased would allow ‘‘storage of damaged fuel in detect any such flaws which could lead impact or risk are offset by gains and the multipurpose canister (MPC)-32 and to a failure. In addition, ISG–18 states benefits elsewhere.’’ The commenter damaged fuel and damaged fuel debris that when the closure welds of provided as examples of changes which in the MPC–32F. Additionally, include austenitic stainless steel canisters are diminish engineering conservation appropriate values for soluble boron for executed in accordance with ISG–15, ‘‘incorporating the storage of high MPC–32 and MPC–32F based on fuel the staff concludes that no undetected burnup fuel and raising maximum assembly array/class, intact versus flaws of significant size will exist. permissible fuel cladding temperatures damaged fuel, and initial enrichment.’’ Therefore, the NRC staff has reasonable per Proposed Change Number 15a in The commenter stated that a definition assurance that the inspection
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demonstrates no credible leakage would performed at an elevated pressure that under a margin of error of 0.06.’’ The occur from the final closure welds of is above the design pressure of the commenter further stated that the exact austenitic stainless steel canisters, and vessel. Holtec may use either water or interior of the structure, the boron that ISG–18 removes the need for a helium for this pressure test. loading of the Metamic neutron helium leak test of the final closure Due to the large size of the structural absorber, the exact position of the fuel welds in accordance with ANSI N14.5. lid weld (approximately 3/4-inch thick (damaged or otherwise) plus other The commenter further stated that, in or greater), it is extremely unlikely that factors, must be within a margin of the past, inspection systems have not a weld flaw could exist that provided a error, potentially, of 0.06. The been considered adequate for critical leak path completely through the weld, commenter stated it was difficult to welds. A proof-system is typically and that went undetected after multiple credit that the fuel assemblies are required due to the consequence of PT exams and the Code-required packed so tight that they can be packed container leakage for failure. The pressure test. Because of the redundant to an MF of 0.94. commenter believed it should be noted nature of these independent tests, the Response: A dry-storage cask design that helium is used as a leak test agent weld thickness, and staff and industry which maintains the effective due to its small size and inert experience with heavy section welds, it multiplication factor (keff) ≤ 0.95 at a 95- properties. The commenter did not was deemed unnecessary to perform a percent confidence level when credit that the inspection system helium leak test on the structural lid combined with the additional bounding referred to, or any inspection system weld. assumptions described below is that could be used expeditiously, can After other loading operations are considered by the NRC to provide detect flaws at the molecular level. The completed, the cask is filled with reasonable assurance that the cask and commenter believed it is possible by helium and the helium pressure is its contents will remain sufficiently this revised process to approve welds adjusted to the design pressure. Then subcritical under all credible normal, that may have ordinarily failed a helium the vent and drain valves (used for off-normal, and accident conditions. leak test and stated this change could filling the vessel with helium) are This acceptance criterion is specified in constitute a significant reduction in the closed, and the valve access port is section 6.0, subsection IV, of the gas-tight certification of the containers. covered with a welded-on closure plate. ‘‘Standard Review Plan for Dry Cask Response: Dry storage casks use These final closure welds are both Storage Systems,’’ NUREG–1536. redundant means to achieve adequate helium leak tested and penetrant tested. In addition to the administrative structural and confinement capability. After successful completion of these margin described above (i.e., when the required tests, the closure ring, which First, the final closures incorporate a final adjusted value of keff is at least 0.05 double barrier. This is accomplished by provides a second confinement barrier, below the critical value of 1.0), the the use of two separate welded barriers. is welded on over the structural lid, applicant applied the following For the Holtec design, this is weld, and associated access port welds. bounding assumptions in its criticality accomplished by way of the structural This weld is penetrant tested. analysis: lid and a separate closure ring that is As a result of the comment regarding (1) No credit was taken for fuel welded over the structural lid. If, in the leak testing of the final closure welds, burnup; unlikely event one of these welded NRC staff reviewed the TS and SER and (2) The worst hypothetical barriers should have a leak, the other clarified the helium leak rate test combination of tolerances (i.e., those would be capable of retaining all the requirements within these documents. value limits which maximized the helium inside the storage canister. TS 3.1.1.C was modified to reflect the multiplication factor) was assumed for With respect to testing of the various requirement to helium leak rate test the the basket structure and fuel assembly closure welds, a number of independent vent and drain port cover plate welds. dimensions; tests are employed. During the welding Section 8.4 of the SER was added to (3) Reduced credit from the minimum of the structural lid, Interim Staff clarify guidance, specifically that the acceptable boron content in the poison Guidance (ISG)-15 specifies that a multi- vent and drain port cover plate welds plates (25-percent reduction for Boral pass liquid penetrant test (PT) be shall be helium leak rate tested but that plates and 10-percent reduction for the employed. This means that a PT exam it is not necessary to helium leak rate Metamic plates) was applied; is performed several times during the test the lid-to-shell weld. Other sections (4) Fuel related burnable neutron execution of the weld. The NRC staff of the SER were revised accordingly to absorbers were neglected; guidance calls for the initial weld pass reflect this clarification. (5) Each fuel assembly was placed in (called root pass) to be examined. Then, The NRC staff finds that with the its most reactive position within its depending upon the results of a fracture double confinement barriers and the respective basket fuel cell; mechanics evaluation or net-section multiple tests employed to verify their (6) Neutron absorption in minor stress calculation, additional PTs are quality and integrity, a high level of structural members and optional heat performed each time a specified assurance exists regarding the leak- conducting elements were neglected; thickness of weld metal is deposited. tightness of the confinement boundary. and Finally, the last weld pass (cover pass) Comment 5: The commenter referred (7) The flooding water (fresh or is examined by PT. If any flaws are to section 2.3.5 of the SER, ‘‘Criticality.’’ borated) was assumed to be at its detected by any of these tests, the The design criterion for criticality safety optimum density to maximize keff. indicated flaw is removed by grinding. is that the effective neutron These bounding assumptions are Then the affected area is rewelded and multiplication factor, including consistent with NRC’s guidance and retested. Any such rework is governed statistical biases and uncertainties, does provide an additional margin of safety by the provisions of the American not exceed 0.95 under normal, off- that encompasses any margin of error in Society of Mechanical Engineers normal, and accident conditions. The the nominal parameter values of the (ASME) Code. commenter stated that 0.95 is pretty design and contents. Upon acceptance of the multiple PT close to <= 1 multiplication, or Comment 6: The commenter did not exams, the structural lid weld is criticality. The commenter was believe that the NRC staff demonstrated pressure tested in accordance with the concerned that ‘‘after pencil-whipping a consideration of a reasonably assumed ASME Code. This pressure test is design someone is willing to work error bandwidth within each of the
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seven coefficients (inputs) to the paragraph of that section to which the for an amendment must show that any equation listed in Equation 2.1.9.3. The commenter referred is as follows: changes meet all applicable commenter stated that the cumulative ‘‘The amendment request addresses a requirements to store spent fuel safely error potential is large enough to have slight increase of 10% in the off-normal in the cask. NRC’s review process is ‘‘Biblical’’ overtones, as in ‘‘77 times 7.’’ internal design pressure, increases in documented in NUREG–1536 entitled The commenter also stated that one the allowable temperature of the ‘‘Standard Review Plan for Dry Cask would like to assume that parallel structural materials and the creation of Storage Systems.’’ NRC regulations calculations were performed using an eighth type MPC unit: The MPC–32F. permit applicants to demonstrate traditional methods as a ‘‘sanity check.’’ No changes were made to the drawings compliance by various means, including The commenter believed that with of the various components that have certification through testing, analyses, unique source-term analyses and curve- been previously provided in Section 1.5 comparison to similar approved designs, fitting analyses designed by the of the FSAR since no material or design or combinations of these methods. applicant to drive the coefficients, dimensions were revised.’’ Referencing previously reviewed verification and validation information On page S–2 of the SER, the following information that has not changed is regarding this burnup model is essential is stated in Item 16: ‘‘Increase off- acceptable. The SER documents the and should be included or referenced in normal design pressure from 100 psig to NRC’s review process and conclusions the SER. 110 psig and increase the normal regarding the cask design’s ability to Response: The comment expresses a temperature limit for the overpack lid comply with part 72. Furthermore, this concern regarding error in the top plate from 350-degrees F to 450- amendment will not extend the CoC applicant’s new methodology and the degrees F.’’ This reflects the change period. Therefore, it does not change the need for confirmatory analysis to verify incorporated into the Amendment 2 conclusion reached previously and validate the burnup equation and documents. regarding the safety of the cask with Section 3.1.2.1 of the SER, ‘‘Criteria its coefficients. The existing sections respect to time. for Multi-Purpose Dry Storage 5.0, 5.2.3, and 5.2.4 of the SER address Comment 9: The commenter is Canisters,’’ contains the following this concern and document that the concerned that the NRC review does not statements: ‘‘The proposed amendment NRC staff reviewed and explicitly extend beyond a review of the proposed revises the MPC off-normal internal considered the applicant’s methodology, theoretical model. The commenter also pressure from 100 psig to 110 psig as stated that the application spoke very the burnup equation, and its noted in Table 2.2.1 of the FSAR * * *. little about QA/QC with respect to cask/ coefficients, which include adjustments No physical changes were necessary to that account for error and uncertainty. canister materials and performance. accommodate the revised pressure Response: The NRC conducts planned As part of its review, the staff performed ***.’’ and reactive inspections of cask vendors confirmatory analyses, using Computer The technical document is quite clear and their major fabricators on a Code SAS–2H, to test the validity of the in the fact that the increase of 10 psig burnup equation and its associated (an increase of 10 percent) has no continuing basis. The results of these coefficients. These calculations impact on the physical dimensions or inspections, including any technical produced decay heats that were in design of the MPC pressure vessel. The concerns of a licensing nature, are general agreement with the burnups and reason for this is that the physical shared internally with the NRC’s Spent associated thermal values applied in the dimensions of the MPC are not governed Fuel Project Office staff, and are burnup equation. The NRC staff did not by the off-normal internal pressure. documented in publicly available identify any significant errors in the Comment 8: The commenter stated inspection reports. Quality assurance new methodology, the burnup equation, that there is an element of vagueness in program implementation inspections and its coefficients. The staff believes the SER that offers little guidance to a were performed at the Holtec corporate that its review of the new methodology, reader seeking to confirm the degree of office in September 2004 (reference including confirmatory calculations, rigor to which the amendment ML043080505) and its fabricator, U.S. provides reasonable assurance that the application was exposed. The NRC Tool & Die, in October 2004 (reference shielding and thermal design is safe and refers to many staff reviews of the ML043100408). No significant adverse satisfies the regulations at 10 CFR part licensee’s practices, but without findings with respect to quality 72. specifics. In some cases, it is inferred assurance/control issues were identified Comment 7: The commenter stated that the staff verified calculations; in during those inspections. that NRC shot the SER through with others, that approval was cursory Summary of Final Revisions subjective language. The example given because of similarities with other cask was ‘‘The amendment request addresses models. It is difficult to say that early Section 72.214 List of Approved Spent a slight increase of 10% in the off- cask designs will be safe in the long Fuel Storage Casks normal internal design.’’ The term. One has to be careful in approving Certificate No. 1014 is revised by commenter objected to using the word a new design that is ‘‘similar’’ to the old adding the effective date of Amendment ‘‘slight’’ and stated that describing a one when the old one has not yet met Number 2. 10% increase as slight is amateurish in the test of time. regulatory language or in any technical Response: NRC disagrees with the Good Cause To Dispense With Deferred document and gives the appearance of commenter that this amendment Effective Date Requirement collusion, as if to help sell to the application was not exposed to a The NRC finds that good cause exists audience any changes that are less sufficient degree of rigor. This to waive the 30-day deferred effective conservative. The commenter amendment request was under active date provisions of the Administrative questioned if a 10% reduction in the review by the NRC staff for over 2.75 Procedure Act (5 U.S.C. 553(d)). The allowable pressure would be described years. As discussed in the response to primary purpose of the delayed effective as huge. Comment #1, amendments to a CoC are date requirement is to give affected Response: Section 3.0 of the SER reviewed under the same criteria as are persons, e.g., licensees, a reasonable provides an overview of the structural used for the approval of the original CoC time to prepare to comply with or take evaluation. The full text of the third (10 CFR 72.246). Also, the application other action with respect to the rule. In
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this case, the rule does not require any administrative procedure laws but does NRC. Any nuclear power reactor action to be taken by licensees. The not confer regulatory authority on the licensee can use NRC-approved cask regulation allows, but does not require, State. designs to store spent nuclear fuel if it use of the amended Holtec International notifies the NRC in advance, spent fuel Finding of No Significant HI–STORM 100 cask system for the is stored under the conditions specified Environmental Impact: Availability storage of spent nuclear fuel. The Holtec in the cask’s CoC, and the conditions of International HI–STORM 100 cask Under the National Environmental the general license are met. A list of system, amended to include changes to Policy Act of 1969, as amended, and the NRC-approved cask designs is contained materials used in construction, changes NRC regulations in subpart A of 10 CFR in § 72.214. On May 1, 2000 (65 FR to the types of fuel that can be loaded, part 51, the NRC has determined that 25241), the NRC issued an amendment changes to shielding and confinement this rule is not a major Federal action to part 72 that approved the HI-STORM methodologies and assumptions, significantly affecting the quality of the 100 cask design by adding it to the list revisions to various temperature limits, human environment and, therefore, an of NRC-approved cask designs in changes in allowable fuel enrichments, environmental impact statement is not § 72.214. On March 4, 2002, and as and other changes to reflect current staff required. This final rule amends the supplemented on October 31, 2002; guidance and use of industry codes, CoC for the HI-STORM 100 cask system August 6 and November 14, 2003; meets the requirements of 10 CFR part within the list of approved spent fuel February 20, April 23, July 22, August 72, and is ready to be used. A number storage casks that power reactor 13, October 14, and December 3, 2004, of utilities have an operational need to licensees can use to store spent fuel at the certificate holder, Holtec load the casks to preserve full core off- reactor sites under a general license. International, submitted an application load capability at their sites. The The amendment modifies the present to the NRC to amend CoC No. 1014 to utilities are preparing for refueling cask system design to include changes modify the present cask system design outages in Fall of 2005 and need to load to materials used in construction, to include changes to materials used in fuel into the storage casks in advance of changes to the types of fuel that can be construction, changes to the types of the outages. The amended Holtec loaded, changes to shielding and fuel that can be loaded, changes to International HI–STORM cask system, confinement methodologies and shielding and confinement as approved by the NRC, will continue assumptions, revisions to various methodologies and assumptions, to provide adequate protection of public temperature limits, changes in allowable revisions to various temperature limits, health and safety and the environment. fuel enrichments, and other changes to changes in allowable fuel enrichments, and other changes to reflect current staff Voluntary Consensus Standards reflect current NRC staff guidance and use of industry codes, under a general guidance and use of industry codes, The National Technology Transfer Act license. The EA and finding of no under a general license. of 1995 (Pub. L. 104–113) requires that significant impact on which this The alternative to this action is to Federal agencies use technical standards determination is based are available for withhold approval of this amended cask that are developed or adopted by inspection at the NRC Public Document system design and issue an exemption voluntary consensus standards bodies Room, 11555 Rockville Pike, Rockville, to each utility. This alternative would unless the use of such a standard is MD. Single copies of the EA and finding cost both the NRC and the utilities more inconsistent with applicable law or of no significant impact are available time and money because each utility otherwise impractical. In this final rule, from Jayne M. McCausland, Office of would have to pursue an exemption. the NRC is revising the HI-STORM 100 Nuclear Material Safety and Safeguards, Approval of the final rule will cask system design listed in § 72.214 U.S. Nuclear Regulatory Commission, eliminate this problem and is consistent (List of NRC-approved spent fuel storage Washington, DC 20555–0001, telephone with previous NRC actions. Further, the cask designs). This action does not (301) 415–6219, e-mail [email protected]. final rule will have no adverse effect on constitute the establishment of a public health and safety. This final rule standard that establishes generally Paperwork Reduction Act Statement has no significant identifiable impact or applicable requirements. This final rule does not contain a new benefit on other Government agencies. Based on this discussion of the benefits Agreement State Compatibility or amended information collection requirement subject to the Paperwork and impacts of the alternatives, the NRC Under the ‘‘Policy Statement on Reduction Act of 1995 (44 U.S.C. 3501 concludes that the requirements of the Adequacy and Compatibility of et seq.). Existing requirements were final rule are commensurate with the Agreement State Programs’’ approved by approved by the Office of Management NRC’s responsibilities for public health the Commission on June 30, 1997, and and Budget, Approval Number 3150– and safety and the common defense and published in the Federal Register on 0132. security. No other available alternative September 3, 1997 (62 FR 46517), this is believed to be as satisfactory, and rule is classified as Compatibility Public Protection Notification thus, this action is recommended. Category ‘‘NRC.’’ Compatibility is not The NRC may not conduct or sponsor, Regulatory Flexibility Certification required for Category ‘‘NRC’’ and a person is not required to respond regulations. The NRC program elements to, a request for information or an In accordance with the Regulatory in this category are those that relate information collection requirement Flexibility Act of 1980 (5 U.S.C. 605(b)), directly to areas of regulation reserved unless the requesting document the NRC certifies that this rule will not, to the NRC by the Atomic Energy Act of displays a currently valid OMB control if issued, have a significant economic 1954, as amended (AEA), or the number. impact on a substantial number of small provisions of Title 10 of the Code of entities. This direct final rule affects Federal Regulations. Although an Regulatory Analysis only the licensing and operation of Agreement State may not adopt program On July 18, 1990 (55 FR 29181), the nuclear power plants, independent elements reserved to NRC, it may wish NRC issued an amendment to 10 CFR spent fuel storage facilities, and Holtec to inform its licensees of certain part 72 to provide for the storage of International. The companies that own requirements via a mechanism that is spent nuclear fuel under a general these plants do not fall within the scope consistent with the particular State’s license in cask designs approved by the of the definition of ‘‘small entities’’ set
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forth in the Regulatory Flexibility Act or 10153, 10155, 10157, 10161, 10168); sec. ACTION: Final rule. the Small Business Size Standards set 1704, 112 Stat. 2750 (44 U.S.C. 3504 note). SUMMARY: The FAA is adopting a new out in regulations issued by the Small Section 72.44(g) also issued under secs. Business Administration at 13 CFR part 142(b) and 148(c), (d), Pub. L. 100–203, 101 airworthiness directive (AD) for certain 121. Stat. 1330–232, 1330–236 (42 U.S.C. BAE Systems (Operations) Limited 10162(b), 10168(c),(d)). Section 72.46 also Model BAe 146 airplanes. This AD Backfit Analysis issued under sec. 189, 68 Stat. 955 (42 U.S.C. requires repetitive inspections for cracks The NRC has determined that the 2239); sec. 134, Pub. L. 97–425, 96 Stat. 2230 of the fuselage pressure skin above the backfit rule (10 CFR 50.109 or 10 CFR (42 U.S.C. 10154). Section 72.96(d) also left and right main landing gear (MLG) 72.62) does not apply to this direct final issued under sec. 145(g), Pub. L. 100–203, bay. This AD also requires corrective 101 Stat. 1330–235 (42 U.S.C. 10165(g)). rule because this amendment does not action, including related investigative Subpart J also issued under secs. 2(2), 2(15), actions, if leaks are found. This AD is involve any provisions that would 2(19), 117(a), 141(h), Pub. L. 97–425, 96 Stat. impose backfits as defined. Therefore, a 2202, 2203, 2204, 2222, 2244 (42 U.S.C. prompted by reports of cracks in the backfit analysis is not required. 10101, 10137(a), 10161(h)). Subparts K and L fuselage pressure skin above the left and are also issued under sec. 133, 98 Stat. 2230 right MLG bay. We are issuing this AD Small Business Regulatory Enforcement (42 U.S.C. 10153) and sec. 218(a), 96 Stat. to detect and correct fatigue cracking in Fairness Act 2252 (42 U.S.C. 10198). the fuselage pressure skin above the left In accordance with the Small I and right MLG bay; such fatigue Business Regulatory Enforcement 2. In § 72.214, Certificate of cracking could adversely affect the Fairness Act of 1996, the NRC has Compliance 1014 is revised to read as structural integrity of the fuselage and determined that this action is not a follows: its ability to maintain pressure major rule and has verified this § 72.214 List of approved spent fuel differential. determination with the Office of storage casks. DATES: This AD becomes effective July Information and Regulatory Affairs, * * * * * 12, 2005. Office of Management and Budget. Certificate Number: 1014. The incorporation by reference of a List of Subjects in 10 CFR Part 72 Initial Certificate Effective Date: June certain publication listed in the AD is 1, 2000. approved by the Director of the Federal Administrative practice and Amendment Number 1 Effective Date: Register as of July 12, 2005. procedure, Criminal penalties, July 15, 2002. Manpower training programs, Nuclear ADDRESSES: For service information Amendment Number 2 Effective Date: materials, Occupational safety and identified in this AD, contact British June 7, 2005. health, Penalties, Radiation protection, Aerospace Regional Aircraft American SAR Submitted by: Holtec Reporting and recordkeeping Support, 13850 Mclearen Road, International. requirements, Security measures, Spent Herndon, Virginia 20171. SAR Title: Final Safety Analysis Docket: The AD docket contains the fuel, Whistleblowing. Report for the HI–STORM 100 Cask proposed AD, comments, and any final I For the reasons set out in the preamble System. disposition. You can examine the AD and under the authority of the Atomic Docket Number: 72–1014. docket on the Internet at http:// Energy Act of 1954, as amended; the Certificate Expiration Date: June 1, dms.dot.gov, or in person at the Docket Energy Reorganization Act of 1974, as 2020 Management Facility office between amended; and 5 U.S.C. 552 and 553; the Model Number: HI–STORM 100 9 a.m. and 5 p.m., Monday through NRC is adopting the following * * * * * Friday, except Federal holidays. The amendments to 10 CFR Part 72. Docket Management Facility office Dated at Rockville, Maryland, this 25th day PART 72—LICENSING of May, 2005. (telephone (800) 647–5227) is located on the plaza level of the Nassif Building at REQUIREMENTS FOR THE For the Nuclear Regulatory Commission. INDEPENDENT STORAGE OF SPENT the U.S. Department of Transportation, Luis A. Reyes, 400 Seventh Street SW., room PL–401, NUCLEAR FUEL, HIGH-LEVEL Executive Director for Operations. RADIOACTIVE WASTE, AND Washington, DC. This docket number is [FR Doc. 05–11216 Filed 6–6–05; 8:45 am] REACTOR-RELATED GREATER THAN FAA–2005–20724; the directorate CLASS C WASTE BILLING CODE 7590–01–P identifier for this docket is 2004–NM– 233–AD. I 1. The authority citation for part 72 FOR FURTHER INFORMATION CONTACT: continues to read as follows: DEPARTMENT OF TRANSPORTATION Todd Thompson, Aerospace Engineer, Authority: Secs. 51, 53, 57, 62, 63, 65, 69, International Branch, ANM–116, FAA, 81, 161, 182, 183, 184, 186, 187, 189, 68 Stat. Federal Aviation Administration Transport Airplane Directorate, 1601 929, 930, 932, 933, 934, 935, 948, 953, 954, Lind Avenue, SW., Renton, Washington 955, as amended, sec. 234, 83 Stat. 444, as 14 CFR Part 39 98055–4056; telephone (425) 227–1175; amended (42 U.S.C. 2071, 2073, 2077, 2092, fax (425) 227–1149. 2093, 2095, 2099, 2111, 2201, 2232, 2233, [Docket No. FAA–2005–20724; Directorate 2234, 2236, 2237, 2238, 2282); sec. 274, Pub. Identifier 2004–NM–233–AD; Amendment SUPPLEMENTARY INFORMATION: The FAA L. 86–373, 73 Stat. 688, as amended (42 39–14115; AD 2005–11–13] proposed to amend 14 CFR part 39 with U.S.C. 2021); sec. 201, as amended, 202, 206, an AD for certain BAE Systems 88 Stat. 1242, as amended, 1244, 1246 (42 RIN 2120–AA64 (Operations) Limited Model BAe 146 U.S.C. 5841, 5842, 5846); Pub. L. 95–601, sec. airplanes. That action, published in the 10, 92 Stat. 2951 as amended by Pub. L. 102– Airworthiness Directives; BAE Systems (Operations) Limited Model Federal Register on March 30, 2005 (70 486, sec. 7902, 106 Stat. 3123 (42 U.S.C. FR 16173), proposed to require 5851); sec. 102, Pub. L. 91–190, 83 Stat. 853 BAe 146 Airplanes (42 U.S.C. 4332); secs. 131, 132, 133, 135, repetitive inspections for cracks of the 137, 141, Pub. L. 97–425, 96 Stat. 2229, 2230, AGENCY: Federal Aviation fuselage pressure skin above the left and 2232, 2241, sec. 148, Pub. L. 100–203, 101 Administration (FAA), Department of right main landing gear (MLG) bay. The Stat. 1330–235 (42 U.S.C. 10151, 10152, Transportation (DOT). action also proposed AD to require
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corrective action, including related Explanation of Change to Applicability adopting the AD with the change investigative actions, if leaks are found. We have revised the applicability of described previously. We have determined that this change will neither Comments the proposed AD to identify model designations as published in the most increase the economic burden on any We provided the public the recent type certificate data sheet for the operator nor increase the scope of the opportunity to participate in the affected model. AD. development of this AD. No comments Conclusion Costs of Compliance have been submitted on the proposed AD or on the determination of the cost We have carefully reviewed the The following table provides the to the public. available data and determined that air estimated costs for U.S. operators to safety and the public interest require comply with this AD.
ESTIMATED COSTS
Number of Action Work hours Average labor Parts Cost per U.S.-registered Fleet cost rate per hour airplane airplanes
Inspection, per inspection cycle ... 7 $65 $0 $455 18 $8,190, per inspection cycle.
Authority for This Rulemaking (2) Is not a ‘‘significant rule’’ under 14115. Docket No. FAA–2005–20724; Directorate Identifier 2004–NM–233–AD. Title 49 of the United States Code DOT Regulatory Policies and Procedures specifies the FAA’s authority to issue (44 FR 11034, February 26, 1979); and Effective Date (3) Will not have a significant rules on aviation safety. Subtitle I, (a) This AD becomes effective July 12, section 106, describes the authority of economic impact, positive or negative, 2005. the FAA Administrator. Subtitle VII, on a substantial number of small entities Aviation Programs, describes in more under the criteria of the Regulatory Affected ADs detail the scope of the Agency’s Flexibility Act. (b) None. We prepared a regulatory evaluation authority. Applicability We are issuing this rulemaking under of the estimated costs to comply with this AD. See the ADDRESSES section for (c) This AD applies to BAE Systems the authority described in Subtitle VII, (Operations) Limited Model BAe 146–100A, part A, subpart III, section 44701, a location to examine the regulatory evaluation. –200A, and –300A series airplanes, ‘‘General requirements.’’ Under that certificated in any category; except those on section, Congress charges the FAA with List of Subjects in 14 CFR Part 39 which BAe Modification HCM00972A or promoting safe flight of civil aircraft in HCM00972C has been accomplished. air commerce by prescribing regulations Air transportation, Aircraft, Aviation for practices, methods, and procedures safety, Incorporation by reference, Unsafe Condition the Administrator finds necessary for Safety. (d) This AD was prompted by reports of cracks in the fuselage pressure skin above the safety in air commerce. This regulation Adoption of the Amendment is within the scope of that authority left and right main landing gear (MLG) bay. because it addresses an unsafe condition I Accordingly, under the authority We are issuing this AD to detect and correct that is likely to exist or develop on delegated to me by the Administrator, fatigue cracking in the fuselage pressure skin the FAA amends 14 CFR part 39 as above the left and right MLG bay; such products identified in this rulemaking fatigue cracking could adversely affect the action. follows: structural integrity of the fuselage and its Regulatory Findings PART 39—AIRWORTHINESS ability to maintain pressure differential. We have determined that this AD will DIRECTIVES Compliance not have federalism implications under I 1. The authority citation for part 39 (e) You are responsible for having the Executive Order 13132. This AD will actions required by this AD performed within continues to read as follows: not have a substantial direct effect on the compliance times specified, unless the the States, on the relationship between Authority: 49 U.S.C. 106(g), 40113, 44701. actions have already been done. the national government and the States, § 39.13 [Amended] Initial and Repetitive Inspections or on the distribution of power and (f) At the times specified in Table 1 of this responsibilities among the various I 2. The FAA amends § 39.13 by adding the following new airworthiness AD, inspect the fuselage pressure skin above levels of government. the left and right MLG bay for cracks in For the reasons discussed above, I directive (AD): accordance with the Accomplishment certify that this AD: 2005–11–13 BAE Systems (Operations) Instructions of BAE Systems (Operations) (1) Is not a ‘‘significant regulatory Limited (Formerly British Aerospace Limited Inspection Service Bulletin 53–170, action’’ under Executive Order 12866; Regional Aircraft): Amendment 39– dated August 8, 2003.
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TABLE 1.—COMPLIANCE TIMES
For airplanes listed in paragraph (c) of this AD— Do initial inspections— And do repetitive inspections thereafter—
On which neither BAe modification Prior to the accumulation of 15,000 total flight At intervals not to exceed 1,000 flight cycles. HCM00744M nor HCM00850A has been ac- cycles or within 500 flight cycles after the complished. effective date of this AD, whichever occurs later. On which either BAe modification HCM00744M Prior to the accumulation of 15,000 total flight At intervals not to exceed 3,000 flight cycles. or HCM00850A has been accomplished. cycles or within 1,000 flight cycles after the On which both BAe modifications HCM00744M effective date of this AD, whichever occurs and HCM00850A have been accomplished. later.
Corrective Action 6030, or go to http://www.archives.gov/ DATES: This AD becomes effective July _ _ _ _ (g) If any crack is found during any federal register/code of federal regulations/ 12, 2005. _ inspection required by paragraph (f) of this ibr locations.html. The incorporation by reference of a AD, do the corrective action and any related Issued in Renton, Washington, on May 26, certain publication listed in the AD is investigative actions, in accordance with the 2005. approved by the Director of the Federal Accomplishment Instructions of BAE Ali Bahrami, Register as of July 12, 2005. Systems (Operations) Limited Inspection Service Bulletin 53–170, dated August 8, Manager, Transport Airplane Directorate, ADDRESSES: For service information 2003, except as required by paragraph (h) of Aircraft Certification Service. identified in this AD, contact Boeing this AD. [FR Doc. 05–11056 Filed 6–6–05; 8:45 am] Commercial Airplanes, P.O. Box 3707, (h) If any cracking is found during any BILLING CODE 4910–13–P Seattle, Washington 98124–2207. inspection or related investigative action Docket: The AD docket contains the required by this AD, and the service bulletin proposed AD, comments, and any final recommends contacting BAE Systems for DEPARTMENT OF TRANSPORTATION disposition. You can examine the AD appropriate action: Before further flight, docket on the Internet at http:// repair the cracks according to a method Federal Aviation Administration approved by the Manager, International dms.dot.gov, or in person at the Docket Branch, ANM–116, FAA, Transport Airplane Management Facility office between 9 Directorate; or the Civil Aviation Authority 14 CFR Part 39 a.m. and 5 p.m., Monday through (or its delegated agent). [Docket No. FAA–2004–19988; Directorate Friday, except Federal holidays. The No Reporting Identifier 2004–NM–30–AD; Amendment 39– Docket Management Facility office 14111; AD 2005–11–09] (telephone (800) 647–5227) is located on (i) Although the service bulletin referenced the plaza level of the Nassif Building at in this AD specifies to submit certain RIN 2120–AA64 information to the manufacturer, this AD the U.S. Department of Transportation, 400 Seventh Street, SW., room PL–401, does not include that requirement. Airworthiness Directives; Boeing Washington, DC. This docket number is Model 727–200 Series Airplanes Alternative Methods of Compliance FAA–2004–19988; the directorate (AMOCs) Equipped With a No. 3 Cargo Door identifier for this docket is 2004–NM– (j) The Manager, International Branch, AGENCY: 30–AD. ANM–116, has the authority to approve Federal Aviation AMOCs for this AD, if requested in Administration (FAA), Department of FOR FURTHER INFORMATION CONTACT: accordance with the procedures found in 14 Transportation (DOT). Daniel F. Kutz, Aerospace Engineer, CFR 39.19. ACTION: Final rule. Airframe Branch, ANM–120S, FAA, Seattle Aircraft Certification Office, Related Information SUMMARY: The FAA is adopting a new 1601 Lind Avenue, SW., Renton, (k) British airworthiness directive G–2004– airworthiness directive (AD) for certain Washington 98055–4056; telephone 0004, dated February 26, 2004, also addresses Boeing Model 727–200 series airplanes (425) 917–6456; fax (425) 917–6590. the subject of this AD. equipped with a No. 3 cargo door. This SUPPLEMENTARY INFORMATION: The FAA Material Incorporated by Reference AD requires repetitive detailed and high proposed to amend 14 CFR part 39 with (l) You must use BAE Systems (Operations) frequency eddy current inspections for an AD for certain Boeing Model 727– Limited Inspection Service Bulletin 53–170, cracking of the forward, lower corner 200 series airplanes equipped with a dated August 8, 2003, to perform the actions frame and forward end of the lower No. 3 cargo door. That action, published that are required by this AD, unless the AD beam of the No. 3 cargo door, and in the Federal Register on January 5, specifies otherwise. The Director of the corrective actions if necessary. The AD 2005 (70 FR 729), proposed to require Federal Register approves the incorporation provides an optional terminating action by reference of this document in accordance repetitive detailed and high frequency with 5 U.S.C. 552(a) and 1 CFR part 51. To for the repetitive inspections. This AD eddy current inspections for cracking of get copies of the service information, contact is prompted by reports of cracking at the the forward, lower corner frame and British Aerospace Regional Aircraft forward, lower corner frame and lower forward end of the lower beam of the American Support, 13850 Mclearen Road, beam of the No. 3 cargo door. We are No. 3 cargo door, and corrective actions Herndon, Virginia 20171. To view the AD issuing this AD to detect and correct if necessary. That action also proposed docket, go to the Docket Management cracking of the forward, lower corner to provide an optional terminating Facility, U.S. Department of Transportation, frame and forward end of the lower action for the repetitive inspections. 400 Seventh Street SW., room PL–401, Nassif beam of the No. 3 cargo door, which Building, Washington, DC. To review copies Comments of the service information, go to the National could result in failure of the affected Archives and Records Administration door stops, loss of the cargo door, and We provided the public the (NARA). For information on the availability consequent rapid decompression of the opportunity to participate in the of this material at the NARA, call (202) 741– airplane. development of this AD. We have
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considered the comments that have part of the Boeing Delegated that have been submitted, and been submitted on the proposed AD. Compliance Organization with determined that air safety and the Delegated Option Authorization. Support for the Proposed AD public interest require adopting the AD We agree with this request. Boeing with the change described previously. One commenter supports the intent of has received a Delegation Option We have determined that this change the NPRM and actions of the proposed Authorization (DOA). We have revised will neither increase the economic AD. this final rule to delegate the authority burden on any operator nor increase the to approve an alternative method of Request To Replace Reference to scope of the AD. compliance for any repair required by Designated Engineering Representative this AD to the Authorized Costs of Compliance (DER) Representative for the Boeing DOA One commenter, the manufacturer, Organization rather than the Designated There are about 390 Model 727–200 requests that paragraph (k)(2) of the Engineering Representative (DER). series airplanes of the affected design in final rule be changed to replace the the worldwide fleet. The following table reference to a Designated Engineering Conclusion provides the estimated costs for U.S. Representative (DER) with references to We have carefully reviewed the operators to comply with this AD. a Boeing Authorized Representative as a available data, including the comments
ESTIMATED COSTS
Number of Action Work hours Average labor Parts Cost per air- U.S.-registered Fleet cost rate per hour plane airplanes
Detailed and HFEC Inspections, per in- 2 $65 None ...... $130 274 $35,620 spection cycle.
Authority for This Rulemaking (2) Is not a ‘‘significant rule’’ under Effective Date DOT Regulatory Policies and Procedures (a) This AD becomes effective July 12, Title 49 of the United States Code (44 FR 11034, February 26, 1979); and 2005. specifies the FAA’s authority to issue rules on aviation safety. Subtitle I, (3) Will not have a significant Affected ADs economic impact, positive or negative, Section 106, describes the authority of (b) None. on a substantial number of small entities the FAA Administrator. Subtitle VII, under the criteria of the Regulatory Applicability Aviation Programs, describes in more Flexibility Act. (c) This AD applies to Boeing Model 727– detail the scope of the Agency’s 200 series airplanes, equipped with a No. 3 authority. We prepared a regulatory evaluation cargo door, as identified in Boeing Special of the estimated costs to comply with We are issuing this rulemaking under Attention Service Bulletin 727–52–0149, this AD. See the ADDRESSES section for dated October 16, 2003; certificated in any the authority described in Subtitle VII, a location to examine the regulatory category. Part A, Subpart III, Section 44701, evaluation. ‘‘General requirements.’’ Under that Unsafe Condition section, Congress charges the FAA with List of Subjects in 14 CFR Part 39 (d) This AD was prompted by reports of promoting safe flight of civil aircraft in cracking at the forward, lower corner frame air commerce by prescribing regulations Air transportation, Aircraft, Aviation and lower beam of the No. 3 cargo door. We are issuing this AD to detect and correct for practices, methods, and procedures safety, Incorporation by reference, Safety. cracking of the forward, lower corner frame the Administrator finds necessary for and forward end of the lower beam of the No. safety in air commerce. This regulation Adoption of the Amendment 3 cargo door, which could result in failure of is within the scope of that authority the affected door stops, loss of the cargo door, because it addresses an unsafe condition I Accordingly, under the authority and consequent rapid decompression of the airplane. that is likely to exist or develop on delegated to me by the Administrator, products identified in this rulemaking the FAA amends 14 CFR part 39 as Compliance action. follows: (e) You are responsible for having the Regulatory Findings actions required by this AD performed within PART 39—AIRWORTHINESS the compliance times specified, unless the We have determined that this AD will DIRECTIVES actions have already been done. not have federalism implications under Repetitive Detailed and High Frequency I Executive Order 13132. This AD will 1. The authority citation for part 39 Eddy Current (HFEC) Inspections not have a substantial direct effect on continues to read as follows: (f) Do detailed and HFEC inspections for the States, on the relationship between Authority: 49 U.S.C. 106(g), 40113, 44701. cracking of the forward, lower corner frame the national government and the States, and forward end of the lower beam of the No. or on the distribution of power and § 39.13 [Amended] 3 cargo door by accomplishing all of the applicable actions specified in the responsibilities among the various I 2. The FAA amends § 39.13 by adding Accomplishment Instructions of Boeing levels of government. the following new airworthiness Special Attention Service Bulletin 727–52– For the reasons discussed above, I directive (AD): 0149, dated October 16, 2003. Do the certify that this AD: inspections at the times specified in the 2005–11–09 Boeing: Amendment 39–14111. applicable table in paragraph 1.E., (1) Is not a ‘‘significant regulatory Docket No. FAA–2004–19988; ‘‘Compliance,’’ of the service bulletin, except action’’ under Executive Order 12866; Directorate Identifier 2004–NM–30–AD. as required by paragraph (g) of this AD.
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Repeat the inspections thereafter at intervals Material Incorporated by Reference could lead to reduced controllability of not to exceed 4,500 flight cycles. Doing the (l) You must use Boeing Special Attention the airplane, and to prevent brake applicable actions in paragraph (h) or (j) of Service Bulletin 727–52–0149, dated October failure, which could result in the loss of this AD terminates the repetitive inspections. 16, 2003, to perform the actions that are directional control on the ground and (g) Where the service bulletin specified in required by this AD, unless the AD specifies consequent departure from the runway paragraph (f) of this AD provides a threshold otherwise. The Director of the Federal during landing. relative to the release date of the service Register approves the incorporation by bulletin, this AD requires compliance within reference of this document in accordance DATES: This AD becomes effective July the applicable threshold following the with 5 U.S.C. 552(a) and 1 CFR part 51. To 12, 2005. effective date of this AD, if the ‘‘total airplane get copies of the service information, contact The incorporation by reference of flight cycles’’ or ‘‘total replaced door flight Boeing Commercial Airplanes, P.O. Box certain publications listed in the AD is cycles’’ threshold has been exceeded. 3707, Seattle, Washington 98124–2207. To approved by the Director of the Federal view the AD docket, go to the Docket Corrective Actions Register as of July 12, 2005. Management Facility, U.S. Department of (h) For airplanes on which cracking is Transportation, 400 Seventh Street SW., ADDRESSES: For service information found during any inspection required by room PL–401, Nassif Building, Washington, identified in this AD, contact paragraph (f) of this AD: Before further flight, DC. To review copies of the service Bombardier, Inc., Bombardier Regional do all of the applicable corrective actions information, go to the National Archives and Aircraft Division, 123 Garratt Boulevard, specified in the Accomplishment Records Administration (NARA). For Downsview, Ontario M3K 1Y5, Canada. Instructions of Boeing Special Attention information on the availability of this Docket: The AD docket contains the Service Bulletin 727–52–0149, dated October material at NARA, call (202) 741–6030, or go 16, 2003. Repairing any affected area to http://www.archives.gov/federal_register/ proposed AD, comments, and any final terminates the repetitive inspections required code_of_federal_regulations/ disposition. You can examine the AD by paragraph (f) of this AD. ibr_locations.html. docket on the Internet at http:// dms.dot.gov, or in person at the Docket Parts Installation Issued in Renton, Washington, on May 26, 2005. Management Facility office between 9 (i) Any replacement No. 3 cargo door a.m. and 5 p.m., Monday through Ali Bahrami, installed on any airplane after the effective Friday, except Federal holidays. The date of this AD must be inspected or Manager, Transport Airplane Directorate, Docket Management Facility office Aircraft Certification Service. modified in accordance with either (telephone (800) 647–5227) is located on paragraph (i)(1) or (i)(2) of this AD, as [FR Doc. 05–11055 Filed 6–6–05; 8:45 am] the plaza level of the Nassif Building at applicable. BILLING CODE 4910–13–P (1) If the number of total flight cycles on the U.S. Department of Transportation, the door can be positively determined: Do the 400 Seventh Street SW., room PL–401, Washington, DC. This docket number is actions required by paragraphs (f) and (h) of DEPARTMENT OF TRANSPORTATION this AD, as applicable, or paragraph (j) of this FAA–2005–20756; the directorate AD. Do the actions at the times specified in Federal Aviation Administration identifier for this docket is 2004–NM– Table 2 of paragraph 1.E., ‘‘Compliance,’’ of 52–AD. Boeing Special Attention Service Bulletin 14 CFR Part 39 FOR FURTHER INFORMATION CONTACT: Ezra 727–52–0149, dated October 16, 2003. Sasson, Aerospace Engineer, Airframe (2) If the number of total flight cycles on [Docket No. FAA–2005–20756; Directorate the door cannot be positively determined: Do Identifier 2004–NM–52–AD; Amendment 39– and Propulsion Branch, ANE–171, FAA, the actions required by paragraphs (f) and (h) 14112; AD 2005–11–10] New York Aircraft Certification Office, of this AD, as applicable, or paragraph (j) of 1600 Stewart Avenue, suite 410, this AD, before installing the door. RIN 2120–AA64 Westbury, New York 11590; telephone (516) 228–7320; fax (516) 794–5531. Optional Terminating Action Airworthiness Directives; Bombardier SUPPLEMENTARY INFORMATION: The FAA (j) Concurrently with doing the inspection Model DHC–8–102, –103, –106, –201, required by paragraph (f) of this AD, if no –202, –301, –311, and –315 Airplanes proposed to amend 14 CFR part 39 with cracking is found, doing the preventative an AD for certain Bombardier Model modification specified in paragraph 3.B.2. of AGENCY: Federal Aviation DHC–8–102, –103, –106, –201, –202, the Accomplishment Instructions of Boeing Administration (FAA), Department of –301, –311, and –315 airplanes. That Special Attention Service Bulletin 727–52– Transportation (DOT). action, published in the Federal 0149, dated October 16, 2003, terminates the ACTION: Final rule. Register on March 30, 2005 (70 FR repetitive inspections required by paragraph 16182), proposed to require installation (f) of this AD. SUMMARY: The FAA is adopting a new of check valves in Numbers 1 and 2 Alternative Methods of Compliance airworthiness directive (AD) for certain hydraulic systems, removal of the filters (AMOCs) Bombardier Model DHC–8–102, –103, from the brake shuttle valves, and (k)(1) The Manager, Seattle Aircraft –106, –201, –202, –301, –311 and –315 removal of the internal garter spring Certification Office (ACO), FAA, has the airplanes. This AD requires installation from the brake shuttle valves. of check valves in Numbers 1 and 2 authority to approve AMOCs for this AD, if Comments requested using the procedures found in 14 hydraulic systems, removal of the filters CFR 39.19. from the brake shuttle valves, and We provided the public the (2) An AMOC that provides an acceptable removal of the internal garter spring opportunity to participate in the level of safety may be used for any repair for from the brake shuttle valves. This AD development of this AD. No comments cracking required by this AD, if it is results from two instances of brake have been submitted on the proposed approved by an Authorized Representative failure due to the loss of hydraulic fluid AD or on the determination of the cost for the Boeing Delegated Option from both Numbers 1 and 2 hydraulic Authorization Organization who has been to the public. systems and one incident of brake authorized by the Manager, Seattle ACO, to Explanation of Editorial Change make such findings. For a repair method to failure due to filter blockage in the be approved, the repair must meet the shuttle valve. We are issuing this AD to We have revised the Costs of certification basis of the airplane, and the prevent the loss of hydraulic power Compliance section of this AD to correct approval must specifically refer to this AD. from both hydraulic systems, which a mathematical error.
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Conclusion safety and the public interest require Costs of Compliance adopting the AD as proposed. We have carefully reviewed the The following table provides the available data and determined that air estimated costs for U.S. operators to comply with this AD:
ESTIMATED COSTS
Number of Action Work hours Average labor Parts Cost per U.S.-registered Average fleet cost rate per hour airplane airplanes
Installation of check valves in Numbers 1 and 2 hydraulic systems ...... 3 $65 $279–$405 $474–$600 179 $84,846–$107,400 Removal of filters and internal garter springs from brake shut- tle valves ...... 3 65 252–1,360 447–1,555 179 80,013–278,345
Authority for This Rulemaking a location to examine the regulatory brake failure, which could result in the loss evaluation. of directional control on the ground and Title 49 of the United States Code consequent departure from the runway specifies the FAA’s authority to issue List of Subjects in 14 CFR Part 39 during landing. rules on aviation safety. Subtitle I, Air transportation, Aircraft, Aviation section 106, describes the authority of Compliance safety, Incorporation by reference, (e) You are responsible for having the the FAA Administrator. Subtitle VII, Safety. Aviation Programs, describes in more actions required by this AD performed within detail the scope of the Agency’s Adoption of the Amendment the compliance times specified, unless the actions have already been done. authority. I Accordingly, under the authority We are issuing this rulemaking under Installation of Check Valves in Numbers 1 delegated to me by the Administrator, the authority described in Subtitle VII, and 2 Hydraulic Systems the FAA amends 14 CFR part 39 as part A, subpart III, section 44701, (f) Within 12 months after the effective follows: ‘‘General requirements.’’ Under that date of this AD, install check valves in the section, Congress charges the FAA with PART 39—AIRWORTHINESS Numbers 1 and 2 hydraulic return systems by incorporating Modsum 8Q101320 in promoting safe flight of civil aircraft in DIRECTIVES air commerce by prescribing regulations accordance with the Accomplishment Instructions of Bombardier Service Bulletin for practices, methods, and procedures I 1. The authority citation for part 39 continues to read as follows: 8–29–36, Revision ‘‘B,’’ dated January 6, the Administrator finds necessary for 2003. safety in air commerce. This regulation Authority: 49 U.S.C. 106(g), 40113, 44701. is within the scope of that authority Removal of Filters and Internal Garter Spring From the Brake Shuttle Valves because it addresses an unsafe condition § 39.13 [Amended] that is likely to exist or develop on I 2. The FAA amends § 39.13 by adding (g) Within 12 months after the effective products identified in this rulemaking the following new airworthiness date of this AD, modify the brake shuttle valves, part number (P/N) 5084–1, by doing action. directive (AD): the actions in either paragraph (g)(1) or (g)(2) Regulatory Findings 2005–11–10 Bombardier, Inc. (Formerly de of this AD. The installation specified in Havilland, Inc.): Amendment 39–14112. paragraph (f) of this AD must be done prior We have determined that this AD will Docket No. FAA–2005–20756; to doing any actions in accordance with not have federalism implications under Directorate Identifier 2004–NM–52–AD. Bombardier Service Bulletin 8–29–37, Revision ‘‘A,’’ dated September 19, 2003 Executive Order 13132. This AD will Effective Date not have a substantial direct effect on (Modsum 8Q101316), that are specified in the States, on the relationship between (a) This AD becomes effective July 12, paragraphs (g)(1) and (g)(2) of this AD. 2005. the national government and the States, (1) Remove the filter assemblies by Affected ADs incorporating Modsum 8Q101422 in or on the distribution of power and accordance with the Accomplishment responsibilities among the various (b) None. Instructions of Bombardier Service Bulletin levels of government. Applicability 8–29–39, dated July 14, 2003; and within For the reasons discussed above, I 40,000 flight hours after removing the filter (c) This AD applies to Bombardier Model certify that this AD: assemblies, remove the internal garter spring DHC–8–102, –103, –106, –201, –202, –301, by incorporating Modsum 8Q101316 in (1) Is not a ‘‘significant regulatory –311, and –315 airplanes, certificated in any accordance with the Accomplishment action’’ under Executive Order 12866; category; serial numbers 003 through 593 Instructions of Bombardier Service Bulletin (2) Is not a ‘‘significant rule’’ under inclusive. DOT Regulatory Policies and Procedures 8–29–37, Revision ‘‘A,’’ dated September 19, (44 FR 11034, February 26, 1979); and Unsafe Condition 2003. (3) Will not have a significant (d) This AD was prompted by two (2) Remove the filter assemblies and instances of brake failure due to the loss of internal garter spring by incorporating economic impact, positive or negative, Modsum 8Q101316 in accordance with the on a substantial number of small entities hydraulic fluid from both Numbers 1 and 2 hydraulic systems and one incident of brake Accomplishment Instructions of Bombardier under the criteria of the Regulatory failure due to filter blockage in the shuttle Service Bulletin 8–29–37, Revision ‘‘A,’’ Flexibility Act. valve. We are issuing this AD to prevent the dated September 19, 2003. We prepared a regulatory evaluation loss of hydraulic power from both hydraulic Note 1: You can mix shuttle valves that of the estimated costs to comply with systems, which could lead to reduced have incorporated either Modsum 8Q101316 this AD. See the ADDRESSES section for controllability of the airplane, and to prevent or 8Q101422 on the same airplane.
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Actions Accomplished According to Issued in Renton, Washington, on May 26, ACE–112, Small Airplane Directorate, Previous Issues of Service Bulletins 2005. 901 Locust, Room 301, Kansas City, (h) Installations accomplished before the Ali Bahrami, Missouri 64106; telephone: 816–329– effective date of this AD according to Manager, Transport Airplane Directorate, 4146; facsimile: 816–329–4090. Bombardier Service Bulletin 8–29–36, dated Aircraft Certification Service. SUPPLEMENTARY INFORMATION: December 6, 2002; and Revision ‘‘A,’’ dated [FR Doc. 05–11054 Filed 6–6–05; 8:45 am] Discussion December 12, 2002, are considered BILLING CODE 4910–13–P acceptable for compliance with the What events have caused this AD? corresponding installation specified in The Luftfahrt-Bundesamt (LBA), which paragraph (f) of this AD. DEPARTMENT OF TRANSPORTATION is the airworthiness authority for (i) Removals of the filters and internal Germany, recently notified FAA that an garter springs accomplished before the Federal Aviation Administration unsafe condition may exist on all effective date of this AD according to GROB–WERKE (GROB) Model G120A Bombardier Service Bulletin 8–29–37, dated 14 CFR Part 39 airplanes. The LBA reports an incident July 15, 2003, are considered acceptable for [Docket No. FAA–2005–20590; Directorate of a damaged spherical bearing (part compliance with the corresponding removals Identifier 2005–CE–13–AD; Amendment 39– number (P/N) S20) installed in the main specified in paragraph (g) of this AD. 14110; AD 2005–11–08] landing gear on one of the affected airplanes. Evidence showed that the Alternative Methods of Compliance RIN 2120–AA64 bearing inner ring was shifted against (AMOCs) the outer ring. This indicated that the (j) The Manager, New York Aircraft Airworthiness Directives; GROB– WERKE Model G120A Airplanes bearing was exposed to high axial loads. Certification Office, FAA, has the authority to Grob has an improved spherical bearing approve AMOCs for this AD, if requested in AGENCY: Federal Aviation (P/N SSRC 20 C2) that can tolerate accordance with the procedures found in 14 Administration (FAA), DOT. higher axial loads. CFR 39.19. ACTION: Final rule. What is the potential impact if FAA Related Information took no action? Main landing gear front SUMMARY: The FAA adopts a new and rear bearings that are susceptible to (k) Canadian airworthiness directive CF– airworthiness directive (AD) for all damage when exposed to high axial 2004–02, dated February 9, 2004, also GROB–WERKE (GROB) Model G120A loads could result in failure of the addresses the subject of this AD. airplanes. This AD requires you to landing gear bearing. This failure could Material Incorporated by Reference replace the main landing gear front and lead to loss of control on landing. (l) You must use the documents listed in rear spherical bearings with improved Has FAA taken any action to this Table 1 of this AD to perform the actions that spherical bearings. This AD results from point? We issued a proposal to amend are required by this AD, unless the AD mandatory continuing airworthiness part 39 of the Federal Aviation specifies otherwise. The Director of the information (MCAI) issued by the Regulations (14 CFR part 39) to include Federal Register approves the incorporation airworthiness authority for Germany. an AD that would apply to all GROB– by reference of these documents in We are issuing this AD to replace front WERKE (GROB) Model G120A accordance with 5 U.S.C. 552(a) and 1 CFR and rear main landing gear bearings that airplanes. This proposal was published part 51. To get copies of the service are susceptible to damage when exposed in the Federal Register as a notice of information, contact Bombardier, Inc., to high axial loads, which could result proposed rulemaking (NPRM) on April Bombardier Regional Aircraft Division, 123 in failure of the landing gear bearing. 1, 2005 (70 FR 16769). The NPRM Garratt Boulevard, Downsview, Ontario M3K This failure could lead to loss of control proposed to require you to replace the 1Y5, Canada. To view the AD docket, go to on landing. main landing gear front and rear the Docket Management Facility, U.S. DATES: This AD becomes effective on spherical bearings with improved Department of Transportation, 400 Seventh July 18, 2005. spherical bearings. Street SW., room PL–401, Nassif Building, As of July 18, 2005, the Director of the Comments Washington, DC. To review copies of the Federal Register approved the Was the public invited to comment? service information, go to the National incorporation by reference of certain We provided the public the opportunity Archives and Records Administration publications listed in the regulation. (NARA). For information on the availability to participate in developing this AD. We ADDRESSES: To get the service received no comments on the proposal of this material at the NARA, call (202) 741– information identified in this AD, 6030, or go to http://www.archives.gov/ or on the determination of the cost to contact GROB–WERKE, Burkart Grob federal_register/code_of_federal_regulations/ the public. e.K., Unternehmenbereich Luft-und ibr_locations.html. Raumfahrt, Lettenbachstrasse 9, 86874 Conclusion Tussenhausen-Mattsies, Germany; TABLE 1.—MATERIAL INCORPORATED What is FAA’s final determination on telephone: 011 49 8268 998 105; this issue? We have carefully reviewed BY REFERENCE facsimile: 011 49 8268 998 200. the available data and determined that To view the AD docket, go to the air safety and the public interest require Bombardier service bul- Revision level Date Docket Management Facility; U.S. adopting the AD as proposed except for letin Department of Transportation, 400 minor editorial corrections. We have Seventh Street, SW., Nassif Building, determined that these minor 8–29–36 .... B ...... January 6, Room PL–401, Washington, DC 20590– corrections: 2003. 001 or on the Internet at http:// —Are consistent with the intent that 8–29–37 .... A ...... September dms.dot.gov. The docket number is was proposed in the NPRM for 19, 2003. FAA–2005–20590; Directorate Identifier correcting the unsafe condition; and 8–29–39 .... Original ...... July 14, 2003. 2005–CE–13–AD. —Do not add any additional burden FOR FURTHER INFORMATION CONTACT: Karl upon the public than was already Schletzbaum, Aerospace Engineer, proposed in the NPRM.
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Changes to 14 CFR Part 39—Effect on of compliance. This material previously What is the cost impact of this AD on the AD was included in each individual AD. owners/operators of the affected How does the revision to 14 CFR part Since this material is included in 14 airplanes? We estimate the following 39 affect this AD? On July 10, 2002, the CFR part 39, we will not include it in costs to do the replacement of the main FAA published a new version of 14 CFR future AD actions. landing gear front and rear spherical part 39 (67 FR 47997, July 22, 2002), Costs of Compliance bearings with improved spherical which governs the FAA’s AD system. bearings. We have no way of This regulation now includes material How many airplanes does this AD determining the number of airplanes that relates to altered products, special impact? We estimate that this AD affects that may need this replacement: flight permits, and alternative methods 6 airplanes in the U.S. registry.
Total cost Total cost on U.S. Labor cost Parts cost per airplane operators
8 work hours × $65 per hour = $65 ...... None. GROB will supply parts $520 6 × $520 = $3,120 free of charge.
Authority for This Rulemaking 1. Is not a ‘‘significant regulatory § 39.13 [Amended] action’’ under Executive Order 12866; What authority does FAA have for I 2. Is not a ‘‘significant rule’’ under the 2. FAA amends § 39.13 by adding a issuing this rulemaking action? Title 49 new AD to read as follows: of the United States Code specifies the DOT Regulatory Policies and Procedures FAA’s authority to issue rules on (44 FR 11034, February 26, 1979); and 2005–11–08 GROB-WERKE: Amendment aviation safety. Subtitle I, Section 106 3. Will not have a significant 39–14110; Docket No. FAA–2005–20590; describes the authority of the FAA economic impact, positive or negative, Directorate Identifier 2005–CE–13–AD. on a substantial number of small entities Administrator. Subtitle VII, Aviation When Does This AD Become Effective? Programs, describes in more detail the under the criteria of the Regulatory (a) This AD becomes effective on July 18, scope of the agency’s authority. Flexibility Act. We are issuing this rulemaking under We prepared a summary of the costs 2005. the authority described in Subtitle VII, to comply with this AD (and other What Other ADs Are Affected by This Part A, Subpart III, Section 44701, information as included in the Action? Regulatory Evaluation) and placed it in ‘‘General requirements.’’ Under that (b) None. section, Congress charges the FAA with the AD Docket. You may get a copy of promoting safe flight of civil aircraft in this summary by sending a request to us What Airplanes Are Affected by This AD? air commerce by prescribing regulations at the address listed under ADDRESSES. (c) This AD affects Model G120A airplanes, for practices, methods, and procedures Include ‘‘Docket No. FAA–2005–20590; all serial numbers, that are certificated in any the Administrator finds necessary for Directorate Identifier 2005–CE–13–AD’’ category. safety in air commerce. This regulation in your request. What Is the Unsafe Condition Presented in is within the scope of that authority List of Subjects in 14 CFR Part 39 because it addresses an unsafe condition This AD? that is likely to exist or develop on Air transportation, Aircraft, Aviation (d) This AD is the result of mandatory products identified in this AD. safety, Incorporation by reference, continuing airworthiness information (MCAI) Safety. issued by the airworthiness authority for Regulatory Findings Germany. The actions specified in this AD Will this AD impact various entities? Adoption of the Amendment are intended to replace front and rear main We have determined that this AD will I Accordingly, under the authority landing gear bearings that are susceptible to not have federalism implications under delegated to me by the Administrator, damage when exposed to high axial loads, Executive Order 13132. This AD will the Federal Aviation Administration which could result in failure of the landing not have a substantial direct effect on amends part 39 of the Federal Aviation gear bearing. This failure could lead to loss the States, on the relationship between Regulations (14 CFR part 39) as follows: of control on landing. the national government and the States, What Must I Do To Address This Problem? or on the distribution of power and PART 39—AIRWORTHINESS responsibilities among the various DIRECTIVES (e) To address this problem, you must do levels of government. the following: Will this AD involve a significant rule I 1. The authority citation for part 39 or regulatory action? For the reasons continues to read as follows: discussed above, I certify that this AD: Authority: 49 U.S.C. 106(g), 40113, 44701.
Actions Compliance Procedures
(1) Replace any part number (P/N) S20 main Within the next 100 hours time-in-service Follow GROB Service Bulletin No. MSB1121– landing gear front and rear spherical bearings (TIS) after July 18, 2005 (the effective date 054, dated November 22, 2004. with improved spherical bearings (P/N SSRC of this AD), unless already done. 20 C2). (2) Do not install any P/N S20 main landing As of July 18, 2005 (the effective date of this Not Applicable. gear front and rear spherical bearings. AD).
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May I Request an Alternative Method of DEPARTMENT OF TRANSPORTATION Discussion Compliance? Federal Aviation Administration What events have caused this AD? (f) You may request a different method of The Luftfahrt-Bundesamt (LBA), which compliance or a different compliance time 14 CFR Part 39 is the airworthiness authority for for this AD by following the procedures in 14 Germany, recently notified FAA that an CFR 39.19. Unless FAA authorizes otherwise, [Docket No. FAA–2005–20588; Directorate unsafe condition may exist on certain send your request to your principal Identifier 2005–CE–11–AD; Amendment 39– Extra Flugzeugproduktions-und inspector. The principal inspector may add 14109; AD 2005–11–07] Vertriebs-GmbH (EXTRA) Models EA– comments and will send your request to the RIN 2120–AA64 300, EA–300S, EA–300L, and EA–300/ Manager, Standards Office, FAA. For 200 airplanes. The LBA reports an information on any already approved Airworthiness Directives; Extra incident of a fire in the engine alternative methods of compliance, contact Flugzeugproduktions-und Vertriebs- Karl Schletzbaum, Aerospace Engineer, ACE– compartment on one of the affected GmbH Models EA–300, EA–300S, EA– airplanes due to a leaking gascolator. 112, Small Airplane Directorate, 901 Locust, 300L, and EA–300/200 Airplanes Room 301, Kansas City, Missouri 64106; Evidence showed that the spilled fuel telephone: 816–329–4146; facsimile: 816– AGENCY: Federal Aviation had leaked down the firewall and 329–4090. Administration (FAA), DOT. through the non-sealed connections between the firewall and the bottom ACTION: Final rule. Is There Other Information That Relates to fuselage cover (belly fairing). The fire in This Subject? SUMMARY: The FAA adopts a new the engine compartment spread to the (g) German AD Number D–2005–075, dated airworthiness directive (AD) for certain cabin and resulted in loss of the February 9, 2005, also addresses the subject Extra Flugzeugproduktions-und airplane. of this AD. Vertriebs-GmbH (EXTRA) Models EA– What is the potential impact if FAA Does This AD Incorporate Any Material by 300, EA–300S, EA–300L, and EA–300/ took no action? A fuel leak behind the Reference? 200 airplanes. This AD requires you to firewall could result in an in-flight fire, seal with firewall sealant the gaps which could cause loss of the airplane (h) You must do the actions required by between the bottom fuselage cover and crew. this AD following the instructions in GROB (belly fairing) and the firewall and Service Bulletin No. MSB1121–054, dated Has FAA taken any action to this November 22, 2004. The Director of the repeat the sealing procedure whenever point? We issued a proposal to amend Federal Register approved the incorporation you install the bottom fuselage cover part 39 of the Federal Aviation by reference of this service bulletin in (belly fairing). This AD results from Regulations (14 CFR part 39) to include accordance with 5 U.S.C. 552(a) and 1 CFR mandatory continuing airworthiness an AD that would apply to certain Extra part 51. To get a copy of this service information (MCAI) issued by the Flugzeugproduktions-und Vertriebs- information, contact GROB-WERKE, Burkart airworthiness authority for Germany. GmbH (EXTRA) Models EA–300, EA– Grob e.K., Unternehmenbereich Luft-und We are issuing this AD to prevent fuel 300S, EA–300L, and EA–300/200 Raumfahrt, Lettenbachstrasse 9, 86874 from flowing behind the firewall in the airplanes. This proposal was published Tussenhausen-Mattsies, Germany; telephone: case of a fuel leak. This could result in in the Federal Register as a notice of 011 49 8268 998 105; facsimile: 011 49 8268 an in-flight fire, which could cause loss proposed rulemaking (NPRM) on April 998 200. To review copies of this service of the airplane and crew. 1, 2005 (70 FR 16771). The NPRM information, go to the National Archives and DATES: This AD becomes effective on proposed to require you to seal with Records Administration (NARA). For July 18, 2005. firewall sealant the gaps between the information on the availability of this As of July 18, 2005, the Director of the bottom fuselage cover (belly fairing) and material at NARA, go to: http:// Federal Register approved the the firewall and whenever you install www.archives.gov/federal_register/ incorporation by reference of certain the bottom fuselage cover (belly fairing). _ _ _ code of federal regulations/ publications listed in the regulation. Comments ibr_locations.html or call (202) 741–6030. To ADDRESSES: To get the service view the AD docket, go to the Docket information identified in this AD, Was the public invited to comment? Management Facility; U.S. Department of contact EXTRA Flugzeugproduktions- We provided the public the opportunity Transportation, 400 Seventh Street, SW., und Vertriebs-GmbH, Schwarze Heide to participate in developing this AD. We Nassif Building, Room PL–401, Washington, 21, 46569 Hu¨ nxe, Germany; telephone: received no comments on the proposal DC 20590–001 or on the Internet at http:// 011–011–49–2858–9137–30; facsimile: or on the determination of the cost to dms.dot.gov. The docket number is FAA– 49–2858–9137–30. the public. 2005–20590; Directorate Identifier 2005–CE– To view the AD docket, go to the Conclusion 13–AD. Docket Management Facility; U.S. Issued in Kansas City, Missouri, on May Department of Transportation, 400 What is FAA’s final determination on 26, 2005. Seventh Street, SW., Nassif Building, this issue? We have carefully reviewed Kim Smith, Room PL–401, Washington, DC 20590– the available data and determined that 001 or on the Internet at http:// air safety and the public interest require Acting Manager, Small Airplane Directorate, adopting the AD as proposed except for Aircraft Certification Service. dms.dot.gov. The docket number is FAA–2005–20588; Directorate Identifier minor editorial corrections. We have [FR Doc. 05–11042 Filed 6–6–05; 8:45 am] 2005–CE–11–AD. determined that these minor BILLING CODE 4910–13–P FOR FURTHER INFORMATION CONTACT: Karl corrections: Schletzbaum, Aerospace Engineer, —Are consistent with the intent that ACE–112, Small Airplane Directorate, was proposed in the NPRM for 901 Locust, Room 301, Kansas City, correcting the unsafe condition; and Missouri 64106; telephone: 816–329– —Do not add any additional burden 4146; facsimile: 816–329–4090. upon the public than was already SUPPLEMENTARY INFORMATION: proposed in the NPRM.
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Changes to 14 CFR Part 39—Effect on of compliance. This material previously What is the cost impact of this AD on the AD was included in each individual AD. owners/operators of the affected How does the revision to 14 CFR part Since this material is included in 14 airplanes? We estimate the following 39 affect this AD? On July 10, 2002, the CFR part 39, we will not include it in costs to seal with firewall sealant the FAA published a new version of 14 CFR future AD actions. gaps between the bottom fuselage cover part 39 (67 FR 47997, July 22, 2002), Costs of Compliance (belly fairing) and the firewall: which governs the FAA’s AD system. This regulation now includes material How many airplanes does this AD that relates to altered products, special impact? We estimate that this AD affects flight permits, and alternative methods 199 airplanes in the U.S. registry.
Total cost per Total cost on U.S. oper- Labor cost Parts cost airplane ators
1 work hour × $65 per hour = $65 ...... $140 $205 $205 × 199 = $40,795
Authority for This Rulemaking the national government and the States, Adoption of the Amendment or on the distribution of power and What authority does FAA have for I responsibilities among the various Accordingly, under the authority issuing this rulemaking action? Title 49 levels of government. delegated to me by the Administrator, of the United States Code specifies the the Federal Aviation Administration Will this AD involve a significant rule FAA’s authority to issue rules on amends part 39 of the Federal Aviation or regulatory action? For the reasons aviation safety. Subtitle I, section 106 Regulations (14 CFR part 39) as follows: describes the authority of the FAA discussed above, I certify that this AD: Administrator. Subtitle VII, Aviation 1. Is not a ‘‘significant regulatory PART 39—AIRWORTHINESS Programs, describes in more detail the action’’ under Executive Order 12866; DIRECTIVES scope of the agency’s authority. 2. Is not a ‘‘significant rule’’ under the I 1. The authority citation for part 39 We are issuing this rulemaking under DOT Regulatory Policies and Procedures continues to read as follows: the authority described in Subtitle VII, (44 FR 11034, February 26, 1979); and part A, subpart III, section 44701, 3. Will not have a significant Authority: 49 U.S.C. 106(g), 40113, 44701. economic impact, positive or negative, ‘‘General requirements.’’ Under that § 39.13 [Amended] on a substantial number of small entities section, Congress charges the FAA with I promoting safe flight of civil aircraft in under the criteria of the Regulatory 2. FAA amends § 39.13 by adding a air commerce by prescribing regulations Flexibility Act. new AD to read as follows: for practices, methods, and procedures We prepared a summary of the costs 2005–11–07 Extra Flugzeugproduktions- the Administrator finds necessary for to comply with this AD (and other Und Vertriebs-GmbH: Amendment 39– safety in air commerce. This regulation information as included in the 14109; Docket No. FAA–2005–20588; is within the scope of that authority Regulatory Evaluation) and placed it in Directorate Identifier 2005–CE–11–AD. because it addresses an unsafe condition the AD Docket. You may get a copy of When Does This AD Become Effective? that is likely to exist or develop on this summary by sending a request to us (a) This AD becomes effective on July 18, products identified in this AD. at the address listed under ADDRESSES. 2005. Include ‘‘Docket No. FAA–2005–20588; Regulatory Findings What Other ADs Are Affected by This Directorate Identifier 2005–CE–11–AD’’ Action? Will this AD impact various entities? in your request. We have determined that this AD will (b) None. List of Subjects in 14 CFR Part 39 not have federalism implications under What Airplanes Are Affected by This AD? Executive Order 13132. This AD will Air transportation, Aircraft, Aviation (c) This AD affects the following airplane not have a substantial direct effect on safety, Incorporation by reference, models and serial numbers that are the States, on the relationship between Safety. certificated in any category:
Model Serial numbers
(1) Group A: (i) EA–300 ...... 0 through 67. (ii) EA–300S ...... 0 through 31. (iii) EA–300L ...... 0 through 167, 168 through 170 (or converted to 1168 through 1170), 1171, 172 (or converted to 1172), 173 (or converted to 1173), and 1174 through 1181. (iv) EA–300/200 ...... 0 through 31. (2) Group B: EA–300, EA–300S, EA–300L, and EA–300/ All. 200.
What Is the Unsafe Condition Presented in Germany. The actions specified in this AD What Must I Do To Address This Problem? This AD? are intended to prevent fuel from flowing (e) To address this problem, you must do (d) This AD is the result of mandatory behind the firewall in the case of a fuel leak. the following: continuing airworthiness information (MCAI) This could result in an in-flight fire, which issued by the airworthiness authority for could cause loss of the airplane and crew.
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Actions Compliance Procedures
(1) For airplanes listed in Group A of paragraph Within the next 50 hours time-in-service (TIS) Follow EXTRA Flugzeugproduktions-und (c)(1) of this AD: Seal with firewall sealant or 3 calendar months after July 18, 2005 Vertriebs-GmbH Service Bulletin No. 300– the gaps between the bottom fuselage cover (the effective date of this AD), whichever 4–04, Issue: A, dated May 25, 2004. (belly fairing) and the firewall. occurs first, unless already done. (2) For airplanes listed in Group B of paragraph As of July 18, 2005 (the effective date of this Follow EXTRA Flugzeugproduktions-und (c)(1) of this AD: Whenever you install the AD), whenever you install the bottom fuse- Vertriebs-GmbH Service Bulletin No. 300– bottom fuselage cover (belly fairing), do the lage cover (belly fairing). 4–04, Issue: A, dated May 25, 2004. sealing procedure required by paragraph (e)(1) of this AD.
May I Request an Alternative Method of Issued in Kansas City, Missouri, on May DATES: This AD becomes effective on Compliance? 26, 2005. July 18, 2005. (f) You may request a different method of Kim Smith, As of July 18, 2005, the Director of the compliance or a different compliance time Acting Manager, Small Airplane Directorate, Federal Register approved the for this AD by following the procedures in 14 Aircraft Certification Service. incorporation by reference of certain CFR 39.19. Unless FAA authorizes otherwise, [FR Doc. 05–11041 Filed 6–6–05; 8:45 am] publications listed in the regulation. send your request to your principal BILLING CODE 4910–13–P ADDRESSES: To get the service inspector. The principal inspector may add information identified in this AD, comments and will send your request to the contact Precise Flight, Inc., 63354 Manager, Standards Office, Small Airplane DEPARTMENT OF TRANSPORTATION Powell Butte Road, Bend, Oregon 97701, Directorate, FAA. For information on any telephone: (800) 547–2558; facsimile: already approved alternative methods of Federal Aviation Administration (541) 388–1105; electronic mail: compliance, contact Karl Schletzbaum, [email protected]; Aerospace Engineer, ACE–112, Small 14 CFR Part 39 Internet: http://www.preciseflight.com/ Airplane Directorate, 901 Locust, Room 301, svs.html. Kansas City, Missouri 64106; telephone: 816– [Docket No. FAA–2004–19354; Directorate To view the AD docket, go to the 329–4146; facsimile: 816–329–4090. Identifier 2004–CE–30–AD; Amendment 39– Docket Management Facility; U.S. 14107; AD 2005–11–05] Department of Transportation, 400 Is There Other Information That Relates to Seventh Street, SW., Nassif Building, This Subject RIN 2120–AA64 Room PL–401, Washington, DC 20590– (g) German AD Number D–2004–489, dated Airworthiness Directives; Precise 001 or on the Internet at http:// November 11, 2004, also addresses the dms.dot.gov. The docket number is subject of this AD. Flight, Inc. Models SVS I and SVS IA Standby Vacuum Systems FAA–2004–19354; Directorate Identifier Does This AD Incorporate Any Material by 2004–CE–3–AD. Reference? AGENCY: Federal Aviation FOR FURTHER INFORMATION CONTACT: Mr. (h) You must do the actions required by Administration (FAA), DOT. Tin Truong, Aerospace Engineer, FAA, this AD following the instructions in EXTRA ACTION: Final rule. Seattle Aircraft Certification Office, Flugzeugproduktions-und Vertriebs-GmbH 1601 Lind Avenue, SW., Renton, Service Bulletin No. 300–4–04, Issue: A, SUMMARY: The FAA adopts a new Washington 98055–4065; telephone: dated May 25, 2004. The Director of the airworthiness directive (AD) for all (425) 917–6486; facsimile: (425) 917– Federal Register approved the incorporation airplanes equipped with Precise Flight, 6590. by reference of this service bulletin in Inc. (Precise Flight) Models SVS I and SUPPLEMENTARY INFORMATION: accordance with 5 U.S.C. 552(a) and 1 CFR SVS IA standby vacuum systems (SVS) part 51. To get a copy of this service installed under certain supplemental Discussion information, contact EXTRA type certificates or through field What events have caused this AD? AD Flugzeugproduktions-und Vertriebs-GmbH, approval. This AD requires you to 99–24–10 currently requires the Schwarze Heide 21, 46569 Hu¨ nxe, Germany; replace the airplane flight manual following on all aircraft equipped with telephone: 011–011–49–2858–9137–30; supplement (AFMS) in the airplane Precise Flight, Inc. Model SVS III facsimile: 49–2858–9137–30. To review flight manual with the appropriate standby vacuum systems installed copies of this service information, go to the revision and install placards as defined under the applicable supplemental type National Archives and Records in the AFMS, upgrade the Model SVS I certificate (STC) or through field Administration (NARA). For information on or SVS IA SVS to the Model VI SVS, and approval: the availability of this material at NARA, go add the instructions for continued —Incorporate revised operating to: http://www.archives.gov/federal_register/ airworthiness (ICA) to the maintenance limitations for the affected SVS into code_of_federal_regulations/ schedule for the aircraft. This AD results the airplane flight manual (AFM); ibr_locations.html or call (202) 741–6030. To from several reports of failed shuttle —Inspect (repetitively) the push-pull view the AD docket, go to the Docket control valves of the standby vacuum cable, vacuum lines, saddle fittings, Management Facility; U.S. Department of system (SVS) and one report of an and shuttle valve for correct Transportation, 400 Seventh Street, SW., airplane crash with a fatality in which installation and damage (wear, Nassif Building, Room PL–401, Washington, improper use of the SVS was a factor. chafing, deterioration, and so forth); DC 20590–001 or on the Internet at http:// We are issuing this AD to correct and dms.dot.gov. The docket number is FAA– problems with the SVS before failure or —Correct any discrepancy found and 2005–20588; Directorate Identifier 2005–CE– malfunction during instrument flight conduct a functional test of the 11–AD. rules (IFR) flight that can lead to pilot vacuum system after the inspections. disorientation and loss of control of the The SVS is intended to provide aircraft. emergency vacuum power for aircraft
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instruments when the primary vacuum Comment Issue No. 1: Manufacturer’s What is FAA’s response to the system fails. The design of the Precise Mailing and Internet Address concern? To avoid confusion about the Flight, Inc. Models SVS I and SVS IA What is the commenter’s concern? applicability of the proposed AD we SVS is similar to the Model SVS III SVS, Precise Flight has moved and requests will include a note to read: ‘‘This AD and so may not be able to provide use of the new mailing address. Further, affects Models SVS I and SVS IA only. sufficient vacuum power without Precise Flight Inc. requests use of a The Model SVS III is addressed by AD– actions similar to those of AD 99–24–10. specific Internet address for information 99–24–10, Amendment 39–11434 (64 The Precise Flight, Inc. Models SVS I about the Models SVS I and SVS IA. FR 66747, November 30, 1999).’’ and SVS IA SVS are installed on aircraft What is FAA’s response to the Conclusion through a supplemental type certificate concern? We agree with the commenter. (STC) or through field approval. The We will include the correct mailing and What is FAA’s final determination on Applicability section of the proposed Internet addresses in the AD. this issue? We have carefully reviewed AD lists the applicable STCs and aircraft Comment Issue No. 2: Increase in Cost the available data and determined that that could have these SVS installed. of Parts air safety and the public interest require adopting the AD as proposed except for This list is not meant to be exhaustive What is the commenter’s concern? nor does it include all aircraft with the the changes discussed above and minor Precise Flight states that the cost of editorial corrections. We have systems installed through field parts has increased since FAA first approval. determined that these changes and issued the NPRM. The cost of parts has minor corrections: What is the potential impact if FAA changed from $77 to $195. Precise took no action? Failure or malfunction Flight requests the AD to reflect this —Are consistent with the intent that of the SVS during IFR flight can lead to increase. was proposed in the NPRM for pilot disorientation and loss of control What is FAA’s response to the correcting the unsafe condition; and of the aircraft. concern? The FAA agrees with the —Do not add any additional burden commenter. We have re-evaluated the Has FAA taken any action to this upon the public than was already proposed cost of parts and determined proposed in the NPRM. point? Consequently, we issued a that the correct cost of parts is $195. proposal to amend part 39 of the Federal We will change the final AD action to Changes to 14 CFR Part 39—Effect on Aviation Regulations (14 CFR part 39) to include the correct cost of parts. the AD include an AD that would apply to all airplanes equipped with Precise Flight, Comment Issue No. 3: Correct How does the revision to 14 CFR part Inc. (Precise Flight) Models SVS I and Reference to Service Information 39 affect this AD? On July 10, 2002, the SVS IA standby vacuum systems (SVS) What is the commenter’s concern? FAA published a new version of 14 CFR installed under certain supplemental Precise Flight states that the correct part 39 (67 FR 47997, July 22, 2002), type certificates or through field report number for the cited service which governs the FAA’s AD system. approval. This proposal was published information should change from 08080 This regulation now includes material in the Federal Register as a notice of to 08074. The commenter requests that that relates to altered products, special proposed rulemaking (NPRM) on March the final AD action reflect the correct flight permits, and alternative methods 4, 2005 (70 FR 10517). The NPRM report number. of compliance. This material previously proposed to require you to replace the What is FAA’s response to the was included in each individual AD. airplane flight manual supplement concern? We agree with Precise Flight Since this material is included in 14 (AFMS) in the airplane flight manual that the correct report number is 08074. CFR part 39, we will not include it in with the appropriate revision and install We will change the final AD action to future AD actions. show that the correct report number placards as defined in the AFMS, Costs of Compliance upgrade the Model SVS I or SVS IA SVS 08074. to the Model VI SVS, and add the Comment Issue No. 4: AD Applicability How many airplanes does this AD instructions for continued airworthiness What is the commenter’s concern? impact? We estimate that this AD affects (ICA) to the maintenance schedule for Precise Flight states that to avoid 800 airplanes in the U.S. registry. the aircraft. confusion, the final AD action should What is the cost impact of this AD on Comments state that the AD does not apply to the owners/operators of the affected Models SVS V or SVS III which have airplanes? We estimate the following Was the public invited to comment? been upgraded to the SVS V following costs to replace the airplane flight We provided the public the opportunity the FAA-approved alternative method of manual supplement (AFMS) in the to participate in developing this AD. compliance (AMOC) dated December airplane flight manual with the The following presents the comments 22, 1999. The commenter requests the appropriate revision. We have no way of received on the proposal and FAA’s final AD action include a note that determining the number of airplanes response to each comment: clarifies the affected models of SVS. that may need this replacement:
Total cost Labor cost Parts cost per airplane
1 work hour × $65 = $65 ...... None ...... $65
We estimate the following costs to do report including the instructions for We have no way of determining the any upgrade to the Model VI SVS, continued airworthiness (ICA) to the number of airplanes that may need this install placards, and add the installation maintenance schedule for the aircraft. upgrade:
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Total cost per Labor cost Parts cost airplane
3 work hour × $65 = $195 ...... $195 $390
Authority for This Rulemaking responsibilities among the various the Federal Aviation Administration What authority does FAA have for levels of government. amends part 39 of the Federal Aviation issuing this rulemaking action? Title 49 Will this AD involve a significant rule Regulations (14 CFR part 39) as follows: of the United States Code specifies the or regulatory action? For the reasons PART 39—AIRWORTHINESS FAA’s authority to issue rules on discussed above, I certify that this AD: DIRECTIVES aviation safety. Subtitle I, Section 106 1. Is not a ‘‘significant regulatory describes the authority of the FAA action’’ under Executive Order 12866; I 1. The authority citation for part 39 Administrator. Subtitle VII, Aviation 2. Is not a ‘‘significant rule’’ under the continues to read as follows: Programs, describes in more detail the DOT Regulatory Policies and Procedures scope of the agency’s authority. (44 FR 11034, February 26, 1979); and Authority: 49 U.S.C. 106(g), 40113, 44701. We are issuing this rulemaking under 3. Will not have a significant § 39.13 [Amended] the authority described in Subtitle VII, economic impact, positive or negative, on a substantial number of small entities Part A, Subpart III, Section 44701, I 2. FAA amends § 39.13 by adding a under the criteria of the Regulatory ‘‘General requirements.’’ Under that new AD to read as follows: section, Congress charges the FAA with Flexibility Act. promoting safe flight of civil aircraft in We prepared a summary of the costs 2005–11–05 Precise Flight, Inc.: air commerce by prescribing regulations to comply with this AD (and other Amendment 39–14107; Docket No. for practices, methods, and procedures information as included in the FAA–2004–19354; Directorate Identifier 2004–CE–3–AD. the Administrator finds necessary for Regulatory Evaluation) and placed it in safety in air commerce. This regulation the AD Docket. You may get a copy of When Does This AD Become Effective? is within the scope of that authority this summary by sending a request to us (a) This AD becomes effective on July 18, because it addresses an unsafe condition at the address listed under ADDRESSES. 2005. that is likely to exist or develop on Include ‘‘Docket No. FAA–2004–19354; What Other ADs Are Affected by This products identified in this AD. Directorate Identifier 2004–CE–3–AD’’ in your request. Action? Regulatory Findings (b) None. List of Subjects in 14 CFR Part 39 Will this AD impact various entities? What Airplanes Are Affected by This AD? We have determined that this AD will Air transportation, Aircraft, Aviation safety, Incorporation by reference, (c) This AD affects Models SVS I and SVS not have federalism implications under IA standby vacuum systems (SVS), installed Executive Order 13132. This AD will Safety. on, but not limited to, the following aircraft not have a substantial direct effect on Adoption of the Amendment that are certificated in any category. These the States, on the relationship between systems can be installed under the applicable the national government and the States, I Accordingly, under the authority supplemental type certificate (STC) or or on the distribution of power and delegated to me by the Administrator, through field approval:
Affected STC Make and model/series aircraft
SA2160NM ...... Raytheon Beech Models 23, A23, A23A, A23–19, 19A, B19, B19A, A23–24, B23, C23, A24, A24R, B24R, C24R, 35, A35, B35, C35, D35, E35, F35, G35, 35R, H35, J35, K35, M35, N35, P35, S35, V35, V35A, V35B, 35–33, 35–A33, 35–B33, 35–C33, 35–C33A, E33, E33A, E33C, F33, F33A, F33C, G33, 36, A36, A36TC, B36TC, 4S(YT–34), A45(T– 34A, B–45), D45(T–34B), and Series 77. SA2161NM ...... Raytheon Beech Model V35B. SA2162NM ...... The Cessna Aircraft Company Models 321 (Navy OE–2), 172N, 172P, 172D, 172M, 172L, 172I, 172H (USAF T–41A), 172F (USAF T–41A), 172E, 172C, 172, 172Q, 172B, TR182, T182, 305B (Military T0–1D, 0–1D, 0–1F), R172E Se- ries, 175C, 175B, 175A, R172F (USAF T–41D), P172D, 150, 150A, 150C, 150B, 150D, A152, A150M, 150M, 152, A150L, 150K, 150J, 150H, 150G, 150F, 210–5 (205), 210–5A (205A), T210R, P210R, T210N, 210N, P210N, 210M, T210L, 210K, T210K, 210J, T210H, 210H, T210G, T210F, 210F, 210D, 210C, 210B, 210A, 210L, 210, A185F, A185E, 185E, 185C, 185B, 185A, 185, 140A, 305A (USAF 0–1A), 305C (USAF 0–1E), 305D (USAF 0–1G), 305F, 120, 170B, 170A, 170, 207A, T207, 207, 206, P206B, P206, P206C, TU206A, TU206G, TU206E, TU206C, P206D, U206G, U206F, U206E, U206D, U206C, U206A, TP206E, TP206D, TP206C, TP206A, P206E, TU206D, T188C, A188B, A188, 188A, and 188. SA2164NM ...... The Cessna Aircraft Company Model 180A. SA2167NM ...... The New Piper Aircraft, Inc. Models PA–16S and PA–16, Series PA–24, Models PA–24–400, PA–24–250, PA–24, PA– 24–260, PA–18S–‘‘135’’, PA–18‘‘105’’ (Special), PA–18AS–‘‘135’’, PA–18A–‘‘135’’, PA–18–‘‘150’’, PA–19S, PA–19 (Army L–18C), PA–18S–‘‘150’’, and PA–18–‘‘135’’ (Army L–21B), Series PA–18, Models PA–18–‘‘125’’ (Army L– 21A), PA–18S, PA–18A, PA–18, and PA–18S–‘‘125’’, Series PA–19 and PA–20, Models PA–20, PA–20S, PA–20– ‘‘135’’, PA–20–‘‘115’’, and PA–22S–160, Series PA–22, Models PA–22–160, PA–22S–150, PA–22–150, PA–22, PA– 22–108, PA–22–135, and PA–22S–135, Series PA–28, Model PA–28R–200, Series PA–28S and PA–28R, Models PA–28–236, PA–28–201T, PA–28R–180, PA–28RT–201T, PA–28RT–201, PA–28R–201, PA–28–181, PA–28S–180, PA–28R–201T, PA–28S–160, PA–28–235, PA–28–180, PA–28–161, PA–28–160, PA–28–151, PA–28–150, and PA– 28–140, Series PA–25 (Normal Category (Cat.)), Models PA–25–260 (Normal Cat.), PA–25–235 (Normal Cat.),PA– 25 (Normal Cat.), L–14, PA–12S, PA–12, PA–14, PA–15, PA–17, PA–38–112, PA–46–310P, and PA–32–260, Series PA–32 and PA–32R, Models PA–32–300, PA–32–301T, PA–32–301, PA–32R–301T, PA–32R–301(HP), PA–32R– 301(SP), PA–32RT–300T, PA–32RT–300, PA–32R–300, and PA–32S–300, Series PA–36, Models PA–36–375 (Nor- mal Cat.), PA–36–300 (Normal Cat.), and PA–36–285 (Normal Cat.)
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Affected STC Make and model/series aircraft
SA2168NM ...... Learjet Inc. Model Learjet 24D Mooney Aircraft Corporation Models M20C, M20M, M20K, M20J, M20G, M20B, M20A, M20, M20F, M20E, and M22. SA2683NM ...... Aermacchi S.p.A. Models F.260, F.260B, S.205–22/R, S.205–18/F, S.205–18/R, S.205–20/F, S.205–20/R, S.208A, and S.208 Aerocar, Incorporated Model I Aerodifusion, S.L. Model Jodel D–1190S Aeromere S.A. Model Falco F.8.L Aeronautica Macchi S.p.A. Models AL60, AL60–B, AL60–F5, and AL60–C5 Aeronautica Macchi S.p.A. & Aerfer- Industrie Aerospaziali Meridionali S.p.A. Model AM–3 Aeronca Aircraft Corporation Models S15AC and 15AC Ag Cat Corporation Models G–164B, G–164, and G–164A Alliance Aircraft Group, LLC Models H–395 (USAF L–28A or U– 10B), H–250, H–295 (USAF U–10D), HT–295, H–391 (USAF YL–24), H–391B, H–700, and H–395A American Champion Aircraft Corp. Models 7AC, 7FC, 7ACA, S7AC, 7BCM (L–16A), 7CCM (L–16B), 7DC, S7DC, 7EC, S7EC, 7ECA, 7GC, 7GCA, 7GCAA, 7GCB, 7GCBA, 7GCBC, 7HC, 7JC, 7KC, 7KCAB, 11BC, S11AC, S11BC, 11AC, 11CC, S11CC, 8KCAB, and 8GCBC Arctic Aircraft Company, Inc. Models S–1A, S–1A–65F, S–1A–85F, S–1A–90F, S–1B2, S–1B1 (Army L–6), and S–1B1 (Army XL–6) Augustair, Inc. Models 2150A, 2180, and 2150 Avions Jodel Models D– 1190, 150, D–140–B, and DR–1050 Bellanca Aircraft Corporation Models 14–19–2, 14–19–3A, 17–30, 17–31, 17– 31TC, 14–9, 14–9L, 14–12F–3, 14–13, 14–13–2, 14–13–3, 14–13–3W, 17–30A, 17–31A, and 17–31ATC Biemond, C. Model Teal CB1 Board, G.R. Model Columbia XJL–1 Booth, Lee F. dba Taylorcraft Aerospace Models F21, F21A, and F19 Chaparral Motors, Inc. Models 2T–1A–1 and 2T–1A–2 Clark Aircraft, Inc. Models 12 and 1000 Commander Aircraft Company Models 114A, 112, 112B, 112TCA, 114, and 112TC C. Itoh Aircraft Maintenance and Engineering Co., Ltd. Model N–62 DaimlerChrysler Aerospace AG Models Bolkow Jr., BO–209–150 FV & RV, BO–209–160 FV & RV, and BO–209–150 FF Flugzeugwerke Altenrheim AG (FFA) Model AS 202/15 ‘‘BRAVO’’ Found Brothers Aviation Limited Model FBA–2C Fuji Heavy Industries, Ltd. Models FA–200–180AO, FA–200–180, and FA–200–160 Funk Air- craft Company Model Funk C Goodyear Aircraft Corporation Model GA–22A Gulfstream Aerospace Corporation Model 111 Jamieson Corporation, The Model J–2–L1B Kearns, Edward Scott Model Trojan A–2 Luscombe Aircraft Corporation Model 11A Luscombe, The Don, Aviation History Foundation, Inc. Models T–8F, 8A, 8E, 8D, 8B, 8, 8F, and 8C Maule Aerospace Technology, Inc. Models Bee Dee M–4–210, Bee Dee M–4–180S, Bee Dee M–4–180C, Bee Dee M–4T, Bee Dee M–4–210S, Bee Dee M–4S, Bee Dee M–4–210T, Bee Dee M–4–210C, Bee Dee M–4– 220S, Bee Dee M–4–220T, Bee Dee M–5–180C, Bee Dee M–5–200, Bee Dee M–5–210TC, Bee Dee M–7–235, Bee Dee M–6–235, Bee Dee M–4C, Bee Dee M–5–220C, Bee Dee M–5–235C, Bee Dee M–6–180, Bee Dee M–5–210C, Bee Dee MX–7–235, Bee Dee M–4, MX–7–160C, Bee Dee M–7 Series, Bee Dee MXT–7–180, Bee Dee MT–7–235, Bee Dee M–8–235, Bee Dee MX–7–160, Bee Dee MXT–7–160, Bee Dee MX–7–180A, Bee Dee MXT–7–180A, Bee Dee MX–7–180B, Bee Dee M–7–235B, Bee Dee M–6 Series, Bee Dee MX–7 Series, Bee Dee M–7–235C, Bee Dee M–4 Series, Bee Dee M–8 Series, Bee Dee MX–7–180C, Bee Dee M–7–260C, M–7–260, MT–7–260, Bee Dee MX– 7–180, and Bee Dee M–7–235A Nardi S.A. Model FN–333 Navion Aircraft Company, Ltd. Models Navion (L–17A), Navion A (L–17B), Navion A (L–17C), Navion B, Navion D, Navion E, Navion F, Navion G, and Navion H Procaer Progetti Costruzioni Aeronautiche Models F 15/C, F 15/B, and F 15/E Prop-Jets, Inc. Models 200, 200A, 200B, 200C, and 200D REVO, Incorporated Models Lake LA–4–200, Colonial C–1, Colonial C–2, Colonial Lake Model 250, and Lake LA–4 Sky International Inc. Models S–1S, S–2A, S–2, and S–1T SOCATA—Groupe Aerospatiale Models MS880B, MS885, MS892A–150, MS892E–150, MS893A, MS893E, MS894A, MS894E, TB10, TB20, TB21, and TB9 Sud Aviation Models Gardan GY.80–160, Gardan GY.80–150, and Gardan GY.80–180 Swift Museum Foundation, Inc. Models GC–1A and GC–1B Tiger Aircraft LLC Models AA–1, AA–1A, AA–1B, AA–1C, AA–5, AA–5A, and AA–5B Univair Aircraft Corporation Models 415–C, 415–CD, 108–2, 108–3, and F–1 Univair Aircraft Corporation Models F– 1A, E, 415D, M10, A–2–A, and A–2 Wright, Jr., Elzie Model F–1. SE1779NM ...... Textron Lycoming, AVCO Corporation Series IGO–540, IO–320, IGSO–540, O–290, GSO–580, O–320, IGO–480, GO– 480, GSO–435, O–435, SO–580–A1A, SO–580–A1B, SO–580, O–540, VO–540, TIO–541, TIO–360, TO–360, and LTO–360. SE1780NM ...... Curtiss-Wright Corporation Models A70 and A70–2 Teledyne Continental Motors Series TSIO–470, A–65, A–75, C75, C–125, C–115, Models A100–1 and A100–2, Series E–165, E–185, O–200, C90, C145, O–300, E–225, O–470, IO– 470, Models FSO–470A, FSO–526A, FSO–526–C, Series GO–300, Models GSO–526–A and 6–260–A, Series IO– 360, Models 6–320–B, GIO–470–A, T6–320–A, IO–346–B, and IO–346–A, Series IO–520, GTSIO–520, TSIO–520, TSIO–360, and LTSIO–360.
Note: This AD affects Models SVS I and What Is the Unsafe Condition Presented in SVS before failure or malfunction during SVS IA only. The Model SVS III is addressed This AD? instrument flight rules (IFR) flight that can by AD–99–24–10, Amendment 39–11434 (64 (d) This AD is the result of several reports lead to pilot disorientation and loss of FR 66747, November 30, 1999). of failed shuttle control valves of the SVS control of the aircraft. and one report of an airplane crash with a What Must I Do To Address This Problem? fatality in which improper use of the SVS was a factor. The actions specified in this AD (e) To address this problem, you must do are intended to correct problems with the the following:
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Actions Compliance Procedures
(1) Incorporate the airplane flight manual sup- Within 30 days after July 18, 2005 (the effec- Not applicable. plement (AFMS) in the airplane flight manual tive date of this AD), unless already done. with the appropriate revision in the FAA-ap- proved airplane flight manual (AFM). (i) The owner/operator holding at least a private pilot certificate as authorized by section 43.7 of the Federal Aviation Regulations (14 CFR 43.7) may do the flight manual changes re- quirement of this AD. (ii) Make an entry in the aircraft records show- ing compliance with this portion of the AD fol- lowing section 43.9 of the Federal Aviation Regulations (14 CFR 43.9). (2) Install placards described in the AFMS ...... Before further flight after incorporating the Follow the MANUAL VALVE Standby Vacuum AFMS in the FAA-approved airplane flight System AFM SUPPLEMENT, dated Feb- manual (AFM) required by paragraph (e)(1) ruary 4, 2000. of this AD. (3) Upgrade the Model SVS I or SVS IA SVS to Within 1 year after July 18, 2005 (the effective Follow Precise Flight, Inc. Installation Report the Model VI SVS, install the appropriate date of this AD), unless already done. No. 08074, Standby Vacuum System Model placards, and add the installation report in- VI Upgrade Kit, dated January 7, 2000. cluding the instructions for continued air- worthiness (ICA) to the maintenance sched- ule for the aircraft. (4) Do not install any Model SVS I or SVS IA As of July 18, 2005 (the effective date of this Not applicable. SVS without also doing the actions required AD). by paragraphs (e)(1), (e)(2) and (e)(3) of this AD.
May I Request an Alternative Method of view the AD docket, go to the Docket installing a new, improved foam seal Compliance? Management Facility; U.S. Department of around certain ducts in the forward (f) You may request a different method of Transportation, 400 Seventh Street, SW., cargo compartment. This AD is compliance or a different compliance time Nassif Building, Room PL–401, Washington, prompted by the detection of incorrectly DC 20590–001 or on the Internet at http:// for this AD by following the procedures in 14 installed smoke barrier seals around the CFR 39.19. Unless FAA authorizes otherwise, dms.dot.gov. The docket number is FAA– 2004–19354; Directorate Identifier 2004–CE– electrical/electronic equipment air send your request to your principal supply and exhaust ducts. We are inspector. The principal inspector may add 30–AD. issuing this AD to prevent fire comments and will send your request to the Issued in Kansas City, Missouri, on May Manager, Seattle Aircraft Certification Office 25, 2005. extinguishing agent from leaking out of the seals around the ducts in the (ACO), FAA. For information on any already David R. Showers, approved alternative methods of compliance, forward cargo compartment in the event contact Mr. Tin Truong, Aerospace Engineer, Acting Manager, Small Airplane Directorate, of an in-flight fire, which could result in Aircraft Certification Service. FAA, Seattle Aircraft Certification Office, failure to extinguish the fire and 1601 Lind Avenue, SW., Renton, Washington [FR Doc. 05–10864 Filed 6–6–05; 8:45 am] consequent smoke or fire extinguishing 98055–4065; telephone: (425) 917–6486; BILLING CODE 4910–13–P agent entering a compartment occupied facsimile: (425) 917–6590. by passengers or crew. Does This AD Incorporate Any Material by DATES: This AD becomes effective July Reference? DEPARTMENT OF TRANSPORTATION 12, 2005. (g) You must do the actions required by Federal Aviation Administration The incorporation by reference of a this AD following the instructions in Precise Flight, Inc. Installation Report No. 08074, certain publication listed in the AD is Standby Vacuum System Model VI Upgrade 14 CFR Part 39 approved by the Director of the Federal Register as of July 12, 2005. Kit, dated January 7, 2000 and the MANUAL [Docket No. FAA–2004–19990; Directorate VALVE Standby Vacuum System AFM Identifier 2004–NM–199–AD; Amendment ADDRESSES: For service information SUPPLEMENT, dated February 4, 2000. The 39–14114; AD 2005–11–12] identified in this AD, contact Boeing Director of the Federal Register approved the Commercial Airplanes, P.O. Box 3707, incorporation by reference of this service RIN 2120–AA64 Seattle, Washington 98124–2207. bulletin in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. To get a copy of this Airworthiness Directives; Boeing Docket: The AD docket contains the service information, contact Precise Flight, Model 767–200, –300, and –300F Series proposed AD, comments, and any final Inc., 63354 Powell Butte Road, Bend, Oregon Airplanes disposition. You can examine the AD 97701, telephone: (800) 547–2558; facsimile: docket on the Internet at http:// (541) 388–1105; electronic mail: AGENCY: Federal Aviation dms.dot.gov, or in person at the Docket [email protected]; Internet: Administration (FAA), Department of Management Facility office between 9 http://www.preciseflight.com/svs.html. To Transportation (DOT). a.m. and 5 p.m., Monday through review copies of this service information, go Friday, except Federal holidays. The to the National Archives and Records ACTION: Final rule. Administration (NARA). For information on Docket Management Facility office the availability of this material at NARA, go SUMMARY: The FAA is adopting a new (telephone (800) 647–5227) is located on to: http://www.archives.gov/federal_register/ airworthiness directive (AD) for certain the plaza level of the Nassif Building at code_of_federal_regulations/ Boeing Model 767–200, –300, and the U.S. Department of Transportation, ibr_locations.html or call (202) 741–6030. To –300F series airplanes. This AD requires 400 Seventh Street, SW., room PL–401,
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Washington, DC. This docket number is from operator to operator, they are responsibilities among the various FAA–2004–19990; the directorate almost impossible to calculate. We have levels of government. identifier for this docket is 2004–NM– made no change to the AD in this For the reasons discussed above, I 199–AD. regard. certify that this AD: (1) Is not a ‘‘significant regulatory FOR FURTHER INFORMATION CONTACT: Conclusion Barbara Mudrovich, Aerospace action’’ under Executive Order 12866; (2) Is not a ‘‘significant rule’’ under Engineer, Cabin Safety and We have carefully reviewed the DOT Regulatory Policies and Procedures Environmental Systems Branch, ANM– available data, including the comments (44 FR 11034, February 26, 1979); and 150S, FAA, Seattle Aircraft Certification that have been submitted, and determined that air safety and the (3) Will not have a significant Office, 1601 Lind Avenue, SW., Renton, economic impact, positive or negative, Washington 98055–4056; telephone public interest require adopting the AD as proposed. on a substantial number of small entities (425) 917–6477; fax (425) 917–6590. under the criteria of the Regulatory SUPPLEMENTARY INFORMATION: The FAA Costs of Compliance Flexibility Act. proposed to amend 14 CFR part 39 with There are about 468 airplanes of the We prepared a regulatory evaluation an AD for certain Boeing Model 767– affected design in the worldwide fleet. of the estimated costs to comply with 200, –300, and –300F series airplanes. This AD affects about 342 airplanes of this AD. See the ADDRESSES section for That action, published in the Federal U.S. registry. a location to examine the regulatory Register on January 5, 2005 (70 FR 727), For Group 1 and 2 airplanes: The evaluation. proposed to require installing a new, foam seal installation around the List of Subjects in 14 CFR Part 39 improved foam seal around certain cooling air supply and exhaust ducts ducts in the forward cargo takes about 2 work hours per airplane, Air transportation, Aircraft, Aviation compartment. at an average labor rate of $65 per work safety, Incorporation by reference, Safety. Comments hour. The cost of parts is minimal. Based on these figures, the estimated Adoption of the Amendment We provided the public the cost of the installation is $130 per opportunity to participate in the airplane. I Accordingly, under the authority development of this AD. We have For Group 2 airplanes: The foam seal delegated to me by the Administrator, considered the comments that have installation around the avionics cooling the FAA amends 14 CFR part 39 as been submitted on the proposed AD. and refrigeration unit duct takes about follows: Two commenters concur with the 2 work hours per airplane, at an average PART 39—AIRWORTHINESS proposed AD. labor rate of $65 per work hour. The DIRECTIVES Request To Change Costs of Compliance cost of parts is minimal. Based on these Section figures, the estimated cost of the I 1. The authority citation for part 39 installation is $130 per airplane. continues to read as follows: One commenter estimates that the proposed modification of the foam seals Authority for This Rulemaking Authority: 49 U.S.C. 106(g), 40113, 44701. requires approximately 3.5 work hours Title 49 of the United States Code § 39.13 [Amended] per airplane, at a cost of $22,220 for its specifies the FAA’s authority to issue I 2. The FAA amends § 39.13 by adding fleet. The commenter notes that it has rules on aviation safety. Subtitle I, accomplished the modification on all of the following new airworthiness Section 106, describes the authority of directive (AD): its fleet. A second commenter estimates the FAA Administrator. Subtitle VII, that the required work hours for the Aviation Programs, describes in more 2005–11–12 Boeing: Amendment 39–14114. proposed AD would be 4.5 work hours detail the scope of the Agency’s Docket No. FAA–2004–19990; Directorate Identifier 2004–NM–199–AD. per airplane, as specified in the authority. referenced service information, at an We are issuing this rulemaking under Effective Date estimated cost of $292.50 per airplane. the authority described in Subtitle VII, (a) This AD becomes effective July 12, We infer that the commenters are Part A, Subpart III, Section 44701, 2005. asking that the work hour estimate ‘‘General requirements.’’ Under that Affected ADs specified in the ‘‘Costs of Compliance’’ section, Congress charges the FAA with section be increased. We do not agree. promoting safe flight of civil aircraft in (b) None. The cost impact figures discussed in AD air commerce by prescribing regulations Applicability rulemaking actions represent only the for practices, methods, and procedures (c) This AD applies to Boeing Model 767– time necessary to perform the specific the Administrator finds necessary for 200, –300, and –300F series airplanes, actions actually required by the AD. safety in air commerce. This regulation certificated in any category; as identified in This AD requires installing a new, is within the scope of that authority Boeing Alert Service Bulletin 767–26A0119, improved foam seal around certain because it addresses an unsafe condition Revision 1, dated July 15, 2004. ducts in the forward cargo that is likely to exist or develop on Unsafe Condition compartment. We recognize that in products identified in this rulemaking (d) This AD was prompted by the detection accomplishing the requirements of any action. of incorrectly installed smoke barrier seals AD, operators may incur incidental around the electrical/electronic equipment costs in addition to the direct costs. Regulatory Findings air supply and exhaust ducts. We are issuing However, the cost analysis in AD We have determined that this AD will this AD to prevent fire extinguishing agent rulemaking actions typically does not not have federalism implications under from leaking out of the seals around the ducts include incidental costs, such as the Executive Order 13132. This AD will in the forward cargo compartment in the event of an in-flight fire, which could result time required to gain access and close not have a substantial direct effect on in failure to extinguish the fire and up, planning time, or time necessitated the States, on the relationship between consequent smoke or fire extinguishing agent by other administrative actions. Because the national government and the States, entering a compartment occupied by incidental costs may vary significantly or on the distribution of power and passengers or crew.
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Compliance DEPARTMENT OF TRANSPORTATION identifier for this docket is 2004–NM– (e) You are responsible for having the 148–AD. actions required by this AD performed within Federal Aviation Administration the compliance times specified, unless the FOR FURTHER INFORMATION CONTACT: actions have already been done. 14 CFR Part 39 David A. Lawson, Aerospace Engineer, Airframe and Propulsion Branch, ANE– Seal Installation [Docket No. FAA–2005–20727; Directorate 171, FAA, New York Aircraft (f) Within 24 months or 8,000 flight hours Identifier 2004–NM–148–AD; Amendment Certification Office, 1600 Stewart after the effective date of this AD, whichever 39–14113; AD 2005–11–11] is first: Do the applicable actions required by Avenue, suite 410, Westbury, New York paragraphs (f)(1) and (f)(2) of this AD by RIN 2120–AA64 11590; telephone (516) 228–7327; fax doing all the actions specified in the (516) 794–5531. Accomplishment Instructions of Boeing Alert Airworthiness Directives; Bombardier Service Bulletin 767–26A0119, Revision 1, Model DHC–8–400, –401, and –402 SUPPLEMENTARY INFORMATION: The FAA dated July 15, 2004. Series Airplanes proposed to amend 14 CFR part 39 with (1) For Group 1 and 2 airplanes: Install a an AD for certain Bombardier Model foam seal around the four cooling air supply AGENCY: Federal Aviation DHC–8–400, –401, and –402 series and exhaust ducts in the electrical/electronic Administration (FAA), Department of airplanes. That action, published in the equipment bay in the forward cargo Transportation (DOT). compartment. Federal Register on March 30, 2005 (70 (2) For Group 2 airplanes: Install a foam ACTION: Final rule. FR 16170), proposed to require seal around the avionics cooling and repetitive inspections to detect SUMMARY: The FAA is adopting a new refrigeration unit duct in the forward cargo discrepancies of the attachment fittings compartment. airworthiness directive (AD) for certain Bombardier Model DHC–8–400, –401, of the outboard flap front spar at flap Credit for Actions Accomplished Previously and –402 series airplanes. This AD track Number 4 and Number 5 locations, (g) Accomplishing the applicable actions requires repetitive inspections to detect and corrective actions if necessary. The before the effective date of this AD in discrepancies of the attachment fittings proposed AD also would require accordance with Boeing Alert Service of the outboard flap front spar at flap eventual replacement of the attachment Bulletin 767–26A0119, dated April 19, 2001, fittings as terminating action for the is considered acceptable for compliance with track Number 4 and Number 5 locations, the corresponding actions in paragraph (f)(1) and corrective actions if necessary. This repetitive inspections. of this AD. AD also requires eventual replacement Explanation of Change to Applicability of the attachment fittings as terminating Alternative Methods of Compliance (AMOCs) action for the repetitive inspections. We have revised the applicability of This AD is prompted by the discovery the proposed AD to identify model (h) The Manager, Seattle Aircraft of several airplanes that have loose flap Certification Office, FAA, has the authority to designations as published in the most approve AMOCs for this AD, if requested in front spar attachment fittings at flap recent type certificate data sheet for the accordance with the procedures found in 14 track Number 4 and Number 5 locations. affected models. CFR 39.19. We are issuing this AD to prevent the attachment fittings from becoming Comments Material Incorporated by Reference detached, and consequent loss of (i) You must use Boeing Alert Service control of the airplane. We provided the public the Bulletin 767–26A0119, Revision 1, dated July opportunity to participate in the DATES: This AD becomes effective July 15, 2004, to perform the actions that are development of this AD. We have 12, 2005. required by this AD, unless the AD specifies considered the comment that was otherwise. The Director of the Federal The incorporation by reference of Register approves the incorporation by certain publications listed in the AD is submitted on the proposed AD. The reference of this document in accordance approved by the Director of the Federal commenter supports the proposed AD. with 5 U.S.C. 552(a) and 1 CFR part 51. To Register as of July 12, 2005. get copies of the service information, contact Conclusion Boeing Commercial Airplanes, P.O. Box ADDRESSES: For service information 3707, Seattle, Washington 98124–2207. To identified in this AD, contact We have carefully reviewed the view the AD docket, go to the Docket Bombardier, Inc., Bombardier Regional available data, including the comment Management Facility, U.S. Department of Aircraft Division, 123 Garratt Boulevard, that has been submitted, and Transportation, 400 Seventh Street SW., Downsview, Ontario M3K 1Y5, Canada. determined that air safety and the room PL–401, Nassif Building, Washington, Docket: The AD docket contains the public interest require adopting the AD DC. To review copies of the service information, go to the National Archives and proposed AD, comments, and any final with the change described previously. Records Administration (NARA). For disposition. You can examine the AD We have determined that this change information on the availability of this docket on the Internet at http:// will neither increase the economic material at the NARA, call (202) 741–6030, dms.dot.gov, or in person at the Docket burden on any operator nor increase the or go to http://www.archives.gov/ Management Facility office between 9 scope of the AD. federal_register/code_of_federal_regulations/ _ a.m. and 5 p.m., Monday through ibr locations.html. Friday, except Federal holidays. The Costs of Compliance Issued in Renton, Washington, on May 26, Docket Management Facility office 2005. The following table provides the (telephone (800) 647–5227) is located on estimated costs for U.S. operators to Ali Bahrami, the plaza level of the Nassif Building at comply with this AD. Manager, Transport Airplane Directorate, the U.S. Department of Transportation, Aircraft Certification Service. 400 Seventh Street, SW., room PL–401, [FR Doc. 05–11058 Filed 6–6–05; 8:45 am] Washington, DC. This docket number is BILLING CODE 4910–13–P FAA–2005–20727; the directorate
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ESTIMATED COSTS
Number of Action Work hours Average labor Parts Cost per U.S.-registered Fleet hours rate per hour airplane airplanes
Inspections (per inspec- 1 $65 $0 $65 22 $1,430 per inspection cycle. tion cycle). Permanent repair...... 20 65 0 1,300 22 $28,600.
Authority for This Rulemaking Adoption of the Amendment 173, Issue 2, dated June 17, 2003; or Bombardier RD8/4–57–180, Issue 2, dated Title 49 of the United States Code I Accordingly, under the authority September 22, 2003; or Bombardier RD8/4– specifies the FAA’s authority to issue delegated to me by the Administrator, 57–226, Issue 2, dated November 11, 2003; rules on aviation safety. Subtitle I, the FAA amends 14 CFR part 39 as has not been done prior to the effective date section 106, describes the authority of follows: of this AD: Within 400 flight hours after the the FAA Administrator. Subtitle VII, effective date of this AD, do a general visual Aviation Programs, describes in more PART 39—AIRWORTHINESS inspection to detect discrepancies of the front DIRECTIVES spar attachment fittings at the flap track detail the scope of the Agency’s Number 4 location on both the left and right authority. I 1. The authority citation for part 39 outboard flap assemblies. Do the inspection We are issuing this rulemaking under continues to read as follows: in accordance with the service bulletin. the authority described in Subtitle VII, Repeat the inspection thereafter at intervals part A, subpart III, section 44701, Authority: 49 U.S.C. 106(g), 40113, 44701. not to exceed 800 flight hours until the terminating action required by paragraph (j) ‘‘General requirements.’’ Under that § 39.13 [Amended] section, Congress charges the FAA with of this AD is done. I 2. The FAA amends § 39.13 by adding promoting safe flight of civil aircraft in Note 1: For the purposes of this AD, a the following new airworthiness general visual inspection is: ‘‘A visual air commerce by prescribing regulations directive (AD): examination of an interior or exterior area, for practices, methods, and procedures installation, or assembly to detect obvious the Administrator finds necessary for 2005–11–11 Bombardier, Inc. (Formerly de damage, failure, or irregularity. This level of safety in air commerce. This regulation Havilland, Inc.): Amendment 39–14113. inspection is made from within touching is within the scope of that authority Docket No. FAA–2005–20727; distance unless otherwise specified. A mirror Directorate Identifier 2004–NM–148–AD. because it addresses an unsafe condition may be necessary to ensure visual access to that is likely to exist or develop on Effective Date all surfaces in the inspection area. This level of inspection is made under normally products identified in this rulemaking (a) This AD becomes effective July 12, available lighting conditions such as 2005. action. daylight, hangar lighting, flashlight, or Regulatory Findings Affected ADs droplight and may require removal or (b) None. opening of access panels or doors. Stands, We have determined that this AD will ladders, or platforms may be required to gain not have federalism implications under Applicability proximity to the area being checked.’’ Executive Order 13132. This AD will (c) This AD applies to Bombardier Model Inspections of Flap Track Number 5 not have a substantial direct effect on DHC–8–400, –401 and –402 series airplanes, the States, on the relationship between certificated in any category; serial numbers (h) Within 400 flight hours after the the national government and the States, 4001, and 4003 through 4093 inclusive. effective date of this AD, do a general visual inspection to detect discrepancies of the front or on the distribution of power and Unsafe Condition spar attachment fittings at the flap track responsibilities among the various (d) This AD was prompted by the Number 5 location on both the left and right levels of government. discovery of several airplanes that have loose outboard flap assemblies. Do the inspection For the reasons discussed above, I flap front spar attachment fittings at flap in accordance with the service bulletin. certify that this AD: track Number 4 and Number 5 locations. We Repeat the inspection thereafter at intervals (1) Is not a ‘‘significant regulatory are issuing this AD to prevent the attachment not to exceed 800 flight hours until the action’’ under Executive Order 12866; fittings from becoming detached, and terminating action required by paragraph (j) consequent loss of control of the airplane. of this AD is done. (2) Is not a ‘‘significant rule’’ under DOT Regulatory Policies and Procedures Compliance Corrective Actions (44 FR 11034, February 26, 1979); and (e) You are responsible for having the (i) If any discrepancy is found during any (3) Will not have a significant actions required by this AD performed within inspection required by paragraph (g) or (h) of economic impact, positive or negative, the compliance times specified, unless the this AD, before further flight, repair the on a substantial number of small entities actions have already been done. discrepancy in accordance with the service under the criteria of the Regulatory bulletin. Where the service bulletin says to Service Bulletin Reference contact the manufacturer for repair Flexibility Act. (f) The term ‘‘service bulletin,’’ as used in instructions, before further flight, repair in We prepared a regulatory evaluation this AD, means the Accomplishment accordance with a method approved by of the estimated costs to comply with Instructions of Bombardier Alert Service either the Manager, New York Aircraft this AD. See the ADDRESSES section for Bulletin A84–57–06, Revision ‘‘B,’’ dated Certification Office (ACO), FAA; or Transport a location to examine the regulatory March 9, 2004. Canada Civil Aviation (TCCA) (or its delegated agent). evaluation. Inspections of Flap Track Number 4 List of Subjects in 14 CFR Part 39 (g) For any front spar attachment fitting at Terminating Action—Permanent Repair the flap track Number 4 location on which (j) Within 4,000 flight hours after the Air transportation, Aircraft, Aviation Bombardier Repair Drawing (RD) RD8/4–57– effective date of this AD, do the permanent safety, Incorporation by reference, 228, Issue 1, dated October 27, 2003; in repair required by paragraphs (j)(1) and (j)(2) Safety. combination with Bombardier RD8/4–57– of this AD. Completing the permanent repair
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constitutes terminating action for the acceptable for compliance with the IS4Q5750002, contains the issue date of the requirements of this AD. inspections required by this AD. document; no other page of the document (1) Modify the attachment of the front No Reporting Requirement contains this information. Only page 1 of fittings of flap track Number 4 on both the Bombardier Repair Drawing RD8/4–57–226, left and right outboard flap assemblies in (l) Although the service bulletin specifies Issue 2, contains the issue date of the accordance with Bombardier RD8/4–57–226, to submit certain information to the document; no other page of this document manufacturer, this AD does not include that Issue 2, dated November 11, 2003. Fittings on contains this information.) The Director of requirement. which the repairs specified in Bombardier the Federal Register approves the RD8/4–57–173, Issue 2, dated June 17, 2003; Alternative Methods of Compliance incorporation by reference of these or Bombardier RD8/4–57–180, Issue 2, dated (AMOCs) documents in accordance with 5 U.S.C. September 22, 2003; have been done do not (m) The Manager, New York Aircraft 552(a) and 1 CFR part 51. To get copies of require that Bombardier RD8/4–57–226 be Certification Office, FAA, has the authority to the service information, contact Bombardier, incorporated at those fitting locations. approve AMOCs for this AD, if requested in Inc., Bombardier Regional Aircraft Division, (2) Modify the attachment of the front accordance with the procedures found in 14 123 Garratt Boulevard, Downsview, Ontario fittings of flap track Number 5 on both the CFR 39.19. M3K 1Y5, Canada. To view the AD docket, left and right outboard flap assemblies in go to the Docket Management Facility, U.S. accordance with Bombardier Modification Related Information Department of Transportation, 400 Seventh Summary Package IS4Q5750002, Revision D, (n) Canadian airworthiness directive CF– Street SW., room PL–401, Nassif Building, dated December 1, 2003. 2004–11, dated June 28, 2004, also addresses Washington, DC. To review copies of the the subject of this AD. Inspections Accomplished According to service information, go to the National Previous Issue of Service Bulletin Material Incorporated by Reference Archives and Records Administration (k) Inspections accomplished before the (o) You must use the service documents (NARA). For information on the availability effective date of this AD in accordance with listed in Table 1 of this AD to perform the of this material at the NARA, call (202) 741– Bombardier Alert Service Bulletin A84–57– actions that are required by this AD, unless 6030, or go to http://www.archives.gov/ 06, dated November 5, 2003; or Revision the AD specifies otherwise. (Only page 2 of federal_register/code_of_federal_regulations/ ‘‘A,’’ dated December 16, 2003; are Bombardier Modification Summary Package ibr_locations.html.
TABLE 1.—MATERIAL INCORPORATED BY REFERENCE
Revision/ Service document issue level Date
Bombardier Alert Service Bulletin A84–57–06 ...... B ...... March 9, 2004. Bombardier Modification Summary Package IS4Q5750002 ...... D ...... December 1, 2003. Bombardier Repair Drawing RD8/4–57–226 ...... 2 ...... November 11, 2003.
Issued in Renton, Washington, on May 26, Utility Steam Generating Units and the interest, the agency may issue a rule 2005. Removal of Coal- and Oil-Fired Electric without providing notice and an Ali Bahrami, Utility Steam Generating Units From the opportunity for public comment. We Manager, Transport Airplane Directorate, Section 112(c) List.’’ The final rule was have determined that there is good Aircraft Certification Service. published in the Federal Register on cause for making today’s action final [FR Doc. 05–11057 Filed 6–6–05; 8:45 am] March 29, 2005 (70 FR 15994) and without prior proposal and opportunity BILLING CODE 4910–13–P contains two discrete regulatory actions: for comment because the changes to the The reversal of the December 2000 rule are minor technical corrections, are finding based on EPA’s conclusion that noncontroversial, and do not ENVIRONMENTAL PROTECTION it is neither appropriate nor necessary to substantively change the agency actions AGENCY regulate coal- and oil-fired electric taken in the final rule. Thus, notice and utility steam generating units (Utility public procedure are unnecessary. We 40 CFR Part 63 Units) under section 112 of the Clean find that this constitutes good cause Air Act (CAA); and the removal of coal- under 5 U.S.C. 553(b)(B). [OAR–2002–0056; FRL–7921–5] and oil-fired Utility Units from the CAA DATES: Effective Date: June 7, 2005. RIN 2060–AM96 section 112(c) list. FOR FURTHER INFORMATION CONTACT: Ms. This document corrects certain Carol Holmes, OGC Attorney, Office of Revision of December 2000 Regulatory explanatory text in the final rule General Counsel, EPA, (AR–2344), Finding on the Emissions of published at 70 FR 15993. These Washington, DC 20460, telephone Hazardous Air Pollutants From Electric number: (202) 564–8709; fax number: Utility Steam Generating Units and the corrections do not affect the substance of the two above-noted regulatory (202) 564–5603; e-mail address: Removal of Coal- and Oil-Fired Electric [email protected]. Utility Steam Generating Units From actions, nor do they change the rights or the Section 112(c) List obligations of any party. Rather, this SUPPLEMENTARY INFORMATION: notice merely corrects certain I. Background AGENCY: Environmental Protection explanatory text in support of EPA’s Agency (EPA). actions. Thus, it is proper to issue this On March 15, 2005 (70 FR 15994), ACTION: Final rule; correction. notice of final rule corrections without EPA issued a final rule in which EPA notice and comment. Section 553 of the revised the regulatory finding issued on SUMMARY: This action corrects and Administrative Procedure Act (APA), 5 December 15, 2000, pursuant to CAA clarifies certain text of the final rule U.S.C. 553(b)(B), provides that, when an section 112(n)(1)(A), and concluded that entitled ‘‘Revision of December 2000 agency for good cause finds that notice it is neither appropriate nor necessary to Regulatory Finding on the Emissions of and public procedure are impracticable, regulate coal- and oil-fired Utility Units Hazardous Air Pollutants from Electric unnecessary, or contrary to the public under CAA section 112. Based on this
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revised finding, EPA removed coal- and utility-attributable exposures’’ before ‘‘commercial’’ and insert in lieu thereof oil-fired Utility Units from the CAA the word ‘‘exceeding.’’ ‘‘marine.’’ section 112(c) list. This clarification is necessary to make This revision corrects the erroneous clear that the statement is limited to use in this sentence of the term II. Correction to Regulatory Finding utility-attributable mercury exposures. ‘‘commercial’—which refers to Final Rule (70 FR 15994–16035) As noted throughout the March 29, 2005 purchased marine, freshwater, and This notice corrects certain final rule, EPA’s analysis pursuant to estuarine fish—by replacing it with the explanatory text, which is the text in the CAA section 112(n)(1)(A) focused on term ‘‘marine,’’ which refers to ocean final rule that supports the two above- utility-attributable mercury exposures. fish, whether commercially obtained or noted regulatory actions. The (See 70 FR 15998, 16022.) self-caught. The water quality criterion corrections can be categorized generally (5) On page 16024, column 3, in the discussed in this paragraph was based as follows: (a) Insertion of citations last paragraph that begins on that page, on possible exposure to methylmercury inadvertently omitted from the text; (b) in the second sentence, add the phrase through the consumption of marine, not correction of typographical errors; (c) ‘‘to utility-attributable methylmercury’’ commercial, fish, as described in more clarification of confusing explanatory before the word ‘‘above.’’ detail on page 16014, column 3, in the text; and (d) correction of incorrect This clarification is necessary to make second full paragraph. factual statements. clear that the statement is limited to (9) On page 16023, column 3, in the Below, we identify each technical utility-attributable mercury exposures. second full paragraph, in the second correction to the explanatory text at 70 See explanation provided in item 4 sentence, insert the phrase ‘‘at or’’ FR 15994–16035 and provide a brief above. before the word ‘‘below’’ in both places. explanation for the corrections. (6) At the following locations, delete This revision corrects an arithmetic Specifically, 70 FR 15994–16035 is the word ‘‘anglers’’ or ‘‘angler’’ and error. corrected, as follows: insert in lieu thereof ‘‘fishers’’ or (10) On page 16024, column 2, in the (1) On page 16012, column 1, in the ‘‘fisher’’ respectively: second full paragraph, in the second second full paragraph, after the second (i) On page 16012, column 1, in the sentence, delete the number ‘‘293’’ and sentence, add the following citation: See last paragraph, in the first sentence; insert in lieu thereof the number ‘‘394.’’ Centers for Disease Control, Blood (ii) On page 16022, column 1, in the This revision corrects an error in the Mercury Levels in Young Children and first full paragraph, in the last sentence; summary of the public comments to Childbearing-Aged Women—United (iii) On page 16023, column 3, in the accurately reflect the data provided by States, 1999–2002, MMWR Morb Mortal second full paragraph, in both places; the commenters. (iv) On page 16024, column 1, in the Wkly Rep. 2004 Nov 5; 53(43):1018– (11) On page 15999, footnote 14, in carryover paragraph from page 16023, in 1020. http://www.cdc.gov/mmwr/ the second sentence, insert the word the second full sentence; preview/mmwrhtml/mm5343a5.htm. ‘‘not’’ before the word ‘‘adequate’’ The We are adding the above citation (v) On page 16024, in the first full corrected sentence should read: because the explanatory text on page paragraph, in all three places that it ‘‘Section 112(m)(6) also requires EPA to 16012 of the final rule summarizes the appears; promulgate additional regulations Center for Disease Control report, but (vi) On page 16024, column 2, in the setting emission standards or control inadvertently fails to include the first full paragraph, in the last sentence; requirements, ‘‘in accordance with’’ citation to that report. (vii) On page 16024, column 2, in the (2) On page 16024, column 3, in the second full paragraph, in the first section 112 and under the authority of second full paragraph, after the second sentence; and section 112(m)(6), if EPA determines sentence, add the following: http:// (viii) On page 16024, column 3, in the that the other provisions of section 112 www.epa.gov/ttn/atw/nata/ last paragraph that begins on that page, are not adequate, and such regulations gloss1.html#hazardquotient. in the second sentence. are appropriate and necessary to prevent This revision adds an inadvertently The term ‘‘fishers’’ is appropriate serious adverse public health and omitted citation for the text quoted in because it includes anglers, who are environmental effects.’’ the noted paragraph. individuals who catch fish with a pole This change corrects a typographical (3) On page 16012, column 1, in the or rod, as well as persons who catch fish error. The word ‘‘not’’ was inadvertently second full paragraph, change the fourth in other ways. Our conclusions in the omitted from the sentence and without sentence to read as follows: final rule were based on information that term, the sentence improperly ‘‘The analysis of the first 1,500 of concerning fishers, not anglers; thus, all summarizes CAA section 112(m)(6), these women, which was based on references to ‘‘anglers’’ or ‘‘angler’’ which requires EPA to first determine if 1999–2000 data, showed that Hg blood should be to ‘‘fishers’’ or ‘‘fisher,’’ the other provisions of CAA section 112 levels were higher in the women who respectively. are ‘‘adequate to prevent serious adverse reported eating three or more servings of (7) On page 16022, column 3, in the effects to public health and serious or fish in the month before they were carryover paragraph from column 2, widespread environmental effects,’’ and tested.’’ delete the number ‘‘292.8’’ and insert in then make an assessment based on that We are revising this sentence because lieu thereof the number ‘‘394.’’ determination whether additional the original sentence in the preamble is The sentence at issue here standards or control requirements are confusing as to the number of women summarizes a study by the Great Lakes ‘‘necessary and appropriate.’’ (42 U.S.C. studied and the years of data examined Indian Fish and Wildlife Commission. 7412(m)(6).’’ in the study. This revision clarifies that The sentence incorrectly summarizes (12) On page 16009, renumber the analysis of 1,500 women concerned one of the figures cited in that study. sections ‘‘3.’’ and ‘‘4.’’ as sections ‘‘2.’’ only the first part of a larger study of The above-noted change rectifies this and ‘‘3.,’’ respectively. 3,600 women and was based on 1999– inadvertent error and correctly reflects This revision corrects a typographical 2000 data. the number in the study. error, as the sections were improperly (4) On page 16024, column 1, in the (8) On page 16023, column 3, in the numbered. first full paragraph, in the second carryover paragraph from column 2, in (13) On page 16010, renumber section sentence, insert the phrase ‘‘having the first full sentence, delete the word ‘‘C.’’ as section ‘‘B.’’
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See explanation provided in item 12, Consultation and Coordination with Dated: June 1, 2005. above. Indian Tribal Governments (65 FR Jeffrey R. Holmstead, (14) On page 16021, renumber section 67249, November 9, 2000). The Assistant Administrator, Office of Air and ‘‘5.’’ as section ‘‘3.’’ technical corrections also are not subject Radiation. See explanation provided in item 12, to Executive Order 13045, Protection of [FR Doc. 05–11273 Filed 6–6–05; 8:45 am] above. Children from Environmental Health BILLING CODE 6560–50–P (15) On page 16024, column 2, last and Safety Risks (62 FR 19885, April 23, paragraph, first sentence, delete the 1997) because this action is not reference ‘‘VII.B.,’’ and insert in lieu economically significant. DEPARTMENT OF HOMELAND thereof the reference ‘‘VI.B.’’ SECURITY This correction accurately cites the The corrections are not subject to Executive Order 13211, Actions appropriate cross-reference. Federal Emergency Management (16) On page 16026, column 2, first Concerning Regulations That Agency full paragraph, delete the references Significantly Affect Energy Supply, ‘‘VII.D.’’ and ‘‘VII.E.,’’ and insert in lieu Distribution, or Use (66 FR 28355, May 44 CFR Part 65 thereof the references ‘‘VI.D.’’ and 22, 2001) because this action is not a ‘‘VI.E.,’’ respectively. significant regulatory action under Changes in Flood Elevation See explanation provided in item 15, Executive Order 12866. Determinations above. The corrections do not involve (17) On page 16027, column 3, first AGENCY: Federal Emergency changes to the technical standards full paragraph, delete the reference Management Agency, Emergency ‘‘VII.E.,’’ and insert in lieu thereof the related to test methods or monitoring Preparedness and Response Directorate, reference ‘‘VI.E.’’ methods; thus, the requirements of Department of Homeland Security. section 12(d) of the National See explanation provided in item 15, ACTION: Final rule. above. Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272) do not SUMMARY: Modified Base (1% annual- III. Statutory and Executive Order apply. chance) Flood Elevations (BFEs) are Reviews The corrections also do not involve finalized for the communities listed Under Executive Order 12866, special consideration of environmental below. These modified elevations will Regulatory Planning and Review (58 FR justice-related issues as required by be used to calculate flood insurance 51735, October 4, 1993), this action is Executive Order 12898, Federal Actions premium rates for new buildings and not a ‘‘significant regulatory action’’ and to Address Environmental Justice in their contents. is therefore not subject to review by the Minority Populations and Low-Income EFFECTIVE DATES: The effective dates for Office of Management and Budget Populations (59 FR 7629, February 16, these modified BFEs are indicated on (OMB). This action is not a ‘‘major rule’’ 1994). the table below and revise the Flood as defined by 5 U.S.C. 804(2). The Insurance Rate Maps (FIRMs) in effect The Congressional Review Act, 5 technical corrections do not impose an for the listed communities prior to this information collection burden under the U.S.C. 801 et seq., as added by the Small date. provisions of the Paperwork Reduction Business Regulatory Enforcement ADDRESSES: Fairness Act of 1996 (SBREFA), The modified BFEs for each Act of 1995 (44 U.S.C. 3501 et seq.). community are available for inspection Because EPA has made a ‘‘good generally provides that before a rule at the office of the Chief Executive cause’’ finding that this action is not may take effect, the agency Officer of each community. The subject to notice and comment promulgating the rule must submit a respective addresses are listed in the requirements under the APA or any rule report, which includes a copy of table below. other statute, it is not subject to the the rule, to each House of the Congress FOR FURTHER INFORMATION CONTACT: regulatory flexibility provisions of the and to the Comptroller General of the Regulatory Flexibility Act (5 U.S.C. 601 U.S. The EPA will submit a report Doug Bellomo, P.E., Hazard Identification Section, Emergency et seq.), or to sections 202 and 205 of the containing this final action and other Preparedness and Response Directorate, Unfunded Mandates Reform Act of 1995 required information to the U.S. Senate, Federal Emergency Management (UMRA) (Public Law 104–4). In the U.S. House of Representatives, and addition, this action does not Agency, 500 C Street, SW., Washington, the Comptroller General of the U.S. DC 20472, (202) 646–2903. significantly or uniquely affect small prior to publication of today’s action in governments or impose a significant the Federal Register. Today’s action is SUPPLEMENTARY INFORMATION: The intergovernmental mandate, as not a ‘‘major rule’’ as defined by 5 Federal Emergency Management Agency described in sections 203 and 204 of the U.S.C. 804(2). The final rule will be makes the final determinations listed below for the modified BFEs for each UMRA. effective on June 7, 2005. The corrections do not have community listed. These modified substantial direct effects on the States, The EPA’s compliance with the above elevations have been published in or on the relationship between the statutes and Executive Orders for the newspapers of local circulation and national government and the States, or underlying rule is discussed in the ninety (90) days have elapsed since that on the distribution of power and March 29, 2005 Federal Register notice publication. The Mitigation Division responsibilities among the various containing ‘‘EPA’s revision to the Director of the Emergency Preparedness levels of government, as specified in December 2000 Regulatory Finding on and Response Directorate has resolved Executive Order 13132, Federalism (64 the Emissions of Hazardous Air any appeals resulting from this FR 43255, August 10, 1999). Pollutants from Electric Utility Steam notification. Today’s action also does not Generating Units and the Removal of The modified BFEs are not listed for significantly or uniquely affect the Coal- and Oil-Fired Electric Utility each community in this notice. communities of tribal governments, as Steam Generating Units From the However, this rule includes the address specified by Executive Order 13175, Section 112(c) List’’ (70 FR 15994). of the Chief Executive Officer of the
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community where the modified BFE These modified BFEs are used to meet September 30, 1993, Regulatory determinations are available for the floodplain management Planning and Review, 58 FR 51735. inspection. requirements of the NFIP and are also Executive Order 12612, Federalism The modifications are made pursuant used to calculate the appropriate flood to Section 206 of the Flood Disaster insurance premium rates for new This rule involves no policies that Protection Act of 1973, 42 U.S.C. 4105, buildings built after these elevations are have federalism implications under and are in accordance with the National made final, and for the contents in these Executive Order 12612, Federalism, Flood Insurance Act of 1968, 42 U.S.C. buildings. dated October 26, 1987. The changes in BFEs are in 4001 et seq., and with 44 CFR part 65. Executive Order 12778, Civil Justice accordance with 44 CFR 65.4. For rating purposes, the currently Reform effective community number is shown National Environmental Policy Act and must be used for all new policies This rule meets the applicable This rule is categorically excluded and renewals. standards of Section 2(b)(2) of Executive from the requirements of 44 CFR Part Order 12778. The modified BFEs are the basis for 10, Environmental Consideration. No the floodplain management measures environmental impact assessment has List of Subjects in 44 CFR Part 65 that the community is required to either been prepared. Flood insurance, Floodplains, adopt or to show evidence of being Reporting and record keeping already in effect in order to qualify or Regulatory Flexibility Act requirements. to remain qualified for participation in The Mitigation Division Director of I the National Flood Insurance Program Accordingly, 44 CFR Part 65 is the Emergency Preparedness and amended to read as follows: (NFIP). Response Directorate certifies that this These modified BFEs, together with rule is exempt from the requirements of PART 65—[AMENDED] the floodplain management criteria the Regulatory Flexibility Act because required by 44 CFR 60.3, are the modified base flood elevations are I 1. The authority citation for Part 65 minimum that are required. They required by the Flood Disaster continues to read as follows: should not be construed to mean that Protection Act of 1973, 42 U.S.C. 4105, Authority: 42 U.S.C. 4001 et seq.; the community must change any and are required to maintain community Reorganization Plan No. 3 of 1978, 3 CFR, existing ordinances that are more eligibility in the NFIP. No regulatory 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, stringent in their floodplain flexibility analysis has been prepared. 3 CFR, 1979 Comp., p. 376. management requirements. The community may at any time enact Regulatory Classification § 65.4 [Amended] stricter requirements of its own, or This final rule is not a significant I 2. The tables published under the pursuant to policies established by other regulatory action under the criteria of authority of § 65.4 are amended as Federal, State, or regional entities. Section 3(f) of Executive Order 12866 of follows:
Dates and names of news- State and county Location paper where notice was Chief executive officer of Effective date of Community published community modification No.
Arkansas: Washington City of Fayetteville .. November 23, 2004, Novem- The Honorable Dan Coody, November 12, 2004 050216 County, (Case ber 30, 2004, Northwest Mayor, City of Fayetteville, No. 04–06– Arkansas Times. 113 W. Mountain, Fayette- 1740P), ville, AR 72701. (FEMA Docket No. P7640). Sebastian, (Case City of Fort Smith ... September 15, 2004, Sep- The Honorable C. Ray September 27, 2004 055013 No. 03–06– tember 22, 2004, South- Baker, Jr., Mayor, City of 847P), (FEMA west Times Record. Fort Smith, 4420 Victoria Docket No. Drive, Fort Smith, AR P7638). 72904. Pulaski, (Case City of Jacksonville July 14, 2004, July 21, 2004, The Honorable Tommy July 27, 2004 ...... 050180 No. 04–06– Jacksonville Patriot. Swaim, Mayor, City of 1607P), Jacksonville, P.O. Box (FEMA Docket 126, Jacksonville, AR No. P7638). 72076–0126. Pulaski, (Case City of Little Rock ... August 4, 2004, August 11, The Honorable Jim Dailey, November 10, 2004 050181 No. 03–06– 2004, Little Rock Free Mayor, City of Little Rock, 2526P), Press. Little Rock City Hall, 500 (FEMA Docket West Markham, Room No. P7638). 203, Little Rock, AR 72201. Pulaski, (Case City of Little Rock ... September 15, 2004, Sep- The Honorable Jim Dailey, December 22, 2004 050181 No. 03–06– tember 22, 2004, Little Mayor, City of Little Rock, 697P), (FEMA Rock Free Press. Little Rock City Hall, 500 Docket No. West Markham, Room P7638). 203, Little Rock, AR 72201.
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Dates and names of news- State and county Location paper where notice was Chief executive officer of Effective date of Community published community modification No.
Pope, (Case No. City of Russellville .. September 3, 2004, Sep- The Honorable Raye Turner, August 11, 2004 ..... 050178 04–06–853P), tember 10, 2004, The Mayor, City of Russellville, (FEMA Docket Courier. P.O. Box 428, Russellville, No. P7638). AR 72811. Illinois: Kane, (Case No. City of Aurora ...... March 3, 2004, March 10, The Honorable David L. Sto- February 3, 2004 .... 170320 03–05– 2004, The Beacon News. ver, Mayor, City of Aurora, 3991P), 44 East Downer Place, (FEMA Docket Aurora, IL 60507. No. P7636). McLean, (Case City of Bloomington November 12, 2004, Novem- The Honorable Judy February 18, 2005 .. 170490 No. 04–05– ber 19, 2004, The Markowitz, Mayor, City of 0891P), Pantagraph. Bloomington, 109 East (FEMA Docket Olive Street, Suite 200, No. P7640). Bloomington, IL 61701. Will, (Case No. Village of August 20, 2004, August 27, The Honorable Roger Claar, July 27, 2004 ...... 170812 03–05– Bolingbrook. 2004, The Bolingbrook Mayor, Village of 5771P), Sun. Boliingbrook, 375 West (FEMA Docket Briarcliff Road, No. P7638). Bolingbrook, IL 60440. Cook, (Case No. Village of Burr April 7, 2004, April 14, 2004, The Honorable Jo Irmen, July 14, 2004 ...... 170071 03–05– Ridge. The Suburban Life. President, Village of Burr 1460P), Ridge, Village Hall, 7660 (FEMA Docket County Line Road, Burr No. P7636). Ridge, IL 60521. Cook, (Case No. Unincorporated June 24, 2004, July 1, 2004, The Hon. Donald H. September 30, 2004 170054 03–05– Areas. Orland Township Mes- Wlodarski, Commissioner, 3989P), senger. Cook County, 69 West (FEMA Docket Washington Street, Suite No. P7638). 2830, Chicago, IL 60602. Cook, (Case No. Unincorporated October 13, 2004, October The Hon. Donald H. October 1, 2004 ...... 170054 04–05– Areas. 20, 2004, The Chicago Wlodarski, Commissioner, 4062P), Tribune. Cook County, 69 West (FEMA Docket Washington Street, Suite No. P7640). 2830, Chicago, IL 60602. Cook, (Case No. Unincorporated October 21, 2004, October The Hon. Donald H. January 27, 2004 .... 170054 03–05– Areas. 28, 2004, Orland Town- Wlodarski, Commissioner, 5180P), ship Messenger. Cook County, 69 West (FEMA Docket Washington Street, Suite No. P7640). 2830, Chicago, IL 60602. Will, (Case No. Village of Frankfort July 22, 2004, July 29, 2004, The Honorable Raymond June 29, 2004 ...... 170701 04–05– The Star. Rossi, Mayor, Village of 0768P), Frankfort, 432 West Ne- (FEMA Docket braska Street, Frankfort, No. P7638). IL 60423. Kane, and Unincorporated March 18, 2004, March 25, The Honorable Michael June 24, 2004 ...... 170896 DeKalb, (Case Areas. 2004, The Elburn Herald. McCoy, Chairman, Kane No. 03–05– County Board, Kane 3994P), County Government Cen- (FEMA Docket ter, 719 South Batavia Av- No. P7636). enue, Bldg. A, Geneva, IL 60134. Kane, (Case No. Unincorporated November 10, 2004, Novem- The Honorable Michael February 16, 2005 .. 170896 04–05– Areas. ber 17, 2004, Kane Coun- McCoy, Chairman, Kane 2895P), ty Chronicle. County Board, Kane (FEMA Docket County Government Cen- No. P7640). ter, 719 South Batavia Av- enue, Bldg. A, Geneva, IL 60134. Kane, and Village of Maple March 18, 2004, March 25, Mr. Mark T. Delany, Village June 24, 2004 ...... 171018 DeKalb, (Case Park. 2004, The Elburn Herald. President, Village of No. 03–05– Maple Park, P.O. Box 3994P), 220, Maple Park, IL 60151. (FEMA Docket No. P7636). McHenry, (Case City of Marengo ...... August 24, 2004, August 31, The Hon. Dennis November 30, 2004 170482 No. 04–05– 2004, The Northwest Her- Hammortree, Mayor, City 0758P), ald. of Marengo, 132 East (FEMA Docket Prairie Street, Marengo, IL No. P7638). 60152.
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Kane and Ken- Village of Mont- November 17, 2004, Novem- The Honorable Marilyn November 8, 2004 .. 170328 dall, (Case No. gomery. ber 24, 2004, Aurora Bea- Michelini, President, Vil- 04–05– con News. lage of Montgomery, Vil- 0087P), lage Hall, 1300 South (FEMA Docket Broadway, Montgomery, No. P7640). IL 60538. Cook, (Case No. Village of Orland June 24, 2004, July 1, 2004, The Hon. Daniel September 30, 2004 170140 03–05– Park. Orland Township Mes- McLaughlin, Mayor, Vil- 3989P), senger. lage of Orland Park, Vil- (FEMA Docket lage Hall, 14700 South No. P7638). Ravinia Avenue, Orland Park, IL 60462. Cook, (Case No. Village of Orland October 21, 2004, October The Hon. Daniel January 27, 2004 .... 170140 03–05–5180P) Park. 28, 2004, Orland Town- McLaughlin, Mayor, Vil- (FEMA Docket ship Messenger. lage of Orland Park, No. P7640). 14700 S. Ravinia Avenue, Orland Park, IL 60462. Will, (Case No. Village of Plainfield April 7, 2004, April 14, 2004, The Honorable Richard March 5, 2004 ...... 170771 04–05–0088P) The Enterprise. Rock, Mayor, Village of (FEMA Docket Plainfield, 24000 West No. P7636). Lockport Street, Plainfield, IL 60544. Will, (Case No. Village of Plainfield June 23, 2004, June 30, The Honorable Richard July 12, 2004 ...... 170771 04–05– 2004, The Enterprise. Rock, Mayor, Village of 1634P), Plainfield, 24000 West (FEMA Docket Lockport Street, Plainfield, No. P7638). IL 60544. Will, (Case No. Village of Plainfield September 22, 2004, Sep- The Honorable Richard September 9, 2004 170771 04–05– tember 29, 2004, The En- Rock, Mayor, Village of 0769P), terprise. Plainfield, 24000 West (FEMA Docket Lockport Street, Plainfield, No. P7638). IL 60544. Will, (Case No. Village of September 14, 2004, Sep- The Honorable Richard August 27, 2004 ..... 170712 03–05–1850P) Shorewood. tember 21, 2004, The Her- Chapman, President, Vil- (FEMA Docket ald News. lage of Shorewood, 903 No. P7638). West Jefferson Street, Shorewood, IL 60431. Cook, (Case No. Village of Tinley July 22, 2004, July 29, 2004, The Honorable Edward July 30, 2004 ...... 170169 03–05– Park. The Courier News. Zabrocki, Mayor, Village of 1457P), Tinley Park, 16250 South (FEMA Docket Oak Park Avenue, Tinley No. P7638). Park, IL 60477. Will, (Case No. Unincorporated June 23, 2004, June 30, The Honorable Joseph L. July 12, 2004 ...... 170695 04–05– Areas. 2004, The Enterprise. Mikan, Executive, Will 1634P), County, Will County Office (FEMA Docket Building 302 North Chi- No. P7638). cago Street, Joliet, IL 60432. Will, (Case No. Unincorporated September 14, 2004, Sep- The Honorable Joseph L. August 27, 2004 ..... 170695 03–05– Areas. tember 21, 2004, The Her- Mikan, Executive, Will 1850P), ald News. County, Will County Office (FEMA Docket Building 302 North Chi- No. P7638). cago Street, Joliet, IL 60432. Will, (Case No. Unincorporated November 12, 2004, Novem- The Honorable Joseph L. October 19, 2004 .... 170695 04–05– Areas. ber 19, 2004, The Herald Mikan, Will County Execu- 3541P), News. tive, Will County Office (FEMA Docket Building, 302 North Chi- No. P7640). cago Street, Joliet, IL 60432. Indiana: Hamilton, (Case City of Carmel ...... May 4, 2004, May 11, 2004, The Honorable James August 10, 2004 ..... 180081 No. 04–05– The Noblesville Ledger. Brainard, Mayor, City of 1640P), Carmel, One Civic (FEMA Docket Square, Carmel, IN 46032. No. P7636). Hamilton, (Case Town of Fishers ...... April 2, 2004, April 9, 2004 Mr. Michael J. Booth, Man- July 9, 2004 ...... 180423 No. 03–05– The Noblesville Ledger. ager, Town of Fishers, 5182P), Fishers Town Hall, One (FEMA Docket Municipal Drive, Fishers, No. P7636). IN 46038.
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Johnson, (Case City of Greenwood .. August 4, 2004, August 11, The Hon. Charles Hender- July 12, 2004 ...... 180115 No. 04–05– 2004, The Daily Journal. son, Mayor, City of Green- 0097P), wood, 2 North Madison (FEMA Docket Avenue, Greenwood, IN No. P7638). 46142. Marion, (Case City of Indianapolis November 12, 2004, Novem- The Honorable Bart Peter- February 18, 2005 .. 180159 No. 04–05– ber 19, 2004, The Indian- son, Mayor, City of Indian- 0895P), apolis Star. apolis, 2501 City-County (FEMA Docket Building, 200 E. Wash- No. P7640). ington Street, Indianapolis, IN 46204. Marion, (Case City of Indianapolis August 20, 2004, August 27, The Honorable Bart Peter- November 26, 2004 180159 No. 03–05– 2004, The Indianapolis son, Mayor, City of Indian- 3389P), Star. apolis, 2501 City-County (FEMA Docket Building, 200 E. Wash- No. P7638). ington Street, Indianapolis, IN 46204. Iowa: Story, (Case No. City of Ames ...... April 8, 2004, April 15, 2004, The Honorable Ted July 15, 2004 ...... 190254 03–07–892P), The Tribune. Tedesco, Mayor, City of (FEMA Docket Ames, 515 Clark Avenue, No. P7636). Ames, IA 50010. Scott, (Case No. City of Davenport .... March 24, 2004, March 31, The Hon. Charles W. June 30, 2004 ...... 190242 03–07–888P), 2004, Quad City Times. Brooke, Mayor, City of (FEMA Docket Davenport, City Council No. P7636). Office, 226 West 4th Street, Davenport, IA 52801. Johnson, (Case City of North Liberty October 20, 2004, October The Honorable Clair Mekota, October 5, 2004 ...... 190630 No. 04–07– 27, 2004, North Liberty Mayor, City of North Lib- 047P), (FEMA Leader. erty, 35 Vixen Lane, North Docket No. Liberty, IA 52317. P7640). Story, (Case No. Unincorporated March 25, 2004, April 1, The Honorable Jane Halli- July 1, 2004 ...... 190907 04–07–046P), Areas. 2004, The Tribune. burton, Story County, (FEMA Docket Board Commissioner, 900 No. P7636). 6th Street, Nevada, IA 50201. Kansas: Johnson, (Case City of Overland May 13, 2004, May 20, The Honorable Ed Eilert, April 21, 2004 ...... 200174 No. 04–07– Park. 2004, The Sun News- Mayor, City of Overland 026P), (FEMA papers. Park, City Hall, 8500 Docket No. Santa Fe Drive, Overland P7636). Park, KS 66212. Saline, (Case City of Salina ...... June 23, 2004, June 30, The Honorable Allan E. September 29, 2004 200319 No. 04–07– 2004, The Salina Journal. Jilka, Mayor, City of Sa- 037P), (FEMA lina, 300 West Ash Street, Docket No. Salina, KS 67402. P7638). Saline, (Case Unincorporated June 23, 2004, June 30, The Honorable Sheri September 29, 2004 200316 No. 04–07– Areas. 2004, The Salina Journal. Barragree, Chairman, Sa- 037P), (FEMA line County Commis- Docket No. sioners, 300 West Ash P7638). Street, Room 211, Salina, KS 67401. Sedgwick, (Case City of Wichita ...... March 10, 2004, March 17, The Honorable Carlos February 12, 2004 .. 200328 No. 03–07– 2004, The Wichita Eagle. Mayans, Mayor, City of 898P), (FEMA Wichita, City Hall—1st Docket No. Floor, 455 North Main P7636). Street, Wichita, KS 67202. Sedgwick, (Case City of Wichita ...... April 9, 2004, April 16, 2004, The Honorable Carlos April 26, 2004 ...... 200328 No. 03–07– The Wichita Eagle. Mayans, Mayor, City of 890P), (FEMA Wichita, City Hall—1st Docket No. Floor, 455 North Main P7636). Street, Wichita, KS 67202. Sedgwick, (Case City of Wichita ...... April 22, 2004, April 29, The Honorable Carlos July 29, 2004 ...... 200328 No. 03–07– 2004, The Wichita Eagle. Mayans, Mayor, City of 1283P), Wichita, City Hall—1st (FEMA Docket Floor, 455 North Main No. P7636). Street, Wichita, KS 67202.
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Dates and names of news- State and county Location paper where notice was Chief executive officer of Effective date of Community published community modification No.
Sedgwick, (Case City of Wichita ...... June 23, 2004, June 30, The Honorable Carlos June 17, 2004 ...... 200328 No. 03–07– 2004, The Wichita Eagle. Mayans, Mayor, City of 878P), (FEMA Wichita, City Hall—1st Docket No. Floor, 455 North Main P7638). Street, Wichita, KS 67202. Maryland: Mont- City of Rockville ...... August 11, 2004, August 18, The Honorable Larry November 17, 2004 240051 gomery, (Case No. 2004, The Montgomery Giammo, Mayor, City of 03–03–133P), Journal. Rockville, Rockville City (FEMA Docket No. Hall, 111 Maryland Ave- P7638). nue, Rockville, MD 20850. Michigan: Macomb, (Case Charter Township of March 23, 2004, March 30, Mr. Robert J. Cannon, February 19, 2004 .. 260121 No. 04–05– Clinton. 2004, The Macomb Daily. Township Supervisor, 0884P), 40700 Romeo Plank (FEMA Docket Road, Clinton Township, No. P7636). MI 48038. Genesee, (Case City of Grand Blanc July 22, 2004, July 29, 2004, Mr. Randall Byrne, City June 29, 2004 ...... 260255 No. 03–05– The Flint Journal. Manager, City of Grand 2569P), Blanc, 203 East Grand (FEMA Docket Blanc Road, Grand Blanc, No. P7638). MI 48439. Oakland, (Case City of Novi ...... July 15, 2004, July 22, 2004, The Honorable Lou August 2, 2004 ...... 260175 No. 03–05– The Novi News. Casordas, Mayor, City of 5184P), Novi, 45175 West Ten (FEMA Docket Mile Road, Novi, MI 48375. No. P7638). Minnesota: Anoka, (Case City of Blaine ...... August 13, 2004, August 20, The Honorable Tom Ryan, July 26, 2004 ...... 270007 No. 03–05– 2004, Blaine-Spring Lake Mayor, City of Blaine, 3380P), Park Life. 12147 Radisson Road (FEMA Docket NE., Blaine, MN 55449. No. P7638). Isanti, (Case No. Unincorporated July 7, 2004, July 14, 2004, The Honorable George July 21, 2004 ...... 270197 03–05– Areas. Isanti County News. Larson, Chairman, Isanti 3978P), County, Board of Commis- (FEMA Docket sioners, Isanti County No. P7638). Courthouse, 555 18th Av- enue, SW., Cambridge, MN 55008. Olmsted, (Case Unincorporated March 23, 2004, March 30, Mr. Richard Devin, Olmsted February 23, 2004 .. 270626 No. 03–05– Areas. 2004, The Post-Bulletin. County Administrator, 151 3988P), 4th Street SE., Rochester, (FEMA Docket MN 55904. No. P7636). Olmsted, (Case City of Rochester .... March 23, 2004, March 30, The Honorable Ardell Brede, February 23, 2004 .. 275246 No. 03–05– 2004, The Post-Bulletin. Mayor, City of Rochester, 3988P), City Hall, Room 281, 201 (FEMA Docket 4th Street, SE., Roch- No. P7636). ester, MN 55904. Winona, (Case City of Winona ...... March 24, 2004, March 31, The Honorable Jerry Miller, February 5, 2004 .... 275250 No. 04–05– 2004, Winona Daily News. Mayor, City of Winona, 0100P), 207 Lafayette Street, Wi- (FEMA Docket nona, MN 55987. No. P7636). Missouri: Clay, (Case No. Village of Glenaire .. July 21, 2004, July 28, 2004, The Honorable Bryan Smith, October 27, 2004 .... 290092 02–07–552P), The Liberty Tribune. Mayor, Village of Glenaire, (FEMA Docket P.O. Box 766, Glenaire, No. P7638). MO 64068. Jefferson, (Case Unincorporated June 23, 2004, June 30, The Honorable Mark September 29, 2004 290808 No. 04–07– Areas. 2004, Jefferson County Mertens, Presiding Com- 035P), (FEMA Journal. missioner, Jefferson Docket No. County Courthouse, P.O. P7638). Box 100, Hillsboro, MO 63050. Clay, (Case No. City of Liberty ...... July 21, 2004, July 28, 2004, The Hon. Stephen Hawkins, October 27, 2004 .... 290096 02–07–552P), The Liberty Tribune. Mayor, City of Liberty, 611 (FEMA Docket Lancelot Drive, Liberty, No. P7638). MO 64069.
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Dates and names of news- State and county Location paper where notice was Chief executive officer of Effective date of Community published community modification No.
Greene, (Case City of Republic ...... May 12, 2004, May 19, The Honorable Keith D. Mil- April 19, 2004 ...... 290148 No. 04–07– 2004, The Republic Mon- ler, Mayor, City of Repub- 038P), (FEMA itor. lic, 213 North Main Street, Docket No. Republic, MO 65738. P7636). Nebraska: Sarpy, (Case City of Bellevue ...... March 24, 2004, March 31, The Honorable Jerry Ryan, July 1, 2004 ...... 310191 No. 02–07– 2004, The Bellevue Lead- Mayor, City of Bellevue, 551P), (FEMA er. 210 West Mission Avenue, Docket No. Bellevue, NE 68005. P7636). Sarpy, (Case City of La Vista ...... March 25, 2004, April 1, The Hon. Harold Anderson, July 1, 2004 ...... 310192 No. 02–07– 2004, The Papillion Times. Mayor, City of La Vista, 551P), (FEMA 8116 Park View Boule- Docket No. vard, La Vista, NE 68128. P7636). Sarpy, (Case City of Papillion ...... March 25, 2004, April 1, The Honorable James E. July 1, 2004 ...... 315275 No. 02–07– 2004, The Papillion Times. Blinn, Mayor, City of Papil- 551P), (FEMA lion, 122 East Third Docket No. Street, Papillion, NE P7636). 68046. New Mexico: Bernalillo, (Case City of Albuquerque March 25, 2004, April 1, The Honorable Martin Cha- March 3, 2004 ...... 350002 No. 03–06– 2004, Albuquerque Jour- vez Mayor, City of Albu- 1003P), nal. querque, P.O. Box 1293, (FEMA Docket Albuquerque, NM 87103. No. P7636). Bernalillo, (Case City of Albuquerque July 22, 2004, July 29, 2004, The Honorable Martin Cha- July 9, 2004 ...... 350002 No. 04–06– Albuquerque Journal. vez, Mayor, City of Albu- 1193P), querque, P.O. Box 1293, (FEMA Docket Albuquerque, NM 87103. No. P7638). Sandoval, (Case Town of Bernalillo ... June 17, 2004, June 24, The Honorable Charles June 4, 2004 ...... 350056 No. 03–06– 2004, Albuquerque Jour- Aguilar, Mayor, Town of 681P), (FEMA nal. Bernalillo, P.O. Box 638, Docket No. Bernalillo, NM 87004. P7638). Bernalillo, (Case Unincorporated July 22, 2004, July 29, 2004, The Hon. Tom Rutherford, July 9, 2004 ...... 350001 No. 04–06– Areas. Albuquerque Journal. Chairman, Bernalillo 1193P), County, Commission, One (FEMA Docket Civic Plaza NW., Albu- No. P7638). querque, NM 87102. Bernalillo, (Case Unincorporated March 22, 2004, March 29, The Hon. Tom Rutherford, February 27, 2004 .. 350001 No. 04–06– Areas. 2004, Albuquerque Jour- Chairman, Bernalillo 659P), (FEMA nal. County, Commission, One Docket No. Civic Plaza NW., Albu- P7636). querque, NM 87102. Dona Ana, City of Las Cruces .. March 23, 2004, March 30, The Hon. William M. February 18, 2004 .. 355332 (Case No. 04– 2004, Las Cruces Sun Mattiace, Mayor, City of 06–234P), News. Las Cruces, P.O. Box (FEMA Docket 20000, Las Cruces, NM No. P7636). 88004. Oklahoma: Cleve- City of Moore ...... November 23, 2004, Novem- The Honorable Glenn Lewis, November 9, 2004 .. 400044 land, (Case No. ber 30, 2004, The Moore Mayor, City of Moore, 301 04–06–1915P), American. North Broadway, Moore, (FEMA Docket No. OK 73160. P7640). New Mexico: Torrance Coun- City of Moriarty ...... October 14, 2004, October The Hon. Adan M. Encinias, January 20, 2005 .... 350083 ty, (Case No. 21, 2004, Mountain View Mayor, City of Moriarty, 04–06–674P), Telegraph. P.O. Drawer 130, (FEMA Docket Moriarty, NM 87035. No. P7640). Sandoval, (Case City of Rio Rancho June 17, 2004, June 24, The Honorable Jim Owen, June 4, 2004 ...... 350146 No. 03–06– 2004, The Observer. Mayor, City of Rio Ran- 681P), (FEMA cho, 3900 Southern Bou- Docket No. levard, Rio Rancho, NM P7638). 87124. Ohio:
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Dates and names of news- State and county Location paper where notice was Chief executive officer of Effective date of Community published community modification No.
Greene, (Case City of Beaver October 22, 2004, October The Honorable Robert January 28, 2005 .... 390876 No. 03–05– Creek. 29, 2004, Beavercreek Glaser, Mayor, City of 3977P), News-Current. Beaver Creek, 1368 Re- (FEMA Docket search Park Drive, No. P7640). Beavercreek, OH 45432. Butler, (Case Unincorporated October 21, 2004, October The Hon. Charles R. January 27, 2004 .... 390037 No. 03–05– Areas. 28, 2004 The Journal- Furmon, President, Butler 5177P), News. County, Board of Commis- (FEMA Docket sioners, 315 High Street, No. P7640). 4th Floor, Government Services Center, Hamilton, OH 45011. Fairfield, (Case Unincorporated April 7, 2004, April 14, 2004, The Honorable Jon Myers, April 5, 2004 ...... 390158 No. 03–05– Areas. Lancaster Eagle-Gazette. Fairfield County, Board of 5190P), Commissioners, 210 East (FEMA Docket Main Street, Room 301, No. P7636). Lancaster, OH 43130. Greene, (Case Unincorporated October 22, 2004, October The Honorable Jeff Gilbert, January 28, 2005 .... 390193 No. 03–05– Areas. 29, 2004, Xenia Daily Ga- Chairman, Greene County 3977P), zette. Board, County Court- (FEMA Docket house, 519 North Main No. P7640). Street, Carrollton, OH 62016. Summit, (Case Village of Hudson ... October 20, 2004, October The Honorable William January 26, 2005 .... 390660 No. 04–05– 27, 2004, Hudson Hub- Currin, Mayor, Village of 0770P), Times. Hudson, 27 East Main (FEMA Docket Street, Hudson, OH No. P7640). 44236–3099. Licking, (Case Unincorporated July 19, 2004, July 26, 2004, The Hon. Albert Ashbrook, August 2, 2004 ...... 390328 No. 04–05– Areas. The Advocate. President, Licking County, 0765P), Board of Commissioners, (FEMA Docket 20 South Second Street, No. P7638). Newark, OH 43055. Lucas, (Case Unincorporated October 19, 2004, October The Honorable Harry Barlos, September 30, 2004 390539 No. 04–05– Areas. 26, 2004, Farmland News. President, Lucas County, 4066P), Board of Commissioners, (FEMA Docket One Government Center, No. P7640). Suite 800, Toledo, OH 43604. Shelby, (Case Unincorporated August 12, 2004, August 19, Mr. Larry Klainhans, Chair- July 22, 2004 ...... 390503 No. 04–05– Areas. 2004, The Sidney Daily man, Shelby County, 2336P), News. Board of Commissioners, (FEMA Docket 129 East Court Street, No. P7638). Suite 100, Sidney, OH 45365. Oklahoma: Mayes, (Case Unincorporated August 3, 2004, August 10, The Hon. Jim Montgomery, July 8, 2004 ...... 400458 No. 04–06– Areas. 2004, The Daily Times. Chairman, Mayes County, 575P), (FEMA Board of Commissioners, Docket No. P.O. Box 95, County P7638). Courthouse, Pryor, OK 74362–0095. Oklahoma, City of Midwest City March 25, 2004, April 1, The Honorable Eddie Reed, March 2, 2004 ...... 400405 (Case No. 04– 2004, The Midwest City Mayor, City of Midwest 06–035P), Sun. City, P.O. Box 10570, (FEMA Docket Midwest City, OK 73140. No. P7636). Tulsa, (Case No. City of Owasso ...... August 12, 2004, August 19, The Honorable Susan November 18, 2004 400210 04–06– 2004 Owasso Reporter. Kimball, Mayor, City of 1737P), Owasso, P.O. Box 180, (FEMA Docket Owasso, OK 74055. No. P7638). Payne, (Case Unincorporated July 21, 2004, July 28, 2004, The Honorable Gloria October 27, 2004 .... 400493 No. 03–06– Areas. The News Press. Hesser, Payne County 840P), (FEMA Commissioner, 2600 S. Docket No. Main Street, Suite C, Still- P7638). water, OK 74074. Payne, (Case City of Stillwater ...... July 21, 2004, July 28, 2004, The Honorable Bud Lacy, October 27, 2004 .... 400493 No. 03–06– The News Press. Mayor, City of Stillwater, 840P), (FEMA P.O. Box 1449, Stillwater, Docket No. OK 74076. P7638).
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Dates and names of news- State and county Location paper where notice was Chief executive officer of Effective date of Community published community modification No.
Tulsa, (Case No. City of Tulsa ...... March 18, 2004, March 25, The Honorable Bill February 12, 2004 .. 405381 04–06–552P), 2004, Tulsa World. LaFortune, Mayor, City of (FEMA Docket Tulsa, City Hall, 200 Civic No. P7636). Center, Tulsa, OK 74103. Tulsa, (Case No. City of Tulsa, ...... August 18, 2004, August 25, The Honorable Bill November 24, 2004 405381 03–06– 2004, Tulsa World. LaFortune, Mayor, City of 1946P), Tulsa, City Hall, 200 Civic (FEMA Docket Center, Tulsa, OK 74103. No. P7638). Texas: Taylor and City of Abilene ...... May 4, 2004, May 11, 2004, The Honorable Grady Barr, August 10, 2004 ..... 485450 Jones, (Case The Abilene Reporter- Mayor, City of Abilene, No. 03–06– News. P.O. Box 60, Abilene, TX 2669P), 79604. (FEMA Docket No. P7636). Parker, (Case City of Aledo ...... March 3, 2004, March 10, The Honorable Sue Langley, June 9, 2004 ...... 481659 No. 03–06– 2004, The Weatherford Mayor, City of Aledo, 200 1950P), Democrat. Old Annetta Road, Aledo, (FEMA Docket TX 76008. No. P7636). Brazoria, (Case City of Angleton ...... June 30, 2004, July 7, 2004, The Hon. L.M. Sebesta, Jr., October 6, 2004 ...... 480064 No. 03–06– The Facts. Mayor, City of Angleton, 2336P), 2372 East Highway 35, (FEMA Docket Angleton, TX 77515. No. P7638). Tarrant, (Case City of Arlington ...... November 12, 2004, Novem- The Hon. Dr. Robert Cluck, October 29, 2004 .... 485454 No. 04–06– ber 19, 2004, Northeast Mayor, City of Arlington, 1903P), Tarrant County Morning 101 W. Abram Street, Ar- (FEMA Docket News. lington, TX 76004–0231. No. P7640). Tarrant, (Case City of Bedford ...... August 24, 2004, August 31, The Honorable R. D. Hurt, August 27, 2004 ..... 480585 No. 03–06– 2004, The Star Telegram. Mayor, City of Bedford, 2875P), 200 Forest Ridge Drive, (FEMA Docket Bedford, TX 76021. No. P7638). Brazoria, (Case Unincorporated June 30, 2004, July 7, 2004, The Honorable John Willy, October 6, 2004 ...... 485458 No. 03–06– Areas. The Facts. Judge, Brazoria County, 2336P), 111 East Locust Street, (FEMA Docket Angleton, TX 77515. No. P7638). Brazos, (Case City of Bryan ...... October 5, 2004, October The Honorable Ernie January 11, 2005 .... 480082 No. 04–06– 12, 2004, The Eagle. Wentrcek, Mayor, City of 1025P), Bryan, P.O. Box 1000, (FEMA Docket Bryan, TX 77805. No. P7640). Dallas, (Case City of Carrollton ..... April 7, 2004, April 14, 2004, The Honorable Mark Stokes, March 23, 2004 ...... 480167 No. 03–06– The Carrollton Leader. Mayor, City of Carrollton, 2532P), 1945 East Jackson Road, (FEMA Docket Carrollton, TX 75006. No. P7636). Dallas, (Case City of Carrollton ..... July 28, 2004, August 4, The Honorable Mark Stokes, July 15, 2004 ...... 480167 No. 04–06– 2004, The Carrollton Mayor, City of Carrollton, 228P), (FEMA Leader. 1945 East Jackson Road, Docket No. Carrollton, TX 75006. P7638). Tarrant, (Case City of Colleyville .... January 29, 2004, February The Honorable Joe Hocutt, May 6, 2004 ...... 480590 No. 04–06– 5, 2004, The Star Tele- Mayor, City of Colleyville, 383P), (FEMA gram. 5400 Bransford Road Docket No. Colleyville, TX 76034. P7634). Tarrant, (Case City of Colleyville .... September 2, 2004, Sep- The Honorable Joe Hocutt, December 9, 2004 .. 480590 No. 03–06– tember 9, 2004, Northeast Mayor, City of Colleyville, 1204P), Tarrant County Morning 5400 Bransford Road, (FEMA Docket News. Colleyville, TX 76034– No. P7638). 0185. Collin, (Case No. Unincorporated October 20, 2004, October The Honorable Ron Harris, January 26, 2005 .... 480130 04–06– Areas. 27, 2004, Plano Star Cou- Judge, Collin County, 210 1470P), rier. South McDonald Street (FEMA Docket Suite 626 Wylie, TX No. P7640). 75098.
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Dates and names of news- State and county Location paper where notice was Chief executive officer of Effective date of Community published community modification No.
Comal, (Case Unincorporated April 28, 2004, May 5, 2004 The Honorable Danny August 4, 2004 ...... 485463 No. 03–06– Areas. Scheel, Judge, Comal 1394P), County, Comal County (FEMA Docket Beacon, 199 Main Plaza, No. P7636). New Braunfels, TX 78130. Comal, (Case Unincorporated June 23, 2004, June 30, The Honorable Danny June 4, 2004 ...... 485463 No. 04–06– Areas. 2004, Comal County Bea- Scheel, Judge, Comal 127P), (FEMA con. County, 199 Main Plaza, Docket No. New Braunfels, TX 78130. P7638). Dallas, (Case City of Dallas ...... August 24, 2004, August 31, The Honorable Laura Miller, November 30, 2004 480171 No. 03–06– 2004, Dallas Morning Mayor, City of Dallas, City 1942P), News. Hall, 1500 Mariall Street, (FEMA Docket Room 5EN, Dallas, TX no. P7638). 75201–6390. Denton, (Case City of Denton ...... July 21, 2004, July 28, 2004, The Honorable Euline Brock, June 29, 2004 ...... 480194 No. 04–06– Denton Record Chronicle. Mayor, City of Denton, 664P), (FEMA 215 East McKinney Street, Docket No. Denton, TX 76201. P7638). Denton, (Case Town of Double Oak November 23, 2004, Novem- The Honorable Richard March 1, 2005 ...... 481516 No. 04–06– ber 30, 2004, Denton Cook, Mayor, Town of 1464), (FEMA Record Chronicle. Double Oak, 320 Waketon Docket No. Road, Double Oak, TX P7640). 75077. El Paso, (Case City of El Paso ...... November 12, 2004, Novem- The Honorable Joe Wardy, October 29, 2004 .... 480214 No. 04–06– ber 19, 2004, El Paso Mayor, City of El Paso, 2 1606P), Times. Civic Center Plaza, El (FEMA Docket Paso, TX 79901–1196. No. P7640). Tarrant, (Case City of Euless ...... July 1, 2004, July 8, 2004, The Honorable Mary Lib June 4, 2004 ...... 480593 No. 04–06– The Star Telegram. Saleh, Mayor, City of Eu- 875P), (FEMA less, 201 N. Ector Drive, Docket NO. Building B, Euless, TX P7638). 76039. Denton, (Case Town of Flower March 3, 2004, March 10, The Honorable Lori DeLuca, June 9, 2004 ...... 480777 No. 03–06– Mound. 2004, Flower Mound Mayor, Town of Flower 2331P), Leader. Mound, 2121 Cross Tim- (FEMA Docket bers Road, Flower Mound, No. P7636). TX 75028. Fort Bend, (Case Unincorporated September 1, 2004, Sep- The Honorable Robert Her- December 9, 2004 .. 480228 No. 03–06– Areas. tember 8, 2004, Fort Bend bert, Judge, Fort Bend 2671P), Star. County, 301 Jackson (FEMA Docket Street, Richmond, TX No. P7638). 77469. Fort Bend, (Case City of Missouri City October 21, 2004, October The Honorable Allen Owen, January 27, 2005 .... 480304 No. 04–06– 28, 2004, Fort Bend Mirro. Mayor, City of Missouri 2155P) (FEMA City, 1522 Texas Park- Docket No. way, Missouri City, TX P7640). 77489. Fort Bend, (Case Unincorporated October 20, 2004, October The Honorable Robert Her- January 27, 2005 .... 480228 No. 04–06– Areas. 27, 2004, Fort Bend Star. bert, Judge, Fort Bend 2155P), County, 301 Jackson (FEMA Docket Street, Richmond, TX No. P7640). 77469. Tarrant, (Case City of Fort Worth ... March 3, 2004, March 10, The Hon. Michael J. March 12, 2004 ...... 480596 No. 03–06– 2004, The Star Telegram. Moncrief, Mayor, City of 2551P), Fort Worth, 1000 (FEMA Docket Throckmorton Street, Fort No. P7636). Worth, TX 76102. Tarrant, (Case City of Fort Worth ... April 13, 204, April 20, 2004, The Hon. Michael J. July 20, 2004 ...... 480596 No. 04–06– The Star Telegram. Moncrief, Mayor, City of 230P) (FEMA Fort Worth, 1000 Docket No. Throckmorton Street, Fort P7636). Worth, TX 76102. Tarrant, (Case City of Fort Worth ... April 22, 2004, April 29, The Hon. Michael J. July 30, 2004 ...... 480596 No. 03–06– 2004, The Star Telegram. Moncrief, Mayor, City of 2049P) (FEMA Fort Worth, 1000 Docket No. Throckmorton Street, Fort P7636). Worth, TX 76102.
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Dates and names of news- State and county Location paper where notice was Chief executive officer of Effective date of Community published community modification No.
Tarrant, (Case City of Fort Worth ... July 14, 2004, July 21, 2004, The Hon. Michael J. June 23, 2004 ...... 480596 No. 04–06– The Star Telegram. Moncrief, Mayor, City of 864P) (FEMA Fort Worth, 1000 Docket No. Throckmorton Street, Fort P7638). Worth, TX 76102. Tarrant, (Case City of Fort Worth ... June 10, 2004, June 17, The Hon. Michael J. May 14, 2004 ...... 480596 No. 03–06– 2004, The Star Telegram. Moncrief, Mayor, City of 2546P) (FEMA Fort Worth, 1000 Docket No. Throckmorton Street, Fort P7638). Worth, TX 76102. Tarrant, (Case City of Fort Worth ... June 30, 2004, July 7, 2004 The Hon. Michael J. October 6, 2004 ...... 480596 No. 03–06– The Star Telegram. Moncrief, Mayor, City of 2694P) (FEMA Fort Worth, 1000 Docket No. Throckmorton Street, Fort P7638). Worth, TX 76102. Tarrant, (Case City of Fort Worth ... August 18, 2004, August 25, The Hon. Michael J. July 26, 2004 ...... 480596 No. 04–06– 2004, The Star Telegram. Moncrief, Mayor, City of 038P) (FEMA Fort Worth, 1000 Docket No. Throckmorton Street, Fort P7638). Worth, TX 76102. Tarrant, (Case City of Fort Worth ... September 1, 2004, Sep- The Hon. Michael J. December 8, 2004 .. 480596 No. 04–06– tember 8, 2004, The Star Moncrief, Mayor, City of 1188P) (FEMA Telegram. Fort Worth, 1000 Docket No. Throckmorton Street, Fort P7638). Worth, TX 76102. Collin, (Case No. City of Fort Worth ... October 6, 2004, October The Honorable Mike Simp- July 21, 2004 ...... 480134 04–06–1741P) 13, 2004, The Frisco En- son, Mayor, City of Frisco, (FEMA Docket terprise. 6891 Main Street, Frisco, No. P764). TX 75034. Dallas, (Case City of Garland ...... June 3, 2004, June 10, The Honorable Bob Day, June 10, 2004 ...... 485471 No. 03–06– 2004, Garland Morning Mayor, City of Garland, 2537P) (FEMA News. 200 N. Fifth Street, Gar- Docket No. land, TX 75040. P7636). Harris, (Case Unincorporated August 17, 2004, August 24, The Honorable Robert July 23, 2004 ...... 480287 No. 03–06– Areas. 2004 The Houston Chron- Eckels, Judge, Harris 1393P) (FEMA icle. County, 1001 Preston, Docket No. Suite 911, Houston, TX P7638). 77002. Hays, (Case No. Unincorporated April 7, 2004, April 14, 2004, The Honorable Jim Powers, March 23, 2004 ...... 480321 03–06– Areas. San Marcos Daily Record. Judge Hays County, 111 1940P), E. San Antonio Street (FEMA Docket Suite 300, San Marcos, No. P7636). TX 78666. Harris, (Case City of Houston ...... September 2, 2004, Sep- The Honorable Bill White, December 9, 2004 .. 480296 No. 03–06– tember 9, 2004, The Mayor, City of Houston, 2671P) (FEMA Houston Chronicle. P.O. Box 1562, Houston, Docket No. TX 77251. P7638). Tarrant, (Case City of Hurst ...... April 7, 2004, April 14, 2004, The Honorable William March 24, 2004 ...... 480601 No. 04–06– The Star Telegram. Souder, Mayor, City of 657P) (FEMA Hurst, 1505 Precinct Line Docket No. Road, Hurst, TX 76054. P7636). Tarrant, (Case City of Hurst ...... July 21, 2004, July 28, 2004, The Honorable William July 30, 2004 ...... 480601 No. 03–06– The Star Telegram. Souder, Mayor, City of 2672P) (FEMA Hurst, 1505 Precinct Line Docket No. Road, Hurst, TX 76054. P7638). Tarrant, (Case City of Hurst ...... August 24, 2004, August 31, The Honorable Richard August 27, 2004, .... 480601 No. 03–06– 2004 The Star Telegram. Ward, Mayor, City of 2875P), Hurst, 1505 Precinct Line (FEMA Docket Road, Hurst, TX 76054. No. P7638). Tarrant, (Case City of Hurst ...... September 2, 2004, Sep- The Honorable Richard December 9, 2004 .. 480601 No. 03–06– tember 9, 2004 The Star Ward, Mayor, City of 1204P), Telegram. Hurst, 1505 Precinct Line (FEMA Docket Road, Hurst, TX 76054. No. P7638).
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Dates and names of news- State and county Location paper where notice was Chief executive officer of Effective date of Community published community modification No.
Tarrant, (Case City of Hurst ...... October 1, 2004, October 8, The Honorable Richard October 7, 2004 ...... 480601 No. 04–06– 2004 The Star Telegram. Ward, Mayor, City of 858P), (FEMA Hurst, 1505 Precinct Line Docket No. Road, Hurst, TX 76054. P7640). Hays, (Case No. City of Kyle ...... April 7, 2004, April 14, 2004, The Honorable James March 23, 2004 ...... 481108 03–06– The Kyle Eagle. Adkins, Mayor, City of 1940P), Kyle, 300 West Center, (FEMA Docket Kyle, TX 78640. No. P7636). Tarrant, (Case City of Mansfield ..... September 2, 2004, Sep- The Honorable Mel Neuman, August 17, 2004 ..... 480606 No. 04–06– tember 9, 2004, Mansfield Mayor, City of Mansfield, 1017P), News Mirror. 1200 East Broad Street, (FEMA Docket Mansfield, TX 76063– No. P7638). 0337. Collin, (Case No. City of McKinney .... August 11, 2004, August 18, The Honorable Bill Whitfield, November 17, 2004 480135 03–06– 2004, McKinney Courier Mayor, City of McKinney, 2534P), Gazette. P.O. Box 517, McKinney, (FEMA Docket TX 75070. No. P7638). Collin, (Case No. City of McKinney .... October 7, 2004, October The Honorable Bill Whitfield, January 13, 2005 .... 480135 04–06– 14, 2004, McKinney Cou- Mayor, City of McKinney, 1002P), rier Gazette. 222 N. Tennessee Ave- (FEMA Docket nue, McKinney, TX 75069. No. P7640). Dallas, (Case City of Mesquite ...... March 4, 2004, March 11, The Honorable Mike Ander- June 10, 2004 ...... 485490 No. 03–06– 2004, The Mesquite News. son, Mayor, City of Mes- 2692P), quite, P.O. Box 850137, (FEMA Docket Mesquite, TX 75185. No. P7636). Dallas, (Case City of Mesquite ...... May 13, 2004, May 20, The Honorable Mike Ander- April 29, 2004 ...... 485490 No. 03–06– 2004, The Mesquite News. son, Mayor, City of Mes- 1750P), quite, P.O. Box 850137, (FEMA Docket Mesquite, TX 75185. No. P7636). Dallas, (Case City of Mesquite ...... July 29, 2004, August 5, The Honorable Mike Ander- November 4, 2004 .. 485490 No. 03–06– 2004, The Mesquite News. son, Mayor, City of Mes- 2530P), quite, P.O. Box 850137, (FEMA Docket Mesquite, TX 75185. No. P7638). Fort Bend, (Case City of Missouri City September 2, 2004, Sep- The Honorable Allen Owen, December 9, 2004 .. 480304 No. 03–06– tember 9, 2004. Mayor, City of Missouri 2671P), City, Fort Bend Mirror (FEMA Docket 1522 Texas Parkway, Mis- No. P7638). souri City, TX 77489. Tarrant, (Case City of North Rich- September 16, 2004, Sep- The Hon. T. Oscar Trevino, August 23, 2004 ..... 480607 No. 04–06– land Hills. tember 23, 2004, The Jr., Mayor, City of North 1192P), Northeast Tarrant County Richland Hills, P.O. Box (FEMA Docket Morning News. 820609, North Richland No. P7638). Hills, TX 76182–0609. Denton, (Case City of Oak Point .... November 23, 2004, Novem- The Honorable Duane E. November 9, 2004 .. 481639 No. 04–06– ber 30, 2004, Denton Olson, Mayor, City of Oak 1180P), Record Chronicle. Point, 100 Naylor Road, (FEMA Docket Oak Point, TX 75068. No. P7640). Parker, (Case Unincorporated March 3, 2004, March 10, The Honorable Mark Riley, June 9, 2004 ...... 480520 No. 03–06– Areas. 2004, The Weatherford Judge, Parker County, 1950P), Democrat. 123 North Main Street, (FEMA Docket Weatherford, TX 76086. No. P7636). Collin, (Case No. City of Plano ...... August 4, 2004, August 11, The Honorable Pat Evans, August 17, 2004 ..... 480140 03–06– 2004, Plano Star Courier. Mayor, City of Plano, 1520 2548P), Avenue K, Plano, TX (FEMA Docket 750086–0358. No. P–7638). Collin, (Case No. City of Plano ...... September 3, 2004, Sep- The Honorable Pat Evans, December 10, 2004 480140 04–06–027P), tember 10, 2004, Plano Mayor, City of Plano, P.O. (FEMA Docket Star Courier. Box 860358, Plano, TX No. P7638). 75086–0358.
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Dates and names of news- State and county Location paper where notice was Chief executive officer of Effective date of Community published community modification No.
Tarrant, (Case City of Richland ...... August 18, 2004, August 25, The Honorable Nelda July 20, 2004 ...... 480608 No. 03–06– 2004, The Northeast Stroder, Mayor, City of 848P), (FEMA Tarrant County Morning Richland Hills, 3200 Diana Docket No. News. Drive Richland Hills, TX P7638). 76118. Williamson, City of Round Rock October 12, 2004, October The Honorable Nyle Max- January 19, 2005 .... 481048 (Case No. 03– 19, 2004, Round Rock well, Mayor, City of Round 06–1540P), Leader. Rock, 221 East Main, (FEMA Docket Round Rock, TX 78664. No. P7640). Tarrant, (Case City of Saginaw ...... July 14, 2004, July 21, 2004, The Hon. Frankie Robbins, June 23, 2004 ...... 480610 No. 04–06– The Star Telegram. Mayor, City of Saginaw, 864P), (FEMA P.O. Box 79070, Saginaw, Docket No. TX 76179. P7638). Tom Green, City of San Angelo January 16, 2004, January The Honorable J. W. Lown, December 30, 2003 480623 (Case No. 03– 23, 2004, San Angelo Mayor, City of San An- 06–2684P), Standard Times. gelo, San Angelo City (FEMA Docket Hall, 72 West College Av- No. P7636). enue, San Angelo, TX 76903. Bexar, (Case City of San Antonio February 19, 2004, February The Honorable Ed Garza, May 27, 2004 ...... 480045 No. 03–06– 26, 2004, San Antonio Ex- Mayor, City of San Anto- 1201P), press. nio, P.O. Box 839966, (FEMA Docket News San Antonio, TX No. P7634). 78283–3966. Bexar, (Case City of San Antonio June 16, 2004, June 23, The Honorable Ed Garza, September 22, 2004 480045 No. 03–06– 2004, San Antonio Ex- Mayor, City of San Anto- 1745P), press News. nio, P.O. Box 839966, (FEMA Docket San Antonio, TX 78283– No. P7638). 3966. Bexar, (Case City of San Antonio June 30, 2004, July 7, 2004, The Honorable Ed Garza, October 6, 2004 ...... 480045 No. 03–06– San Antonio Express Mayor, City of San Anto- 829P), (FEMA News. nio, P.O. Box 839966, Docket No. San Antonio, TX 78283– P7638). 3966. Bexar, (Case City of San Antonio August 31, 2004, September The Honorable Ed Garza, August 12, 2004 ..... 480045 No. 03–06– 7, 2004, San Antonio Ex- Mayor, City of San Anto- 1947P), press News. nio, P.O. Box 839966, (FEMA Docket San Antonio, TX 78283– No. P7638). 3966. Tarrant, (Case City of Southlake .... June 23, 2004, June 30, The Hon. Andy June 16, 2004 ...... 480612 No. 04–06– 2004, The Star Telegram. Wambsganss, Mayor, City 866P), (FEMA of Southlake, 1400 Main Docket No. Street Southlake, TX P7638). 76092. Williamson, Unincorporated October 13, 2004, October The Honorable John January 19, 2005 .... 481079 (Case No. 03– Areas. 20, 2004, Williamson Doerfler, Judge, 06–1540P), County Sun. Williamson County, 710 (FEMA Docket Main Street, Suite 201, No. P7640). Georgetown, TX 78626. Wise, (Case No. Unincorporated July 15, 2004, July 22, The Honorable Dick Chase, October 21, 2004 .... 481051 03–06– Areas. 2004,Wise County Mes- Judge, Wise County, P.O. 2058P), senger. Box 393, Decatur, TX (FEMA Docket 76231–0393. No. P7638). Collin, (Case No. City of Wylie ...... October 20, 2004, October The Honorable John Mondy, January 26, 2005 .... 480759 04–06– 27, 2004, The Wylie News. Mayor, City of Wylie, 2000 1470P), State Highway 78 North (FEMA Docket Wylie, TX 75098. No. P7640). Wisconsin: Waupaca, City of Clintonville ... September 23, 2004, Sep- The Honorable Richard September 17, 2004 550494 (Case No. 04–05– tember 30, 2004, Tribune Beggs, Mayor, City of 4068P), (FEMA Gazette. Clintonville, 50 10th Docket No. P7640). Street, Clintonville, WI 54929.
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(Catalog of Federal Domestic Assistance No. for designating critical habitat is driven States Fish and Wildlife Service). In 83.100, ‘‘Flood Insurance.’’) by litigation rather than biology, limits response to these decisions, we are Dated: May 31, 2005. our ability to fully evaluate the science reviewing the regulatory definition of David I. Maurstad, involved, consumes enormous agency adverse modification in relation to the Acting Director, Mitigation Division, resources, and imposes huge social and conservation of the species. Emergency Preparedness and Response economic costs. The Service believes Procedural and Resource Difficulties in Directorate. that additional agency discretion would Designating Critical Habitat [FR Doc. 05–11229 Filed 6–6–05; 8:45 am] allow our focus to return to those BILLING CODE 9110–12–P actions that provide the greatest benefit We have been inundated with to the species most in need of lawsuits regarding critical habitat protection. designation, and we face a growing DEPARTMENT OF THE INTERIOR number of lawsuits challenging critical Role of Critical Habitat in Actual habitat determinations once they are Fish and Wildlife Service Practice of Administering and made. These lawsuits have subjected the Implementing the Act Service to an ever-increasing series of 50 CFR Part 17 While attention to and protection of court orders and court-approved habitat is paramount to successful settlement agreements, compliance with RIN 1018–AJ10 conservation actions, we have which now consumes nearly the entire Endangered and Threatened Wildlife consistently found that, in most listing program budget. This leaves the and Plants; Designation of Critical circumstances, the designation of Service with little ability to prioritize its Habitat for Allium munzii (Munz’s critical habitat is of little additional activities to direct scarce listing onion) value for most listed species, yet it resources to the listing program actions consumes large amounts of conservation with the most biologically urgent AGENCY: Fish and Wildlife Service, resources. Sidle (1987) stated, ‘‘Because species conservation needs. Interior. the ESA can protect species with and The consequence of the critical ACTION: Final rule. without critical habitat designation, habitat litigation activity is that limited critical habitat designation may be listing funds are used to defend active SUMMARY: We, the U.S. Fish and redundant to the other consultation lawsuits and to comply with the Wildlife Service (Service), designate 176 requirements of section 7.’’ Currently, growing number of adverse court orders. acres (ac) (71 hectares (ha)) of Federal only 473 species, or 38 percent of the As a result, the Service’s own proposals land as critical habitat for the Federally 1,253 listed species in the U.S. under to undertake conservation actions based endangered Allium munzii (Munz’s the jurisdiction of the Service, have on biological priorities are significantly onion) pursuant to the Endangered designated critical habitat. delayed. Species Act of 1973, as amended (Act). We address the habitat needs of all The accelerated schedules of court- The designated critical habitat is within 1,253 listed species through ordered designations have left the the Cleveland National Forest at conservation mechanisms such as Service with almost no ability to Elsinore Peak in western Riverside listing, section 7 consultations, the provide for additional public County, California. Section 4 recovery planning process, the participation beyond that minimally required by the Administrative DATES: This rule becomes effective on Section 9 protective prohibitions of July 7, 2005. unauthorized take, Section 6 funding to Procedures Act (APA), the Act, and the the States, and the Section 10 incidental Service’s implementing regulations, or ADDRESSES: Comments and materials take permit process. In the case of listed to take additional time for review of received, as well as supporting plants, such as Allium munzii, Section comments and information to ensure the documentation used in the preparation 9 of the Act prohibits any person subject rule has addressed all the pertinent of this final rule, will be available for to the jurisdiction of the United States issues before making decisions on public inspection, by appointment, from removing and reducing to listing and critical habitat proposals, during normal business hours, at the possession any such species from areas due to the risks associated with Carlsbad Fish and Wildlife Office, U.S. under Federal jurisdiction; maliciously noncompliance with judicially imposed Fish and Wildlife Service, 6010 Hidden damaging or destroying any such deadlines. This in turn fosters a second Valley Road, Carlsbad, CA 92009 species on such area; or removing, round of litigation in which those who (telephone: 760/431–9440). The final cutting, digging up, or damaging or will suffer adverse impacts from these rule, economic analysis (EA), and map destroying any such species on any decisions challenge them. The cycle of will also be available via the Internet at other area in knowing violation of any litigation appears endless, is very http://carlsbad.fws.gov. law or regulation of any state or in the expensive, and in the final analysis FOR FURTHER INFORMATION CONTACT: course of any violation of a State provides little additional protection to Field Supervisor, Carlsbad Fish and criminal trespass law. The Service listed species. Wildlife Office (telephone 760/431– believes that it is these measures that The costs resulting from the 9440; facsimile 760/431–9618). may make the difference between designation include legal costs, the cost SUPPLEMENTARY INFORMATION: extinction and survival for many of preparation and publication of the species. designation, the analysis of the Designation of Critical Habitat Provides We note, however, that two courts economic effects and the cost of Little Additional Protection to Species found our definition of adverse requesting and responding to public In 30 years of implementing the ESA, modification to be invalid (March 15, comment, and in some cases the costs the Service has found that the 2001, decision of the United States of compliance with the National designation of statutory critical habitat Court of Appeals for the Fifth Circuit, Environmental Policy Act (NEPA); all provides little additional protection to Sierra Club v. U.S. Fish and Wildlife are part of the cost of critical habitat most listed species, while consuming Service et al., F.3d 434, and the August designation. These costs result in significant amounts of conservation 6, 2004, Ninth Circuit judicial opinion, minimal benefits to the species that are resources. The Service’s present system Gifford Pinchot Task Force v. United not already afforded by the protections
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of the Act enumerated earlier, and they proposed critical habitat designation for the best scientific and commercial data directly reduce the funds available for Allium munzii and are addressed in the available, that the failure to designate direct and tangible conservation actions. following summary and incorporated such area as critical habitat will result into the final rule as appropriate. We in the extinction of the species Background did not receive any requests for a public concerned.’’ We evaluated the benefits We intend to discuss only those hearing. of excluding critical habitat against the topics directly relevant to the Peer Review benefits of including critical habitat designation of critical habitat in this within approved Habitat Conservation final rule. For more information on In accordance with our policy Plans (HCPs), including the Western Allium munzii, please refer to the final published on July 1, 1994 (59 FR Riverside County MSHCP, the Rancho listing rule published in the Federal 34270), we solicited expert opinions Bella Vista HCP, and the Long-Term Register on October 13, 1998 (63 FR from five knowledgeable individuals Stephen’s Kangaroo Rat (SKR) HCP. A 54975), proposed critical habitat rule with scientific expertise that included major benefit of exclusion is that it will published in the Federal Register on familiarity with the species, the allow us to continue to work with the June 4, 2004 (69 FR 31569), and the geographic region in which the species signatory agencies in Riverside County notice of availability of the draft occurs, and conservation biology (for the Western Riverside County economic analysis (DEA) and reopening principles. We received responses from MSHCP) in a spirit of cooperation and of the public comment period for three of the peer reviewers. The peer partnership and to encourage Allium munzii published in the Federal reviewers provided additional landowners, local jurisdictions, and Register on December 1, 2004 (69 FR information, clarifications, and other entities to work cooperatively 69878). suggestions to improve the final critical with us to develop HCPs in other areas. habitat rule. These recommendations Previous Federal Action A possible benefit of including critical included clarification of occurrences, habitat on such lands is education about Please refer to the proposed rule to improvements to the primary the species and its habitat needs. designate critical habitat for Allium constituent elements, identification of However, we considered that this munzii (69 FR 31569) and the notice of essential occurrences, and correction of educational benefit has largely already availability of the draft economic factual errors. Two of the peer reviewers been met by the public participation analysis and reopening of the public recommended that the essential habitat process that occurred in the comment period for Allium munzii (69 and occurrences within the Western development of approved HCPs, FR 69878) for more information on Riverside County Multiple-Species including the Western Riverside County previous Federal actions concerning Habitat Conservation Plan (MSHCP) be MSHCP, and therefore, that this would Munz’s onion. designated as critical habitat. One of the not be a particularly important benefit Summary of Comments and peer reviewers agreed with the of critical habitat designation. Maps Recommendations designation of critical habitat at Elsinore depicting the distribution and location Peak and expressed cautious support of of Allium munzii are widely available to We requested written comments from the areas excluded within the Western the public on the proposed designation the public as part of the Western Riverside County MSHCP under section Riverside County MSHCP planning of critical habitat for Allium munzii (69 4(b)(2) of the Act. Peer reviewer FR 31569) and the notice of availability process. We have concluded, therefore, comments are addressed in the that the benefits of excluding critical of the draft economic analysis and following summary and incorporated reopening of the public comment period habitat from such lands exceed the into the final rule as appropriate. value of including the lands as critical for Allium munzii (69 FR 69878). We We reviewed all comments received habitat. See additional discussion under also contacted appropriate Federal, from the peer reviewers and the public ‘‘Exclusions Under Section 4(b)(2) of the State, and local agencies; scientific for substantive issues and new Act.’’ organizations; and other interested information regarding critical habitat for parties and invited them to comment on Allium munzii, and addressed them in Our approval of the Western Riverside the proposed rule. the following summary. County MSHCP indicates our strong During the comment period that belief that the plan will be effective in opened on June 4, 2004, and closed on Peer Reviewer Comments conserving Allium munzii. The Western August 3, 2004, we received 7 comment Comment 1. Two peer reviewers Riverside County MSHCP provides letters directly addressing the proposed disagreed with our exclusion of critical specific conservation objectives to critical habitat designation: 3 from peer habitat within the Western Riverside ensure that suitable habitat and known reviewers, 1 from a Federal agency, and County MSHCP based on our populations of Allium munzii will 3 from organizations or individuals. justification of the ‘‘presumed persist. Under the Western Riverside During the comment period that opened effectiveness of approved and draft County MSHCP, at least 21,260 ac on December 1, 2004, and closed on habitat conservation plans, in particular, (8,604 ha) of modeled habitat for Allium January 3, 2005, we received 4 comment the Western Riverside County MSHCP,’’ munzii will be included in the MSHCP letters directly addressing the proposed and their concerns that ‘‘known Conservation Area. The permittees will critical habitat designation and the draft localities within the jurisdiction of the implement management and monitoring economic analysis. Of these latter MSHCP currently have no established practices within the Additional Reserve comments, 1 was from a Federal agency, reserves, or proposed management Lands, including surveys for Allium and 3 were from organizations. One procedures for this species.’’ munzii. Cooperative management and commenter concurred with the Our Response. Under section 4(b)(2) monitoring are anticipated on public designation of critical habitat for Allium of the Act, the ‘‘Secretary may exclude and PQP lands. Surveys for Allium munzii and 8 commenters any area from critical habitat if he munzii will be conducted at least every recommended modifications to the determines that the benefits of such 8 years to verify occupancy at a proposed designation. Comments exclusion outweigh the benefits of minimum of 75 percent of the known received were grouped into general specifying such areas as part of critical locations. If surveys document that the issues specifically relating to the habitat, unless he determines, based on distribution of Allium munzii has
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declined below this 75 percent EO 15); (4) all of the habitat on Elsinore Land Management and Metropolitan threshold, management measures will Peak and all localities on Elsinore Peak Water District) (EO 11); (6) SRCMSR be triggered, as appropriate, to meet the (EO 13); (5) an occurrence in the lands on the south slope of Bachelor species-specific objectives. Other Temescal Wash near Indian Wash, and Mountain (owned by the Metropolitan management actions described in the the area between Indian Wash and Water District) (EO 12); and (7) Elsinore MSHCP include addressing competition Horsethief Wash south of DePalma Road Peak on the Cleveland National Forest with non-native plant species, clay in Temescal Canyon (EO3 and EO8); (6) (EO 13). mining, off-road vehicle use, and occurrences on the southern flank of Within proposed conceptual reserve disking activities. Implementation of Alberhill Mountain (EO 6); (7) lands, lands specifically targeted to be these management actions will help to occurrences on Bachelor Mountain (EO included within the Reserve, and/or avoid and minimize adverse effects to 12); and (8) an occurrence on North within the Narrow Endemic Plant Allium munzii. Thus, the Western Domenigoni Hills (EO 10). Species Survey Area, the plant occurs Riverside County MSHCP establishes One of the peer reviewers did not in: (1) Private lands across Ida Leona reserves and management procedures recommend critical habitat for the Road in the Gavilan Hills adjacent to for Allium munzii. occurrences at Skunk Hollow (Rancho Harford Springs County Park (EO 2); (2) The Western Riverside County Bella Vista HCP) (EO 4), Briggs and private land immediately adjacent to the MSHCP provides a greater level of Scott Roads (EO 14), or Indian Truck Sycamore Creek development, management for Allium munzii on Trail and De Palma Roads (Sycamore northwest of I–15 and Indian Truck private lands than would designation of Creek) (EO 7) because of the small size, Trail Road, in Temescal Canyon (EO 3 critical habitat on private lands. The fragmentation, and impacts to these and EO 8); (3) Upper Dawson Canyon in designation of critical habitat only populations. The peer reviewers did not the Gavilan Hills (EO 5); (4) private land affects activities conducted, funded, or provide the EO numbers for these on the south side of Alberhill Mountain, permitted by Federal agencies. Section populations and we attempted to match west of I–15, in the City of Lake Elsinore 7(a)(2) of the Act requires Federal their descriptions with the EO for our (EO 6); (5) private land east of I–15, west agencies to ensure that actions they response. of De Palma’s Italian Village, between fund, authorize, or carry out are not Our Response. Considered together, Indian Canyon and Horsethief Canyon likely to jeopardize the continued the three categories of (1) approved (EO7); (6) west of Lindenberger Road, existence of any endangered or HCPs (Rancho Bella Vista and SKR 0.8 miles (mi) south of Scott Road, threatened species or destroy or HCPs); (2) existing PQP lands, proposed southeast of Sun City on a 36.3-ac (15 adversely modify critical habitat. conceptual reserve design lands, and ha) parcel conserved as the result of a Critical habitat designation on private lands targeted for conservation within conservation strategy approved through (non-Federal) lands would not obligate the Western Riverside County MSCHP; the section 7 consultation process or trigger any requirement by a private and (3) lands where conservation regarding a Sempra gas pipeline (non-Federal) landowner to manage strategies approved through the section (Service 2001) and on a 65.5-ac (27 ha) their lands to conserve Allium munzii. 7 consultation process have provided parcel conserved as a result of a All known occurrences of this species protection, long-term management, and conservation strategy approved through would be protected: (1) By approved funding to conserve Allium munzii the section 7 consultation process HCPs (Rancho Bella Vista and SKR provide a significant level of associated with the Warmington HCPs); (2) on existing PQP lands, conservation for Allium munzii. Thus, development (Service 2002) (EO 14); (7) proposed conceptual reserve design all of the occurrences of Allium munzii northern boundary of the City of Lake lands, and lands targeted for within (1) approved HCPs (Rancho Bella Elsinore, within the North Peak Specific conservation within the Western Vista and SKR); (2) existing PQP lands, Plan Area on lands purchased and Riverside County MSCHP; and (3) in proposed conceptual reserve design conserved by Riverside County (EO 15); areas where a conservation strategy lands, and lands targeted for (8) 1.2 mi northeast of the intersection authorized through the section 7 conservation within the Western of Lake Street and I–15 (EO 16); (9) land consultation process has provided for Riverside County MSCHP; and (3) on owned by Metropolitan Water District of protection and long-term management lands where conservation strategies Southern California on the north slope of Allium munzii. Thus, we have approved through the section 7 of Bachelor Mountain (EO 17); (10) concluded that the exclusion of such consultation process have provided Temescal Valley, west of I–15, between lands would not result in the extinction protection, long-term management, and Nichols Road and Riverside Drive, on a of Allium munzii. Please see funding to conserve Allium munzii. low hill adjacent to Collier Marsh ‘‘Relationship of Critical Habitat to Within PQP lands, the species occurs (Alberhill Marsh); and (11) near Approved Habitat Conservation Plans on lands in: (1) The southern border of Temescal Wash (EO 18). and Other Approved Conservation Harford Springs County Park (owned by In addition, at least 21,260 ac (8,604 Strategies’’ for a more detailed the County of Riverside) (EO 2); (2) ha) of modeled habitat for Allium discussion. Barry Jones Wetland Mitigation Bank munzii will be included in the MSHCP Comment 2. Two peer reviewers (previously called the Skunk Hollow Conservation Area (Service 2004). recommended that critical habitat be Wetland Mitigation Bank) (private According to the Western Riverside designated for additional known lands) (EO 4); (3) Lake Mathews— County MSHCP, at least 13 localities occurrences/populations and areas of Estelle Mountain Reserve northwest of within Temescal Valley and the suitable clay soils. These are: (1) Known the Estelle Mountain summit in the southwestern portion of Plan Area, occurrences at Harford Springs and Gavilan Hills (owned by the County of including the following Core Areas, are Harford Springs County Park and Riverside) (EO 9); (4) Southwestern to be included within the MSHCP adjacent clay habitat on the Gavilan Riverside County Multi-Species Reserve Conservation Area (County of Riverside Plateau (Elemental Occurrence (EO) 2); (SRCMSR) in the north Domenigoni 2002): (1) Harford Springs Park (EO 2); (2) all of the occurrences on and Hills on either side of Old Mine Road and (2) a population on private lands in adjacent to Estelle Mountain (EO 9); (3) (owned by the Metropolitan Water Temescal Valley (EO 5), Alberhill (EO an occurrence south of Steele Peak (no District) (EO 10); (5) SRCMSR lands at 6), De Palma Road (EO 7), Estelle element occurrence identified, possibly Lake Skinner (owned by the Bureau of Mountain (EO 9), Domenigoni Hills (EO
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10), Lake Skinner (EO 11), Bachelor unauthorized OHV use in this area (U.S. They stated that we did not provide any Mountain (EO 12), Elsinore Peak (EO Forest Service 2002). We do not agree scientific or biological reasons for not 13), Scott Road (EO 14), North Peak (EO that the exclusion of critical habitat including critical habitat within the 15), and northeast of Alberhill (EO 16). from the State lands may lead to further boundaries of HCPs including the Populations that are currently on public OHV damage or that the designation of Western Riverside County MSHCP. lands or within preservation areas critical habitat would give the State an Our Response. We disagree. Please see include Harford Springs Park (about half incentive to prevent this activity. our response to Peer Reviewer Comment the plants and habitat) (EO 2) and at Designation of critical habitat only 1 for a detailed explanation. Estelle Mountain (EO 7), North affects activities conducted, funded, or Comment 2. A commenter Domenigoni Hills (EO 10), Bachelor permitted by Federal agencies. recommended that critical habitat be Mountain (two populations) (EO 11 and Activities lacking any Federal nexus, expanded to include important EO 12), North Peak (EO 15), and such as OHV activity on State lands, populations within HCP areas, Cleveland National Forest lands at would not be affected by the critical including the extensive population on Elsinore Peak (EO 13) (County of habitat designation. Alberhill, Harford County Park and Riverside 2002). Comment 4. One peer reviewer adjacent lands, and North Peak. The occurrence at the Sycamore Creek suggested that the Service ‘‘needs to Our Response. We disagree. Please see development (EO 3 and EO 8) receives designate areas that are ‘‘critical’’ to the our response to Peer Reviewer Comment management (funded through the species, and review the current 2 for a detailed explanation. homeowners’ association; the management and protection procedures. Comment 3. A commenter stated that management plan is to be provided to Our Response. The definition of the Cleveland National Forest should the resource agencies prior to any critical habitat includes areas containing not be designated as critical habitat construction actions by the developer) the physical or biological features (1) because these lands are within the as part of a conservation strategy essential to the conservation of the boundary of the Western Riverside approved through the section 7 species and (2) which may require County MSHCP. consultation process. The occurrence on special management considerations or Our Response. We agree that the private lands west of Lindenberger Road protection. If the physical or biological Cleveland National Forest lands are (EO 14) receives management as part of features are not essential or may not within the Western Riverside County a conservation strategy approved require special management MSHCP Plan Area. However, unlike through section 7 consultation processes considerations or protection, then the private landowners and local for a Southern California Gas Company area would not meet the definition of jurisdictions, Federal agencies, such as gas pipeline and the Warmington critical habitat. Please see ‘‘Special the U.S. Forest Service, do not receive development. Management Considerations and take authorization for any species Thus, the nine occurrences Protection’’ for a further discussion of covered by the Western Riverside recommended to be designated as this subject. County MSHCP. While lands within the critical habitat by the peer reviewers Comment 5. Two peer reviewers (and Cleveland National Forest were (EO 2, EO 3, EO 8, EO 6, EO 9, EO 10, a public review commenter) questioned considered as part of the environmental EO 12, EO 13, and EO 15) are already the number and description of baseline, the U.S. Forest Service is not conserved (1) within approved HCPs occurrences of Allium munzii described a signatory agency to the Western (Rancho Bella Vista and SKR HCPs); (2) in the proposed rule. Riverside County MSHCP, nor is it they on existing PQP lands, proposed Our Response. The proposed rule bound to comply with the regional HCP. conceptual reserve design lands, and stated that there are 19 occurrences of Thus, we have only excluded private lands targeted for conservation within Allium munzii according to the lands within the Western Riverside the Western Riverside County MSCHP; California Natural Diversity Database County MSHCP from critical habitat and (3) on lands where conservation (CNDDB) (CNDDB 2004). We have designation in this and other final strategies approved through the section reviewed the CNDDB records to clarify critical habitat designation rules. 7 consultation process have provided any discrepancies in the number of protection, long-term management, and occurrences of Allium munzii (Service Comments Related to the Economic funding to conserve Allium munzii. We 2003). The CNDDB reported 21 element Analysis of Critical Habitat have excluded these lands, except for occurrences (EO) (Service 2003). Of Comment 1. We received several the occurrence on U.S. Forest Service these records, EO 1 is extirpated and EO comment letters related to the draft lands, under section 4(b)(2) of the Act 19 is an error. Thus, we concluded that economic analysis (DEA) and proposed in this final rule. there were 19 occurrences. Our further designation of critical habitat for the Comment 3. One peer reviewer noted review of the CNDDB indicates that EO Lake Elsinore Advanced Pumped that the large population of Allium 20 and EO 21 are older records and have Storage Project (LEAPS). munzii on State of California lands not been recently verified, and EO 3 and Our Response. We analyzed the immediately adjacent to the Cleveland EO 8 may represent the same population information contained in the comment National Forest lands at Elsinore Peak is and should be treated as a single letters, soil maps, aerial photography, subject to increasing levels of off- occurrence. Hence, in the final rule, we and distribution of Allium munzii highway vehicle (OHV) use. The describe 16 extant populations of populations along the easternmost edge commenter expressed concern that Allium munzii (see also ‘‘Criteria Used of the proposed critical habitat unit. No excluding this area from critical habitat to Identify Critical Habitat’’ for a listing known populations of Allium munzii may lead to further OHV (and other) of these 16 populations). occur within the LEAPS transmission damage to this population and would line corridor, and the nearest population not give the State of California incentive Comments Related to Designation and is west of the corridor on soils mapped to prevent this impact. Exclusion of Critical Habitat as Bosanko clay (identified as a clay soil Our Response. The Cleveland Comment 1. Several commenters in the primary constituent element #1) National Forest requested approval from disagreed with our exclusion of critical and Las Posas gravelly loam (identified the State Lands Commission to place habitat within approved HCPs including as a soil series of sedimentary or barriers on State lands to discourage the Western Riverside County MSHCP. igneous origin with a clay subsoil in
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primary constituent element #1). The other listed species that include Allium real estate projects involving Service soil maps indicate that the LEAPS munzii and its habitat. In general, the consultation on Allium munzii. transmission corridor crosses soils analysis errs conservatively in order to Our Response. The EA estimates the mapped as Cieneba-rock outcrop make certain the economic effects have historical costs associated with the complex and the available information not been missed. It treats as ‘‘co- Allium munzii conservation efforts on indicates that Allium munzii does not extensive’’ other Federal and State real estate development projects based occur on this soil type. Thus, we have requirements that may result in on information contained within the not included the LEAPS transmission overlapping protection measures (e.g., three past consultations that included corridor in the designation of critical California Environmental Quality Act) Allium munzii (Rancho Bella Vista, habitat in the final rule. Since no critical for the plant. In some cases, however, Sycamore Creek development, and the habitat is being designated within the non-habitat-related regulations will Warmington Murrieta Scott Road LLC LEAPS transmission corridor, we did limit land use activities within critical subdivision). Each consultation not, and do not need to, consider habitat in ways that will directly or addressed the impacts of the proposed economic impacts related to the LEAPS indirectly benefit Allium munzii or its action not only to Allium munzii but project. habitat (e.g., local zoning ordinances). also to other listed species. The impacts Comment 2. A commenter stated that These impacts were not considered to to each project varied based on the the DEA fails to clearly state that critical be ‘‘co-extensive’’ with Allium munzii amount of habitat being affected and the habitat has no legal implications on listing or designation for two reasons. degree of impact. In general, projects private lands and no burden on his/her First, such impacts would occur even if that had to preserve more habitat had property absent Federal nexus. Allium munzii were not listed. Second, higher economic costs because the land Our Response. A description of the we must be able to differentiate could not be put to its highest economic legal implications of critical habitat can economic impacts solely associated use. be found in this Final Rule under with the conservation of Allium munzii Comment 7. A commenter stated that ‘‘Effects of Critical Habitat Designation.’’ and its habitat in order to understand the DEA overestimates the historical Comment 3. We received several whether the benefit of excluding any cost associated with the conservation of comments concerning the scope of the particular area from Allium munzii Allium munzii because it economic analysis. One commenter critical habitat outweighs the benefit of inappropriately assumes that the cost stated that distributing costs among including the area. affiliated with the conservation of other endangered species likely to co- Allium munzii is equally weighted with The economic analysis distributes the exist with Allium munzii violates the the other covered species when in fact cost of conserving Allium munzii co-extensive analysis that is required, conservation efforts for animal species habitat equally among the number of while another commenter stated that the involve higher costs than plant species. cost of Allium munzii conservation other listed species likely to co-exist Our Response. While animal species should not include costs associated with with Allium munzii as indicated by the may in fact involve higher level of the listing of Allium munzii or other historical consultations. None of the monitoring and active management regulatory requirements (such as NEPA) past Allium munzii consultations efforts, the DEA errs conservatively in that afford protection to the species. focused solely on Munz’s onion but order to make certain the past economic Our Response. The primary purpose rather on other listed animal species co- effects associated with the conservation of the economic analysis is to estimate occurring in the area. Within a of Allium munzii have not been the potential economic impacts biological opinion that covers several understated. associated with the designation of species, we are unable to accurately Comment 8. A commenter stated that critical habitat for Allium munzii. The segregate out the cost for an individual the $30,000 estimate for Allium Act defines critical habitat to mean species from the rest of the species munzii’s portion of the Western those specific areas that are essential to covered in the biological opinion. Riverside MSHCP preparation cost is an the conservation of the species. The Act Comment 5. A few commenters stated overestimation, because the section in also defines conservation to mean the that the DEA failed to address the the document addressing the plant is use of all methods and procedures implications of the Gifford Pinchot Task boilerplate rather than compiled from necessary to bring any endangered Force v. United States Fish and Wildlife detailed research. species or threatened species to the Service (USFWS), 378 F.3d 1059, 1069 Our Response. The DEA estimates the point at which the measures of the Act (Ninth Circuit 2004) ruling on future portion of the MSHCP preparation cost are no longer necessary. Thus we Allium munzii conservation costs. attributable to Allium munzii by equally interpret the Act to mean that the Our Response: The Service notes that distributing the total cost of the MSHCP economic analysis should include all of a recent Ninth Circuit judicial opinion, preparation among 145 species covered the economic impacts associated with Gifford Pinchot Task Force v. USFWS, by the MSHCP. While other covered the conservation of the species, which has invalidated the Service’s regulation species may in fact involve higher level may include some of the effects defining destruction or adverse of research and documentation, the DEA associated with listing because the modification of critical habitat. The errs conservatively in order to make species was listed prior to the proposed Service is currently reviewing the certain economic effects have not been designation of critical habitat. We note decision to determine what effect it (and understated. Although this is a that the Act generally requires critical to a limited extent Center for Biological simplistic approach for estimating the habitat to be designated at the time of Diversity v. Bureau of Land historical coextensive cost for Allium listing, and, that had we conducted an Management (Case No. C–03–2509–SI, munzii, we do not believe that the error economic analysis at that time, the N.D. Cal.)) may have on the outcome of introduced by this method will have a impacts associated with listing would consultations pursuant to section 7 of significant effect on our final critical not be readily distinguishable from the Act. habitat decision. those associated with critical habitat Comment 6. A commenter stated that Comment 9. A commenter stated that designation. additional explanation should be the DEA fails to acknowledge any The DEA discusses other relevant provided concerning the reasons behind benefit of conserving a species that is regulations and protection efforts for the cost variation for the three historical threatened by extinction from
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developments. The same commenter estimates of such values as they are not occur on this soil type. Thus, we have also requested that the final EA readily observed through typical market not included the LEAPS transmission incorporate a quantitative estimate of transactions. corridor in the designation of critical benefits of open space since Comment 10. A commenter stated that habitat in the final rule. This revision conservation of Allium munzii the DEA should explain how future has resulted in a reduction from the contributes to overall preservation of management costs of Allium munzii proposed critical habitat of 227 ac (92 open space. habitat were estimated given that ha) to 176 ac (71 ha) in the final rule. Our Response. Section 4(b)(2) of the management requirements have not Act requires the Secretary to designate been clearly identified by the Western Critical Habitat critical habitat based on the best Riverside MSHCP/Natural Community Critical habitat is defined in section 3 scientific data available after taking into Conservation Plans (NCCP). of the Act as (i) the specific areas within consideration the economic impact, and Our Response. The MSHCP budget the geographic area occupied by a any other relevant impact, of specifying reveals an average annual management species, at the time it is listed in any particular area as critical habitat. cost of approximately $84 per acre, in accordance with the Act, on which are Our approach for estimating economic 2004 dollars. Because the MSHCP does found those physical or biological impacts includes both economic not list specific management features (I) essential to the conservation efficiency and distributional effects. The requirements for Allium munzii, the of the species and (II) that may require measurement of economic efficiency is Service relies on this overall per-acre special management considerations or based on the concept of opportunity cost to estimate future management cost protection; and (ii) specific areas costs, which reflects the value of goods for Allium munzii. We believe this to be outside the geographic area occupied by and services foregone in order to a reasonable estimate to use in a species at the time it is listed, upon comply with the effects of the forecasting conservation costs. a determination that such areas are designation (e.g., lost economic Comment 11. A commenter stated essential for the conservation of the opportunity associated with restrictions that, contrary to a statement made in the species. ‘‘Conservation’’ means the use on land use). Where data are available, DEA that not every acre in the habitat of all methods and procedures that are our analyses do attempt to measure the contains Allium munzii or the primary necessary to bring an endangered or a net economic impact. For example, the constituent elements of habitat, the threatened species to the point at which analysis recognizes the potential for essential habitats all have primary listing under the Act is no longer benefits associated with the constituent elements by definition. necessary. No specific areas outside the preservation of open space. It describes Our Response. This statement has geographical area occupied by Allium that in certain cases real estate been corrected in the EA. munzii at the time of listing are development that effectively designated as critical habitat in this Comments From States incorporates the Allium munzii habitat final rule. The area designated as critical set-aside on-site might realize a value Section 4(i) of the Act states, the habitat (Elsinore Peak in the Cleveland premium typically associated with Secretary shall submit to the State National Forest) was described in the additional open space. Any such agency a written justification for her final listing rule (63 FR 54975). premium will offset land preservation failure to adopt regulations consistent Critical habitat receives protection costs borne by landowners/developers. with the State agency’s comments or under section 7 of the Act through the However, while this scenario remains a petition. The California Department of prohibition against destruction or possibility, reliable data revealing the Fish and Game (CDFG) did not provide adverse modification of critical habitat premium that the market places on comments on the proposed rule to with regard to actions carried out, nearby open space in Southern designate critical habitat for Allium funded, or authorized by a Federal California is not readily available. munzii or the draft economic analysis agency. Section 7 requires consultation Moreover, the value premium associated for critical habitat for Allium munzii. In on Federal actions that are likely to with habitat preservation is likely to be the case of other proposed rules for result in the destruction or adverse limited given that recreational uses critical habitat, CDFG has supported the modification of critical habitat. The associated with habitat preserves may exclusion of NCCPs/HCPs that covered designation of critical habitat does not be generally restricted to low-impact the particular species of interest. affect land ownership or establish a activities. Consistent with their previous refuge, wilderness, reserve, preserve, or The value of open space, along with comments on other critical habitat rules, other conservation area. Such other ancillary benefits, reflects broader we have excluded critical habitat for designation does not allow government social values, which are not the same as Allium munzii from lands within the or public access to private lands. economic impacts. While the Secretary Western Riverside County MSHCP and To be included in a critical habitat must consider economic and other other approved HCPs. No State lands are designation, the habitat within the area relevant impacts as part of the final designated as critical habitat for Allium occupied by the species must first have decision-making process under section munzii. features that are ‘‘essential to the 4(b)(2) of the Act, the Act explicitly conservation of the species.’’ Critical states that it is the government’s policy Summary of Changes From Proposed habitat designations identify, to the to conserve all threatened and Rule extent known using the best scientific endangered species and the ecosystems We are not including critical habitat and commercial data available, habitat upon which they depend. Thus we along the eastern boundary of the areas that provide essential life cycle believe that explicit consideration of Western Riverside County Unit because needs of the species (i.e., areas on which broader social values for the species and the area does not contain the primary are found the primary constituent its habitat, beyond the more constituent elements for Allium munzii. elements, as defined at 50 CFR traditionally defined economic impacts, The soil maps indicate that the LEAPS 424.12(b)). is not necessary as Congress has already transmission corridor crosses soils Habitat occupied at the time of listing clarified the social importance for us. As mapped as Cieneba-rock outcrop may be included in critical habitat only a practical matter, we note the difficulty complex and the available information if the essential features thereon may in being able to develop credible indicates that Allium munzii does not require special management or
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protection. Thus, we do not include species. For these reasons, critical Universal Transverse Mercator (UTM) areas where existing management is habitat designations do not signal that North American Datum 27 (NAD 27) sufficient to conserve the species. (As habitat outside the designation is coordinates which, when connected, discussed below, such areas may also be unimportant or may not be required for provided the boundaries of the essential excluded from critical habitat pursuant recovery. areas. to section 4(b)(2).) Accordingly, when Areas that support populations, but Primary Constituent Elements the best available scientific and are outside the critical habitat commercial data do not demonstrate designation, will continue to be subject In accordance with section 3(5)(A)(i) that the conservation needs of the to conservation actions implemented of the Act and regulations at 50 CFR species so require, we will not designate under section 7(a)(1) of the Act and to 424.12, in determining which areas to critical habitat in areas outside the the regulatory protections afforded by propose as critical habitat, we are geographic area occupied by the species the section 7(a)(2) jeopardy standard, as required to base critical habitat at the time of listing. An area currently determined on the basis of the best determinations on the best scientific occupied by the species but that was not available information at the time of the and commercial data available and to known to be occupied at the time of action. Federally funded or permitted consider those physical and biological listing will likely be essential to the projects affecting listed species outside features (primary constituent elements conservation of the species and, their designated critical habitat areas (PCEs)) that are essential to the therefore, will be included in the critical may still result in jeopardy findings in conservation of the species, and that habitat designation. some cases. Similarly, critical habitat may require special management The Service’s Policy on Information designations made on the basis of the considerations and protection. These Standards Under the Endangered best available information at the time of include, but are not limited to: Space for Species Act, published in the Federal designation will not control the individual and population growth and Register on July 1, 1994 (59 FR 34271), direction and substance of future for normal behavior; food, water, air, and Section 515 of the Treasury and recovery plans, habitat conservation light, minerals, or other nutritional or General Government Appropriations plans, or other species conservation physiological requirements; cover or Act for Fiscal Year 2001 (Pub. L. 106– planning efforts if new information shelter; sites for breeding, reproduction, 554; H.R. 5658) and the associated available to these planning efforts calls and rearing (or development) of Information Quality Guidelines issued for a different outcome. offspring; and habitats that are protected by the Service, provide criteria, from disturbance or are representative of Methods establish procedures, and provide the historic geographical and ecological guidance to ensure that decisions made As required by section 4(b)(1)(A) of distributions of a species. by the Service represent the best the Act, we used the best scientific and The specific primary constituent scientific and commercial data commercial data available in elements or biological and physical available. They require Service determining areas that are essential to features required for Allium munzii are biologists to the extent consistent with the conservation of Allium munzii. derived from the biological needs of the the Act and with the use of the best These included data from research and species as described in the background scientific and commercial data survey observations published in peer- section of the proposed critical habitat available, to use primary and original reviewed articles and other documents, rule (69 FR 31569). regional Geographic Information System sources of information as the basis for Space for Individual and Population (GIS) vegetation, soil, and species recommendations to designate critical Growth and Food, Water, Air, Light, coverages (including layers for Riverside habitat. When determining which areas Minerals, or Other Nutritional or County), and data compiled in the are critical habitat, a primary source of Physiological Requirements information is generally the listing CNDDB. In addition, information package for the species. Additional provided in comments on the proposed Allium munzii is restricted to mesic information sources include the critical habitat designation and draft clay soils in western Riverside County, recovery plan for the species, articles in economic analysis were evaluated and California, along the southern edge of peer-reviewed journals, conservation considered in the development of the the Perris basin (primary constituent plans developed by States and counties, final designation for Allium munzii. We elements #1 and #2). The clay soils are scientific status surveys and studies, designated no areas outside of the scattered in a band several miles wide biological assessments, or other geographic area presently occupied by and extending 40 miles from Gavilan unpublished materials and expert the species. Hills to west of Temescal Canyon and opinion or personal knowledge. All After all the information about the Lake Elsinore at the eastern foothills of information is used in accordance with known occurrences of Allium munzii the Santa Ana Mountains and along the the provisions of Section 515 of the was compiled, we created maps Elsinore Fault Zone to the southwestern Treasury and General Government indicating the essential habitat foothills of the San Jacinto Mountains Appropriations Act for Fiscal Year 2001 associated with each of the occurrences. near Lake Skinner. Clay soil (Pub. L. 106–554; H.R. 5658) and the We used the information outlined above associations include Altamont, Auld, associated Information Quality to aid in this task. The essential habitat Bosanko, Claypit and Porterville clay Guidelines issued by the Service. was mapped using GIS and refined soil types. At least one population Section 4 of the Act requires that we using topographical and aerial map (North Domenigoni Hills) was reported designate critical habitat on the basis of coverages. These essential habitat areas by Bramlet in 1991 to be associated with the best scientific data available. Habitat were further refined by discussing each pyroxenite outcrops instead of clay is often dynamic, and species may move area in detail with Fish and Wildlife (CNDDB 2003). Rounded cobbles and from one area to another over time. Service biologists familiar with each boulders are embedded within clay, Furthermore, we recognize that area. which has a sticky, adobe consistency designation of critical habitat may not After creating a GIS coverage of the when wet and large cracks when dry. include all of the habitat areas that may essential areas, we created legal Allium munzii is typically found on the eventually be determined to be descriptions of the essential areas. We more mesic sites within the clay necessary for the recovery of the used a 100-meter grid to establish deposits (Boyd 1988). These mesic areas
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within the clay deposits typically lily), Sanicula bipinnatifida (purple and ‘‘clay soil flora’’ which can occur in support grassland vegetation within a sanicle), S. arguta (snakeroot), a mosaic with Riversidean sage scrub, surrounding scrub community. Allium Lomatium utriculatum (common chamise chaparral, scrub oak chaparral, munzii occurs at elevations from 984 to lomatium), L. dasycarpum (lace coast live oak woodland, and peninsular 3,511 feet (ft) (300 to 1,070 meters (m)), parsnip), Dodecatheon clevelandii juniper woodland and scrub; or and on level or slightly sloping lands. (Cleveland’s shooting star), Bloomeria (2) Alluvial soil series of sedimentary The Western Riverside County Unit crocea (goldenstar), Chlorogalum or igneous origin (e.g., Greenfield, contains Bosanko clay soils identified as parviflorum (soaproot), Dudleya Ramona, Placentia, Temescal) and a clay soil series of sedimentary origin multicaulis (many-stemmed dudleya), terrace escarpment soils found as part of as well as Las Posas gravelly loam Allium haematochiton (red-skinned alluvial fans underlying open native or (identified as a soil series of onion) and A. munzii (Boyd 1988). The non-native grassland plant communities sedimentary or igneous origin with a plant communities within this unit that can occur in a mosaic with clay subsoil) at a suitable elevation for provide sites for reproduction, Riversidean sage scrub generally this species (primary constituent germination, or pollination. between the elevations of 985 ft and element #1 and #3). This unit is also 3,500 ft (300 m and 1,068 m) AMSL, or within open native and non-native Disturbance, Protection, and the Pyroxenite deposits of igneous origin grassland plant communities (primary Historical Geographical Distributions found on Bachelor Mountain as part of constituent element #1). The soils, The area designated as critical habitat non-native grassland and Riversidean aspect, elevation, and plant is within the Cleveland National Forest sage scrub generally between the communities present in this unit (see also Western Riverside County Unit, elevations of 985 ft and 3,500 ft (300 m provide space for individual and Riverside County, California for a and 1,068 m) AMSL; and population growth. The soils, aspect, description of this unit). This locality (3) Clay soils or other soil substrate as and elevation of the unit (primary represents the southwesternmost and described above with intact, natural constituent element #3) provide food, highest elevation occurrence of Allium surface and subsurface structure that water, air, light, minerals and other munzii. The Elsinore Peak population is have been minimally altered or nutritional and physiological considered to be the most undisturbed unaltered by ground-disturbing requirements for Allium munzii. and pristine of any of the known activities (e.g., disked, graded, occurrences of this species (Boyd and excavated, re-contoured); and, Sites for Reproduction, Germination, or Mistretta 1991) (primary constituent (4) Within areas of suitable clay soils, Pollination element #2). This population is microhabitats that are moister than Allium munzii is typically found in estimated to be more than 1,000 plants surrounding areas because of (A) north open native grasslands and, and is ranked as a top conservation or northeast exposure or (B) seasonally increasingly, non-native grasslands, priority by a working group assembled available moisture from surface or which can be either the dominant by the California Department of Fish subsurface runoff. community or found in a mosaic with and Game (Mistretta 1993). The Forest All areas designated as critical habitat Riversidean sage scrub, scrub oak Service developed the Allium munzii for Allium munzii are within the chaparral, chamise chaparral, coast live Species Management Guide to ensure geographic area occupied by the species, oak woodland, or peninsular juniper that ‘‘National Forest lands are managed were known to be occupied at the time woodland and scrub (Holland 1986). to maintain viable populations of all of listing, and contain one or more Based upon the dominant species, the native plants and animals’’ (U.S. Forest primary constituent elements (e.g., soil, plant communities where Allium Service 1992). Thus, this location associated plant community) essential munzii is found have been further represents a significant habitat that is for its conservation. divided into series which include, but protected from disturbance and is Criteria Used To Identify Critical are not limited to, California annual within the historical geographical Habitat grassland, nodding needlegrass, purple distribution of this species. needlegrass, foothill needlegrass, black All areas known to support extant sage, white sage, California buckwheat, Primary Constituent Elements for populations of Allium munzii are California buckwheat-white sage, Allium munzii considered essential habitat for the California sagebrush, California Based on our current knowledge of species because they include those sagebrush-black sage, California the life history, biology, and ecology of physical or biological features essential sagebrush-California buckwheat, mixed the species and the requirements of the to the conservation of the species and sage, chamise, chamise-black sage, coast habitat to sustain the essential life which may require special management live oak, scrub oak, and California history functions of the species, we have considerations or protection. Allium juniper (Sawyer and Keeler-Wolf 1994). determined that primary constituent munzii is known only from a narrow A characteristic ‘‘clay soil flora’’ is elements for Allium munzii are: geographical range and, within that associated with the island-like clay (1) Clay soil series of sedimentary range, is limited to clay soils. Currently deposits in southwestern Riverside origin (e.g., Altamont, Auld, Bosanko, 16 populations of this plant are known County. This includes herbaceous Claypit, Porterville), or clay lenses to exist. Extant populations of Allium annuals, such as Harpagonella palmeri (pockets of clay soils) of such that may munzii occur at the following locations: (Palmer’s grappling hook), Chorizanthe be found as unmapped inclusions in (1) Southern border of Harford Springs polygonoides var. longispina (knot-weed other soil series, or soil series of County Park and extending onto private spine flower), Achyrachaena mollis, sedimentary or igneous origin with a lands across Ida Leona Road in the Ancistrocarphus filagineus, clay subsoil (e.g., Cajalco, Las Posas, Gavilan Hills (population estimates Convolvulus simulans (small-flowered Vallecitos), found on level or slightly from surveys between 1986 and 1998 morning-glory), Erodium sloping landscapes; generally between range from 2,000 to 51,000 plants) (EO macrophyllum, and Microseris doulasii the elevations of 985 ft and 3,500 ft (300 2); (2) private land immediately adjacent spp. Platycarpha (small-flowered m and 1,068 m) above mean sea level to the Sycamore Creek development, microseris), and herbaceous perennials, (AMSL), and as part of open native or northwest of I–15 and Indian Truck such as Fritillaria biflora (chocolate non-native grassland plant communities Trail Road, in Temescal Canyon
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(estimate of approximately 300 plants) We are designating critical habitat on be essential for conservation may (EO 3 and 8); (3) Barry Jones Wetland lands we have determined were require special management Mitigation Bank (Skunk Hollow occupied at the time of listing and considerations or protections. As we Wetland Conservation Bank) contain the primary constituent undertake the process of designating (approximately 250 plants) (EO 4); (4) elements and those additional areas critical habitat for a species, we first private land on the south flank of Upper found to be essential to the conservation evaluate lands defined by those physical Dawson Canyon in the Gavilan Hills of Allium munzii. and biological features essential to the (estimate of approximately 2,000 plants) Section 10(a)(1)(B) of the Act conservation of the species for inclusion (EO 5); (5) private land on the south side authorizes us to issue permits for the in the designation pursuant to section of Alberhill Mountain, west of I–15, in take of listed species incidental to 3(5)(A) of the Act. Secondly, we then the City of Lake Elsinore (estimate of otherwise lawful activities. An evaluate lands defined by those features approximately 7,700 plants) (EO 6); (6) incidental take permit application must to assess whether they may require private land east of I–15, west of De be supported by a habitat conservation special management considerations or plan (HCP) that identifies conservation Palma’s Italian Village, between Indian protection. measures that the permittee agrees to As discussed throughout this rule, Canyon and Horsethief Canyon implement for the species to minimize Allium munzii and its habitat are (estimate of approximately 1,000 plants) and mitigate the impacts of the threatened by a number of factors. (EO7); (7) Lake Mathews—Estelle requested incidental take. We often Threats to those features that define Mountain Reserve northwest of the exclude non-Federal public lands and essential habitat (primary constituent Estelle Mountain summit in the Gavilan private lands that are covered by an elements) are caused by various types of Hills (estimate of approximately 2,000 existing operative HCP and executed development, dry-land farming plants based on a 1986 survey) (EO 9); implementation agreement (IA) under activities, off-road vehicle activity, clay (8) Southwestern Riverside County section 10(a)(1)(B) of the Act from mining, and competition with non- Multi-Species Reserve (SRCMSR) in the designated critical habitat because the native plants. Habitat loss continues to north Domenigoni Hills on either side of benefits of exclusion outweigh the be the greatest threat to Allium munzii. Old Mine Road (estimate of benefits of inclusion as discussed in It is essential for the survival of this approximately 440 plants) (EO 10); (9) section 4(b)(2) of the Act. All but one species to protect those features that south slope of Bachelor Mountain, along occurrence of Allium munzii are in define the remaining essential habitat, a maintenance road associated with areas subject to: (1) Management plans through purchase or special Lake Skinner Dam (population estimates related to approved HCPs (Rancho Bella management plans, from irreversible from surveys conducted between 1989 Vista and SKR HCPs); (2) existing PQP threats and habitat conversion. and 1992 range from 200 and 4,400 lands, proposed conceptual reserve The Western Riverside County Unit is plants) (EO 11); (10) south slope of design lands, and lands targeted for entirely on Federal lands within the Bachelor Mountain, about a mile east of conservation within the Western Cleveland National Forest (Cleveland the population described above (#9) Riverside County MSCHP; and (3) NF). The Cleveland NF has developed a (estimate of approximately 150 plants) conservation strategies approved Species Management Guide for Allium (EO 12); (11) Elsinore Peak, west of the through the section 7 consultation munzii (Allium munzii) (Guide) (U.S. City of Lake Elsinore, on the Cleveland process that have provided protection, Forest Service 1992). The Guide, plus National Forest and adjacent State of long-term management, and funding to subsequent documentation from California lands (population estimate of conserve Allium munzii. Cleveland NF (U.S. Forest Service more than 1,000 plants) (EO 13); (12) When determining critical habitat 2002), describes threats to Allium west of Lindenberger Road, 0.8 miles boundaries, we made every effort to munzii from off-road vehicles, south of Scott Road, southeast of Sun avoid designating developed areas such competition from non-native plants, City on a 36.3-acre (15 ha) parcel and on as buildings, paved areas, radio and wildfire management, development, a 65.5-acre (27 ha) associated with the communication towers, and other habitat fragmentation, and species viability. The ongoing and pervasive Warmington development (estimate of structures that lack PCEs for Allium nature of these threats demonstrates that approximately 1,000 plants prior to munzii. Any such structures the PCEs for Allium munzii require project impacts) (EO 14); (13) northern inadvertently left inside designated critical habitat boundaries are not ongoing special management boundary of the City of Lake Elsinore, considered part of the designated unit. considerations or protection within this within the North Peak Specific Plan This also applies to the land on which unit. For example, maintaining the Area on lands purchased and conserved such structures sit directly. Therefore, integrity of the clay soils (primary by Riverside County (estimate of several Federal actions limited to these areas constituent elements #1 and #2) to thousand plants) (EO 15); (14) private would not trigger section 7 support Allium munzii requires the lands northeast of Alberhill, 1.0 miles consultations, unless they affect the ongoing efforts by the Forest Service to north of I–15 and 1.2 miles northeast of species and/or primary constituent control unauthorized off-road vehicle the intersection of Lake Street and I–15 elements in adjacent critical habitat. use and grazing in habitats occupied by (estimate of approximately 300 plants) A brief discussion of the area Allium munzii. Grazing would have (EO 16); (15) land owned by designated as critical habitat is provided unacceptably high impacts on Allium Metropolitan Water District of Southern in the description below. Additional munzii through trampling and California on the north slope of detailed documentation concerning the compaction of the soil, and Bachelor Mountain (estimate of 2 essential nature of this area is contained enhancement of non-native grass plants) (EO 17); and (16) Temescal in our supporting record for this species populations (U.S. Forest Service Valley, west of I–15, between Nichols rulemaking. 1992). Protecting surrounding lands Road and Riverside Drive, on a low hill from development, grading, and erosion adjacent to Collier Marsh (Alberhill Special Management Considerations or that maintain the mesic microhabitat Marsh) and near Temescal Wash Protections conditions require continued (population estimate not known) (EO When designating critical habitat, we management oversight by the Forest 18). assess whether the areas determined to Service (primary constituent element
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#3). In addition, fire management to and (3) on lands where conservation controls, and fire suppression logistics; sustain Allium munzii is under Forest strategies approved through the section and controlling recreation. Protecting Service control. 7 consultation process have provided habitat will maintain and minimize The Guide includes a large number of protection, long-term management, and disturbances to suitable soils and management actions designed to reduce funding to conserve Allium munzii may vegetation communities associated with these specific threats to Allium munzii require special management Allium munzii. Access and recreation within the Cleveland NF: (1) Future considerations or protection. management will protect occurrences of development at the Elsinore Peak Occurrences within the Western Allium munzii from impacts by off- electronic site will be designed to avoid Riverside County MSHCP are threatened highway vehicles and trampling. The adverse effects to Allium munzii; (2) by competition with non-native plant fire management planning will avoid illegal off-road vehicle activity in the species, clay mining, off-road vehicle occurrences and maintain the vegetation Elsinore Peak area of the Trabuco use, and disking activities. The Western communities associated with Allium Ranger District and other areas of Riverside County MSHCP proposes that munzii. Allium munzii habitat, as needed, will the Reserve Managers will manage The occurrence at the Sycamore Creek be eliminated through construction of known and future occurrences of this development (EO 3 and EO 8) was barriers and fencing; (3) future species to minimize these threats, and threatened by activities that would management of the slopes of Elsinore the persistence of 75 percent of the disturb or remove vegetation and Peak and other areas of Allium munzii known locations will be monitored Altamont clay soils. The occurrence on habitat allows minimal development; (4) every 8 years. Other management private lands west of Lindenberger Road fire management of habitat includes a actions described in the Western (EO 14) was faced with similar threats number of specific prescriptions (e.g., Riverside County MSHCP include to vegetation and soil disturbance and related to ‘‘free-burn’’ areas, fuelbreaks addressing competition with non-native and fire suppression activities, earth- removal. Prior to the conservation of plant species, clay mining, off-road this occurrence, this population may moving on slopes, location of fire vehicle use, and disking activities. camps, and site rehabilitation after fire; have been affected by light grazing and/ (5) the parcel of land in Section 36 that The Rancho Bella Vista HCP provides or dry land farming (CNDDB 2003). supports Allium munzii will be a high both interim and long-term management Critical Habitat Designation priority target for acquisition in future to address threats to PCEs from land exchanges; (6) the Cleveland NF development, invasive plants, trampling Designated critical habitat includes will confer with California Department and fire. The SKR HCP provides for the Allium munzii habitat at a single of Fish and Game and the Service establishment of core reserves, adaptive location in the species’ range and is regarding possible outplantings of management of the reserve, and located entirely within Riverside Allium munzii and monitor management and restoration of habitats County, California. The majority of outplantings; and (7) no new grazing for the Stephens’ kangaroo rat. The core essential habitat for this species has allotments or special use permits for preserves and management plans reduce been excluded under section 4(b)(2) of grazing will be issued for the Elsinore threats to the PCEs for Munz’s onion by the Act. As a result, only Federal lands Peak area. protecting habitat and limiting are designated as critical habitat. Table The occurrences on non-Federal lands fragmentation of habitat from future 1 depicts areas determined to be that are: (1) Within approved HCPs urban and agricultural development; essential to the Allium munzii, lands (Rancho Bella Vista and SKR HCPs); (2) controlling trespass and unauthorized being excluded from critical habitat on existing PQP lands, proposed uses of preserve lands by the pursuant to section 4(b)(2) of the Act, conceptual reserve design lands, and installation of barriers, gates, signage, and the approximate area designated as lands targeted for conservation within and fences; fire management plans critical habitat for the Allium munzii by the Western Riverside County MSCHP; including fire break management, fire land ownership.
TABLE 1.—SUMMARY OF ESSENTIAL HABITAT ACREAGE FOR Allium munzii
Federal* Local/state Private Total
Essential habitat ...... 176 ac (71 ha) ...... 73 ac (30 ha) ...... 995 ac (403 ha) ...... 1,244 ac (503 ha). Excluded under 4(b)(2) ...... 0 ac (0 ha) ...... 73 ac (30 ha) ...... 995 ac (403 ha) ...... 1,068 ac (433 ha). Designated critical habitat ...... 176 ac (71 ha) ...... 0 ac (0 ha) ...... 0 ac (0 ha) ...... 176 ac (71 ha). * Federal lands include U.S. Forest Service lands.
Western Riverside County Unit, funding to conserve Allium munzii map of the areas identified as essential Riverside County, California (176 ac (71 currently, or will, provide for the habitat can be viewed on our Web site ha)) conservation of all known occurrences at http://carlsbad.fws.gov. As discussed above, the lands that of Allium munzii. Only the habitat Designated critical habitat is located are: (1) Approved HCPs (Rancho Bella located on U.S. Forest Service lands is in the vicinity of Elsinore Peak in the Vista and SKR HCPs); (2) on existing designated as critical habitat. This area Cleveland National Forest. The PQP lands, proposed conceptual reserve was occupied at the time of listing, easternmost stand of Allium munzii at design lands, and lands targeted for contains the primary constituent this location is considered to be the conservation within the Western elements, is essential to the most undisturbed and pristine of any of Riverside County MSCHP; and (3) on conservation of the species, requires the known occurrences of this species lands where conservation strategies special management, and the activities (Boyd and Mistretta 1991). The land approved through the section 7 of Federal agencies are not covered identified for this unit of critical habitat consultation process have provided under the Western Riverside County supports the primary constituent protection, long-term management, and MSHCP section 10(a)(1)(B) permit. A elements discussed above. The habitat is
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characterized by mixed native/non- to evaluate their actions with respect to relocation of the project. Costs native grassland and chaparral any species that is proposed or listed as associated with implementing a vegetation. Allium munzii occurs endangered or threatened and with reasonable and prudent alternative are primarily in the grassland and the respect to its critical habitat, if any is similarly variable. transitional vegetation between the proposed or designated. Regulations Regulations at 50 CFR 402.16 require grassland and chaparral. The soils are implementing this interagency Federal agencies to reinitiate primarily mapped as Bosanko clay, cooperation provision of the Act are consultation on previously reviewed Cieneba-blasingame-rock outcrop codified at 50 CFR part 402. actions in instances where critical complex, and Cieneba-rock outcrop Section 7(a)(4) of the Act requires habitat is subsequently designated and complex. The stands of Allium munzii Federal agencies to confer with us on the Federal agency has retained are associated with mesic microhabitats, any action that is likely to jeopardize discretionary involvement or control such as the mesic exposures on cobble the continued existence of a proposed over the action or such discretionary deposits and at the bottom of slopes. species or result in destruction or involvement or control is authorized by This population is estimated at 5,000 adverse modification of proposed law. Consequently, some Federal plants and is ranked as a top critical habitat. Conference reports agencies may request reinitiation of conservation priority by a working provide conservation recommendations consultation or conference with us on group assembled by the California to assist the agency in eliminating actions for which formal consultation Department of Fish and Game (Mistretta conflicts that may be caused by the has been completed, if those actions 1993). proposed action. We may issue a formal may affect designated critical habitat or This site represents the conference report if requested by a adversely modify or destroy proposed southwesternmost extent of the range Federal agency. Formal conference critical habitat. for Allium munzii. The habitat at this reports on proposed critical habitat Federal activities that may affect location is high quality. This site also contain an opinion that is prepared Allium munzii or its critical habitat will supports three other species of wild according to 50 CFR 402.14, as if critical require section 7 consultation. Activities onion, A. haematochition, A. habitat were designated. We may adopt on private or State lands requiring a lacunosum, and A. peninsulare. This the formal conference report as the permit from a Federal agency, such as composition of four Allium species at a biological opinion when the critical a permit from the U.S. Army Corps of single location is important to habitat is designated, if no substantial Engineers under section 404 of the understanding the evolutionary history new information or changes in the Clean Water Act, a section 10(a)(1)(B) and divergence of the Allium genus in action alter the content of the opinion permit from the Service, or some other southern California. The southwestern (see 50 CFR 402.10(d)). The Federal action, including funding (e.g., portion of the essential habitat at this conservation recommendations in a Federal Highway Administration or site is located on land that will be conference report are advisory. Federal Emergency Management Agency subject to the terms and conditions of If a species is listed or critical habitat funding), will also continue to be the Western Riverside County MSHCP. is designated, section 7(a)(2) requires subject to the section 7 consultation All essential habitat on non-Federal Federal agencies to ensure that activities process. Federal actions not affecting lands within the Western Riverside they authorize, fund, or carry out are not listed species or critical habitat and County MSHCP Plan Area is excluded likely to jeopardize the continued actions on non-Federal and private existence of such a species or to destroy lands that are not federally funded, from critical habitat under section or adversely modify its critical habitat. authorized, or permitted do not require 4(b)(2) of the Act. Only the essential If a Federal action may affect a listed section 7 consultation. habitat that may require special species or its critical habitat, the Section 4(b)(8) of the Act requires us management considerations or responsible Federal agency (action to briefly evaluate and describe in any protection on Forest Service land is agency) must enter into consultation proposed or final regulation that designated as critical habitat. with us. Through this consultation, the designates critical habitat those Effects of Critical Habitat Designation action agency ensures that its actions do activities involving a Federal action that not destroy or adversely modify critical may destroy or adversely modify such Section 7 Consultation habitat. habitat, or that may be affected by such Section 7 of the Act requires Federal When we issue a biological opinion designation. Activities that may destroy agencies, including the Service, to concluding that a project is likely to or adversely modify critical habitat may ensure that actions they fund, authorize, result in the destruction or adverse also jeopardize the continued existence or carry out are not likely to destroy or modification of critical habitat, we also of the Allium munzii. Federal activities adversely modify critical habitat. In our provide reasonable and prudent that, when carried out, may adversely regulations at 50 CFR 402.2, we define alternatives to the project, if any are affect critical habitat for the Allium destruction or adverse modification as identifiable. ‘‘Reasonable and prudent munzii include, but are not limited to: ‘‘a direct or indirect alteration that alternatives’’ are defined at 50 CFR (1) Actions that would permanently appreciably diminishes the value of 402.02 as alternative actions identified alter the function of the underlying clay critical habitat for both the survival and during consultation that can be soil layer to hold and retain water. recovery of a listed species. Such implemented in a manner consistent Damage or alternation of the clay soil alterations include, but are not limited with the intended purpose of the action, layer would eliminate the function of to: Alterations adversely modifying any that are consistent with the scope of the this primary constituent element for of those physical or biological features Federal agency’s legal authority and providing space for individual and that were the basis for determining the jurisdiction, that are economically and population growth and for normal habitat to be critical.’’ We are currently technologically feasible, and that the behavior; water and physiological reviewing the regulatory definition of Director believes would avoid requirements; and sites for breeding, adverse modification in relation to the destruction or adverse modification of reproduction, and pollination. Actions conservation of the species. critical habitat. Reasonable and prudent that could permanently alter the Section 7(a) of the Act requires alternatives can vary from slight project function of the underlying soil layer to Federal agencies, including the Service, modifications to extensive redesign or hold and retain water include, but are
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not limited to, mining, grading or Exclusions Under Section 4(b)(2) of the conservation measures for the species earthmoving work that disrupts or rips Act will be implemented and effective. into the soil layer. Section 4(b)(2) of the Act states that Within the essential habitat for Allium (2) Actions that would permanently critical habitat shall be designated, and munzii, there are no tribal lands or degrade the plant community or the revised, on the basis of the best lands owned by the Department of mesic microhabitats. Degradation of the available scientific data available after Defense. plant community or microhabitat would taking into consideration the economic Relationship of Critical Habitat to reduce the ability of these primary impact, effects to national security, and Approved Habitat Conservation Plans constituent elements to provide space any other relevant impact, of specifying (HCPs) and Other Approved for individual and population growth; any particular area as critical habitat. Conservation Strategies water and physiological requirements; An area may be excluded from critical and sites for breeding, reproduction, Section 4(b)(2) of the Act requires us habitat if it is determined, following an to consider other relevant impacts, in and pollination. Actions that could analysis, that the benefits of such degrade these elements include, but are addition to economic impacts, when exclusion outweigh the benefits of designating critical habitat. Section not limited to, erosion of sediments specifying a particular area as critical from fill material, and soils disturbed by 10(a)(1)(B) of the Act authorizes us to habitat, unless the failure to designate issue permits for the take of listed grading, earthmoving work, off-highway such area as critical habitat will result vehicle use, grazing, vegetation removal, wildlife species incidental to otherwise in the extinction of the species. lawful activities. Development of an or road construction within the Consequently, we may exclude an area watershed of the mesic microhabitats. HCP is a prerequisite for the issuance of from designated critical habitat based on an incidental take permit pursuant to (3) Any activity that could alter economic impacts, effects to national section 10(a)(1)(B) of the Act. An watershed or soil characteristics in ways security, or other relevant impacts such incidental take permit application must that would appreciably alter or reduce as preservation of conservation be supported by an HCP that identifies the quality or quantity of surface and partnerships, if we determine the conservation measures that the subsurface water flow needed to benefits of excluding an area from permittee agrees to implement for the maintain Allium munzii habitat. These critical habitat outweigh the benefits of species to minimize and mitigate the activities could include, but are not including the area in critical habitat, impacts of the permitted incidental take. limited to, altering the natural fire provided the action of excluding the Under section 4(b)(2) of the Act, we regime; development, including road area will not result in the extinction of have excluded critical habitat from non- building; livestock grazing; and the species. Federal lands within: (1) Approved vegetation manipulation such as In our critical habitat designations we HCPs (Rancho Bella Vista and SKR clearing or grubbing in the watershed have used the provisions outlined in HCPs); and (2) existing PQP lands, upslope from A. munzii. section 4(b)(2) of the Act to evaluate proposed conceptual reserve design (4) Road construction and those specific areas that are proposed lands, and lands targeted for maintenance, right-of-way designation, for designation as critical habitat and conservation within the Western and regulation of agricultural activities, those areas which are subsequently Riverside County MSCHP. We believe or any activity funded or carried out by finalized (i.e., designated). We have the benefits of excluding lands within the Department of Transportation or applied the provisions of this section of these legally operative HCPs from the Department of Agriculture that results the Act to lands essential to the final critical habitat designation will in discharge of dredged or fill material, conservation of the subject species to outweigh the benefits of including them. or mechanized land clearing of Allium evaluate them and either exclude them In addition, we have excluded three munzii habitat. from final critical habitat or not include areas where conservation strategies All lands designated as critical habitat them in proposed critical habitat. Lands approved through the section 7 are within the geographical area which we have either excluded from or consultation process have provided occupied by the species and are not included in critical habitat based on protection, long-term management, and necessary for the conservation of Allium those provisions include but are not funding to conserve Allium munzii. munzii. Federal agencies already limited to those covered by: (1) Legally Again, we believe the benefits of consult with us on actions that may operative HCPs that cover the species excluding these lands from the final affect Allium munzii to ensure that their and provide assurances that the critical habitat designation outweigh the actions do not jeopardize the continued conservation measures for the species benefits of including them. The analysis existence of the species. Thus, we do will be implemented and effective; (2) which led us to the conclusion that the not anticipate substantial additional draft HCPs that cover the species, have benefits of excluding these areas exceed regulatory protection will result from undergone public review and comment, the benefits of designating them as critical habitat designation. and provide assurances that the critical habitat, and will not result in the If you have questions regarding conservation measures for the species extinction of the species, follows. whether specific activities will will be implemented and effective (i.e., Allium munzii is a covered species constitute destruction or adverse pending HCPs); (3) Tribal conservation under the Western Riverside County modification of critical habitat, contact plans that cover the species and provide MSHCP. The Western Riverside County the Field Supervisor, Carlsbad Fish and assurances that the conservation MSHCP has three conservation Wildlife Office (see ADDRESSES section). measures for the species will be objectives to conserve and monitor Requests for copies of the regulations on implemented and effective; (4) State Allium munzii populations. First, the listed wildlife and plants and inquiries conservation plans that provide MSHCP Conservation Area includes at about prohibitions and permits may be assurances that the conservation least 21,260 acres of modeled habitat addressed to the U.S. Fish and Wildlife measures for the species will be (grassland, coastal sage scrub, chaparral Service, Branch of Endangered Species, implemented and effective; and (5) and peninsular juniper woodland 911 N.E. 11th Ave, Portland, OR 97232 Service National Wildlife Refuge System between 300 and 1,000 m in the (telephone 503/231–2063; facsimile Comprehensive Conservation Plans that Riverside Lowlands and Santa Ana 503/231–6243). provide assurances that the Mountains Bioregions). This will
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include at least 2,070 acres of clay soils: management of the core reserves to adjacent potential habitat in the south- Altamont (190 acres), Auld (250 acres), ensure the permanent conservation, central, 65.5-acre portion of the Bosanko (600 acres), Claypit (100 acres), preservation, restoration of SKR and proposed site. In addition, Riverside and Porterville (930 acres) soils SKR habitats, and limiting projects County Parks has agreed to protect and underlying the suitable habitat. Second, within the core reserves. While these manage this parcel for conservation. the MSHCP Conservation Area includes lands were conserved for the Stephens’ (1) Benefits of Inclusion at least 13 occurrences within Temescal kangaroo rat, the core preserves and Valley and the southwestern portion of management plans also provide a A benefit of including an area as the Plan Area, including the following conservation benefit to Allium munzii critical habitat designation is the Core Areas: Harford Springs Park, by reducing threats to PCEs by ground education of landowners and the public privately owned EO 5 population in disturbance, alteration of vegetation, regarding the potential conservation Temescal Valley, Alberhill, De Palma and invasive plants. value of these areas. The inclusion of an area as critical habitat may focus and Rd, Estelle Mountain, Domenigoni Hills, We have excluded three areas where contribute to conservation efforts by Lake Skinner, Bachelor Mountain, conservation strategies approved other parties by clearly delineating areas Elsinore Peak, Scott Road, North Peak, through the section 7 consultation of high conservation values for certain and northeast of Alberhill (EO 16). process have provided protection, long- species. However, we believe that this Third, as part of the Western Riverside term management, and funding to educational benefit has largely been County MSHCP, surveys will be conserve Allium munzii. The strategy conducted for Allium munzii as part of achieved for Allium munzii. The public for the Sycamore Creek Development outreach and environmental impact the project review process for public includes avoidance, preservation, and and private projects within the Narrow reviews required under NEPA for the relocation of Altamont clay soils within Rancho Bella Vista and SKR HCPs and Endemic Plant Species survey area an area protected by a conservation where suitable habitat is present (see Western Riverside County MSHCP easement, and interim and long-term provided significant opportunities for Narrow Endemic Plant Species Survey management and funding. To address Area Map, Figure 6–1 of the MSHCP, public education regarding the effects to Allium munzii, the conservation of the areas occupied by Volume I). Allium munzii located as a conservation strategy includes measures result of survey efforts shall be Allium munzii. For instance, the to avoid and preserve 18.3 acres of conserved in accordance with Western Riverside County MSHCP Altamont clay soils on site in the procedures described within Section identifies specific populations of Allium conservation easement; relocate 6.1.3 of the MSHCP, Volume I. In munzii for conservation. Therefore, we additional clay soils from the addition, the MSHCP proposes that the believe the education benefits which development area to the conservation Reserve Managers will manage known might arise from a critical habitat easement for the purposes of restoring and future occurrences of this species designation have largely already been Allium munzii and Riversidean sage for competition with non-native plant generated as a result of the significant scrub; release additional clay soils for species, clay mining, off-road vehicle outreach for the Rancho Bella Vista and passive recolonization through removal use, and disking activities and that the SKR HCPs and Western Riverside persistence of 75 percent of the known of the paved surface of De Palma Road; County MSHCP. Moreover, in our final locations will be monitored every 8 relocate occupied clay soils within areas listing rule (63 FR 54975), we noted years. Other management actions proposed for development to the that, where the species occurs, described in the Western Riverside wildlife corridor and/or other suitable landowners are aware of its presence County MSHCP include addressing conserved habitat; provide a funding and status since all occurrences were competition with non-native plant mechanism to provide management of known, including the populations on species, clay mining, off-road vehicle the on site conservation areas for Allium Forest Service land in the Cleveland use, and disking activities. This munzii; and prohibit the planting of National Forest, Harford Springs County management will help maintain Allium invasive plant species adjacent to the Park, and lands managed by the munzii populations and habitat. corridor. The strategy for Southern Riverside County Habitat Conservation The Rancho Bella Vista HCP provides California Gas Company includes the Agency. both interim and long-term management acquisition of a 36.3-acre site to The areas excluded are currently for Allium munzii. Interim management conserve habitat for Allium munzii that occupied by the species. If these areas actions were initiated upon approval of includes 24.5 acres of Riversidean sage were designated as critical habitat, any the HCP and included the maintenance scrub and 11.82 acres of agricultural actions with a Federal nexus that might of existing access controls, cleanup of land, funding of a management adversely modify the critical habitat conserved habitat areas where endowment that assures the would require a consultation with us, as unauthorized trash dumping occurred, management of the 36.32-acres explained above, in the section of this development of an interim management conservation area in perpetuity, and a notice entitled ‘‘Effects of Critical plan, and implementation of project- preliminary and long-term management Habitat Designation.’’ However, specific impact minimization and plan. The strategy for the Warmington inasmuch as this area is currently mitigation. Long-term management Project includes avoidance and on-site occupied by the species, consultation included transfer of the open space to conservation of the known occurrence for activities with a Federal nexus an approved management agency, of Allium munzii and adjacent potential which might adversely impact the assessment of exotic plants, access habitat and the transfer of this 65.5-acre species, including habitat modification, control, development of a fire parcel of land to Riverside County Parks would be required even without the management plan and public for protection and management. We critical habitat designation. information programs and materials, concurred with the U.S. Army Corps of The Western Riverside County monitoring of sensitive plants and Engineers that the proposed project MSHCP provides a greater level of animals, and providing annual would not adversely affect Allium management for Allium munzii on monitoring reports to the Service. munzii because the applicant agreed to private lands than would designation of The SKR HCP provides for the protect and conserve the known critical habitat on private lands. Thus, establishment of core reserves, adaptive occurrence of Allium munzii and consultation for Federal activities that
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might adversely impact the species Federal lands are within the three the benefits of including them in the would be required even without the categories stated immediately designation. critical habitat designation. Moreover, preceding, available funding would be (4) Exclusion Will Not Result in inclusion of these non-Federal lands as directed towards conservation rather Extinction of the Species critical habitat would not necessitate than toward complying with critical additional management and habitat requirements that would not We believe that exclusion of the three conservation activities that exceed the provide the species with additional categories—(1) lands within approved approved HCPs and their implementing benefits. Excluding these lands from HCPs (Rancho Bella Vista and SKR agreements. The lands conserved by critical habitat would ensure that HCPs); (2) existing PQP lands, proposed conservation strategies approved funding remains available for conceptual reserve design lands, and through the section 7 consultation implementation, rather than spending lands targeted for conservation within process have no further Federal limited resources on ensuring the Western Riverside County MSCHP; discretionary action and critical habitat compliance with the regulatory and (3) lands where conservation would not result in the reinitiation of a requirements potentially triggered by a strategies approved through the section section 7 consultation. critical habitat designation that would 7 consultation process have provided In summary, we believe that not be likely to provide additional protection, long-term management, and designating critical habitat on any non- benefit to the species. funding to conserve Allium munzii— Federal lands that are: (1) Within We also believe that excluding these will not result in extinction of the species since these lands will be approved HCPs; (2) on existing PQP lands, and thus helping landowners conserved and managed for the benefit lands, proposed conceptual reserve avoid the additional costs that would of Allium munzii. Any actions with a design lands, and on lands targeted for result from the designation, will foster Federal nexus that might adversely conservation within the Western continued cooperation and partnership affect Allium munzii must undergo a Riverside County MSCHP; and (3) on needed for implementation, and also consultation with the Service under the lands where conservation strategies that it will contribute to a more positive requirements of section 7 of the Act. approved through the section 7 climate for HCPs and other active The exclusions leave these protections consultation process have provided conservation measures that provide unchanged. In addition, as discussed protection, long-term management, and greater conservation benefits than above, there are a substantial number of funding to conserve Allium munzii would result from designation of critical HCPs and other active conservation would provide little additional Federal habitat. In our final listing rule (63 FR regulatory benefits for the species. measures underway for the species, 54975), we noted that the designation of Under the Gifford Pinchot decision, which provide greater conservation critical habitat on lands owned by the critical habitat designations may benefits than would result from a Riverside County Habitat Conservation provide benefits to recovery of a species designation. There is accordingly no Agency would not change the way those different than was previously believed, reason to believe that these exclusions lands are managed or require specific but it is not possible to quantify this at would result in extinction of the management actions to take place, and present. Because the excluded areas are species. designation could be detrimental occupied by the species, there must be because of potential landowner Economic Analysis consultation with the Service over any misunderstandings about the real effects action with a Federal nexus that may Section 4(b)(2) of the Act requires us affect these populations. The additional of critical habitat designation on private to designate critical habitat on the basis educational benefits that might arise lands. of the best scientific and commercial from critical habitat designation have (3) The Benefits of Exclusion Exceed the information available and to consider been largely accomplished through the Benefits of Inclusion the economic and other relevant process of public review and comment impacts of designating a particular area on the environmental impact documents We do not believe that the benefits as critical habitat. We may exclude areas which accompanied the development of from the designation of critical habitat from critical habitat upon a the Rancho Bella Vista and SKR HCPs for lands we have decided to exclude— determination that the benefits of such and Western Riverside County MSHCP. a limited educational benefit and very exclusions outweigh the benefits of limited regulatory benefit, which are specifying such areas as critical habitat. (2) Benefits of Exclusion largely otherwise provided for, as We cannot exclude such areas from The exclusion of critical habitat from discussed above—exceed the benefits of critical habitat when such exclusion non-Federal lands that are: (1) Within exclusion that would allow for the will result in the extinction of the approved HCPs (Rancho Bella Vista and avoidance of increased regulatory costs species concerned. SKR HCPs); (2) on existing PQP lands, and would provide little or no benefit Following the publication of the proposed conceptual reserve design and a potential reduction in available proposed critical habitat designation, lands, and lands targeted for implementation funding for we conducted an economic analysis to conservation within the Western conservation actions with partners. estimate the potential economic effect of Riverside County MSCHP; and (3) on We also believe that excluding these the designation. The draft analysis was lands where conservation strategies lands, and thus helping landowners made available for public review on approved through the section 7 avoid the additional costs that would December 1, 2004 (69 FR 69878). We consultation process have provided result from the designation, will accepted comments on the draft analysis protection, long-term management, and contribute to a more positive climate for until January 3, 2005. funding to conserve Allium munzii HCPs and other active conservation The primary purpose of the economic would benefit permit holders and measures which provide greater analysis is to estimate the potential landowners because they would avoid conservation benefits than would result economic impacts associated with the any additional regulatory costs related from designation of critical habitat. We designation of critical habitat for Allium to complying with the critical habitat therefore find that the benefits of munzii. This information is intended to designation. Since most of the excluding these areas from this assist the Secretary in making decisions occurrences of Allium munzii on non- designation of critical habitat outweigh about whether the benefits of excluding
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particular areas from the designation policy issues, but will not have an $27.5 million in annual business, outweigh the benefits of including those annual effect on the economy of $100 special trade contractors doing less than areas in the designation. This economic million or more or affect the economy $11.5 million in annual business, and analysis considers the economic in a material way. Due to the tight agricultural businesses with annual efficiency effects that may result from timeline for publication in the Federal sales less than $750,000. To determine the designation, including habitat Register, the Office of Management and if potential economic impacts to these protections that may be coextensive Budget (OMB) has not formally small entities are significant, we with the listing of the species. It also reviewed this rule. As explained above, consider the types of activities that addresses distribution of impacts, we prepared an economic analysis of might trigger regulatory impacts under including an assessment of the potential this action. We used this analysis to this rule, as well as the types of project effects on small entities and the energy meet the requirement of section 4(b)(2) modifications that may result. In industry. This information can be used of the Act to determine the economic general, the term ‘‘significant economic by the Secretary to assess whether the consequences of designating the specific impact’’ is meant to apply to a typical effects of the designation might unduly areas as critical habitat. We also used it small business firm’s business burden a particular group or economic to help determine whether to exclude operations. sector. any area from critical habitat, as To determine if the rule could This analysis focuses on the direct provided for under section 4(b)(2), if we significantly affect a substantial number and indirect costs of the rule. However, determine that the benefits of such of small entities, we consider the economic impacts to land use activities exclusion outweigh the benefits of number of small entities affected within can exist in the absence of critical specifying such area as part of the particular types of economic activities habitat. These impacts may result from, critical habitat, unless we determine, (e.g., housing development, grazing, oil for example, local zoning laws, State based on the best scientific and and gas production, timber harvesting). and natural resource laws, and commercial data available, that the We apply the ‘‘substantial number’’ test enforceable management plans and best failure to designate such area as critical individually to each industry to management practices applied by other habitat will result in the extinction of determine if certification is appropriate. State and Federal agencies. Economic the species. However, the SBREFA does not impacts that result from these types of explicitly define ‘‘substantial number’’ Regulatory Flexibility Act (5 U.S.C. 601 or ‘‘significant economic impact.’’ protections are not included in the et seq.) analysis because they are considered to Consequently, to assess whether a be part of the regulatory and policy Under the Regulatory Flexibility Act ‘‘substantial number’’ of small entities is baseline. (RFA) (as amended by the Small affected by this designation, this Only U.S. Forest Service lands at Business Regulatory Enforcement analysis considers the relative number Elsinore Peak within the Cleveland Fairness Act (SBREFA) of 1996), of small entities likely to be impacted in National Forest were designated as whenever an agency is required to an area. In some circumstances, critical habitat in the final rule. The publish a notice of rulemaking for any especially with critical habitat economic analysis projected $33,849 in proposed or final rule, it must prepare designations of limited extent, we may cost impacts from 2005 to 2025 from the and make available for public comment aggregate across all industries and designation of critical habitat on U.S. a regulatory flexibility analysis that consider whether the total number of Forest Service lands. The analysis describes the effect of the rule on small small entities affected is substantial. In entities (i.e., small businesses, small estimated that the future costs estimating the number of small entities organizations, and small government associated with conservation efforts for potentially affected, we also consider jurisdictions). However, no regulatory Allium munzii (prescribed burning, whether their activities have any flexibility analysis is required if the fence replacement, fencing electric Federal involvement. head of an agency certifies the rule will Designation of critical habitat only tower site, and monitoring) by the U.S. not have a significant economic impact affects activities conducted, funded, or Forest Service was $26,146. The on a substantial number of small permitted by Federal agencies. Some administrative cost to the U.S. Forest entities. The SBREFA amended the RFA kinds of activities are unlikely to have Service associated with future section 7 to require Federal agencies to provide a any Federal involvement and so will not consultations was estimated at $7,704. statement of factual basis for certifying be affected by critical habitat All other lands identified as essential that the rule will not have a significant designation. In areas where the species habitat in the proposed rule were not economic impact on a substantial is present, Federal agencies already are designated as critical habitat in the final number of small entities. The SBREFA required to consult with us under rule. No lands were excluded from also amended the RFA to require a section 7 of the Act on activities they critical habitat based on the economic certification statement. fund, permit, or implement that may impact under section 4(b)(2) of the Act. Small entities include small affect Allium munzii. Federal agencies The final economic analysis and organizations, such as independent also must consult with us if their supporting documents are included in nonprofit organizations; small activities may affect critical habitat. our administrative record and may be governmental jurisdictions, including Designation of critical habitat, therefore, obtained by contacting U.S. Fish and school boards and city and town could result in an additional economic Wildlife Service, Branch of Endangered governments that serve fewer than impact on small entities due to the Species (see ADDRESSES section) or for 50,000 residents; as well as small requirement to reinitiate consultation downloading from the Internet at businesses. Small businesses include for ongoing Federal activities. http://carlsbad.fws.gov. manufacturing and mining concerns The draft economic analysis Required Determinations with fewer than 500 employees, (September 22, 2004) predicted wholesale trade entities with fewer than potential costs for both lands included Regulatory Planning and Review 100 employees, retail and service in the final designation and proposed In accordance with Executive Order businesses with less than $5 million in for exclusion. In this final designation, 12866, this document is a significant annual sales, general and heavy as in the proposed designation, only rule in that it may raise novel legal and construction businesses with less than U.S. Forest Service lands at Elsinore
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Peak within the Cleveland National significantly affect energy supplies, regulatory effect is that Federal agencies Forest were designated as critical distribution, or use. Therefore, this must ensure that their actions do not habitat in the final rule; all other lands, action is not a significant energy action destroy or adversely modify critical namely private lands, have been and no Statement of Energy Effects is habitat under section 7. While non- excluded. Based on this analysis, it was required. We have not designated Federal entities who receive Federal determined that the total future impacts critical habitat on U.S. Forest Service funding, assistance, or permits or that cost of the critical habitat designation to lands that fall within the LEAPS otherwise require approval or the Forest Service is $33,849, and the corridor. Our analysis indicates that the authorization from a Federal agency for cost of past impacts is $9,101. In primary constituent elements are not an action may be indirectly impacted by addition, it was projected that the Forest present along the easternmost boundary the designation of critical habitat, the Service would incur an additional of the proposed critical habitat unit and, legally binding duty to avoid $7,704 in administrative costs for therefore, those lands have not been destruction or adverse modification of project modifications to forest designated as critical habitat. critical habitat rests squarely on the management activities, such as access Unfunded Mandates Reform Act (2 Federal agency. Furthermore, to the control (fencing and gating) and U.S.C. 1501 et seq.) extent that non-Federal entities are prescribed burning for Allium munzii indirectly impacted because they In accordance with the Unfunded conservation efforts. receive Federal assistance or participate Mandates Reform Act (2 U.S.C. 1501 et The special permit holders for the in a voluntary Federal aid program, the electric tower site include Riverside seq.), we make the following findings: (a) This rule will not produce a Unfunded Mandates Reform Act would County, Spectrasite Communications, not apply; nor would critical habitat Inc., Comcast Corporation, and Elsinore Federal mandate. In general, a Federal shift the costs of the large entitlement Peak Facility Corporation. Of the four mandate is a provision in legislation, programs listed above onto State special permit holders, Elsinore Peak statute, or regulation that would impose governments. Facility Corporation is the only small an enforceable duty upon State, local, or entity. With annual revenue of Tribal governments or the private sector (b) We do not believe that this rule $150,000, the potential impact to this and includes both ‘‘Federal will significantly or uniquely affect small business is $250 to $1,000 (in 1 intergovernmental mandates’’ and small governments because it will not year) and represents 0.2 to 0.4 percent ‘‘Federal private sector mandates.’’ produce a Federal mandate of $100 of the revenue. No significant impact to These terms are defined in 2 U.S.C. million or greater in any year, that is, it small entities will likely result from this 658(5)–(7). ‘‘Federal intergovernmental is not a ‘‘significant regulatory action’’ final designation of critical habitat. As mandate’’ includes a regulation that under the Unfunded Mandates Reform such, we are certifying that this ‘‘would impose an enforceable duty Act. The designation of critical habitat designation of critical habitat would not upon State, local, or tribal imposes no obligations on State or local result in a significant impact on a governments,’’ with two exceptions. It governments. As such, Small substantial number of small entities and excludes ‘‘a condition of federal Government Agency Plan is not that a regulatory flexibility analysis is assistance.’’ It also excludes ‘‘a duty required. not required. arising from participation in a voluntary Federal program,’’ unless the regulation Federalism Small Business Regulatory Enforcement ‘‘relates to a then-existing Federal Fairness Act (5 U.S.C 801 et seq.) program under which $500,000,000 or In accordance with Executive Order Under SBREFA, this rule is not a more is provided annually to State, 13132, the rule does not have significant major rule. Our detailed assessment of local, and tribal governments under Federalism effects. A Federalism the economic effects of this designation entitlement authority,’’ if the provision assessment is not required. In keeping is described in the economic analysis. would ‘‘increase the stringency of with DOI and Department of Commerce Based on the effects identified in the conditions of assistance’’ or ‘‘place caps policy, we requested information from, economic analysis, we believe that this upon, or otherwise decrease, the Federal and coordinated development of, this rule will not have an annual effect on Government’s responsibility to provide final critical habitat designation with the economy of $100 million or more, funding’’ and the State, local, or Tribal appropriate State resource agencies in will not cause a major increase in costs governments ‘‘lack authority’’ to adjust California. The designation of critical or prices for consumers, and will not accordingly. (At the time of enactment, habitat in areas currently occupied by have significant adverse effects on these entitlement programs were: Allium munzii imposes no additional competition, employment, investment, Medicaid; AFDC work programs; Child restrictions to those currently in place productivity, innovation, or the ability Nutrition; Food Stamps; Social Services and, therefore, has little incremental of U.S.-based enterprises to compete Block Grants; Vocational Rehabilitation impact on State and local governments with foreign-based enterprises. Refer to State Grants; Foster Care, Adoption and their activities. The designation the final economic analysis for a Assistance, and Independent Living; may have some benefit to these discussion of the effects of this Family Support Welfare Services; and governments in that the areas essential determination. Child Support Enforcement.) ‘‘Federal to the conservation of the species are private sector mandate’’ includes a more clearly defined, and the primary Executive Order 13211 regulation that ‘‘would impose an constituent elements of the habitat On May 18, 2001, the President issued enforceable duty upon the private necessary to the survival of the species Executive Order 13211 with respect to sector, except (i) a condition of Federal are specifically identified. While regulations that significantly affect assistance; or (ii) a duty arising from making this definition and energy supply, distribution, and use. participation in a voluntary Federal identification does not alter where and Executive Order 13211 requires agencies program.’’ what federally sponsored activities may to prepare Statements of Energy Effects The designation of critical habitat occur, it may assist these local when undertaking certain actions. This does not impose a legally binding duty governments in long-range planning final rule to designate critical habitat for on non-Federal government entities or (rather than waiting for case-by-case Allium munzii is not expected to private parties. Under the Act, the only section 7 consultations to occur).
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Civil Justice Reform defined by the NEPA in connection with upon request from the Carlsbad Fish In accordance with Executive Order designating critical habitat under the and Wildlife Office (see ADDRESSES 12988, the Office of the Solicitor has Endangered Species Act of 1973, as section). amended. We published a notice determined that the rule does not Author unduly burden the judicial system and outlining our reasons for this that it meets the requirements of determination in the Federal Register The primary authors of this notice are sections 3(a) and 3(b)(2) of the Order. on October 25, 1983 (48 FR 49244). This the Carlsbad Fish and Wildlife Office We are designating critical habitat in assertion was upheld in the courts of the staff (see ADDRESSES section). Ninth Circuit [Douglas County v. accordance with the provisions of the List of Subjects in 50 CFR Part 17 Endangered Species Act. This final rule Babbitt, 48 F.3d 1495 (9th Cir. Ore. uses standard property descriptions and 1995), cert. denied 116 S. Ct. 698 Endangered and threatened species, identifies the primary constituent (1996).] Exports, Imports, Reporting and elements within the designated areas to Government-to-Government recordkeeping requirements, assist the public in understanding the Relationship With Tribes Transportation. habitat needs of Allium munzii. In accordance with the President’s Regulation Promulgation Paperwork Reduction Act of 1995 (44 memorandum of April 29, 1994, I Accordingly, we amend part 17, U.S.C. 3501 et seq.) ‘‘Government-to-Government Relations subchapter B of chapter I, title 50 of the with Native American Tribal This rule does not contain any new Code of Federal Regulations as follows: collections of information that require Governments’’ (59 FR 22951), Executive approval by OMB under the Paperwork Order 13175, and the Department of PART 17—[AMENDED] Reduction Act. This rule will not Interior’s manual at 512 DM 2, we impose recordkeeping or reporting readily acknowledge our responsibility I 1. The authority citation for part 17 requirements on State or local to communicate meaningfully with continues to read as follows: governments, individuals, businesses, or recognized Federal Tribes on a Authority: 16 U.S.C. 1361–1407; 16 U.S.C. organizations. An agency may not government-to-government basis. We 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– conduct or sponsor, and a person is not have determined that there are no tribal 625, 100 Stat. 3500; unless otherwise noted. required to respond to, a collection of lands essential for the conservation of information unless it displays a Allium munzii. Therefore, designation I 2. In § 17.12(h), revise the entry for currently valid OMB control number. of critical habitat for Allium munzii has Allium munzii under ‘‘FLOWERING not been designated on Tribal lands. PLANTS’’ to read as follows: National Environmental Policy Act It is our position that, outside the References Cited § 17.12 Endangered and threatened plants. Tenth Circuit, we do not need to A complete list of all references cited * * * * * prepare environmental analyses as herein, as well as others, is available (h) * * *
Species Historic range Family Status When listed Critical habi- Special Scientific name Common name tat rules
FLOWERING PLANTS
******* Allium munzii ...... Munz’s onion ...... U.S.A. (CA) ...... Liliaceae-Lily ...... E 650 17.96(a) NA
*******
I 3. In § 17.96, amend paragraph (a) by clay subsoil (e.g., Cajalco, Las Posas, 3,500 ft (300 m and 1,068 m) AMSL, or adding an entry for Allium munzii in Vallecitos), found on level or slightly Pyroxenite deposits of igneous origin alphabetical order under Family sloping landscapes, generally between found on Bachelor Mountain as part of Liliaceae to read as follows: the elevations of 985 ft and 3,500 ft (300 non-native grassland and Riversidean m and 1,068 m) above mean sea level § 17.96 Critical habitat—plants. sage scrub generally between the (AMSL), and as part of open native or elevations of 985 ft and 3,500 ft (300 m (a) Flowering plants. non-native grassland plant communities and 1,068 m) AMSL; and * * * * * and ‘‘clay soil flora’’ that can occur in (iii) Clay soils or other soil substrate Family Liliaceae: Allium munzii a mosaic with Riversidean sage scrub, as described above with intact, natural (Munz’s onion) chamise chaparral, scrub oak chaparral, surface and subsurface structure that (1) Critical habitat unit for Allium coast live oak woodland, and peninsular munzii is depicted for Riverside County, juniper woodland and scrub; or have been minimally altered or California, on the map below. unaltered by ground-disturbing (2) The primary constituent elements (ii) Alluvial soil series of sedimentary activities (e.g., disked, graded, of critical habitat for Allium munzii are: or igneous origin (e.g., Greenfield, excavated, re-contoured); and, (i) Clay soil series of sedimentary Ramona, Placentia, Temescal) and origin (e.g., Altamont, Auld, Bosanko, terrace escarpment soils found as part of (iv) Within areas of suitable clay soils, Claypit, Porterville), or clay lenses alluvial fans underlying open native or microhabitats that are moister than (pockets of clay soils) of such that may non-native grassland plant communities surrounding areas because of (A) north be found as unmapped inclusions in that can occur in a mosaic with or northeast exposure or (B) seasonally other soil series, or soil series of Riversidean sage scrub generally available moisture from surface or sedimentary or igneous origin with a between the elevations of 985 ft and subsurface runoff.
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(3) Critical habitat for Allium munzii (i) Map Unit 1: Riverside County, National Forest boundary at y- does not include existing features and California. From USGS 1:24,000 coordinate 3717400; thence northwest structures, such as buildings, roads, quadrangle map Wildomar, California, following the U.S. Forest Service, aqueducts, railroads, airport runways, land bounded by the following UTM 11 Cleveland National Forest boundary to radio and communication towers, and NAD27 coordinates (E, N): 467900, y-coordinate 371800; thence east to buildings, other paved areas, lawns, and 3718200; 468700, 3718200; 468700, 467700, 3718000; 467700, 3718100; other urban landscaped areas not 3717800; 468850, 3717800; 468850, 467900, 3718100; returning to 467900, containing one or more of the primary 3717700; 468800, 3717300; 468500, 3718200. constituent elements. 3717300; 468500, 3717500; 468100, (ii) Note: Map of critical habitat unit (4) Critical habitat unit for Allium 3717500; 468100, 3717400; thence east follows: munzii is described below. to the U.S. Forest Service, Cleveland BILLING CODE 4310–55–P
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Dated: May 31, 2005. 7,500 lb (3,402 kg) if on or before DEPARTMENT OF COMMERCE Craig Manson, August 1 more than 50 percent of either Assistant Secretary for Fish and Wildlife and the shallow-water grouper quota or red National Oceanic and Atmospheric Parks. grouper quota is reached or is projected Administration [FR Doc. 05–11167 Filed 6–6–05; 8:45 am] to be reached. Based on current BILLING CODE 4310–55–C statistics, NMFS has determined more 50 CFR Part 635 than 50 percent of the 5.31 million-lb [Docket No. 050317076–5145–02; I.D. (2.41 million-kg) commercial quota for 030405C] DEPARTMENT OF COMMERCE red grouper will be reached on June 8, 2005. Accordingly, NMFS is reducing RIN 0648–AT01 National Oceanic and Atmospheric the combined trip limit for deep-water Administration grouper (misty grouper, snowy grouper, Atlantic Highly Migratory Species; yellowedge grouper, warsaw grouper, Atlantic Bluefin Tuna Quota 50 CFR Part 622 and speckled hind) and shallow-water Specifications and General Category Effort Controls [Docket No. 050209033–5033–01; I.D. grouper (black grouper, gag, red grouper, 053105G] yellowfin grouper, scamp, yellowmouth AGENCY: National Marine Fisheries grouper, rock hind, and red hind) to Service (NMFS), National Oceanic and RIN 0648–AS97 7,500 lb (3,402 kg) per trip in the Gulf Atmospheric Administration (NOAA), of Mexico exclusive economic zone Commerce. Fisheries of the Caribbean, Gulf of effective 12:01 a.m., local time, on June ACTION: Final rule. Mexico, and South Atlantic; Reef Fish 9, 2005, through December 31, 2005, Fishery of the Gulf of Mexico; Trip unless changed by further notification SUMMARY: NMFS announces the final Limit Reduction for Gulf of Mexico in the Federal Register. Grouper Fishery initial 2005 fishing year specifications Classification for the Atlantic bluefin tuna (BFT) AGENCY: National Marine Fisheries fishery to set BFT quotas for each of the Service (NMFS), National Oceanic and This action responds to the best established domestic fishing categories Atmospheric Administration (NOAA), available information recently obtained and to set General category effort Commerce. from the fishery. The Assistant controls. This action is necessary to ACTION: Temporary rule; inseason Administrator for Fisheries, NOAA, implement recommendations of the action. (AA), finds good cause to waive the International Commission for the requirement to provide prior notice and Conservation of Atlantic Tunas (ICCAT), SUMMARY: NMFS reduces the combined opportunity for public comment as required by the Atlantic Tunas trip limit for the commercial shallow- pursuant to the authority set forth at 5 Convention Act (ATCA), and to achieve water and deep-water grouper fisheries U.S.C. 553(b)(B), as such prior notice domestic management objectives under in the exclusive economic zone of the and opportunity for public comment is the Magnuson-Stevens Fishery Gulf of Mexico to 7,500 lb (3,402 kg) per unnecessary and contrary to the public Conservation and Management Act trip. The intended effect of trip limit interest. Such procedures would be (Magnuson-Stevens Act). reduction is to moderate the rate of unnecessary because the rule itself DATES: The final rule is effective July 7, harvest of the available quotas and, already has been subject to notice and 2005 through May 31, 2006. thereby, reduce the adverse social and comment, and all that remains is to ADDRESSES: Supporting documents, economic effects of derby fishing, notify the public of the trip limit including the environmental assessment enable more effective quota monitoring, reduction. Allowing prior notice and (EA), final Regulatory Flexibility Act and reduce the probability of opportunity for public comment is analysis, and regulatory impact review, overfishing. contrary to the public interest because are available by sending your request to DATES: Effective 12:01 a.m., local time, of the need to immediately implement Dianne Stephan, Highly Migratory June 9, 2005, through December 31, this action to protect the fishery since Species (HMS) Management Division, 2005, unless changed by further the capacity of the fishing fleet allows Office of Sustainable Fisheries (F/SF1), notification in the Federal Register. for rapid harvest of the quota. Prior NMFS, One Blackburn Dr., Gloucester, notice and opportunity for public FOR FURTHER INFORMATION CONTACT: Phil MA 01930; Fax: 978–281–9340. These comment would require time and would Steele, telephone: 727–824–5305, fax: documents are also available from the potentially result in a harvest well in 727–824–5308, e-mail: HMS Management Division Web site at excess of the established quota. [email protected]. http://www.nmfs.noaa.gov/sfa/ For the aforementioned reasons, the hmspg.html or at the Federal e- SUPPLEMENTARY INFORMATION: The AA also finds good cause to waive the Rulemaking Portal: http:// fishery for reef fish is managed under 30-day delay in the effectiveness of this www.regulations.gov. the Fishery Management Plan for the action under 5 U.S.C. 553(d)(3). Reef Fish Resources of the Gulf of FOR FURTHER INFORMATION CONTACT: Mexico (FMP) that was prepared by the This action is taken under 50 CFR Dianne Stephan at (978) 281–9260 or Gulf of Mexico Fishery Management 622.44(g)(1)(ii) and is exempt from email [email protected]. Council. This FMP was approved by review under Executive Order 12866. SUPPLEMENTARY INFORMATION: Atlantic NMFS and implemented under the Authority: 16 U.S.C. 1801 et seq. tunas are managed under the dual authority of the Magnuson-Stevens authority of the Magnuson-Stevens Act Dated: June 1, 2005. Fishery Conservation and Management and ATCA. ATCA authorizes the Act by regulations at 50 CFR part 622. Alan D. Risenhoover, Secretary of Commerce (Secretary) to Regulations at 50 CFR 622.44(g)(1)(ii) Acting Director, Office of Sustainable promulgate regulations, as may be require NMFS to reduce the commercial Fisheries, National Marine Fisheries Service. necessary and appropriate, to trip limit for Gulf deep-water and [FR Doc. 05–11290 Filed 6–2–05; 2:30 pm] implement ICCAT recommendations. shallow-water grouper, combined, to BILLING CODE 3510–22–S The authority to issue regulations under
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the Magnuson-Stevens Act and ATCA overage must be subtracted from the follows: 51.6 mt to pelagic longline has been delegated from the Secretary to category in which it occurred. Thus, the vessels landing BFT north of 31° N. the Assistant Administrator for overall Longline category quota is latitude and 72.1 mt to pelagic longline Fisheries, NOAA (AA). reduced by 40.5 mt (36.7 mt + 3.8 mt) vessels landing BFT south of 31° N. to a total of 188.4 mt and the Reserve latitude, and 64.7 mt (39.7 mt from 2004 Background category is reduced by 7.8 mt to account + 25.0 mt for 2005) to account for Background information about the for the previously estimated dead bycatch of BFT related to directed need for the final initial BFT quota discard underage for 2004. pelagic longline fisheries in the NED. specifications and General category Data became available since analyses effort controls was provided in the for the proposed rule showing General Category Effort Controls preamble to the proposed rule (70 FR additional landings in the Angling For the last several years, NMFS has 14630, March 23, 2005), and is not category of 5.7 mt for the 2004 fishing implemented General category time- repeated here. By this rule, NMFS year. Since data available for the period subquotas to increase the announces the final initial BFT quota proposed rule indicated that the likelihood that fishing would continue specifications and General category Angling category had over-harvested the throughout the entire General category effort controls. In the proposed rule, 2004 quota, the Reserve category for the season. The subquotas are consistent comments were specifically requested 2005 fishing year was reduced by 5.7 mt with the objectives of the 1999 FMP and on options to remain below the ICCAT in this final rule to account for the are designed to address concerns recommended school BFT provision additional Angling category landings. regarding the allocation of fishing implemented at 50 CFR 635.27(a)(2) opportunities, to assist with distribution which requires that the proportion of 2005 Final Initial Quota Specifications and achievement of optimum yield, to school landings to overall U.S. landings In accordance with the 2002 ICCAT allow for a late season fishery, and to remain below a four-year average of quota recommendation, the ICCAT improve market conditions and eight-percent. The final rule attempts to recommendation regarding the dead scientific monitoring. balance concerns regarding the eight- discard allowance, the 1999 HMS The regulations implementing the percent provision with requests for fishery management plan (1999 FMP) 1999 FMP divide the annual General additional quota, higher retention percentage shares for each of the category quota into three time-period limits, and longer seasons. NMFS will domestic categories, and regulations subquotas as follows: 60 percent for allocate the full proposed school BFT regarding annual adjustments at June-August, 30 percent for September, quota for the 2005 fishing year, and § 635.27(a)(9)(ii), NMFS establishes final and 10 percent for October-January. make inseason adjustments as initial quota specifications for the 2005 These percentages would be applied to necessary. In addition, NMFS may fishing year as follows: General the adjusted 2005 coastwide quota for implement inseason adjustments to category—908.3 mt; Harpoon category— the General category of 908.3 mt, minus retention limits and seasons as 90.0 mt; Purse Seine category—530.0 10.0 mt reserved for the New York Bight discussed under the Comments and mt; Angling category—288.6 mt; set-aside fishery. Therefore, of the Responses section (Comment 4) below. Longline category—188.4 mt; and Trap available 898.3 mt coastwide quota, Several comments regarding early category—3.8 mt. Additionally, 45.9 mt 539.0 mt would be available in the retention limits and a late season are allocated to the Reserve category for period beginning June 1 and ending Southern area fishery for the General inseason adjustments, including August 31, 2005; 269.5 mt would be category were also received, and are potentially providing for a late season available in the period beginning addressed under Comment 5. General category fishery, or to cover September 1 and ending September 30, scientific research collection and 2005; and 89.8 mt would be available in Changes From Proposed Rule potential overharvest in any category the period beginning October 1, 2005, Updated landings estimates for the except the Purse Seine category. and ending January 31, 2006. 2004 fishing year were available for Based on the above initial In addition to time-period subquotas, several BFT fishery categories, which specifications, the Angling category NMFS also has implemented General affected quota allocations for 2005 in quota of 288.6 mt is further subdivided category restricted fishing days (RFDs) the Reserve and Longline categories, as follows: School BFT 117.2–mt, with to extend the General category fishing and are incorporated in this rule. Total 45.1 mt to the northern area (north of season. The RFDs are designed to additional landings of 36.7 mt in the 39°18′ N. latitude), 50.4 mt to the address the same issues addressed by Longline category occurred since the southern area (south of 39°18′ N. time-period subquotas and provide landings for the proposed rule were latitude), plus 21.7 mt held in reserve; additional fine scale inseason flexibility. analyzed. These landings occurred in large school/small medium BFT 164.8– For the 2005 fishing year, NMFS the subcategories as follows: 2.7 mt mt, with 77.8 mt to the northern area establishes a series of solid blocks of additional landings in the north (outside and 87.0 mt to the southern area; and RFDs to extend the General category for of the Northeast Distant area (NED)) and large medium/giant BFT–6.6 mt, with as long as possible through the October 34.0 mt additional in the south. The 2.2 mt to the northern area and 4.4 mt through January time-period. quota available for the 2005 fishing year to the southern area. Therefore, persons aboard vessels in each of the Longline subcategories is The 2002 ICCAT recommendation permitted in the General category are 51.6 mt in the north (outside the NED), includes an annual 25 mt set-aside prohibited from fishing, including 64.7 mt in the NED, and 72.1 mt in the quota to account for bycatch of BFT catch-and-release and tag-and-release, south. In addition, new information related to directed longline fisheries in for BFT of all sizes on the following regarding the dead discards in the 2004 the NED. This set-aside quota is in days while the fishery is open: all longline fishery showed that the addition to the overall incidental Fridays, Saturdays, and Sundays from Longline category had exceeded the 68 longline quota to be subdivided in November 18, 2005, through January 31, mt dead discard allowance by 3.8 mt, accordance to the North/South 2006, and Thursday, November 24, according to preliminary estimates for allocation percentages mentioned 2005, inclusive. These RFDs are calendar year (CY) 2004. Pursuant to 50 below. Thus, the Longline category implemented to improve distribution of CFR 635.27(a)(9)(iv), any dead discard quota of 188.4 mt is subdivided as fishing opportunities during the late
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season without increasing BFT The purpose of the RFDs is to assist reasonable estimates from prior years. mortality. with distribution and achievement of Several commenters requested that a optimum yield, and to extend the late tail-tag program similar to the landings Comments and Responses season General category fishery. NMFS programs in place in North Carolina and Comment 1: Many commenters recognizes that three day consecutive Maryland be implemented on a supported the quota allocation in the RFDs could negatively impact non- coastwide basis. A commenter noted proposed rule and the timing of the resident fishermen. The intent of the that real-time recreational landings proposed rule and comment period configuration of the RFDs is to separate estimates are necessary for inseason relative to the start of the BFT season. the commercial and recreational adjustments to keep the recreational One commenter stated that each fisheries temporally (i.e. General fishery open during the entire season category should be responsible for its category fishes Monday through and from exceeding its quota. Similar overages and underages in future years. Thursday, Angling category fishes comments regarding the need for Response: The final rule implements Friday through Sunday) in order to improvement to HMS recreational the proposed quota allocation, with improve conditions on the fishing landings statistics were presented by the minor modifications to account for grounds for both fisheries. Market value HMS Advisory Panel during a March minor additional recreational landings of BFT is expected to increase as a result 2005 meeting. and minimal landings under of spreading the fishery out over the late Response: NMFS collects recreational experimental fishing permits, and a season, and could mitigate any potential landings data for HMS through the minor adjustment for dead discards. extra costs of non-resident fishermen for following three programs: (1) Large NMFS intends to publish annual boat dockage and overnight fees. Pelagics Survey (LPS); (2) Automated specifications with enough notice and General category fishermen with Landing Reporting System (ALRS), and sufficient information so constituents situations such as other full time jobs on (3) comprehensive tagging of can plan for the BFT fishing year. When Monday through Friday may need to recreationally landed BFT in the states setting annual specifications, NMFS make other arrangements such as taking of Maryland and North Carolina. Each of strives to ensure each category’s annual leave in order to fish during these programs has limitations, and overages and underages are applied weekdays. none of them provides real-time data on within the same category. However, NMFS recognizes that the weather is a coastwide basis, but they are the best transfer of quota among categories is unpredictable during this time period of data available. NMFS considers provided for in regulations at 50 CFR the fishery (i.e. November 18 through improving recreational landings data for 635.27(a)(8). In general, NMFS may January 31), and that poor weather HMS to be a high priority, and choose to transfer quota among conditions may limit participation continues to investigate options for categories to maximize fishing without the need for additional RFDs improving the reliability and utility of opportunities and help achieve during this part of the season. Should these data. Specifically, an ad hoc optimum yield in BFT fisheries, while BFT landings and catch rates during the committee of NMFS scientists was this valuable stock undergoes late season fishery merit the waiving of formed to review the 2002 and 2003 rebuilding. RFDs, under 50 CFR 635.23(a)(4), NMFS methods and estimates of U.S. Comment 2: Some commenters may adjust the daily retention limits recreational fishery landing of BFT, supported the proposed RFDS while with a minimum three day notification white marlin, and blue marlin reported others did not. The commenters that to fishermen. by NMFS to ICCAT to verify that the supported the RFDs recognized that the Thanksgiving (November 24, 2005) reported estimates were the most RFDs would serve several purposes, and other holidays during November accurate that could be made with including maximizing the market value through January for 2005–6 are available data. A report stating the of the catch by distributing the available maintained as RFDs to provide Committee’s findings was released in quota over a longer time period and fishermen the opportunity to spend December 2004. Based on the findings allowing the charter/headboat and holidays with family or friends without of this report, and consultations with recreational fleets the opportunity to disadvantaging them in the fishery. the contractor that performs the LPS, fish without the presence of the Providing U.S. holidays (i.e. November methods of fish measurement and commercial fleet. Commenters who 24, December 24–25, December 31 and length/weight conversion will be further opposed the RFDs noted that the RFDs January 1) as RFDs is a new approach scrutinized. Proposals to implement an would disadvantage non-resident for management of the General category Atlantic-wide tail-tag monitoring commercial fishermen since they may fishery, and may be re-evaluated in program remain under discussion have to pay for lodging or docking future years based on experience gained among coastal states and within NMFS during non-fishing days and that some from this year’s fishery. In this year’s and include issues regarding specifics of General category fishermen are only fishery, holidays other than logistics, implementation, and able to fish on the weekends. Thanksgiving happen to occur on establishment of partnerships with Commenters opposed to the RFDs also Friday, Saturday, or Sunday, which coastal states. stated that waiving RFDs during have been established as RFDs for other Comment 4: Many comments previous fisheries had occasionally been purposes. Thus, the evaluation of regarding the 2005 recreational season untimely, and that weather would serve providing holidays will rest on the were received; most in response to the to moderate the landings for the last experience of Thanksgiving day for agency’s request for comments on subperiod. A commenter also asked that 2005. As discussed above, RFDs can be addressing ICCAT’s eight-percent the RFD for Thanksgiving be removed so waived as the season progresses if provision for school size BFT as set that fishermen could have the option to warranted by conditions in the fishery. forth in 50 CFR 635.27(a)(2). In fish. Comment 3: Several commenters addition, a joint letter from several Response: The final rule maintains stated a need to change the way BFT recreational advocacy groups outlined the following schedule of RFDs, as recreational landings are counted. specific bag limits and season requests proposed: Fridays, Saturdays, and Commenters stated that landings for the 2005 recreational fishing year, Sundays between November 18 and estimates in recent years were much and several other commenters requested January 31 and Thursday, November 24. higher than what seemed to be more that sufficient quota be available for the
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southern area recreational fishery, and inches) from October 1, 2005 through year. Should catch rates accelerate, that it be extended in time beyond that March 15, 2006, after which the fishery NMFS has the ability to responsively available in previous years. The may close. The limits under adjust the retention limit in order to comments regarding the eight-percent consideration would be in addition to ensure availability of quota throughout tolerance provision received included the one trophy fish per year for Angling the range of the fishery. Unused quota support of a limit of one school size BFT category vessels. The intent of this in General category time periods is per vessel per day and support of a one planned recreational season is to traditionally rolled over from one time fish (any size category) limit per vessel provide fishermen recreational period to the next; however, 50 CFR per day. Shifting some of the quota into opportunities throughout the geographic 635.27(a)(8) does allow the transfer of the large school/small medium subquota range of the fish and for the season to quotas among subcategories and was supported by one commenter but extend slightly longer than the average § 635.27(a)(7) identifies specific criteria not by another because of concern over fishery for recent prior years. that must be considered. Any actual increasing pressure on spawning fish. Establishing a bonus tag program is transfers between subcategories or Several commenters suggested outside the scope of this action and may categories may be addressed in harvesting the entire school allotment be considered as part of the ongoing subsequent actions. NMFS continues to for the next two years during 2005. research into the recreational data be aware of the interests of Southern Several other commenters expressed programs. area fishermen, particularly off North concern over postponing action to limit Comment 5: Several individuals Carolina, for some limited but fixed school size catches until 2006 and any commented on management of the General category quota allocation. In the other actions that could jeopardize a General category, including requests past several years, NMFS has school size fishery in 2006. A from several commenters that a multiple endeavored and succeeded in meeting commenter opposed completely fish retention limit be established for this request and will continue to do so prohibiting the catch of school size BFT the start of the 2005 season. A in 2005. NMFS is considering several in 2005 since it could negatively impact commenter requested that any underage alternatives for restructuring General the charter industry. One commenter from the June through August subquota category subquotas in the consolidated proposed use of a bonus tag system for not be rolled over but moved to the HMS FMP (68 FR 40907, July 9, 2003) additional harvest for vessels with a reserve category for harvest by the currently under development to provide bonus tag and another commenter southern area fishery. Several a long-term, codified solution to quota suggested that the recreational fishery commenters requested that 150 mt be allocation for the December to January be closed after October. available for the southern area fishery timeframe. and one commenter asked that 10.5 Comment 6: Several commenters Response: To balance concerns percent of any quota transferred to the requested that more notice be given for regarding the eight-percent ICCAT General category from another category opening and closing of seasons so that provision with requests for more quota, during an inseason action be moved into participants and other affected higher retention limits and longer the third subperiod quota. Another businesses (e.g., tackle shops) have more seasons, and to ensure that the Angling commenter requested that the subperiod planning opportunities. One commenter category does not exceed the school size percentages in the General category requested a fixed opening date for the subquota set forth in 50 CFR remain the same. One commenter stated southern area fishery. Another 635.27(a)(2), the final action maintains that the southern area fishery should be the proposed allocation of 117.2 mt in closed since it appears to be negatively commenter requested the General the school subquota. NMFS is impacting the traditional New England category fishery be kept open until the considering several scenarios for season fishery. entire quota is harvested. openings/closings and potential Response: Similar to the Angling Response: NMFS inseason adjustments to Angling category category season and retention limits management of the BFT fishery attempts retention limits. However, inseason discussed above in the previous to balance the constituents’ need to plan establishment of retention limits and response, seasonal management of the business affairs and recreational seasons per 50 CFR 635.23(b)(3) and General category takes into account activities with maximizing 635.28(a)(3), respectively, takes into time-sensitive information such as responsiveness to the changing consideration information that is only current catch rates, among other availability of fish stocks, changes in available as the season progresses, information, and retention limits are regional fishery participation, and including but not limited to catch rates established with inseason actions per 50 enforcement of regulations and and the availability of fish on the fishing CFR 635.23(a)(4), respectively. Potential administrative requirements. For grounds, and are accomplished during inseason adjustments to retention limits example, establishing fixed opening the season via inseason actions. are being considered by NMFS, and are and/or closing dates provides a certain Potential inseason adjustments to provided here to assist for constituent degree of predictability; however, the retention limits and seasons are being planning purposes. However, these availability of BFT on the fishing considered by NMFS, and are provided adjustments are only potentially being grounds is not predictable. In addition, here to assist for constituent planning considered for implementation, and daily landings of fisheries that vary purposes. However, these adjustments may be adjusted based on incoming data based on fleet size, weather, and fish are only potentially being considered for as the season progresses. NMFS is availability are unpredictable in nature, implementation, and may be adjusted considering setting a two fish retention and a fixed closing date could result in based on incoming data as the season limit for the General category early in quota overages or underages. NMFS will progresses. Retention limits under the season and adjusting this to one fish continue to strive to provide sufficient consideration include raised retention per vessel per day after September 1. notification of season openings, limits for the CHB fishery early in the The increased retention limit early in closings, and retention limit season as well as during the month of the season is being considered in adjustments while maximizing fishing September, and access for all expectation of low landings rates during opportunities within the bounds of the recreational vessels to the large school/ June through August and the availability established BFT fishery management small medium size classes (47 up to 73 of a large amount of quota for the fishing program.
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Comment 7: Several commenters management process. Several ICCAT recommendations. These issues requested that NMFS investigate the commenters were dissatisfied with the are not currently being considered in effect of the herring fishery and the locations of the public hearings, and the development of the amendment to abundance of dogfish on the BFT catch stated that none were available to the 1999 FMP. and fishery in New England. recreational fishermen between Comment 11: Several commenters Response: NMFS recognizes the Gloucester, MA and Morehead City, NC. indicated that NMFS is only concerned importance of considering ecosystem Another commenter stated that about management of the commercial interactions in fishery management commercial fishermen should be fishery. Another commenter believed planning, and addresses ecosystem excluded from the fishery management that recreational fishermen should be management as one of the goals of the process. allowed to sell fish. NMFS Strategic Plan. The agency Response: The Magnuson-Stevens Act Response: The Magnuson-Stevens continues to work toward integrating an and ATCA specifically provide for the Act, 1999 FMP, and implementing ecosystem approach into fishery involvement of the public and fishery regulations all explicitly recognize the management practices. Currently, participants (commercial and value of both commercial and Atlantic herring is managed under a recreational) in the Federal fishery recreational fisheries, and identify the separate FMP by the New England management process. NMFS provided promotion of domestic commercial and Fishery Management Council (NEFMC) several opportunities for commenting recreational fisheries, under sound and spiny dogfish is managed by the on this rulemaking, including conservation and management Mid-Atlantic Fishery Management publications requesting comments at the principles. This final rule is consistent Council (MAFMC). The Atlantic herring proposed rule state and a total of two with all applicable law including the FMP is being amended, and a public public hearings on April 8 and April 11, Magnuson-Stevens Act, and the 1999 hearing document is expected to be 2005. Rulemaking background FMP. Recreational anglers are available in the near future. An documents were made available by prohibited from selling BFT subject to amendment to the spiny dogfish FMP request and on several internet websites. NMFS’ intent to manage the commercial was initiated several years ago and is Public hearings are scheduled based on and recreational sectors of the BFT currently under development. A anticipated attendance and distribution fishery under different objectives, as framework action to increase the time of user groups, and may be limited by indicated in the 1999 FMP. period for fishery specifications is the constraints of both time and Implementing regulations at 50 CFR currently underway, by the NEFMC and funding. NMFS is interested in 635.4(d)(2) strictly prohibit the sale of MAFMC jointly. Little information is receiving feedback about potential Atlantic HMS caught on board vessels available regarding the interaction locations for future public hearings holding an HMS Angling permit. The between these three fisheries. As relative to this topic. Please see the General category fishery is an open- council and NMFS FMPs are amended, Addresses section for suggestion NMFS will continue to evaluate the submissions. access commercial fishery, and permits information available regarding this Comment 10: One commenter in this category are available to any issue. requested that the purse seine category fisherman that submits a complete Comment 8: Several commenters be eliminated. Several commenters application package. Allowing opposed establishing two-tiered requested that the size limit for the recreational fishermen to sell fish is retention limits that allow charter/ General category be reduced, while one outside the scope of this rulemaking. headboat operators to retain more fish commenter requested that it be Classification than other Angling category vessels. increased. A commenter requested that Another commenter supported a higher the minimum size in the young school These final specifications and General retention limit for charter/headboats size category be increased, and that the category effort controls are published during the fall season of one fish for commercial sector quota be cut by five under the authority of the Magnuson- every four to six passengers. One percent across the board. Another Stevens Act and ATCA. The AA has commenter suggested that charter/ commenter requested that BFT quotas determined that the regulations headboat limits vary with the size of the be cut by 50 percent this year and 10 contained in this rule are necessary to fish (e.g., keep a greater number of percent per year on a continuing basis. implement the recommendations of smaller fish and fewer large fish). The commenter opposed the allowance ICCAT and to manage the domestic Response: Angling category and CHB of 68 mt of dead discards in the BFT Atlantic HMS fisheries, and are retention limits for the 2005 fishing year fishery, consistent with the Magnuson-Stevens is discussed in the response to Response: This final rule is designed Act and National Standards. Comment 4. Establishment of retention to provide for the fair and efficient NMFS prepared an Initial Regulatory limits is regularly addressed by inseason harvest of the BFT quota that is Flexibility Analysis (IRFA) for the actions during the fishing year. NMFS allocated to the United States by ICCAT proposed rule. No comments were regulations at 50 CFR 635.23(b)(3) and is consistent with ATCA and the received on the IRFA concerning the explicitly provide for retention limits Magnuson-Stevens Act. This action economic impact of this final rule that within the Angling category based upon establishes BFT quotas based on a 2002 would change the conclusions of the vessel type, including differentiation of ICCAT recommendation, which IRFA. One comment stated that the bag limits for private, charterboat and includes a dead discard allowance, RFDs in the proposed rule could headboat vessels. Differentiation has subdivided among the U.S. domestic negatively impact non-resident been used in past actions based on the fishing fleet categories according to fishermen. As discussed in the IRFA different and unique practices of each percentages established by the 1999 and Final Regulatory Flexibility respective vessel type. FMP and implemented in NMFS Analysis (FRFA), this potential impact Comment 9: One individual stated regulations at 50 CFR 635.27(a). The could be mitigated by the potential that there should be more public remaining requested actions are all increased value of landings dispersed meetings where fishermen can provide outside the scope of this action and over a greater time period as a result of input, and that anecdotal information would require changes to the 1999 FMP, the RFDs. A summary of the FRFA is should be better incorporated into the implementing regulations, and/or provided below.
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The analysis for the FRFA assesses As noted above, Alternative two 4 were rejected because each was more the impacts of the various alternatives would implement the 2002 ICCAT likely to have negative impacts on the on the vessels that participate in the recommendation in accordance with the 2005 fishing year as describe above than BFT fisheries, all of which are 1999 FMP and consistent with ATCA. Option 1. Under Option 1, the selected considered small entities. In order to do Under ATCA, the United States is alternative, there would be few negative this, NMFS estimated the average obligated to implement ICCAT- impacts in the coming fishing year impact that the selected alternative to approved quota recommendations. The compared to the other alternatives; establish the 2005 BFT quota for all selected alternative would apply this however, more severe measures may be domestic fishing categories would have quota and have positive impacts for required to reduce school harvest in on individual categories and the vessels fishermen. The no action alternative 2006. NMFS intends to use inseason within those categories. would keep the quota at pre-2002 actions to the extent possible to adjust As mentioned above, the 2002 ICCAT ICCAT recommendation levels (i.e., 77.6 retention limits and moderate the catch recommendation increased the BFT mt less) and would not be consistent of school BFT during the 2005 fishing quota allocation to 1,489.6 mt, to be with the purpose and need for this year to maximize fishing opportunities redistributed to the domestic fishing action and the 1999 FMP. It would and mitigate impacts in 2005 and 2006. categories based on the allocation maintain economic impacts to the For the General category effort percentages established in the 1999 United States and to local economies at controls, two alternatives were FMP, as well as a set-aside quota of 25 a distribution and scale similar to 2002 considered: The selected alternative to mt to account for incidental catch of or recent prior years, but would deny designate RFDs according to a schedule BFT related to directed longline fishermen additional fishing published in the initial BFT swordfish fisheries and other regulated opportunities as recommended by the specifications and the no action tuna (bigeye, albacore, yellowfin, and 2002 ICCAT recommendation and as alternative (no RFDs published with the skipjack) fisheries in the NED. Both mandated by ATCA. This alternative initial specifications, but implemented these quota modifications were was rejected because it was inconsistent during the season as needed). In the established in the 2003 and 2004 with ATCA, the 1999 FMP, and the past, when catch rates have been high, specifications. In 2004, the annual gross purpose and need for this action. the use of RFDs (selected alternative) has had positive economic revenues from the commercial BFT Alternative two also included fishery were approximately $5.2 consequences by avoiding consideration of several options for oversupplying the market and extending million. There are approximately 9,500 reducing catch of school bluefin tuna, the season as late as possible. vessels that are permitted to land and including: (1) Taking no action until Implementing RFDs to extend the late sell BFT under four BFT quota 2006; (2) reallocating all or a portion of season may have negative economic categories (including charter/headboat the 2005 school subquota to the large impacts to northern area fishermen who vessels). The commercial categories and school/small medium subquota for choose to travel to the southern area their 2004 gross revenues are General 2005; (3) maintaining the default during the late season fishery. Travel ($4,346,814), Harpoon ($317,104), Purse Angling category retention limit of one and lodging costs may be greater if the seine ($231,791), and Longline fish per vessel per day for the entire season were extended over a greater ($305,180). The analysis for the FRFA 2005 season; or (4) prohibiting landing period of time as indicated under the assumes that each vessel within a of school BFT in 2005 and carrying over selected alternative. Those additional category will have similar catch and the subquota to 2006. During the public costs could be mitigated if the ex-vessel gross revenues. While this may not be comment period, comment was price of BFT stays high. Without RFDs, true, the analyses are sufficient to show specifically sought on these options. travel costs may be less because of a the relative impact of the various Because of limited economic data shorter season; however, the market selected alternatives on vessels. regarding recreational HMS fisheries, could be oversupplied and ex-vessel For the allocation of BFT quota among economic impacts of the various options prices could fall. Despite the possible domestic fishing categories, NMFS cannot be quantified. However, the negative impacts, extending the season analyzed a no action alternative and options that include some reduction in as late as possible would enhance the Alternative two (selected alternative) school BFT landings in 2005 (Options 2, likelihood of increasing participation by which would implement the 2002 3 and 4) could have minor negative southern area fishermen, increase access ICCAT recommendation. NMFS economic impacts for 2005. Any modest to the fishery over a greater range of the considered a third alternative that economic impacts to charter/headboat fish migration, and is expected to would have allocated the 2002 ICCAT or recreational fisheries as a result of provide better than average ex-vessel recommendation in a manner other than option 2 could be mitigated by the shift prices with an overall increase in gross that designated in the 1999 FMP that of quota to the large school/small revenues. was meant to address issues regarding medium subquota. In addition, the The no action alternative would not specific set-asides and allocations for apparent recent increase in school BFT implement any RFDs with publication fishing groups which are not currently landings could indicate an increase in of the initial specifications but rather considered in the 1999 FMP. However, abundance of young BFT, some of would use inseason management since the third alternative could have which could be recruited into the large authority established in the 1999 FMP resulted in a defacto sub-period quota school/small medium size class in 2005, to implement RFDs during the season, reallocation, an FMP amendment would thus mitigating any reduction in school should catch rates warrant. This be necessary for its implementation, and BFT from Options 2 or 4. Impacts from alternative is most beneficial during a it was not further analyzed. In a Option 3 are less likely to be mitigated season of low catch rates and would concurrent rulemaking, the by shifts in quota or abundance since have positive economic consequences if development of the consolidated HMS the one fish retention limit would be in slow catch rates were to persist. Overall, FMP has been initiated (68 FR 40907, place for the entire season, and the the season would regulate itself and July 9, 2003) to consider sub-period small retention limit could have greater fishermen could choose when to fish or quota allocations in the BFT fishery, impacts on charter/headboat fisheries not based on their own preferences. among other things. than the other options. Options 2, 3, and However, even with low catch rates and
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no RFDs, this alternative was rejected the continued existence of loggerhead, Management Council, and the HMS because it is unlikely that there will be green, hawksbill, Kemp’s ridley, or olive Management Division of the Office of enough quota in the General category to ridley sea turtles, but was likely to Sustainable Fisheries at NMFS. NMFS sustain an extended late season jeopardize the continued existence of does not anticipate that this action will commercial handgear fishery off south leatherback sea turtles. The 2004 BiOp have any adverse impacts to EFH and, Atlantic states. identified RPAs necessary to avoid therefore, no consultation is required. The action would not result in jeopardizing leatherbacks, and listed the NMFS has determined that the actions additional reporting, recordkeeping, Reasonable and Prudent Measures in this final rule are consistent to the compliance, or monitoring requirements (RPMs) and terms and conditions maximum extent practicable with the for the public. This final rule has also necessary to authorize continued take as enforceable policies of the coastal states been determined not to duplicate, part of the revised incidental take in the Atlantic, Gulf of Mexico, and overlap, or conflict with any other statement. On July 6, 2004, NMFS Caribbean that have Federally approved Federal rules. published a final rule (69 FR 40734) coastal zone management programs NMFS prepared an EA for this final implementing additional sea turtle under the Coastal Zone Management rule, and the AA has concluded that bycatch and bycatch mortality Act (CZMA). The rule establishing quota there would be no significant impact on mitigation measures for all Atlantic specifications and effort controls was the human environment with vessels with pelagic longline gear submitted to the responsible state implementation of this final rule. The onboard. NMFS is working on agencies for their review under section EA presents analyses of the anticipated implementing the other RPMs in 307 of the CZMA on March 23, 2005. As impacts of these regulations and the compliance with the 2004 BiOp. On of May 6, 2005, NMFS has received five alternatives considered. A copy of the August 12, 2004, NMFS published an responses, all concurring with NMFS’ EA and other analytical documents advance notice of proposed rulemaking consistency determination. Because no prepared for this proposed rule, are (69 FR 49858) to request comments on responses were received from other available from NMFS via the Federal e- potential regulatory changes to further states, their concurrence is presumed. Rulemaking Portal (see ADDRESSES). reduce bycatch and bycatch mortality of This final rule has been determined to Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. sea turtles, as well as comments on the be not significant for purposes of 1801 et seq. feasibility of framework mechanisms to Executive Order 12866. Dated: June 1, 2005. This final rule contains no new address unanticipated increases in sea turtle interactions and mortalities, Rebecca Lent, collection-of-information requirements Deputy Assistant Administrator for subject to review and approval by the should they occur. NMFS will undertake additional rulemaking and Regulatory Programs, National Marine Office of Management and Budget Fisheries Service. (OMB) under the Paperwork Reduction non-regulatory actions, as required, to implement any management measures [FR Doc. 05–11208 Filed 6–1–05; 5:01 pm] Act (PRA). Notwithstanding any other BILLING CODE 3510–22–P provisions of the law, no person is that are required under the 2004 BiOp. required to respond to, nor shall any The measures in this action are not expected to have adverse impacts on person be subject to, a penalty for DEPARTMENT OF COMMERCE failure to comply with a collection of protected species. Although the 2002 information subject to the requirements ICCAT recommendation increased the National Oceanic and Atmospheric of the PRA unless that collection of BFT quota, which may result in a slight Administration information displays a currently valid increase in effort, NMFS does not expect OMB control number. this slight increase to alter current 50 CFR Part 635 On September 7, 2000, NMFS fishing patterns. Any option to reduce reinitiated formal consultation for all mortality of school BFT are expected to [I.D. 052405D] HMS commercial fisheries under have negligible ecological impacts and not adversely impact protected species. Atlantic Highly Migratory Species; section 7 of the Endangered Species Act. Atlantic Bluefin Tuna Fisheries A Biological Opinion (BiOp), issued The specific action to allocate June 14, 2001, concluded that continued additional BFT quota to the Longline AGENCY: National Marine Fisheries operation of the Atlantic pelagic category would not alter current impacts Service (NMFS), National Oceanic and longline fishery is likely to jeopardize on threatened or endangered species. Atmospheric Administration (NOAA), the continued existence of endangered The action would not modify fishing Commerce. behavior or gear type, nor would it and threatened sea turtle species under ACTION: Temporary rule; inseason expand fishing effort because BFT are NMFS jurisdiction. This BiOp also retention limit adjustment. concluded that the continued operation only allowed to be retained incidentally. of the purse seine and handgear Thus, the action would not be expected SUMMARY: NMFS has determined that fisheries may adversely affect, but is not to change previously analyzed the Atlantic bluefin tuna (BFT) General likely to jeopardize, the continued endangered species or marine mammal and Charter/Headboat Permit category existence of any endangered or interaction rates or magnitudes, or daily retention limits should be adjusted threatened species under NMFS substantially alter current fishing for the 2005 fishing year, which begins jurisdiction. NMFS has implemented practices or bycatch mortality rates. on June 1, 2005 and ends May 31, 2006. the reasonable and prudent alternative The area in which this action will The adjustment will allow maximum (RPA) required by this BiOp. occur has been identified as Essential utilization of the General category June Subsequently, based on the Fish Habitat (EFH) for species managed through August time-period subquota, management measures in several by the New England Fishery and will enhance recreational BFT proposed rules, a new BiOp on the Management Council, the Mid-Atlantic fishing opportunities aboard Charter/ Atlantic pelagic longline fishery was Fishery Management Council, the South Headboat vessels in the early portion of issued on June 1, 2004. The 2004 BiOp Atlantic Fishery Management Council, the season. Therefore, NMFS increases found that the continued operation of the Gulf of Mexico Fishery Management the daily BFT retention limits to provide the fishery was not likely to jeopardize Council, the Caribbean Fishery enhanced commercial General category
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and recreational Charter/Headboat Table 1 under SUPPLEMENTARY et seq.) governing the harvest of BFT by fishing opportunities in all areas INFORMATION. persons and vessels subject to U.S. without risking overharvest of the FOR FURTHER INFORMATION CONTACT: Brad jurisdiction are found at 50 CFR part General and Angling category quotas. McHale, 978–281–9260. 635. Section 635.27 subdivides the U.S. The final initial 2005 BFT SUPPLEMENTARY INFORMATION: BFT quota recommended by the Specifications and General category Regulations implemented under the International Commission for the effort controls are provided in a separate authority of the Atlantic Tunas Conservation of Atlantic Tunas (ICCAT) Federal Register document. Convention Act (16 U.S.C. 971 et seq.) among the various domestic fishing categories. DATES: The effective dates for the BFT and the Magnuson-Stevens Fishery Conservation and Management Act daily retention limits are provided in Daily Retention Limits (Magnuson-Stevens Act; 16 U.S.C. 1801
TABLE 1.—EFFECTIVE DATES
Permit category Effective dates Areas BFT size class limit
General ...... June 1 through June 5, 2005, inclusive ...... All ...... One BFT per vessel per day/trip, measuring 73 inches (185 cm) curved fork length (CFL) or larger. June 6 through August 31, 2005, inclusive ...... All ...... Two BFT per vessel per day/trip, measuring 73 inches (185 cm) curved fork length (CFL) or larger. September 1, 2005, through January 31, 2006, inclu- All ...... One BFT per vessel per day/trip, measuring 73 inches sive. (185) CFL or larger. Charter/Headboat ... June 1–16, 2005, inclusive ...... All ...... One BFT per vessel per day/trip, measuring 27 to less than 73 inches (69 to less than 185 cm) CFL. June 17 through July 31, 2005, inclusive ...... All ...... Three BFT per vessel per day/trip, measuring 27 to less than 73 inches (69 to less than 185 cm) CFL. Of the three BFT, a maximum of two BFT are al- lowed per vessel per day/trip measuring 27 to less than 47 inches (69 to less that 119 cm) CFL. August 1, 2005, through May 31, 2006, inclusive ...... All ...... One BFT per vessel per day/trip, measuring 27 to less than 73 inches (69 to less than 185 cm) CFL. Angling ...... June 1, 2005, through May 31, 2006, inclusive ...... All ...... One BFT per vessel per day/trip, measuring 27 to less than 73 inches (69 to less than 185 cm) CFL.
Adjustment of General Category Daily northern New England) will lose the applies to permitted HMS Charter/ Retention Limits opportunity to enjoy the increased Headboat vessels (when recreationally fishing opportunities while the fish are fishing under the Angling category) and Under 50 CFR 635.23(a)(4), NOAA briefly offshore in the Gulf of Maine and to HMS Angling permitted vessels. Fisheries may increase or decrease the northern New England fishing areas. These regulations also allow for General category daily retention limit of Therefore, NOAA Fisheries adjusts adjustment to the daily retention limit large medium and giant BFT over a the General category daily retention to provide for maximum utilization of range from zero (on Restricted Fishing limit June 6 through August 31, 2005, the quota over the longest possible Days) to a maximum of three per vessel inclusive, to two large medium or giant period of time. NOAA Fisheries may to allow for maximum utilization of the BFT, measuring 73 inches (185 cm) CFL increase or decrease the retention limit quota for BFT. Starting on June 1, 2005, or greater, per vessel per day/trip. The for any size class BFT or change a vessel the default commercial General category default retention limit of one BFT trip limit to an angler limit or vice versa. daily retention limit at 50 CFR greater than 73 inches will apply Such adjustments to the retention limits 635.23(a)(2), will apply at one large through June 5, 2005 inclusive, and the may be applied separately for persons medium or giant BFT (measuring 73 retention limit will revert back to the aboard specific vessel types, such as inches curved fork length (CFL)) or default on September 1, 2005. It is private vessels, headboats, and charter greater per vessel per day/trip. This highly likely that with a combination of boats. retention limit applies to permitted the default bag limit of one BFT starting NOAA Fisheries has recently received HMS Charter/Headboat vessels (when on September 1, 2005, and the large more information from charter operators commercially fishing under the General amount of General category quota, that and recreational industry leaders related category) and General category there will be sufficient quota for a full to recreational BFT fishing permitted vessels. general category season extending into opportunities in the mid-Atlantic area. NOAA Fisheries has been continuing the winter months and for southern area Among other matters, NOAA Fisheries to receive information from fishermen fishermen on an order of magnitude of has learned about a tuna tournament regarding the start of the season and recent prior years. starting on June 17, 2005, and concerns requests for an increase of the retention regarding how the default one BFT limit in the General category starting as Adjustment of HMS Charter/Headboat retention limit might negatively impact close as possible to the start of the Permit Category Daily Retention Limits charterboat operations early in the fishery on June 1 and for increased Starting on June 1, 2005, the default season particularly in tournaments recreational Charterboat limits mid June recreational daily retention limit at 50 where higher limits will attract more to end of July. Fishermen have indicated CFR 635.23(b), will apply at one school, participants. Charterboat operators have that, if the action is not conducted large school or small medium BFT requested an increased retention limit, expeditiously, at the opening of the (measuring 27 inches to less than 73 and expressed concern that a season, then a subsector of General inches curved fork length (CFL)) per recreational retention limit of less than category fishermen (particularly in vessel per day/trip. This retention limit three or four BFT per vessel per day/trip
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does not provide reasonable fishing the possibility of again providing a Classification opportunities for charter/headboats, modest retention limit adjustment closer The Assistant Administrator for which carry multiple fee-paying to that time frame based on several Fisheries, NOAA (AA), finds that it is passengers. Fishermen have also factors, including but not limited to, the impracticable and contrary to the public emphasized that an early season landings and quota data as well as other interest to provide prior notice of, and retention limit adjustment should be fishery information gathered from the an opportunity for public comment on, announced as soon as possible so that monitoring programs discussed below, this action. NOAA Fisheries published Charterboat operators have sufficient experience of this early season retention proposed initial 2005 BFT specifications time to announce and plan the limit adjustment, information from (70 FR 14630) on March 23, 2005, and scheduling of trips. Another fishermen and the public regarding solicited public comment through 4/18/ consideration is the need to ensure the fishing opportunities, and the 2005. NOAA Fisheries specifically United States meets ICCAT’s availability of migrating BFT. requested comment on options to recommendation regarding quota For privately owned and operated achieve the ICCAT recommended four- allocation and specifically regarding the recreational vessels, permitted in the year average 8 percent tolerance on catch of school BFT to no more than HMS Angling category, the daily harvest of school BFT. Numerous eight percent by weight of the total recreational retention limit will remain comments were received on this issue as domestic landings quota over each four- at one school, large school, or small well as a wide range of topics, including consecutive-year period. The 2005 medium BFT measuring 27 to less than inseason management measures for the fishing year is the third year in the 73 inches (69 to less than 185 cm) CFL, General and Angling categories current accounting period. This multi- per vessel per day/trip effective June 1, throughout the 2005 fishing year. NOAA year block quota approach provides 2005 through May 31, 2006, inclusive. Fisheries is in the process of publishing NOAA Fisheries with the flexibility to the final initial specifications. enhance fishing opportunities and to Monitoring and Reporting Since the end of the comment period collect information on a broad range of NMFS selected the daily recreational to the present day, the HMS BFT size classes. retention limits and their duration after Over the past several weeks HMS staff Management Division has continued to examining previous fishing year catch receive more information refining its have received information related to and effort rates, receiving public retention limit adjustments for a variety understanding of both the commercial comment, and analyzing the available and recreational sectors’ specific needs of recreational fishing sectors along the quota for the 2005 fishing year. NMFS entire Atlantic coast and for the regarding retention limits early in the will continue to monitor the BFT fishery duration of the 2005 fishing year. HMS season. HMS staff recent calculations closely through dealer landing reports, staff have considered this information as from the specifications process show the Automated Landings Reporting well as issues raised at the HMS that there is sufficient quota for an System, state harvest tagging programs Advisory Panel meeting held in March increase in the General category in North Carolina and Maryland, and 2005 and received from public comment retention limit from the start of the the Large Pelagics Survey. Depending on the proposed initial 2005 BFT season. Prior experience from the past on the level of fishing effort and catch specifications (70 FR 14630, March 23, several years also leads us to predict rates of BFT, NMFS may determine that 2005). The final initial specifications are that the General category season will additional retention limit adjustments currently in preparation and take into start slowly and an adjustment of the account recently available estimates of are necessary to ensure available quota retention limit will be necessary to total recreational landings from the 2004 is not exceeded or, to enhance scientific maximize fishing opportunities on the fishing year. These analyses show that data collection from, and fishing June through August subquota and a modest increase in the daily retention opportunities in, all geographic areas. minimize excessive rollovers of quota limit, of limited duration, is feasible Additionally, NMFS may determine that into the October subquota category. The without risking overharvest of available an allocation from the school BFT data also show that a limited increase in quota for the early part of the 2005 reserve is warranted to further fishery the angling retention limit is possible recreational season. management objectives. for the recreational Charterboat fleet Thus, NOAA Fisheries adjusts the Closures or subsequent adjustments to while minimizing risks of exceeding the daily BFT retention limit, in all areas, the daily retention limits, if any, will be ICCAT allocated quota and the school for vessels permitted in the HMS published in the Federal Register. In limit recommendation. Charter/Headboat category, effective addition, fishermen may call the Delays in increasing the retention June 17 through July 31, 2005, inclusive, Atlantic Tunas Information Line at (888) limits would adversely affect those to three BFT per vessel per day/trip, 872–8862 or (978) 281–9260 for updates General and Charter/Headboat category consisting of BFT measuring 27 to less on quota monitoring and retention limit vessels that would otherwise have an than 73 inches (69 to less than 185 cm) adjustments. All BFT landed under the opportunity to harvest more than one CFL in the school, large school, or small Angling category quota must be reported BFT per day and would further medium size classes. Of the three BFT, within 24 hours of landing to the NMFS exacerbate the problem of quota a maximum of two school BFT are Automated Landings Reporting System rollovers, or lack of booked charters. allowed per vessel per day/trip, via toll-free phone at (888) 872–8862; or Limited opportunities to access the measuring 27 to less than 47 inches (69 the Internet http:// respective quotas may have negative to less than 119 cm) CFL. www.nmfspermits.com; or, if landed in social and economic impacts to U.S. Effective August 1, 2005, the default the states of North Carolina or fishermen that either depend upon daily recreational retention limit at 50 Maryland, to a reporting station prior to catching the available quota within the CFR 635.23(b) will apply in all areas, for offloading. Information about these state time periods designated in the HMS all vessels fishing under the recreational harvest tagging programs, including FMP, or depend on multiple BFT angling quota and regulations. However, reporting station locations, can be retention limits to attract individuals to NOAA Fisheries is also aware of the obtained in North Carolina by calling book charters. For both the General and needs of a late summer or September (800) 338–7804, and in Maryland by the recreational sectors, an adjustment Charterboat fishery and will consider calling (410) 213–1531. to the retention limits needs to be done
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as close to the start of the season on June Atmospheric Administration (NOAA), allocates the increase in commercial 1 as possible for the impacted sectors to Commerce. summer flounder quota (from the 2004 benefit from the adjustment and for ACTION: Temporary rule; inseason quota amount) differently than the existing fishermen who only have access to the transfer. allocation scheme, in order to reduce fishery at the beginning of the season to the amount of fish that must be not be precluded from early season SUMMARY: NMFS announces that it has discarded as bycatch in the commercial fishing opportunities. approved the request of the State of fishery in states with relatively low Therefore, the AA finds good cause North Carolina to transfer 82,774 lb summer flounder quotas. The transfer of under 5 U.S.C. 553(b)(B) to waive prior (37,546 kg) of commercial summer quota from donor states will allow notice and the opportunity for public flounder quota to the States of Maine, recipient states to marginally increase comment. For all of the above reasons, Connecticut, New York, and Maryland, and because this action relieves a and the Commonwealth of trip limits, thereby decreasing the restriction (i.e., current, default Massachusetts, in accordance with the amount of summer flounder discarded retention limit is one fish per vessel/trip Atlantic States Marine Fisheries at sea. but this action relaxes that limit and Commission (ASMFC) Addendum XV to The final rule implementing allows retention of more fish), there is the Summer Flounder, Scup, and Black Amendment 5 to the FMP that was also good cause under 5 U.S.C. 553(d) Sea Bass Fishery Management Plan published on December 17, 1993 (58 FR to waive the 30-day delay in (FMP). By this action, NMFS adjusts the 65936), provided a mechanism for effectiveness. quotas and announces the revised summer flounder quota to be transferred This action is being taken under 50 commercial quota for each state from one state to another. Two or more CFR 635.23(a)(4) and is exempt from involved. states, under mutual agreement and review under Executive Order 12866. DATES: Effective June 2, 2005 through with the concurrence of the Authority: 16 U.S.C. 971 et seq. and 1801 December 31, 2005, unless NMFS Administrator, Northeast Region, NMFS et seq. publishes a superseding document in (Regional Administrator), can transfer or Dated: June 1, 2005. the Federal Register. combine summer flounder commercial Alan D. Risenhoover, FOR FURTHER INFORMATION CONTACT: quota under § 648.100(d). The Regional Acting Director, Office of Sustainable Mike Ruccio, Fishery Management Administrator is required to consider Fisheries, National Marine Fisheries Service. Specialist, (978) 281–9104, FAX (978) the criteria set forth in § 648.100(d)(3) in [FR Doc. 05–11207 Filed 6–1–05; 5:02 pm] 281–9135. the evaluation of requests for quota BILLING CODE 3510–22–P SUPPLEMENTARY INFORMATION: transfers or combinations. The Regional Regulations governing the summer Administrator has reviewed those flounder fishery are found at 50 CFR criteria and approved the quota transfer DEPARTMENT OF COMMERCE part 648. The regulations require annual requests submitted by the State of North National Oceanic and Atmospheric specification of a commercial quota that Carolina. Administration is apportioned among the coastal states Consistent with Addendum XV, North from North Carolina through Maine. The Carolina, a designated ‘‘donor state,’’ 50 CFR Part 648 process to set the annual commercial has voluntarily employed the quota quota and the percent allocated to each transfer provisions of the FMP to [Docket No. 041110317–4364–02; I.D. state are described in § 648.100. transfer a total of 82,774 lb (37,546 kg) 053105F] The ASMFC adopted Addendum XV to be allocated as follows: Maine 1,639 Fisheries of the Northeastern United to the FMP in November 2004. The Addendum is being implemented under lb (743 kg); Connecticut 22,917 lb States; Summer Flounder Fishery; (10,395 kg); New York 17,085 lb (7,750 Quota Transfer the adaptive management and framework procedures that are part of kg); Maryland 23,153 lb (10,502 kg); and AGENCY: National Marine Fisheries the FMP. Addendum XV establishes a Massachusetts--17,980 lb (8,156 kg) (see Service (NMFS), National Oceanic and program, for 2005 and 2006, that Table 1).
TABLE 1. SUMMER FLOUNDER COMMERCIAL QUOTA TRANSFERS
Amount Transferred 2005 Quota1 2005 Revised Quota State lb kg lb kg lb kg
North Carolina -82,774 -37,546 4,680,519 2,123,089 4,597,745 2,085,537 Maine 1,639 743 9,820 4,454 11,459 5,198 Massachusetts 17,980 8,156 1,191,519 540,473 1,209,499 548,629 Connecticut 22,917 10,395 423,396 192,052 446,313 202,448 New York 17,085 7,750 1,387,434 629,336 1,404,519 637,090 Maryland 23,153 10,502 365,381 165,737 388,534 176,239 1 Reflects quotas as published on May 24, 2005 (70 FR 29645), inclusive of previous Addendum XV and ‘‘safe harbor’’ transfers.
Classification Authority: 16 U.S.C. 1801 et seq. Dated: June 1, 2005. This action is taken under 50 CFR Alan D. Risenhoover, part 648 and is exempt from review Acting Director, Office of Sustainable under E.O. 12866. Fisheries, National Marine Fisheries Service. [FR Doc. 05–11289 Filed 6–2–05; 2:30 pm] BILLING CODE 3510–22–S
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Proposed Rules Federal Register Vol. 70, No. 108
Tuesday, June 7, 2005
This section of the FEDERAL REGISTER Room 4095-S, 1400 Independence marketplace by the producer. This contains notices to the public of the proposed Avenue, SW., Washington, DC, between resulted in a situation where there were issuance of rules and regulations. The 8 a.m. and 4:30 p.m., Monday through reduced collections of commodity purpose of these notices is to give interested Friday, except holidays. A copy of this assessments since the commodity was persons an opportunity to participate in the proposed rule is available on the PSD not marketed. In order to alleviate some rule making prior to the adoption of the final rules. home page at http://www.fsa.usda.gov/ of these concerns, CCC agreed in many dafp/psd. All comments will become a instances to collect these assessments matter of public record, including the when CCC price support loans were DEPARTMENT OF AGRICULTURE name, mailing address, and e-mail disbursed, and in order to assure that address of the commenting party. the producer received the Commodity Credit Corporation FOR FURTHER INFORMATION CONTACT: Congressionally-mandated level of price Kimberly Graham, 202–720–9154, support obtained through the 7 CFR Part 1405 email: [email protected]. nonrecourse loan, the State was required to agree to refund the RIN 0560–AH35 Persons with disabilities who require alternative means for communication assessment to the producer if requested. Collection of State Commodity (Braille, large print, audiotape, etc.) Beginning with changes by Congress Assessments should contact the USDA Target Center in the late 1980’s, the repayment at (202) 720–2600 (voice and TDD). mechanism for most CCC commodity AGENCY: Commodity Credit Corporation, loans was changed in order to eliminate SUPPLEMENTARY INFORMATION: USDA. the acquisition of large stocks of ACTION: Proposed rule. Background commodities by CCC. This change, generally, allowed producers to repay SUMMARY: This proposed rule, if Many States have enacted statutes that provide for the levy of assessments loans at the lesser of the normal adopted, would provide that the redemption price (loan principal plus Commodity Credit Corporation (CCC) with respect to marketings of agricultural commodities. The interest) or the market price as will deduct from marketing assistance determined by CCC. These types of loan proceeds an amount equal to any assessments, generally, are paid by the producer of the commodity or by the loans are referred to as ‘‘marketing assessment required under State or assistance loans.’’ As a result of these Federal law to be paid by a producer first purchaser of the commodity. Similarly, there are a limited number of changes, CCC now obtains minimal who markets the commodity, or by the quantities of commodities as forfeitures. first purchaser of the commodity. This assessments collected pursuant to Federal statutes. Both the State and Thus, CCC determined that it was no discretionary action is authorized by longer prudent to enter into agreements Federal assessments are used to increase Public Law 108–470. to collect assessments at loan making domestic and international demand of DATES: Comments on this rule must be since the commodities were being the commodity through a variety of received on or before July 7, 2005 in marketed, thus assessments were being activities including product promotion; order to be assured of consideration. collected when the commodity entered consumer information; and research Comments received after that date may the market. In reviewing whether the related to product improvement, safety, be considered to the extent practicable. assessment collection activities of CCC health and production technology. In ADDRESSES: The Commodity Credit were still needed, it also became clear most instances, the collection of the Corporation (CCC) invites interested to CCC that there was no clear statutory assessment occurs at the point of the persons to submit comments on this authority for the reduction in the loan proposed rule. Comments may be first marketing of the commodity. rate that occurred as a result of the When the first State assessments were submitted by any of the following collection activity. Accordingly, CCC authorized, CCC commodity loans were methods: ceased to enter into new agreements to non-recourse loans that could be • E-Mail: Send comments to collect such assessments. Recently, as a satisfied through either of two ways: the [email protected]. part of a wider examination of its loan- payment of the principal amount of the • Fax: Submit comments by facsimile making actions, CCC found that in crop loan plus accrued interest; or through transmission to (202) 690–3307. year 2003 only 112 of 37,246 farm- • the forfeiture to CCC of the commodity Mail: Send comments to Grady stored loans with a principal amount of which had been pledged as collateral for Bilberry, Director, Price Support $25,000 or less were satisfied by the loan. Accordingly, if the market Division (PSD), Farm Service Agency forfeiture to CCC (0.30 percent). (FSA), United States Department of price of the commodity exceeded the In order to remove any questions Agriculture (USDA), STOP 0512, Room amount necessary to repay the loan, it regarding the authority of CCC to engage 4095-S, 1400 Independence Avenue, was to the producer’s advantage to in the collection of commodity program SW., Washington, DC 20250–0512. redeem the loan collateral. Conversely, assessments, Public Law 108–470 was • Hand Delivery or Courier: Deliver when market prices were below the loan enacted, which provides: comments to the above address. rate, it would be more advantageous for • Federal eRulemaking Portal: Go to the producer to forfeit the loan collateral (a) Collection From Marketing Assistance to CCC. In those instances when there Loans.—The Secretary of Agriculture may http://www.regulations.gov. Follow the collect commodity assessments from the online instructions for submitting were prolonged periods of low prices, proceeds of a marketing assistance loan for a comments. CCC would acquire substantial producer if the assessment is required to be Comments may be inspected in the quantities of commodities as opposed to paid by the producer or the first purchaser Office of the Director, PSD, FSA, USDA, the commodity being marketed in the of a commodity pursuant to a State law or
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pursuant to an authority administered by the 1969 (NEPA), 42 U.S.C. 4321 et seq., the on the distribution of power and Secretary. This collection authority does not regulations of the Council on responsibilities among the various extend to a State tax or other revenue Environmental Quality (40 CFR parts levels of government. collection activity by a State. 1500–1508), and the FSA regulations for (b) Collection Pursuant to Agreement.— Federal Assistance Programs The collection of an assessment under the compliance with NEPA, 7 CFR part 799. subsection (a) shall be made as specified in FSA concluded that the rule requires no The title and number of the Federal an agreement between the Secretary of further environmental review because it assistance program found in the Catalog Agriculture and the State requesting the is categorically excluded. No of Federal Domestic Assistance to which collection. extraordinary circumstances or other this final rule applies are Commodity In proposing to implement Public unforeseeable factors exist which would Loans and Loan Deficiency Payments, Law 108–470, CCC considered its past require preparation of an environmental 10.051. assessment or environmental impact experience in collecting such List of Subjects in 7 CFR Part 1405 assessments and the magnitude of statement. commodity forfeitures to CCC. Executive Order 12988 Agricultural commodities, Feed Accordingly, the provisions of the grains, Grains, Loan programs- proposed rule are substantially similar This proposed rule has been reviewed agriculture, Oilseeds, Price support to the process used in the past by CCC. in accordance with Executive Order programs, Reporting and record keeping With respect to the collection of State 12988. If a final rule is published for the requirements. assessments, the major provisions of the subject of this proposed rule, that rule will preempt State laws that are For the reasons set out in the proposed rule are: (1) A request for CCC preamble, 7 CFR part 1405 is proposed to engage in the collection activity must inconsistent with the final rule. Before to be amended as follows: initially be submitted by the Governor any legal action may be brought of the State; (2) such request must regarding a determination under this PART 1405—LOANS, PURCHASES, identify the entity that the Governor has rule, the administrative appeal AND OTHER OPERATIONS designated to enter into the collection provisions set forth at 7 CFR parts 11 agreement with CCC; (3) a statement and 780 must be exhausted. 1. The authority citation continues to from the Attorney General, at any time Executive Order 12372 read as follows: prior to final execution of the This program is not subject to the Authority: 7 U.S.C. 1515; 7 U.S.C. 7991(e); agreement, that the agreement is in 15 U.S.C. 714b and 714c. compliance with applicable State laws provisions of Executive Order 12372, and the provisions of section 1(a) of which require intergovernmental 2. Amend part 1405 by adding Public Law 108–470; (4) collection of consultation with State and local § 1405.9 to read as follows: officials. See the notice related to 7 CFR the assessment, as requested by the § 1405.9 Commodity assessments. Governor, may be at either the time the part 3014, subpart V, published at 48 FR marketing assistance loan is disbursed 29115 (June 24, 1983). (a) CCC will deduct from the proceeds of a marketing assistance loan an to the producer or at the time of Unfunded Mandates Reform Act of amount equal to the amount of an forfeiture of the commodity to CCC, but 1995 not both; and (5) the State agrees to assessment otherwise required to be indemnify CCC for any costs incurred in The rule contains no Federal remitted to a State agency under a State collecting the assessment, including mandates under the regulatory statute by the producer of the costs relating to resolution of disputes provisions of title II of the Unfunded commodity pledged as collateral for arising from the requested collection of Mandates Reform Act of 1995 (UMRA) such loan or by the first purchaser of the assessment. for State, Local, and tribal governments such commodity subject to the With respect to assessments collected or the private sector. Thus, this rule is requirements of paragraph (b) of this under Federal statutes, the proposed not subject to the requirements of section. rule provides that collections will be sections 202 and 205 of the UMRA. (1) The assessment will be collected made as provided in such manner as Paperwork Reduction Act in one of the following ways, as may be agreed upon by CCC and the requested by the State, but not both: entity to whom the Secretary has Section 1601(c) of the 2002 Act provides that the promulgation of (i) When the proceeds of the loan are delegated responsibility to otherwise disbursed, or; engage in collection activities. regulations and the administration of title I of the 2002 Act shall be made (ii) When the commodity pledged as Executive Order 12866 without regard to chapter 5 of title 44 collateral for the loan is forfeited to CCC, in which case CCC will collect This proposed rule is issued in of the United States Code (the from the producer the amount of the conformance with Executive Order Paperwork Reduction Act). Accordingly, assessment submitted by CCC to the 12866, was determined to be not these regulations and the forms and State. significant, and has not been reviewed other information collection activities by the Office of Management Budget. needed to administer the program (2) CCC will deduct from the proceeds authorized by these regulations are not of a marketing assistance loan an Regulatory Flexibility Act subject to review by OMB under the amount equal to the amount of an It has been determined that the Paperwork Reduction Act. assessment otherwise authorized to be Regulatory Flexibility Act is applicable remitted to a Federally authorized entity Executive Order 12612 to this proposed rule. under a Federal statute by the producer This rule does not have sufficient of the commodity pledged as collateral Environmental Assessment Federalism implications to warrant the for such loan or the first purchaser of The environmental impacts of this preparation of a Federalism Assessment. such commodity in the manner agreed proposed rule have been considered The provisions contained in this rule to by CCC and the entity to whom the consistent with the provisions of the will not have substantial direct effect on Secretary of Agriculture has authorized National Environmental Policy Act of States or their political subdivisions or to collect such assessments.
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(b) CCC will collect commodity DEPARTMENT OF TRANSPORTATION Actions That Occurred Since the NPRM assessments authorized under a State Was Issued statute when: Federal Aviation Administration Since the issuance of that NPRM, we (1) The Governor of the State has: 14 CFR Part 39 have approved McDonnell Douglas (i) Requested that the assessment be Service Bulletin DC8–57–090, Revision [Docket No. 2001–NM–152–AD] collected; 6, dated April 9, 2002, as an alternative (ii) Identified whether the assessment RIN 2120–AA64 method of compliance with AD 2001– 06–02. Revision 6 provides data is to be collected at the time the loan Airworthiness Directives; McDonnell indicating that extending the proceeds are disbursed or at the time the Douglas Model DC–8–11, DC–8–12, compliance time for the follow-on commodity is forfeited to CCC; and DC–8–21, DC–8–31, DC–8–32, DC–8– inspection required by AD 2001–06–02 (iii) Identified the person who may 33, DC–8–41, DC–8–42, and DC–8–43 enter into an agreement with CCC that Airplanes; DC–8–50 Series Airplanes; to ‘‘within 32,000 landings’’ provides an sets forth the obligations of the State DC–8–61 Airplanes; DC–8–61F acceptable level of safety. and CCC with respect to the collection Airplanes; DC–8–71 Airplanes; and FAA’s Conclusions of the assessment; DC–8–71F Airplanes Since we approved Revision 6 as an (2) The Attorney General of the State, AGENCY: Federal Aviation alternative method of compliance with or a person authorized to act on behalf Administration, DOT. AD 2001–06–02, we have determined of the Attorney General, has provided to ACTION: Proposed rule; withdrawal. that it is unnecessary to revise AD CCC an opinion that the collection 2001–06–02 to extend the compliance activity is authorized by State law and SUMMARY: This action withdraws a time of the follow-on inspection to the otherwise complies with the provisions notice of proposed rulemaking (NPRM) terminating action. Accordingly, the of section 1(a) of Public Law 108–470; that proposed revision of an existing airworthiness directive (AD). The proposed rule is hereby withdrawn. (3) The agreement described in existing AD applies to certain Withdrawal of this NPRM constitutes paragraph (c) of this section has been McDonnell Douglas airplanes. That only such action, and does not preclude executed by the appropriate State NPRM would have extended the the agency from issuing another action official and CCC. compliance time for the follow-on in the future, nor does it commit the (c) CCC will enter into an agreement inspection after accomplishment of the agency to any course of action in the with an authorized State official to modification required by the existing future. collect commodity assessments when AD. Since the issuance of the NPRM, the actions set forth in paragraphs (b)(1) the Federal Aviation Administration Regulatory Impact and (2) of this section have been (FAA) has approved an alternative method of compliance for the existing Since this action only withdraws a completed. Such agreement will contain notice of proposed rulemaking, it is the obligations and responsibilities of AD using a new version of the service bulletin that provides an acceptable neither a proposed nor a final rule and the State and CCC. All such agreements therefore is not covered under Executive will include provisions that provide: level of safety. Accordingly, the proposed rule is withdrawn. Order 12866, the Regulatory Flexibility (1) The State will indemnify CCC for FOR FURTHER INFORMATION CONTACT: Jon Act, or DOT Regulatory Policies and any costs incurred in the collection of Mowery, Aerospace Engineer, Airframe Procedures (44 FR 11034, February 26, the assessment including costs incurred Branch, ANM–120L, FAA, Los Angeles 1979). with respect to resolution of disputes Aircraft Certification Office, 3960 List of Subjects in 14 CFR Part 39 arising from the requested collection of Paramount Boulevard, Lakewood, the assessment; California 90712–4137; telephone (562) Air transportation, Aircraft, Aviation (2) A producer may request from the 627–5322; fax (562) 627–5210. safety, Safety. State a refund of the assessment SUPPLEMENTARY INFORMATION: A The Withdrawal collected from the producer’s marketing proposal to amend part 39 of the Federal assistance loan; Aviation Regulations (14 CFR part 39) to Accordingly, the notice of proposed (3) The agreement may be terminated revise an existing airworthiness rulemaking, Docket 2001–NM–152–AD, by either party upon 30 days notice. directive (AD), applicable to certain published in the Federal Register on McDonnell Douglas transport category Signed in Washington, DC, on May 25, January 30, 2003 (68 FR 4727), is airplanes, was published in the Federal withdrawn. 2005. Register as a Notice of Proposed James R. Little, Rulemaking (NPRM) on January 30, Issued in Renton, Washington, on May 27, Executive Vice President, Commodity Credit 2003 (68 FR 4727). The NPRM proposed 2005. Corporation. to revise AD 2001–06–02, amendment Ali Bahrami, [FR Doc. 05–11199 Filed 6–6–05; 8:45 am] 39–12149, to extend the compliance Manager, Transport Airplane Directorate, BILLING CODE 3410–05–P time from ‘‘within 32,000 flight hours’’ Aircraft Certification Service. to ‘‘within 32,000 landings’’ for the [FR Doc. 05–11257 Filed 6–6–05; 8:45 am] follow-on inspection after BILLING CODE 4910–13–P accomplishment of the terminating modification required by AD 2001–06– 02. That action was prompted by data indicating that extending the compliance time for the follow-on inspection would provide an acceptable level of safety.
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DEPARTMENT OF HOMELAND authority (19 U.S.C. 1484) as effected by assembly-line type production SECURITY section 410 of the Trade and operations. Additionally, pursuant to 19 Development Act of 2000 (the ‘‘Act’’), U.S.C. 1484 (i)(2)(A)(i) and (ii), it was Bureau of Customs and Border (Pub. L. 106–200, 114 Stat. 251). proposed that all weekly entry Protection Amendments to 19 U.S.C. 1484 Effected procedures covering estimated removals by the Act of merchandise from a foreign trade DEPARTMENT OF THE TREASURY zone for any consecutive 7-day period, Section 484 of the Tariff Act of 1930, and the associated entry summaries, 19 CFR Part 146 as amended (19 U.S.C. 1484), sets forth would have to be filed exclusively the procedures generally governing the RIN 1505–AB27 entry of imported merchandise for through the Automated Broker Interface customs purposes. with duties, fees and taxes scheduled Expanded Weekly Entry Procedure for for payment through the Automated Foreign Trade Zones Section 410 of the Act amended 19 U.S.C. 1484 by adding a new paragraph Clearinghouse. The proposed AGENCY: Customs and Border Protection, (i) that provided for an expanded rulemaking also provided that the Homeland Security; Treasury. weekly entry procedure for foreign trade estimated weekly entry or release would ACTION: Withdrawal of notice of zones under limited circumstances. be treated as a single entry or release for proposed rulemaking. Specifically, section 1484(i): purposes of assessing merchandise • Expanded the weekly entry system processing fees under 19 U.S.C. SUMMARY: This document withdraws a beyond its previous coverage to allow 58c(a)(9)(A). notice of proposed rulemaking all merchandise (other than published in the Federal Register by merchandise the entry of which is Discussion of Comments Customs and Border Protection (CBP) on prohibited by law or for which the filing July 25, 2002, which proposed to amend Fifty-seven comments were received of an entry summary is required before from Foreign Trade Zone users, the CBP Regulations in accordance with the merchandise is released from operators, municipalities and brokers in the Trade and Development Act of 2000 customs custody) withdrawn from a response to the solicitation of to expand the weekly entry procedures foreign trade zone during any 7-day comments. All were critical of the for foreign trade zones. Public comment period, to be the subject of a single on the proposed rulemaking was estimated entry or release. proposed rule. Most commenters solicited. Commenters uniformly • Provided that merchandise falling objected to the issuance of proposed expressed concern that the proposed within this expanded procedure is regulations because, in their view, the rule limited weekly entry procedures to eligible for treatment as a single legislation was self-implementing and consumption entries, and that estimated entry or release of no regulations were necessary to give amendments to the regulations were merchandise for purposes of the the law effect. The commenters were unnecessary because the law was self- merchandise processing fee that CBP also uniformly critical of the proposed effectuating. After careful consideration, assesses on importers in order to offset rule’s limitation to consumption entries, CBP has decided to withdraw the administrative costs incurred in and expressed the view that the Act was proposed rulemaking pending processing imported merchandise that is intended to permit the use of weekly assessment of a more comprehensive formally entered or released. See 19 entry procedures for other types of regulatory scheme for weekly entry U.S.C. 58c(a)(9)(A). entries (i.e., zone-to-zone transfers, procedures from foreign trade zones. • Authorized the Secretary of the transfer for transportation and DATES: The effective date of this Treasury to require that foreign trade transportation for exportation). withdrawal is June 7, 2005. zone operators or users employ a CBP- FOR FURTHER INFORMATION CONTACT: approved electronic data interchange Withdrawal of Proposal system to file entries and pay applicable William G. Rosoff, Chief, Duty and In view of the comments received, Refund Determination Branch, Office of duties, fees, and taxes with respect to the entries. and following further consideration of Regulations and Rulings, Customs and the matter, CBP has determined to Border Protection, Tel. (202) 572–8807. Proposed Conforming Amendments to withdraw the notice of proposed SUPPLEMENTARY INFORMATION: § 146.63(c) of the CBP Regulations rulemaking that was published in the Background Section 146.63 of the CBP Regulations Federal Register (67 FR 48594) on July (19 CFR 146.63) sets forth the 25, 2002. CBP will continue to assess Prior NPRM procedures applicable to consumption the feasibility of a more comprehensive On July 25, 2002, Customs and Border entries from a foreign trade zone. regulatory scheme for zone removals in Protection (CBP) published a notice of Section 146.63(c) pertains to weekly cooperation with interested members of proposed rulemaking (NPRM) in the consumption entries, and is limited to the public. Federal Register (67 FR 48594) merchandise that is manufactured or proposing changes to part 146 of the otherwise changed in a zone within 24 Robert C. Bonner, CBP Regulations (19 CFR part 146). Part hours of physical transfer from the zone Commissioner, Bureau of Customs and Border 146 pertains to the documentation and for consumption. Protection. recordkeeping requirements governing, In the July 25, 2002, Federal Register Approved: June 2, 2005. among other things, the admission of document, CBP proposed amendments Timothy E. Skud, merchandise into a foreign trade zone, to § 146.63(c) to reflect the terms of Deputy Assistant Secretary of the Treasury. its manipulation, manufacture, storage, newly amended 19 U.S.C. 1484(i). In destruction, or exhibition while in the this regard, it was proposed to amend [FR Doc. 05–11261 Filed 6–6–05; 8:45 am] zone, and its entry or removal from the § 146.63(c) to expand the weekly entry BILLING CODE 4820–02–P zone. The proposed changes were procedures applicable to foreign trade intended to implement amendments to zones to include merchandise involved that part’s underlying statutory in activities other than exclusively
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DEPARTMENT OF HOMELAND Adams, U.S. Coast Guard Sector other similar groups remain committed SECURITY Honolulu at (808) 842–2600. to conducting armed attacks against U.S. SUPPLEMENTARY INFORMATION: interests, including civilian targets Coast Guard within the United States. Accordingly, Request for Comments the President has continued the national 33 CFR Part 165 We encourage you to participate in emergencies he declared following the this rulemaking by submitting attacks (67 FR 58317, September 13, [CGD14–04–116] comments and related material. If you 2002)(continuing national emergency RIN 1625–AA87 (Formerly 1625–AA00) do so, please include your name and with respect to terrorist attacks); (68 FR address, identify the docket number for 55189, September 22, 2003)(continuing Security Zones; Oahu, Maui, HI, and this rulemaking (CGD14–04–116), national emergency with respect to Kauai, HI indicate the specific section of this persons who commit, threaten to document to which each comment commit, or support acts of terrorism). AGENCY: Coast Guard, DHS. applies, and give the reason for each Pursuant to the Magnuson Act, 50 ACTION: Supplemental notice of comment. Please submit all comments U.S.C. 191, et seq., the President also proposed rulemaking. and related material in an unbound has found that the security of the United format, no larger than 81⁄2 by 11 inches, States is and continues to be endangered SUMMARY: The Coast Guard is issuing a suitable for copying. If you would like by the September 11, 2001 attacks (E.O. supplement to our notice of proposed to know that your submission reached 13272, 67 FR 56215, September 3, rulemaking (NPRM) published on May us, please enclose a stamped, self- 2002). National security and intelligence 20, 2004 (69 FR 29114). The NPRM addressed postcard or envelope. We will officials warn that future terrorist underwent further Coast Guard review consider all comments and material attacks are likely. after its comment period that produced received during the comment period. In response to this threat, on April 25, revisions significant enough to merit We may change this proposed rule in 2003, the Coast Guard established this supplement to our original view of them. To provide additional permanent security zones in designated proposal. This supplement is intended notice, we will publicize this waters surrounding the Hawaiian to announce the revisions and reopen supplemental proposal in the Local Islands (68 FR 20344, April 25, 2003). the comment period. Notice to Mariners, available at the These security zones have been in The Coast Guard proposes to make following Web site: http:// operation for more than 2 years. We changes to existing permanent security www.navcen.uscg.gov/1nm/d14. have conducted periodic review of port zones in designated waters adjacent to and harbor security procedures and the islands of Oahu, Maui, Hawaii, and Public Meeting considered the oral feedback that local Kauai, Hawaii. These revised security We do not now plan to hold a public vessel operators gave to Coast Guard zones are necessary to protect meeting. But you may submit a request units enforcing the zones. In response, personnel, vessels, and facilities from for a meeting by writing to Sector the Coast Guard is proposing to acts of sabotage or other subversive acts, Honolulu at the address under continue most of the current security accidents, or other causes of a similar ADDRESSES explaining why one would zones, but to reduce the size and scope nature and will extend from the surface be beneficial. If we determine that one of some of the zones to afford acceptable of the water to the ocean floor. Some of would aid this rulemaking, we would protection to critical assets and the revised security zones would be hold one at a time and place announced maritime infrastructure while continuously activated and enforced at by separate notice in the Federal minimizing the disruption to maritime all times, while others would be Register. commerce and the inconvenience to activated and enforced only during small entities. Regulatory History heightened threat conditions. Entry into This proposed rule would create these Coast Guard security zones while On May 20, 2004, the Coast Guard permanently-existing security zones in they are activated and enforced would published a notice of proposed the waters surrounding the islands of be prohibited unless authorized by the rulemaking (NPRM) entitled ‘‘Security Oahu, Maui, Kauai, and Hawaii. Captain of the Port. Zones: Oahu, Maui, Hawaii and Kauai, Specifically, 13 permanent security zones would affect the following DATES: Comments and related material Hawaii,’’ in the Federal Register (69 FR must reach the Coast Guard on or before 29114). We received five letters locations and facilities: (1) Honolulu August 8, 2005. commenting on the proposed rule. No Harbor, Oahu; (2) Honolulu Harbor public meeting was requested, and none General Anchorages B, C, and D, Oahu; ADDRESSES: You may mail comments was held. The comment period on that (3) Kalihi Channel and Keehi Lagoon, and related material to Commanding proposed rule ended July 19, 2004, but Oahu; (4) Honolulu International Officer, U.S. Coast Guard Sector the comment period has been reopened Airport, North Section, Oahu; (5) Honolulu, Sand Island Access Road, because we are seeking comments on Honolulu International Airport, South Honolulu, Hawaii 96819–4398. Sector this SNPRM. Section, Oahu; (6) Barbers Point Honolulu maintains the public docket Offshore Moorings, Oahu; (7) Barbers for this rulemaking. Comments and Background and Purpose Point Harbor, Oahu; (8) Kahului Harbor, material received from the public, as The terrorist attacks against the Maui; (9) Lahaina, Maui; (10) Hilo well as documents indicated in this United States that occurred on Harbor, Hawaii; (11) Kailua-Kona preamble as being available in the September 11, 2001, have emphasized Harbor, Hawaii; (12) Nawiliwili Harbor, docket, are available for inspection and the need for the United States to Lihue, Kauai; and (13) Port Allen, copying at Coast Guard Sector establish heightened security measures Kauai. When activated and enforced by Honolulu, between 7 a.m. and 3:30 p.m., in order to protect the public, ports and the Captain of the Port or his or her Monday through Friday, except Federal waterways, and the maritime representative, persons and vessels must holidays. transportation system from future acts of not enter these security zones without FOR FURTHER INFORMATION CONTACT: terrorism or other subversive acts. The the express permission of the Captain of Lieutenant (Junior Grade) Quincey terrorist organization Al Qaeda and the Port.
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Discussion of Comments and Changes facilities would preclude the allows us to focus the regulation and In response to our initial proposed simultaneous use of that harbor by any notice paragraphs in the Oahu CFR rule published on May 20, 2004, the other vessel, especially the tugs and section on the three Oahu zones there Coast Guard received five letters. Two barges that frequently transit the area. that are enforced only upon a rise in the letters from the State of Hawaii are in The comment emphasizes that tug and MARSEC level or when the Captain of favor of the rulemaking and contained barge operations are the main ‘‘life line’’ the Port has determined there is a no objections. One letter from a of the outlying islands, and that LCS heightened risk of a transportation maritime association is also in favor traffic is expected to increase, with no security incident. As for wording changes, we inserted with no objections. These three letters increase in facilities, so the security zones around these ships will soon have the word ‘‘activated’’ several times to recognize the need for the security an even greater negative impact on such help discern when certain security zones and reiterate the Coast Guard’s operations. zones would be enforced. It is important reasons for proposing them, raising no Coast Guard Response: The proposed to note, however, that these proposed additional issues. The remaining two security zones would not preclude security zones would be permanently letters raise issues that are discussed simultaneous use of a harbor when an established, and that the word below. LCS is moored at one of the facilities. ‘‘activated’’ is only meant to distinguish A letter from a Hawaii-based oil We acknowledge that the proposed whether the permanently-established company is in favor of the proposed security zones around large cruise ships zone is subject to enforcement. We changes to the security zones, but occasionally may cause inconvenience made numerous similarly non- suggests that the Coast Guard include a to other vessels and operators within the substantive wording changes for this provision allowing such companies to immediate area because they would supplemental NPRM that do not change submit an advance transportation have to get permission before entering the meaning or intent of our initial schedule to the Captain of the Port that those zones. We do not agree, however, proposed rule but hopefully improve would permit fuel barges to conduct that this inconvenience is unreasonable the clarity of the proposed rule in transit and fuel-transfer operations in considering the benefits provided by the response to this letter. port within a large cruise ship (LCS) security zones. Issue 3: The letter suggests removing security zone under normal With their high profile and passenger- the Honolulu International Airport circumstances. The letter also states that carrying capacity, large cruise ships are Security Zone from Category 1 (zones there should be more explicit language attractive targets for acts of sabotage and subject to enforcement at all times) and assuring minimal interruption of terrorism, particularly when they are placing it in Category 2 (zones subject businesses that conduct routine stationary at a pier or mooring. to enforcement only during heightened operations in the commercial harbors Nevertheless, in response to this threat conditions, as provided in this when the Maritime Security (MARSEC) comment, we have considered reducing proposed rule). This area is planned for Level is not elevated. the size of the zones around stationary future ocean recreation expansion and it Coast Guard Response: For these LCSs, but we determined that an should not be continuously and security zones to be effective in effective security zone must be large permanently removed from public use. safeguarding ports, facilities, and enough to allow security personnel to Alignment with the adjacent Keehi vessels from acts of terrorism and identify and respond to potential Lagoon Security Zone (Category 2) sabotage, the Captain of the Port must threats. Moreover, any person affected would preserve public use of the entire have access to accurate and timely by the security zone around a large Keehi Lagoon area for future information regarding current vessel cruise ship may request permission to recreational and commercial traffic in any designated security zone. enter and transit the zone by contacting improvements. Paragraph 165.1407(c)(2) in the the Sector Honolulu Command Center Coast Guard Response: The security proposed rule below specifically via VHF channel 16 (156.8 Mhz) or zone nearest Honolulu International authorizes the public to employ either phone: (808) 842–2600. Operators who Airport in particular must remain a oral or written means to request frequently operate in the vicinity of a Category 1 zone because all major permission to enter and operate within security zone would have the option of airports are possible terrorist targets. a designated security zone. This submitting a written schedule for The Category 1 designation of this area proposed rule does not preclude the advance approval to minimize any is specifically meant to protect the submission of an accurate operating potential disruption. Honolulu International Airport, as well schedule as a means of obtaining Issue 2: The letter comments that the as all the aircraft and people working or permission to enter the security zones language in the NPRM about security transiting the facility. Designating this created by this rule. Any party desiring zones around large cruise ships and area a Category 2 zone would to submit a schedule in writing to the designated enforcement zones is compromise security by removing the Captain of the Port for approval may call confusing, as is much of the other continuous waterside buffer around the the Sector Honolulu Command Center at terminology, and certain paragraphs of airport afforded by the Category 1 (808) 842–2600. Approval of such the proposed rule should be reworded. designation. Those wishing to enter the requests would be at the discretion of Coast Guard Response: We agree and zone, however, would only need to seek the Captain of the Port. have extensively revised both the and obtain prior approval. The Captain The final letter commenting on the wording and organization of our of the Port would not manage security proposed changes to existing security proposed rule. We separated the zones zones solely based on possible future zones is from a maritime association by island and gave each of the four scenarios but rather adjust as and raises three separate issues: islands a separate section in the CFR. appropriate to the current threat Issue 1: The letter comments that, This change allows us to focus the situation so security can be maintained because the port facilities in Hilo, proposed regulation paragraphs on LCS while minimizing disruption to Kahului, and Nawiliwili Harbors are zones for the islands of Maui, Kauai, commercial and recreational traffic. essentially within 100 yards of each and Hawaii, because the LCS zones are The comments received affected this other, the security zone around a large proposed for those islands only; none proposal to the extent described above, cruise ship moored at one of those are proposed for Oahu. This change also but we have made additional
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substantive changes to the NPRM regarding flight-plan approval. We have An LCS security zone would be published on May 20, 2004 (69 FR determined that this change is necessary enforced around the LCS itself when it 29114) that necessitated this to limit the communications that pilots enters one of the geographic locations (a supplemental notice. We are now would have to make when transiting the harbor, for example) described in the proposing an additional security zone, zones. proposed rule. Each zone would described in this proposed rule, We have also revised our penalty encompass the waters extending 100 § 165.1407(a)(4)(ii), as Honolulu paragraphs so that they are limited to yards in all directions from each LCS. International Airport, South Section. referencing the statutes (33 U.S.C. 1232 These zones would be created in the This new security zone, encompassing and 50 U.S.C. 192) that provide following locations: Kahului Harbor, Honolulu Harbor anchorages B, C, and violation penalties. This change would Maui, § 165.1408(a)(1); Lahaina, Maui, D, would be a Category 2 zone, subject eliminate the need to amend those § 165.1408(a)(2); Hilo Harbor, Hawaii, to enforcement only in times of raised paragraphs every time the penalty § 165.1409(a)(1); Kailua-Kona, Hawaii, MARSEC levels or other threats. We statutes are amended. § 165.1409(a)(2); Nawiliwili Harbor, have determined there is a need to Other changes from our initial Lihue, Kauai, § 165.1410(a)(1); and Port propose this zone to create an additional proposed rule include the addition of Allen, Kauai, § 165.1410(a)(2). protective buffer around the airport the words ‘‘or hundredths’’ in Security zones in the Honolulu when necessary. § 165.1407(a) to more accurately Harbor Anchorages B, C, and D, The separately-designated Honolulu describe how security-zone coordinates § 165.1407 (a)(2), would be enforced Harbor Anchorages B, C, and D security are expressed, and an update of Sector around any vessel in excess of 300 gross zone would remain the same as in our Honolulu’s contact information to tons anchored within one of those initial proposed rule: Limited to the reflect recent changes. designated anchorage areas. The waters extending 100 yards in all Discussion of Proposed Rule security zones would extend 100 yards directions from vessels over 300 gross in all directions from any such vessel. tons anchored there. The 100-yard Due to national security interests, these proposed security zones are The security zones at Kahului Harbor, security zone around those vessels Maui; Nawiliwili Harbor, Lihue, Kauai; would still be activated and enforced at necessary for the protection of the public, port facilities, and waterways of Port Allen, Kauai; and Hilo Harbor, all times regardless of whether an Hawaii, would be subject to emerging threat has necessitated the the Hawaiian Islands. The security zones would be located in the waters enforcement upon the occurrence of a additional activation and enforcement specific event, namely, the arrival of an of the encompassing Honolulu adjacent to the islands of Oahu, Maui, Hawaii, and Kauai, Hawaii. These zones LCS, as defined in this proposed rule, at International Airport, South Section the harbor. The security zone would security zone proposed for increased would vary in size and shape depending extend 100 yards in all directions from airport protection. on the location and the protective scope the LCS while it is transiting the harbor. The name of the Honolulu of the zone. All zones, however, would International Airport security zone in extend from the surface of the water to When the LCS is anchored, position- our initial proposed rule is changed in the ocean floor. keeping, or moored, the security zone this proposal to Honolulu International The security zones would consist of would remain fixed, extending 100 Airport, North Section, two categories: (1) Those security zones yards in all directions from the vessel. § 165.1407(a)(4)(i), to distinguish it from that are subject to enforcement at all The security zones at Lahaina Harbor, the Honolulu International Airport, times, and (2) those security zones that Maui and Kailua-Kona Harbor, Hawaii, South Section proposal. The Honolulu are subject to enforcement only upon would be subject to enforcement when International Airport, North Section the occurrence of an event specified in an LCS comes within 3 nautical miles security zone would remain a Category this rule. Whenever a security zone is of the harbor and would extend out 100 1 zone, enforced and activated at all subject to enforcement, persons and yards in all directions from the vessel. times, extending only about 800 yards vessels would be prohibited from The 100-yard security zone around each offshore from the airport, the minimal entering them without the express LCS would be activated and enforced distance required for low-level security permission of the Captain of the Port. regardless of whether the cruise ship is conditions. The first category, designated waters underway, moored, position-keeping, or We also propose to eliminate an where security zones are subject to anchored, and would continue in effect unnecessary notification requirement enforcement at all times, would include until such time as the vessel departs the that was in our initial proposed rule. We security zones in Honolulu Harbor, 33 harbor and the 3-mile enforcement area. have determined that the best public CFR 165.1407(a)(1); Honolulu The security zones at Kalihi Channel notification of the presence of an LCS International Airport, North Section, and Keehi Lagoon, Oahu and Barbers security zone is the presence of the LCS § 165.1407(a)(4)(i); and the Barbers Point Harbor, Oahu, would be subject to itself, which would be obvious to Point Offshore Moorings, enforcement only upon the occurrence operators well before they reach the § 165.1407(a)(5) (Tesoro Single Point of one of the following events: 100-yard zone. Therefore, while we may Mooring and the Chevron Conventional 1. Whenever the Maritime Security use other notification methods, like a Buoy Mooring). (MARSEC) level, as defined in 33 CFR broadcast notice to mariners, the The second category, designated part 101, is raised to 2 or higher; or, requirement to make such other waters where the security zones are 2. Whenever the Captain of the Port, notification is not in this proposal. subject to enforcement only upon the after considering all available facts, Additionally, in the paragraphs of our occurrence of a specific event, would determines that there is a heightened proposed rule that address permission consist of the security zones located at risk of a transportation security incident to transit a security zone, we have now Kalihi Channel and Keehi Lagoon, or other serious maritime incident, included language that eliminates the Oahu, § 165.1407(a)(3); Honolulu including but not limited to any need for seaplane operators to get Coast International Airport, South Section, incident that may cause loss of life, Guard permission while they are in § 165.1407(a)(4)(ii); Barbers Point environmental damage, transportation compliance with established Federal Harbor, Oahu, § 165.1407(a)(6); and the system disruption, or economic Aviation Administration regulations large cruise ship (LCS) security zones. disruption in a particular area.
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For the security zones at Kalihi does not require an assessment of Paperwork Reduction Act of 1995 (44 Channel and Keehi Lagoon, Oahu and potential costs and benefits under U.S.C. 3501–3520). Barbers Point Harbor, Oahu, the Captain section 6(a)(3) of that Order. The Office Federalism of the Port would cause notice of either of Management and Budget has not of these two enforcement-triggering reviewed it under that Order. It is not A rule has implications for federalism events to be published in the Federal ‘‘significant’’ under the regulatory under Executive Order 13132, Register. The Captain of the Port would policies and procedures of the Federalism, if it has a substantial direct use actual notice, local notice to Department of Homeland Security. effect on State or local governments and mariners, and broadcast notice to The Coast Guard expects the would either preempt State law or mariners to advise the public when economic impact of this proposed rule impose a substantial direct cost of these security zones are subject to to be so minimal that a full Regulatory compliance on them. We have analyzed enforcement. By the same means, the Evaluation under the regulatory policies this proposed rule under that Order and Captain of the Port would also cause and procedures of DHS is unnecessary. have determined that it does not have notice of suspension of enforcement of This expectation is based on the short implications for federalism. these security zones to be made. duration of most of the zones and the Unfunded Mandates Reform Act The Captain of the Port would also limited geographic area affected by use local notice to mariners and them. The Unfunded Mandates Reform Act broadcast notice to mariners to of 1995 (2 U.S.C. 1531–1538) requires Small Entities announce the enforcement of security Federal agencies to assess the effects of zones around vessels more than 300 Under the Regulatory Flexibility Act their discretionary regulatory actions. In gross tons anchored in Honolulu Harbor (5 U.S.C. 601–612), we have considered particular, the Act addresses actions Anchorages B, C or D. Notice of whether this proposed rule will have a that may result in the expenditure by a enforcement of an LCS security zone significant economic impact on a State, local, or tribal government, in the adjacent to the islands of Maui, Kauai or substantial number of small entities. aggregate, or by the private sector of Hawaii would be provided by the The term ‘‘small entities’’ comprises $100,000,000 or more in any one year. presence of the LCS itself. small businesses, not-for-profit Though this proposed rule will not Entry into the security zones in this organizations that are independently result in such expenditure, we do proposed rule while they are subject to owned and operated and are not discuss the effects of this rule elsewhere enforcement would be prohibited unless dominant in their fields, and in this preamble. authorized by the Coast Guard Captain governmental jurisdictions with of the Port, Honolulu, Hawaii. The Taking of Private Property populations of less than 50,000. Captain of the Port or his or her This proposed rule will not affect a representatives would enforce these The Coast Guard certifies under 5 taking of private property or otherwise security zones. The Captain of the Port U.S.C. 605(b) that this proposed rule have taking implications under may be assisted by other federal or state will not have a significant economic Executive Order 12630, Governmental agencies to the extent permitted by law. impact on a substantial number of small Actions and Interference with For all seaplane traffic entering or entities. While we are aware that many Constitutionally Protected Property transiting the security zones, a affected areas have small commercial Rights. seaplane’s compliance with all Federal entities, including canoe and boating Aviation Administration (FAA) clubs and small commercial businesses Civil Justice Reform regulations regarding flight-plan that provide recreational services, we approval would be deemed adequate anticipate that there will be little or no This proposed rule meets applicable permission to transit the waterway impact to these small entities due to the standards in sections 3(a) and 3(b)(2) of security zones described in this section. narrowly tailored scope of these Executive Order 12988, Civil Justice No communication between the aircraft proposed security zones. Reform, to minimize litigation, eliminate ambiguity, and reduce and the Coast Guard would be necessary Assistance for Small Entities upon compliance with FAA regulations burden. regarding the flight plan. Under section 213(a) of the Small Protection of Children These security zones would be Business Regulatory Enforcement established pursuant to the authority of Fairness Act of 1996 (Pub. L. 104–121), We have analyzed this proposed rule the Magnuson Act, 50 U.S.C. 191, et we want to assist small entities in under Executive Order 13045, seq., and regulations promulgated by the understanding this proposed rule so that Protection of Children from President under Title 33, Part 6 of the they can better evaluate its effects on Environmental Health Risks and Safety Code of Federal Regulations. Vessels or them and participate in the rulemaking. Risks. This proposed rule is not an persons violating this section would be If the rule would affect your small economically significant rule and does subject to the penalties set forth in 33 business, organization, or governmental not create an environmental risk to U.S.C. 1232 and 50 U.S.C. 192. jurisdiction and you have questions health or risk to safety that may In addition to revising security zones, concerning its provisions or options for disproportionately affect children. compliance, please contact Lieutenant this proposed rule also would remove Indian Tribal Governments an existing security zone located at (Junior Grade) Quincey Adams, U.S. General Anchorage A, current 33 CFR Coast Guard Sector Honolulu, at (808) This proposed rule does not have 165.1407(a)(1), in the vicinity of 842–2600. The Coast Guard will not tribal implications under Executive Honolulu Harbor and entrance channel. retaliate against small entities that Order 13175, Consultation and question or complain about this rule or Coordination with Indian Tribal Regulatory Evaluation any policy or action of the Coast Guard. Governments, because it does not have This proposed rule is not a a substantial direct effect on one or Collection of Information ‘‘significant regulatory action’’ under more Indian tribes, on the relationship section 3(f) of Executive Order 12866, This proposed rule calls for no new between the Federal Government and Regulatory Planning and Review, and collection of information under the Indian tribes, or on the distribution of
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power and responsibilities between the For the reasons set out in the International Airport from 21°18.0′ N/ Federal Government and Indian tribes. preamble, the Coast Guard proposes to 157°55.58′ W, thence south to 21°16.5′ amend 33 CFR part 165 as follows: N/157°55.58′ W, thence east to 21°16.5′ Energy Effects N/157°54.0′ W (the extension of the We have analyzed this proposed rule PART 165—REGULATED NAVIGATION western edge of Kalihi Channel), thence under Executive Order 13211, Actions AREAS AND LIMITED ACCESS AREAS north along the western edge of the ° ′ ° ′ Concerning Regulations That 1. The authority citation for part 165 channel to 21 18.0 N/157 53.92 W Significantly Affect Energy Supply, continues to read as follows: (Kalihi Channel buoy ‘‘5’’), thence west Distribution, or Use. We have to 21°18.0′ N/157°55.58′ W. determined that it is not a ‘‘significant Authority: 33 U.S.C. 1226, 1231; 46 U.S. C. (5) Barbers Point Offshore Moorings. energy action’’ under that order because Chapter 701; 50 U.S.C. 191, 195; 33 CFR All waters around the Tesoro Single 1.05–1(g), 6.04–1, 6.04–6, and 160.5; Pub. L. it is not a ‘‘significant regulatory action’’ Point and the Chevron Conventional 107–295, 116 Stat. 2064; Buoy Moorings beginning at 21°16.43′ under Executive Order 12866 and is not Department of Homeland Security likely to have a significant adverse effect N/158°06.03′ W, thence northeast to Delegation No. 0170.1. ° ′ ° ′ on the supply, distribution, or use of 21 17.35 N/158 3.95 W, thence 2. Revise § 165.1407 to read as ° ′ ° ′ energy. The Administrator of the Office southeast to 21 16.47 N/158 03.5 W, follows: ° ′ of Information and Regulatory Affairs thence southwest to 21 15.53 N/ ° ′ has not designated it as a significant § 165.1407 Security Zones; Oahu, HI. 158 05.56 W, thence north to the energy action. Therefore, it does not beginning point. (a) Location. The following areas, (6) Barbers Point Harbor, Oahu. All require a Statement of Energy Effects from the surface of the water to the under Executive Order 13211. waters contained within the Barbers ocean floor, are security zones that are Point Harbor, Oahu, enclosed by a line Technical Standards activated and enforced subject to the drawn between Harbor Entrance provisions in paragraph (c) of this Channel Light 6 and the jetty point day The National Technology Transfer section. All coordinates below are ° ′ ° ′ and Advancement Act (NTTAA) (15 beacon at 21 19.5 N/158 07.26 W. expressed in degrees, minutes, and (b) Definitions. As used in this U.S.C. 272 note) directs agencies to use tenths or hundredths of minutes. section, MARSEC Level 2 or Maritime voluntary consensus standards in their (1) Honolulu Harbor. All waters of Security Level 2 means, as defined in 33 regulatory activities unless the agency Honolulu Harbor and Honolulu CFR 101.105, the level for which provides Congress, through the Office of entrance channel commencing at a line appropriate additional protective Management and Budget, with an between entrance channel buoys no. 1 security measures shall be maintained explanation of why using these and no. 2, to a line between the fixed for a period of time as a result of standards would be inconsistent with day beacons no. 14 and no. 15 west of heightened risk of a transportation applicable law or otherwise impractical. Sand Island Bridge. security incident. Voluntary consensus standards are (2) Honolulu Harbor Anchorages B, C, (c) Regulations. (1) Under 33 CFR technical standards (e.g., specifications and D. All waters extending 100 yards 165.33, entry into the security zones of materials, performance, design, or in all directions from each vessel in described in this section is prohibited operation; test methods; sampling excess of 300 gross tons anchored in unless authorized by the Coast Guard procedures; and related management Honolulu Harbor Anchorage B, C, or D, Captain of the Port, Honolulu or his or systems practices) that are developed or as defined in 33 CFR 110.235(a). her designated representatives. adopted by voluntary consensus (3) Kalihi Channel and Keehi Lagoon, (2) Persons desiring to transit the standards bodies. Oahu. All waters of Kalihi Channel and areas of the security zones may contact This proposed rule does not use Keehi Lagoon beginning at Kalihi the Captain of the Port at Command technical standards. Therefore, we did Channel entrance buoy no. 1 and Center telephone number (808) 842– not consider the use of voluntary continuing along the general trend of 2600 or on VHF channel 16 (156.8 Mhz) consensus standards. Kalihi Channel to day beacon no. 13, to seek permission to transit the area. Environment thence continuing on a bearing of Written requests may be submitted to 332.5°T to shore, thence east and south the Captain of Port, U.S. Coast Guard We have analyzed this proposed rule along the general trend of the shoreline Sector Honolulu, Sand Island Access under Commandant Instruction to day beacon no. 15, thence southeast Road, Honolulu, Hawaii 96819, or faxed M16475.lD, which guides the Coast to day beacon no. 14, thence southeast to (808) 842–2622. If permission is Guard in complying with the National along the general trend of the shoreline granted, all persons and vessels must Environmental Policy Act of 1969 of Sand Island, to the southwest tip of comply with the instructions of the (NEPA) (42 U.S.C. 4321–4370f), and Sand Island at 21°18.0′ N/157°53.05′ W, Captain of the Port or his or her have concluded that there are no factors thence southwest on a bearing of 233°T designated representatives. For all in this case that would limit the use of to Kalihi Channel entrance buoy no. 1. seaplane traffic entering or transiting the a categorical exclusion under section (4) Honolulu International Airport. (i) security zones, a seaplane’s compliance 2.B.2 of the Instruction. Therefore, Honolulu International Airport, North with all Federal Aviation under figure 2–1, paragraph (34)(g) of Section. All waters surrounding Administration regulations regarding the Commandant Instruction Honolulu International Airport from flight-plan approval is deemed adequate M16475.1D, this proposed rule is 21°18.25′ N/157°55.58′ W, thence south permission to transit the waterway categorically excluded from further to 21°18.0′ N/157° 55.58′ W, thence east security zones described in this section. environmental documentation. to the western edge of Kalihi Channel, (d) Enforcement and suspension of thence north along the western edge of enforcement of certain security zones. List of Subjects 33 CFR Part 165 the channel to day beacon no. 13, (1) The security zones in paragraphs Harbors, Marine safety, Navigation thence northwest at a bearing of 332.5°T (a)(3) (Kalihi Channel and Keehi (water), Reports and record keeping to shore. Lagoon, Oahu), (a)(4)(ii) (Honolulu requirements, Security measures, (ii) Honolulu International Airport, International Airport, South Section), Waterways. South Section. All waters near Honolulu and (a)(6) (Barbers Point Harbor, Oahu)
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of this section will be enforced only from each large cruise ship in Kahului regulations regarding flight-plan upon the occurrence of one of the Harbor, Maui, HI or within 3 nautical approval is deemed adequate following events— miles seaward of the Kahului Harbor permission to transit the waterway (i) Whenever the Maritime Security COLREGS DEMARCATION (See 33 CFR security zones described in this section. (MARSEC) level, as defined in 33 CFR 80.1460). This is a moving security zone (d) Enforcement. Any Coast Guard part 101, is raised to 2 or higher; or when the LCS is in transit and becomes commissioned, warrant, or petty officer, (ii) Whenever the Captain of the Port, a fixed zone when the LCS is anchored, and any other Captain of the Port after considering all available facts, position-keeping, or moored. representative permitted by law, may determines that there is a heightened (2) Lahaina, Maui. All waters enforce the rules in this section. risk of a transportation security incident extending 100 yards in all directions (e) Waiver. The Captain of the Port, or other serious maritime incident, from each large cruise ship in Lahaina, Honolulu may waive any of the including but not limited to any Maui, whenever the LCS is within 3 requirements of this section for any incident that may cause a significant nautical miles of Lahaina Light (LLNR vessel or class of vessels upon his or her loss of life, environmental damage, 28460). The security zone around each determination that application of this transportation system disruption, or LCS is activated and enforced whether section is unnecessary or impractical for economic disruption in a particular the cruise ship is underway, moored, the purpose of port and maritime area. position-keeping, or anchored, and will security. (2) A notice will be published in the continue in effect until such time as the (f) Penalties. Vessels or persons Federal Register reporting when events LCS departs Lahaina and the 3-mile violating this section are subject to the in paragraph (d)(1)(i) or (d)(1)(ii) of this enforcement area. penalties set forth in 33 U.S.C. 1232 and section have occurred. (b) Definitions. As used in this 50 U.S.C. 192. (3) The Captain of the Port of section, Large cruise ship or LCS means 4. Add § 165.1409 to read as follows: Honolulu will cause notice of the a passenger vessel over 300 feet in § 165.1409 Security Zones; Hawaii, HI. enforcement of the security zones listed length that carries passengers for hire. in paragraph (d)(1) of this section and (c) Regulations. (1) Under 33 CFR (a) Location. The following areas, notice of suspension of enforcement to 165.33, entry into the security zones from the surface of the water to the be made by appropriate means to affect created by this section is prohibited ocean floor, are security zones that are the widest publicity, including the use unless authorized by the Coast Guard activated and enforced subject to the of broadcast notice to mariners and Captain of the Port, Honolulu or his or provisions in paragraph (c) of this publication in the local notice to her designated representatives. When section: mariners. authorized passage through an LCS (1) Hilo Harbor, Hawaii. All waters (e) Informational notices. The Captain security zone, all vessels must operate at extending 100 yards in all directions of the Port will cause notice of the the minimum speed necessary to from each large cruise ship in Hilo presence of security zones created by maintain a safe course and must Harbor, Hawaii, HI or within 3 nautical paragraph (a)(2) of this section, proceed as directed by the Captain of miles seaward of the Hilo Harbor Honolulu Harbor Anchorages B, C, and the Port or his or her designated COLREGS DEMARCATION (See 33 CFR D, to be made by appropriate means to representatives. No person is allowed 80.1480). This is a moving security zone affect the widest publicity, including within 100 yards of a large cruise ship when the LCS is in transit and becomes the use of broadcast notice to mariners that is underway, moored, position- a fixed zone when the LCS is anchored, and publication in the local notice to keeping, or at anchor, unless authorized position-keeping, or moored. mariners. by the Captain of the Port or his or her (2) Kailua-Kona, Hawaii. All waters (f) Enforcement. Any Coast Guard designated representatives. extending 100 yards in all directions commissioned, warrant, or petty officer, (2) When conditions permit, the from each large cruise ship in Kailua- and any other Captain of the Port Captain of the Port, or his or her Kona, Hawaii, whenever the LCS is representative permitted by law, may designated representatives, may permit within 3 nautical miles of Kukailimoku enforce the rules in this section. vessels that are at anchor, restricted in Point. The 100-yard security zone (g) Waiver. The Captain of the Port, their ability to maneuver, or constrained around each LCS is activated and Honolulu may waive any of the by draft to remain within an LCS enforced whether the LCS is underway, requirements of this section for any security zone in order to ensure moored, position-keeping, or anchored vessel or class of vessels upon his or her navigational safety. and will continue in effect until such determination that application of this (3) Persons desiring to transit the time as the LCS departs Kailua-Kona section is unnecessary or impractical for areas of the security zones in this and the 3-mile enforcement area. the purpose of port and maritime section may contact the Captain of the (b) Definitions. As used in this security. Port at Command Center telephone section, Large cruise ship or LCS means (h) Penalties. Vessels or persons number (808) 842–2600 or on VHF a passenger vessel over 300 feet in violating this section are subject to the channel 16 (156.8 Mhz) to seek length that carries passengers for hire. penalties set forth in 33 U.S.C. 1232 and permission to transit the area. Written (c) Regulations. (1) Under 33 CFR 50 U.S.C. 192. requests may be submitted to the 165.33, entry into the security zones 3. Add § 165.1408 to read as follows: Captain of Port, U.S. Coast Guard Sector created by this section is prohibited Honolulu, Sand Island Access Road, unless authorized by the Coast Guard § 165.1408 Security Zones; Maui, HI. Honolulu, Hawaii 96819, or faxed to Captain of the Port, Honolulu or his or (a) Location. The following areas, (808) 842–2622. If permission is her designated representatives. When from the surface of the water to the granted, all persons and vessels must authorized passage through an LCS ocean floor, are security zones that are comply with the instructions of the security zone, all vessels must operate at activated and enforced subject to the Captain of the Port or his or her the minimum speed necessary to provisions in paragraph (c) of this designated representatives. For all maintain a safe course and must section: seaplane traffic entering or transiting the proceed as directed by the Captain of (1) Kahului Harbor, Maui. All waters security zones, compliance with all the Port or his or her designated extending 100 yards in all directions Federal Aviation Administration representatives. No person is allowed
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within 100 yards of a large cruise ship This is a moving security zone when the representative permitted by law, may that is underway, moored, position- LCS is in transit and becomes a fixed enforce the rules in this section. keeping, or at anchor, unless authorized zone when the LCS is anchored, (e) Waiver. The Captain of the Port, by the Captain of the Port or his or her position-keeping, or moored. Honolulu may waive any of the designated representatives. (2) Port Allen, Kauai. All waters requirements of this section for any (2) When conditions permit, the extending 100 yards in all directions vessel or class of vessels upon his or her Captain of the Port, or his or her from each large cruise ship in Port determination that application of this designated representatives, may permit Allen, Kauai, HI or within 3 nautical section is unnecessary or impractical for vessels that are at anchor, restricted in miles seaward of the Port Allen the purpose of port and maritime their ability to maneuver, or constrained COLREGS DEMARCATION (See 33 CFR security. by draft to remain within an LCS 80.1440). This is a moving security zone (f) Penalties. Vessels or persons security zone in order to ensure when the LCS is in transit and becomes violating this section are subject to the navigational safety. a fixed zone when the LCS is anchored, penalties set forth in 33 U.S.C. 1232 and (3) Persons desiring to transit the position-keeping, or moored. 50 U.S.C. 192. (b) Definitions. As used in this areas of the security zones in this Dated: May 23, 2005. section may contact the Captain of the section, Large cruise ship or LCS means C.D. Wurster, Port at Command Center telephone a passenger vessel over 300 feet in number (808) 842–2600 or on VHF length that carries passengers for hire. Rear Admiral, U.S. Coast Guard, Commander, Fourteenth Coast Guard District. channel 16 (156.8 Mhz) to seek (c) Regulations. (1) Under 33 CFR permission to transit the area. Written 165.33, entry into the security zones [FR Doc. 05–11168 Filed 6–6–05; 8:45 am] requests may be submitted to the created by this section is prohibited BILLING CODE 4910–15–P Captain of Port, U.S. Coast Guard Sector unless authorized by the Coast Guard Honolulu, Sand Island Access Road, Captain of the Port, Honolulu or his or Honolulu, Hawaii 96819, or faxed to her designated representatives. When DEPARTMENT OF HEALTH AND (808) 842–2622. If permission is authorized passage through an LCS HUMAN SERVICES granted, all persons and vessels must security zone, all vessels must operate at Health Resources and Services comply with the instructions of the the minimum speed necessary to Administration Captain of the Port or his or her maintain a safe course and must designated representatives. For all proceed as directed by the Captain of 42 CFR Part 50 seaplane traffic entering or transiting the the Port or his or her designated security zones, compliance with all representatives. No person is allowed RIN 0906–AA69 Federal Aviation Administration within 100 yards of a large cruise ship regulations regarding flight-plan that is underway, moored, position- Simplification of the Grant Appeals approval is deemed adequate keeping, or at anchor, unless authorized Process permission to transit the waterway by the Captain of the Port or his or her designated representatives. AGENCY: Health Resources and Services security zones described in this section. Administration, HHS. (d) Enforcement. Any Coast Guard (2) When conditions permit, the ACTION: commissioned, warrant, or petty officer, Captain of the Port, or his or her Notice of proposed rulemaking. designated representatives, may permit and any other Captain of the Port SUMMARY: Pursuant to 42 CFR part 50, representative permitted by law, may vessels that are at anchor, restricted in their ability to maneuver, or constrained subpart D, the Health Resources and enforce the rules in this section. Services Administration (HRSA), (e) Waiver. The Captain of the Port, by draft to remain within an LCS security zone in order to ensure Department of Health and Human Honolulu may waive any of the Services (HHS), has provided an requirements of this section for any navigational safety. (3) Persons desiring to transit the informal level of appeal on those grant vessel or class of vessels upon his or her related disputes subject to the determination that application of this areas of the security zones may contact the Captain of the Port at Command departmental appeal procedures section is unnecessary or impractical for codified at 45 CFR Part 16. HHS is the purpose of port and maritime Center telephone number (808) 842– 2600 or on VHF channel 16 (156.8 Mhz) proposing to amend 42 CFR part 50, security. subpart D, to remove HRSA from the list (f) Penalties. Vessels or persons to seek permission to transit the area. Written requests may be submitted to of agencies to which these informal violating this section are subject to the appeal procedures apply. This would penalties set forth in 33 U.S.C. 1232 and the Captain of Port, U.S. Coast Guard Sector Honolulu, Sand Island Access permit aggrieved HRSA grantees direct 50 U.S.C. 192. access to the Departmental Grant 5. Add § 165.1410 to read as follows: Road, Honolulu, Hawaii 96819, or faxed to (808) 842–2622. If permission is Appeals Board and that Board’s original § 165.1410 Security Zones; Kauai, HI. granted, all persons and vessels must jurisdiction. (a) Location. The following areas, comply with the instructions of the DATES: Written comments must be from the surface of the water to the Captain of the Port or his or her received on or before August 8, 2005. ocean floor, are security zones that are designated representatives. For all ADDRESSES: You may submit comments, activated and enforced subject to the seaplane traffic entering or transiting the identified by RIN number 0906–AA69, provisions in paragraph (c) of this security zones, compliance with all by any of the following methods: section: Federal Aviation Administration 1. Federal eRulemaking Portal: (1) Nawiliwili Harbor, Lihue, Kauai. regulations regarding flight-plan http://www.regulations.gov. Follow the All waters extending 100 yards in all approval is deemed adequate instructions for submitting comments. directions from each large cruise ship in permission to transit the waterway 2. Submit written comments by mail Nawiliwili Harbor, Kauai, HI or within security zones described in this section. to the attention of Gail Lipton, Director, 3 nautical miles seaward of the (d) Enforcement. Any Coast Guard Division of Grants Policy, Room 11A– Nawiliwili Harbor COLREGS commissioned, warrant, or petty officer, 55, Parklawn Bldg., 5600 Fishers Lane, DEMARCATION (See 33 CFR 80.1450). and any other Captain of the Port Rockville, MD 20857.
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3. E-mail: [email protected]. Executive Order 12866 that this rule may have such 4. FAX: 301–443–5461. Executive Order (EO) 12866 directs implications, we solicit comment from agencies to assess all costs and benefits State and local government officials. FOR FURTHER INFORMATION CONTACT: Gail of available regulatory alternatives and, Executive Order 13175 Lipton, 301–443–6509. when rulemaking is necessary, to select Executive Order 13175 requires the SUPPLEMENTARY INFORMATION: regulatory approaches that provide the When Department to develop an accountable greatest net benefits. We have HHS first established its Departmental process to ensure ‘‘meaningful and Grant Appeals Board (now the determined that the rule is not a significant regulatory action under timely input by tribal officials in the Departmental Appeals Board), there was development of regulatory policies that no provision for the Department’s Section 3(f) of the EO and does not require an assessment of the potential have tribal implications.’’ Although it is subordinate agencies to first review the not clear that the proposed rule will disputed actions of officials prior to costs and benefits under section 6(a)(3) of that EO. Under the EO, the Office of have tribal implications, we solicit appeal at the Departmental level. comment on this proposed rule from However, it quickly became apparent Management and Budget (OMB) has exempted it from review. This tribal officials. that a number of disputes could, and regulation was reviewed by OMB. would, be resolved quickly by informal Paperwork Reduction Act means if the grantees’ complaints were Regulatory Flexibility There are no new paperwork surfaced to management levels within The Regulatory Flexibility Act (5 requirements subject to OMB approval the HHS subordinate agencies. As a U.S.C. Chapter 6) requires that under the Paperwork Reduction Act of result, the regulations at 45 CFR part 16 regulatory actions be analyzed to 1995. were revised to permit subordinate determine whether they will have a List of Subjects in 42 CFR Part 50 agencies to interpose an ‘‘informal’’ significant impact on a substantial Administrative practice and level of appeal prior to submission of an number of small entities. We have procedure, Grant programs—health, appeal to the Departmental Appeals determined that this is not a ‘‘major’’ Health care. Board. Various agencies in the Public role under this Act and therefore does Health Service (which has since been not require a regulatory flexibility Elizabeth M. Duke, reorganized) chose to institute an analysis. The elimination of the Administrator, Health Resources and Services intermediate informal review process as informal appeals process will represent Administration. is currently described in 42 CFR part 50, a cost savings for aggrieved HRSA Approved: May 27, 2005. subpart D. The intermediate level of grantees regardless of whether the Michael O. Leavitt, appeal provided these agencies with an organizations are large or small entities, Secretary of Health and Human Services. opportunity to relatively quickly and as the affected grantees will now have direct access to the Departmental For the reasons set forth in the economically reverse erroneous preamble, the Department proposes to decisions, or to reassure grantees that a Appeals Board to petition for reconsideration of adverse findings amend subpart D of part 50 of Title 42 decision adverse to them was indeed an rather than first presenting their cases to of the Code of Federal Regulations as ‘‘agency’’ decision. At the time these an informally constituted HRSA review follows: regulations were instituted, this committee. As a result, aggrieved PART 50—[AMENDED] informal process was of significant grantees will only incur costs related to benefit to both grantees and the the preparation and presentation of their subordinate agencies. Based on the Subpart D—Public Health Service petitions to the Departmental Appeals Grant Appeals Procedure lessons learned from this process and Board, and not the costs which might be other means, HRSA instituted a policy incurred for preparation and submission 1. The authority citation for Part 50, of reviewing carefully the adverse to both an ad-hoc committee and the Subpart D, continues to read as follows: determinations of their employees prior Departmental Appeals Board. Authority: Sec. 215, Public Health Service to permitting them to be issued so as to Unfunded Mandates Act, 58 Stat. 690 (42 U.S.C. 216); 45 CFR avoid erroneous determinations which 16.3(c). would be subject to reversal upon The Unfunded Mandates Reform Act 2. Section 50.402 is revised to read as appeal at the informal level. HRSA requires that agencies prepare an follows: believes that it has reached the point assessment of anticipated costs and where the adverse determinations being benefits before developing any rule that § 50.402 To what programs do these issued in recent years generally may result in an expenditure by States, regulations apply? represent the Agency’s best judgment. local or tribal governments, or by the This subpart applies to all grant and private sector of $100 million or more HHS therefore believes that, for HRSA cooperative agreement programs, except in any given year. This rule does not and its grantees, this information block grants, which are administered by have cost implications for the economy the National Institutes of Health. The process is no longer of benefit, and the of $100 million or more, nor otherwise cost in time and expense to the grantee Centers for Disease Control and meet the criteria for a major rule under Prevention, the Agency for Toxic is no longer warranted. Consequently, Executive Order 12291, and therefore HHS is proposing to amend 42 CFR part Substances and Disease Registry; the does not require a regulation impact Food and Drug Administration; and the 50, subpart D, to remove HRSA from the analysis. list of agencies to which the regulations Office of the Assistant Secretary for apply. As a result, under this proposal, Executive Order 13132 Public Health and Sciences. For purposes of this regulation, these grantees wishing to appeal HRSA’s Executive Order 13132 requires that entities are hereinafter referred to as eligible adverse determinations would Federal agencies consult with State and ‘‘agencies.’’ be entitled to appeal such local government officials in the determinations directly to the development of regulatory policies with [FR Doc. 05–11262 Filed 6–6–05; 8:45 am] Departmental Appeals Board. federalism implications. In the event BILLING CODE 4165–15–M
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Notices Federal Register Vol. 70, No. 108
Tuesday, June 7, 2005
This section of the FEDERAL REGISTER ADDRESSES: You may submit comments approved by the Secretary of contains documents other than rules or by any of the following methods: Agriculture. proposed rules that are applicable to the Mail: Planning and Accountability, Need for the Information: The public. Notices of hearings and investigations, Office of the Administrator; CSREES– Agricultural Research, Extension, and committee meetings, agency decisions and USDA; Mail Stop 2214; 1400 Education Reform Act of 1998 rulings, delegations of authority, filing of petitions and applications and agency Independence Avenue, SW.; (AREERA), Public Law 105–185, statements of organization and functions are Washington, DC 20250–2214. amended the Hatch Act of 1887, Smith- examples of documents appearing in this Hand Delivery: Planning and Lever Act, and sections 1444 and 1445 section. Accountability, Office of the of NARETPA to require plans of work to Administrator; CSREES–USDA; Room be received and approved by CSREES 1314; 800 9th Street, SW.; Washington, prior to the distribution of funding DEPARTMENT OF AGRICULTURE DC 20024. authorized under these Acts. This Email: [email protected]. collection of information will satisfy the Cooperative State Research, Fax: 202–720–4730 to the attention of plan-of-work reporting requirements as Education, and Extension Service Bart Hewitt. imposed by these Acts. This collection Proposed Revised Guidelines for State FOR FURTHER INFORMATION CONTACT: Mr. of information includes three parts: (1) Plans of Work for the Agricultural Bart Hewitt; Program Analyst, Planning The submission of a 5-Year Plan of Research and Extension Formula and Accountability, Office of the Work; (2) the submission of an annual Funds Administrator; CSREES–USDA; update of the 5-Year Plan of Work, and Washington, DC 20250; at 202–720– (3) the submission of the Annual Report AGENCY: Cooperative State Research, 5623, 202–720–7714 (fax) or via of Accomplishments and Results for the Education, and Extension Service, electronic mail at 5-Year Plan of Work. USDA. [email protected]. 1. The first two collections of ACTION: Notice and request for comment. SUPPLEMENTARY INFORMATION: information are required in order to satisfy the above amendments to the Paperwork Reduction Act Acts that authorize the distribution of SUMMARY: The Cooperative State agricultural research and extension Research, Education, and Extension In accordance with the Office of formula funds to States and eligible Service (CSREES) is requesting public Management and Budget (OMB) institutions. In addition to a description comment on the proposed revised regulations (5 CFR part 1320) that of planned programs, the 5-Year Plan of Guidelines for State Plans of Work for implement the Paperwork Reduction Work must include information on how the Agricultural Research and Extension Act of 1995 (44 U.S.C. chapter 35), the critical short-term, intermediate, and Formula Funds [64 FR 19242–19248]. information collection and long-term agricultural issues in the State These guidelines prescribe the recordkeeping requirements imposed by will be addressed in research and procedures to be followed by the the implementation of these guidelines extension programs; how the State or eligible institutions receiving Federal have been submitted to OMB as a eligible institution has developed a agricultural research and extension revision of Information Collection No. process to consult users of agricultural formula funds under the Hatch Act of 0524–0036, Reporting Requirements for extension and research in the 1887, as amended (7 U.S.C. 361a et State Plans of Work for Agricultural identification of critical agricultural seq.); sections 3(b)(1) and (c) of the Research and Extension Formula Funds. issues in the State and the development Smith-Lever Act of 1914, as amended (7 These requirements will not become of programs and projects targeting these U.S.C. 343 (b)(1) and (c)); and sections effective prior to OMB approval. The issues (also referred to as stakeholder 1444 and 1445 of the National eligible institutions will be notified input); how the State or eligible Agricultural Research, Extension, and upon this approval. institution has made efforts to identify Teaching Policy Act of 1977, as Title: Reporting Requirements for and collaborate with other universities amended (7 U.S.C. 3221 and 3222). The State Plans of Work for Agricultural and colleges that have a unique capacity recipients of these funds are commonly Research and Extension Formula Funds. Summary: The purpose of this to address the identified agricultural referred to as the 1862 land-grant collection of information is to issues in the State and the extent of institutions and 1890 land-grant implement the requirements of section 7 current and emerging efforts (including institutions, including Tuskegee of the Hatch Act of 1887, as amended (7 the regional and/or multistate efforts) to University and West Virginia State U.S.C. 361g); section 4 of the Smith- work with these institutions; the University. CSREES also is requesting Lever Act, as amended (7 U.S.C. 343); manner in which research and public comment on the revision of a and section 1444(d) and section 1445(c) extension, including research and previously approved information of the National Agricultural Research, extension activities funded other than collection (OMB No. 0524–0036) Extension, and Teaching Policy Act of through formula funds, will cooperate to associated with these guidelines. 1977 (NARETPA), as amended (7 U.S.C. address the critical issues in the State, DATES: Written comments are invited 3221(d) and 3222(c)), which require that including activities to be carried out from interested individuals and before funds may be provided to a State separately, sequentially, or jointly; and organizations. To be considered in the or eligible institution under these Acts for extension, the education and formulation of the guidelines, comments a plan of work must be submitted by the outreach programs already underway to must be received on or before July 7, proper officials of the State or eligible convey available research results that 2005. institution, as appropriate, and are pertinent to a critical agricultural
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issue, including efforts to encourage education objectives through multi- respondents, CSREES proposes to multicounty cooperation in the institutional and multifunctional provide a web-based input system for dissemination of research information. approaches and by conducting research the 5-Year Plan of Work and subsequent Section 103(e) of AREERA (7 U.S.C. at facilities and institutions best Annual Report of Accomplishments and 7613(e)) also required, effective October equipped to achieve these objectives. Results. 1, 1999, that a merit review process be CSREES is proposing to request the 5- The total reporting and recordkeeping established at the 1862 land-grant Year Plan of Work, the annual update of requirements for the submission of the institutions and 1890 land-grant the 5-Year Plan of Work, and the 5-Year Plan of Work is estimated at 560 institutions in order to obtain Annual Report of Accomplishments and hours per response. agricultural research and extension Results for the 5-Year Plan of Work in Estimated Number of Respondents: formula funds. The 5-Year Plan of Work a web-based electronic format to comply 75. includes a section for the description of with the Government Paperwork Estimated Number of Responses: 150. the merit review process to ensure that Elimination Act (GPEA). CSREES also is Estimated Total Annual Burden on such a process is in place prior to the proposing to incorporate the Respondents: 84,000 hours. distribution of agricultural research and recommendations from the USDA Office Frequency of Responses: Once every extension formula funds. of Inspector General (OIG) Audit No. five years. Sections 104 and 105 of AREERA also 13001–3–Te, CSREES Implementation The total reporting and recordkeeping amended the Hatch Act and Smith- of the Agricultural Research, Extension, requirement for the Annual Update to Lever Act to require that a specified and Education Reform Act of 1998 the 5-Year Plan of Work is estimated at amount of the agricultural research and (AREERA) in the plan-of-work process. 56 hours per response. extension formula funds be expended Currently, in the FY 2000–2004 Plan of Estimated Number of Respondents: for multistate activities and that a Work and Annual Report of 75. description of these activities be Accomplishments and Results and the Estimated Number of Responses: 150. reported in the plan of work. Section FY 2005–2006 Plan of Work Update and Estimated Total Annual Burden on 204 of AREERA further amended the Annual Report of Accomplishments and Respondents: 8,400 hours. Hatch Act and Smith-Lever Act to Results, institutions are submitting their Frequency of Responses: Annually. require that a specified amount of the reports via e-mail in WordPerfect file The total annual reporting and agricultural research and extension format, Microsoft Word file format, or recordkeeping requirements for the formula funds be expended for activities ASCII file format. CSREES also is in the ‘‘Annual Report of Accomplishments that integrate cooperative research and process of developing a ‘‘One-Solution’’ and Results’’ is estimated at 288 hours extension and that a description of these for reporting for all CSREES grant per response. activities be included in the plan of programs including those covered in the Estimated Number of Respondents: work. Two components of the 5-Year 5-Year Plan of Work. A ‘‘One-Solution’’ 75. Plan of Work submission have been integrated reporting system will be more Estimated Number of Responses: 150. included to meet these additional streamlined and effective, eliminate Estimated Total Annual Burden on requirements. duplicative reporting, and provide Respondents: 43,200 hours. 2. The second collection of additional program and fiscal Frequency of Responses: Annually. information will be an annual update to accountability while reducing the Comments: Comments are invited on: the 5-Year Plan of Work. This will be overall burden hours for reporting. The (a) Whether the proposed collection of required to add an additional year to the web-based system developed for the information is necessary for the proper continuous 5-Year Plan of Work and plan of work process will be made part performance of the functions of the add any substantive change to planned of the ‘‘One Solution’’ product at the Agency, including whether the programs or a significant change in appropriate time. Moreover, currently, information will have practical utility; funding as outlined in the proposed in the FY 2000–2004 Plan of Work and (b) the accuracy of the Agency’s guidelines. Annual Report of Accomplishments and estimate of the burden of the proposed 3. The third collection of information Results and the FY 2005–2006 Plan of collection of information including the will be the Annual Report of Work Update and Annual Report of validity of the methodology and Accomplishments and Results. This will Accomplishments and Results, assumptions used; (c) ways to enhance be based on the 5-Year Plan of Work, institutions are submitting their reports the quality, utility, and clarity of the and will assist CSREES in ensuring that around the five original USDA information to be collected; and (d) federally supported and conducted Government Performance and Results ways to minimize the burden of research and extension activities are Act (GPRA) goals established for FY collection of information on those who accomplished in accordance with the 2000. CSREES is proposing that are to respond, including the use of management principles set forth under institutions submit their reports around appropriate automated, electronic, section 102(d) of AREERA (7 U.S.C. established Knowledge Areas and the mechanical, or other technological 7612(d)). These principles require that Logic Model. collection techniques or other forms of to the maximum extent possible, Respondents: Respondents will be the information technology. Comments may CSREES shall ensure that federally 57 1862 land-grant institutions and the be sent to: CSREES–USDA; Planning supported research and extension 18 1890 land-grant institutions, and Accountability, Office of the activities are accomplished in a manner including Tuskegee University and West Administrator; Mail Stop 2214; 1400 that integrates agricultural research, Virginia State University, who will Independence Avenue, SW., extension, and education functions to provide a 5-Year Plan of Work; and will Washington, DC 20250–2214 by August better link research to technology report on the accomplishments and 11, 2005 or to the Desk Officer for transfer and information dissemination results of this plan of work annually to Agriculture, Office of Information and activities; encourages regional and CSREES. Regulatory Affairs, Office of multistate programs to address relevant Estimate of Burden: The amendments Management and Budget, Washington, issues of common concern and to better to AREERA require a plan of work for DC 20502. Reference should be made to leverage scarce resources; and achieves funds that are distributed on an annual the volume, page, and date of this agricultural research, extension, and basis. To reduce the burden on Federal Register publication.
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Background and Purpose 5. Definitions Columbia receives extension funds B. Components of the 5-Year Plan of Work under the District of Columbia The Cooperative State Research, 1. Planned Programs Education, and Extension Service Postsecondary Education a. Format Reorganization Act, Public Law 93–471, (CSREES) proposes to implement the b. Program Logic Model following revised Guidelines for State c. Program Descriptions as opposed to the Smith-Lever Act, Plans of Work for the Agricultural 2. Stakeholder Input Process CSREES has determined that it should Research and Extension Formula Funds 3. Program Review Process be subject to the plan of work which implement the plan-of-work a. Merit Review requirements imposed under these reporting requirements enacted in the b. Scientific Peer Review guidelines except where expressly Agricultural Research, Extension, and c. Reporting Requirement excluded. 4. Multistate Research and Extension Education Reform Act of 1998 All the requirements of AREERA with Activities regard to agricultural research and (AREERA), Public Law 105–185. a. Hatch Multistate Research These proposed guidelines extension formula funds were b. Smith-Lever Multistate Extension considered and were incorporated in incorporate some of the c. Reporting Requirement recommendations from the USDA Office 5. Integrated Research and Extension these plan of work guidelines including of Inspector General (OIG) Audit Report Activities descriptions of the following: (1) The No. 13001–3–Te, CSREES C. Five-Year Plan of Work Evaluation by critical short-term, intermediate, and Implementation of the Agricultural CSREES long-term agricultural issues in the State Research, Extension, and Education 1. Schedule and the current and planned research 2. Review Criteria Reform Act of 1998 (AREERA), which and extension programs and projects 3. Evaluation of Multistate and Integrated targeted to address the issues; (2) the was published on August 16, 2004. In Research and Extension Activities an earlier Federal Register notice [69 FR process established to consult with III. Annual Update of the 5-Year Plan of stakeholders regarding the identification 6244–6248], CSREES amended the Work guidelines to the State Plans of Work to A. Applicability of critical agricultural issues in the State allow for the submission of an interim B. Reporting Requirement and the development of research and FY 2005–2006 Plan of Work in order for IV. Annual Report of Accomplishments and extension projects and programs CSREES to consider the audit Results targeted to address the issues; (3) the recommendations as well as develop a A. Reporting Requirement efforts made to identify and collaborate B. Format viable electronic option for compliance with other colleges and universities that with the Government Paperwork I. Preface and Authority have a unique capacity to address the identified agricultural issues in the State Elimination Act (GPEA). This notice Sections 202 and 225 of the proposes this electronic option through and the extent of current and emerging Agricultural Research, Extension, and efforts (including regional and a web-based data entry system which Education Reform Act of 1998 will reduce the reporting burden to the multistate efforts) to work with those (AREERA), Public Law 105–185, other institutions; (4) the manner in institutions while providing more enacted amendments requiring all States which research and extension, accountability over agricultural research and 1890 institutions receiving formula including research and extension and extension formula funds. funds authorized under the Hatch Act of These guidelines also propose activities funded other than through 1887, as amended (7 U.S.C. 361a et formula funds, will cooperate to address eliminating the reporting by the five seq.), the Smith-Lever Act, as amended national goals, i.e., the reporting the critical issues in the State, including (7 U.S.C. 341 et seq.), and sections 1444 the activities to be carried out centered around State identified and 1445 of the National Agricultural planned program areas, and using newly separately, sequentially, or jointly; and Research, Extension, and Teaching (5) for extension, the education and established Knowledge Areas (KAs). It is Policy Act of 1977 (NARETPA), as outreach programs already underway to anticipated that these reporting changes amended (7 U.S.C. 3221 and 3222), to convey available research results that will eliminate burden to the institutions prepare and submit to the Cooperative are pertinent to a critical agricultural while providing opportunities for more State Research, Education, and issue, including efforts to encourage effective and efficient reports on Extension Service (CSREES) a plan of multicounty cooperation in the program accountability. work for the use of those funds. Pursuant to the plan of work dissemination of research information. While the requirement for the Hatch These guidelines also take into requirements enacted in the Act and Smith-Lever Act funds applies consideration the requirement in section Agricultural Research, Extension, and to the States, CSREES assumes that in 102(c) of AREERA for the 1862, 1890, Education Reform Act of 1998, the most cases the function will be and 1994 land-grant institutions Cooperative State Research, Education, performed by the 1862 land-grant receiving agricultural research, and Extension Service hereby proposes institution in the States. The only extension, and education formula funds to revise the Guidelines for State Plans ‘‘eligible institutions’’ to receive formula to establish a process for receiving of Work for Agricultural Research and funding under sections 1444 and 1445 stakeholder input on the uses of such Extension Formula Funds as follows: of NARETPA are the 1890 land-grant funds. This stakeholder input Guidelines for State Plans of Work for institutions and Tuskegee University requirement, as it applies to research Agricultural Research and Extension and West Virginia State University. and extension at 1862 and 1890 land- Formula Funds Therefore, these guidelines refer grant institutions, has been incorporated throughout to ‘‘institutions’’ to include as part of the plan of work process. Table of Contents both the 1862 and 1890 land-grant The requirement of section 103(e) of I. Preface and Authority institutions, including Tuskegee AREERA also is addressed in these plan II. Submission of the 5-Year Plan of Work of work guidelines. This section A. General University and West Virginia State 1. Planning Option University. requires that the 1862, 1890, and 1994 2. Periord Covered Further, these guidelines require a land-grant institutions establish a merit 3. Projected Resources plan of work that covers both research review process, prior to October 1, 1999, 4. Submission and Due Date and extension. Although the District of in order to obtain agricultural research,
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extension, and education funds. These sections 3(b) and (c) of the Smith-Lever II. Submission of the 5-Year Plan of were established by all institutions in Act expend for integrated research and Work the FY 2000–2004 5-Year Plan of Work. extension activities in FY 2000 and A. General For purposes of these guidelines thereafter a percentage that is at least applicable to formula funds, a equal to the lesser of 25 percent or twice 1. Planning Option description of the merit review process the percentage of funds expended by the This document provides guidance for must be restated, and if applicable, the institution for integrated research and preparing the plan of work with merit review process must be re- extension activities in FY 1997. These preservation of institutional autonomy established for extension programs sections also required that the and programmatic flexibility within the funded under sections 3(b)(1) and (c) of institutions include in the plan of work Federal-State Partnership. The plan of the Smith-Lever Act and under section a description of the manner in which work is a 5-year prospective plan that 1444 of NARETPA, and for research they will meet these multistate and covers the initial period of FY 2007 programs funded under sections 3(c)(1) integrated requirements. These were through FY 2011, with the submission and (2) of the Hatch Act (commonly included as part of the FY 2000–2004 5- of annual updates to the 5-Year Plan of referred to as Hatch Regular Formula Year Plan of Work and the established Work to add an additional year to the Funds) and under section 1445 of baselines remain in effect for the 5-Year plan each year. The 5-Year Plans of NARETPA. Section 104 of AREERA Plan of Work beginning with FY 2007 Work may be prepared for an amended the Hatch Act of 1887 also to and do not need to be re-established. institution’s individual functions (i.e., stipulate that a scientific peer review research or extension activities), for an These applicable percentages apply to process (that also would satisfy the individual institution (including the requirements of a merit review process the Federal agricultural research and planning of research and extension under section 103(e)) be established for extension formula funds only. Federal activities), or for state-wide activities (a research programs funded under section formula funds that are used by the 5-year research and/or extension plan of 3(c)(3) of the Hatch Act (commonly institution for a fiscal year for integrated work for all the eligible institutions in referred to as Hatch Multistate Research activities may also be counted to satisfy a State). Each 5-Year Plan of Work must Funds). As previously stated, a the multistate activities requirement. reflect the content of the program(s) description of these program review The multistate and integrated research funded by Federal agricultural research processes must be restated, and if and extension requirements do not and extension formula funds and the applicable, these review processes must apply to formula funds received by required matching funds. This 5-Year be re-established in order for the American Samoa, Guam, Micronesia, Plan of Work must describe how the institutions to obtain agricultural Northern Marianas, Puerto Rico, and the program(s) addresses critical short-term, research and extension formula funds. Virgin Islands. Since the Smith-Lever intermediate, and long-term agricultural Consequently, a description of the merit Act is not directly applicable, the issues in a State. review and scientific peer review multistate and integrated extension 2. Period Covered process has been included as a requirements do not apply to extension The initial 5-Year Plan of Work requirement in the submission of the 5- funds received by the District of should cover the period from October 1, Year Plan of Work. Columbia, except to the extent it 2007, through September 30, 2011. These plan of work guidelines also voluntarily complies. require reporting on the multistate and The amendments made by sections 3. Projected Resources integrated research and extension 105 and 204 of AREERA also provide The resources that are allocated for programs. Section 104 of AREERA that the Secretary of Agriculture may various planned programs in the 5-Year amended the Hatch Act of 1887 to reduce the minimum percentage Plan of Work, in terms of human and redesignate the Hatch regional research required to be expended by the fiscal measures, should be included and funds as the Hatch Multistate Research institution for multistate and integrated projected over the next five years. The Fund, specifying that these funds be activities in the case of hardship, baseline for the institution’s or State’s used for cooperative research employing infeasibility, or other similar plan (for five years) should be the multidisciplinary approaches in which circumstance beyond the control of the Federal agricultural research and a State agricultural experiment station, institution. In April 2000, CSREES extension formula funds for FY 2005 working with another State agricultural issued separate guidance on the (and used for all five years) and the experiment station, the Agricultural establishment of the FY 1997 baseline appropriate matching requirement for Research Service, or a college or percentages for multistate activities and each fiscal year. During the course of the university, cooperates to solve the integrated activities, on requests for 5-Year Plan of Work, if the baseline for problems that concern more than one reduction in the required minimum the formula funds changes by more than State. Section 105 of AREERA amended 10 percent in one year or by 20 percent the Smith-Lever Act to require that each percentage, and on reporting requirements. These baselines were set or more cumulatively during the 5-year institution receiving extension formula period, a revised 5-Year Plan of Work funds under sections 3(b) and (c) of the and continue to be the baselines for the Plans of Work and Annual Reports of should be submitted in the annual Smith-Lever Act expend for multistate update the following fiscal year. activities in FY 2000 and thereafter a Accomplishments and Results. percentage that is at least equal to the Also included in these guidelines are 4. Submission and Due Date lesser of 25 percent or twice the instructions on how to report on the The 5-Year Plan of Work must be percentage of funds expended by the annual accomplishments and results of submitted by April 1, 2006, to the institution for multistate activities in FY the planned programs contained in the Planning and Accountability Unit, 1997. Section 204 of AREERA amended 5-Year Plan of Work, information on the Office of the Administrator, of the both the Hatch and Smith-Lever Acts to evaluation of accomplishments and Cooperative State Research, Education, require that each institution receiving results, and information on when and and Extension Service (CSREES); U.S. agricultural research and extension how to update the 5-Year Plan of Work Department of Agriculture. These will formula funds under the Hatch Act and if necessary. be submitted electronically via a web-
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based data input system for the Plan of extension programs in which principal posited to reach the people who are Work and Annual Report of investigators or other collaborators from targeted as participants or the audience Accomplishments and Results provided two or more disciplines or fields of or beneficiaries of the program. by CSREES. specialization work together to 6. Outcomes: The planned results or accomplish specified objectives. changes for individuals, groups, 5. Definitions Outcome indicator means an communities, organizations, For the purpose of implementing the assessment of the results of a program communities, or systems. These include Guidelines for State Plans of Work for activity compared to its intended short term, medium term, and long term Agricultural Research and Extension purpose. outcomes in the theorized chain of Formula Funds, the following Output indicator means a tabulation, causal events that will lead to the definitions are applicable: calculation, or recording of activity of planned solution of the identified Activities means either research effort expressed in quantitative or national problems or meet national projects or extension programs. qualitative manner which measures the needs. These can be viewed as the Agricultural issues means all issues products or services produced by the public’s return on its investment, i.e., for which research and extension are planned program. the value-added to society in the involved, including, but not exclusive Planned programs means collections benefits it reaps from the program. of, agriculture, natural resources, of research projects or activities and/or Program review means either a merit nutrition, community and resource extension programs or activities. review or a scientific peer review. development, and social issues such as Program Logic Model means the Scientific peer review means an youth development, etc. conceptual tool for planning and evaluation performed by experts with Formula funds for the purposes of the evaluation which displays the sequence scientific knowledge and technical plan of work guidelines means funding of actions that describe what the skills to conduct the proposed work provided by formula to 1862 land-grant science-based program is and will do ‘‘ whereby the technical quality and institutions under section 3 of the Hatch how investments link to results. relevance to program goals are assessed. Act of 1887, as amended (7 U.S.C. 361a) Included in this depiction of the Seek stakeholder input means an and sections 3(b)(1) and (c) of the program action are six core components: open, fair, and accessible process by Smith-Lever Act, as amended (7 U.S.C. 1. Identification of the national which individuals, groups, and 343(b)(1) and (c)) and to the 1890 land- problem, need, or situation that needs to organizations may have a voice, and one grant institutions under sections 1444 be addressed by the program: The that treats all with dignity and respect. and 1445 of the National Agricultural conceptual model will delineate the Stakeholder is any person who has Research, Extension, and Teaching steps that are planned, based on past the opportunity to use or conduct Policy Act of 1977, as amended (7 science and best theory, to achieve agricultural research, extension, and U.S.C. 3221 and 3222). outcomes that will best solve the education activities in the State. Formula funds for the purposes of identified national problems and meet Under-served means individuals, stakeholder input means the funding by the identified needs. groups, and/or organizations whose formula to the 1862 land-grant 2. Assumptions: The beliefs we have needs have not been addressed in past institutions and 1890 land-grant about the program, the people involved, programs. institutions covered by these plan of and the context and the way we think Under-represented means individuals, work guidelines as well as the formula the program will work. These science- groups, and/or organizations especially funds provided under the McIntire- based assumptions are based on past those who may not have participated Stennis Cooperative Forestry Research evaluation science findings regarding fully including, but not limited to, Program (16 U.S.C. 582, et seq.), the the effects and functioning of the women, racial and ethnic minorities, Animal Health and Disease Research program or similar programs, program persons with disabilities, limited Program (7 U.S.C. 3195), and the theory, stakeholder input, etc. resource clients, and small farm owners 3. External Factors: The environment education payments made to the 1994 and operators. land-grant institutions under section in which the program exists includes a 534(a) of Public Law 103–382 (7 U.S.C. variety of external factors that interact B. Components of the 5-Year Plan of 301 note). with and influence the program action. Work Evaluation plans for the program should Integrated or joint activities means 1. Planned Programs jointly planned, funded, and interwoven account for these factors, which are activities between research and alternative explanations for the Beginning with the FY 2007–2011 5- extension to solve problems. This outcomes of the program other than the Year Plan of Work, the Planned includes the generation of knowledge program itself. Strong causal Programs will no longer be arranged and the transfer of information and conclusions about the efficacy of the around the five National Goals technology. program must eliminate these established for the FY 2000–2004 5-Year Merit review means an evaluation environmental factors as viable Plan of Work, nor will they be identified whereby the quality and relevance to explanations for the observed outcomes by the previously established Key program goals are assessed. of the program. Themes. Planned programs will be Multi-institutional means two or more 4. Inputs: The resources, centered around State-identified institutions within the same or different contributions, and investments that are planned program areas and CSREES States or territories that will collaborate provided for the program. This includes newly established Knowledge Areas in the planning and implementation of Federal, State, and local spending, (KAs). programs. private donations, volunteer time, etc. a. Format. As mentioned under the Multistate means collaborative efforts 5. Outputs: The activities, services, Planning Options section, an institution that reflect the programs of institutions events, and products that are intended or State may opt to submit independent located in at least two or more States or to lead to the program’s outcomes in plans for the various units (e.g., 1862 territories. solving national problems by the causal research) or an integrated plan which Multi-disciplinary means efforts that chain of events depicted in the logic includes all units in the institution or represent research, education, and/or model. These activities and products are State.
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b. Program Logic Model. Regardless of Plan of Work should address the synonymous with the long-term the option chosen, the 5-Year Plan of institution’s commitment to facilitating outcome of your goal. It is at the farthest Work should be reported in the equality of service and ease of access to right on the logic model graphic. Impact appropriate format, each of which all research and extension programs and refers to the ultimate, long-term changes identifies planned programs that the services and to meeting the needs of in social, economic, civic, or State decides upon. Each Planned under-served and under-represented environmental conditions. In common Program the State decides upon will be individuals, groups, and/or usage impact and outcomes are often formatted around the Program Logic organizations. used interchangeably. Model in this web-based Plan of Work c. Describe education and outreach The Web-based software will include data entry system. This is a nationally programs that are already underway to standard performance measures, such as recognized method and used convey the research results that are number of persons adopting a extensively by planning and evaluation pertinent to the critical agricultural technology or practice or dollars saved specialists to display the sequence of issue identified in the ‘‘Statement of or generated, and will allow for state- actions that describe what the program Issue.’’ This planning component generated target performance measures. is and will do and how investments link applies only to those 5-Year Plans of 8. Assumptions. The beliefs we have to results. It is commonly used by many Work incorporating extension activities about the program, the people involved, State Cooperative Extension Services. of the 1862 and/or 1890 land-grant and the context and the way we think c. Program Descriptions. Program institutions. the program will work. The Web-based descriptions presented for a planned 4. Expected Duration of the Program. data entry system will require a short program will be formatted around the A data check box will ask you to express discussion on the assumptions that Program Logic Model and include the the program duration as short-term (one underlie and influence the program following data entry screens: year or less), intermediate (one to five decisions made. Assumptions are 1. Name of Program. The State- years), or long-term (over five years). principles, beliefs, ideas about the designated title for a State Research 5. Inputs. The resources, problem or situation, the resources and and/or Extension Program. This is in contributions, investments that go into staff, the way the program will operate, contrast to a project title. A research the program. The Web-based software what the program expects to achieve, program may consist of several research will include formula dollars, matching the knowledge base, the external projects. Examples of Programs may dollars, and other funds budgeted, and environment, the internal environment, include, but not be exclusive of: 4-H and estimated FTEs. AREERA requires that the participants and how they learn, Youth, Pest Management, Animal this component may not only include their behavior, motivations, etc. Genomics, Natural Resources, the amount of Federal agricultural 9. External Factors. The environment Economics and Commerce, etc. research and/or extension formula funds in which the program exists includes a 2. Classification of Program. Up to ten and matching funds allocated to this variety of external factors that interact different classification codes and their planned program, but also the manner with and influence the program action. respective percentage of effort may be in which funds, other than formula External factors include the cultural used to classify the knowledge areas funds, will be expended to address the milieu, the climate, economic structure, covered in each State program. critical issues being targeted by this housing patterns, demographic patterns, 3. Situation and Priorities. This planned program. background and experiences of program component should discuss the critical 6. Outputs. The activities, services, participants, media influence, changing agricultural issues within the State that events and products that reach people policies and priorities. These external were identified and are being targeted who participate or who are targeted. factors may have a major influence on by this planned program. This These outputs are intended to lead to the achievement of outcomes. They may component may also reference the specific outcomes. The Web-based data affect a variety of things including stakeholder input which identified the entry system will include standard program implementation, participants critical agricultural issue in the State performance measures such as number and recipients, the speed and degree to and the need for the targeted research of persons targeted (direct and indirect which change occurs, staffing patterns, and/or extension program. contacts), number and type of patents and resources available. A program is a. Identify the internal and external awarded, as well as state-generated affected by and affects these external linkages that include activities target performance measures. factors. identified as integrated, 7. Outcomes. The direct results, multidisciplinary, multi-institutional, benefits, or changes for individuals, 2. Stakeholder Input Process and/or multistate. This component may groups, communities, organizations, or Section 102(c) of AREERA requires also address any efforts made to identify systems. Examples include changes in the 1862 land-grant institutions, 1890 and collaborate with other colleges and knowledge, skill development, changes land-grant institutions, and 1994 land- universities that have a unique capacity in behavior, capacities or decision- grant institutions receiving agricultural to address the identified agricultural making, and policy development. research, extension, and education issues within the State and the extent of Outcomes can be short-term, medium- formula funds from CSREES to establish current and emerging efforts (including term, or long-term achievements. Short- a process for stakeholder input on the regional efforts) to work with those term outcomes refer to changes in uses of such funds. CSREES has institutions. Within this planning learning. Medium-term outcomes refer separately promulgated regulations to component, discussion should be made to changes in action. Long-term implement this stakeholder input regarding the efficiencies achieved outcomes refer to changes in conditions. requirement. This was published on through these internal and external Outcomes may be positive, negative, February 8, 2000, in the Federal linkages both in the use of resources neutral, intended, or unintended. Register (7 CFR Part 3418). and/or in the ability to solve critical Impact in this model refers to the As a component of the 5-Year Plan of agricultural issues. ultimate consequence or effects of the Work, each institution must report on b. Identify the set of stakeholders, program (for example, increased the (a) actions taken to seek stakeholder customers, and/or consumers for which economic security or improved air input that encourages their the program is intended. The 5-Year quality). In this model, impact is participation; (b) a brief statement of the
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process used by the recipient institution cooperative extension programs at the reported in the 5-Year Plan of Work and to identify individuals and groups who 1862 land-grant institutions must have be reported consistently across the units are stakeholders and to collect input expended up to 25 percent of their of the institutions as well as with the 5- from them; and (c) a statement of how formula funds provided under sections Year Plan of Work submitted by collected input was considered. This 3(b)(1) and (c) of the Smith-Lever Act cooperating State(s). Federal formula report will be required annually and for activities in which two or more State funds used by a State for integrated may be submitted with the Annual extension services cooperate to solve activities may also be counted to satisfy Report of Accomplishments and problems that concern more than one the multistate research and the Results. This component will satisfy the State. As required by law, CSREES has multistate extension activity reporting requirements imposed by the worked with each 1862 land-grant requirements. The requirements of this separately promulgated regulations on institution to identify the amount each section apply only to the Federal funds. stakeholder input. institution expended for multistate b. Reporting Requirements. The 5- In the Web-based software, CSREES extension activities for FY 1997. For FY Year Plan of Work should include a will provide check lists with the 2000 and thereafter, cooperative description of the Integrated Research commonly reported actions taken to extension programs must commit two and Extension programs as specified seek stakeholder input, the process used times their FY 1997 baseline percentage above and these programs must be to identify stakeholders and collect or 25 percent, whichever is less, for reported consistently across the units of input from them and how the input was multistate activities. Institutions should an institution as well as with the 5-Year considered, and will allow for describe the contributions of extension Plan of Work of the cooperating State(s) additional information in each section staff and programs toward impacts or State institutions. These descriptions in the form of a narrative. rather than describe the programs. Each should be reported in the Planned participating State or territory must be 3. Program Review Process Programs section of the 5-Year Plan of a collaborator towards objectives and Work. A table will be provided by the a. Merit Review. Effective October 1, involved in the outcomes. Evidence of Web-based software for reporting dollars 1999, each 1862 land-grant institution the proposed collaboration must be expended each year on these activities. and 1890 land-grant institution must provided in the 5-Year Plan of Work have established a process for merit submitted by each State. This planning C. 5-Year Plan of Work Evaluation by review in order to obtain agricultural is documented through formal CSREES research or extension formula funds. agreements, letters of memorandums, 1. Schedule This was established in the FY 2000– contracts, or other instruments that 2004 5-Year Plan of Work by all provide primary evidence that a CSREES will evaluate all 5-Year Plans institutions. multistate relationship exists. of Work. The 5-Year Plans of Work will b. Scientific Peer Review. A scientific c. Reporting Requirements. The 5- either be accepted by CSREES without peer review is required for all research Year Plan of Work should include a change or returned to the institution funded under the Hatch Act Multistate description of the Multistate Research, with clear and detailed Research Fund. For such research, this where applicable, and Multistate recommendations for its modification. scientific peer review will satisfy the Extension programs as specified above The submitting institution(s) will be merit review requirement specified and these programs must be reported notified by CSREES of its determination above. consistently across the units of an within 90 days (review to be completed c. Reporting Requirement. As a institution as well as with the 5-Year in 60 days with communications to the component of the 5-year Plan of Work, Plan of Work of the cooperating State(s) institutions allowing a 30-day response) each institution, depending on the type or State institutions. These descriptions of receipt of the document. Adherence of program review required, will should be reported in the Planned to the Plan of Work schedule by the provide a description of the merit Programs section of the 5-Year Plan of recipient institution is critical to review process or scientific peer review Work. A table will be provided by the assuring the timely allocation of funds process established at their institution. web-based software for reporting dollars by CSREES. Five-Year Plans of Work This description should include the expended each year on these activities. accepted by CSREES will remain in process used in the selection of effect for five years and will be publicly 5. Integrated Research and Extension reviewers with expertise relevant to the available in a CSREES database. Activities effort and appropriate scientific and CSREES will notify all institutions of technical standards. a. Effective October 1, 1999, up to 25 the need for a new 5-Year Plan of Work percent of all funds provided under at least one year prior to the plan’s 4. Multistate Research and Extension section 3 of the Hatch Act and under expiration on September 30. Activities section 3(b)(1) and (c) of the Smith- 2. Review Criteria a. Hatch Multistate Research. Lever Act must have been spent on Effective October 1, 1998, the Hatch activities that integrate cooperative CSREES will evaluate the 5-Year Multistate Research Fund replaced the research and extension. As required by Plans of Work to determine if they Hatch Regional Research Program. The law, CSREES has worked with each address agricultural issues of critical Hatch Multistate Research Fund must be 1862 land-grant institution to establish importance to the State; identify the used for research employing the institution’s baseline for integrated alignment and realignment of programs multidisciplinary approaches to solve research and extension activities for FY to address those critical issues; identify research problems that concern more 1997. For FY 2000 and thereafter, 1862 the involvement of stakeholders in the than one State. For such research, State land-grant institutions must have planning process; give attention to agricultural experiment stations must committed twice the FY 1997 baseline under-served and under-represented partner with another experiment station, percentage or 25 percent, whichever is populations; indicate the level of the Agricultural Research Service, or less, for integrated activities. Integration Federal formula funds in proportion to another college or university. may occur within the State or between all other funds at the director or b. Smith-Lever Multistate Extension. units within two or more States. administrator level; provide evidence of Effective October 1, 1999, the Integrated programming must be multistate, multi-institutional, and
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multidisciplinary and integrated parts. First, institutions should submit environment. As a result of these activities; and identify the expected an annual set of impact statements findings, Lawrence T. Yamamoto, State outcomes and impacts from the linked to sources of funding. Strict Conservationist, has determined that the proposed 5-Year Plan of Work. attention to just the preceding year is preparation and review of an not expected in all situations. Some 3. Evaluation of Multistate and environmental impact statement is impact statements may need to cover needed for this project. Integrated Research and Extension ten or more years of activity. Focus Activities should be given to the benefits received The project concerns alleviating CSREES will use the Annual Reports by targeted end-users. Second, agriculture water shortages and of Accomplishments and Results to institutions should submit annual providing a stable, adequate, and evaluate the success of multistate, results statements based on the affordable supply of agricultural water multi-institutional, and indicators of the outputs and outcomes to farmers and other agricultural multidisciplinary activities and joint for the activities undertaken the producers in the South Kona District of research and extension activities in preceding year in the Program Logic the Island of Hawai‘i. Alternatives addressing critical agricultural issues Model for each program. These should under consideration to reach these identified in the 5-Year Plans of Work. be identified as short-term, objectives include a full build-out CSREES will use the following intermediate, or long-term critical issues alternative involving the installation of evaluation criteria: (1) Did the planned in the 5-Year Plan of Work. Attention twelve wells on private and public program address the critical issues of should be given to highlighting lands that would provide the strategic importance, including those multistate, multi-institutional, and agricultural area of South Kona with 12 identified by the stakeholders? (2) Did multidisciplinary and integrated million gallons of supplemental the planned program address the needs activities, as appropriate to the 5-Year irrigation water per day; a three-well of under-served and under-represented Plan of Work. alternative that would supply 3 million populations of the State(s)? (3) Did the Done at Washington, DC, this 31st day of gallons a day to address near-term planned program describe the expected May 2005. irrigation needs in the project area; a outcomes and impacts? and (4) Did the Joseph J. Jen, two well alternative that would supply planned program result in improved Under Secretary, Research, Education, and 2 million gallons of supplemental program effectiveness and/or efficiency? Economics. irrigation water a day for near-term III. Annual Update of the 5-Year Plan [FR Doc. 05–11280 Filed 6–6–05; 8:45 am] irrigation needs; and the no action of Work BILLING CODE 3410–22–P alternative, which will consider no A. Applicability change to the current irrigation water sources for the watershed. An annual update to the 5-Year Plan DEPARTMENT OF AGRICULTURE of Work is required each year to add an A draft environmental impact additional year to the Plan. Natural Resources Conservation statement will be prepared and Service circulated for review by agencies and B. Reporting Requirement the public. The Natural Resources The update to the 5-Year Plan of Work South Kona Watershed, Hawaii Conservation Service invites should be submitted on April 1 prior to County, HI participation and consultation of the beginning of the next Plan of Work AGENCY: Natural Resources agencies and individuals that have fiscal year (which begins on October 1 Conservation Service. special expertise, legal jurisdiction, or of each year). ACTION: Notice of intent to prepare an interest in the preparation of the draft IV. Annual Report of Accomplishments environmental impact statement. environmental impact statement. and Results Meetings will be held at Yano Hall, SUMMARY: Pursuant to section 102(2) (C) County of Hawaii Department of Parks A. Reporting Requirement of the National Environmental Policy and Recreation, 82–6156 Mamalahoa The 5-Year Plan of Work for a Act of 1969; the Council on Highway, Captain Cook, County of reporting unit, institution, or State Environmental Quality Guidelines (40 Hawaii on Tuesday, June 21, 2005 from should form the basis for annually CFR part 1500); and the Natural 1–3 p.m. and at MacFarms of Hawaii, Resources Conservation Service reporting its accomplishments and Picker Shed 89–406 Mamalohoa Hwy. at Guidelines (7 CFR part 650); the Natural results. This report will be due on or the 84 mile mark, from 6–8 p.m. to Resources Conservation Service, U.S. before April 1 each year with the first determine the scope of the evaluation of report being due on April 1, 2008, for Department of Agriculture, gives notice that an environmental impact statement the proposed action. Further FY 2007. This report should be information on the proposed action or submitted using the same Web-based is being prepared for the South Kona Watershed, Hawaii County, Hawaii. the scoping meeting may be obtained data entry system used for the from Lawrence T. Yamamoto, State submission of the 5-Year Plan of Work. FOR FURTHER INFORMATION CONTACT: Lawrence T. Yamamoto, State Conservationist, at the above address or The Web-based data entry system will telephone number. mirror and include data entered by the Conservationist, Natural Resources land-grant institution in the 5-Year Plan Conservation Service, 300 Ala Moana (This activity is listed in the Catalog of of Work. Blvd., Rm. 4–118, PO Box 50004, Federal Domestic Assistance under No. Honolulu, Hawaii 96850–0050, 10.904—Watershed Protection and Flood B. Format Telephone: (808) 541–2600 ext. 105. Prevention—and is subject to the provisions This annual report should include the SUPPLEMENTARY INFORMATION: The of Executive Order 12372 which requires relevant information related to each preliminary feasibility study of this intergovernmental consultation with State component of the program of the 5-Year federally assisted action indicates that and local officials.) Plan of Work. Accomplishments and the project may cause significant local, results reporting should involve two regional and national impacts on the
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Dated: May 23, 2005. two well alternative that would supply 2004 (the POR). We preliminarily Lawrence T. Yamamoto, 2 million gallons of supplemental determine that sales of subject State Conservationist for Hawaii & Director irrigation water a day for near-term merchandise made by Abitibi– for the Pacific Basin Area. irrigation needs; and the no action Consolidated Inc. (Abitibi), Buchanan [FR Doc. 05–11268 Filed 6–6–05; 8:45 am] alternative, which will consider no Lumber Sales Inc. (Buchanan), Canfor BILLING CODE 3410–16–M change to the current irrigation water Corporation (Canfor), Tembec Inc. sources for the watershed. (Tembec), Tolko Industries Ltd. (Tolko), A draft environmental impact Weldwood of Canada Limited DEPARTMENT OF AGRICULTURE statement will be prepared and (Weldwood), West Fraser Mills Ltd. circulated for review by agencies and (West Fraser), and Weyerhaeuser Natural Resources Conservation the public. The Natural Resources Company (Weyerhaeuser), have been Service Conservation Service invites made below normal value. In addition, participation and consultation of based on the preliminary results for South Kona Watershed, Hawaii agencies and individuals that have these respondents selected for County, Hawaii special expertise, legal jurisdiction, or individual review, we have AGENCY: Natural Resources interest in the preparation of the draft preliminarily determined a weighted– Conservation Service. environmental impact statement. average margin for those companies that ACTION: Notice of intent to prepare an Meetings will be held at Yano Hall, requested, but were not selected for, environmental impact statement. County of Hawaii Department of Parks individual review. If these preliminary and Recreation, 82–6156 Mamalahoa results are adopted in our final results, SUMMARY: Pursuant to section 102(2)(C) Highway, Captain Cook, County of we will instruct U.S. Customs and of the National Environmental Policy Hawaii on Tuesday, June 21, 2005 from Border Protection (CBP) to assess Act of 1969; the Council on 1–3 p.m. and at MacFarms of Hawaii, antidumping duties on appropriate Environmental Quality Guidelines (40 Picker Shed 89–406 Mamalohoa Hwy. at entries based on the difference between CFR part 1500); and the Natural the 84 mile mark, from 6–8 p.m. to the export price and constructed export Resources Conservation Service determine the scope of the evaluation of price, and the normal value. Guidelines (7 CFR part 650); the Natural the proposed action. Further Furthermore, requests for review of the Resources Conservation Service, U.S. information on the proposed action or antidumping order for the following Department of Agriculture, gives notice the scoping meeting may be obtained thirteen companies were withdrawn: that an environmental impact statement from Lawrence T. Yamamoto, State Age Cedar Products, Anderson is being prepared for the South Kona Conservationist, at the above address or Wholesale, Inc., Bay Forest Products Watershed, Hawaii County, Hawaii. telephone number. Ltd., Coast Forest & Lumber Assoc., FOR FURTHER INFORMATION CONTACT: (This activity is listed in the Catalog of Coast Lumber, Inc., Duluth Timber Lawrence T. Yamamoto, State Federal Domestic Assistance under No. Company, Les Produits Forestiers Conservationist, Natural Resources 10.904—Watershed Protection and Flood Latierre, North Pacific, Usine Sartigan Conservation Service, 300 Ala Moana Prevention—and is subject to the provisions Inc., Council of Forest Industries, Blvd., Rm. 4–118, PO Box 50004, of Executive Order 12372 which requires Specialites G.D.S. Inc., BC Veneer Honolulu, Hawaii 96850–0050, intergovernmental consultation with State Products Ltd., and Edge Grain Forest Telephone: (808) 541–2600 ext. 105. and local officials.) Products. Because the withdrawal SUPPLEMENTARY INFORMATION: The Dated: May 23, 2005. requests were timely and there were no preliminary feasibility study of this Lawrence T. Yamamoto, other requests for review of the federally assisted action indicates that State Conservationist for Hawaii & Director companies, we are rescinding the the project may cause significant local, for the Pacific Basin Area. review for these companies. See 19 CFR regional and national impacts on the [FR Doc. 05–11281 Filed 6–6–05; 8:45 am] 351.213(d)(i). Interested parties are environment. As a result of these BILLING CODE 3410–16–P invited to comment on these findings, Lawrence T. Yamamoto, State preliminary results and partial Conservationist, has determined that the rescission. preparation and review of an DEPARTMENT OF COMMERCE FOR FURTHER INFORMATION CONTACT: environmental impact statement is Daniel O’Brien or Constance Handley, needed for this project. International Trade Administration AD/CVD Operations, Office 1, Import The project concerns alleviating [A–122–838] Administration, International Trade agriculture water shortages and Administration, U.S. Department of providing a stable, adequate, and Notice of Preliminary Results of Commerce, 14th Street and Constitution affordable supply of agricultural water Antidumping Duty Administrative Avenue, NW, Washington, DC 20230; to farmers and other agricultural Review and Partial Rescission: Certain telephone: (202) 482–1376 or (202) 482– producers in the South Kona District of Softwood Lumber Products From 0631, respectively. the Island of Hawai‘i. Alternatives Canada SUPPLEMENTARY INFORMATION: under consideration to reach these objectives include a full build-out AGENCY: Import Administration, Background alternative involving the installation of International Trade Administration, On May 3, 2004, the Department twelve wells on private and public Department of Commerce. published a notice of opportunity to lands that would provide the EFFECTIVE DATE: June 7, 2005. request an administrative review of this agricultural area of South Kona with 12 SUMMARY: The Department of Commerce order. See Notice of Opportunity to million gallons of supplemental (the Department) is conducting an Request Administrative Review of irrigation water per day; a three-well administrative review of the Antidumping or Countervailing Duty alternative that would supply 3 million antidumping duty order on Certain Order, Finding, or Suspended gallons a day to address near-term Softwood Lumber Products from Canada Investigation, 69 FR 24117, (May 3, irrigation needs in the project area; a for the period May 1, 2003, to April 30, 2004). On May 28, 2004, in accordance
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with section 751(a) of the Tariff Act of the respondents to clarify or correct the continuously shaped (tongued, 1930 (the Act) and 19 CFR 351.213(b), initial questionnaire responses. We grooved, rabbeted, chamfered, v– the Coalition for Fair Lumber Imports received timely responses to these jointed, beaded, molded, rounded (the Coalition), a domestic interested questionnaires. or the like) along any of its edges or party in this case, requested a review of faces, whether or not planed, Partial Rescission producers/exporters of certain softwood sanded or finger–jointed;–2 lumber products. Also, between May 3, On July 22, 2004, Specialites G.D.S. (3) other coniferous wood (including and June 2, 2004, Canadian producers Inc. withdrew its request for strips and friezes for parquet requested a review on their own behalf administrative review and on September flooring, not assembled) or had a review of their company 9, 2004, BC Veneer Products Ltd., and continuously shaped (tongued, requested by a U.S. importer. Edge Grain Forest Products withdrew grooved, rabbeted, chamfered, v– On June 30, 2004, the Department their requests for administrative review jointed, beaded, molded, rounded published a notice of initiation of of the antidumping duty order. On July or the like) along any of its edges or administrative review of the 7, 2004, the Coalition, with respect to faces (other than wood moldings antidumping duty order on certain Age Cedar Products, Anderson and wood dowel rods) whether or softwood lumber products from Canada, Wholesale, Inc., Bay Forest Products not planed, sanded or finger– covering the POR. See Notice of Ltd., Coast Forest & Lumber Assoc., jointed; and (4) coniferous wood Initiation of Antidumping and Coast Lumber, Inc., Duluth Timber flooring (including strips and Countervailing Duty Administrative Company, Les Produits Forestiers friezes for parquet flooring, not Reviews and Request for Revocation in Latierre, North Pacific, Usine Sartigan assembled) continuously shaped Part, 69 FR 39409 (June 30, 2004).11 Inc., and Council of Forest Industries, (tongued, grooved, rabbeted, The Department received requests for also withdrew its request for chamfered, v–jointed, beaded, review from more than 400 companies. administrative reviews of the molded, rounded or the like) along Accordingly, in July 2004, in advance of antidumping duty order. Because the any of its edges or faces, whether or issuing antidumping questionnaires, the requests were timely filed, i.e., within not planed, sanded or finger– Department issued to all companies 90 days of publication of the Initiation jointed. pursuing an administrative review, a Notice, and because there were no other Although the HTSUS subheadings are letter requesting total quantity and value requests for review of the above– provided for convenience and customs of subject merchandise exported to the mentioned companies, we are purposes, the written description of the United States during the POR. rescinding the review with respect these merchandise under review is Companies were required to submit companies in accordance with 19 CFR dispositive. their responses to the Department by 351.213(d)(1). The Coalition also Softwood lumber products excluded July 22, 2004. In addition, we received withdrew its request with regard to from the scope: comments from interested parties on the Buchanan Distribution Inc., Les • trusses and truss kits, properly respondent selection process, which Produits Forestiers Temrex, and Usine classified under HTSUS 4418.90 included proposed methodologies. St. Alphonse, Inc. Les Produits • I–joist beams Upon consideration of the Forestiers Temrex Usine St. Alphonse, • assembled box spring frames information received with respect to Inc. is, in fact, a single entity, although • pallets and pallet kits, properly respondent selection, on August 23, it appeared as two entities in the June classified under HTSUS 4415.20 2004, the Department selected as 30, 2004, initiation notice pursuant to • edge–glued wood, properly mandatory respondents the eight largest the Coalition’s request. Buchanan classified under HTSUS exporters/producers of subject Distribution Inc. and Les Produits 4421.90.97.40 (formerly HTSUS merchandise during the POR: Abitibi, Forestiers Temrex Usine St. Alphonse, 4421.90.98.40). Buchanan, Canfor, Tembec, Tolko, Inc. are, respectively, affiliated and • properly classified complete door Weldwood, West Fraser, and collapsed with Buchanan and Tembec, frames. Weyerhaeuser. See Memorandum from and, therefore they continue to be • properly classified complete James Kemp, International Trade covered by the review. window frames Compliance Analyst, to Jeffrey May, • properly classified furniture Scope of the Order Deputy Assistant Secretary, regarding Softwood lumber products excluded Selection of Respondents (August 23, The products covered by this order from the scope only if they meet certain 2004) (Selection of Respondents are softwood lumber, flooring and requirements: • Memorandum). See also Selection of siding (softwood lumber products). Stringers (pallet components used Respondents section below. Softwood lumber products include all for runners): if they have at least On August 24, 2004, the Department products classified under headings two notches on the side, positioned issued sections A, B, C, D, and E of the 4407.1000, 4409.1010, 4409.1090, and at equal distance from the center, to antidumping duty questionnaire to the 4409.1020, respectively, of the properly accommodate forklift selected respondents. The respondents Harmonized Tariff Schedule of the blades, properly classified under submitted their initial responses to the United States (HTSUS), and any HTSUS 4421.90.97.40 (formerly antidumping questionnaire from softwood lumber, flooring and siding HTSUS 4421.90.98.40). • September through December of 2004. described below. These softwood Box–spring frame kits: if they After analyzing these responses, we lumber products include: contain the following wooden issued supplemental questionnaires to (1) coniferous wood, sawn or chipped pieces—two side rails, two end (or lengthwise, sliced or peeled, top) rails and varying numbers of 1 This notice was further amended. See Notice of whether or not planed, sanded or slats. The side rails and the end Initiation of Antidumping and Countervailing Duty finger–jointed, of a thickness rails should be radius–cut at both Administrative Reviews and Request for Revocation exceeding six millimeters; ends. The kits should be in Part, 69 FR 45010 (July 28, 2004); see also Notice of Initiation of Antidumping and Countervailing (2) coniferous wood siding (including individually packaged, they should Duty Administrative Reviews and Request for strips and friezes for parquet contain the exact number of Revocation in Part, 69 FR 52857 (August 30, 2004). flooring, not assembled) wooden components needed to
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make a particular box–spring frame, signed by a customer not affiliated scope.3 The presumption of non–subject with no further processing required. with the importer; status can, however, be rebutted by None of the components exceeds 1’’ (D) The whole package must be evidence demonstrating that the in actual thickness or 83’’ in length. imported under a single merchandise was substantially • Radius–cut box–spring-frame consolidated entry when permitted transformed in Canada. components, not exceeding 1’’ in by CBP, whether or not on a single Selection of Respondents actual thickness or 83’’ in length, or multiple trucks, rail cars or other ready for assembly without further vehicles, which shall be on the Section 777A(c)(1) of the Act directs processing. The radius cuts must be same day except when the home is the Department to calculate individual present on both ends of the boards over 2,000 square feet; dumping margins for each known and must be substantial cuts so as (E) The following documentation exporter and producer of the subject to completely round one corner. must be included with the entry merchandise. However, section • Fence pickets requiring no further documents: 777A(c)(2) of the Act gives the processing and properly classified Department the discretion, when faced • a copy of the appropriate home under HTSUS 4421.90.70, 1’’ or less with a large number of exporters/ design, plan, or blueprint matching in actual thickness, up to 8’’ wide, producers, to limit its examination to a 6’ or less in length, and have finials the entry; • reasonable number of such companies if or decorative cuttings that clearly a purchase contract from a retailer it is not practicable to examine all identify them as fence pickets. In of home kits or packages signed by companies. Where it is not practicable the case of dog–eared fence pickets, a customer not affiliated with the to examine all known exporters/ the corners of the boards should be importer; producers of subject merchandise, this • cut off so as to remove pieces of a listing of inventory of all parts of provision permits the Department to wood in the shape of isosceles right the package or kit being entered that review either: (1) a sample of exporters, angle triangles with sides conforms to the home design producers, or types of products that is measuring 3/4 inch or more. package being entered; • statistically valid based on the U.S. origin lumber shipped to Canada • in the case of multiple shipments on information available at the time of for minor processing and imported into the same contract, all items listed selection, or (2) exporters and producers the United States, is excluded from the immediately above which are accounting for the largest volume of the scope of this order if the following included in the present shipment subject merchandise that can reasonably conditions are met: 1) the processing shall be identified as well. be examined. occurring in Canada is limited to kiln– We have determined that the Responses to the Department’s drying, planing to create smooth–to-size excluded products listed above are information request were received July board, and sanding; and 2) if the outside the scope of this order provided 13 through July 27, 2004. After importer establishes to CBP’s the specified conditions are met. consideration of the data submitted, and satisfaction that the lumber is of U.S. Lumber products that CBP may classify the complexities unique to this origin. • as stringers, radius cut box–spring-frame proceeding, as well as the resources Softwood lumber products components, and fence pickets, not available to the Department, we contained in single family home conforming to the above requirements, 2 determined that it was not practicable in packages or kits, regardless of tariff as well as truss components, pallet this review to examine all known classification, are excluded from the components, and door and window exporters/producers of subject scope of the orders if the following frame parts, are covered under the scope merchandise. We found that given our criteria are met: of this order and may be classified resources, we would be able to review (A) The imported home package or kit under HTSUS subheadings the eight exporters/producers with the constitutes a full package of the 4418.90.40.90, 4421.90.70.40, and greatest export volume, as identified number of wooden pieces specified 4421.90.98.40. Due to changes in the above. For a more detailed discussion of in the plan, design or blueprint 2002 HTSUS whereby subheading respondent selection in this review, See necessary to produce a home of at 4418.90.40.90 and 4421.90.98.40 were Selection of Respondents Memorandum. least 700 square feet produced to a changed to 4418.90.45.90 and We received a written request from one specified plan, design or blueprint; 4421.90.97.40, respectively, we are 4 (B) The package or kit must contain company to be included as a voluntary adding these subheadings as well. all necessary internal and external respondent in this review. doors and windows, nails, screws, In addition, this scope language has Collapsing Determinations glue, subfloor, sheathing, beams, been further clarified to now specify The Department’s regulations provide posts, connectors and if included in that all softwood lumber products for the treatment of affiliated producers purchase contract decking, trim, entered from Canada claiming non– as a single entity where: (1) those drywall and roof shingles specified subject status based on U.S. country of producers have production facilities for in the plan, design or blueprint; origin will be treated as non–subject (C) Prior to importation, the package U.S.-origin merchandise under the similar or identical products that would or kit must be sold to a retailer of countervailing duty order, provided that not require substantial retooling of complete home packages or kits these softwood lumber products meet either facility in order to restructure pursuant to a valid purchase the following condition: upon entry, the manufacturing priorities; and (2) the contract referencing the particular importer, exporter, Canadian processor and/or original U.S. producer establish 3 See the scope clarification message (3034202), home design plan or blueprint, and dated February 3, 2003, to CBP, regarding treatment to CBP’s satisfaction that the softwood of U.S.-origin lumber on file in the Central Records 2 To ensure administrability, we clarified the lumber entered and documented as Unit, Room B–099 of the main Commerce Building. language of this exclusion to require an importer U.S.-origin softwood lumber was first 4 In this proceeding, we received a written request certification and to permit single or multiple entries produced in the United States as a from Riverside Forest Products (June 24, 2004) to on multiple days. We also instructed importers to be a voluntary respondent. As all the mandatory retain and make available for inspection specific lumber product satisfying the physical respondents participated, we were unable to documentation in support of each entry. parameters of the softwood lumber accommodate this request.
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Department concludes that there is a Produits Forestiers La Tuque, Inc., and small percentage of total U.S. sales, significant potential for the Societe en Commandite Scierie burdensome to the company to report manipulation of price or production.5 In Opticiwan. Buchanan reported the sales and for the Department to review, and identifying a significant potential for the of its affiliates Atikokan Forest Products would not materially affect the results of manipulation of price or production, the Ltd., Long Lake Forest Products Inc., this review.10 Department may consider such factors Nakina Forest Products Limited, Treatment of Sales Made on a Random– as: (i) the level of common ownership; Buchanan Distribution Inc., Buchanan Lengths Basis (ii) the extent to which managerial Forest Products Ltd., Great West Timber employees or board members of one Ltd., Dubreuil Forest Products Ltd., All of the respondents made a portion firm sit on the board of directors of an Northern Sawmills Inc., and McKenzie of their sales during the POR on a affiliated firm; and (iii) whether Forest Products Inc. Buchanan was random–length11 (also referred to as a operations are intertwined, such as excused from reporting the sales of the mixed–tally) basis. Information on the through the sharing of sales information, subject merchandise produced by its record indicates that the respondents involvement in production and pricing affiliate, Solid Wood Products Inc. negotiate a single per–unit price for the decisions, the sharing of facilities or Tembec reported the sales of Les whole tally with the customer, but that employees, or significant transactions Industries Davidson, Inc.8 as well as they take the composition of lengths in between the affiliated producers.6 These Tembec affiliates Marks Lumber Ltd., the tally into account when quoting this factors are illustrative, and not Temrex Limited Partnership, and price. The price on the invoice is the exhaustive. 791615 Ontario Limited (Excel Forest blended (i.e., average) price for the tally. Canfor and Slocan merged operations Products). Tolko was excused from Therefore, the line–item price on the on April 1, 2004. On December 20, reporting the sales of Gilbert Smith invoice to the customer does not reflect 2004, the Department determined that Forest Products, Ltd., although (Gilbert the value of the particular product, but the post–merger Canfor is the Smith) continues to be collapsed with rather the average value of the successor–in-interest to both the pre– Tolko.9 Weldwood reported the sales of combination of products. merger Canfor and Slocan. See Notice of its affiliated reseller Weldwood Sales Sections 772(a) and (b) and Final Results of Antidumping Duty Incorporated (WSI) in its questionnaire 773(a)(1)(B)(i) of the Act direct the Administrative Review and Notice of response. In addition, Weldwood Department to use the price at which Final Results of Antidumping Duty reported sales from joint venture mills the product was sold in determining Changed Circumstances Review: Certain that it operates. These operations are Softwood Lumber Products from export price (EP), constructed export Babine Forest Products Company, price (CEP), and normal value (NV). In Canada, 67 FR 75921 (December 20, Decker Lake Forest Products Limited, 2004). For the purposes of these this case, the price at which the and Houston Forest Products Company. products were sold is the total amount preliminary results, we have calculated Weldwood also reported sales of subject three separate margins: one each for on the invoice. The respondents’ choice merchandise from Sunpine Forest to divide that price evenly over all Canfor and Slocan individually for the Products Limited, a subsidiary of eleven months of the POR prior to April products on the invoice represents an Sunpine Incorporated, which is a arbitrary allocation which is not 1, 2004, and a third margin for the post– subsidiary of Weldwood. West Fraser merger Canfor for April 2004. The reflective of the underlying value of the reported the sales of its affiliates West individual products within the tally. resulting cash deposit rate is a weighted Fraser Forest Products Inc. (WFFP) and average of the three calculated margins. However, with the exception of Seehta Forest Products Ltd. In addition, Canfor purchased Daaquam Weldwood and West Fraser, the Weyerhaeuser reported the sales of its Lumber Inc. (Daaquam) on May 27, respondents do not keep track of any affiliate Weyerhaeuser Saskatchewan 2003. Daaquam functions as an underlying single–length prices in such Ltd. Upon review of the questionnaire independent subsidiary within Canfor a way that they can ‘‘deconstruct’’ or responses, we determined that the Corporation. Canfor reported all sales of reallocate the prices on the invoice to affiliates discussed above were properly lumber produced by the former more properly reflect the relative collapsed with the respective Daaquam facilities during the POR. For differences in the market value of each respondent companies for the purposes purposes of this review, we considered unique product that were taken into of this review. only those sales made after the date of account in determining the total invoice purchase. Finally, Canfor reported the The Department excused individual price. sales of its affiliates Lakeland Mills Ltd. respondents from reporting the sales of and The Pas Lumber Company Ltd.7 specific merchandise or sales by certain 10 See Memorandum from James Kemp, David In addition, respondents reported, in affiliates during this review. These Neubacher, and Ashleigh Batton to Susan Kuhbach, their questionnaire responses, the sales specific reporting exemptions were regarding Individual Reporting Exemption Requests granted to the companies because the of Certain Respondent Companies (October 7, of certain affiliated companies. Abitibi 2004); see also Memorandum from James Kemp, reported the sales of subject sales were determined to be a relatively David Neubacher, and Ashleigh Batton to Susan merchandise produced by its affiliates Kuhbach, regarding Individual Reporting 8 Tembec purchased the shares of Davidson on Exemption Requests of Buchanan Lumber Sales Produits Forestiers Petit Paris, Inc., November 5, 2001, and as of December 27, 2003, Ltd., West Fraser Mills Ltd., and Weyerhaeuser Davidson became a division of Tembec. The Company (October 19, 2004); see also 5 See 19 CFR 351.401(f)(1). Davidson Division’s financial results have been Memorandum from Ashleigh Batton and Shane 6 See 19 CFR 351.401(f)(2). fully consolidated in Tembec’s financial statements Subler to Susan Kuhbach regarding Buchanan 7 Canfor continues to be collapsed with its for the entirety of the POR. Therefore, we are no Lumber Sales Ltd. and Weldwood of Canada affiliate Skeena Cellulose. However, Canfor was longer listing Davidson separately as part of the Limited Individual Reporting Exemption Requests excused from reporting sales of its affiliates because Tembec Group. (November 1, 2004); see also Memorandum from of their low volume. We note that in the last review 9 We note that in the first administrative review, Ashleigh Batton to Susan Kuhbach regarding Canfor was collapsed with its affiliates Howe Sound Tolko’s affiliate Compwood Products Ltd. Individual Reporting Exemption Request for Pulp and Paper Limited Partnership (Howe Sound). (Compwood) was listed as part of the Tolko Group. Buchanan Lumber Sales Ltd. (December 13, 2004). In the current review, Canfor reported that Howe Tolko has not been collapsed with Compwood, a 11 For the purposes of this review, we are defining Sound had sold all of its lumber-producing laminated beam producer. Rather Tolko has a random-length sale as any sale which contains equipment. Therefore, we have removed Howe reported sales to Compwood as sales to an affiliated multiple lengths, for which a blended (i.e., average) Sound from the Canfor Group. party. price has been reported.
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For all companies except Weldwood priority. Consistent with prior segments We made company–specific and West Fraser, for purposes of these of this proceeding, we did not match adjustments as follows: preliminary results, we reallocated the across product type, species or grade (A) Abitibi total invoice price of sales made on a group. Where there were no appropriate Abitibi made both EP and CEP random–lengths basis, where possible, comparison–market sales of comparable transactions. We calculated an EP for using the average relative values of merchandise, we compared the sales where the merchandise was sold company–specific, market–specific merchandise sold in the United States to directly by Abitibi to the first single–length sales made within a two- constructed value (CV), in accordance unaffiliated purchaser in the United week period (i.e., one week on either with section 773(a)(4) of the Act. We States prior to importation, and CEP was side) of the tally whose price is being generally relied on the date of invoice not otherwise warranted based on the reallocated. If no such sales were found, as the date of sale. Consistent with the facts of the record. We calculated a CEP we looked in a four-week period (i.e., Department’s practice, where the for sales made by Abitibi to the U.S. two weeks on either side of the sale). invoice was issued after the date of customer through VMI or reload centers We note that a single–length-sale match shipment, we relied on the date of after importation into the United States. must be available for each line item in shipment as the date of sale. EP and CEP were based on the packed, the tally in order to perform a delivered, ex–mill, and free–on-board Export Price and Constructed Export (FOB) reload center prices, as reallocation based on relative price. If Price there were not single–length sales for all applicable. items in the tally within a four-week In accordance with section 772 of the We made deductions from the starting period, we continued to use the Act, we calculated either an EP or a price for movement expenses in reported price as neutral facts available, CEP, depending on the nature of each accordance with section 772(c)(2)(A) of pursuant to section 776(a)(1) of the Act. sale. Section 772(a) of the Act defines the Act. These include freight incurred For Weldwood and West Fraser, we EP as the price at which the subject in transporting merchandise to reload used the reported length–specific prices. merchandise is first sold before the date and VMI centers, as well as freight to This methodology was fully described of importation by the exporter or the U.S. customer, warehousing, in detail during the last administrative producer outside the United States to an brokerage and handling, and inland review. See Notice of Final Results of unaffiliated purchaser in the United insurance. We also deducted any billing Antidumping Duty Administrative States, or to an unaffiliated purchaser adjustments, discounts, and rebates. In accordance with section 772(d)(1) Review and Notice of Final Results of for exportation to the United States. of the Act, for CEP sales, we deducted Antidumping Duty Changed Section 772(b) of the Act defines CEP from the starting price those selling Circumstances Review: Certain as the price at which the subject expenses that were incurred in selling Softwood Lumber Products from merchandise is first sold in the United States before or after the date of the subject merchandise in the United Canada, 69 FR 75921 (December 20, importation, by or for the account of the States, including direct selling expenses 2004) and accompanying Issues and producer or exporter of the (e.g., credit expenses) and imputed Decision Memorandum at comment 5. merchandise, or by a seller affiliated inventory carrying costs. Abitibi did not Fair Value Comparisons with the producer or exporter, to an report any other indirect selling We compared the EP or the CEP, as unaffiliated purchaser, as adjusted expenses incurred in the United States. applicable, to the NV, as described in under sections 772(c) and (d) of the Act. In accordance with section 772(d)(3) of the Export Price and Constructed Export For all respondents, we calculated EP the Act, we deducted an amount of Price and Normal Value sections of this and CEP, as appropriate, based on prices profit allocated to the expenses notice. We first attempted to compare charged to the first unaffiliated deducted under sections 772(d)(1) and contemporaneous sales in the U.S. and customer in the United States. We found (2) of the Act. See Memorandum from comparison markets of products that that all of the respondents made a Saliha Loucif to the File, regarding were identical with respect to the number of EP sales during the POR. Abitibi’s Analysis for the Preliminary following characteristics: product type, These sales are properly classified as EP Results (May 31, 2005) (Abitibi’s species, grade group, grade, dryness, sales because they were made outside Preliminary Calculation Memorandum). thickness, width, length, surface, trim the United States by the exporter or (B) Buchanan and processing type. Where we were producer to unaffiliated customers in Buchanan made both EP and CEP unable to compare sales of identical the United States prior to the date of transactions during the POR. We merchandise, we compared products importation. calculated an EP for sales where the sold in the United States with the most We also found that each respondent merchandise was sold directly by similar merchandise sold in the made CEP sales during the POR. Some Buchanan to the first unaffiliated comparison markets based on the of these sales involved softwood lumber purchaser in the United States prior to characteristics of grade, dryness, sold from U.S. reload or through importation, and CEP was not otherwise thickness, width, length, surface, trim vendor–managed inventory (VMI) warranted based on the facts on the locations. Because such sales were made and processing type,12 in this order of record. We calculated a CEP for sales by the respondent after the date of made by Buchanan to the U.S. customer 12 We note that Tembec requested that the importation, the sales are properly through reload centers after importation Department revise the model match criteria to classified as CEP sales. In addition, into the United States. EP and CEP were include a new length category for nine-foot lumber. Weldwood, West Fraser, and based on the packed, delivered, ex–mill, While Tembec submitted some information on stud Weyerhaeuser made sales to the United FOB mill, and FOB reload center prices, prices, it did not address all categories of nine-foot lumber for which it was requesting a change. States through U.S. affiliates. as applicable. Further, none of the other interested parties We made deductions from starting requested that nine-foot lumber be treated that published prices also exist for seven-foot six- prices for movement expenses in differently than that size of lumber had been treated inch studs, which continue to be grouped with accordance with section 772(c)(2)(A) of in the investigation or first review, nor did they other studs of similar length. Therefore, for break out sales of nine-foot lumber. While Tembec purposes of the current review we have continued the Act. These include freight incurred argued that its sales of nine-foot lumber were to use the length categories established in the in transporting merchandise to reload unique and deserved distinctive treatment, we note underlying investigation. centers, freight to the U.S. customer,
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warehousing, brokerage, and a developed the weighting factor to We made deductions from the starting movement variance. We also deducted determine, based on inventory location price for movement expenses in any discounts from the starting price, and control–number and the percentage accordance with section 772(c)(2)(A) of and added any billing adjustments and of lumber at the specific inventory the Act. These include freight incurred other miscellaneous charges/credits. location and control–number, the in transporting merchandise to In accordance with section 772(d)(1) percentage of lumber at the inventory Canadian reload centers and Canadian of the Act, for CEP sales, we deducted location that was produced by Canfor. warehousing expenses, as well as freight from the starting price those selling We are multiplying the weighting factor to the U.S. customer or reload facility, expenses that were incurred in selling by the quantity of lumber in each sale U.S. warehousing expenses, and U.S. the subject merchandise in the United to estimate the volume of Canfor– brokerage. We also deducted from the States, including direct selling produced merchandise in each sale in starting price any discounts and rebates. expenses, (e.g., credit expenses) and the United States and home market, and In accordance with section 772(d)(1) imputed inventory carrying costs. In to eliminate the estimated non–Canfor of the Act, for CEP sales, we deducted accordance with section 772(d)(3) of the produced merchandise. from the starting price those selling Act, we deducted an amount of profit We made deductions from the starting expenses that were incurred in selling allocated to the expenses deducted price for movement expenses in the subject merchandise in the United under sections 772(d)(1) and (2) of the accordance with section 772(c)(2)(A) of States, including direct selling expenses Act. See Memorandum from Ashleigh the Act. These include freight incurred (e.g., credit expenses) and indirect Batton to the File, regarding Buchanan’s in transporting merchandise to reload selling expenses. Finally, in accordance Analysis for the Preliminary Results centers or VMI locations, as well as with section 772(d)(3) of the Act, we (May 31, 2005) (Buchanan’s Preliminary freight to the U.S. customer, deducted an amount of profit allocated Calculation Memorandum). warehousing, brokerage and handling, to the expenses deducted under sections (C) Canfor and miscellaneous movement charges. 772(d)(1) and (2) of the Act. See Canfor made both EP and CEP We also deducted any discounts and Memorandum from Saliha Loucif to the transactions. We calculated an EP for rebates from the starting price. File, regarding Tembec’s Analysis for sales where the merchandise was sold In addition to these adjustments, for the Preliminary Results (May 31, 2005) directly by Canfor to the first (Tembec’s Preliminary Calculation unaffiliated purchaser in the United CEP sales, in accordance with section 772(d)(1) of the Act, we adjusted the Memorandum). States prior to importation, and CEP was (E) Tolko not otherwise warranted based on the starting price by the amount of direct Tolko made both EP and CEP facts of the record. We calculated a CEP selling expenses and revenues (e.g., transactions. We calculated EP for sales for sales made by Canfor to the U.S. credit expenses and interest revenue). where the merchandise was sold customer through VMI or reload centers We further reduced the starting price by directly by Tolko to the first unaffiliated after importation into the United States. the amount of indirect selling expenses purchaser in the United States prior to EP and CEP were based on the packed, incurred in the United States. importation, and CEP was not otherwise delivered, ex–mill, FOB mill, and FOB Additionally, in accordance with warranted based on the facts of the reload center prices, as applicable. section 772(d)(3) of the Act, we record. We calculated CEP for sales From its sales locations in the United deducted an amount of profit allocated made by Tolko to the U.S. customer States and Canada, Canfor made sales of to the expenses deducted under sections through VMI or reload centers after Canfor–produced merchandise that had 772(d)(1) and (2) of the Act. Canfor importation into the United States. EP been commingled with lumber from reported a limited number of sales of and CEP were based on the packed, other producers. Canfor provided a purchased lumber for which the delivered, ex–mill, FOB mill, and FOB weighting factor to determine the producer did not have knowledge that reload center prices, as applicable. quantity of Canfor–produced Canadian the lumber was destined for the United We made deductions from the starting merchandise for all sales. We are using States. Because the lumber was very price for movement expenses in the weighting factors to estimate the small in quantity and separately accordance with section 772(c)(2)(A) of volume of Canfor–produced identifiable, we removed it from our the Act. These include freight incurred merchandise included in each sale. calculation. Finally, we made additional in transporting merchandise to reload In some cases, the other producers corrections to the U.S. sales data based centers or VMI locations, as well as knew or had reason to know that the upon our findings at verification. See freight to the U.S. customer, merchandise purchased by Canfor was Memorandum from Daniel O’Brien and warehousing, brokerage and handling, destined for the United States. For David Neubacher to the File, regarding and miscellaneous movement charges. example, Canfor occasionally purchased Canfor’s Analysis for the Preliminary We also deducted any discounts and merchandise from another producer and Results (May 31, 2005) (Canfor’s rebates from the starting price. had the producer arrange freight from Preliminary Calculation Memorandum). In accordance with section 772(d)(1) the producer’s mill in Canada to the (D) Tembec of the Act, for CEP sales, we deducted customer in the United States. We did Tembec made both EP and CEP from the starting price those selling not include such sales in our margin transactions during the POR. We expenses that were incurred in selling calculations. In other situations, Canfor calculated an EP for sales where the the subject merchandise in the United purchased merchandise and the merchandise was sold directly by States, including direct selling expenses producer shipped it to U.S. reload Tembec to the first unaffiliated (e.g., credit expenses, warranty centers, VMI locations, or to Canfor purchaser in the United States prior to expenses) and imputed inventory USA where it was commingled with importation. We calculated a CEP for carrying costs. Finally, in accordance lumber produced by Canfor. While the sales made by Tembec to the U.S. with section 772(d)(3) of the Act, we producer had knowledge that these sales customer through U.S. reload facilities deducted an amount for profit allocated were destined for the United States, or through VMI facilities. EP and CEP to the expenses deducted under sections Canfor was unable to link the purchases were based on the packed, delivered, 772(d)(1) and (2) of the Act. See of lumber with a specific sale to the FOB mill, FOB reload/VMI center and Memorandum from Daniel Alexy to the unaffiliated customer. Therefore, Canfor FOB destination prices, as applicable. File, regarding Tolko’s Analysis for the
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Preliminary Results (May 31, 2005) in transporting merchandise to reload and shipped it to U.S. warehouses (Tolko’s Preliminary Calculation centers and to VMI customers, freight to where it was commingled with lumber Memorandum). the U.S. customer, warehousing, and produced by Weyerhaeuser. While the (D) Weldwood U.S. and Canadian brokerage. We also producer had knowledge that these sales Weldwood made both EP and CEP deducted any discounts and rebates were destined for the United States, transactions. We calculated an EP for from the starting price. Weyerhaeuser was unable to link the sales in which the merchandise was In accordance with section 772(d)(1) purchases with the specific sale to the sold directly by Weldwood to the first of the Act, for CEP sales, we deducted unaffiliated customer. Therefore, unaffiliated purchaser in the United from the starting price those selling Weyerhaeuser developed a second States prior to importation, and in expenses that were incurred in selling weighting factor to determine the which CEP was not otherwise warranted the subject merchandise in the United quantity of the sale for which the third– based on the facts of the record. We States, including direct selling party producer did not know, or have calculated a CEP for sales made by WSI expenses, (e.g., credit expenses) and reason to know, that the merchandise to the U.S. customer through reload imputed inventory carrying costs. was destined for the United States. We centers after importation into the United Finally, in accordance with section are multiplying the weighting factor by States. EP and CEP were based on the 772(d)(3) of the Act, we deducted an the quantity of lumber in each U.S. sale ex–mill, carriage paid to reload (CPT amount of profit allocated to the to estimate the volume of merchandise reload), and delivered prices, as expenses deducted under sections for which the producer did not have applicable. 772(d)(1) and (2) of the Act. See knowledge of destination in each In accordance with section Memorandum from David Neubacher to transaction. We included this quantity 772(c)(2)(A) of the Act, we reduced the the File, regarding West Fraser’s in our margin calculation and excluded starting price to account for movement Analysis for the Preliminary Results the estimated volume for which the expenses. These included the net freight (May 31, 2005) (West Fraser’s producer did have knowledge of U.S. expenses incurred in transporting Preliminary Calculation Memorandum). destination. merchandise to reload centers, net (F) Weyerhaeuser We made deductions from the starting freight to the U.S. customer, and U.S. Weyerhaeuser made both EP and CEP price for movement expenses in brokerage. We also deducted early transactions. We calculated an EP for accordance with section 772(c)(2)(A) of payment discounts, credit or debit sales where the merchandise was sold the Act. These include freight to U.S. adjustments, and other relevant price directly by Weyerhaeuser to the first and Canadian warehouses or reload adjustments from the starting price. unaffiliated purchaser in the United centers, warehousing expense in Canada In accordance with section 772(d)(1) States prior to importation, and CEP was and the United States, brokerage and of the Act, for CEP sales, we deducted not otherwise warranted based on the handling, and freight to the final from the starting price those selling facts of the record. We calculated a CEP customer. We also deducted from the expenses that were incurred in selling for sales made by Weyerhaeuser to the starting price any discounts, billing the subject merchandise in the United U.S. customer through reload centers, adjustments, and rebates. States, including direct selling expenses VMIs, and Weyerhaeuser’s affiliated In accordance with section 772(d)(1) (e.g., credit expenses) and imputed reseller Weyerhaeuser Building of the Act, for CEP sales, we deducted inventory carrying costs. In accordance Materials (WBM) after importation into from the starting price those selling with section 772(d)(3) of the Act, we the United States. EP and CEP were expenses that were incurred in selling deducted an amount of profit allocated based on the packed, delivered, or FOB the subject merchandise in the United to the expenses deducted under sections prices. States, including indirect selling 772(d)(1) and (2) of the Act. Finally, we From its sales locations in the United expenses and direct selling expenses made additional corrections to the U.S. States and Canada, Weyerhaeuser made (e.g., credit expenses). Additionally, in sales data based upon our findings at sales of merchandise which had been accordance with section 772(d)(3) of the verification. See Memorandum from commingled with that of other Act, we deducted an amount for CEP Shane Subler to the File, regarding producers. Weyerhaeuser provided a profit. See Memorandum from Weldwood’s Analysis for the weighting factor to determine the Constance Handley to the File, Preliminary Results (May 31, 2005) quantity of Weyerhaeuser–produced regarding Weyerhaeuser’s Analysis for (Weldwood’s Preliminary Results Canadian merchandise for these sales. the Preliminary Results (May 31, 2005) Calculation Memorandum). We are multiplying the weighting factor (Weyerhaeuser’s Preliminary (E) West Fraser by the quantity of lumber in each U.S. Calculation Memorandum). West Fraser made both EP and CEP and home market sale to estimate the transactions. We calculated an EP for volume of Weyerhaeuser–produced Normal Value sales where the merchandise was sold merchandise in each transaction and to A. Selection of Comparison Markets directly by West Fraser to the first eliminate the estimated non– Section 773(a)(1) of the Act directs unaffiliated purchaser in the United Weyerhaeuser-produced merchandise that NV be based on the price at which States prior to importation, and CEP was from our margin calculation. the foreign like product is sold in the not otherwise warranted based on the In some cases, the other producers home market, provided that the facts of the record. We calculated a CEP knew or had reason to know that the merchandise is sold in sufficient for sales made by WFFP to the U.S. merchandise purchased by quantities (or value, if quantity is customer through VMI or reload centers Weyerhaeuser was destined for the inappropriate) and that there is no after importation into the United States. United States. For example, particular market situation that prevents EP and CEP were based on the packed, Weyerhaeuser routinely purchased a proper comparison with the EP or delivered, ex–mill, and FOB reload merchandise and arranged freight from CEP. The Act contemplates that center prices, as applicable. the producer’s mill in Canada to the quantities (or value) will normally be We made deductions from the starting customer in the United States. We did considered insufficient if they are less price for movement expenses in not include such sales in our margin than five percent of the aggregate accordance with section 772(c)(2)(A) of calculations. In other situations, quantity (or value) of sales of the subject the Act. These include freight incurred Weyerhaeuser purchased merchandise merchandise to the United States. We
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found that all eight respondents had expenses, selling expenses, packing due to their ability to provide length– viable home markets for lumber. expenses and interest expenses. specific sales data. See Treatment of To derive NV, we made the 2. Cost Methodology Sales Made on a Random–Lengths Basis adjustments detailed in the Calculation In our section D questionnaire, we section above. In addition, we excluded of Normal Value Based on Home– solicited information from the the price of purchased and resold Market Prices and Calculation of respondents that allows for a value– lumber from our calculation of the Normal Value Based on Constructed based cost allocation methodology for respondent’s per unit product costs.14 Value, sections below. wood and sawmill costs (i.e., those costs 3. Individual Company Adjustments B. Cost of Production Analysis presumed to be joint costs), including We relied on the COP data submitted Because the Department found in the by–product revenue. We allowed for the by each respondent in its cost most recently completed segment of the value allocation to cover species, grade, questionnaire response, except in proceeding at the time the questionnaire and dimension (i.e., thickness, width specific instances where based on our was sent (i.e., the investigation), that and length). For production costs that review of the submissions and our five13 of the respondents made sales in are separately identifiable to specific verification findings, we believe that an the home market at prices below the products (e.g., drying or planing costs), adjustment is required, as discussed cost of producing the merchandise and we directed parties to allocate such below. excluded such sales from NV, the costs only to the associated products For the calculation of general and Department determined that there were using an appropriate allocation basis administrative (G&A) expenses for all reasonable grounds to believe or suspect (e.g., MBF). In allocating wood and companies, we did not include the legal that softwood lumber sales were made sawmill costs (including by–product fees which were paid directly by the in Canada at prices below the cost of revenue) based on value, costs company to its legal counsel and production (COP) in this administrative associated with a particular group of co– consultants associated with the AD and review for those five respondents. See products were to be allocated only to CVD proceedings. However, we section 773(b)(2)(A)(ii) of the Act. As a those products (i.e., wood costs of a included the fees paid to the provincial result, the Department initiated a COP particular species should only be associations because none of the allocated to that species). inquiry for such respondents. companies was able to substantiate that Further, we directed the parties to use On December 21, 2004, the Coalition these payments were for legal weighted–average world–wide prices in representation associated with the AD made an allegation of sales below the deriving the net realizable values (NRV) cost of production (COP) with respect to and CVD proceedings. used for the allocation. We used world– In accordance with section 773(f)(1) of Weldwood. We found that the wide prices to ensure that all products Coalition’s allegation provided the the Act, for companies that had inter– common to the joint production process, divisional byproduct transactions where Department with a reasonable basis to not just those sold in a particular the transfer price was significantly believe or suspect that sales in the home market, are allocated their fair share of higher than an arm’s–length market market have been made at prices below the total joint costs. Finally, we directed price, we adjusted the transfer price to the COP by Weldwood. Accordingly, we the parties to perform the value the market price. For companies that initiated an investigation to determine allocation on the mill/facility level, had byproduct transactions with whether Weldwood’s home market sales using the company–wide weighted– affiliates where the transfer price was of certain softwood lumber products average world–wide NRV for the higher than the market price, we were made at prices below the COP specific products produced at the mill, adjusted the transfer price to the market during the POR. See Memorandum from along with the mill–specific production price in accordance with section Shane Subler to Susan Kuhbach, quantities. regarding Allegation of Sales Below Cost Consistent with our methodology in 773(f)(2) of the Act. of Production for Weldwood (January the first administrative review, we (A) Abitibi 26, 2005). requested that the respondents break out 1) We adjusted Abitibi’s byproduct Furthermore, during the first the random–length sales separately from offset for wood chip revenue in administrative review, we determined to length–specific sales and to develop a British Columbia to reflect the disregard sales made by Buchanan and two–tiered allocation method. First, we average market price it obtained Tolko that were below the cost of directed the respondents to perform the from unaffiliated parties. production. In accordance with section price–based cost allocation (including 2) We included in Abitibi’s G&A 773(b)(2)(A)(i) of the Act, the the random–length-tally sales) without expense rate calculation the Department initiated a COP inquiry to regard to length. Second, we directed goodwill impairment that was determine whether Buchanan and Tolko them to allocate the resulting product written of in its normal books and made home–market sales at prices costs into length–specific costs. In records. Additionally, we excluded below their respective COPs during this performing the second step, we set out the plant closure costs. POR. a hierarchy when looking for surrogate 3) Because Abitibi reported net 1. Calculation of COP sales as allocation factors: 1) length– financing income, we included zero In accordance with section 773(b)(3) specific sales of the identical product; 2) financing costs. of the Act, we calculated a weighted– length–specific sales of products that See Memorandum from Michael average COP based on the sum of the are identical to the product except for Harrison to Neal M. Halper cost of materials and fabrication for the width; and 3) length–specific sales of regarding Abitibi’s Cost of foreign like product, plus amounts for products identical to the product except Production and Constructed Value general and administrative (G&A) for NLGA grade equivalent. For Calculation Adjustments for the purposes of these preliminary results, Preliminary Results (May 31, 2005). 13 Abitibi, Tembec, West Fraser, Weyerhaeuser, we have used the programs and (B) Canfor and Canfor. As discussed above, during the calculations provided by respondents investigation, Canfor and Slocan merged as of April 14 W knowledge that the product was for export 1, 2004. Both companies had sales which were except in the case of West Fraser and to the United States. e note that the vast majority disregarded because they were below the cost of Weldwood. For West Fraser and of purchased lumber was excluded from our sales production. Weldwood, this step was not necessary analyses as the producer had.
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1) We adjusted the Pas’ byproduct Results (May 31, 2005). which Weyerhaeuser provided at offset for wood chip revenue in (D) Tolko our request that reflects the British Columbia to reflect the 1) We increased Tolko’s reported alternative value–based log costing average market price it obtained wood costs to reflect arm’s length methodology. from unaffiliated parties. prices of logs purchased from 2) We adjusted Weyerhaeuser’s 2) We increased Canfor’s reported cost affiliated parties in accordance with byproduct offset for wood chip of manufacturing (COM) to reflect section 773(f)(2) of the Act. revenue in British Columbia to arm’s length prices of contract 2) We revised Tolko’s financial reflect the average market price it logging performed by affiliated expense calculation. Due to the obtained from unaffiliated parties in accordance with section claimed proprietary nature of the purchasers. 773(f)(2) of the Act. adjustment, we discuss this more 3) We excluded from the G&A 3) For the Lakeland entity, we fully in the calculation memo cited expense rate calculation the costs reclassified the ‘‘other income’’ below. related to closure of the company’s items from financial expenses to See Memorandum from Nancy M. production facilities. G&A expenses. Decker to Neal M. Halper regarding 4) We disallowed certain offsets to 4) For the Canfor entity, we excluded Tolko’s Cost of Production and G&A expenses, the identity of the gain on sales of land from the Constructed Value Calculation which is proprietary. We discuss G&A expense rate calculation. We Adjustments for the Preliminary these items more fully in the also included in G&A certain wood Results (May 31, 2005). calculation memo cited below. paneling division costs which (E) Weldwood See Memorandum from Ernest related to the general operations of 1) We used Weldwood’s submitted Gziryan to Neal Halper regarding the company. In addition, we cost file that allocates the Weyerhaeuser’s Cost of Production included costs associated with timberland units’ log costs to the and Constructed Value Calculation maintenance and downtime that sawmills based on the average log Adjustments for the Preliminary had been excluded. cost from each timberland. Results (May 31, 2005). 5) For the Slocan entity, we identified 2) We revised the planer cost of one 4. Test of Home–Market Sales Prices a startup adjustment related to the mill to account for trim loss on We compared the adjusted weighted– Mackenzie Mill in the first rough lumber inter–company sales average COP for each respondent to its administrative review. We included and to reclassify certain planer home–market sales of the foreign like the adjustment in our cost costs. product, as required under section calculations for this review. 3) We revised the variable drying cost 773(b) of the Act, to determine whether 6) Because Canfor reported net of three mills to account for drying these sales had been made at prices financing income, we included zero expenses related to inter–company below the COP within an extended financing costs. sales of dried rough lumber. period of time (i.e., a period of one year) See Memorandum from Gina K. Lee to 4) We revised the variable planing in substantial quantities and whether Neal M. Halper regarding Canfor’s costs of two mills to include freight such prices were sufficient to permit the Cost of Production and Constructed expenses incurred on inter– recovery of all costs within a reasonable Value Calculation Adjustments for company sales. period of time. On a model–specific the Preliminary Results (May 31, 5) Weldwood allocated certain wood basis, we compared the revised COP to 2005). chip revenue to one location. We the home–market prices, less any (C) Tembec reallocated this revenue to the applicable movement charges, export 1) We used Tembec’s unconsolidated sawmills that produced the wood taxes, discounts and rebates. financial statements of the lumber– chips. 5. Results of the COP Test producing entities to calculate the See Memorandum from Mark Todd to Pursuant to section 773(b)(2)(C) of the G&A expense rate. We included the Neal Halper regarding Weldwood’s Act, where less than 20 percent of a impairment of goodwill and write Cost of Production and Constructed respondent’s sales of a given product down of fixed assets in the G&A Value Calculation Adjustments for were at prices less than the COP, we did expenses. the Preliminary Results (May 31, not disregard any below–cost sales of 2) Because Tembec reported net 2005). that product because we determined financing income, we included zero (G) West Fraser that the below–cost sales were not made financing costs. 1) Because West Fraser reported net in substantial quantities. Where 20 3) We adjusted Tembec’s province financing income, we included zero percent or more of a respondent’s sales specific byproduct offset for wood financing costs. of a given product during the POR were chip revenue to reflect the average 2) We excluded the gain on the sale at prices less than the COP, we market price it obtained from of a sawmill unit from the G&A determined such sales to have been unaffiliated parties. expense rate calculation. made in substantial quantities within an 4) We excluded Tembec’s claimed See Memorandum from James Balog extended period of time in accordance byproduct offset for the whole log to Neal Halper regarding West with section 773(b)(2)(B) of the Act. chip revenues because whole log Fraser’s Cost of Production and Because we compared prices to the POR chipping is not a byproduct of Constructed Value Calculation average COP, we also determined that lumber production. Adjustments for the Preliminary such sales were not made at prices 5) We adjusted the reported variable Results (May 31, 2005). which would permit recovery of all wood costs to reflect the cost of (H) Weyerhaeuser costs within a reasonable period of time, external log sales. 1) We revised the Weyerhaeuser’s in accordance with section 773(b)(2)(D) See Cost Memorandum from Sheikh reported wood costs for the British of the Act. Therefore, we disregarded Hannan to Neal Halper regarding Columbia Coastal timberland units the below–cost sales. For all Tembec’s Cost of Production and to reflect a value–based cost respondents, we found that more than Constructed Value Calculation allocation for logs transferred to the 20 percent of the home–market sales of Adjustments for the Preliminary sawmills. We used the cost database certain softwood lumber products
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within an extended period of time were to CEP sales, we deducted home–market expenses (e.g., credit expenses). For made at prices less than the COP. direct selling expenses. See Abitibi’s comparisons made to CEP sales, we Further, the prices did not provide for Preliminary Calculation Memorandum. deducted home–market direct selling the recovery of costs within a reasonable (B) Buchanan expenses. See Tembec’s Preliminary period of time. We therefore disregarded We based home–market prices on the Calculation Memorandum. the below–cost sales and used the packed prices to unaffiliated purchasers (E) Tolko remaining sales as the basis for in Canada. We adjusted the starting We based home–market prices on the determining normal value, in price by the amount of billing packed prices to unaffiliated purchasers accordance with section 773(b)(1) of the adjustments, early payment discounts, in Canada. We adjusted the starting Act. For those U.S. sales of softwood and movement expenses including price by the amount of billing lumber for which there were no useable inland freight, warehousing, adjustments, and movement expenses home–market sales in the ordinary miscellaneous movement charges, and a including inland freight, warehousing, course of trade, we compared EPs or movement variance. For comparisons and miscellaneous movement charges. CEPs to the CV in accordance with made to EP sales, we made COS For comparisons made to EP sales, we section 773(a)(4) of the Act. See adjustments by deducting direct selling made COS adjustments by deducting Calculation of Normal Value Based on expenses incurred for home–market direct selling expenses incurred for Constructed Value section below. sales (e.g., credit expenses). For home–market sales (e.g., credit and C. Calculation of Normal Value Based comparisons to CEP sales, we deducted warranty expenses) and adding U.S. on Home–Market Prices home market selling expenses. direct selling expenses (e.g., credit and We determined price–based NVs for (C) Canfor warranty expenses). For comparisons each company as follows. For all Canfor commingled self–produced made to CEP sales, we deducted home– respondents, we made adjustments for with purchased lumber in home–market market direct selling expenses. See differences in packing in accordance sales in the same manner as it did in Tolko’s Preliminary Calculation with sections 773(a)(6)(A) and U.S. sales, as described in the previous Memorandum. 773(a)(6)(B)(i) of the Act, and we section. We used Canfor’s weighting (F) Weldwood deducted movement expenses factor to determine the percentage of We based home–market prices on the consistent with section 773(a)(6)(B)(ii) lumber in the commingled sales that packed prices to unaffiliated purchasers of the Act. In addition, where was supplied by other producers. We in Canada. We adjusted the starting applicable, we made adjustments for did not include these quantities when price for credit and debit adjustments, differences in cost attributable to calculating the weight–averaged home– early payment discounts, net inland differences in physical characteristics of market prices for comparison to EP or freight to the reload, and net inland the merchandise pursuant to section CEP. freight to customers. For comparisons 773(a)(6)(C)(ii) of the Act, as well as for We based home–market prices on the made to EP sales, we made COS differences in circumstances of sale packed prices to unaffiliated purchasers adjustments by deducting direct selling (COS) in accordance with section in Canada. We adjusted the starting expenses incurred for home–market 773(a)(6)(C)(iii) of the Act and 19 CFR price by the amount of billing sales and adding U.S. direct selling 351.410. We also made adjustments, in adjustments, early payment discounts, expenses (e.g., credit expenses). For accordance with section 351.410(e), for rebates, interest revenue, and movement comparisons made to CEP sales, we indirect selling expenses incurred on expenses (including inland freight, deducted home–market direct selling comparison–market or U.S. sales where warehousing, and miscellaneous expenses. In addition, we made commissions were granted on sales in movement charges). For comparisons adjustments to the home–market prices one market but not in the other (the made to EP sales, we made COS based upon our findings at verification. ‘‘commission offset’’). Specifically, adjustments by deducting direct selling See Weldwood’s Preliminary where commissions were granted in the expenses incurred for home–market Calculation Memorandum. U.S. market but not in the comparison sales (e.g., credit and warranty (G) West Fraser market, we made a downward expenses) and adding U.S. direct selling We based home–market prices on the adjustment to NV for the lesser of (1) the expenses (e.g., credit, advertising, and packed prices to unaffiliated purchasers amount of the commission paid in the warranty expenses). For comparisons in Canada. We adjusted the starting U.S. market, or (2) the amount of made to CEP sales, we deducted home– price for early payment discounts, indirect selling expenses incurred in the market direct selling expenses and inland freight to the warehouse, comparison market. If commissions revenue. In addition, we made warehousing expenses, special charges, were granted in the comparison market adjustments to the home–market prices inland freight to customers, freight but not in the U.S. market, we made an based upon our findings at verification. rebates, and fuel surcharges. For upward adjustment to NV following the See Canfor’s Preliminary Calculation comparisons made to EP sales, we made same methodology. Company–specific Memorandum. COS adjustments by deducting direct adjustments are described below. (D) Tembec selling expenses incurred for home– (A) Abitibi We based home–market prices on the market sales and adding U.S. direct We based home–market prices on the packed prices to unaffiliated purchasers selling expenses (e.g., credit expenses). packed prices to unaffiliated purchasers in Canada. We adjusted the starting For comparisons made to CEP sales, we in Canada. We adjusted the starting price for billing adjustments, early deducted home–market direct selling price for inland freight, warehousing payment discounts, rebates, interest expenses. See West Fraser’s Preliminary expenses, insurance, discounts, rebates, revenue, freight from the mill to the Calculation Memorandum. and billing adjustments. For reload center or VMI, reload center (H) Weyerhaeuser comparisons made to EP sales, we made expenses and freight to the final Weyerhaeuser commingled self– COS adjustments by deducting direct customer. For comparisons made to EP produced with purchased lumber in selling expenses incurred for home– sales, we made COS adjustments by home–market sales in the same manner market sales (e.g., credit expenses) and deducting direct selling expenses for as it did in U.S. sales, as described in adding U.S. direct selling expenses (e.g., home–market sales (e.g., credit the previous section. We used credit expenses). For comparisons made expenses) and adding U.S. direct selling Weyerhaeuser’s weighting factor to
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determine the percentage of lumber in direct selling expenses incurred on In this review, we determined the the commingled sales that was supplied home–market sales. following, with respect to the LOT and by other producers. We did not include E. Level of Trade/CEP Offset CEP offset, for each respondent. these quantities when calculating the In accordance with section (A) Abitibi weight–averaged home–market prices 773(a)(1)(B) of the Act, to the extent Abitibi reported three channels of for comparison to EP or CEP. practicable, we determine NV based on distribution. The first channel of We based home–market prices on the sales in the comparison market at the distribution (channel 1) included direct packed prices to unaffiliated purchasers same level of trade (LOT) as the EP or sales from Canadian mills or reload in Canada. We adjusted the starting CEP transaction. The NV LOT is that of centers to customers. The second price for discounts, rebates, billing the starting–price sales in the channel of distribution (channel 2) adjustments, freight to the warehouse/ comparison market or, when NV is consisted of direct sales from Canadian reload center, warehousing expenses, based on CV, that of the sales from reload centers to customers. The third freight to the final customer, and direct which we derive SG&A expenses and channel of distribution (channel 3) selling expenses including minor profit. For EP, the U.S. LOT is also the consisted of VMI/consignment sales remanufacturing performed at Softwood level of the starting–price sale, which is made to large retailers, distributors, Lumber Business (SWL) reloads and usually from exporter to importer. For building materials manufacturers and WBM locations. For comparisons made CEP, it is the level of the constructed other large lumber producers. We to EP sales, we made COS adjustments sale from the exporter to the importer. compared selling functions in each of by deducting direct selling expenses To determine whether NV sales are at these three channels of distribution and incurred for home–market sales (e.g., a different LOT than EP or CEP, we found that the sales process, freight credit expenses) and adding U.S. direct examine stages in the marketing process services and inventory maintenance selling expenses (e.g., credit expenses). and selling functions along the chain of activities were similar. Accordingly, we For comparisons made to CEP sales, we distribution between the producer and preliminarily determine that home– deducted home–market direct selling the unaffiliated customer. If the market sales in these three channels of expenses. comparison–market sales are at a distribution constitute a single LOT. D. Calculation of Normal Value Based different LOT, and the difference affects In the U.S. market, Abitibi had both on Constructed Value price comparability, as manifested in a EP and CEP sales. Abitibi reported EP Section 773(a)(4) of the Act provides pattern of consistent price differences sales to end–users and distributors that where NV cannot be based on between the sales on which NV is based through two channels of distribution for comparison–market sales, NV may be and comparison–market sales at the its direct sales from Canadian mills based on CV. Accordingly, for those LOT of the export transaction, we make (channel 1) or from Canadian reload models of softwood lumber products for an LOT adjustment under section centers to customers (channel 2). Abitibi which we could not determine the NV 773(a)(7)(A) of the Act. Finally, for CEP reported the same selling functions for based on comparison–market sales, sales, if the NV level is more remote these two channels of distribution. either because there were no useable from the factory than the CEP level and Therefore, we consider that channels of sales of a comparable product or all there is no basis for determining distribution for EP sales during the sales of the comparable products failed whether the difference in the levels review constitute a single LOT. the COP test, we based NV on the CV. between NV and CEP affects price Moreover, we preliminary determine Section 773(e) of the Act provides that comparability, we adjust NV under that this EP LOT is identical to the the CV shall be based on the sum of the section 773(a)(7)(B) of the Act (the CEP home–market LOT. cost of materials and fabrication for the offset provision). See Notice of Final With respect to CEP sales, Abitibi imported merchandise, plus amounts Determination of Sales at Less Than reported sales through two channels of for SG&A expenses, profit, and U.S. Fair Value: Certain Cut–to-Length distribution. The first (channel 3) packing costs. For each respondent, we Carbon Steel Plate from South Africa, included direct sales from U.S. reload calculated the cost of materials and 62 FR 61731 (November 19, 1997). centers to customers. The second fabrication based on the methodology In implementing these principles in (channel 4) consisted of VMI/ described in the Cost of Production this review, we obtained information consignment sales made to large Analysis section, above. We based from each respondent about the retailers, distributors, building materials SG&A expenses and profit for each marketing stages involved in the manufacturers and other large lumber respondent on the actual amounts reported U.S. and comparison–market producers. The selling functions related incurred and realized by the sales, including a description of the to freight arrangements and inventory respondents in connection with the selling activities performed by the maintenance for these two channels of production and sale of the foreign like respondents for each channel of distribution were not significantly product in the ordinary course of trade distribution. In identifying LOTs for EP different and, therefore, we preliminary for consumption in the comparison and comparison–market sales, we determine there is only one CEP LOT. market, in accordance with section considered the selling functions Abitibi’s sales to end–users and 773(e)(2)(A) of the Act. We used U.S. reflected in the starting price before any distributors in the home–market and in packing costs as described in the Export adjustments. For CEP sales, we the U.S. market do not involve Price section, above. considered only the selling activities significantly different selling functions. We made adjustments to CV for reflected in the price after the deduction Abitibi’s Canadian–based services for differences in COS in accordance with of expenses and profit under section CEP sales were similar to the single section 773(a)(8) of the Act and 19 CFR 772(d) of the Act. We expect that, if home–market LOT with respect to sales 351.410. For comparisons to EP, we claimed LOTs are the same, the process and warehouse/inventory made COS adjustments by deducting functions and activities of the seller maintenance. Because we are finding direct selling expenses incurred on should be similar. Conversely, if a party the LOT for CEP sales to be similar to home–market sales from, and adding claims that LOTs are different for the home–market LOT, we are making U.S. direct selling expenses to, CV. For different groups of sales, the functions no LOT adjustment or CEP offset. See comparisons to CEP, we made COS and activities of the seller should be section 773(a)(7)(A) of the Act. adjustments by deducting from CV dissimilar. (B) Buchanan
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Buchanan reported multiple channels market for sales of remanufactured instructions, Canfor added a fifth of distribution in the home market, with lumber, thereby reporting five channels channel of distribution to the each six categories of unaffiliated customers. of distribution in the home market. The market for sales of remanufactured Buchanan made sales to customers in first channel of distribution (channel 1) lumber. In addition, also in accordance Canada via the affiliated sales agent, includes sales where merchandise was with the Department’s instructions, Buchanan Lumber Sales, Inc. (BLS), shipped directly from one of Canfor’s Canfor added a sixth U.S. channel of direct from the mill, through a reload sawmills to a Canadian customer. The distribution for U.S. sales made out of yard, or it made use of resellers in second channel of distribution (channel Canadian reload locations. Canfor made certain instances. We compared selling 2) consists of sales made through reload EP sales, therefore, through channels 1, functions in each of these channels of centers, where merchandise was 4, 5, and 6. Moreover, these four EP distribution and found that the sales shipped from the primary mill through channels of distribution do not process and freight services were one or more lumber–handling and significantly differ from the channels of similar. Accordingly, we preliminarily inventory yards before delivery to the distribution in the home market. determine that home–market sales in end customer. The third channel of Accordingly, we preliminarily these channels of distribution constitute distribution (channel 3) includes sales determine that EP sales in these four a single LOT. made pursuant to VMI programs. The channels of distribution constitute a In the U.S. market, Buchanan had fourth channel of distribution (channel single LOT and that this EP LOT is both EP and CEP sales. Buchanan 4) includes sales made by Lakeland identical to the home–market LOT. reported EP sales to end–users and without Sinclar’s assistance to With respect to CEP sales, Canfor distributors, via the affiliated sales agent employees or local lumber yards in the reported that these sales were made BLS, through multiple channels of Prince George, British Columbia, area. through channels 2 (U.S. reload distribution, including mill–direct sales, We compared the selling functions in facilities), 3 (VMI customers), and 5 sales that traveled through reload these five channels of distribution and (sales made through remanufacturers). facilities, and sales made via resellers. found that they differed only slightly in The selling functions performed for These EP channels of distribution do that certain services were provided for these three channels of distribution not significantly differ from the VMI customers that were not provided were not significantly different in terms channels of distribution in the home to other channels including: inventory of freight arrangements and inventory market. Because the sales process and management, education on management; therefore, we preliminary freight services were similar, we environmental issues, and in–store determine there is only one CEP LOT. preliminarily determine that EP sales in training. Also, office wholesalers In determining whether separate these five channels of distribution (wholesalers that do not hold LOTs exist between U.S. CEP sales and constitute a single LOT, and therefore inventory), one of Canfor’s customer home–market sales, we examined the that this EP LOT is identical to the categories, only purchased lumber selling functions in the distribution home–market LOT. through channel 1. In addition, home chains and customer categories reported With respect to CEP sales, Buchanan centers requested custom packing, in both markets. In our analysis of LOTs reported those sales that traveled wrapping, and bar coding. With respect for CEP sales, we consider only the through a U.S. reload yard. to the sales process, freight and delivery selling activities reflected in the price Consequently, we preliminary find a services, custom–packing services, after the deduction of expenses and single CEP LOT. In determining whether providing technical information, profit under section 772(d) of the Act. separate LOTs exist between U.S. CEP inspecting quality claims, and Canfor’s sales in the home and U.S. sales and home–market sales, we participating in trade shows, the sales to markets do not involve significantly examined the selling functions in the all customer categories in all channels different selling functions. Canfor’s distribution chains and customer were similar in all respects. Canadian–based services for its CEP categories reported in both markets. In Accordingly, we preliminarily sales were similar to the single home– our analysis of LOTs for CEP sales, we determine that home–market sales in market LOT with respect to sales consider only the selling activities these five channels of distribution process and inventory management. reflected in the price after the deduction constitute a single LOT. Because we are finding the LOT for CEP of expenses and profit under section In the U.S. market, Canfor had both sales to be similar to the home–market 772(d) of the Act. EP and CEP sales. Canfor reported the LOT, we are making no LOT adjustment Buchanan’s sales in the home and same first three channels of distribution or CEP offset. See section 773(a)(7)(A) of U.S. markets do not involve for U.S. sales as it did for home market the Act. significantly different selling functions. sales: The first channel of distribution (D) Tembec Buchanan’s Canadian–based services for (channel 1) includes sales where Tembec reported four channels of its CEP sales were similar to the single merchandise was shipped directly from distribution applicable to both markets. home–market LOT with respect to sales one of Canfor’s sawmills to a U.S. The first channel of distribution process and freight arrangements. customer. The second channel of (channel 1) included direct sales from Because we are finding the LOT for CEP distribution (channel 2) consists of sales the mill to customers which included to be similar to the home–market LOT, made through reload centers, where sales to wholesalers who took title to we are making no LOT adjustment or merchandise was shipped from the but not physical possession of the CEP offset. See section 773(a)(7)(A) of primary mill through one or more lumber and resold it to end–users. The the Act. lumber–handling and inventory yards second channel of distribution (channel (C) Canfor before delivery to the end customer. The 2) consisted of sales which were Canfor reported four channels of third channel of distribution (channel 3) shipped through a reload center en distribution in the home market in its includes sales made pursuant to VMI route to the customer. The third channel September 28, 2004, section A response, programs. Canfor’s fourth channel of of distribution (channel 3) consisted of with seven customer categories. distribution was for sales made through sales made through VMIs located in However, in accordance with the trading activity on the Chicago Canada or the United States. The fourth Department’s instructions, Canfor added Mercantile Exchange. As noted above, (channel 4), consisted of sales where the a fifth channel of distribution to each in accordance with Department customer picked–up the merchandise.
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We found that the first three home– Canadian mill production and may have categories in the home market. The first market channels of distribution were been shipped either directly or through channel of distribution, channel 1, similar with respect to both the sales a reload center to customers. The consists of sales from a mill directly to process and freight services. While second channel of distribution (channel customers. The second channel of channel 4 sales did not receive freight 2) consisted of sales made principally distribution, channel 2, comprises sales arrangement, it was the same as the by Tolko Brokerage and TDS divisions from a Canadian reload to customers. other channels in terms of sales process. from inventory locations that contained The third channel of distribution, We do not consider arrangement of softwood lumber produced by Tolko channel 3, consists of sales through a freight alone to rise to the level of a and various suppliers. We compared the VMI program. Although we found separate LOT. Accordingly, we sales process in each channel of differences in the level of inventory preliminarily determine that home– distribution and found that the selling maintenance and inventory market sales in these four channels of functions were similar for each channel. management performed for the different distribution constitute a single LOT. Accordingly, we preliminarily channels, the three channels are similar In the U.S. market, Tembec had both determine that home–market sales in with respect to the overall sales process, EP and CEP sales. Tembec reported EP these channels of distribution constitute packing, freight services, invoicing, sales to end–users and distributors a single LOT. warranty claims, the granting of credit through the channels 1, 2, and 4. These In the U.S. market, Tolko had both EP or debit adjustments, and the granting of three channels of distribution, as they and CEP sales. Tolko reported EP sales early payment discounts. Accordingly, apply to EP sales, do not differ from the to U.S. customers through one channel we preliminary determine that home three channels of distribution in the of distribution. Similar to the home market sales in these three channels of home market. Because the sales process, market, this channel included direct distribution constitute a single LOT. freight services (for channels 1 and 2) sales made by Tolko’s North American In the U.S. market, Weldwood made and inventory maintenance were Lumber sales and Tolko Brokerage both EP and CEP sales. Weldwood similar, we preliminarily determine that divisions from Tolko’s Canadian mill reported EP sales to three customer EP sales in these three channels of production and were shipped either categories through two channels of distribution constitute a single LOT and directly or through a reload center to distribution, mill direct sales and sales that this EP LOT is identical to the customers. Because the sales processes through Canadian reloads. Although we home–market LOT. in this channel of distribution were found differences in the level of With respect to CEP sales, Tembec similar, we preliminarily determine that inventory maintenance performed for reported that these sales were made there is a single EP LOT and that this the different channels, the channels are through two channels of distribution (2 EP LOT is identical to the home–market similar with respect to the overall sales and 3), and consisted of U.S. sales that LOT. process, packing, freight services, either pass through a U.S. reload center With respect to CEP sales, Tolko invoicing, warranty claims, the granting en route to the customer, or go to a VMI. reported these sales through two of credit or debit adjustments, and the The selling functions related to freight channels of distribution. The first granting of early payment discounts. and delivery for these two channels of (channel 2), included sales by Tolko’s Therefore, we preliminarily determine distribution were not significantly North American Lumber Sales and that EP sales through the two channels different and, therefore, we preliminary Tolko Brokerage divisions from U.S. of distribution constitute a single LOT. determine there is only one CEP LOT. inventory reload centers to customers. Further, we do not find that the selling In determining whether separate The second (channel 3), consisted of functions for Weldwood’s single home LOTs exist between U.S. CEP sales and sales made to U.S. companies pursuant market LOT differ significantly from the home–market sales, we examined the to VMI contracts. The selling functions, selling functions for the LOT for EP selling functions in the distribution including freight arrangements and sales. Therefore, we preliminarily chains and customer categories reported order processing, for these two channels determine that home market sales and in both markets. In our analysis of LOTs of distribution were not significantly EP sales are at an identical LOT. for CEP sales, we consider only the different and, therefore, we preliminary With respect to CEP sales, selling activities reflected in the price determine there is only one CEP LOT. Weldwood’s third channel of after the deduction of expenses and In determining whether separate distribution, channel 3, comprises sales profit under section 772(d) of the Act. LOTs exist between U.S. CEP sales and to customers through WSI, an affiliate of Tembec’s sales to end–users and home–market sales, we examined the the International Paper Company (IP), distributors in the home market and in selling functions in the distribution Weldwood’s parent company during the the U.S. market do not involve chains and customer categories reported POR. WSI’s only purpose was to hold significantly different selling functions. in both markets. In our analysis of LOTs inventory at U.S. reload locations. It had Tembec’s Canadian–based services for for CEP sales, we consider only the no facilities or employees in the United CEP sales were similar to the single selling activities reflected in the price States. Weldwood made these sales from home–market LOT with respect to sales after the deduction of expenses and unaffiliated reload centers in the United process and freight arrangements. profit under section 772(d) of the Act. States. All selling activities were Because we are finding that the LOT for Tolko’s Canadian–based services for performed by Weldwood sales CEP sales to be similar to the home– its CEP sales were similar to the single personnel located in Canada. market LOT, we are making no LOT home–market LOT with respect to sales In determining whether separate adjustment or CEP offset. See section process and inventory management. LOTs exist between U.S. CEP sales and 773(a)(7)(A) of the Act. Because we are finding the LOT for CEP home–market sales, we examined the (E) Tolko sales to be similar to the home–market selling functions in the distribution Tolko reported two channels of LOT, we are making no LOT adjustment chains and customer categories reported distribution in the home market. The or CEP offset. See section 773(a)(7)(A) of in both markets. In our analysis of LOTs first channel of distribution (channel 1) the Act. for CEP sales, we consider only the included direct sales made by Tolko’s (F) Weldwood selling activities reflected in the price North American Lumber Sales and Weldwood reported three channels of after the deduction of expenses and Tolko Brokerage divisions from Tolko’s distribution and four customer profit under section 772(d) of the Act.
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Weldwood reported that all selling distribution are comparable in terms of The channels of distribution are: 1) expenses for CEP sales are incurred in selling functions, delivery and customer mill–direct sales; 2) VMI sales; 3) mill– Canada. Further, Weldwood claimed categories, the EP channel of direct sales made through WBM; 4) sales that its Canadian–based services for CEP distribution LOT is similar to the single made out of inventory by WBM; 5) SWL sales are the same as the services it home market LOT. and B.C. Coastal Group’s (BCC) sales performs for home market sales through With respect to CEP sales, West Fraser through Canadian reloads; 6) BCC’s a Canadian reload. See Weldwood’s had two channels of distribution sales through processing facilities; and January 14, 2005, section A (channel 2 and 3). Both channels of 7) WBM cross dock sales.17 To questionnaire response at A–28 through distribution included sales to end–users determine whether separate LOTs exist A–31;15 see also Weldwood’s March 10, and distributors through West Fraser’s in the home market, we examined the 2005, sections A, B, and C supplemental subsidiary, WFFP. The company WFFP selling functions, the chain of questionnaire response at Appendix is incorporated in the United States and distribution, and the customer SA–5. Because all selling functions was specifically created to act as the categories reported in the home market. performed for CEP sales are similar to importer of record and hold title to For each of its channels of the selling functions of the home market lumber sold in the United States. It has distribution, Weyerhaeuser’s selling LOT, we are making no LOT adjustment no facilities or employees in the United functions included invoicing, freight or CEP offset. See section 773(a)(7)(A) of States. The second channel of arrangement, product training, the Act. distribution (channel 2) does not differ marketing and promotional activities, (G) West Fraser from the second channel of distribution advanced shipping notices, and order West Fraser reported four channels of within the home market, except with status information. Weyerhaeuser’s sales distribution in the home market. The respect to paper processing services in made out of inventory by WBM first channel of distribution (channel 1) connection with brokerage and (channel 4) appear to involve included sales made directly to end– handling. For the third channel of substantially more selling functions, users and distributors from a mill or distribution (channel 3), sales were and to be made at a different point in origin reload. The second channel of made from unaffiliated destination the chain of distribution than mill– distribution (channel 2) consisted of reload centers in the United States by direct sales. WBM functions as a sales made to end–users and sales people located in Canada. distributor for BCC and SWL, and distributors through VMI programs. The In determining whether separate operates as a reseller for unaffiliated third channel of distribution (channel 3) LOTs exist between U.S. CEP sales and parties. WBM operates a number of consisted of sales made to end–users home–market sales, we examined the customer service centers (CSC) and distributors through unaffiliated selling functions in the distribution throughout Canada where it provides inventory locations. The fourth channel chains and customer categories reported local sales offices and just–in-time of distribution (channel 4) consisted of in both markets. In our analysis of LOTs inventory (JIT) service for its customers. sales made to end–users and for CEP sales, we consider only the Generally, BCC and SWL make the sale distributors from the Seehta mill selling activities reflected in the price to WBM, after which the merchandise is through an origin reload. We compared after the deduction of expenses and sold to the final customer by WBM’s these four channels of distribution and profit under section 772(d) of the Act. local sales force. Freight must be found that, while selling functions West Fraser’s Canadian–based arranged to the WBM inventory location differed slightly with respect to the services for its CEP sales include order– and then to the final customer. CSCs arrangement of freight and delivery for taking, invoicing and inventory will also engage in minor further origin reload centers in channel 2 and management. West Fraser’s Canadian manufacturing to fill a customer order, the office handling sales in channel 3, sales agents occasionally arrange for if the desired product is not in all four channels were similar with reload center excess storage and freight inventory. Additionally, WBM sells respect to sales process, packing, freight from U.S. destination reload centers to from inventory through its trading group services, inventory services, warranty unaffiliated end users. Any services locations (TGs). WBM also sells on a mill–direct basis services, and early payment discount occurring in the United States are (channel 3) but does not provide the JIT services. Accordingly, we found that provided by the unaffiliated reload service for such transactions. Therefore, home–market sales in these three centers, which are paid a fee by West we do not consider mill–direct sales channels of distribution constitute a Fraser. These expenses have been made through WBM to be at a separate single LOT. deducted from the CEP starting price as LOT from mill–direct sales made by In the U.S. market, West Fraser had movement expenses. SWL and BCC. Additionally, we both EP and CEP sales. For EP sales, West Fraser’s sales to end–users and compared sales invoiced from Canadian West Fraser reported one channel of distributors in the home market and its reloads (channel 5) and sales made from distribution. This channel of CEP sales in the U.S. market do not BCC’s processing mills (channel 6) to distribution only included sales made involve significantly different selling the mill direct sales and found that the directly to end–users and distributors functions. Specifically, the CEP LOT selling activities did not differ to the from a mill or origin reload. The was similar to the single home–market degree necessary to warrant separate channel of distribution for EP sales does LOT with respect to sales process and LOTs. Our analysis of cross dock sales not differ from the first channel of inventory maintenance. Therefore, we (channel 7) indicates that they are most distribution within in the home market, are making no LOT adjustment or CEP similar to WBM’s warehouse sales. The except with respect to paper processing offset. See section 773(a)(7)(A) of the specialized nature of these sales services in connection with brokerage Act. and handling. Therefore, as both the (H) Weyerhaeuser Weyerhaeuser reported seven However, we removed these sales from the margin above home and U.S. market channel of calculation and LOT analysis. channels of distribution in the home 17 16 Even though there are only seven channels of 15 The January 14, 2005, section A response refers market, with seven customer categories. distribution in the home market, Weyerhaeuser to the rebracketed version of Weldwood’s original designated cross dock sales as channel eight in the section A response that was submitted on 16 Weyerhaeuser also reported a customer questionnaire response and accompanying September 28, 2004. category for employee sales in the home market. database.
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requires additional services that direct U.S. and home market sales, we to WBM warehouse sales and, as such, sales do not. Like WBM warehouse examined the selling functions, the designated them at the same LOT (i.e., sales, cross dock merchandise is usually chain of distribution, and customer U.S.1.) part of a JIT order and is shipped from categories reported in the U.S. market. As was the case with Canadian sales, a mill to an inventory location. Even With regard to the mill–direct sales to each U.S. channel of distribution though the merchandise may not be the United States (channels 1 and 3), services multiple customer categories. commingled or unpacked, it often enters Weyerhaeuser has the same selling the warehouse and requires additional activities as it does for mill–direct sales Channels 1–5 have buyers from at least services for two freight segments and in Canada. Likewise, we consider sales five customer categories. The other three loading and unloading. Therefore, we invoiced from Canadian reloads channels have two to four customer consider cross dock sales to be at the (channel 6) and sales made from BCC categories each but also realized same LOT as WBM warehouse sales. processing mills (channel 7) to be at the significantly fewer sales during the Sales made through VMI same LOT as the direct sales. Therefore, POR. We found there were not arrangements (channel 2) also appear to where possible, we matched the U.S. significant differences in the application involve significantly more selling mill–direct sales (U.S.1) (encompassing of selling functions by customer and activities than mill–direct sales. SWL channels 1, 3, 6, and 7) to the Canadian instead the activities depended on the has a designated sales team responsible mill–direct sales (HM1). The other channel of distribution. Therefore, for VMI sales which works with the channels consist of CEP sales as customer category is not a useful customers to develop a sales volume addressed below. indicator of LOT for Weyerhaeuser’s plan, manages the flow of products and Weyerhaeuser’s Canadian selling U.S. sales. replenishing process, and aligns the functions for VMI sales to the United sales volume plan with Weyerhaeuser’s States (channel 2) include the similar Because we found a pattern of production plans. It also offers extra selling functions performed for home consistent price differences between services such as bar coding, cut–in-two, market VMI sales, as described above, LOTs, where we matched across LOTs, half packing, and precision end except that the sales are managed by we made an LOT adjustment under trimming. SWL Western in the United States. As section 773(a)(7)(A) of the Act. We analyzed Weyerhaeuser’s a result, the selling functions, with the Currency Conversion customer categories in relation to the exception of arranging freight to the channels of distribution and application VMI locations, are performed in the We made currency conversions into of selling functions. Each channel United States. Therefore, after the U.S. dollars in accordance with section services multiple customer categories deduction of U.S. expenses and profit, 773A of the Act, based on exchange with channels 1, 2, 3, 4, 5, and 7 serving we find that the U.S. VMI sales (U.S.1) rates in effect on the date of the U.S. at least six customer categories. We are made at the same LOT as home sale, as certified by the Federal Reserve found there were not significant market direct sales (HM1), and we have Bank. differences in the application of selling matched them accordingly in the margin functions by customer and instead the program. Preliminary Results of Review activities depended on the channel of SWL’s sales through U.S. reloads distribution. Therefore, customer (channel 5) also appear to have selling As a result of this review, we category is not a useful indicator of LOT functions performed in Canada and the preliminarily determine that the for Weyerhaeuser’s home market sales. United States. While Weyerhaeuser following weighted–average margins Because VMI, WBM inventory, and states that it maintains JIT inventory for exist for the period May 1, 2003, WBM cross dock sales involve its U.S. customers at these reloads, through April 30, 2004: significantly more selling functions than many of the selling functions are the mill–direct sales, we consider them managed by SWL Western in the United to be at a more advanced LOT for States. After the deduction of U.S. purposes of the preliminary results. expenses and profit, these sales do not Producer Weighted–Average While the selling activities for VMI, appear to be at a different point in the Margin (Percentage) WBM inventory, and cross dock sales chain of distribution than mill–direct are not identical, the principal selling sales in Canada. Therefore, for purposes Abitibi (and its affili- activity for all three is JIT inventory of the preliminary results, we consider ates Abitibi–Con- maintenance. Thus, we consider them to SWL’s sales through U.S. reloads to be solidated Company of Canada, be at the same LOT. Accordingly, we at the same LOT as its mill–direct sales Produits Forestiers find that there are two LOTs in the (U.S.1 and HM1), and we have matched Petit Paris Inc., So- home market, mill–direct (HM1) them accordingly. ciete en (encompassing channels 1, 3, 5, and 6) With regard to WBM’s U.S. inventory Commandite and VMI, WBM sales out of inventory, sales (channel 4) significant selling Scierie Opitciwan, and cross dock sales (HM2) activities occur in the United States, Produits Forestiers (encompassing channels 2, 4, and 7). such as maintaining local sales offices La Tuque Inc.) ...... 2.53 Weyerhaeuser reported eight channels and JIT, and arranging freight to the of distribution in the U.S. market, with final customer. The selling functions eight customer categories. The channels performed in Canada are the same of distribution are: 1) mill–direct sales; selling functions performed for mill– 2) VMI sales; 3) WBM direct sales; 4) direct sales. Therefore, after the WBM U.S. inventory sales; 5) SWL sales deduction of U.S. expenses and profit, through U.S. reloads; 6) SWL and BCC we find that WBM’s U.S. inventory sales sales through Canadian reloads; 7) sales are at the same LOT as mill–direct sales from BCC’s processing facilities; and 8) (U.S.1 and HM1), and we have matched WBM cross dock sales. In determining them accordingly. We found that cross whether separate LOTs existed between dock sales (channel 8) were most similar
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REVIEW–SPECIFIC AVERAGE RATE APPLICABLE TO THE FOLLOWING COMPANIES: Weighted–Average Producer Weighted-Average Producer Margin (Percentage) Margin (Percentage)
Buchanan (and its af- Blackville Lumber (Di- filiates Atikokan vision of UPM– Producer Weighted-Average Forest Products Margin (Percentage) Kymmene Ltd., Long Lake Miramichi Inc.). Forest Products 2 by 4 Lumber Sales Blanchette et Inc., Nakina Forest Ltd. Blanchette Inc. Products Limited,18 605666 BC Ltd. Bloomfield Lumber Buchanan Distribu- 9027–7971 Quebec Limited. tion Inc., Buchanan Inc. (Scierie Marcel Bois Cobodex (1995) Forest Products Dumont). Inc. 9098–5573 Quebec Ltd., Great West Bois Daaquam Inc. Inc. (K.C.B. Inter- Timber Ltd., Bois De L’Est F.B. national). Dubreuil Forest Inc. Products Ltd., AFA Forest Products Bois Granval G.D.S. Northern Sawmills Inc. Inc. Inc., McKenzie For- A. L. Stuckless & Bois Kheops Inc. est Products Inc., Sons Limited. Buchanan Northern AJ Forest Products Bois Marsoui G.D.S. Hardwoods Inc., Ltd. Inc. Northern Wood, Alexandre Cote Ltee. Bois Neos Inc. and Solid Wood Allmac Lumber Sales Bois Nor Que Wood Products Inc.) ...... 2.49 Ltd. Inc. Canfor 19* (and its af- Allmar International. Boisaco Inc. filiates Canadian Alpa Lumber Mills Inc. Boscus Canada Inc. Forest Products, American Bayridge Boucher Forest Prod- Ltd., Daaquam Corporation. ucts Ltd. Lumber Inc., Lake- Apex Forest Prod- Bowater Canadian land Mills Ltd., The ucts, Inc. Forest Products Inc. Pas Lumber Com- Apollo Forest Prod- Bowater Incorporated. ucts Limited. pany Ltd., and Bridgeside Forest In- Aquila Cedar Prod- Skeena Cellulose) 1.42 dustries, Ltd. ucts Ltd. Tembec (and its affili- Bridgeside Higa For- Arbutus Manufac- ates Marks Lumber est Industries Ltd. turing Limited. Ltd., 791615 On- Ardew Wood Prod- Brittainia Lumber tario Limited (Excel ucts, Ltd. Company Limited. Forest Products), Armand Duhamel & Brouwer Excavating Produits Forestiers Fils Inc. Ltd. Temrex Limited Ashley Colter (1961) Brunswick Valley Partnership 20) ...... 3.16 Limited. Lumber. Tolko (and its affiliate Aspen Planers Ltd. Buchanan Lumber. Gilbert Smith For- Associated Cedar Busque & Laflamme est Products Ltd.) .. 3.22 Products. Inc. Weldwood ...... 5.62 Atco Lumber. BW Creative Wood. West Fraser (and its Atlantic Pressure Byrnexco Inc. affiliates West Fra- Treating Ltd. C. E. Harrison & Son ser Forest Products Atlantic Warehousing Ltd. Inc., and Seehta Limited. Caledon Log Homes Forest Products Atlas Lumber (Al- (FEWO). Ltd...... 0.51 berta) Ltd. Caledonia Forest Weyerhaeuser (and AWL Forest Products. Products Ltd. its affiliate B & L Forest Prod- Cambie Cedar Prod- Weyerhaeuser ucts Ltd. ucts Ltd. Saskatchewan Ltd.) 4.74 Bakerview Forest Canadian Lumber Products Inc. 18 Company Ltd. We note that Nakina Forest Products Lim- Bardeaux et Cedres Cando Contracting ited is a division of Long Lake Forest Prod- St–Honore Inc. ucts, Inc, an affiliate of Buchanan Lumber Ltd. (Bardeaux et Sales. Canex International 19 We note that this margin reflects a Cedres). Barrett Lumber Com- Lumber Sales Ltd. weighted-average of Canfor’s and Slocan’s re- CanWel Building Ma- spective margins. See Collapsing Determina- pany. tions section above. Barrette–Chapais terials Ltd. 20 We note that Produits Forestiers Temrex Ltee. CanWel Distribution Limited Partnership is the same entity as the Barry Maedel Woods Ltd. company Produits Forestiers Temrex Usine St. & Timber. Canyon Lumber Alphonse, Inc. included in the July 1, 2003, Bathurst Lumber (Di- Company Ltd. initiation notice. See Notice of Initiation of Anti- vision of UPM– Cape Cod Wood Sid- dumping Duty Administrative Review, 68 FR ing Inc. 39059 (July 1, 2003). Kymmene Miramichi Inc.). Cardinal Lumber Beaubois Coaticook Manufacturing & Inc. Sales Inc.
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Producer Weighted-Average Producer Weighted-Average Weighted-Average Margin (Percentage) Margin (Percentage) Producer Margin (Percentage)
Careau Bois Inc. Doman Industries Gerard Crete & Fils Carrier & Begin Inc. Limited. Inc. Carrier Forest Prod- Doman Western Gestofor Inc. ucts Ltd. Lumber Ltd. Gogama Forest Prod- Carrier Lumber Ltd. Domexport Inc. ucts. Carson Lake Lumber. Domtar Inc. Goldwood Industries Cattermole Timber. Downie Timber Ltd. Ltd. CDS Lumber Prod- Dunkley Lumber Ltd. Gorman Bros. Lum- ucts. E. Tremblay Et. Fils ber Ltd. Cedarland Forest Ltee. Great Lakes MSR Products Ltd. Eacan Timber Can- Lumber Ltd. Cedrico Lumber Inc. ada Ltd. Greenwood Forest (Bois d’Oeuvre Eacan Timber Limited. Products. Cedrico Inc.). Eacan Timber USA Groupe Lebel. Central Cedar, Ltd. Ltd. H. A. Fawcett & Son Centurion Lumber East Fraser Fiber Co. Limited. Manufacturing Ltd. H. J. Crabbe & Sons (1983) Ltd. Eastwood Forest Ltd. Chaleur Sawmills. Products Inc. Haida Forest Prod- Chasyn Wood Tech- Ed Bobocel Lumber ucts Ltd. nologies Inc. 1993 Ltd. Hainesville Sawmill Cheminis Lumber Inc. Edwin Blaikie Lumber Ltd. Cheslatta Forest Ltd. Harrison’s Home Products Ltd. Elmira Wood Prod- Building Centers. Chisholm’s (Roslin) ucts Limited. Harry Freeman & LTd. Elmsdale Lumber Son Ltd. Choicewood Products Company Ltd. Hefler Forest Prod- Inc. ER Probyn Export Ltd. ucts Ltd. City Lumber Sales Errington Cedar and Services Lim- Products. Hi–Knoll Cedar Inc. ited. Evergreen Empire Hilmoe Forest Prod- Clair Industrial Dev. Mills Incorporated. ucts Ltd. Corp. Ltd. EW Marketing. Hoeg Brothers Lum- Clermond Hamel Ltee. F.L. Bodogh Lumber ber Ltd. Coast Clear Wood Co. Ltd. Holdright Lumber Ltd. Falcon Lumber Lim- Products Ltd. Colonial Fence Mfg. ited. Hudson Mitchell & Ltd. Faulkner Wood Spe- Sons Lumber Inc. Columbia Mills Ltd. cialties Limited. Hughes Lumber Spe- Comeau Lumber Lim- Federated Co– cialties Inc. ited. operatives Limited. Hyak Specialty Wood Commonwealth Ply- Fenclo Ltee. Products Ltd. wood Company Ltd. Finmac Lumber Lim- Industrial Wood Spe- Cooper Creek Cedar ited. cialties. Ltd. Fontaine Inc., J. A. Industries G.D.S. Inc. Cottles Island Lumber and its affiliates Industries Perron Inc. Co. Ltd. Fontaine et fils Inc., Interior Joinery Ltd. Cowichan Lumber Ltd. Bois Fontaine Inc., International Forest Crystal Forest Indus- Gestion Natanis Products Ltd. tries Ltd. Inc., Les Place- Isidore Roy Limited. Curley Cedar Post & ments Jean–Paul Ivis Wood Products. Rail. Fontaine Ltee. Ivor Forest Products Cushman Lumber Forex Log & Lum- Ltd. Company Inc. ber. J & G Logworks. D. S. McFall Holdings Forstex Industries Inc. J. A. Turner & Sons Ltd. Forwest Wood Spe- (1987) Limited. Dakeryn Industries cialties Inc. J.D. Irving, Ltd. Ltd. Fraser Pacific Forest J.S. Jones Timber Deep Cove Lumber. Products Inc. Ltd. Delco Forest Prod- Fraser Pacific Lum- Jackpine Engineered ucts. ber Company. Wood Products. Delta Cedar Products. Fraser Papers Inc. Jackpine Forest Devlin Timber Com- Fraser Pulp Chips Ltd. Products Ltd. pany (1992) Lim- Frasierview Cedar Jackpine Group of ited. Products Ltd. Companies. Devon Lumber Co. Frontier Mills Inc. Jamestown Lumber Ltd. G.D.S. Valoribois Inc. Company Limited. Doman Forest Prod- Galloway Lumber Co. Jasco Forest Prod- ucts Limited. Ltd. ucts Ltd.
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Producer Weighted-Average Producer Weighted-Average Weighted-Average Margin (Percentage) Margin (Percentage) Producer Margin (Percentage)
Jeffery Hanson. Littles Lumber Ltd. Nexfor Inc. Julimar Lumber Co. Lonestar Lumber Inc. Nexfor Norbord. Limited. Louisiana Pacific Cor- Nicholson and Cates Kenora Forest Prod- poration. Limited. ucts Ltd. Lousiana Malakwa. Nickel Lake Lumber. Kent Trusses Ltd. LP Canada Ltd. Norbord Industries Kenwood Lumber Ltd. LP Engineered Wood Inc. Kispiox Forest Prod- Products Ltd. ucts. Lulumco Inc. Norbord Juniper and Kitwanga Lumber Co. Lyle Forest Products Norbord’s sawmills Ltd. Ltd. at La Sarre Kruger, Inc. M & G Higgins Lum- Senneterre Quebec. La Crete Sawmills ber Ltd. NorSask Forest Prod- Ltd. M. L. Wilkins & Son ucts Inc. Lakeburn Lumber Ltd. North American For- Limited. MacTara Limited. est Products. Lamco Forest Prod- Maibec Industries Inc. North American For- ucts. (Industries Maibec est Products Ltd Landmark Structural Inc.). (Division Belanger). Lumber. Manitou Forest Prod- North Atlantic Lumber Landmark Truss & ucts Ltd. Inc. Lumber Inc. Maple Creek Saw North Enderby Dis- Langely Timber Com- Mills Inc. tribution Ltd (N.E. pany Ltd. Marcel Lauzon Inc. Distribution). Langevin Forest Marine Way. North Enderby Tim- Products, Inc. Mary’s River Lumber. ber Ltd. Lattes Waska Laths Marwood Inc. North Mitchell Lum- Inc. Marwood Ltd. ber Co. Ltd., Saran Lawsons Lumber Materiaux Blanchet Cedar. Inc. Company Ltd. North Shore Timber Lazy S Lumber. Max Meilleur et Fils Ltd. Lecours Lumber Co. Ltee.. North Star Wholesale Limited. McCorquindale Hold- Ledwidge Lumber ings Ltd. Lumber Ltd. Co., Ltd. McNutt Lumber Com- Northchip Ltd. Leggett & Platt (B.C.) pany Ltd. Northland Forest Ltd. Mercury Manufac- Products Ltd. Leggett & Platt Inc. turing Inc. Olav Haavaldsrud Leggett & Platt Ltd. Meunier Lumber Timber Company Les Bois d’Oeuvre Company Ltd. Limited. Beaudoin & MF Bernard Inc. Olympic Industries Gauthier Inc. Mid America Lumber. Inc. Les Bois S &P Mid Valley Lumber Optibois Inc. Grondin Inc. Specialties Ltd. P.A. Lumber & Plan- Les Chantiers Midway Lumber Mills ning Limited. Chibougamau Ltee. Ltd. Pacific Lumber Com- Les Produits Mill & Timber Prod- pany. Forestiers D. G. ucts Ltd. Pacific Lumber Re- Ltee.. Millar Western Forest manufacturing Inc. Products Ltd. Les Produits Pacific Northern Rail Millco Wood Products Forestiers Dube Inc. Contractors Corp. Les Produits Ltd. Pacific Specialty Forestiers F.B.M. Miramichi Lumber Wood Products Inc. Products. Les Produits Mobilier Rustique Ltd. (formerly Forestiers Maxibois (Beauce) Inc. Clearwood Indus- Inc. Monterra Lumber tries Ltd.). Les Produits Mills Limited. Pacific Wood Special- Forestiers Miradas Mountain View Spe- ties. Inc(Miradas Forest cialty Reload Inc. Pallan Timber Prod- Products Inc.). Murray A Reeves ucts Ltd. Les Scieries Du Lac Forestry Limited. Palliser Lumber Sales St–Jean Inc. Murray Bros. Lumber Ltd. Les Scieries Jocelyn Company Limited. Pan West Wood Lavoie Inc. N. F. Douglas Lum- Products Ltd. Leslie Forest Prod- ber Limited. Paragon Ventures ucts Ltd. Nechako Lumber Co., Ltd. (Vernon Kiln Lignum Ltd. Ltd. and Millwork, Ltd. Lindsay Lumber Ltd. Newcastle Lumber and 582912 BC, Liskeard Lumber Lim- Co. Inc. Ltd.). ited. New West Lumber.
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Producer Weighted-Average Producer Weighted-Average Weighted-Average Margin (Percentage) Margin (Percentage) Producer Margin (Percentage)
Parallel Wood Prod- Sauder Moldings, Inc. Sunbury Cedar Sales ucts Ltd. (Ferndale). Ltd. Pastway Planing Lim- Sauder Industries Suncoast Lumber & ited. Limited. Milling. Pat Power Forest Schols Cedar Prod- Sundance Forest In- Products Corpora- ucts. dustries. tion. Scierie A&M St– SWP Industries Inc. Patrick Lumber Com- Pierre Inc. Sylvanex Lumber pany. Scierie Adrien Products Inc. Paul Fontaine Ltee.. Arseneault Ltee. Taiga Forest Prod- Paul Vallee Inc. Scierie Alexandre ucts. Paul Vallee. Lemay & Fils Inc. Tall Tree Lumber Peak Forest Products Scierie Chaleur. Company. Ltd. Scierie Dion et Fils Tarpin Lumber Incor- Pharlap Forest Prod- Inc. porated. ucts Inc. Scierie Gallichan Inc. Taylor Lumber Com- Pheonix Forest Prod- Scierie Gauthier Ltee.. pany Ltd. ucts Inc. Scierie La Patrie, Inc. Teal Cedar Products Pleasant Valley Re- Scierie Landrienne Ltd. manufacturing Ltd. Inc. Teal–Jones Group. Pope & Talbot, Inc. Scierie Lapointe & Teeda Corp. Porcupine Wood Roy Ltee.. Terminal Forest Prod- Products Ltd. Scierie Leduc, Divi- ucts Ltd. Portbec Forest Prod- sion of Stadacona T.F. Specialty Saw- ucts Ltd. (Les Inc. mill. Produits Forestiers Scierie Nord–Sud Inc. TFL Forest Ltd. Portbec Ltee.). (North–South Saw- Timber Ridge Forest Portelance Lumber mill Inc.). Products. Capreol Ltd. Scierie P.S.E. Inc. Power Wood Corp. Scierie St. Elzear Inc. TimberWorld Forest Precibois Inc. Scierie Tech Inc. Products Inc. Preparabois (2003) Scieries du Lac St. T’loh Forest Products Inc. Jean Inc. Limited. Prime Lumber Lim- Selkirk Specialty Top Quality Lumber ited. Wood Ltd. Ltd. Pro Lumber Inc. Sexton Lumber. T. P. Downey & Sons Produits Forestiers P. Seycove Forest Prod- Ltd. Proulx Inc. ucts Limited. Treeline Wood Prod- Promobois G.D.S. Inc. Seymour Creek ucts Ltd. Quadra Wood Prod- Cedar Products Ltd. Triad Forest Products. ucts Ltd. Shawood Lumber Inc. Twin Rivers Cedar R. Fryer Forest Prod- Sigurdson Bros. Log- Products Ltd. ucts Limited. ging Company Ltd. Tyee Timber Prod- Raintree Forest Prod- Silvermere Forest ucts Ltd. ucts Inc. Products Inc. Uneeda Wood Prod- Raintree Lumber Sinclar Enterprises ucts. Specialties Ltd. Ltd.*. Uniforet Inc. Ramco Lumber Ltd. South Beach Trading Uniforet Scierie–Pate. Redtree Cedar Prod- Inc. Vancouver Specialty ucts Ltd. South River Planing Cedar Products. Redwood Value Mills Inc. Vanderhoof Specialty Added Products Inc. South–East Forest Wood Products. Rembos Inc. Products Ltd. Vandermeer Forest Rene Bernard Inc. Spray Lake Sawmills Products (Canada) Ridgewood Forest (1980) Ltd. Ltd. Products Ltd. Spruce Forest Prod- Vanderwell Contrac- Rielly Industrial Lum- ucts Ltd. tors (1971) Ltd. ber Inc. Spruce Products Ltd. Vanport Canada, Co.. Riverside Forest St. Anthony Lathing Vernon Kiln and Mill- Products Limited. Ltd. work, Ltd. Rocam Lumber Inc. Stag Timber. Visscher Lumber Inc. (Bois Rocam Inc.). Standard Building W. C. Edwards Lum- Rojac Cedar Prod- Products Ltd. ber. ucts Inc. Still Creek Forest W. I. Woodtone In- Rojac Enterprises Inc. Products Ltd. dustries Inc. Roland Boulanger & Stuart Lake Lumber Welco Lumber Cor- Cie Ltee. Co. Ltd. poration. Russell White Lum- Stuart Lake Mar- Wentworth Lumber ber Limited. keting Inc. Ltd.
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Public Hearing the rate established in the final results An interested party may request a of this review, except if a rate is less Weighted-Average than 0.5 percent, and therefore de Producer Margin (Percentage) hearing within 30 days of publication of these preliminary results. See 19 CFR minimis, the cash deposit will be zero; Werenham Forest 351.310(c). Any hearing, if requested, (2) for the non–selected companies we Products. will be held 44 days after the date of will calculate a weighted–average cash West Bay Forest publication, or the first working day deposit rate based on all the company– Products & Manu- thereafter. Interested parties may submit specific cash deposit rates, excluding de facturing Ltd. case briefs and/or written comments no minimis margins or margins determined West Can Rail Ltd. later than 30 days after the date of West Chilcotin Forest entirely on adverse facts available; (3) Products Ltd. publication of these preliminary results. for previously reviewed or investigated West Hastings Lum- Rebuttal briefs and rebuttals to written companies not participating in this ber Products. comments, limited to issues raised in review, the cash deposit rate will Western Cleanwood such briefs or comments, may be filed continue to be the company–specific Preservers Ltd. no later than 37 days after the date of rate published for the most recent Western Commercial publication. Parties who submit Millwork Inc. period; (4) if the exporter is not a firm arguments are requested to submit with covered in this review, a prior review, Western Wood Pre- the argument (1) a statement of the servers Ltd. or the less–than-fair–value (LTFV) issue, (2) a brief summary of the Weston Forest Corp. investigation, but the manufacturer is, West–Wood Indus- argument, and (3) a table of authorities. Further, the parties submitting written the cash deposit rate will be the rate tries. established for the most recent period White Spruce Forst comments should provide the Products Ltd. Department with an additional copy of for the manufacturer of the Wilfrid Paquet & Fils the public version of any such merchandise; and (5) if neither the Ltee. comments on diskette. The Department exporter nor the manufacturer is a firm Wilkerson Forest will issue the final results of this covered in this or any previous review Products Ltd. administrative review, which will conducted by the Department, the cash Williams Brothers deposit rate will be 11.54, the ‘‘All Limited. include the results of its analysis of Winnipeg Forest issues raised in any such comments, Others’’ rate calculated in the Products, Inc. within 120 days of publication of these Department’s recent determination Woodko Enterprises, preliminary results. under section 129 of the Uruguay Round Ltd. Assessment Agreement Act. See Notice of Woodland Forest Determination Under Section 129 of the Products Ltd. Upon completion of this Uruguay Round Agreements Act: Woodline Forest administrative review, pursuant to 19 Products Ltd. Antidumping Measures on Certain CFR 351.212(b), the Department will Softwood Lumber Products from Woodtone Industries calculate an assessment rate on all Inc. Canada, 70 FR 22636 (May 2, 2005). appropriate entries. We will calculate Woodwise Lumber These cash deposit requirements, when Ltd. importer–specific duty assessment rates on the basis of the ratio of the total imposed, shall remain in effect until Wynndel Box & Lum- publication of the final results of the ber Co. Ltd. amount of antidumping duties Zelensky Bros. Forest calculated for the examined sales to the next administrative review. Products ...... 2.44 total entered value of the examined This notice serves as a preliminary * We note that, during the POR, Sinclar En- sales for that importer. For the reminder to importers of their terprises Ltd. (Sinclar) acted as an affiliated companies requesting a review, but not responsibility under 19 CFR 351.402(f) reseller for Lakeland, an affiliate of Canfor. In selected for examination and calculation to file a certificate regarding the this review, we reviewed the sales of Canfor of individual rates, we will calculate a and its affiliates; therefore, Canfor’s weighted– reimbursement of antidumping duties average margin applies to all sales produced weighted–average assessment rate based prior to liquidation of the relevant by any member of the Canfor Group and sold on all importer–specific assessment entities during this review period. by Sinclar. As Sinclar also separately re- rates excluding any which are de Failure to comply with this requirement quested a review, any sales produced by an- minimis or margins determined entirely could result in the Secretary’s other manufacturer and sold by Sinclar will re- on adverse facts available. Where the ceive the ‘‘Review–Specific Average’’ rate. presumption that reimbursement of assessment rate is above de minimis, we Please note that the names of the will instruct CBP to assess duties on all antidumping duties occurred and the companies are listed above exactly as entries of subject merchandise by that subsequent assessment of double they will be included in instructions to importer. antidumping duties. CBP. Any alternate names, spellings, Cash Deposit Requirements This determination is issued and affiliated companies or divisions will published in accordance with sections not be considered or included in any The following deposit rates will be 751(a)(1) and 777(i)(1) of the Act. instructions to CBP unless they are effective upon publication of the final brought to the attention of the results of this administrative review for Dated: May 31, 2005. Department in a case brief. There will be all shipments of Certain Softwood Susan H. Kuhbach, no exceptions. Lumber Products From Canada entered, Acting Assistant Secretary for Import or withdrawn from warehouse, for Administration. Disclosure consumption on or after the publication [FR Doc. E5–2885 Filed 6–6–05; 8:45 am] The Department will disclose date, as provided by section 751(a)(1) of BILLING CODE 3510–DS–S calculations performed in accordance the Act: (1) the cash deposit rate listed with 19 CFR 351.224(b). above for each specific company will be
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DEPARTMENT OF COMMERCE Department that they had no shipments Administrative Review on Stainless or entries of subject merchandise during Steel Plate in Coil from Taiwan’’ for International Trade Administration the period of review (POR): Chain Chon, further discussion. Ta Chen and YUSCO. We reviewed data [A–583–830] Scope of the Order from U.S. Customs and Border Stainless Steel Plate in Coils from Protection (CBP) and attempted to The product covered by this order is Taiwan; Preliminary Rescission of confirm that there were no entries of certain stainless steel plate in coils. Antidumping Duty Administrative subject merchandise from any of these Stainless steel is an alloy steel Review companies. We also confirmed with containing, by weight, 1.2 percent or CBP data that none of the other less of carbon and 10.5 percent or more AGENCY: Import Administration, companies named by the petitioners in of chromium, with or without other International Trade Administration, their request for review had entries of elements. The subject plate products are Department of Commerce. subject merchandise during the POR. flat–rolled products, 254 mm or over in EFFECTIVE DATE: June 7, 2005. However, initial CBP data showed that width and 4.75 mm or more in thickness, in coils, and annealed or FOR FURTHER INFORMATION CONTACT: Ta Chen had potential entries of subject Elizabeth Eastwood or Jill Pollack, AD/ merchandise during the POR. Therefore, otherwise heat treated and pickled or CVD Operations, Office 2, Import on November 1, 2004, we requested otherwise descaled. The subject plate may also be further processed (e.g., Administration, International Trade entry documentation from CBP for Ta cold–rolled, polished, etc.), provided Administration, U.S. Department of Chen’s entries. Our examination of the that it maintains the specified Commerce, 14th Street and Constitution entry documentation appeared to dimensions of plate following such Avenue, NW, Washington, DC 20230, confirm Ta Chen’s claim and we processing. Excluded from the scope of telephone: (202) 482–3874 or (202) 482– informed the petitioners of our intent to this order are the following: (1) plate not 4593, respectively. rescind this administrative review with respect to Ta Chen in December 2004. in coils, (2) plate that is not annealed or SUPPLEMENTARY INFORMATION: On December 21, 2004, the petitioners otherwise heat treated and pickled or Background requested that the Department extend otherwise descaled, (3) sheet and strip, the deadline for the preliminary results and (4) flat bars. On May 3, 2004, the Department of by 120 days in accordance with 19 CFR The merchandise subject to this order Commerce (the Department) published 351.213(h)(2). On January 28, 2005, we is currently classifiable in the in the Federal Register (69 FR 24117) a extended the deadline for the Harmonized Tariff Schedule of the notice of opportunity to request an preliminary results of this review until United States (HTS) at subheadings: administrative review of the no later than May 31, 2005. See 7219110030, 7219110060, 7219120006, antidumping duty order on stainless Stainless Steel Plate in Coils From 7219120021, 7219120026, 7219120051, steel plate in coils from Taiwan for the Taiwan; Notice of Extension of Time 7219120056, 7219120066, 7219120071, period May 1, 2003, through April 30, Limits for Preliminary Results in 7219120081, 7219310010, 7219900010, 2004. In accordance with 19 CFR Antidumping Duty Administrative 7219900020, 7219900025, 7219900060, 351.213(b)(1), on May 28, 2004, the Review, 70 FR 5610 (Feb. 3, 2005). 7219900080, 7220110000, 7220201010, petitioners (i.e., Allegheny Ludlum Further, on January 21, 2005,1 the 7220201015, 7220201060, 7220201080, Corp., United Auto Workers Local 3303, petitioners claimed that the information 7220206005, 7220206010, 7220206015, Zanesville Armco Independent received from CBP and placed on the 7220206060, 7220206080, 7220900010, Organization, the United Steelworkers record of this proceeding showed that 7220900015, 7220900060, and of America, and AFL–CIO/CLC) Ta Chen did have entries of subject 7220900080. Although the HTS requested a review of this order with merchandise during the POR, contrary subheadings are provided for respect to the following producers/ to Ta Chen’s assertion that it had no convenience and customs purposes, the exporters: Chain Chon Industrial Co., such entries. The petitioners submitted written description of the merchandise Ltd. (Chain Chon), Chang Mien additional comments on this issue on subject to this order is dispositive. Industries Co., Ltd., Chien Shing February 11, 2005, and March 11, 2005. Stainless Steel Co., Ltd., China Steel Ta Chen responded to the petitioners’ Rescission of Review Corporation, East Tack Enterprise Co., comments on January 31, 2005, and Because none of the companies for Goang Jau Shing Enterprise Co., Ltd., February 22, 2005. which we initiated this administrative PFP Taiwan Co., Ltd., Shing Shong Ta In April 2005, we received additional review had shipments of subject Metal Ind. Co., Ltd., Sinkang Industries, documentation on Ta Chen’s entries merchandise during the POR, in Ltd., Ta Chen Stainless Pipe Ltd. (Ta from CBP. After reviewing the accordance with 19 CFR 351.213(d)(3) Chen), Tang Eng Iron Works Co., Ltd., documents and considering the and consistent with our practice, we are Yieh Loong Enterprise Co., Yieh Mau comments of the parties, we preliminarily rescinding this review of Corp., Yieh Trading Co., and Yieh preliminarily determine that Ta Chen the antidumping duty order on stainless United Steel Corp (YUSCO). did not have entries of subject steel plate in coils from Taiwan for the The Department initiated an merchandise during the POR. See the period of May 1, 2003, through April 30, administrative review on stainless steel May 31, 2005, memorandum from 2004. plate in coils from Taiwan in June 2004. Elizabeth Eastwood to Louis Apple Interested parties may submit See Initiation of Antidumping and entitled, ‘‘Analysis of Entries by Ta comments for consideration in the Countervailing Duty Administrative Chen Stainless Steel Pipe Co. Ltd. in the Department’s final results not later than Reviews and Request for Revocation in 2003–2004 Antidumping Duty 30 days after publication of this notice. Part, 69 FR 39409 (June 30, 2004). We Responses to those comments may be issued questionnaires to the producers/ 1 We note that while the petitioners originally submitted not later than 10 days exporters named by the petitioners in submitted comments on this date, the Department following submission of the comments. rejected this filing because it was improperly October 2004. bracketed. The petitioners submitted a properly All written comments must be In October and November 2004, the bracketed version of their comments on February 2, submitted in accordance with 19 CFR following companies informed the 2005. 351.303, and must be served on all
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interested parties on the Department’s International Trade Administration, We conducted a sales verification of service list in accordance with 19 CFR U.S. Department of Commerce, 14th Yu¨ cel’s questionnaire responses from 351.303(f). The Department will issue Street and Constitution Avenue, NW, April 4 through April 8, 2005. the final results of this administrative Washington, DC 20230. Scope of the Order review, which will include the results of SUPPLEMENTARY INFORMATION: its analysis of issues raised in any such The products covered by this order comments, within 120 days of Background include circular welded non–alloy steel publication of the preliminary results, On May 15, 1986, the Department pipes and tubes, of circular cross- and will publish these results in the published in the Federal Register the section, not more than 406.4 millimeters Federal Register. This notice is antidumping duty order on welded pipe (16 inches) in outside diameter, published in accordance with section and tube from Turkey. See 51 FR 17784 regardless of wall thickness, surface 751 of the Tariff Act of 1930, as (May 15, 1986). On May 3, 2004, the finish (black, or galvanized, painted), or amended, and 19 CFR 351.213(d)(4). Department published a notice of end finish (plain end, beveled end, opportunity to request an administrative threaded and coupled). Those pipes and Dated: May 31, 2005. tubes are generally known as standard Susan H. Kuhbach, review of this order. See Antidumping or Countervailing Duty Order, Finding, pipe, though they may also be called Acting Assistant Secretary for Import structural or mechanical tubing in Administration. or Suspended Investigation; Opportunity to Request Administrative certain applications. Standard pipes and [FR Doc. E5–2886 Filed 6–6–05; 8:45 am] tubes are intended for the low pressure Review, 69 FR 24117 (May 3, 2004). On BILLING CODE 3510–DS–S conveyance of water, steam, natural gas, May 28, 2004, in accordance with 19 air, and other liquids and gases in CFR 351.213(b), domestic interested plumbing and heating systems, air parties Allied Tube and Wheatland DEPARTMENT OF COMMERCE conditioner units, automatic sprinkler requested a review of Yu¨ cel and systems, and other related uses. Borusan. International Trade Administration Standard pipe may also be used for light On June 30, 2004, the Department load–bearing and mechanical (A–489–501) published a notice of initiation of applications, such as for fence tubing, administrative review of the Notice of Preliminary Results of and for protection of electrical wiring, antidumping duty order on welded pipe Antidumping Duty Administrative such as conduit shells. Review: Certain Welded Carbon Steel and tube from Turkey, covering the The scope is not limited to standard Pipe and Tube from Turkey period May 1, 2003, through April 30, pipe and fence tubing, or those types of 2004. See Initiation of Antidumping and mechanical and structural pipe that are AGENCY: Import Administration, Countervailing Duty Administrative used in standard pipe applications. All International Trade Administration, Reviews and Request for Revocation in carbon steel pipes and tubes within the U.S. Department of Commerce. Part, 69 FR 39409 (June 30, 2004). On physical description outlined above are SUMMARY: In response to a request by November 1, 2004, the Department included in the scope of this order, domestic interested parties, Allied Tube extended the deadline for the except for line pipe, oil country tubular and Conduit Corporation (‘‘Allied preliminary results until no later than goods, boiler tubing, cold–drawn or Tube’’) and Wheatland Tube Company May 31, 2005. See Certain Welded cold–rolled mechanical tubing, pipe and (‘‘Wheatland’’), the Department of Carbon Steel Pipe and Tube from tube hollows for redraws, finished Commerce (‘‘the Department’’) is Turkey: Extension of Time Limit for scaffolding, and finished rigid conduit. conducting an administrative review of Preliminary Results of Antidumping Imports of these products are the antidumping duty order on certain Duty Administrative Review, 69 FR currently classifiable under the welded carbon steel pipe and tube 63366 (November 1, 2004). following Harmonized Tariff Schedule (‘‘welded pipe and tube’’) from Turkey. On August 4, 2004, the Department of the United States (‘‘HTSUS’’) This review covers the following two sent an antidumping duty subheadings: 7306.30.10.00, producers/exporters of the subject administrative review questionnaire to 7306.30.50.25, 7306.30.50.32, merchandise: (1) the Yu¨ cel Group 1 Yu¨ cel. In the cover letter, the 7306.30.50.40, 7306.30.50.55, (‘‘Yu¨ cel’’), which includes C¸ayirova Department erred in asking Yu¨ cel to 7306.30.50.85, and 7306.30.50.90. Boru Sanayi ve Ticaret A.S. respond to section D of the Although the HTSUS subheadings are (‘‘C¸ayirova’’) and its affiliate, Yu¨ cel questionnaire. In its questionnaire provided for convenience and customs Boru Ithalat–Ihracat ve Pazarlama A.S. response, Yu¨ cel reported section D data. purposes, our written description of the and (2) the Borusan Group (‘‘Borusan’’). Subsequently, on January 6, 2005, a scope of this proceeding is dispositive. We preliminarily determine that both Department official spoke with counsel Yu¨ cel and Borusan made sales below for Yu¨ cel about the error, and counsel Verification normal value (‘‘NV’’). If these for Yu¨ cel decided to leave the section D As provided in section 782(i)(3) of the preliminary results are adopted in our information on the record. Counsel for Tariff Act of 1930, as amended (‘‘the final results, we will instruct U.S. Yu¨ cel stated that he was amenable to Act’’), we verified the information Customs and Border Protection (‘‘CBP’’) leaving the cost data on the record provided by Yu¨ cel. We used standard to assess antidumping duties based on without prejudice to Yu¨ cel’s rights vis- verification procedures, including an the difference between the export price a`-vis the requirement of a cost examination of the relevant sales and (‘‘EP’’) and the NV. allegation. See Memorandum to The financial records. Our verification EFFECTIVE DATE: June 7, 2005. File dated January 6, 2005. results are detailed in the company– FOR FURTHER INFORMATION CONTACT: specific verification report placed in the Christopher Hargett, George McMahon, 1 The questionnaire consists of sections A case file in the Central Records Unit or Martin Claessens, at (202) 482–4161, (general information), B (sales in the home market (‘‘CRU’’), room B–099 of the main or to third countries), C (sales to the United States), (202) 482–1167, or (202) 482–5451, D (cost of production/constructed value), and E Department building. We made minor respectively; AD/CVD Operations, (cost of further manufacturing or assembly revisions to certain sales and cost data Office 3, Import Administration, performed in the United States). based on verification findings with the
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exception of warranties, discussed Borusan’s aggregate volume of home– products, more than 20 percent of below. See the Yu¨ cel Verification market sales of the foreign like product Borusan’s home–market sales were sold Report, May 25, 2005, and Calculation were greater than five percent of their at prices below the COP. Further, we Memorandum, May 31, 2005, in the respective company’s aggregate volume found that the prices for these sales did CRU. of U.S. sales of the subject merchandise, not permit the recovery of all costs we determined that each home market within a reasonable period of time. We Product Comparisons was viable. We calculated NV as noted therefore excluded these sales from our We compared the EP to the NV, as in the ‘‘Calculation of NV Based on analysis and used the remaining sales as described in the Export Price and Comparison Market Prices’’ and the basis for determining NV, in Normal Value sections of this notice. In ‘‘Calculation of NV Based on accordance with section 773(b)(1) of the accordance with section 771(16) of the Constructed Value’’ sections of this Act. Act, we first attempted to match notice. C. Calculation of NV Based on contemporaneous sales of products sold Comparison Market Prices in the United States and comparison B. Cost of Production (‘‘COP’’) Analysis market that were identical with respect Because the Department disregarded For Borusan, for those comparison to the following characteristics: (1) sales below the COP in the last products for which there were sales at grade; (2) nominal pipe size; (3) wall completed review of Borusan, we have prices above the COP, we based NV on thickness; (4) surface finish; (5) end reasonable grounds to believe or suspect home–market prices. No allegation was finish. When there were no sales of that sales of the foreign like product submitted that Yu¨ cel made sales below identical merchandise in the home under consideration for the the COP; and therefore, we did not market to compare with U.S. sales, we determination of NV in this review may conduct a sales–below-cost test on compared U.S. sales with the most have been made at prices below the COP Yu¨ cel’s sales. In these preliminary similar merchandise based on the as provided by section 773(b)(2)(A)(ii) of results, for Borusan, we were able to characteristics listed above in order of the Act. Therefore, pursuant to section match all U.S. sales to contemporaneous priority listed. 773(b)(1) of the Act, we initiated a COP sales, made in the ordinary course of investigation of sales by Borusan in the trade, of either an identical or a similar Export Price home market. See Notice of Final foreign like product, based on matching Because both Yu¨ cel and Borusan sold Results of Antidumping Duty characteristics. For Yu¨ cel, we based NV subject merchandise directly to the first Administrative Review: Certain Welded on home–market prices. For U.S. sales unaffiliated purchaser in the United Carbon Steel Pipe and Tube From that we could not appropriately match States prior to importation, and Turkey, 65 FR 48843 (August 11, 2004) to contemporaneous home–market sales, constructed export price methodology (‘‘Final Results, Turkey’’). we used constructed value. For both was not otherwise warranted based on Borusan and Yu¨ cel, we calculated NV 1. Calculation of COP the record facts of this review, in based on free on board (‘‘FOB’’) mill/ accordance with section 772(a) of the In accordance with section 773(b)(3) warehouse or delivered prices to Act, we used EP as the basis for all of of the Act, we calculated the COP based unaffiliated customers, or prices to Yu¨ cel’s and Borusan’s sales. on the sum of Borusan’s costs of affiliated customers which were We calculated EP using, as starting materials and fabrication employed in determined to be at arm’s length (see price, the packed, delivered price to producing the foreign like product, plus discussion below regarding these sales). unaffiliated purchasers in the United selling, general, and administrative We made deductions, where States. In accordance with section expenses (‘‘SG&A’’) and the cost of all appropriate, from the starting price for 772(c)(2)(A) of the Act, we made the expenses incidental to packing and discounts, rebates, inland freight, and following deductions from the starting preparing the foreign like product for pre–sale warehouse expense. price (gross unit price), where shipment. Additionally, we added billing appropriate: foreign inland freight from adjustments and interest revenue. In 2. Test of Comparison Market Sales accordance with section 773(a)(6) of the the mill to warehouse to port, foreign Prices brokerage and handling, international Act, we deducted home–market packing freight, marine insurance, and other We compared the weighted–average costs and added U.S. packing costs. In accordance with section related charges. In addition, we added COP figures to home–market sales of the 773(a)(6)(C)(iii) of the Act, we adjusted duty drawback to the starting price, foreign like product as required by for differences in the circumstances of having found preliminarily that such an section 773(b) of the Act, in order to sale (‘‘COS’’). These circumstances adjustment was warranted under the determine whether these sales had been included differences in imputed credit standard two–prong test. See Allied made at prices below the COP. On a expenses and other direct selling Tube and Conduit Corp. v. United product–specific basis, we compared expenses. We also made adjustments, States, Slip Op. 05–56 (May 12, 2005). the COP to the home–market prices, less any applicable movement charges, where appropriate, for physical Normal Value rebates, discounts, packing, and direct differences in the merchandise in accordance with section 773(a)(6)(C)(ii) A. Selection of Comparison Market selling expenses. of the Act and for differences in the In order to determine whether there 3. Results of the COP Test level of trade (see discussion below was a sufficient volume of sales in the Pursuant to section 773(b)(2)(C)(i) of regarding level of trade). Calculation of home market to serve as a viable basis the Act, where less than 20 percent of NV Based on Constructed Value (‘‘CV’’) for calculating NV, we compared both the respondent’s sales of a given For Yu¨ cel, when we could not Yu¨ cel’s and Borusan’s volume of home– product were at prices less than the determine the NV based on comparison market sales of the foreign like product COP, we do not disregard any below– market sales because there were no to their respective volume of U.S. sales cost sales of that product because we contemporaneous sales of a comparable of the subject merchandise, in determine that the below–cost sales product, we compared the EP to CV. In accordance with section 773(a)(1)(C) of were not made in ‘‘substantial accordance with section 773(e) of the the Act. Because both Yu¨ cel’s and quantities.’’ We found that, for certain Act, we calculated CV based on the sum
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of the cost of manufacturing (‘‘COM’’) of to the initial sections A–C of the Nippon Steel Corporation vs. United the product sold in the United States, questionnaire. Despite these States, 37 F. 3d 1373 (August 8, 2003) plus amounts for SG&A expenses, profit, opportunities, the Department (‘‘Nippon Steel’’). and U.S. packing costs. In accordance discovered at verification that Yu¨ cel In Nippon Steel, the CAFC held that with section 773(e)(2)(A) of the Act, we failed to report warranties to certain ‘‘the statutory mandate that a based SG&A expenses and profit on the customers in its original submissions. In respondent act to the ’best of its ability’ amounts incurred by Yu¨ cel in addition, the Department found that the requires the respondent to do the connection with the production and sale original data reported by Yu¨ cel included maximum it is able to do.’’ See Nippon of the foreign like product in the warranties for customers that were not Steel, 337 F.3d at 1382. comparison market. identified in the database (i.e., For price–to-CV comparisons, we customers to whom Yu¨ cel did not sell Yu¨ cel’s actions fell well below the made adjustments to CV for COS subject merchandise in the home market standard of doing the maximum it was differences, in accordance with section during the POR). Yu¨ cel had the able to do. It failed to properly evaluate 773(a)(8) of the Act and 19 CFR 351.410. opportunity and ability to report and submit the requested information in We made COS adjustments by warranty expenses properly; however, it its initial questionnaire response, and deducting direct selling expenses failed to do so in the initial failed twice more despite specific incurred on comparison market sales questionnaire response and subsequent follow–up questioning by the and adding U.S. direct selling expenses. supplemental questionnaire responses. Department. Indeed, Yu¨ cel’s untimely Although Yu¨ cel presented the Adverse Facts Available presentation of requested information correction to home–market warranty regarding warranties at the beginning of In accordance with section 776(a)(2) expenses at the onset of verification, the verification demonstrated that it would of the Act, the Department has Department did not verify this have been able to provide the determined that the use of facts information. In accordance with Department with the information available is appropriate for the Department practice, Yu¨ cel’s requested, if it had exercised the treatment of warranty expenses for verification outline clearly states the requisite effort. However, Yu¨ cel’s failure purposes of determining the preliminary following: ‘‘{p}lease note that results for the subject merchandise sold to do so by the deadlines for submission verification is not intended to be an demonstrates it did not act to the best by Yu¨ cel. Section 776(a)(2) of the Act opportunity for submitting new factual of its ability. provides: If an interested party (A) information. New information will be withholds information that has been accepted at verification only when (1) Therefore, pursuant to section requested by the administrating the need for that information was not 776(a)(2) of the Act, the Department has authority; (B) fails to provide such evident previously, (2) the information determined that the use of facts information by the deadlines for the makes minor corrections to information available is appropriate with respect to submission of the information or in the already on the record, or (3) the Yu¨ cel’s warranty expenses in the home form and the manner requested, subject information corroborates, supports, or market. Pursuant to section 776(b)(3) of to subsections (c)(1) and (e) of section clarifies information already on the the Act, we have used an adverse 782; (C) significantly impedes a record.’’ See Yu¨ cel’s Verification inference by not accepting Yu¨ cel’s proceeding under this title; or (D) Outline, dated March 25, 2005, at page warranty expenses in the home market. provides such information but the 2. information cannot be verified as Based on the fact that Yu¨ cel Arm’s–Length Sales provided in section 782(i), the repeatedly reported incorrectly its We included in our analysis Yu¨ cel’s administering authority shall, subject to warranty expense data until the and Borusan’s home–market sales to section 782(d), use the facts otherwise beginning of verification, the affiliated customers only where we available in reaching the applicable Department is rejecting Yu¨ cel’s belated determined that such sales were made at determination under this title. correct reporting of warranty expenses. Moreover, section 776(b) of the Act See Yu¨ cel’s Verification Report, dated arm’s–length prices, i.e., at prices provides that: If the administering May 31, 2005, in the CRU. comparable to prices at which Yu¨ cel authority finds that an interested party As stated by the U.S. Court of Appeals and Borusan, respectively, sold has failed to cooperate by not acting to for the Federal Circuit (‘‘CAFC’’), ‘‘if a identical merchandise to their the best of its ability to comply with a respondent ’fails to provide {requested} unaffiliated customers. Each request for information from the information by the deadlines for respondent’s sales to affiliates administering authority, the submission,’ Commerce shall fill in the constituted less than five percent of administering authority, in reaching the gaps with ’facts otherwise available.’ overall home–market sales. To test applicable determination under this The focus of subsection (a) is whether the sales to affiliates were made title, may use an inference that is respondent’s failure to provide at arm’s–length prices, we compared the adverse to the interests of the party in information. The reason for the failure starting prices of sales to affiliated and selecting from among the facts is of no moment. As a separate matter, unaffiliated customers net of all otherwise available. subsection (b) permits Commerce to ’use movement charges, direct selling Yu¨ cel failed to report warranty an inference that is adverse to the expenses, discounts, and packing. expenses properly in the home market interests of {a respondent} in selecting Where the price to that affiliated party and did not provide such information from among the facts otherwise was, on average, within a range of 98 to by the deadlines for the submission of available,’ only if Commerce makes the 102 percent of the price of the same or the information or in the form and the separate determination that the comparable merchandise sold to the manner requested. The Department gave respondent ’has failed to cooperate by unaffiliated parties, we determined that Yu¨ cel several opportunities to report not acting to the best of its ability to the sales made to the affiliated party warranty expenses properly in the comply.’ The focus of subsection (b) is were at arm’s length. See Antidumping WARRH data field. Specifically, the respondent’s failure to cooperate to the Proceedings: Affiliated Party Sales in Department issued Yu¨ cel two best of its ability, not its failure to the Ordinary Course of Trade, 67 FR supplemental questionnaires in addition provide requested information.’’ See 69186 (November 15, 2002).
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Level of Trade made no LOT adjustments in comparing were not made out of warehouses. This As set forth in section 773(a)(1)(B)(i) its U.S. and home–market sales. LOT is most similar to the first LOT in With regard to Borusan, we examined of the Act and in the Statement of the home market (mill–direct and back– information from the respondent on the Administrative Action (‘‘SAA’’) to-back sales). marketing stages involved in the Where possible, we compared U.S. accompanying the Uruguay Round reported home–market and EP sales, sales to sales at the identical home– Agreements Act, at 829–831 (see H.R. including a description of the selling market LOT mill–direct sales and back– Doc. No. 316, 103d Cong., 2d Sess. 829– activities performed by Borusan for each to-back affiliated reseller sales. If no 831 (1994)), to the extent practicable, channel of distribution. Consistent with match was available at the same LOT, the Department calculates NV based on the prior reviews of this respondent, we we compared sales at the U.S. LOT to sales at the same level of trade (‘‘LOT’’) determined that with respect to sales at the second home–market LOT. as U.S. sales, either EP or CEP. When Borusan’s sales, there were two home– To determine whether an LOT the Department is unable to find sale(s) market LOTs and one U.S. LOT (i.e., the adjustment was warranted, we in the comparison market at the same EP LOT). See Final Results, Turkey, 65 examined the prices of comparable LOT as the U.S. sale(s), the Department FR 48843. For home–market sales, we product categories, net of all may compare sales in the U.S. and found that Borusan’s back–to-back sales adjustments, between sales at the two foreign markets at different LOTs. The by affiliated resellers and mill–direct home–market LOTs we had designated. NV LOT is that of the starting–price sales comprised one LOT. We found We found a pattern of consistent price sales in the home market. To determine that Borusan’s inventory sales by differences between sales at these LOTs. whether home–market sales are at a affiliated resellers warranted a separate In making the LOT adjustment, we different LOT than U.S. sales, we LOT. Back–to-back sales by affiliated calculated the difference in prices examine stages in the marketing process resellers are sales by Borusan through between the two home–market LOTs. and selling functions along the chain of an affiliated selling agent. Such sales are Where U.S. sales were compared to distribution between the producer and very similar to mill–direct sales; home–market sales at a different LOT, the unaffiliated customer. If the however, the affiliated agent arranges we adjusted the home–market price by comparison–market sales are at a for freight. The affiliated agent does not the amount of this calculated difference. different LOT and the differences affect take possession of the merchandise; it is Currency Conversion price comparability, as manifested in a transferred directly from the mill to the pattern of consistent price differences final customer. For mill–direct sales, The Department’s preferred source for between the sales on which NV is based Borusan provided customer advice, daily exchange rates is the Federal and comparison–market sales at the product information and technical Reserve Bank. However, the Federal LOT of the export transaction, we make services, warranty services, and Reserve Bank does not track or publish an LOT adjustment under section advertising. For back–to-back sales by exchange rates for the Turkish lira. 773(a)(7)(A) of the Act. affiliated resellers, the resellers engage Therefore, we made currency In implementing these principles, we in marketing activities and make freight conversions based on the daily examined information from each arrangements, and warranty services are exchange rates from the Dow Jones respondent regarding the marketing provided by the mill. For inventory Business Information Services. stages involved in the reported home– sales by affiliated resellers, the resellers Section 773A(a) directs the market and EP sales, including a have a sales staff that sells Borusan Department to use a daily exchange rate description of the selling activities products out of the reseller’s warehouse. in order to convert foreign currencies performed by each for each channel of Those resellers maintain such into U.S. dollars, unless the daily rate distribution. We determined that with warehouses, provide product involves a ‘‘fluctuation.’’ It is the respect to Yu¨ cel’s sales, there was one information, and customer advice. Department’s practice to find that a home market LOT and one U.S. LOT, Warranty services for these sales were fluctuation exists when the daily and with respect to Borusan’s sales, provided by the mill. exchange rate differs from a benchmark there were two home–market LOTs and The first main difference between rate by 2.25 percent. The benchmark one U.S. LOT. Borusan’s inventory sales by affiliated rate is defined as the rolling average of For home–market sales, we found that resellers and Borusan’s mill–direct and the rates for the past 40 business days. Yu¨ cel sold mill–direct, FOB, without back–to-back sales is off–site warehouse When we determine that a fluctuation the use of a selling agent. In some cases, maintenance and operation. Borusan’s existed, we generally utilize the Yu¨ cel arranged for freight; however, the affiliated resellers that sell from benchmark rate instead of the daily rate, purchaser took possession of the inventory operate their own in accordance with established practice. merchandise upon loading in all cases. warehouses. Second, for its back–to- Date of Sale No additional services were undertaken back and mill–direct sales, Borusan by Yu¨ cel. transfers the title of the merchandise In the home market, Yu¨ cel reported Yu¨ cel’s U.S. sales were made at only directly and immediately to the first its date of sale based on the invoice one LOT. Selling functions were limited unaffiliated customer, but Borusan date. However, for sales to the United to maintaining stock until full container cannot perform such a transfer of title in States, Yu¨ cel reported its date of sale loads were produced, and arranging for its sales out–of-inventory by affiliated based on the ‘‘order confirmation date,’’ shipment of the merchandise to the resellers. Last, Borusan provides which Yu¨ cel refers to as its ‘‘contract United States. Yu¨ cel’s U.S. sales were discounts for both mill–direct and back– date.’’ Yu¨ cel indicated that its ‘‘order made–to-order, with title passing to the to-back sales, but provides only very confirmation’’ constitutes the purchaser when the goods passed the limited discounts for inventory sales. acceptance of an offer made by its U.S. ship’s rail. No other sales activities were Borusan’s U.S. sales were made at customers which was made in the form undertaken by Yu¨ cel. only one LOT. The selling functions for of a purchase order. See Yu¨ cel’s Because Yu¨ cel’s sales functions in U.S. sales included customer advice and supplemental questionnaire response each market were nearly identical, we product information, warranty services, dated February 24, 2005, at pages 24–25. have determined that the LOT in each and freight and delivery arrangements. During verification, Yu¨ cel reported that market is the same and therefore have Borusan’s sales to the United States it confirms orders via e–mail and that
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Yu¨ cel maintains a file that documents Assessment Secretary’s presumption that the order confirmations for each of its Pursuant to section 351.212(b) of the reimbursement of antidumping duties sales to the United States. At Department’s regulations, the occurred and the subsequent assessment verification, the Department attempted Department calculated an assessment of double antidumping duties. to corroborate this claim by verifying a rate for each importer of subject This determination is issued and sample of the order confirmations, merchandise. Upon completion of this published in accordance with sections which would enable a comparison to review, the Department will instruct 751(a)(1) and 777(I)(1) of the Act. the reported shipment sale dates. CBP to assess antidumping duties on all Dated: May 27, 2005. However, Yu¨ cel was unable to produce entries of subject merchandise by those Holly A. Kuga, all the e–mail confirmations requested importers. We have calculated each Acting Assistant Secretary for Import by the Department and Yu¨ cel was importer’s duty assessment rate based Administration. unable to substantiate its claim that on the ratio of the total amount of [FR Doc. E5–2887 Filed 6–6–05; 8:45 am] order confirmation date (‘‘contract antidumping duties calculated for the BILLING CODE 3510–DS–S date’’) was representative of the date on examined sales to the total calculated which the material terms of sale were entered value of examined sales. Where finalized. Therefore, for purposes of the the assessment rate is above de minimis, DEPARTMENT OF COMMERCE preliminary results, we have used the the importer–specific rate will be International Trade Administration invoice date reported by Yu¨ cel as the assessed uniformly on all entries made basis for Yu¨ cel’s U.S. date of sale. during the POR. (C–122–839) Cash Deposit Requirements Preliminary Results of Review Notice of Preliminary Results of The following cash deposit rates will Countervailing Duty Administrative As a result of this review, we be effective upon publication of the Review: Certain Softwood Lumber preliminarily determine that the final results of this administrative Products from Canada following margins exist for the period review for all shipments of welded pipe May 1, 2003, through April 30, 2004: and tube from Turkey entered, or AGENCY: Import Administration, withdrawn from warehouse, for International Trade Administration, Manufacturer/Exporter Margin (percent) consumption on or after the publication Department of Commerce. date, as provided by section 751(a)(1) of SUMMARY: The Department of Commerce Yu¨cel ...... 12.11 the Act: (1) the cash deposit rates for the (the Department) is conducting an Borusan ...... 0.86 companies listed above will be the rates administrative review of the established in the final results of this countervailing duty order on certain We will disclose the calculations used review, except if the rates are less than softwood lumber products from Canada in our analysis to parties to this 0.5 percent and, therefore, de minimis, for the period April 1, 2003, through proceeding within five days of the the cash deposit will be zero; (2) for March 31, 2004. If the final results publication date of this notice. See previously reviewed or investigated remain the same as these preliminary section 351.224(b) of the Department’s companies not listed above, the cash results of administrative review, we will regulations. Interested parties are deposit rate will continue to be the instruct U.S. Customs and Border invited to comment on the preliminary company–specific rate published for the Protection (CBP) to assess results. Interested parties may submit most recent period; (3) if the exporter is countervailing duties as detailed in the ‘‘Preliminary Results of Review’’ section case briefs within 30 days of the date of not a firm covered in this review, a prior of this notice. Interested parties are publication of this notice. Rebuttal review, or the less–than-fair–value invited to comment on these briefs, limited to issues raised in the (‘‘LTFV’’) investigation, but the manufacturer is, the cash deposit rate preliminary results. (See Public case briefs, may be filed no later than 37 Comment section of this notice.) days after the date of publication of this will be the rate established for the most EFFECTIVE DATE: June 7, 2005. notice. Parties who submit arguments recent period for the manufacturer of are requested to submit with each the merchandise; and (4) if neither the FOR FURTHER INFORMATION CONTACT: argument: (1) a statement of the issue, exporter nor the manufacturer is a firm Stephanie Moore at (202) 482–3692, or (2) a brief summary of the argument, covered in this or any previous review Robert Copyak at (202) 482–2209, AD/ and (3) a table of authorities. Further, or the LTFV investigation conducted by CVD Operations, Office 3, Import the Department, the cash deposit rate Administration, International Trade parties submitting written comments will be 14.74 percent, the ‘‘All Others’’ Administration, U.S. Department of should provide the Department with an rate established in the LTFV Commerce, Room 4012, 14th Street and additional copy of the public version of investigation. These cash deposit Constitution Avenue, NW, Washington, any such comments on a diskette. Any requirements, when imposed, shall DC 20230. interested party may request a hearing remain in effect until publication of the SUPPLEMENTARY INFORMATION: within 30 days of publication of this final results of the next administrative notice. See section 351.310(c) of the review. Background Department’s regulations. If requested, a This notice serves as a preliminary On May 22, 2002, the Department hearing will be held 44 days after the reminder to importers of their published in the Federal Register (67 publication of this notice, or the first responsibility under section FR 36070) the amended final affirmative workday thereafter. The Department 351.402(f)(2) of the Department’s countervailing duty (CVD) will publish a notice of the final results regulations to file a certificate regarding determination and CVD order on certain of this administrative review, which the reimbursement of antidumping softwood lumber products from Canada will include the results of its analysis of duties prior to liquidation of the (67 FR 37775, May 30, 2002). On May issues raised in any written comments relevant entries during this review 3, 2004, the Department published a or hearing, within 120 days from period. Failure to comply with this notice of opportunity to request an publication of this notice. requirement could result in the administrative review of this CVD order.
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See Antidumping or Countervailing supplemental questionnaires in a timely or the like) along any of its edges or Duty Order, Finding, or Suspended manner. faces, whether or not planed, Investigation; Opportunity to Request Pursuant to 19 CFR 351.301, the sanded or finger–jointed. Administrative Review, 69 FR 24117 deadline for interested parties to submit Although the HTSUS subheadings are (May 3, 2004). The Department received factual information is 140 days after the provided for convenience and customs requests that it conduct an aggregate last day of the anniversary month. purposes, the written description of the review from, among others, the However, both petitioners’ and the merchandise subject to this order is Coalition for Fair Lumber Imports Canadian parties requested that the dispositive. Executive Committee (petitioners) and Department extend this due date. After As specifically stated in the Issues the Government of Canada (GOC), as a series of extensions, we established and Decision Memorandum well as requests for review covering an that the deadline for interested parties accompanying the Notice of Final estimated 263 individual companies.1 to submit factual information would be Determination of Sales at Less Than On June 25, 2004, we initiated the March 2, 2005. Accordingly, the due Fair Value: Certain Softwood Lumber review covering the period April 1, date for submitting rebuttal and/or Products from Canada, 67 FR 15539 2003, through March 31, 2004. See 69 clarifying information was extended to (April 2, 2002) (see comment 53, item D, FR 39409. March 15, 2005. Both petitioners and page 116, and comment 57, item B–7, On July 30, 2004, we determined to the Canadian parties submitted factual page 126), available at conduct this administrative review on information by the March 2 and March www.ia.ita.doc.gov, drilled and notched an aggregate basis consistent with 15 deadlines. lumber and angle cut lumber are section 777A(e)(2)(B) of the Tariff Act of covered by the scope of this order. Period of Review 1930, as amended (the Act). See the The following softwood lumber memorandum to James J. Jochum, The period of review (POR) for which products are excluded from the scope of Assistant Secretary for Import we are measuring subsidies is April 1, this order provided they meet the Administration, from Jeffrey May, 2003, through March 31, 2004. specified requirements detailed below: (1) Stringers (pallet components used Deputy Assistant Secretary for Import Scope of the Review Administration, entitled, ‘‘Methodology for runners): if they have at least for Conducting the Review,’’ dated July The products covered by this order two notches on the side, positioned 30, 2004, which is a public document are softwood lumber, flooring and at equal distance from the center, to on file in the Central Records Unit siding (softwood lumber products). properly accommodate forklift (CRU) in room B–099 of the main Softwood lumber products include all blades, properly classified under Commerce building. The Department products classified under headings HTSUS 4421.90.98.40. (2) Box–spring frame kits: if they further determined that it was not 4407.1000, 4409.1010, 4409.1090, and contain the following wooden practicable to conduct any form of 4409.1020, respectively, of the pieces—two side rails, two end (or company–specific review. Id. Harmonized Tariff Schedule of the On September 8, 2004, we issued our United States (HTSUS), and any top) rails and varying numbers of initial questionnaire to the GOC as well softwood lumber, flooring and siding slats. The side rails and the end as to the Provincial Governments of described below. These softwood rails should be radius–cut at both Alberta (GOA), British Columbia lumber products include: ends. The kits should be (GOBC), Manitoba (GOM), New (1) Coniferous wood, sawn or chipped individually packaged, they should Brunswick (GONB), Newfoundland lengthwise, sliced or peeled, contain the exact number of (GON), Nova Scotia (GONS), Ontario whether or not planed, sanded or wooden components needed to (GOO), Prince Edward Island (GOPEI), finger–jointed, of a thickness make a particular box spring frame, Quebec (GOQ), and Saskatchewan exceeding six millimeters; with no further processing required. (2) Coniferous wood siding (including (GOS). None of the components exceeds 1’’ On September 30, 2004, we extended strips and friezes for parquet in actual thickness or 83’’ in length. the period for completion of these flooring, not assembled) (3) Radius–cut box–spring-frame preliminary results until May 31, 2005, continuously shaped (tongued, components, not exceeding 1’’ in pursuant to section 751(a)(3)(A) of the grooved, rabbeted, chamfered, v– actual thickness or 83’’ in length, Act. See Certain Softwood Lumber jointed, beaded, molded, rounded ready for assembly without further Products From Canada: Extension of or the like) along any of its edges or processing. The radius cuts must be Time Limit for Preliminary Results of faces, whether or not planed, present on both ends of the boards Countervailing Duty Administrative sanded or finger–jointed; and must be substantial cuts so as (3) Other coniferous wood (including Review, 69 FR 58394 (September 30, to completely round one corner. strips and friezes for parquet (4) Fence pickets requiring no further 2004). On November 22, 2004, the GOC, flooring, not assembled) processing and properly classified GOA, GOBC, GOM, GONB, GON, continuously shaped (tongued, under HTSUS heading 4421.90.70, GONS, GOO, GOPEI, GOQ, and GOS grooved, rabbeted, chamfered, v– 1’’ or less in actual thickness, up to submitted their initial questionnaire jointed, beaded, molded, rounded 8’’ wide, 6’ or less in length, and responses. or the like) along any of its edges or have finials or decorative cuttings From February through May 2005, we faces (other than wood moldings that clearly identify them as fence issued a series of supplemental and wood dowel rods) whether or pickets. In the case of dog–eared questionnaires to the GOC, GOBC, GOA, not planed, sanded or finger– fence pickets, the corners of the GOS, GOM, GOO, GOQ, GONS, and jointed; and boards should be cut off so as to (4) Coniferous wood flooring GONB. The Federal and Provincial remove pieces of wood in the shape (including strips and friezes for Governments of Canada responded to all of isosceles right angle triangles parquet flooring, not assembled) with sides measuring 3/4 inch or 1 Of these 263 company-specific requests, 116 continuously shaped (tongued, more. were for zero/de minimis rate reviews under 19 CFR grooved, rabbeted, chamfered, v– (5) U.S. origin lumber shipped to 351.213(k)(1). jointed, beaded, molded, rounded Canada for minor processing and
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imported into the United States, is that conforms to the home design Department allocated, where applicable, excluded from the scope of this package being entered; all of the non–recurring subsidies order if the following conditions are iv. In the case of multiple shipments provided to the producers/exporters of met: 1) the processing occurring in on the same contract, all items subject merchandise over a 10-year Canada is limited to kiln–drying, listed in E(iii) which are included average useful life (AUL) of renewable planing to create smooth–to-size in the present shipment shall be physical assets for the industry board, and sanding, and 2) if the identified as well. concerned, as listed in the Internal importer establishes to the Lumber products that CBP may Revenue Service’s (IRS) 1977 Class Life satisfaction of CBP that the lumber classify as stringers, radius cut box– Asset Depreciation Range System, as is of U.S. origin. spring-frame components, and fence updated by the Department of the (6) Softwood lumber products pickets, not conforming to the above Treasury. See Notice of Preliminary contained in single family home requirements, as well as truss Affirmative Countervailing Duty packages or kits,2 regardless of tariff components, pallet components, and Determination, Preliminary Affirmative classification, are excluded from the door and window frame parts, are Critical Circumstances Determination, scope of this order if the importer covered under the scope of this order and Alignment of Final Countervailing certifies to items 6 A, B, C, D, and and may be classified under HTSUS Duty Determination With Final requirement 6 E is met: subheadings 4418.90.45.90, Antidumping Determination: Certain A. The imported home package or kit 4421.90.70.40, and 4421.90.97.40. Softwood Lumber Products From constitutes a full package of the Finally, as clarified throughout the Canada, 66 FR 43186 (August 2001) number of wooden pieces specified course of the investigation, the (Preliminary Determination); see also in the plan, design or blueprint following products, previously Notice of Final Affirmative necessary to produce a home of at identified as Group A, remain outside Countervailing Duty Determination and least 700 square feet produced to a the scope of this order. They are: Final Negative Critical Circumstances specified plan, design or blueprint; 1. Trusses and truss kits, properly Determination: Certain Softwood B. The package or kit must contain all classified under HTSUS 4418.90; Lumber Products From Canada, 67 FR necessary internal and external 2. I–joist beams; 15545 (April 2, 2002) (Final 3. Assembled box spring frames; Determination). No interested party doors and windows, nails, screws, 4. Pallets and pallet kits, properly challenged the 10-year AUL derived glue, sub floor, sheathing, beams, classified under HTSUS 4415.20; posts, connectors, and if included 5. Garage doors; from the IRS tables. Thus, in this in the purchase contract, decking, 6. Edge–glued wood, properly review, we have allocated, where trim, drywall and roof shingles classified under HTSUS item applicable, all of the non–recurring specified in the plan, design or 4421.90.98.40; subsidies provided to the producers/ blueprint. 7. Properly classified complete door exporters of subject merchandise over a C. Prior to importation, the package or frames; 10-year AUL. kit must be sold to a retailer of 8. Properly classified complete Recurring and Non–Recurring Benefits complete home packages or kits window frames; pursuant to a valid purchase 9. Properly classified furniture. The Department has previously contract referencing the particular In addition, this scope language has determined that the sale of Crown home design plan or blueprint, and been further clarified to now specify timber by Canadian provinces confers signed by a customer not affiliated that all softwood lumber products countervailable benefits on the with the importer; entered from Canada claiming non– production and exportation of the D. Softwood lumber products entered subject status based on U.S. country of subject merchandise under 771(5)(E)(iv) as part of a single family home origin will be treated as non–subject of the Act because the stumpage fees at package or kit, whether in a single U.S.-origin merchandise under the which the timber is sold are for less entry or multiple entries on countervailing duty order, provided that than adequate remuneration. See, e.g., multiple days, will be used solely these softwood lumber products meet ‘‘Recurring and Non–Recurring for the construction of the single the following condition: upon entry, the Benefits’’ section of the March 21, 2002, family home specified by the home importer, exporter, Canadian processor Issues and Decision Memorandum the design matching the entry. and/or original U.S. producer establish accompanied the Final Determination E. For each entry, the following to CBP’s satisfaction that the softwood (Final Determination Decision documentation must be retained by lumber entered and documented as Memorandum); see also Notice of the importer and made available to U.S.-origin softwood lumber was first Preliminary Results of Countervailing CBP upon request: produced in the United States as a Duty Administrative Review: Certain i. A copy of the appropriate home lumber product satisfying the physical Softwood Lumber Products from design, plan, or blueprint matching parameters of the softwood lumber Canada, 69 FR 33204 (June 14, 2004) the entry; scope.3 The presumption of non–subject (Preliminary Results of 1st Review). For ii. A purchase contract from a retailer status can, however, be rebutted by the reasons described in the program of home kits or packages signed by evidence demonstrating that the sections, below, the Department a customer not affiliated with the merchandise was substantially continues to find that Canadian importer; transformed in Canada. provinces sell Crown timber for less iii. A listing of inventory of all parts than adequate remuneration to softwood Subsidies Valuation Information of the package or kit being entered lumber producers in Canada. Pursuant Allocation Period to 19 CFR 351.524(c)(1), subsidies 2 conferred by the government provision To ensure administrability, we clarified the In the underlying investigation and language of exclusion number 6 to require an of a good or service normally involve importer certification and to permit single or pursuant to 19 CFR 351.524(d)(2), the recurring benefits. Therefore, consistent multiple entries on multiple days as well as with our regulations and past practice, instructing importers to retain and make available 3 See the scope clarification message (# 3034202), for inspection specific documentation in support of dated February 3, 2003, to CBP, regarding treatment benefits conferred by the provinces’ each entry. of U.S. origin lumber on file in the CRU. administered Crown stumpage programs
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have, for purposes of these preliminary derived simple averaged POR rates for Other Programs results, been expensed in the year of both short–term and long–term debt. We also examined a number of non– receipt. Some of the reviewed programs stumpage programs administered by the In this review the Department is also provided long–term loans to the Canadian Federal Government and investigating other programs that softwood lumber industry with variable certain Provincial Governments in involve the provision of grants to interest rates instead of fixed interest Canada. To calculate the country–wide producers and exporters of subject rates. Because we were unable to gather rate for these programs, we used the merchandise. Under 19 CFR 351.524, information on variable interest rates same methodology employed in the first benefits from grants can either be charged on commercial loans in Canada, administrative review. For federal classified as providing recurring or non– we have used as our benchmark for programs that were found to be specific recurring benefits. Recurring benefits those variable loans the rate applicable because they were limited to certain are expensed in the year of receipt, to long–term fixed interest rate loans for regions, we calculated the while grants providing non–recurring the POR as reported by the GOC. countervailable subsidy rate by dividing benefits are allocated over time Aggregate Subsidy Rate Calculation the benefit by the relevant denominator corresponding to the AUL of the (i.e., total production of softwood industry under review. However, under As noted above, this administrative lumber in the region or total exports of 19 CFR 351.524(b)(2), grants which review is being conducted on an softwood lumber to the United States provide non–recurring benefits will also aggregate basis. We have used the same from that region), and then multiplying be expensed in the year of receipt if the methodology to calculate the country– that result by the relative share of total amount of the grant under the program wide rate for the programs subject to softwood exports to the United States is less than 0.5 percent of the relevant this review that we used in the Final from that region. For federal programs sales during the year in which the grant Determination and Notice of Final that were not regionally specific, we was approved (referred to as the 0.5 Results of Countervailing Duty divided the benefit by the relevant percent test). We have preliminarily Administrative Review and Rescission country–wide sales (i.e., total sales of determined to expense all grants under of Certain Company–Specific Reviews: softwood lumber, total sales of the wood non–stumpage programs in the year of Certain Softwood Lumber Products from products manufacturing industry receipt. Canada, 69 FR 75917 (December 20, (which includes softwood lumber), or Benchmarks for Loans and Discount 2004) (Final Results of 1st Review). total sales of the wood products manufacturing and paper industries). Rate Provincial Crown Stumpage Programs For provincial programs, we In selecting benchmark interest rates For stumpage programs administered calculated the countervailable subsidy for use in calculating the benefits by the Canadian provinces subject to rate by dividing the benefit by the conferred by the various loan programs this review, we first calculated a relevant sales amount for that province under review, the Department’s normal provincial subsidy rate by dividing the (i.e., total exports of softwood lumber practice is to compare the amount paid aggregate benefit conferred under each from that province to the United States, by the borrower on the government specific provincial stumpage program total sales of softwood lumber in that provided loans with the amount the by the total stumpage denominator province, or total sales of the wood firm would pay on a comparable calculated for that province. For further products manufacturing and paper commercial loan actually obtained on information regarding the stumpage industries in that province). That result the market. See section 771(5)(E)(ii) of denominator, see ‘‘Numerator and was then multiplied by the relative the Act; 19 CFR 351.505(a)(1) and (3)(i). Denominator Used for Calculating the share of total softwood exports to the However, because we are conducting Stumpage Programs’ Net Subsidy Rates’’ United States from that province. this review on an aggregate basis and we section, below. As required by section Where the countervailable subsidy are not examining individual 777A(e)(2)(B) of the Act, we next rate for a program was less than 0.005 companies, for those programs requiring calculated a single country–wide percent, the program was not included a Canadian dollar–denominated, short– subsidy rate. To calculate the country– in calculating the country–wide term or long–term benchmark interest wide subsidy rate conferred on the countervailing duty rate. rate, we used for these preliminary subject merchandise from all stumpage Numerator and Denominator Used for results the national average interest programs, we weight–averaged the rates on commercial short–term or long– Calculating the Stumpage Programs’ subsidy rate from each provincial Net Subsidy Rates5 term Canadian dollar–denominated stumpage program by the respective loans as reported by the GOC. provinces’ relative shares of total 1. Aggregate Numerator and The information submitted by the exports to the United States during the Denominator GOC was for fixed–rate short–term and POR. As in Final Determination and the As noted above, the Department is long–term debt. For short–term debt, the Final Results of the 1st Review, these determining the stumpage subsidies to GOC provided monthly weight– weight–averages of the subject the production of softwood lumber in averaged short–term interest rates based merchandise do not include exports Canada on an aggregate basis. The on the prime business rate, small and from the Maritime Provinces or sales of methodology employed to calculate the medium enterprise (SME) rate, three- companies excluded from the ad valorem subsidy rate requires the use month corporate paper rate, and one- 4 countervailing duty order. We then of a compatible numerator and month bankers’ acceptance rate, as summed these weight–average subsidy denominator. In the final results of the reported by the Bank of Canada. For rates to determine the country–wide rate first review, the Department explained long–term debt, the GOC provided for all provincial Crown stumpage that in the numerator of the net subsidy quarterly implied rates calculated from programs. rate calculation, the Department long–term debt and the interest payments made on long–term debt as 4 The Maritime provinces are Nova Scotia, New 5 The denominators used for non-stumpage reported by Statistics Canada Brunswick, Newfoundland, and Prince Edward programs are discussed below in the individual (STATCAN). Based on these rates, we Island. program write-ups.
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included only the benefit from those Results of 1st Review Decision In the current review, we requested softwood Crown logs that entered and Memorandum at Comment 16. benefit and sales data, on an aggregate were processed by sawmills during the basis for each province, as they 2. Adjustments to Account for POR (i.e., logs used in the lumber pertained to the excluded companies Companies Excluded from the production process). See during the POR. \ page 2 of our April 8, Countervailing Duty Order ‘‘Denominator’’ section of the December 2005 supplemental questionnaire. The 13, 2004, Issues and Decision In the investigation, we deducted GOC, GOO, and GOQ responded that Memorandum that accompanied the from the denominator sales by they did not have the requested POR Final Results of 1st Review (Final companies that were excluded from the sales data. See page 2 of the GOC’s April Results of 1st Review Decision countervailing duty order. The 28, 2005 questionnaire response. Memorandum). Accordingly, the Department has since also concluded Regarding the benefit information we denominator used for the final expedited reviews for a number of requested, the GOQ and GOO stated that calculation included only those companies, pursuant to which a number the excluded companies in their products that result from the softwood of additional companies have been respective provinces did not harvest lumber manufacturing process. Id. For excluded from the countervailing duty Crown timber during the POR. The GOC purposes of these preliminary results, order. See Final Results of stated the same with respect to the we continue to calculate the numerator Countervailing Duty Expedited Reviews: excluded companies in the Yukon and denominator using the approach Certain Softwood Lumber Products from Territories. Id. at page 6. The GOC, GOO adopted in the final results of the first Canada: Notice of Final Results of and GOQ further claimed they did not review.6 Countervailing Duty Expedited Reviews, have any information regarding the volume of lumber and/or Crown logs Consistent with the Department’s 68 FR 24436, (May 7, 2003); see also purchased by the excluded companies previously established methodology, we Notice of Final Results of Countervailing Duty Expedited Reviews of the Order on during the POR. included the following in the Pursuant to our prior practice and, as denominator: softwood lumber, Certain Softwood Lumber from Canada, 69 FR 10982 (March 9, 2004). In the discussed above, we have deducted the including softwood lumber that sales of all companies excluded from undergoes some further processing (so– final results of the first review, we removed the sales of companies the countervailing duty order from the called ‘‘remanufactured’’ lumber), relevant sales denominators used to softwood co–products (e.g., wood chips excluded from the countervailing duty order from the relevant sales calculate the country–wide subsidy and sawdust) that resulted from rates. Because we lack POR sales data softwood lumber production at denominators of our country–wide rate calculations. See ‘‘Excluded from the excluded companies, we have, sawmills, and residual products consistent with our approach in the produced by sawmills that were the Companies’’ section of the Final Results of 1st Review Decision Memorandum. final results of first review, indexed the result of the softwood lumber excluded companies’ sales data to the manufacturing process, specifically, In its case briefs submitted for consideration in the final results of the POR using province–specific lumber softwood fuelwood and untreated price indices obtained from STATCAN. softwood ties. first review, the GOC argued for the first time in that proceeding that, for the We then subtracted the indexed sales We would have included in the numerator and denominator to match, data of the excluded companies from denominator those softwood co– the Department must also reduce the the corresponding provincial products produced by lumber numerator to account for any de denominators. See Preliminary Results remanufacturers that resulted from the minimis benefits received by the of 1st Review, 69 FR at 33207 and the softwood lumber manufacturing excluded companies.7 See, e.g., Final ‘‘Excluded Companies’’ section of the process. However, the GOC failed to Results of 1st Review Decision Final Results of 1st Review Decision separate softwood co–products that Memorandum at Comment 15. We Memorandum. Because the Canadian parties have resulted from the softwood lumber agreed with the GOC in principle. Id. stated that the excluded companies did manufacturing process of lumber However, because the GOC first raised not acquire Crown timber during the remanufacturers from those resulting the issue in its case briefs, the POR and because they have not from the myriad of other production Department was unable to solicit the provided any other additional benefit processes performed by producers in the information from the excluded data from the companies, we have not remanufacturing category that have Canadian parties regarding the adjusted the aggregate numerator data nothing to do with the production of appropriate numerator. Thus, we placed from the relevant provinces. subject merchandise. Lacking the the exclusion calculations from the information necessary to determine the underlying investigation and expedited 3. Pass–through value of softwood co–products that reviews on the record of the first review. resulted from the softwood lumber In the first administrative review, the Id. We then multiplied the Canadian parties claimed that a portion manufacturing process of lumber countervailable volumes of logs and remanufacturers during the softwood of the Crown timber processed by lumber reported by the excluded sawmills was purchased by the mills in lumber manufacturing process, we have companies by each subject provinces’ preliminarily determined not to include arm’s–length transactions with weight–average unit benefit. The independent harvesters. The Canadian any softwood co–product values from resulting products were then removed the non–sawmill category. See Final parties further claimed that such from provincial stumpage benefit of transactions must not be included in the each of the corresponding province. See subsidy calculation unless the 6 In the case of Alberta and British Columbia, it Final Results of 1st Review Decision was necessary to derive the volume of softwood Department determines that the benefit Crown logs that entered and were processed by Memorandum at Comment 15. to the independent harvester passed sawmills during the POR (i.e., logs used in the through to the lumber producers. In the lumber production process). Our methodology for 7 Though excluded from the countervailing duty deriving those volumes is described in the order, many companies involved in the exclusion first review, we determined that Alberta, Calculation of Provincial Benefits section of these and/or expedited review processes received de British Columbia (B.C.), Manitoba, preliminary results. minimis levels of countervailable benefits. Ontario, and Saskatchewan each failed
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to substantiate this claim. See data and supporting information for us Review, 69 FR at 33208. In the final Preliminary Results of 1st Review, 69 FR to analyze with respect to Ontario and results of the first review, the at 33208, 33209 and Comments 10 and Manitoba. Regarding Quebec, the GOQ Department found that it is common for 11 of the Final Results of 1st Review asserted that the Department would sawmills in Alberta to enter into Decision Memorandum. have to conduct a pass–through analysis agreements where a tenure–holding The basis of our determination in the before it included any softwood log independent harvester will supply first administrative review was that volumes harvested under Forest timber to the sawmills but the sawmill transactions cannot be considered Management Contracts (FMCs) and will pay the stumpage directly to the arm’s–length transactions if they are Forest Management Agreements GOA. Id.; see also Final Results of 1st characterized by limitations that (FMAs).8 Review Decision Memorandum at constrain buyers and sellers of We have reviewed and considered all Comment 11. Accordingly, we found harvested Crown timber or other of the information provided on the that in such transactions, known as conditions that render those sales record of this administrative review. We ‘‘delegation of signing authority’’ or SA ineligible for the pass–through analysis. determine that none of the provinces or agreements, any stumpage benefit The limitations and other conditions we parties provided any new information would go directly to the sawmill paying identified include (1) government– regarding their aggregate claims which the stumpage fee, just as if the sawmill imposed appurtenancy and local warrants a change in or departure from were drawing from its own tenure and processing requirements; (2) the methodology we used in the first contracting out for harvesting and government–mandated wood supply administrative review. As in the first hauling services. We therefore found agreements; (3) the structure of certain administrative review, we determine that the GOA failed to substantiate that log purchase agreements; (4) fiber that Alberta, B.C., Manitoba, Ontario, the volumes in the TDA survey were exchanges between Crown tenure and Saskatchewan each failed to free of any volumes associated with SA holders; and (5) the payment of Crown provide the information necessary to agreements and, thus, the GOA’s pass– stumpage fees by sawmills for logs demonstrate that the transactions through claim was not warranted. Id. purchased from independent harvesters. included in their respective ‘‘aggregate’’ In the current review, we stated that Thus, the starting point of our analysis claims were in fact conducted at arm’s for any pass–through claim, the GOA was to examine whether in these log length. Consistent with our had to provide a breakdown by species sale transactions the ability of a buyer determination in the first administrative of the total volume and value that it or seller to bargain freely with review, we also determine that no pass– claims did not pass–through to the whomever they chose was encumbered through analysis is warranted for many purchasing sawmill. See page III–22 of by government mandates or other of the transactions, e.g., where the our September 8, 2004 questionnaire. conditions that render those sales not at sawmill paid the stumpage fee directly We also instructed the GOA not to arm’s–length or otherwise ineligible for to the Crown, and for fiber exchanges include in its pass–through claim any the pass–through analysis. If a between Crown tenure holders. We purchases for which the mills paid the transaction was conducted under the therefore preliminarily determine that stumpage fee to the Crown. Id. The GOA claimed in its initial constraint(s) of one or more of these changes to the subsidy calculation based questionnaire response that ‘‘at least by factors, we determined that it was not on the provinces’ ‘‘aggregate’’ claims are 1.7 million cubic meters of softwood conducted at arm’s–length or otherwise not warranted. logs were purchased by Alberta mills in is ineligible for a pass–through analysis, However, for purposes of these and no adjustment to the stumpage arm’s length, cash only transactions preliminary results, we preliminarily calculation was warranted. For example, with unrelated parties.’’ See page XII–1 determine that, based our analysis of the where we found that the sawmills paid and AB–S–76 of the GOA’s November company–specific data and information the Crown for stumpage fees for logs 22, 2004 questionnaire response. As in provided by the OLMA, a reduction in acquired from so–called independent the first review, the GOA based its the Ontario subsidy benefit is harvesters, no pass–through analysis contention on the TDA survey, as warranted. Our analysis and was warranted because any benefits go updated for the POR. We note that the preliminary findings with respect to directly to the sawmill. Id. updated TDA survey and the GOA’s In anticipation of a similar claim in these claims are detailed, by province, questionnaire responses do not indicate this administrative review, we requested below. whether the volumes it analyzed were in the initial questionnaire that each of a. Alberta subject to SA agreements. See page 45 the Canadian provinces report, by of the GOA’s April 8, 2005 In the first review, the GOA claimed species, the volume and value of Crown supplemental questionnaire response. logs sold by independent harvesters to that the numerator of Alberta’s In fact, regarding the TDA survey, the unrelated parties during the POR. See provincial subsidy rate calculation GOA stated that ‘‘Alberta does not have e.g., page III–22 of the Department’s should be reduced to account for fair– access to the detailed information on log September 8, 2004, initial questionnaire. market, arm’s length sales of Crown logs sales collected on a company–by- In response to the Department’s original between unrelated parties. The GOA company basis by the independent questionnaire, the Canadian parties based its claim on a survey of TDA private consultant . . .’’ hired by the provided two sets of information for us transactions that was conducted by a GOA to conduct the TDA survey. See to analyze. The GOA, GOBC, British private consulting firm hired by the page XII–2 of the GOA’s November 22, Columbia Lumber Trade Counsel GOA. See Preliminary Results of 1st 2004 questionnaire response. (BCLTC), and GOO each provided an Given the GOA’s failure to indicate 8 The GOM and GOS did not claim that their ‘‘aggregate’’ claim (with accompanying sawmills purchased Crown logs in arm’s length whether the sales in the TDA survey information) of the amount of Crown transactions. See page MB–69 of the GOM’s were made pursuant to SA agreements, timber that was obtained by the November 22, 2004 questionnaire response and and the GOA’s statement that it lacked sawmills through arm’s–length page SK–99 of the GOS’s November 22, 2004 access to company–specific data questionnaire response. Therefore, we have transactions. The Ontario Lumber preliminarily concluded that a pass-through collected by the consultant it hired to Manufacturers Association (OLMA) also analysis is not warranted for Manitoba and conduct the TDA survey, we asked the provided company–specific transaction Saskatchewan. GOA to respond to the pass–through
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questions contained in our initial In regard to the volume represented in sawmills and, thus, the volumes should questionnaire without reliance on the the TDA survey, we note that the GOA not be included in the numerator of TDA survey. See page 9 of our March failed to indicate whether the sales in British Columbia’s provincial subsidy 16, 2005 supplemental questionnaire. In the TDA survey were made pursuant to rate calculation. See page BC–XIV–2 of particular, we instructed the GOA to: SA agreements and the GOA explained the GOBC’s November 22, 2004 . . . breakout all data on arm’s length that it lacks access to the underlying questionnaire response. In support of log transactions and include company–specific data. Regarding the this claim, the GOBC provided survey information regarding the volume, claimed lack of access, the GOA has data on what were purported to be value, species, corporate affiliations been unable or unwilling to demonstrate B.C.’s primary sawmills’ arm’s–length of the parties subject to the that it made reasonable efforts to obtain log purchases. These data, covering the transaction, {as well as} a chart the necessary company–specific data. prior review period, were originally identifying whether or not the Consequently, we preliminarily find placed on the record of the first review transaction is subject to a delegation that we are unable to rely on the TDA by the BCLTC. See ‘‘Norcon Forestry of signing authority (SA) agreement. survey as a basis for the GOA’s pass– Ltd. Survey of Primary Sawmills’ Arm’s through claim. Id. The GOA responded that it did not Length Log Purchases in the Province of Regarding the data supplied by the maintain or collect such information as British Columbia,’’ which was placed on PwC, we note that, by the GOA’s own the record of this review at Volume IV, any part of its normal function and that admission, the data constitutes a it had no means on its own to respond Exhibit 24 A, B of the BCLTC’s February ‘‘limited’’ survey population and, thus, 11 to our pass–through questions aside 24, 2005 submission (Norcon Study). does not reflect the total volumes In the first review, the Department from the TDA survey. See page 45 of the included in the pass–through claim GOA’s April 8, 2005 supplemental found that the transactions in the made by the GOA in this review. See Norcon Study involved sales of Crown questionnaire response. page 2 and Exhibit AB–S–102 of the In our subsequent supplemental logs through Section 20 auctions as well GOA’s May 2, 2005 supplemental as sales to mills by small woodlot questionnaire, we noted the GOA’s questionnaire response. Further, the claims regarding its inability to respond owners. See e.g., Preliminary Results of information from PwC does not include 1st Review, 69 FR 33208 and Final to our pass–through questions without any documentation regarding purchase reliance on the TDA survey and pointed Results of 1st Review Decision agreements, as requested in our April Memorandum at Comment 10. In the out that in the concurrent Section 129 21, 2005 questionnaire.10 See pages 1– proceeding the GOA was, indeed, able first review, we further found that most 3 and Exhibit AB–S–102 of the GOA’s of the Section 20 transactions are to report company–specific data May 2, 2005 supplemental separate from the TDA survey in structured under standard contracts questionnaire response. Moreover, the called ‘‘Log Purchase Agreements’’ in response to the same pass–through information from PwC lacks any 9 which sawmills purchasing the Crown questions. We therefore asked the GOA corresponding value information that to provide in this review the same type timber are billed for the Crown would enable the Department to stumpage fee directly by the B.C. of company–specific data, updated for conduct its pass–through analysis on a the POR. See page 2 of the Department’s Ministry of Forests. Id. As explained transaction–specific basis. Id. The GOA above, in the first review, we April 21, 2005 supplemental has been unable or unwilling to explain questionnaire. In response to our determined that no pass–through why it has not supplied the necessary analysis is warranted where the sawmill request for company–specific pass– information. Therefore, we or some third–party company pays through information that was not reliant preliminarily determine to reject the Crown stumpage fees for logs purchased on the TDA survey, the GOA answered information from the PwC as a basis for from independent harvesters. See Final that the Province ‘‘does not keep the the GOA’s pass–through claim. Results of 1st Review Decision information requested here’’ and it Therefore, based on our findings Memorandum at Comment 10. reiterated its assertion that the above, we preliminarily determine that In addition to the information in the Department should conduct its pass– a pass–through analysis for Alberta is Norcon Study, evidence obtained in this through analysis for Alberta using the not warranted. TDA survey. See page 2 of its May 2, review further supports our finding that 2005 questionnaire response. b. British Columbia sawmills pay the stumpage fee directly The GOA further stated that, ‘‘in an The GOBC claims that 14.7 million to the Crown for logs purchased from effort to provide some additional cubic meters of Crown timber, or 22 so–called independent harvesters. See information,’’ it contacted percent of the total Crown softwood log Exhibits BC–S–245, 246, and 247 of the PricewaterhouseCoopers LLP (PwC) to harvest, was harvested by so–called GOBC’s April 21, 2005 questionnaire provide a ‘‘limited’’ update of the independent harvesters, i.e., harvesters response, which contain source survey that was included in the pass– that do not own and are not affiliated documents illustrating how sawmills through claim the GOA made in the with sawmills during the POR. The pay for stumpage on Section 20 sales. context of the Section 129 proceeding. GOBC further claims that no subsidy Thus, under such arrangements, any Id. PWC performed this update of the that may be attributable to this harvest stumpage benefit would go directly to Section 129 data using information held volume passed through to purchasing the sawmills paying the stumpage fee, by the GOA on volumes of section 80/ just as if the sawmill were drawing from 81 wood purportedly transferred to 10 As explained above, it is necessary to examine its own tenure and contracting out for tenure–holding sawmills from unrelated purchase contacts in order to determine whether harvesting and hauling services, thereby they were structured as SA agreements. In addition, eliminating the need for a pass–through parties. Id. it is necessary to review the purchase contracts to ensure that the transactions were made at arm’s analysis. 9 In our April 21, 2005 supplemental length, i.e., were not affected by any additional questionnaire, we inadvertently referred to the first factors we previously identified, including: (1) 11 In its initial questionnaire response, the GOBC administrative review of the countervailing duty limitations on log sales that may be contained in claimed that the BCLTC would provide a Norcon order when we should have instead referred to the Crown tenure contracts such as appurtenancy Study updated for the POR of this review. See page Section 129 proceeding concerning the pass- requirements (2) local processing requirements, or BC-XIV–1 of the GOBC’s November 22, 2004 through issue in the underlying investigation. (3) fiber exchanges between Crown tenureholders. questionnaire response.
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In the prior review, we determined the restrictive clauses were eliminated delineate the transactions in which the that log sales cannot be considered to be as a consequence of the amendments to mills paid the stumpage fees directly to arm’s–length transactions where there the Forest Act. We also continue to the Crown or the transactions that were are restrictive government–imposed disagree with the GOBC that these made under a wood supply commitment appurtenancy and local processing restrictions are irrelevant to the pass– letter or a wood supply agreement. See requirements that dictate to the through analysis. These government– pages ON–237 and ON–238 of Vol. 1 of harvester those entities to whom it may imposed restrictions severely limit the 19 and exhibit ON–PASS–1 of Vol. 17 sell, thereby severely hampering the ability of buyers and sellers of logs to of 19 of the GOO’s November 22, 2004, ability of the harvesters to bargain freely bargain freely with whomever they initial questionnaire response. Due to with willing purchasers in the choose or to bargain on terms that are these deficiencies, we are unable to marketplace. See Final Results of 1st not encumbered by government conduct a pass–through analysis using Review Decision Memorandum at mandates. the ‘‘aggregate’’ data provided by the Comment 10. However, in this review For the reasons explained above, and GOO. We therefore preliminarily the GOBC has stated that amendments the fact that the GOBC has not determine that changes to the subsidy to the Forest Act, effective November submitted any new information that calculation based on the GOO’s 2003, nullified the timber processing warrants reconsideration of the ‘‘aggregate’’ no–pass-through claim are and appurtenancy clauses for Department’s prior findings, we not warranted. replaceable and non–replaceable preliminarily conclude that the GOBC With respect to the company–specific licenses older than 10 years. For has failed to adequately substantiate its data and information provided by the licenses in effect fewer than 10 years, pass–through claim, and no adjustment OLMA, we preliminarily determine that the timber processing and appurtenancy to the provincial numerator has been these are sufficient for purposes of clauses will expire with the licenses or made. conducting a pass–through analysis. We accept the certifications by the be nullified upon the license’s tenth c. Ontario anniversary. Further, the GOBC claims companies that the transactions they As mentioned above, in response to that no new licenses advertised after reported were between unaffiliated the Department’s initial questionnaire, November 4, 2003 contain any of these parties. In addition, the company– the GOO submitted an ‘‘aggregate’’ clauses. See GOBC’s November 22, 2004 specific data clearly identified those claim of the portion of the Crown timber questionnaire response at BC–III–11 and transactions for which the harvesters processed by Ontario sawmills that was GOBC’s April 13, 2005 questionnaire (rather than the mills) paid the purchased in arm’s–length transactions. response at page 60. stumpage fees and those that were not The GOO made a claim of no pass– subject to other restrictions, such as In light of the GOBC’s new legislation through for 2,459,812 cubic meters or government–mandated wood supply and because pre–existing licenses 23.55 percent of the total invoiced commitments or fiber exchange continued to retain the appurtenancy volume of Crown timber entering the agreements. Accordingly, we determine clauses we identified in the prior largest 25 sawmills in Ontario during that a portion of the log sale transactions review, we requested that the GOBC the POR. In support of this claim, the reported by the OLMA were conducted demonstrate that none of the tenure GOO provided a breakdown of log at arm’s–length and were otherwise not agreements for which it claimed no transactions between the 25 largest mills affected by other conditions during the benefits passed through from the in Ontario and tenure holders that do POR. independent harvesters to the sawmills not own a sawmill, and certifications For these transactions, we then contained any of these restrictive from officials of three mills each stating performed the next step of our pass– clauses. In response, the GOBC claimed that their mill is not affiliated with its through analysis by examining whether that the timber processing and timber suppliers. The OLMA separately the mill received a competitive benefit appurtenancy clauses have no impact submitted company–specific from the purchase of the subsidized on the arm’s length transactions and are information for one harvester and eight logs. This competitive benefit analysis is therefore irrelevant to the Department’s mills. The information included guided by the provisions of the pass–through analysis. As to our request transaction–specific data, statements Department’s regulation on upstream that it demonstrate that none of the and certification of non–affiliation, and subsidies. See 19 CFR 351.523. Under tenure agreements included in its pass– additional supporting documentation. this analysis, a competitive benefit through claim contained any restrictive For the reasons described below, we exists when the price for the input is clauses, the GOBC claimed that it could preliminarily determine that the GOO lower than the price for a benchmark not provide such information because it failed to substantiate its ‘‘aggregate’’ no– input price. The Department’s would be burdensome. See page 61 of pass-through claim. Although the regulations provide for the use of actual the GOBC’s April 13, 2005 Department accepts the three or average prices for unsubsidized input questionnaire response. Instead, the certifications of non–affiliation products, including imports, or an GOBC provided some copies of the provided by the GOO, the GOO’s appropriate surrogate as the benchmark types of tenure agreements that may submission is lacking certifications for input price. have been held by so–called the other mills it included in its claim. We have previously determined that independent harvesters during the POR. Furthermore, in the initial the record in the first administrative However, regarding these agreements, questionnaire, we requested that the review did not contain any private the GOBC provided no information GOO ‘‘not include (as part of its claim) prices in Ontario that were suitable for linking the tenure agreements it any transactions that were made use as benchmarks to measure the submitted to those transactions pursuant to wood supply commitments adequacy of remuneration for Crown included in its no–pass-through claim or purchases for which the mills paid provided stumpage. See ‘‘Private (e.g., several of the submitted the stumpage to the Crown rather than Provincial Market Prices’’ section and agreements were merely blank the harvester.’’ page VI–22 of the Initial Final Results of 1st Admin Review at templates). Therefore, for purposes of Questionnaire at ‘‘Section VI: Comments 20, 21. As explained in these preliminary results, we find that Questionnaire for the Province of ‘‘Provincial Stumpage Programs’’ below, the GOBC has failed to demonstrate that Ontario. However, the GOO did not we have reached the same conclusion
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based on the record in this proceeding. result of these calculations is that only placed on the record by the GOO as We have also explained in the first a small portion of the Crown harvest surrogates. The result of these administrative review with respect to volume originally included in the calculations is that none of the Crown British Columbia, that ‘‘stumpage and numerator is excluded from the harvest volume originally included in log markets are closely intertwined and numerator of our revised subsidy the numerator is excluded from the therefore Crown stumpage prices affect calculations. Accordingly, a small numerator of our revised subsidy both stumpage and log prices, ‘‘and that reduction in the Ontario subsidy benefit calculations. Accordingly, no reduction subsidized prices in the stumpage is warranted. The calculations are in the Manitoba subsidy benefit is market would result in price business proprietary. See the May 31, warranted. The calculations contain suppression in log markets. Id. at ‘‘B.C. 2005, Preliminary Calculations business proprietary information and, Log Prices Are Not An Appropriate Memorandum for Ontario. As noted thus, cannot be discussed in further Benchmark.’’ We have reached the same above, if we were unable to determine detail in these preliminary results. conclusion with respect to the log that the transaction qualified as an Therefore, for further details, see the markets in Ontario. In Ontario, Crown arm’s–length transaction or was subject May 31, 2005, Preliminary Calculations timber supplies a dominant portion of to other conditions (e.g., the stumpage Memorandum for Manitoba. the market, and the unit cost of this for the log was paid by the harvester), e. Quebec supply effectively determines the we did not conduct a competitive market prices of logs in Ontario. As benefit analysis and the corresponding In the first review, the Department did shown on the record in this review and volume associated with these not include Crown timber harvested by the prior review, the prices harvesters transactions was not excluded from the FMC and FMA licensees in the charge for logs are derived directly from subsidy calculation. numerator of Quebec’s provincial the prices they pay for stumpage plus subsidy rate calculation. While we d. Manitoba harvesting costs. Because of the acknowledged that evidence on the relationship between timber (stumpage) The Canadian parties and the GOM record of the first review demonstrated and log prices, prices for logs in Ontario did not make an ‘‘aggregate’’ claim of that some of the timber harvested under would be suppressed by the subsidized the portion of the Crown timber FMCs was sold to sawmills during the prices in the timber markets. As such, processed by Manitoba sawmills that POR, such transactions may have log prices in Ontario are unsuitable for was purchased in arm’s–length included sales of logs from non–sawmill purposes of measuring whether a transactions. Rather, the OLMA owning tenure holders to sawmills and, competitive benefit has passed–through submitted company–specific thus, would have required a pass– in transactions involving sales of Crown information on behalf of Tembec Inc. through analysis. SeeFinal Results of the logs. We determine that the company– 1st Review Decision Memorandum at Instead, we have turned to private specific data and information provided Comment 13. Because in the first review stumpage prices in the Maritimes, by the OLMA are sufficient for purposes we did not examine the relationship which we have determined are market– of our analysis and that a portion of the between the harvesters and sawmills or determined, in–country prices. transactions in Manitoba constitute the terms and conditions of the timber However, because we are measuring the arm’s–length sales of logs by sales in the context of a pass–through competitive benefit for the sale of independent harvesters to unaffiliated analysis, we found that we were unable subsidized logs, we have derived sawmills during the POR. We accept the to reach a determination as to whether species–specific benchmark log prices statement that ‘‘with respect to its the volume of timber harvested under by combining the unsubsidized operations in Manitoba, Tembec is an FMCs should be included in the Maritimes stumpage prices with the independent harvester.’’ See page 4 of numerator. Id. However, we indicated various harvest, haul, road, and Volume 1 of the OLMA’’s November 22, that we would reconsider the issue in management costs reported by the GOO. 2004, submission. In addition, the the course of the second review. Id. We then compared the per unit prices information and data provided indicate In this review, petitioners assert that listed for each transaction reported by that the transactions were not the Department must include in the the OLMA that we determined was characterized by the limitations which numerator of the Quebec provincial eligible for a competitive benefit constrain buyers and sellers of subsidy rate calculation the volumes of analysis with our benchmark log prices. harvested Crown timber from free Crown timber harvested by FMC and If the price per cubic meter was equal negotiation, described above. FMA licensees on the grounds that the to or higher than the benchmark price, Accordingly, we determine that a GOQ has refused to answer the we determined that no competitive portion of the transactions in Manitoba Department’s questions concerning benefit passed through and the constitute arm’s–length sales of logs by these licensees. See page 112 through corresponding volume was excluded independent harvesters to unaffiliated 114 of petitioners’ April 29, 2005 from the numerator of our calculations. sawmills during the POR. submission. Where the per unit price was lower than We applied the same methodology as For purposes of these preliminary the benchmark price, and where the described above in the Ontario pass– results, we have included the volume of difference between the benchmark and through section when conducting our Crown timber harvested under the FMC actual log prices was greater than that competitive benefit analysis. Because license program in the numerator of province–specific per–unit stumpage the GOM did not submit any log pricing Quebec’s provincial subsidy rate benefit (e.g., C$8.74 for Ontario SPF), data on the record, we derived the calculation. In our initial questionnaire, we capped the amount of the subsidy species–specific benchmark log price by we explained to the GOQ that if it considered to have ‘‘passed–through’’ combining the private market– wished to claim that any portion of the by the province–specific per–unit determined, in–country Maritime reported volume of Crown timber stumpage benefit. As such, the amount stumpage prices with the various costs harvested under the FMC and FMA of the competitive benefit that reported by the GOM. Because the GOM licences was sold in arm’s length calculated as was not passed though in did not report certain harvesting costs transactions and that any subsidies the transaction was never greater than and hauling costs, we used, where provided for that portion of timber of the subsidy granted by the Crown. The necessary, harvesting and hauling costs the Crown harvest did not ‘‘pass–
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through’’ to purchasing sawmill(s), it In our initial questionnaire, we also the FMC volume reported by the GOQ had to provide a breakdown, by species, asked the GOQ to identify the volume includes FMC licenses held by sawmills of the total volume and value of this and value, by species and grade, of as well as softwood log volumes that harvested timber during the POR. In Crown log sales by FMC holders to were sold directly by government addition, we instructed the GOQ to companies that own sawmills. See page entities in Quebec (e.g., municipalities) respond to a series of questions VII–7 of our September 8, 2004 to sawmills. regarding the terms and conditions of questionnaire. In its questionnaire As explained above, we provided the the transactions covered by any pass– response, the GOQ stated: GOQ an opportunity to substantiate its through claim and to identify any The requested volume and value data claim that Crown logs were sold in affiliations between the buyer and seller is collected by the {Ministry of arm’s length transactions and that any of the logs in question. See VII–30 of our Natural Resources} as part of an subsidies did not ‘‘pass–through’’ to September 8, 2005 questionnaire. In its annual process. The data for the purchasing sawmills. We also response, the GOQ stated: POR are not yet available. The specifically instructed the GOQ not to {Ministry} does not know the include in its pass–through claim any At this time, the Gouvernment of logs sold directly by government entities Quebec is not claiming that any specific arrangements entered into by holders of FMCs and FMAs and, holding FMCs. The GOQ did not do so. portion of the reported volume of Rather, the GOQ reported the entire Crown harvest was sold in arms’ therefore, cannot describe the nature of those agreements or volume of timber harvested under FMC length transactions. This is not to licenses, which, apart from government suggest that there are no such provide the representative contracts. municipalities, may also include timber transactions. To the contrary, the harvested by sawmills with tenure. The volumes of Crown timber harvested See page QC–48 of the GOQ’s November volume of timber harvested by pursuant to FMCs and FMAs, and 22, 2004 questionnaire response. government entities and sawmills with subsequently sold in open market FMC Licences tenure is not be eligible for a pass– transactions are undoubtedly arm’s through analysis. The sale by Pursuant to section 102 of the length transactions. . . Because the government municipalities of Crown– volume of standing timber Forestry Act, the GOQ may grant a FMC harvested logs is no different from the harvested under FMCs and FMAs is license to any ‘‘person.’’ See QC–S–13 provincial government itself selling the negligible, the Department’s and page QC–44 of the GOQ’s November logs and thus does not involve an consistent practice has been to base 22, 2004 questionnaire response. Thus, ‘‘indirect’’ subsidy. Further, timber its calculations on the volumes FMC license holders may or may not harvested by sawmills with tenure harvested pursuant to TSFMAs. own sawmills. However, cross– would be used by these mills to produce Adherence to this practice obviates referencing a list of FMC holders, as lumber in their own facilities rather the need for pass–through analysis provided in Exhibit 32 of the GOQ’s than for the sale of logs to other in Quebec. November 22, 2004 questionnaire sawmills. Because the GOQ did not response, with a list of sawmills with See page QC–157 through QC–158 of break out separately the volume of GOQ authorization to consume Crown timber harvested by government the GOQ’s November 22, 2004 softwood timber, reveals that several questionnaire response. The GOQ added entities and sawmills with tenure from sawmills did hold FMCs during the the volume harvested by independent that if the Department decided to POR. For authorized consumption data, include FMC and FMA volumes in its harvesters that sold logs to sawmills see page 55, Attachment III, of the June during the POR, we preliminarily calculations, then it would have to 2, 2004 ‘‘Quebec Private Price undertake a pass–through analysis. Id. determine that a pass–through analysis Documentation Memo’’ from the is not warranted. Therefore, we have In our initial questionnaire, we Preliminary Results of the 1st Review, included all of the FMC harvest volume further asked the GOQ to indicate the which was placed on the record of this in the numerator of our subsidy total volume and value of Crown timber review the February 28, 2005 calculations. billed to any person or company that memorandum to the file from Maura Petitioners have further argued that did not own or operate a sawmill and Jeffords, Case Analyst. the GOQ’s questionnaire response was not affiliated with a sawmill that In addition, evidence indicates that indicates that no stumpage fees at all the GOQ permitted to harvest Crown the GOQ often grants FMCs to were paid for a portion of FMC harvest timber during the POR. See page VII–6 municipalities in the province. See page volume and that the Department should of our September 8, 2004 questionnaire. QC–24 of the GOQ’s November 22, 2005 reflect that lack of payment in our In response, the GOQ provided a list of questionnaire response and Preliminary calculations. See Exhibit QC–S–82 of FMC holders that it claimed did not Results of 1st Review, 69 FR at 33225. the GOQ’s November 22, 2004 own or operate sawmills during the Further, sections 104.2 and 104.3 of the questionnaire response. We disagree. In POR. See Exhibit 50 of its November 22, GOQ’s Forestry Act stipulate that the cases where the FMC licensee is a 2004 questionnaire response. Many of holder of a FMC license must supply municipality, the municipality collects the FMC holders identified in Exhibit 50 standing timber covered by the license dues for the cutting rights, not the GOQ. were municipalities. The GOQ also to timber wood processing plants in See QC S—92 of the GOQ’s November provided consolidated volume and Quebec in the amount specified on the 22, 2004 questionnaire response. Thus, value harvest data for FMC holders that license’s management permit. This the information contained in Exhibit ‘‘paid no stumpage’’ and those that stipulation is also reflected in the QC–S–82 reflects the FMC harvest ‘‘paid stumpage.’’ See Exhibit 57 of the standard language of the FMC contract. volumes sold by government GOQ’s November 22, 2004 See e.g., page 3 and 10 of the sample municipalities and non–profit questionnaire response. However, this FMC contract contained in Exhibit 31 of organizations but not the corresponding exhibit did not list the volume and the GOQ’s November 22, 2004 prices charged to the buyers of the logs. value data separately for each FMC questionnaire response. Therefore, Therefore, lacking the price information holder, as instructed by our initial based on the information discussed for these FMC volumes, as facts questionnaire. above, we preliminarily determine that available we are applying the unit prices
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that the GOQ reported for the remaining argument on the record of this review section of the Final Determination amount of the FMC volume. has resulted in a change in the Decision Memorandum. This was true Department’s determinations from the in each of the reviewed provinces. No FMA Licenses final results of the first review that the information in the record of this review We are not including the timber provincial stumpage programs warrants a change in this determination volumes harvested under FMA licenses constitute financial contributions and, thus, we preliminarily continue to in the numerator of our calculations. provided by the provincial governments find that the provincial stumpage Under section 84.1 of the Forest Act, an and that they are specific. programs are specific within the FMA licensee may not be the holder of Financial Contribution and Specificity meaning of section 771(5A)(D)(iii)(I) of a wood processing permit nor be the Act. affiliated with the holder of a wood In the underlying investigation, the processing permit. See QC–S–13 of the Department determined, consistent with Benefit GOQ’s November 22, 2004 section 771(5)(D)(iii) of the Act, that the Section 771(5)(E)(iv) of the Act and 19 questionnaire response. Although the Canadian provincial stumpage programs CFR 351.511(a) govern the record does not contain the prices constitute a financial contribution determination of whether a benefit has which the FMA license holders charge because the provincial governments are been conferred from subsidies involving their customers for Crown logs even if providing a good to lumber producers, the provision of a good or service. the full amount of the subsidy is and that good is timber. The Department Pursuant to section 771(5)(E)(iv) of the assumed to pass–through to its further noted that the ordinary meaning Act, a benefit is conferred by a customer, inclusion of this volume in of ‘‘goods’’ is broad, encompassing all government when the government the numerator has no impact on the ‘‘property or possessions’’ and ‘‘saleable provides a good or service for less than portion of the country–wide rate commodities.’’ See ‘‘Financial adequate remuneration. Section attributable to Quebec. Therefore, we Contribution’’ in the Final 771(5)(E) further states that the have not included any of the FMA Determination Decision Memorandum. adequacy of remuneration: Further, the Department found that harvest volume in our calculations. . . . shall be determined in relation to ‘‘nothing in the definition of the term prevailing market conditions for the Analysis of Programs ’goods’ indicates that things that occur good or service being provided . . . naturally on land, such as timber, do not I. Programs Preliminarily Determined to in the country which is subject to constitute ’goods.’’’ To the contrary, the Confer Subsidies the investigation or review. Department found that the term Prevailing market conditions A. Provincial Stumpage Programs specifically includes ’’. . . growing crops include price, quality, availability, In Canada, the vast majority of and other identified things to be severed marketability, transportation, and standing timber sold originates from from real property.’’ Id. The Department lands owned by the Crown. Each of the further determined that an examination other conditions of . . . sale. reviewed Canadian provinces, i.e., of the provincial stumpage systems The hierarchy for selecting a Alberta, British Columbia, Manitoba, demonstrated that the sole purpose of benchmark price to determine whether Ontario, Quebec and Saskatchewan,12 the tenures was to provide lumber a government good or service is has established programs through which producers with timber. Thus, the provided for less than adequate it charges certain license holders Department determined that regardless remuneration is set forth in 19 CFR ‘‘stumpage’’ fees for standing timber of whether the provinces are supplying 351.511(a)(2). The hierarchy, in order of harvested from these Crown lands. With timber or making it available through a preference, is: (1) market–determined the exception of British Columbia, these right of access, they are providing prices from actual transactions within administered stumpage programs have timber. Id. No new information has been the country under investigation or remained largely unchanged. Thus, for a placed on the record of this review review; (2) world market prices that description of the stumpage programs warranting a change in our finding that would be available to purchasers in the administered by the GOA, GOS, GOM, the provincial stumpage programs country under investigation; or (3) an GOO, and GOQ, see ‘‘Description of constitute a financial contribution in the assessment of whether the government Provincial Stumpage Programs’’ section form of a good, and that the provinces price is consistent with market of the Preliminary Results of 1st Review. are providing that good, i.e., timber, to principles. Changes to British Columbia lumber producers. Consistent with our Under this hierarchy, we must first administered stumpage system are findings in the underlying investigation, determine whether there are actual discussed below. we preliminarily continue to find that market–determined prices for timber the stumpage programs constitute a sales in Canada that can be used to Legal Framework financial contribution provided to measure whether the provincial In accordance with section 771(5) of lumber producers within the meaning of stumpage programs provide timber for the Act, to find a countervailable section 771(5)(D)(iii) of the Act. less than adequate remuneration. Such subsidy, the Department must In the investigation, the Department benchmark prices could include prices determine that a government provided a determined that provincial stumpage resulting from actual transactions financial contribution and that a benefit subsidy programs were used by a between private parties, actual imports, was thereby conferred, and that the ‘‘limited number of certain enterprises’’ or, in certain circumstances, actual sales subsidy is specific within the meaning and, thus, were specific in accordance from competitively–run government of section 771(5A) of the Act. As set with section 771(5A)(D)(iii)(I) of the auctions. See 19 CFR 351.511(a)(2)(i). forth below, no new information or Act. More particularly, the Department The Preamble to the CVD Regulations found that stumpage subsidy programs provides additional guidance on the use 12 In this review, we did not examine the were used by a single group of of market–determined prices stemming stumpage programs with respect to the Yukon industries, comprised of pulp and paper from actual transactions within the Territory, Northwest Territories, and timber sold on federal land because the amount of exports to the mills, and the sawmills and country. See ‘‘Explanation of the Final U.S. is insignificant and would have no measurable remanufacturers that produce the Rules ‘‘Countervailing Duties, Final effect on any subsidy rate calculated in this review. subject merchandise. See ‘‘Specificity’’ Rule, 63 FR 65348, 65377 (November
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25, 1998) (the Preamble). For example, There Are No Useable First–Tier costs.’’ See the GOA’s November 22, the Preamble states that prices from a Benchmarks in the Subject Provinces 2004, Questionnaire Response at government auction would be Measuring the Benefit on Stumpage Volume 1, page I–8. appropriate where the government sells Programs Administered by the GOA, The GOA’s response indicates that the a significant portion of the good or GOBC, GOO, GOQ, GOM, and GOS methodology used to report the TDA private timber transaction data for this service through competitive bid In this administrative review, the administrative review is consistent with procedures that are open to everyone, GOA reported private price data and and has not changed since the period that protect confidentiality, and that are government competitive bid data as covered by the prior administrative based solely on price. The Preamble also reported in Alberta’s 2004 Timber review. Id. As previously explained by states that the Department normally will Damage Assessment (TDA) update; the the Department, the vast majority of the GOO provided an updated survey of not adjust such competitively bid prices CTP prices do not reflect competition to account for government distortion of private prices prepared by Demers for the right to harvest timber and the the market because such distortion will Gobeil Mercier & Associes Inc. (DGM); CTP prices underlying the TDA normally be minimal as long as the the GOQ provided private stumpage calculations do not reflect market government involvement in the market prices charged in its province; and the determined prices. See Final Results of is not substantial. 63 FR at 65377. GOBC provided prices from auctions the 1st Review Decision Memorandum at government administers under the B.C. The Preamble also states that ‘‘[w]hile Comment 19. Timber Sales (BCTS) program. As There is no new evidence offered by we recognize that government discussed below, we have preliminarily involvement in the marketplace may the GOA that would result in a determined that pricing data reported by reconsideration of the Department’s have some impact on the price of the the GOA, GOO, GOQ, and GOBC are not good or service in that market, such decision to reject the use of TDA as a suitable for use as a benchmark within provincial benchmark. Moreover, due to distortion will normally be minimal the meaning of 19 CFR 351.111(a)(2)(i). the fact that the TDA data does not unless the government provider Province of Alberta differentiate private and Crown sources constitutes a majority or, in certain in its survey, there is no method for the circumstances, a substantial portion of In response to the Department’s Department to identify the potentially the market. Where it is reasonable to request for private timber prices, the private transactions captured by the conclude that actual transaction prices GOA explained that it is not involved in TDA survey (which would only are significantly distorted as a result of private party transactions and does not represent a maximum of 203,041 cubic the government’s involvement in the know the process by which private meters or 2 percent of Alberta’s total market, we will resort to the next timber is sold. See GOA’s November 22, softwood sawmill Section 80/81 harvest alternative in the hierarchy.’’13 2004 response, Volume 1 at page VIII– volume that is reported as harvested 1. However, the GOA submitted the The guidance in the Preamble reflects from private lands). See GOA’s TDA as a source of data for arm’s– November 22, 2003 response Table 1 at the fact that, when the government is length, cash only private log sales. See the predominant provider of a good or Exhibit AB–S–1. Therefore, GOA’s November 22, 2003 response at based on the record evidence and service there is a likelihood that it can Exhibit AB–S–76. We have examined consistent with the Department’s prior affect private prices for the good or Alberta’s TDA private price data and determinations, we find that the TDA service. Where the government government ‘‘competitive’’ bid data prices are not actual market–determined effectively determines the private reported in Alberta’s TDA 2004 update prices, as required by the CVD prices, a comparison of the government and continue to find that the TDA prices regulations, and, thus, cannot be used as price and the private prices cannot are not actual market–determined a benchmark. See 19 CFR 351.511(a)(2). capture the full extent of the subsidy prices, as required by the CVD benefit. In such a case, therefore, the regulations, and, thus, cannot be used as Province of British Columbia private prices cannot serve as an a benchmark. See Preliminary Results of British Columbia did not provide appropriate benchmark. 1st Review, 69 FR at 33214 and ‘‘Private private stumpage prices for the record of In the first administrative review, the Provincial Market Prices’’ section of the this proceeding. Instead, the Province Department determined that there were Final Results of 1st Review Decision provided prices from auctions the government administers under section no usable private market stumpage Memorandum and at Comment 19. The GOA explains that the TDA began 20 of the Forest Act. These auctions prices in the provinces whose stumpage in the mid–1990’s as a means for were formerly conducted under the programs are under review that could mediating disputes between timber Small Business Forest Enterprise serve as benchmarks. See ‘‘Private operators and other industrial operators Program (SBFEP). In the investigation Provincial Market Prices’’ section of the concerning the value of standing timber and first administrative review, the Final Results of 1st Review Decision adversely affected by industrial Department determined that the auction Memorandum. For the reasons operations on timber tenures. Pursuant prices under the SBFEP program were discussed below, the Department to these efforts, a consultant has not suitable for use as benchmarks in continues to find that there are no collected information on log purchases determining whether the GOBC sold private stumpage market prices in the which does not differentiate between Crown timber for less than adequate provinces under review that can serve private and Crown sources. The GOA remuneration because the SBFEP as first–tier benchmarks in Alberta, describes the methodology, stating that auctions were only open to small British Columbia, Manitoba, Ontario, ‘‘the values on the {TDA} table are business forest enterprises. As such, we Quebec, and Saskatchewan. derived by consultants from a two year determined that these prices did not average of competitive Commercial reflect prices from a competitively run Timber Permit (CTP) sales values, as government auction, as required by our 13 Preamble, 63 FR at 65377–78 (emphasis well as the value of arm’s length log regulations. See 19 CFR 351.511(a)(2)(i) added); see also Hot-Rolled Carbon Steel Flat purchases, adjusted to stumpage values and the Preamble, 63 FR at 65377; see Products from Thailand, 66 Fed. Reg. at 20259. by backing out harvesting and haul also the ‘‘Private Provincial Market
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Prices’’ section of the Final Results of sales from competitively run represented directly or indirectly by 1st Review Decision Memorandum and government auctions and that, when sales to Crown tenure–holding sawmills Preliminary Results of 1st Review, 69 FR choosing from such auction prices, are effectively determined by Crown at 33214. product similarity, quantities sold, and stumpage prices. The substantial The GOBC has explained in this other factors affecting comparability presence of valuations by Crown proceeding that the Forest Act was will be considered. The Preamble to the tenure–holding sawmills within the amended effective November 4, 2003. CVD Regulations further elaborates on BCTS prices means that the BCTS The amendments include specific this as it requires the use of market auction prices are not market– changes to the section 20 auction determined prices which may include determined prices as required in the program, under which the SBFEP was actual sales prices from government–run Department’s Regulations and are not replaced by the new B.C. Timber Sales auctions where such sales are useable as benchmarks for measuring (BCTS) program. The GOBC claims that competitive, account for a significant the adequacy of remuneration. pursuant to these changes, section 20 portion of the total market, and are auction prices may serve as first–tier based solely on price. See Preamble, 63 Record information demonstrates that benchmarks for the November 2003 to FR at 65377. Record evidence does not the participants in BCTS section 20 April 2004 period to determine whether support the use of prices for Crown auctions were primarily logging firms Crown timber in British Columbia was timber auctioned under section 20 of the but included some limited participation sold for less than adequate Forest Act, as amended, as benchmarks by Crown tenure–holding sawmills . In remuneration. See GOBC November 22, because the volumes sold under the a study prepared by Susan Athey and 2004 Questionnaire Response, BC–III–1. auctions are not ‘‘significant.’’ As such, Peter Cramton of Market Design Inc, See also GOBC May 18, 2005 Comments these prices do not meet this part of the titled ‘‘Competitive Auction Markets in at page 2. standard as stipulated in the CVD British Columbia,’’ (BCLTC Study), the To support its claim, the GOBC Regulations. authors state at pages 6—7, that ‘‘most highlights an amendment that Specifically, since the amendments to of the bidders in the auctions during eliminated the limitation of section 20 the Forest Act became effective, on this time period were not the major auctions to small businesses. Before the November 4, 2003, to the end of the timber companies or tenure–holders, amendment, section 20 sales under the POR, on March 31, 2004, participants in but rather most bidders were logging SBFEP were classified under three the BCTS program, including all auction firms.’’ See BCLTC’s March 2, 2005, categories. The second and third sales (i.e., section 20 and section 21), factual submission. A footnote in the categories were subsumed into the new accounted for 7.1 percent of the total study clarifies that ‘‘about two–thirds of BCTS program largely unchanged, and Crown harvest and volume billed, while the 34 Coast tracts were won by log continue to contain the same participants in the newly ‘‘unrestricted’’ brokers or market loggers, while about restrictions on participants as before the category 1 auction sales accounted for four–fifths of the 142 Interior tracts were amendments to the law. According to only 1.1 percent of the total Crown won by log brokers or market loggers.’’ the GOBC, the first category, however, harvest and volume billed. See GOBC Id was broadened to include individuals or April 13, 2005, Exhibit BC–S–225. Thus, The record further shows that a large corporations that own a timber the volume of Crown timber sold by the portion of the Crown timber purchased processing facility. Previously, these GOBC through the section 20 auctions in the auctions by loggers was, in turn, participants were excluded. This change during the POR cannot be considered to sold to Crown tenure–holding sawmills effectively eliminated the restriction of represent a ‘‘significant’’ portion of the in the province. The BCLTC Study section 20 auction sales to small timber sold in British Columbia during explains that because of the nature of businesses allowing them to include all the POR, and the prices from these the industry in B.C.: applicants in the Province. See GOBC auctions therefore do not meet a key November 22, 2004 Questionnaire requirement for their consideration as the efficient industry structure has Response, BC–III–2. benchmarks for measuring the adequacy specialized logging firms and As explained in detail, below, the of remuneration for government manufacturing firms. The logging Department preliminarily determines provided goods. firms place bids in BCTS auctions, that record evidence does not support Our determination that the prices for and they sell the timber directly to the use of prices for Crown timber Crown timber auctioned under section mills, through log markets, or some auctioned under section 20 of the Forest 20 of the Forest Act, as amended, are combination thereof. Mills Act, as amended, as benchmarks to not market–determined prices, but occasionally participate in auctions measure the adequacy of remuneration rather reflect prices for directly, but this participation is the for Crown stumpage. Firstly, the volume administratively–set Crown stumpage, exception rather than the rule. Id. sold at auction does not meet the is based on a number of factors. First, standard set out in the Department’s participants in the auctions included During the course of this proceeding, Regulations. Secondly, the auction Crown tenure holding sawmills but, we specifically asked the GOBC for prices submitted by the GOBC are not most often, were loggers who then sold additional information concerning the market determined prices as they are the timber to Crown tenure holding identity of the BCTS section 20 auctions effectively limited by Crown stumpage sawmills. Second, the price that Crown bidders and the use of the timber prices paid by Crown tenure–holding tenure holding mills are willing to pay obtained from these auctions. See the sawmills. The Department’s analysis at auction or, more frequently, to loggers Department’s requests for information in cannot utilize a benchmark that would is determined by the price they pay for the questionnaires to the GOBC, dated reflect any underlying subsidy to Crown stumpage because of the non– March 16, 2005, March 23, 2005, and determine whether and to what extent binding Annual Allowable Cut (AAC) in April 5, 2005. The GOBC contacted the that very subsidy exists. B.C. Third, the price loggers bid at the Department on March 21, March 28, and Section 351.511(a)(2)(i) of the CVD auctions is limited by the price they on April 8, to advise that it was unable Regulations states that in measuring the receive from their customers, the largest to respond fully to these questionnaires adequacy of remuneration the of whom are tenure–holding sawmills. because of the voluminous data benchmark may be derived from actual Therefore, the auction prices associated with each of the timber sale
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licences (TSL) associated with the sawmills participated. See BCLTC’s purchasers of timber from the loggers section 20 auctions sales.14 February 28, 2005 submission at and the major producers of softwood In light of this, the Department Appendix C, page 2. Other sawmills lumber in B.C. That loggers consider the requested information from 14 submitted statements that they too price they will receive from tenure– randomly selected TSLs, including a purchased section 20 auction logs from holding sawmills and that this price copy of ‘‘payment distribution,’’ of the winning bidders. Id. at Appendices B— determines what they bid in the BCTS Ministry of Forests (MOF) invoices. The G. auctions is demonstrated in the record GOBC provided the requested On the basis of the record information by the fact that logging firms negotiate information for ten of these TSLs, described above showing that most of with the Crown tenure holding sawmills stating that no invoices were issued the participants in the auctions were prior to placing a bid in the BCTS during the POR for the remaining four loggers who sold most of the timber auction. See GOBC’s November 22, TSLs selected by the Department. The bought at auction to Crown tenure– 2004, Questionnaire Response at BC– information from these 10 TSLs shows holding sawmills, we determine that it IV–43 and April 13, 2005, Supplemental that the winning bidders of the Crown is reasonable to conclude that most of Response at page 47, and GOBC’s timber under BCTS section 20 auctions the Crown timber sold in BCTS section November 22, 2004, Questionnaire sold at least 65 percent of the timber to 20 auctions was ultimately purchased Response at BC–S–26. See also the large Crown tenure holders with and used by Crown tenure–holding BCLTC Study at page 6–7, which states sawmills. See Exhibits BC–S–245 and sawmills. that: 246 of the GOBC’s April 21, 2005 The AAC in the province effectively The BCTS auctions during this time limits the amount that Crown tenure– questionnaire response. period restricted bidders to hold no The evidence that the auction holding mills are willing to pay for more than three BCTS timber winning loggers’ principal customers timber from the auctions or pay to licenses simultaneously. .. In are large tenure–holding sawmills is loggers who win bids at the auctions. addition, if a [saw]mill is unable to supported by the dominance of the B.C. The AAC in BC is not an effective bid on a tract due to the restriction, timber market by the large Crown limitation on timber supply for Crown the market loggers participating in tenure–holding sawmills. This is tenure–holding sawmills, as sawmills the BCTS auctions will still take significant to the extent that it limits the can just decide to harvest more from into account the mill’s valuation for loggers’ ability to sell timber bought at their Crown tenure, the price they pay the logs, since the loggers anticipate the auctions to other customers. Record for auctioned timber would be limited information demonstrates that a small by what they pay for Crown stumpage. being able to sell the harvested logs number of these large tenure–holding The record shows that these large directly to the mill or through the sawmills harvest the majority of the Crown tenure–holding sawmills did not log market (where log market prices Crown timber in B.C. For example, the exhaust the amount of timber they could will reflect the valuations of all ten largest licensees by AAC (Canadian harvest from their tenures during the local mills). Thus, a mill’s valuation Forest Products Ltd., Weyerhaeuser POR. As such, they were not forced to for the logs is still reflected in the Company Limited, Slocan Forest obtain timber from other sources, such auction prices, even it if does not Products Ltd., West Fraser Mills Ltd., as the BCTS section 20 auctions, bid directly. (Emphasis added.) Doman Industries, International Forest because of a scarcity of available timber As stated previously, our analysis Products, Riverside Forest Products on their own tenure. cannot utilize a benchmark that would Limited, Weldwood of Canada Limited, Specifically, the Crown tenure– reflect any underlying subsidy to Tolko Industries Ltd., and Tembec holding sawmills, who hold forest determine whether and to what extent Industries Inc) account for licenses and tree farm licenses, were that very subsidy exists. As described approximately 59 percent of the Crown allocated 61.0 million cubic meters of above, the prices for timber auctioned harvest and 52 percent of all timber timber or 85 percent of the AAC, which under section 20 are effectively limited harvested in the province. See BC–III– is the annual rate of timber harvesting by Crown stumpage prices paid by 14 of the GOBC’s November 22, 2004 specified in each Timber Supply Area Crown tenure–holding sawmills. These questionnaire response and Exhibits (TSA), during the POR. However, these sawmills purchase the predominant BC–S–1 and BC–S–10. These large licensees harvested only 42.4 million amount of the timber bought in the Crown tenure–holding sawmills, and cubic meters or 70 percent of their AAC, auctions by logging companies at prices the timber harvested from a shortfall of 18.6 million cubic meters. that are negotiated with the loggers prior administratively–set Crown logs, thus See GOBC’s November 22, 2004, to the auction in addition to being dominate a significant portion of the Questionnaire Response at BC–S–139. minor participants in the auctions. timber market in British Columbia. Moreover, since Crown tenure holders Moreover, the sawmills are in a position The idea that the customers of loggers are allowed to overcut their AAC, even to establish these timber prices in a bidding at the auctions are large tenure– meeting their AAC would not have manner that reflects the prices they pay holding sawmills is further supported necessitated their buying from the for Crown stumpage on their own with other information on the record. auctions as additional timber could tenures, i.e., administratively–set prices, For example, West Fraser, a large Crown have been harvested under their because they are not faced with a tenure–holding sawmill, claims that it tenures. See GOBC November 22, 2004, scarcity of timber from their tenure. purchased logs from market loggers who Questionnaire Response at BC–S–88. For these reasons, we preliminarily won bids in section 20 small business The mills’ willingness to pay for timber determine that the prices of Crown or BCTS auctions; in such purchases, from other sources, such as the auctions, timber auctioned under section 20 of the West Fraser also claims that other will be limited by their costs for Forest Act, as amended during the POR, obtaining timber from their own are effectively limited by prices for 14 TSLs grant the right to harvest timber within tenures. administratively–set Crown timber. As a specific Timber Supply Area or TFL Area. TSLs The price that loggers bid at the such, these prices cannot serve as have a duration of no more than 10 years. TSLs under Section 20 and 23 typically have a one-year auctions is limited by the price they benchmarks to measure the adequacy of term while TSLs under Section 21 have terms receive from tenure–holding sawmills remuneration for Crown provided averaging four or five years. because these sawmills are major timber, because they do not reflect
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market–determined prices from 15, 2005, supplemental questionnaire Crown timber prices (the Feedback competitively run government auctions, response. In each of the last four years, Effect) a key requirement of the CVD the harvest level ranged from as low as • Sawmills with access to Crown timber regulations. See 19 CFR 351.511(a)(2)(i). 56 percent to no more than 88 percent can avoid sourcing in the private forest of the annual allowable cut. Id. because, among other things, the annual Province of Ontario With no constraints on the amount of allowable cut on Crown land is not In the first administrative review, we Crown timber that sawmills can obtain, binding. • determined that the prices for private the price that loggers are willing to bid Tenure–holding sawmills dominate standing timber in Ontario placed on the private market on private stumpage is dictated by the • the record by the GOO could not be difference of the expected sale price of Sawmills without access to Crown used for benchmark purposes. the log and their harvesting costs plus timber account for small harvest volume Specifically, we determined that the profit. Loggers who sell to tenure– in the private forest See Preliminary Results of 1st Review, prices reported in a survey prepared by holding mills cannot expect to charge 69 FR at 33215–33217. See also Final DGM could not be used as benchmarks more for their private logs than the cost Results of 1st Review Decision because the prices are effectively of the logs that the mills can source Memorandum at Comments 22 through determined by the price for public from their public tenure. The largest 25 timber. See Preliminary Results of 1st 33. softwood sawmills, producing 92 A review of the information on the Review, 69 FR at 33215–33217; and percent of the lumber in Ontario, have Final Results of 1st Review Decision record of this review has not led us to Crown tenure for which they pay alter this finding. Similar to the first Memorandum at Comments 20 and 21. government–set stumpage prices. See In this review, the GOO submitted administrative review, the GOQ page ON–236 of the GOO’s November estimates (based on mill return data) of provided the aggregate sourcing patterns 22, 2004 initial questionnaire response. the volumes of private timber delivered of Quebec’s 1,020 softwood sawmills Because the AAC in Ontario is not to the various mills and a survey of during 2003. The mills were divided prices of standing timber from private binding, mills with public tenure can into four categories: mills sourcing lands conducted by Bearing Point. In always harvest more timber from their exclusively from public sources (purely addition, the GOO submitted an tenure and are not driven to the private public mills), mills sourcing exclusively economic analysis written by Charles market by demand that cannot be met from private sources (purely private River Associates and a map which from their tenure–holdings. See Final mills), mills sourcing from public and shows the distribution of private forest Results of 1st Review Decision private sources, and mills sourcing from lands in Ontario. Memorandum at Comment 20. Their public, private, and other (e.g., imports) This new information has not led us willingness to pay for logs from other sources (public/private/other mills). to alter our findings from the first sources will be limited by their costs for Analysis of the data provided shows review. As in the prior review, we obtaining timber from their own that purely private mills sourced determine that the prices for private tenures. Therefore, the prices loggers 534,769 cubic meters of softwood timber standing timber in Ontario are bid for private stumpage are limited by which accounted for only 1.7 percent of effectively determined by the price for the public stumpage prices paid by the volume of softwood harvested in the public timber and, thus, cannot be used these mills. For these reasons, the province. See Exhibit 162 of the GOQ’s as benchmarks for determining whether Department finds that the transactions April 19, 2005 supplemental the GOO sells Crown timber for less recorded in the Bearing Point Survey are questionnaire response; see also Table 1 than adequate remuneration. effectively determined by the Crown of the May 31, 2005, Memorandum to Information on the record indicates stumpage prices and are, hence, not the File from Eric B. Greynolds, that sawmills in Ontario rely on Crown suitable benchmarks for assessing ‘‘Quebec Internal Price Memorandum’’ timber for the vast majority of their adequacy of remuneration. (Quebec Internal Price Memorandum) timber supply needs and use private Our analysis cannot utilize a Further, record evidence indicates that timber in small quantities. According to benchmark that would reflect any the average consumption rate of the 819 mill return data provided by the GOO, underlying subsidy to determine purely private mills continues to be 70 out of 75 mills reported usage of both whether and to what extent that very small, on average approximately 653 Crown timber and timber from private subsidy exists. Because the prices in the cubic meters, relative to the 146 dual– lands, accounting for 99.7 percent of the Bearing Point Survey are dictated by the source mills, whose consumption rate total volume reported. See Exhibit ON– price for Crown timber, they are not was approximately 171,421 cubic SUPP–3 of the GOO’s April 15, 2005, useable under tier one of our regulatory meters (a.k.a., mills that source from supplemental questionnaire response. hierarchy. public and private sources). Id. Also according to data provided by the In addition, evidence on the record of Province of Quebec GOO, the twenty–five largest sawmills, this review indicates that dual–source which account for about 74 percent of In the first administrative review, we mills dominate the market for private the volume reported, used concluded that prices for private standing timber. The 146 dual–source approximately 10 million cubic meters standing timber in Quebec could not mills accounted for 85.9 percent of the of Crown timber during POR and less serve as benchmarks for determining private timber harvested in 2003. Id. At than one half million cubic meters of whether the GOQ sells Crown timber for the same time, dual–source mills private timber. Information provided on less than adequate remuneration obtained only a small percentage of the record by the GOO also indicates because the incentives that tenure their total harvest during 2003 from that tenure holders in Ontario are holders face vis–a-vis the private market private lands. For instance, public/ virtually unconstrained in the amount are distorted. We based our conclusion private/other mills obtained 17.6 of Crown timber they can obtain. During on the following factors: percent of their total harvest from the the POR, loggers and mills in Ontario • Tenure–holding sawmills have an private forest while public/private mills harvested only 70 percent of the annual interest in maintaining a low value of sourced just 10.6 percent of their allowable cut set by the GOO. See standing trees in private forests, as this softwood from the private forest. Id. exhibit ON–TNR–3 of the GOO’s April value provides the basis for calculating Thus, the data continue to indicate that
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the public stumpage market is a much Final Results of 1st Review Decision Results of 1st Review, 69 FR at 33218. more important sourcing component for Memorandum. During the POR of this administrative dual–source mills and, thus, continues review, private supply accounts for 49.2 Provinces of Manitoba and to be the market on which these mills percent of the total harvest in New Saskatchewan focus the majority of their interests and Brunswick and over 89.4 percent in operations. With respect to Manitoba and Nova Scotia. See Exhibit 1 of the As in the first administrative review, Saskatchewan, the provincial GONB’s May 2, 2005 submission; see record evidence indicates that the governments did not supply private page 2 of the GONS’s November 23, dominance of the dual–source mills is market timber prices upon which to 2004 submission. pronounced at the corporate level. In base a first–tier benchmark arising from Although interested parties have Exhibit 120 of its March 15, 2005 those provinces. contested our use of Maritimes’ private questionnaire response, the GOQ Private Stumpage Prices in New stumpage prices in this review, we find provided actual consumption data for Brunswick and Nova Scotia May Serve their comments do not contain any new 440 of Quebec’s softwood sawmills.15 as a First–Tier Benchmarks in the evidence or argument which would The data in Exhibit 120 indicate that in Subject Provinces warrant a reconsideration of our prior finding. For example, the argument that 2003 six corporations, whose mills As in the first administrative review, source from both public and private Maritimes’ private stumpage prices do private stumpage prices for New not reflect prevailing market conditions sources, consumed approximately 54 Brunswick and Nova Scotia (together, percent of the total timber harvest, 63 in the subject provinces is fully the Maritimes) were submitted on the addressed in the first review. See Final percent of the public harvest, and 31 record of this review by the GONB and percent of the private harvest. See Table Results of 1st Review Decision GONS, respectively. These prices are Memorandum at Comment 38. Thus, we 2 of the Quebec Internal Price contained in separate price surveys Memorandum. Further, sorting the data preliminarily determine that the prepared by AGFOR, Inc. Consulting Maritimes’ private prices are market– in Exhibit 120 by private timber (AGFOR) for each of the Maritimes’ consumption indicates that 20 determined prices in Canada, and are governments. See New Brunswick therefore usable under the first tier of corporations (15 of which operate dual– AGFOR Report at Exhibit 1 of the source mills) account for over 70 our adequate remuneration hierarchy, GONB’s November 22, 2004 and consistent with our approach in the percent of the private timber harvest. questionnaire response. See Nova Scotia See Table 3 of the Quebec Internal Price first administrative review, we have AGFOR Report at Exhibit 4 of the used Maritimes’ private prices to Memorandum. However, while these GONS’s November 22, 2004 corporations consume the majority of measure the adequacy of remuneration questionnaire response. of the stumpage programs administered private timber in Quebec, private–origin In the first administrative review, we timber accounts, on a weighted–average by the GOA, GOS, GOM, GOO, and determined that private stumpage prices GOQ.16 basis, for 12 percent of their inputs in the Maritimes constituted market while public timber accounts for 83 determined, in–country prices Comparability of Maritimes Standing percent. consistent with the first–tier of the Timber to Standing Timber in Alberta, In addition, information on the record adequate remuneration hierarchy of 19 Manitoba, Ontario, Quebec, and of this review indicates that there have CFR 351.511(a)(2). Therefore, we used Saskatchewan been no changes to Quebec’s Forestry these prices to assess the adequacy of The Nova Scotia and New Brunswick Act that would lead us to alter our remuneration of the Crown stumpage Reports contain prices for the general previous findings that feedback effects provided by the GOA, GOM, GOO, timber species category of eastern SPF.17 inherent in the GOQ’s administered GOQ, and GOS. See Preliminary Results The species included in eastern SPF stumpage system encourage tenure of 1st Review, 69 FR at 33218. See also are also the primary and most holders to maintain low prices for ‘‘Private Stumpage Prices in New commercially significant species private timber. We also continue to find Brunswick and Nova Scotia’’ section of reported in the SPF groupings for that sawmills with access to Crown the Final Results of 1st Review Decision Quebec, Ontario, Manitoba, timber can avoid sourcing in the private Memorandum and at Comments 34, 35, Saskatchewan and a portion of Alberta, forest. Therefore, for purposes of these 37, and 38. accounting for over 90 percent of the preliminary results, we find that private As explained in the first entire timber harvest across these prices for standing timber in Quebec administrative review, Maritimes’ provinces.18 cannot serve as benchmarks within the stumpage price reports were prepared In the first administrative review, we meaning of 19 CFR 351.511(a)(2)(i) by AGFOR on behalf of the Maritimes’ found that although there is some minor when determining whether the GOQ governments to establish the bases for variation of the relative concentration of sells Crown timber for less than their administered stumpage rates and adequate remuneration, because these not for the purpose of this proceeding. 16 In the first administrative review, we prices are distorted by a combination of Id. Record evidence further indicated determined that Maritimes’ private prices were not the GOQ’s administered stumpage the most appropriate benchmark for British that in establishing their Crown Columbia. See ‘‘Benchmark Prices for B.C.’’ section system, the relative size of public and stumpage rates, the Maritimes consider of the Final Results of 1st Review Decision private markets, feedback effects the prevailing prices for stumpage in the Memorandum. We have continued to adopt this between the private and public markets, private market and the calculations for approach in the current review. See ‘‘Maritimes and a non–binding AAC. See ‘‘Private Prices are not the most appropriate Benchmark for the Crown stumpage rates are thus British Columbia’’ section of these preliminary Provincial Market Prices’’ section of the directly linked to actual market–based results for further discussion. transactions in the private market. Id. In 17 This category includes, among other species, 15 These mills accounted for nearly all (95 addition, in the first administrative white spruce, black spruce, red spruce, jack pine, percent) of the softwood processed in the Province review, we found that the private and balsam fir which represents the vast majority during the POR. Thus, we find that the data in of the species harvested in the Maritimes. Exhibit 120 provide a reasonable summary of the supply standing timber constitutes a 18 98 percent for Quebec, 94 percent for Ontario, consumption patterns of Quebec’s softwood significant portion of the overall market 99 percent for Saskatchewan, 99 percent for sawmills in operation during 2003. in the Maritimes. See Preliminary Manitoba, and 99 percent for Alberta.
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individual species across provinces, this however, the large majority of In their April 29, 2005 submission, does not affect comparability for Canadian timber falls into the petitioners contend that the diameter benchmark purposes. See, e.g., spruce–pine-fir (‘‘SPF’’) category, information the Department relied on in Preliminary Results of 1st Review, 69 which is generally recognized as the first administrative review FR at 33219; and ‘‘Private Stumpage commercially interchangeable. overstated the average diameter of the Prices in New Brunswick and Nova See page 72 of petitioners’ August 27, Maritimes’ standing timber and Scotia’’ section of the Final Results of 2003 submission. They further stated understated the diameter of the subject 1st Review Decision Memorandum and that because, ’’. . . most Canadian provinces, namely that of Alberta. They at Comment 38. We further found that lumber . . . is sold as part of the argue that if the Department accounts the provinces themselves do not undifferentiated SPF lumber grouping, for biases in the diameter data, it will generally differentiate between these timber harvests are largely simply SPF find that, regardless of the species; rather, they tend to group all as well.’’ Id. Petitioners went on to cite preponderance of SPF, the Maritimes eastern SPF species into one category a statement made by a major Canadian logs are too small relative to those of the for data collection and pricing, e.g., lumber company, Abitibi–Consolidated, subject provinces to be used as Quebec charges one stumpage price for Inc., in the context of the antidumping stumpage benchmark. ‘‘SPF.’’ Id. investigation in which it also attested to The Department continues to rely on In this review, petitioners contend the interchangeability of eastern and the diameter data it relied on in the first that it is not appropriate to measure the western SPF lumber. Id. On this basis, review. We note that petitioners adequacy of the GOA’s administered petitioners concluded that in calculating previously stated that: stumpage system because a significant a U.S.-based log benchmark, . . .for sawlog sizes up to the 10–inch portion of Alberta’s Crown harvest ‘‘adjustments for species within the SPF diameter class—the vast bulk of consists of species that are made into group, therefore, are not necessary.’’ Id. relevant logs in both the U.S. and Western ‘‘SPF’’ lumber, which is Further, in the context of the Canada, outside of the B.C. Coast— superior and, therefore, not comparable antidumping proceeding, the log prices do not substantially vary to the Eastern ‘‘SPF’’ lumber produced Department also found eastern and on a per–unit-basis, as long as the from standing timber harvested in the western SPF to be interchangeable. See logs are of a sufficient size and Maritimes. See page 63 through 69 of Notice of Preliminary Determination of quality to be sold to sawmills for petitioners’ April 29, 2005, submission. Sales at Less Than Fair Value and milling into lumber. Petitioners further argue that it is not Postponement of Final Determination: Id. at 73. appropriate to compare Maritimes’ Certain Softwood Lumber Products from stumpage prices to Alberta’s Crown Canada, 66 FR 56062 (November 6, For these reasons, we preliminarily stumpage prices because there is little 2001), where, in reference to lumber, the determine that Maritimes’ prices for commonality between western and Department stated: eastern SPF are comparable to Crown eastern softwood species. Id.19 stumpage prices for the SPF species We note that petitioners’ contentions . . . Eastern and Western Spruce–Pine- groupings in Quebec,20 Ontario, are premised on the notion that there is Fir are identical from the Manitoba, Saskatchewan, and Alberta. a premium attached to Western ‘‘SPF’’ viewpoints of the markets and with Accordingly, consistent with 19 CFR lumber, which results in a premium for respect to end–use. The ‘‘eastern’’ 351.511(a)(2)(i), we have compared Western ‘‘SPF’’ logs. On this point, we and ‘‘western’’ designations are these market–determined, in–country note that petitioners have themselves simply a regional distinction which prices to the Crown stumpage prices in asserted the opposite. In a submission to is irrelevant for purposes of product each of the provinces to determine the Department regarding the ruling of comparison in this investigation. whether the Crown prices were for less the NAFTA dispute settlement panel, Regarding the comparability of the than adequate remuneration. petitioners urged the Department to Maritimes to the subject provinces, in Application of Maritimes Prices measure the adequacy of remuneration the first administrative review we also of the subject provinces’ administered determined that the species maps for Having preliminarily found that the stumpage system using a U.S.-based log SPF demonstrate that the species Maritimes’ prices are in–country, benchmark. See petitioners’ August 27, group’s range of growth stretches from market–determined prices, we next 2003 submission, a public document on the Maritimes to Alberta. See Final consider how to apply these prices in file in the CRU. In support of their Results of 1st Review Decision our benefit calculations. argument that the use of a U.S.-based Memorandum at Comment 38. We log benchmark would be feasible, further determined that record evidence 1. Indexing petitioners contended that minimal demonstrated that SPF trees are The Nova Scotia Report contains price adjustments would be necessary to comparable across their entire growing data from 1999. The New Brunswick calculate the subsidy benefits for the range as demonstrated by tree diameter, Report contains price data for the period subject provinces: which is one of the most important July 1, 2002, to November 30, 2002. In Any comparisons based on log prices characteristics in terms of lumber use. the first administrative review, we should be species–specific. With Id. For example, we found comparable indexed the data in the Nova Scotia the exception of the BC Coast, diameters among SPF trees grown from Report using using a lumber–specific the Maritimes to Alberta. Id. In index reported for the Atlantic Region 19 Petitioners made similar contentions regarding particular, we found that at the by STATCAN. See Preliminary Results the dissimilarity of logs and lumber from the Maritimes and Alberta during their April 14 and easternmost portion of their range, SPF’s May 5 meetings with members of the Import average diameter at breast height (DBH) 20 Consistent with our approach in the first Administration staff. See the attachments in the in New Brunswick is 7.78 inches, at the administrative review, we continue to find that April 14 and May 6, 2005 memorandums to the file westernmost portion of their range in Quebec’s SPF basket includes larch. Accordingly, from Eric B. Greynolds, Program Manager, Office of we constructed an SPF benchmark which includes AD/CVD Enforcement III, entitled, ‘‘Meeting with Alberta, the DBH is 8.00 inches, and in larch for Quebec for this review. See, e.g., Final Counsel to the Coalition for Fair Lumber Imports Quebec, which accounts for the largest Results of 1st Review Decision Memorandum at Concerning the Upcoming Preliminary Results.’’ overall harvest, the DBH is 7.91. Id. Comment 40.
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of 1st Review, 69 FR at 33218.21 In the of themselves. Thus, to use the these preliminary results, we find there current administrative review, publications in the manner requested by has been no new information or petitioners have argued that it is petitioners requires that the Department arguments from interested parties that incorrect to index stumpage prices using construct an index based on limited would warrant a reconsideration of a lumber price index, especially since data. In contrast, the lumber index from these findings. Therefore, we added the evidence they submitted on the STATCAN is prepared and maintained these costs to the indexed stumpage record purportedly indicates diverging in the ordinary course of business and prices to obtain the average stumpage lumber and log prices. See page 89 of can be incorporated into our price for softwood logs from New petitioners’ April 29, 2005 submission. calculations without the added steps Brunswick and Nova Scotia. Petitioners contend that we should that would be necessary to construct an 3. Weighting of Studwood in the Nova instead rely on indices derived from log index using the data from AFR and Scotia Benchmark price data from the Atlantic Forestry Madison’s. See the May 31, 2005, Review (AFR), a Maritimes–based Memorandum to the File from Eric B. The GONS does not collect harvest publication that reports softwood Greynolds, Program Manager, AD/CVD volume data by log type (i.e., studwood sawlog prices on a bi–annual basis, to Enforcement, Office 3, ‘‘Data on the log, sawlog, or treelength log). Thus, in index the pricing data from Nova Scotia Statistics Canada Obtained from the its Nova Scotia Report, AGFOR used a and New Brunswick. They further argue Internet and Placed on the Record.’’ methodology which allowed it to that if we continue to use the STATCAN Further, STATCAN produces its lumber allocate prices to the corresponding log index for Nova Scotia, then we should index using an established and type. Specifically, AGFOR, when it index the private pricing data in the consistent methodology from year to constructed the weighted prices found New Brunswick Report using a year that involves mandatory on page 23 of the AGFOR Nova Scotia constructed lumber price index derived respondents, including a group of ‘‘must Report, allocated an equal share of the from lumber pricing data reported by take’’ respondents that are included in volume to all of the log types harvested Madison’s Canadian Lumber Reporter every survey period. Id. In addition, in a given region within Nova Scotia. (Madison’s), a British Columbia–based STATCAN employs commodity See, e.g., page 13 and 14 of the October lumber reporting publication, on the specialists to conduct follow–up 1, 2004 memorandum to Melissa G. grounds that record evidence indicates inquiries of outlier, incorrect, or Skinner, Director, Office of AD/CVD that the GONB uses the Madison’s suspicious prices. Id. Enforcement 3, from Maura Jeffords, publication to set their administered Thus, we acknowledge that, in an Case Analyst, Office of AD/CVD stumpage prices. ideal situation, we would use a pre– Enforcement 3, regarding, ‘‘Verification During the POR, the AFR published existing stumpage or log index to adjust of the Questionnaire Responses price information in July 2003 and for price changes in the Maritime price Submitted by Governments of New January 2004. See the May 31, 2005, data. However, in light of the evidence Brunswick (GONB) and Nova Scotia Memorandum to the File from Maura submitted on the record of this review, (GONS) and AGFOR Reports Submitted Jeffords, Case Analyst, AD/CVD we preliminary determine that the in Reference to Private Prices in New Enforcement, Office 3 (AFR constructed log index proposed by Brunswick and Nova Scotia,’’ Memorandum). The July 2003 petitioners remains inferior to the (Maritimes Verification Report), which publication covered a one-week period lumber price index from STATCAN. was placed on the record of this review in May 2003, while the January in the GOC’s March 15, 2005 publication covered a one-week period 2. Costs That Must Be Paid in Order to submission. In the first administrative in late November 2003. Id. According to Harvest Private Standing Timber in New review, we determined that it was officials at the AFR, their softwood log Brunswick and Nova Scotia reasonable to accept AGFOR’s price surveys cover approximately 20 In the first administrative review, we methodology for reporting the Nova respondents, with five to ten percent of found that the pricing data for New Scotia stumpage prices. See Final the selection varying between Brunswick and Nova Scotia reflect the Results of 1st Review Decision publications. Id. Regarding Madison’s, prices paid by harvesters for standing Memorandum at Comment 37. officials from the publication stated that timber and include the value of the Petitioners contend that it is not it does not collect lumber prices from timber being purchased in addition to appropriate to weight the studwood entities in the Maritime provinces. See any landowner costs. See Final Results prices in the manner described above. the May 31, 2005, Memorandum to the of 1st Review Decision Memorandum at They argue that lumber production File from Maura Jeffords, Case Analyst, Comment 39. We also found that capacity data for Nova Scotia sawmills AD/CVD Enforcement, Office 3 harvesters in the Maritimes incur contained in a 2003 United States Forest (Madison’s Memorandum). additional costs that must be paid in Service (USFS) Survey demonstrate that For purposes of these preliminary order to be able to acquire private the Department’s approach in the first results, we have determined to index timber. Specifically, we found that administrative review vastly overstates the private price data from the New harvesters in New Brunswick are the amount of studwood in Nova Scotia. Brunswick and Nova Scotia Reports required to pay silviculture fees as well They assert that the data in the USFS using the lumber–specific index as administrative fees to the marketing survey demonstrate that a weight of 10.3 reported for the Atlantic Region by board operating within the region. In percent should be attributed to the STATCAN. First, information from Nova Scotia, in order to be able to studwood prices contained in the Nova Madison’s indicates that it does not acquire the standing timber, the Scotia Report. See petitioners’ April 29, collect lumber price information for the registered buyer must either pay for or 2005 submission at page 97. Maritimes. We further note that the AFR perform in–kind activities equal to First, we acknowledge the difficulty and Madison’s simply contain price C$3.00 for every cubic meter of private involved in attaching a weight to the information and are not indices in and wood harvested. Id.22 For purposes of studwood prices contained in the
21 It was not necessary to index the pricing data 22 In the final results of the first review, we also any other charges (i.e., road building/maintenance in the New Brunswick Report because it coincided confirmed that harvesters of private standing timber costs, fire prevention costs, or land-owner related with the POR of the first administrative review. in Nova Scotia and New Brunswick do not incur costs).
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AGFOR report. In light of this fact, in to purchase either timber or logs would U.S. Log Prices Are a More Appropriate these preliminary results we continue to instead ultimately depend on price. Benchmark rely on the approach adopted by In the final results of the first In the final results of the first AGFOR in the Nova Scotia Report. As administrative review, we further administrative review, we found that noted in Final Results of 1st Review determined that, because these U.S. log prices may constitute third–tier Decision Memorandum, AGFOR companies simultaneously purchased benchmarks when determining the developed this approach in the ordinary and used both forms of wood, they must adequacy of remuneration of the course of business prior to the initiation GOBC’s administered stumpage program of the CVD investigation. Moreover, the in principle view the cost of stumpage and logs as equivalent, i.e., stumpage (i.e., a benchmark that is consistent with Department found AGFOR’s approach to market principles under 19 CFR be reasonable in the first administrative price plus the cost of harvesting should equate to the cost of a log. In addition, 351.511(a)(2)(iii)). See ‘‘U.S. Log Prices review. Second, regarding the studwood Are a More Appropriate Benchmark’’ in we explained that the fact these weight that petitioners derived using Final Results of 1st Review Decision mill capacity data from the USFS producers used both timber and logs Memorandum. In the final results of the survey, we note that it is based on only throughout the period of the first review first review, we stated that a market 8 sawmills and, thus, does not account to produce softwood lumber meant that principles analysis by its very nature for dozens of additional mills in Nova stumpage–log price equivalence was depends on the available information Scotia that produce significant maintained throughout that review concerning the market sector at issue, commercial quantities of lumber. period and that this, in turn, suggested and must, therefore, be developed on a that the timber and log prices were Benchmark Prices Used for British case–by-case basis. In this case, we linked (e.g., low (or high) timber prices Columbia found that using U.S. log prices is means low (or high) log prices). Id. On consistent with a market principles Maritimes’ Stumpage Prices Are Not the this basis, in the final results of the first analysis, because (1) stumpage values Most Appropriate Benchmarks for review, we determined that there was are largely derived from the demand for British Columbia sufficient record evidence to conclude logs produced from a given tree; (2) the In the final results of the first review, that subsidized prices in the Crown timber species in the U.S. Pacific we concluded that the Maritimes’ stumpage market would result in price Northwest and British Columbia are private stumpage prices were not suppression in the sales of Crown logs. very similar and, therefore, U.S. log suitable as benchmarks for British Id. For these reasons, we also prices, properly adjusted for market Columbia because of the lack of determined that B.C. log prices are not conditions in British Columbia, are commercial interchangeability between market–determined prices independent representative of prices for timber in British Columbia; and (3) U.S. log prices the species in British Columbia and the from the effects of the underlying Crown are market determined. Id. For purposes eastern SPF species in the Maritimes. stumpage prices and, therefore, cannot See ‘‘Maritimes Benchmarks Are Not the of these preliminary results, we find be used to assess the adequacy of that the record of the current review Most Appropriate for B.C.’’ section of remuneration of B.C.’s stumpage the Final Results of 1st Review Decision does not contain any new evidence program. For purposes of these which would warrant a reconsideration Memorandum. We preliminarily preliminary results, we find that the determine that the record does not of our finding from the final results of record does not contain any new the first review. We also continue to contain any new evidence which would evidence which would warrant a warrant a reconsideration of our finding make the same adjustments to derive the reconsideration of our finding from the from the final results of the first review. market stumpage prices for British final results of the first review. Columbia. See ‘‘Calculation of the B.C. Log Prices Are Not An Appropriate U.S. Stumpage Prices Are Not the Most ‘‘Derived Market Stumpage Price’’ Benchmark section below. Appropriate Benchmark for British In the final results of the first review, Columbia Application of U.S. Log Prices we found that stumpage and log markets in British Columbia were closely In the first administrative review, we 1. Selection of Data Sources intertwined and therefore Crown explained that we were cognizant of the In the final results of the first review, stumpage prices affected both stumpage fact that a NAFTA Panel, considering our U.S. log benchmark for the B.C. and log prices. See ‘‘B.C. Log Prices Are the B.C. benchmark employed in the Coast consisted of Log Lines prices for Not An Appropriate Benchmark’’ underlying investigation, found that Washington and Oregon, as well as section of the Final Results of 1st standing timber is not a good that is Oregon prices from the Oregon Review Decision Memorandum. We commonly traded across borders. See Department of Forestry. Our U.S. log further found that Crown logs were, in ‘‘World Market Prices’’ in Final Results benchmark prices for the B.C. Interior fact, sold in substantial quantities on the of 1st Review Decision Memorandum. consisted of prices from Northwest log market. Id. For example, we found We also explained, in considering U.S. Management Inc.’s Log Market Report that the great majority of wood sold in stumpage prices as a benchmark under covering eastern Washington and B.C. (apart from allocated Crown wood) our regulatory hierarchy, that using Northern Idaho (Area 1) and western was purchased by large integrated those prices would require complex Montana (Area 4) as well as prices from tenure–holding producers who purchase the University of Montana’s Montana adjustments to the available data. We wood for their sawmills following Sawlog & Veneer Log Report that therefore turned our analysis to U.S. log standard purchase contracts that were contains log prices for western Montana. structured as log or stumpage purchases. prices. Id. For purposes of these In this review, interested parties have Thus, we determined that these preliminary results, we find that the submitted updated U.S. log prices from producers were indifferent as to which record of this review does not contain the four sources covering the same form of wood, i.e., either timber or logs, any new evidence that would warrant a regions listed above. Interested parties they purchased for use in softwood reconsideration of our finding from the have also submitted additional U.S. log lumber production and that the decision final results of the first review. price data for the current review period
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from the following sources: Oregon Log availability of data for those states. They agreement) and those costs that are Market Report, Washington Log Market argue that it is more appropriate to necessary to access the standing timber Report, Pacific Rim Wood Market develop a simple average for each state for harvesting (but that may differ Report, Timber Data Company, and within each benchmark area, and then substantially depending on the location Idaho Department of Lands. calculate a simple average of those of the timber). Where such costs are We preliminarily determine to prices. Id. incurred by harvesters in either the continue to use the U.S. log price We preliminarily find that the GOBC’s Maritimes or the subject provinces, we sources listed above for the B.C. Coast proposed simple–averaging included them in our benefit and Interior, as updated for the current methodology creates additional calculations. We did not, however, POR. In addition, we preliminarily complications and we have not made make adjustments for costs that might determine to include the following the requested changes. For example, be necessary to access the standing additional U.S. log price data sources some U.S. log data sources report log timber for harvesting but that do not for the B.C. coast: Oregon Log Market prices for regions or areas which differ substantially based on the Report, Washington Log Market Report, include two U.S. states. However, we location of the timber (e.g., costs for and Pacific Rim Wood Market Report welcome comments from interested tertiary road construction and (which cover the coast, northwest, and parties on the simple–average harvesting). Because the Maritimes data southwest Oregon and Washington). For methodology previously employed and reflect prices at the point of harvest, we the B.C. interior, we preliminarily on the GOBC and BCLTC comments on also did not include post–harvest determine to include the following this issue. We will continue to examine activities such as scaling and delivering additional U.S. log price data sources: the manner in which we average the logs to mills or market. Id. In this Oregon Log Market Report and benchmark U.S. log prices used in manner, we adjusted the unit stumpage Washington Log Market Report (which measuring the adequacy of prices of the GOA, GOS, GOM, GOO, cover eastern Oregon, eastern remuneration of the GOBC’s stumpage and GOQ such that they were on the Washington, Idaho, and Montana). We programs on the B.C. Coast and Interior. same ‘‘level’’ as the private stumpage have preliminarily decided not to use prices we obtained from the Maritimes. b.Conversion of U.S. Log Prices into the Western Washington log prices We preliminarily determine that the Canadian Dollar (CAD) / cubic meter reported by the Timber Data Company record does not contain any new and the Idaho Department of Lands’ The U.S. log price data was expressed evidence which would warrant a ‘‘pond value’’ log prices, as prepared by in U.S. dollars (USD) per thousand reconsideration of our finding from the the Timber Data Company. For board feet (mbf). Therefore, it was final results of the first review. additional information concerning our necessary to convert our benchmark 1. Province of Alberta selection of the additional data sets, see data so that they were expressed in the the May 31, 2005, Memorandum to the same currency and unit of measure as a. Derivation of Administered Stumpage File regarding the Preliminary the B.C. administered stumpage prices. Unit Prices Calculations for the Province of British In the final results of the first review, we To derive Alberta’s administratively Columbia. converted U.S. log price data for the established stumpage rate, we divided B.C. Coast using a conversion factor of the total timber dues charged to tenure 2. Derivation of U.S. Log Prices on a Per 6.76 USD / cubic meter. For the B.C. holders during the POR for each species Unit Basis For Use in Comparison to Interior, we used a conversion factor of by the total softwood stumpage billed Log Prices on the B.C. Coast and Interior 5.93 USD / cubic meter. We then under each tenure for each species. In a. Weighting of U.S. Log Price Sources converted the benchmark prices into this manner, we obtained a weighted– As explained above, in the final Canadian currency based on the average average stumpage price per species that results of the first review, we used a of the daily USD / CAD daily exchange was paid by tenure holders during the total of four sources to derive our U.S. rate, as published by the Federal POR. log price benchmarks (i.e., two sources Reserve Bank of New York. For purposes of these preliminary results, b. Adjustments to Administered for the B.C. Coast and two sources for Stumpage Unit Price the B.C. Interior). For both the B.C. we find that the record does not contain Pursuant to the methodology Coast and Interior, we derived the U.S. any new evidence which would warrant established in the final results of the log benchmark prices by taking the a reconsideration of our approach from first review, we have added the average unit price of the two respective the final results of the first review. following costs to Alberta’s data sources. See the February 28, 2005, Therefore, we continue to apply the administered stumpage unit price:23 Memorandum to the File regarding the same conversion factors and exchange • Costs for Primary and Secondary Amended Final Results Calculations for approach that was employed in the final Roads (e.g., Permanent Road Costs B.C. at Table 3A. results of the first review. in Road Classes 1 Through 4) The GOBC argues that if the Calculation of Provincial Benefits • Basic Reforestation Department continues to use U.S. logs • Adjustment to Administrative Stumpage Forest Management Planning as the benchmark for British Columbia, • Holding and Protection it should calculate simple averages Unit Price using a different methodology from the In the final results of the first review, 23 For a description of the derivation of the unit one it employed in the first we established a methodology for costs added to the GOA’s administered stumpage administrative review. See GOBC and adjusting the unit prices of the Crown price, see the May 31, 2005, Preliminary Calculations Memorandum for Alberta. The BCLTC’s February 28, 2005 Factual stumpage programs administered by the derivation of the unit costs for the GOS, GOM, Submission at Vol. 1, p.76. The GOBC GOA, GOS, GOM, GOO, and GOQ. See, GOO, and GOQ are also described in this asserts that the methodology employed e.g., Final Results of 1st Review calculation memorandum. The categories of costs by the Department in the final results of Decision Memorandum at Comment 39. added to the administered stumpage prices of the GOA, GOS, GOM, GOO, and GOQ are the same as the first review overstates the Under this methodology, we focused on those used in the final results of the review. See significance of log price data in certain those costs that are assumed under the Final Results of 1st Review Decision Memorandum states based on nothing other than the timber contract (e.g., the Crown tenure at Comment 39.
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• Environmental Protection Table 39, Exhibit AB–S–87 that has not 2. Province of Manitoba • Forest Inventory been ‘‘netted down’’ as the basis for • a. Adjustments to Administered Reforestation Levy Alberta’s benefit calculation. This data • Stumpage Unit Price Fire, Insect, and Disease Protection differs from the data set reported in the c. Calculation of the Benefit first review (Alberta Verification The GOM reported average, per unit stumpage prices for the POR. Thus, our To calculate the unit benefit under Exhibit, GOA–3, AR Table 43, Exhibit AB–S–70) because it represents the next step was to adjust the per unit this program, we compared the species– stumpage prices pursuant to the Section 80/81 basket category of timber specific benchmark prices (the methodology described above in which has not been ‘‘netted down’’ to Maritimes private stumpage prices ‘‘Calculation of Provincial Benefits.’’ exclude the volumes from tenure described above) to the GOA’s Specifically, we have added the corresponding adjusted administered holders who do not own sawmills. following costs to Manitoba’s stumpage prices. In this manner, we We subsequently added the volumes administered stumpage unit price: calculated a unit benefit for each species of certain non–lumber categories to the • Forest Renewal Charge group. Next, we calculated the species– Crown Section 80/81 data to capture the • Forest Management License specific unit benefit by the total universe of timber going to sawmills Silviculture • species–specific softwood timber billed which corresponds to the provincial Costs for Permanent Roads (e.g., volume in Alberta during the POR. softwood billed volume identified in the Primary and Secondary Roads) Regarding the softwood timber billed • Forest Inventory PwC survey and reported by the GOA in volume used in the benefit calculations, • Forest Management Planning the GOA claims that its stumpage Exhibit AB–S–107. The resulting • Environmental Protection classification system does not allow the aggregate Crown softwood billed • Fire Protection. volume was then ‘‘netted down’’ using province to isolate the wood volumes b. Calculation of the Benefit going strictly to sawmills and used to the ‘‘percentage of survey billed volume produce lumber. Thus, it is necessary to as lumber’’ reported in the PwC survey To calculate the unit benefit conferred derive the volume of softwood Crown results. This calculation enabled the under the GOM’s administered logs that entered and were processed by Department to derive the Alberta’s total stumpage program, we subtracted from Alberta’s sawmills during the POR (i.e., Crown stumpage billed volume on a the species–specific benchmark prices logs used in the lumber production species–specific basis, which reflects the cost–adjusted weighted average process). We performed a similar the volume of provincial stumpage cut stumpage price per species. Next, we calculation in the first administrative by tenure holders and sent to sawmills calculated the species–specific benefit review. However, upon identifying for processing into lumber and co– by multiplying the species–specific unit additional information discussed below, products. For further discussion, see the benefit by the total softwood timber harvest volume for that species during we determined that it is necessary to Preliminary Calculation Memorandum.24 the POR. We then summed the species– alter our approach to the calculations Finally, we summed the species– specific benefits to calculate the total for Alberta. specific benefits to calculate the total stumpage benefit for the province. The GOA argues that this volume stumpage benefit for the province. amount harvested by non–sawmill- c. Calculation of Provincial and owning tenure holders should not be d. Calculation of Provincial and Country–Wide Rate included in our calculations. However, Country–Wide Rate by the GOA’s own admission, this To calculate the province–specific volume amount includes logs that were To calculate the province–specific subsidy rate, we divided the total subsequently sold to sawmills. See, e.g., subsidy rate, we divided the total stumpage benefit for Manitoba by the page 8 of the GOA’s May 2, 2005 stumpage benefit by Alberta’s POR POR stumpage program denominator. supplemental questionnaire response. stumpage program denominator. For a For a discussion of the denominator Further, with respect to this volume discussion of the denominator used to used to derive the provincial rate for amount, the GOA provided no means by derive the provincial rate for stumpage stumpage programs, see ‘‘Numerator which we could identify the portion of programs, see ‘‘Numerator and and Denominator Used for Calculating the volume that went to sawmills and Denominator Used for Calculating the the Stumpage Programs’ Net Subsidy the portion that was exported or went to Stumpage Programs’ Net Subsidy Rates’’ Rates.’’ As explained in ‘‘Aggregate Subsidy Rate Calculation,’’ we weight– non–sawmills. Thus, because there is no in these preliminary results. As averaged the benefit from this provincial way to break out this volume amount explained in ‘‘Aggregate Subsidy Rate subsidy program by Manitoba’s relative and because the GOA has offered no Calculation,’’ we weight–averaged the information on whether any subsidies share of total exports of softwood benefit from this provincial subsidy lumber to the United States during the attributable to this softwood timber did program by Alberta’s relative share of or did not pass through to any sawmills, POR. The total countervailable subsidy total exports of softwood lumber to the for the provincial stumpage programs we have, as a starting point, included United States during the POR. The total the entire timber volume in question can be found in ‘‘Country–Wide Rate for countervailable subsidy for the Stumpage.’’ when determining the volume of Crown provincial stumpage programs can be logs to include in the numerator of found in ‘‘Country–Wide Rate for 3. Province of Saskatchewan Alberta’s provincial subsidy rate Stumpage.’’ calculation. a. Derivation of Administered Stumpage In order to determine the volume of Unit Prices Crown logs that went to sawmills To derive Saskatchewan’s 24 (a.k.a., ‘‘net–down’’ approach), we have We note that this volume of timber is separate administratively established stumpage from the volume of timber included in the GOA’s slightly revised the methodology that pass through claim. For further information rate, we divided the total stumpage was used in the first administrative regarding the GOA’s pass through claim, see the collections for each species by the review. Specifically, we have used the ‘‘Pass Through’’ section of these preliminary corresponding volume of Crown GOA’s Section 80/81 timber data from results. softwood timber destined to sawmills.
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In this manner, we obtained a weighted–average stumpage price per b. Adjustments to Administered weighted–average stumpage price per species that was paid by tenure holders Stumpage Unit Price species that was paid by tenure holders during the POR. Next, we adjusted the administered during the POR. b. Adjustments to Administered stumpage unit prices pursuant to the b. Adjustments to Administered Stumpage Unit Price methodology describe above in Stumpage Unit Price ‘‘Calculation of Provincial Benefits.’’ Next, we adjusted the administered Specifically, we have added the Next, we adjusted the administered stumpage unit prices pursuant to the following costs to Quebec’s stumpage unit prices pursuant to the methodology describe above in the administered stumpage unit price: methodology describe above in ‘‘Calculation of Provincial Benefits’’ • Forest Fund ‘‘Calculation of Provincial Benefits.’’ section of these preliminary results. • Administrative Forest Planning Specifically, we have added the Specifically, we have added the • Non–Credited Silviculture following costs to Saskatchewan’s following costs to Ontario’s • Construction and Maintenance of administered stumpage unit price: Primary and Secondary Roads • administered stumpage unit price: Forest Management Fee • Fire and Insect Protection • Forest Management Planning • Processing Facilities License Fee • Logging Camps • Forest Product Permit Application • Construction and Maintenance of • Silviculture Credits for Non– Fee Primary and Secondary Roads Mandatory Activities (Negative • Forest Management Activities • Fire Protection. Adjustment). • Costs for Permanent Roads (e.g., Primary and Secondary Roads). b Calculation of the Benefit b Calculation of the Benefit c. Calculation of the Benefit To calculate the unit benefit conferred To calculate the unit benefit conferred under the GOQ’s administered To calculate the unit benefit conferred under the GOO’s administered stumpage program, we subtracted from under the GOS’s administered stumpage stumpage program, we subtracted from the species–specific benchmark prices program, we subtracted from the the species–specific benchmark prices the cost–adjusted weighted average species–specific benchmark prices the the cost–adjusted weighted average stumpage prices per species. Next, we cost–adjusted weighted average stumpage prices per species. Next, we calculated the species–specific benefit stumpage price per species. Next, we calculated the species–specific benefit by multiplying the species–specific unit calculated the species–specific benefit by multiplying the species–specific unit benefit by the total softwood timber by multiplying the species–specific unit benefit by the total softwood timber harvest volume for that species during benefit by the total softwood timber harvest volume for that species during the POR. We then summed the species– harvest volume for that species during the POR. We then summed the species– specific benefits to calculate the total the POR. We then summed the species– specific benefits to calculate the total stumpage benefit for the province. specific benefits to calculate the total stumpage benefit for the province. stumpage benefit for the province. c. Calculation of Provincial and c. Calculation of Provincial and Country–Wide Rate d.Calculation of Provincial and Country–Wide Rate Country–Wide Rate To calculate the province–specific To calculate the province–specific To calculate the province–specific subsidy rate, we divided the total subsidy rate, we divided the total subsidy rate, we divided the total stumpage benefit for Quebec by the POR stumpage benefit for Saskatchewan by stumpage benefit for Ontario by the POR stumpage program denominator. For a the POR stumpage program stumpage program denominator. For a discussion of the denominator used to denominator. For a discussion of the discussion of the denominator used to derive the provincial rate for stumpage denominator used to derive the derive the provincial rate for stumpage programs, see ‘‘Numerator and provincial rate for stumpage programs, programs, see ‘‘Numerator and Denominator Used for Calculating the see ‘‘Numerator and Denominator Used Denominator Used for Calculating the Stumpage Programs’ Net Subsidy for Calculating the Stumpage Programs’ Stumpage Programs’ Net Subsidy Rates.’’ As explained in ‘‘Aggregate Net Subsidy Rates.’’ As explained in Rates.’’ As explained in ‘‘Aggregate Subsidy Rate Calculation,’’ we weight– ‘‘Aggregate Subsidy Rate Calculation,’’ Subsidy Rate Calculation,’’ we weight– averaged the benefit from this provincial we weight–averaged the benefit from averaged the benefit from this provincial subsidy program by Ontario’s relative this provincial subsidy program by subsidy program by Ontario’s relative share of total exports of softwood Ontario’s relative share of total exports share of total exports of softwood lumber to the United States during the of softwood lumber to the United States lumber to the United States during the POR. The total countervailable subsidy during the POR. The total POR. The total countervailable subsidy for the provincial stumpage programs countervailable subsidy for the for the provincial stumpage programs can be found in ‘‘Country–Wide Rate for provincial stumpage programs can be can be found in ‘‘Country–Wide Rate for Stumpage.’’ found in ‘‘Country–Wide Rate for Stumpage.’’ 6. Province of British Columbia Stumpage.’’ 5. Province of Quebec a. Derivation of Administered Stumpage 4. Province of Ontario To derive Quebec’s administratively Unit Prices a. Derivation of Administered Stumpage established stumpage rate, we divided To derive British Columbia’s Unit Prices the total stumpage collections for each administratively established stumpage To derive Ontario’s administratively species by the corresponding volume of rate, we divided the total stumpage established stumpage rate, we divided Crown softwood timber destined to collections for each species for the Coast the total stumpage collections for each sawmills. In this manner, we obtained a and Interior by the corresponding species by the corresponding volume of weighted–average stumpage price per Crown softwood sawlog volume. In this Crown softwood timber destined to species that was paid by tenure holders manner, we obtained a weighted– sawmills. In this manner, we obtained a during the POR. average stumpage price per species.
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b. Calculation of the ‘‘Derived Market • On–Block Road and Bridge harvesting activities. See page IV–21 of Stumpage Price’’ Construction the Department’s September 8, 2004 • Consistent with our approach from On–Block Road and Bridge questionnaire. In response, the GOBC the final results of the first review, we Deactivation stated: • Protection (Fire, Insect, and Disease In British Columbia, the vast bulk of calculated a ‘‘derived market stumpage Control) logging activity, including road price’’ for each species by using U.S. log • Silviculture and Reforestation. construction, basic silviculture, and prices as the benchmark for standing In the final results of the first review, other forest management timber prices to measure the adequacy we subtracted a per unit profit obligations, is undertaken by of remuneration of B.C.’s administered component from the ‘‘derived market independent contractors. In the stumpage system. See supra section on stumpage prices’’ used in the benefit Interior, company crews are use of U.S. log prices as B.C. calculations for the B.C. Coast and virtually non–existent—all work is benchmarks. Specifically, we deducted Interior. Our decision to include a profit done by contract and the tenure from the U.S. log prices all B.C. component for the B.C. Coast and holders do not perform the work harvesting costs, including costs Interior was based on the assumption themselves. On the Coast, there are associated with Crown tenure for that our cost data from the PwC survey some company crews for some calendar year 2003. As in the final report of B.C. logging and forest activities, but much of the work is results of the first review, we relied on management costs did not account for done by contractors. Therefore, the cost data from surveys of major tenure any profit that may have been incurred cost report prepared by holders prepared by PwC. Specifically, by independent harvesters. Therefore, PricewaterhouseCoopers (PwC) . . . PwC was engaged by the B.C. Ministry based on a 2001 study entitled, ‘‘Ready already reflects contractor costs for of Forests (MOF) to collect calendar year for Change: Crisis and Opportunity in the Interior and contractor and 2003 logging and forest management the Coast Forest Industry,’’ by Dr. Peter some limited company costs for the cost data for the Coast and Interior H. Pearse (Pearse Study), we estimated Coast. regions of British Columbia. The cost that half of the reported costs for the See page BC–VI–22, Volume I of the data presented by PwC was derived B.C. Coast was based on payments from GOBC’s November 22, 2004 from three separate surveys the MOF’s integrated sawmills to independent questionnaire response. 2004 annual Coast survey and two contractors acting has harvesters.25 Based on the GOBC’s statements (e.g., surveys (one for the Coast and the other Because the ‘‘fee for service’’ payments that all work is done by contract and for the Interior) conducted by PwC made by the sawmills already included that the tenure holders do not perform itself. the independent harvesters’ profit, we the work themselves), we find that the In these preliminary results, we have only added a profit adjustment for half cost data contained in the PwC’s survey subtracted the following unit costs from of the reported costs. In other words, we of the B.C. Interior reflect ‘‘fee for the U.S. log price benchmarks used for reduced the profit rate applied to the service’’ costs and, thus, already include the B.C. Coast: ‘‘derived market stumpage price’’ by 50 a profit component. Therefore, we • Tree–to-Truck preliminarily determine that no profit percent to reflect our finding that half of • Hauling adjustment is appropriate for U.S. log the reported survey costs on the B.C. • Dump, Sort, Boom, and Rehaul benchmark prices used in the benefit Coast (e.g., those costs attributable to • Crew Transportation Labor calculation of the B.C. Interior. • Road Maintenance independent harvesters) already As for the B.C. Coast, we note that the • Towing/Barging included a profit component. For the Pearse Study states that the ‘‘Forest Act • Helicopter Logging B.C. Interior, we treated the profit requires licensees to employ contractors • Camp Operations and Overhead component in a similar manner. to log at least 50 percent of their • Road Construction As for the profit rate applied to the harvests under Tree Farm Licenses and • Head Office, General Administration ‘‘derived market stumpage prices,’’ in a variable percentage—usually 50 • Logging Fees and Taxes the final results of the first review, we percent also—under Forest Licenses.’’ • Forestry, Engineering, and Fire calculated the adjustment through the See Pearse Study at 15. Further, the Protection. average of two profit figures on the GOBC stated in its initial questionnaire In these preliminary results, we have record in the first administrative review: response that logging and harvesting subtracted the following unit costs from a five (5) percent profit figure for New costs attributable to company crews are the U.S. log price benchmarks used for Brunswick reported by the Atlantic ‘‘limited’’ and that ‘‘. . .much of the the B.C. Interior: Canada Opportunities Agency and a ten work is done by contractors.’’ See • Tree–to-Truck (10) percent profit figure for Southeast GOBC’s November 22, 2004 • Hauling Alaska that was included in a questionnaire response. Based on the • Dump, Sort, and Boom submission by the GOBC. Id. fact the Forest Act dictates that at least • Towing/Barging Information available on the record of 50 percent of the harvesting activities • On–Block Road and Bridge the current review has led us to revise must be conducted by independent Maintenance the profit methodology employed in the contractors on the Coast, and in light of • Mainline/Secondary Road and final results of the first review. In our the GOBC’s statements that company Bridge Maintenance initial questionnaire, we asked the crew costs for logging activities on the • Post Logging Treatment GOBC to report for each of the ten B.C. Coast are limited (information that • Administration/Overhead largest tenure holders whether any of was not on the record of the first • Camp Operation them hired independent contractors to administrative review), we preliminarily • Depreciation, Depletion, and conduct any basic silviculture, road determine that it is no longer Amortization building, forest management, or appropriate to assume that tenure • Mainline/Secondary Road and holders harvested half of the logs on the 25 Bridge Construction The Pearse Study was placed on the record of B.C. Coast. Lacking any other • this review by the GOBC in its November 11, 2004, Mainline/Secondary Road and questionnaire response at Volume 6, Exhibit BC-S– information and, based on the GOBC’s Bridge Deactivation 20. characterization of company crew
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harvesting costs as being ‘‘limited,’’ we entitled ‘‘strategis.gc.ca.’’26 Specifically, we weight–averaged the benefit from preliminarily determine that in–house we obtained a 3.7 percent profit figure this provincial subsidy program by company crews employed by tenure for the B.C. logging industry. This profit British Columbia’s relative share of total holders are used 25 percent of the time figure is an average calculated from exports of softwood lumber to the on the B.C. Coast and that the remaining financial data for the year 2002 (the United States during the POR. The total amount is performed by independent most recent year for which data is countervailable subsidy for the contractors. Accordingly, we are available) from all small businesses provincial stumpage programs can be assuming that 75 percent of the costs (incorporated and unincorporated) in found in ‘‘Country–Wide Rate for contained in the PwC survey for the B.C. the B.C. logging industry.27 Given that Stumpage.’’ Coast already contain a profit the data are specific to the industry and Country–Wide Rate for Stumpage component and, thus, no profit province in question, we find it more adjustment is necessary for those costs. appropriate to use the profit data from The preliminary country–wide We have, however, applied a profit Industry Canada rather than continuing subsidy rate for the provincial stumpage component to the remaining 25 percent to use the profit figures from Southeast programs is 7.97 percent ad valorem. of the costs contained in the PwC survey Alaska and New Brunswick. Thus, in keeping with the approach described II. Other Programs Determined to Confer for the B.C. Coast. Based on new Subsidies information not available on the record above, we have multiplied the per unit of the first review, we have revised the B.C. logging profit figure from Industry Non–Stumpage Programs Determined manner in which we calculated the Canada by 25 percent and subtracted the To Confer Subsidies profit amount. resulting product from the per unit Programs Administered by the In our initial questionnaire, we asked ‘‘derived market stumpage price’’ for the Government of Canada B.C. Coast. the GOBC to provide the allowance for 1. Western Economic Diversification profit and risk for each tenure c. Calculation of the Benefit Program: Grants and Conditionally arrangement in effect which utilizes an Repayable Contributions appraisal system. See pages IV–12 and To calculate the unit benefit per IV–13 of our September 8, 2004 initial species conferred under the GOBC’s Introduced in 1987, the Western questionnaire. In response, the GOBC administered stumpage program, we Economic Diversification program stated: subtracted from the cost–adjusted, (WDP) is administered by the GOC’s There is no allowance for profit and ‘‘derived market stumpage prices’’ the Department of Western Economic risk in the CVP system. All tables corresponding average administered Diversification headquartered in and formulas used for estimating stumpage prices. Consistent with our Edmonton, Alberta, whose jurisdiction costs are based upon average approach in the final results of the first encompasses the four western provinces experienced licensee costs, without review, we reduced the total Crown of B.C., Alberta, Saskatchewan and any additions for profit or risk. harvest to capture that volume of logs Manitoba. The program supports There is no allowance for profit and destined to sawmills. Specifically, we commercial and non–commercial risk in the MPS. The system is multiplied the Coast and Interior Crown projects that promote economic based on bids from auction sales. volumes by their respective percentage development and diversification in the See page BC–IV–26 of the GOBC’s of logs entering sawmills for the region. November 22, 2004 questionnaire calendar year 2003, i.e., 58.1 percent In the first administrative review, we response. Further in the Log Export and 85.2 percent, respectively. See found that the provision of grants under Restraint section of our initial GOBC’s November 22, 2004 the WDP constitutes a government questionnaire, for both domestic and questionnaire response at BC–I–5. Next, financial contribution and confers a export sales of softwood logs, we asked we multiplied the species–specific unit benefit within the meaning of sections the GOBC to provide: benefit by the Crown volume destined 771(5)(D)(i) and 771(5)(E) of the Act, . . . a weighted average value for each to sawmills. We then summed the respectively. See Preliminary Results of of the costs associated with species–specific benefits for the Coast 1st Review, 69 FR at 33228 and harvesting and selling the logs and the Interior to calculate the ‘‘Western Economic Diversification during the POR (i.e., logging costs, provincial benefit. Program Grants and Conditionally inventory, selling expenses, d. Calculation of Provincial and Repayable Contributions’’ section of the administrative and general Country–Wide Rate Final Results of 1st Review Decision expenses, transportation, marketing, To calculate the province–specific Memorandum. Further, we determined etc.). In addition, what is the subsidy rate, we divided the total that the WDP is specific under section weighted average profit on the sale stumpage benefit for British Columbia 771(5A)(D)(iv) of the Act, because of softwood logs? by the POR stumpage program assistance under the program is limited See pages 3—4 of the Log Export Ban denominator. For a discussion of the to designated regions in Canada. On this Appendix of our September 8, 2004 denominator used to derive the basis, we found recurring and non– initial questionnaire. In response, the provincial rate for stumpage programs, recurring grants provided to softwood GOBC stated that, ‘‘the ministry does see ‘‘Numerator and Denominator Used lumber producers under the WDP to be not have information on the average for Calculating the Stumpage Programs’ countervailable subsidies. No new profit on the sale of softwood sawlogs.’’ Net Subsidy Rates.’’ As explained in information has been placed on the However, in spite of the GOBC’s ‘‘Aggregate Subsidy Rate Calculation,’’ record of this review to warrant a apparent inability to obtain any change in our finding that the WDP is information on logging profit, we have 26 Strategis (www.strategis.gc.ca) offers countervailable. managed to obtain publicly available interactive financial applications, e.g., building During the current POR, the WDP profit data for the B.C. logging industry industry profiles for specific provinces via provided grants to softwood lumber from ‘‘Industry Canada,’’ a department Performance Plus, a software tool. producers or associations under two 27 Logging: industry classification # 1133 under of the Canadian federal government, the North American Industry Classification System ‘‘sub–programs,’’ the International through its business and consumer site (NAICS). Trade Personnel Program (ITPP) and
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‘‘Other WDP Projects.’’28 Under the the administration of NRCAN, a part of contribution and confer a benefit, inter ITPP and ‘‘Other WDP Projects,’’ the Canadian Forest Service.30 alia, upon the softwood lumber industry companies were reimbursed for certain The VWP is a five-year research and within the meaning of sections salary expenses in Alberta, British technology transfer initiative supporting 771(5)(D)(i) and 771(5)(E) of the Act. Id. Columbia, Manitoba, Saskatchewan. the value–added wood sector, In the first administrative review, we Consistent with our approach in the specifically through partnerships with determined that because grants offered first administrative review, where the academic and private non–profit under the NRII are limited to Forintek employee’s activities were directed entities. In particular, during the POR, and FERIC, institutions that conducted towards exports of softwood lumber to NRCAN entered into research research related to the forestry and all markets, we attributed the subsidy to contribution agreements with Forintek logging industry, the wood products total softwood lumber exports. See Final Canada Corp. (Forintek) to do research manufacturing industry, and the paper Results of 1st Review Decision on efficient resource use, manufacturing manufacturing industry, the program is Memorandum at Comment 46 and process improvements, product specific within the meaning of ‘‘Western Economic Diversification development, and product access 771(5A)(D)(i) of the Act. Id. On this Program Grants and Conditionally improvement. basis, we found the Forintek and FERIC Repayable Contributions.’’ Where the In the first administrative review, we grants offered under the NRII are 31 employee’s activities were directed found that grants provided to Forintek countervailable. No new information towards exports of softwood lumber to under the VWP constitute a government has been placed on the record of this the United States, we attributed the financial contribution and confer a review to warrant a change in our subsidy to U.S. exports. Id. Where the benefit to softwood lumber producers finding that grants under the VWP and personnel promoted exports to non–U.S. within the meaning of sections NRII programs are countervailable. markets, we did not attribute any of the 771(5)(D)(i) and 771(5)(E) of the Act, Consistent with our approach in the benefit to U.S. sales. Id. In accordance respectively. See Preliminary Results of first administrative review and in with 19 CFR 351.524(b)(2), we 1st Review, 69 FR at 33229 and ‘‘Natural accordance with section 19 CFR determine that all ITPP and ‘‘Other Resources Canada (NRCAN) Softwood 351.524(b)(2), we first examined WDP Project’’ grants were less than 0.5 Marketing Subsidies’’ in the Final whether the non–recurring grants under percent of their corresponding Results of 1st Review Decision the VWP and NRII programs should be denominator in the year of receipt.29 Memorandum. We also determined that, expensed to the year of receipt. Id., 69 Therefore, we are expensing all grants because VWP grants are limited to FR 33229. We summed the funding received during the POR under this Forintek, which conducted research approved for Forintek during the POR program to the year of receipt. related to softwood lumber and under the VWP and NRII programs, and manufactured wood products, the divided this sum by the total sales of the To calculate the countervailable program is specific within the meaning wood products manufacturing industry subsidy rate for this program, we of section 771(5A)(D)(i) of the Act. Id. during the POR. We also divided the summed the rates for the ITPP and Consequently, we found the grants funding approved for FERIC under the ‘‘Other WDP’’ sub–projects. Next, as under the NRCAN program to be NRII program during the POR by the explained in ‘‘Aggregate Subsidy Rate countervailable. total sales of the wood products Calculation,’’ we multiplied this amount The NRII is a two-year program that manufacturing and paper industries by the four provinces’ relative share of provides salary support to three national during the POR. In both cases, we total exports of softwood lumber to the research institutes: the Forest adjusted the denominators to account United States. We adjusted the Engineering Research Institute of for sales of excluded companies. provinces’ total exports of softwood Canada (FERIC), Forintek, and the Pulp Combining these two amounts, we lumber to the United States to account & Paper Research Institute of Canada preliminarily determine that the benefit for any excluded company sales. Using (PAPRICAN). In the first administrative under the NRCAN softwood marketing this methodology, we determine the review, we found that research subsidies program should be expensed countervailable subsidy from this undertaken by FERIC constitutes a in the year of receipt. program to be less than 0.005 percent ad government financial contribution to Consistent with our approach in the valorem. commercial users of Canada’s forests first administrative review, we then 2. Natural Resources Canada (NRCAN) within the meaning of section calculated the countervailable subsidy Softwood Marketing Subsidies 771(5)(D)(i) of the Act. Id. Further, we rate during the POR by dividing the found that FERIC’s research covers amounts received by Forintek during In 2002, the GOC approved a total of harvesting, processing, and the POR under the VWP and NRII C$75 million in grants to target new and transportation of forest products, programs by Canada’s total sales of the existing export markets for wood silviculture operations, and small–scale wood products manufacturing industry products and to provide increased operations and, thus, we determined during the POR. We also divided the research and development to that government–funded R&D by FERIC funding received by FERIC under the supplement innovation in the forest benefits, inter alia, producers of NRII during the POR by Canada’s total products sector. This total was allocated softwood lumber within the meaning of sales of the wood products to three sub–programs: Canada Wood section 771(5)(E) of the Act. manufacturing and paper industries Export Program (Canada Wood), Value Similarly, we found that Forintek’s during the POR. We adjusted these sales to Wood Program (VWP), and the NRII operations, which pertain to amounts to account for any excluded National Research Institutes Initiative resource utilization, tree and wood company sales. See Preliminary Results (NRII). The programs were placed under quality, and wood physics, also of 1st Review, 69 FR at 33229. constitute a government financial Combining these two amounts, we 28 These are the same two sub-programs analyzed in the first administrative review. 30 We found the Canada Wood program to be not 31 We found NRII’s support of PAPRICAN to be 29 We reduced these denominators, where countervailable in the first administrative review. not countervailable in the first administrative appropriate, to account for any excluded company See Preliminary Results of 1st Review, 69 FR at review. See Preliminary Results of 1st Review, 69 sales. 33229. FR at 33229.
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preliminarily determine the net subsidy preliminarily determined that the FII 2003, retained the same language stating rate from the NRCAN softwood benefit should be expensed in the POR. these two conditions. Thus, the law as marketing subsidies program to be 0.02 Consistent with our approach in the published during the POR required that, percent ad valorem. first administrative review, we then for private forest land to be classified calculated the countervailable subsidy and remain classified as managed forest Programs Administered by the rate during the POR by dividing the land, it had to be ‘‘used for the Government of British Columbia amounts disbursed during the POR by production and harvesting of timber.’’ 1. Forestry Innovation Investment their corresponding sales denominator. In the first review, we found that Program (FIIP) For grants given to support product because the tax authorities impose two development for softwood lumber, we The Forestry Innovation Investment different tax rates on private forest land, divided the amounts disbursed by total Program came into effect on April 1, the governments are foregoing revenue sales of softwood lumber for B.C. during 2002. On March 31, 2003, FIIP was when they collect taxes at the lower the POR. For grants to support incorporated as Forestry Innovation rate, and we therefore determined that international marketing, we divided the Investment Ltd. (FII). FII funds are used the program constitutes a government amounts disbursed by exports of to support the activities of universities, financial contribution as defined in softwood lumber from B.C. to the section 771(5)(D)(ii) of the Act. Id. We research and educational organizations, United States during the POR. For and industry associations producing a also determined that the program research grants, we divided the amounts confers a benefit in the form of tax wide range of wood products. FII’s disbursed by total sales of the wood strategic objectives are implemented savings within the meaning of section products manufacturing and paper 771(5)(E) of the Act. Id. Further, we through three sub–programs addressing: industries for B.C. during the POR. See research, product development and determined that because the Assessment Preliminary Results of 1st Review, 69 FR Act expressly requires that Class 7 land international marketing. at 33230–33231. We combined these In the first administrative review, we be ‘‘used for the production and three amounts and, as explained in harvesting of timber,’’ and additionally determined that the FII grants provided ‘‘Aggregate Subsidy Rate Calculation,’’ to support product development and requires the assessor to declassify any we multiplied this total by B.C.’s Class 7 land not meeting all the Class 7 international marketing and, thus, relative share of total exports to the constitute a government financial conditions (of which timber use was United States. On this basis, we have one), the B.C. private forest land tax contribution and confer a benefit within preliminarily determined the the meaning of sections 771(5)(D)(i) and program is specific as a matter of law countervailable subsidy from the FIIP to (i.e., de jure specific) within the 771(5)(E) of the Act, respectively. See be 0.08 percent ad valorem. Preliminary Results of 1st Review, 69 FR meaning of section 771(5A)(D)(i) of the at 33230. Further, we found that the 2. British Columbia Private Forest Act. Id. No new information has been grants are specific within the meaning Property Tax Program placed on the record of this review to of section 771(5A)(D)(i) of the Act B.C.’s property tax system has two warrant a change in our finding that the because they are limited to institutions classes of private forest land—class 3, B.C. private forest land tax program is and associations conducting projects ‘‘unmanaged forest land,’’ and Class 7, countervailable. related to wood products generally and ‘‘managed forest land’’ that incurred Consistent with our approach in the softwood lumber, in particular. Id. No different tax rates in the 1990s through first review, and in accordance with 19 new information has been placed on the the POR. In the first review, we found CFR 351.509(a), we find that the benefit record of this review to warrant a that property tax rates for Class 7 were received under this program is the sum change in our finding that grants FIIP generally lower than for Class 3 land at of the tax savings enjoyed by Class 7 are countervailable. all levels of tax authority for most, sawmill landowners at the provincial, To calculate the benefit from this though not all, taxes. See ‘‘British regional, and sub–provincial (or. local) program, we first determined whether Columbia Private Forest Property Tax levels of tax authority in B.C. Id. With these non–recurring subsidies should be Program’’ section of Final Results of 1st regard to the provincial tax, the assessed expensed in the year of receipt. See 19 Review Decision Memorandum. We value is calculated as the sum of the CFR 351.524(b)(2). For grants given to further found that the various municipal land value and a formulaic valuation of support product development for and district (a.k.a. regional) level the timber harvested from the land in softwood lumber, we divided the authorities imposed generally lower the prior year. The tax is levied by amounts approved by total sales of rates for Class 7 than for Class 3 land. applying the tax rate to this assessed softwood lumber (i.e., lumber from Id. value. The GOBC did not submit data on primary and secondary mills as well as The tax program is codified in several the timber value. Accordingly, the ‘‘residual’’ products from primary mills) laws, of which the most salient is the Department calculated the tax benefit at for B.C. during the POR. For grants to 1996 Assessment Act (and subsequent the provincial level based solely on the support international marketing, we amendments). Section 24(1) of the tax savings conferred upon Class 7 land divided the grants approved by exports Assessment Act contains forest land with sawmills. of softwood lumber from B.C. to the classification language expressly We determined the tax benefit at the United States during the POR. See 19 requiring that, inter alia, Class 7 land be local level using the data submitted by CFR 351.525(b)(4). As explained in the ‘‘used for the production and harvesting the GOBC on local tax rates, and on the first review, the GOBC did not report of timber.’’ Additionally, Section 24(3) value and acreage of Class 3 and Class grants tied to other export markets. See or 24(4) of the Assessment Act, 7 land held by sawmill landowners in Preliminary Results of 1st Review, 69 FR depending on the edition of the statute, the various jurisdictions. Only those at 33230. For research grants, we requires the assessor to declassify all or jurisdictions with both Class 3 and Class divided the grants approved by total part of Class 7 land if ‘‘the assessor is 7 land in the assessment rolls for 2003 sales of the wood products not satisfied. . .that the land meets all and 2004, and whose tax differential manufacturing and paper industries requirements’’ for managed forest land resulted in a tax savings for Class 7 from B.C. during the POR. Combining classification. Amendments to the sawmill landowners, were included in these three amounts, we have provision, enacted from 1996 through the benefit calculation.
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With regard to a number of regional section 771(5A)(D)(i) of the Act because innovation, and trade in Northern and hospital district jurisdictions that assistance is limited to private woodlot Ontario. A considerable portion of the are between the provincial and local owners. Id. GOC assistance under FEDNOR is levels, in the first review we explained Every holder of a wood processing provided to Community Futures that the GOBC submitted data on their plant operating permit must pay the fee Development Corporations (CFDCs), Class 3 and Class 7 tax rates, but did not of C$1.20 for every cubic meter of non–profit community organizations provide assessment data on land value timber acquired from a private forest. providing small business advisory and acreage. Id. Consequently, in the These fees fund, in part, the PFDP. The services and offering commercial loans first review, to the extent that any recipients of payments under the PFDP to small and medium enterprises benefit may have accrued at that level, are owners of private forest land. Thus, (SMEs). Assistance in the form of grants we did not include it in our calculation. the sawmill operators that received is also provided under the FEDNOR Id. We went on to state that we would assistance under the PFDP received program. re–examine this aspect of the program assistance because they owned private In the underlying investigation and in any subsequent review. In this forest land. Therefore, in the first first administrative review, we review, we have sought and obtained administrative review, we determined determined that grants and loans under assessment data on land value and that the fees paid to harvest timber from the FEDNOR program constitute acreage for the relevant regions that are private land do not qualify as an offset government financial contributions to between the provincial and local levels. to the grants received under the PFDP softwood lumber producers within the Using this data, we have determined the pursuant to section 771(6) of the Act. Id. meaning of section 771(5)(D)(i) of the benefit at the regional and hospital Section 771(6) of the Act specifically Act. See Preliminary Results of 1st districts. However, while the GOBC was enumerates the only adjustments that Review, 69 FR at 33228. In addition, we able to provide Class 3 and Class 7 tax can be made to the benefit conferred by found that grants under the program rates and the value for Class 7 land a countervailable subsidy and fees paid confer a benefit to softwood lumber value for the relevant regional and by processing facilities do not qualify as producers under section 771(5)(E) of the hospital districts, it was unable to an offset against benefits received by Act and that CFDC loans confer a provide the land values for Class land private woodlot owners. Id. Consistent benefit to softwood lumber producers 7 with sawmills within those areas. with our treatment of the PFDP in the under section 771(5)(E)(ii) of the Act to Therefore, we derived the share of value first administrative review, we treated the extent that the amount they pay on of Class 7 land with sawmills at the these payments as recurring in CFDC loans are less than the amount provincial level for 2003 and 2004 and accordance with 19 CFR 351.524(c). Id. they would pay on a comparable Consistent with our approach in the applied the ratios to the corresponding commercial loan that they could first administrative review, to calculate Class 7 land values of the regional and actually obtain on the market. Id. the countervailable subsidy under the hospital districts. In this manner, we Furthermore, we found that the grants PFDP, we first summed the reported derived the portion of benefit and loans provided under the FEDNOR amount of grants provided to sawmills attributable to Class 7 land with program are specific within the meaning that produce softwood lumber (and sawmills in the regional and hospital of section 771(5A)(D)(iv) of the Act, other products) during the POR. Next, districts during the POR. because assistance under the program is we reduced the total benefit amount to The provincial, regional, and local limited to certain regions in Ontario. Id. account for any PFDP benefits received level benefit amounts were summed to On this basis, we found the program to by companies in Quebec that have been produce an overall POR benefit amount. be countervailable. No new information excluded from the countervailing duty Consistent with our approach in the first has been placed on the record of this order. We then divided the net benefit review, we used the POR total value of review to warrant a change in our amount by total sales of softwood B.C. sawmill softwood product findings. lumber (i.e., lumber from primary mills shipments (i.e., lumber, co–products, In this administrative review, the and ‘‘residual’’ products from primary and in–scope lumber from remanufacturers), hardwood lumber, GOC claims that no grants were sawmills) as the denominator, and, disbursed during the POR. However, it adjusting for B.C.’s share of the total and softwood co–products. Id. We adjusted the sales denominator to reported several long and short–term exports to the United States, we CFDC loans that were outstanding determined the countervailable subsidy account for sales of excluded companies from Quebec. Next, as explained in during the POR. under this program to be 0.11 percent ad Consistent with our approach in the valorem during the POR. ‘‘Aggregate Subsidy Rate Calculation,’’ we multiplied this amount by Quebec’s first administrative review, to determine Programs Administered by the relative share of exports to the United the benefit attributable to loans offered Government of Quebec States, adjusted for sales of excluded under the FEDNOR program, we compared the long–term and short–term Private Forest Development Program companies. On this basis, we preliminary determine the interest rates charged on these loans In the first administrative review, we countervailable subsidy from this during the POR to the long–term and determined that the provision of grants program to be less than 0.005 percent ad short–term benchmark interest rates. Id. to producers of softwood lumber under valorem. Our benchmark interest rates are the Private Forest Development Program described in ‘‘Benchmarks for Loans & (PFDP) constitutes a government Programs Determined Not to Confer a Discount Rates.’’ As the interest financial contribution and confers a Benefit amounts paid on the loans under the benefit under sections 771(5)(D)(i) and Government of Canada FEDNOR program were greater than 771(5)(E) of the Act, respectively. See what would have been paid on a ‘‘Private Forest Development Program’’ 1. Federal Economic Development comparable commercial loan, as in Final Results of 1st Review Decision Initiative in Northern Ontario (FEDNOR) indicated by our benchmark interest Memorandum. In addition, we FEDNOR is an agency of Industry rate, we preliminarily determine that determined that assistance provided Canada, a department of the GOC, this program did not confer a benefit under this program is specific under which encourages investment, upon softwood lumber producers in
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accordance with section 771(5)(E)(ii) of to account for any exports of softwood placed on the record of this review to the Act during the POR. lumber to the United States during the warrant a change in our findings. POR by excluded companies. See 19 To determine whether the active 2. Payments to the Canadian Lumber CFR 351.525(b)(4). Because the resulting Forest Renewal loans provided benefits Trade Alliance (CLTA) & Independent amount was less than 0.5 percent, we to the softwood lumber industry, in Lumber Remanufacturing Association accordance with section 771(5)(E)(ii) of (ILRA) have expensed the benefit in the year of receipt, which prior to the POR. On this the Act, we compared the interest rates In March 2003, the GOC’s Department basis, we preliminary determine that the charged on the Forest Renewal loans to of Foreign Affairs and International CLTA and ILRA programs did not the benchmark interest rates described Trade (DFAIT) approved a total of C$15 confer provide countervailable benefits in ‘‘Benchmarks for Loans and Discount million in grants under separate during the POR of the instant review. Rates.’’ Using this methodology, we agreements with the CLTA and ILRA to have preliminarily determined that no Government of British Columbia underwrite the administrative and benefit was provided by the Forest communications costs incurred by these Forest Renewal B.C. Program Renewal loans because the interest rates forest products industry associations as charged under this program were equal a result of the Canada–U.S. softwood The Forest Renewal program was to or higher than the interest rates lumber dispute. The GOC reports that enacted by the GOBC in the Forest charged on comparable commercial the CLTA is composed of companies Renewal Act in June 1994 to renew the loans. located in Alberta, B.C., Ontario and forest economy of British Columbia by, Quebec, which produce not only lumber among other things, improving forest Government of Quebec management of Crown lands, supporting but all types of forest products, while 1. Assistance Under Article 28 of training for displaced forestry workers, the membership of the ILRA is made up Investment Quebec entirely of value–added wood product and promoting enhanced community manufacturers in B.C. Of the approved and First Nations involvement in the Assistance under Article 28 is sums, the DFAIT disbursed C$14.85 forestry sector. To achieve these goals, administered by Investissement Quebec, million to the CLTA and C$75,000 to the Forest Renewal Act created Forest a government corporation. In the the ILRA during the POR. Renewal B.C., a Crown corporation. The underlying investigation, the In the first administrative review, we corporation’s strategic objectives were Department investigated assistance from determined that grants under this implemented through three business the GOQ under Article 7, which was program constitute a government units: the Forests and Environment administered by the Societe de financial contribution and confer a Business Unit, the Value–Added Developpement Industriel du Quebec benefit within the meaning of sections Business Unit, and the Communities (SDI). Article 28 supplanted Article 7 in 771(5)(D)(i) and 771(5)(E) of the Act, and Workforce Business Unit. 1998. Under Article 7, SDI provided respectively. Further, because the The Forest Renewal B.C. program financial assistance in the form of loans, program provided grants to two provides funds to community groups loan guarantees, grants, assumption of associations, CLTA and ILRA, we and independent financial institutions, interest expenses, and equity determined that it was specific within which may in turn provide loans and investments to projects that would the meaning of section 771(5A)(D)(i) of loan guarantees to companies involved significantly promote the development the Act. See Preliminary Results of 1st in softwood lumber production.32 of Quebec’s economy. According to the Review, 69 FR at 33229. Accordingly, Effective March 31, 2002, the B.C. GOQ’s response, prior to authorizing we determined that the GOC grants to legislature terminated the Forest assistance, SDI would review a project CLTA and ILRA provided a Renewal B.C. program. However, during to ensure that it had strong profit countervailable subsidy to the softwood the POR, there remained active Forest potential and that the recipient business lumber industry. Id. No new Renewal B.C. loans, with interest possessed the necessary financial information has been placed on the payments outstanding during the POR. structure, adequate technical and record of this review to warrant a According to the GOBC, Forest management personnel, and the means change in our finding that grants under Renewal B.C. provided blanket of production and marketing required to the CLTA and ILRA programs are guarantees with respect to all loans complete the proposed project. The countervailable. outstanding under the program during Article 28 program operates According to the GOC, all grants the POR. See page BC–FRBC–19, fundamentally in the same manner as bestowed under the CLTA and ILRA Volume 33 of the GOBC’s November 22, Article 7. were received prior to the POR of the During the POR, there was one 2004 questionnaire response. current review. Therefore, we first outstanding loan under Article 28. Accordingly, we find that the loan examined whether the non–recurring There were no outstanding loans under guarantees provided under the program grants should be expensed to the year of Article 7. No other assistance was constitutes a government financial receipt. See 19 CFR 351.524(b)(2). provided to softwood lumber companies contribution within the meaning of Consistent with the first administrative under Article 7 or Article 28. section 771(5)(D)(i) of the Act. Further, review, because the grants underwrote To determine whether this loan in the first administrative review we the associations’ costs related to the provided a benefit to the softwood found that because assistance under the softwood lumber dispute, we lumber industry, in accordance with Forest Renewal B.C. program was preliminarily determine that the benefit section 771(5)(E)(ii) of the Act, we limited to the forest products industry, is tied to anticipated exports to the compared the interest rates charged on the program was specific within the United States. See 19 CFR 351.514(a); the Article 28 loan to the benchmark meaning of section 771(5A)(D) of the see also Preliminary Results of 1st interest rates described in ‘‘Benchmarks Act. No new information has been Review, 69 FR at 33229. Therefore, we for Loans and Discount Rates.’’ Using divided the amount approved by total this methodology, we have 32 Grants have also been provided directly to exports of softwood lumber to the softwood lumber producers. However, the GOBC preliminarily determined that no benefit United States during the year of has reported that no such grants were provided was provided by this loan because the approval. We adjusted this sales amount during the POR. interest rates and fees charged under
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this program were equal to or higher POR and, thus, provides no hearing will be held at the U.S. than the interest rates charged on countervailable subsidy. Department of Commerce, 14th Street comparable commercial loans. and Constitution Avenue, NW, Preliminary Results of Review Washington, DC 20230. Individuals who 2. Assistance from the Societe de In accordance with 777A(e)(2)(B) of wish to request a hearing must submit Recuperation d’Exploitation et de the Act, we have calculated a single a written request within 30 days of the Developpement Forestiers du Quebec country–wide subsidy rate to be applied publication of this notice in the Federal (Rexfor) to all producers and exporters of the Register to the Assistant Secretary for SGF Rexfor, Inc. (Rexfor) is a subject merchandise from Canada, other Import Administration, U.S. Department corporation all of whose shares are than those producers that have been of Commerce, Room 1870, 14th Street owned by the Societe Generale de excluded from this order. This rate is and Constitution Avenue, NW, Financement du Quebec (SGF). SGF is summarized in the table below: Washington, DC 20230. an industrial and financial holding Requests for a public hearing should company that finances economic contain: (1) The party’s name, address, development projects in cooperation and telephone number; (2) the number with industrial partners. Rexfor is SGF’s Producer/Exporter Net Subsidy Rate of participants; and, (3) to the extent vehicle for investment in the forest practicable, an identification of the All Producers/Exporters 8.18 percent ad arguments to be raised at the hearing. products industry. valorem Rexfor receives and analyzes An interested party may make an affirmative presentation only on investment opportunities and If the final results of this review arguments included in that party’s case determines whether to become an remain the same as these preliminary or rebuttal briefs. investor either through equity or results, the Department intends to participative subordinated debentures. This administrative review is issued instruct CBP to assess countervailing and published in accordance with Debentures are used as an investment duties as indicated above. The vehicle when Rexfor determines that a section 751(a)(1) and 777(i)(1) of the Department also intends to instruct CBP Act. project is worthwhile, but is not large to collect cash deposits of estimated enough to necessitate more complex countervailing duties of 8.18 percent of Dated: May 31, 2005. equity arrangements. Consistent with the f.o.b. invoice price on all shipments Susan Kuhbach, our approach in the underlying of the subject merchandise from Acting Assistant Secretary for Import investigation, we have not analyzed reviewed companies, entered, or Administration. equity investments by Rexfor because withdrawn from warehouse, for [FR Doc. E5–2884 Filed 6–6–05; 8:45 am] (1) there was no allegation that Rexfor’s consumption on or after the date of BILLING CODE 3510–DS–S equity investments were inconsistent publication of the final results of this with the usual investment practice of review. private investors, and (2) there is no DEPARTMENT OF COMMERCE evidence on the record indicating that Public Comment Rexfor’s equity investments conferred a Pursuant to 19 CFR 351.224(b), the National Oceanic and Atmospheric benefit. Department will disclose to parties to Administration Also, consistent with our approach in the proceeding any calculations [Docket No. 040511147–5142–02; I.D. the underlying investigation, we performed in connection with these 042804B] examined whether Rexfor’s participative preliminary results within five days subordinated debentures, i.e., loans, after the date of publication of this Listing Endangered and Threatened conferred a subsidy. Because assistance notice. Pursuant to 19 CFR 351.309, Species and Designating Critical from Rexfor is limited to companies in interested parties may submit written Habitat: 12–Month Finding on Petition the forest products industry, we have comments in response to these to List the Cherry Point Stock of preliminarily determined that this preliminary results. Case briefs must be Pacific Herring as an Endangered or program is specific under section submitted within 30 days after the date Threatened Species 771(5A)(D)(i) of the Act. The long–term of publication of this notice, and AGENCY: National Marine Fisheries loans provided by Rexfor qualify as a rebuttal briefs, limited to arguments Service (NMFS), National Oceanic and financial contribution under section raised in case briefs, must be submitted Atmospheric Administration (NOAA), 771(5)(D)(i) of the Act. To determine no later than seven days after the time Commerce. whether the single loan outstanding to limit for filing case briefs. Parties who ACTION: Notice of 12–month petition a softwood lumber producer during the submit argument in this proceeding are finding. POR provided a benefit, we compared requested to submit with the argument: the interest rates on the loan from (1) a statement of the issues, and (2) a SUMMARY: We (NMFS) have completed Rexfor to the benchmark interest rates as brief summary of the argument. Case an updated Endangered Species Act described in ‘‘Benchmarks for Loans and rebuttal briefs must be served on (ESA) status review of Pacific herring and Discount Rates.’’ See 771(5)(E)(ii) of interested parties in accordance with 19 (Clupea pallasi), inclusive of the Cherry the Act. Using this methodology, we CFR 351.303(f). Please note that an Point herring stock (Strait of Georgia, have preliminarily determined that no interested party may still submit case Washington). We initiated this status benefit was provided by this loan and/or rebuttal briefs even though the review update in response to a petition because the interest rates charged under party is not going to participate in the received on May 14, 2004, to list the this program were higher than the hearing. Cherry Point stock of Pacific herring as interest rates charged on comparable In accordance with 19 CFR 351.310, a threatened or endangered species. We commercial loans. we will hold a public hearing, if have determined that the Cherry Point On this basis, we have preliminarily requested, to afford interested parties an herring stock does not qualify as a found that the debt forgiveness by opportunity to comment on these ‘‘species’’ for consideration under the Rexfor did not confer a benefit in the preliminary results. Any requested ESA. Based upon the best available
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scientific and commercial information, its range,’’ and a threatened species as grounds (Hay, 1985). Spawning grounds we conclude that the petitioned action one ‘‘which is likely to become an are typically in sheltered inlets, sounds, to list the Cherry Point Pacific herring endangered species within the bays, and estuaries (Haegele and stock as a threatened or endangered foreseeable future throughout all or a Schweigert, 1985). Pacific herring species is not warranted. We find that significant portion of its range.’’ The usually spawn intertidally or in shallow the Cherry Point stock is part of the statute lists factors that may cause a subtidal zones, depositing adhesive eggs previously defined Georgia Basin species to be threatened or endangered over algae, vegetation, or other distinct population segment (DPS) (ESA section 4(a)(1)): (a) the present or substrates (Hay, 1985). The location and composed of inshore Pacific herring threatened destruction, modification, or timing of spawning for individual stocks stocks from Puget Sound (Washington) curtailment of its habitat or range; (b) are generally consistent and predictable and the Strait of Georgia (Washington overutilization for commercial, from year to year (Hay et al., 1989; and British Columbia). We have recreational, scientific, or educational O’Toole et al., 2000). determined that the Georgia Basin DPS purposes; (c) disease or predation; (d) Pacific herring spawn timing varies of Pacific herring is not in danger of the inadequacy of existing regulatory with latitude, with earlier spawning extinction or likely to become mechanisms; or (e) other natural or (i.e., early-winter) occurring in the more endangered in the foreseeable future manmade factors affecting its continued southern latitudes of the species’ range, throughout all or a significant portion of existence. and later spawning (i.e., mid-summer) its range, and therefore does not warrant Section 4(b)(1)(A) of the ESA requires occurring toward the northern limit of ESA listing at this time. NMFS to make listing determinations the species’ range (Hay, 1985). In Puget DATES: The finding announced in this based solely on the best scientific and Sound, spawning generally occurs from notice was made on June 1, 2005. commercial data available after January to April, with peak spawning conducting a review of the status of the activity in February and March; ADDRESSES: The status review update species and after taking into account however, Pacific herring at Cherry Point for Pacific herring and the list of efforts being made to protect the spawn from late-March to mid-June references cited in this notice are species. In making listing (Bargmann, 1998). available upon request from Chief, determinations under the ESA we first Pacific herring larvae drift in ocean NMFS, Protected Resources Division, determine whether a population or currents after hatching and are abundant 1201 NE Lloyd Avenue, Suite 1100, group of populations constitutes a DPS in shallow nearshore waters (Lassuy, Portland, OR, 97232. These materials (i.e., whether the populations(s) should 1989; Hay and McCarter, 1997). After 2 are also available on the Internet at: be considered a ‘‘species’’ within the to 3 months, larvae metamorphose into http://www.nwr.noaa.gov. meaning of the ESA), and if so we assess juveniles that form large schools and FOR FURTHER INFORMATION CONTACT: For the level of extinction risk faced by the remain primarily in nearshore shallow- further information regarding this notice DPS and any factors that have led to its water areas during the first summer. contact Garth Griffin, NMFS, Northwest decline. If it is determined that the DPS’ After their first summer, juveniles may Region, (503) 231–2005, or Marta survival is at risk throughout all or a disperse to deeper offshore waters to Nammack, NMFS, Office of Protected significant portion of its range, we then mature or reside year-round in Resources, (301) 713–1401. assess efforts being made to protect the nearshore waters (Hay, 1985). For SUPPLEMENTARY INFORMATION: species, determining if these efforts are example, some herring are nonmigratory adequate to mitigate threats to the or resident and spend their entire life Background species. Based on the foregoing within Puget Sound and the Strait of ESA Statutory Provisions and Policy information and the factors identified in Georgia, while other more migratory Considerations ESA section 4(a)(1), we then make a herring spend their summers in the Under the ESA, a listing listing determination of whether the offshore waters of Washington and determination may address a species, species is threatened, the species is southern British Columbia (Hay et al., subspecies, or a DPS of any vertebrate endangered, or listing is not warranted. 2001a; Trumble, 1983). species which interbreeds when mature Pacific herring age at first maturity (16 U.S.C. 1532(15)). On February 7, Life History of Pacific Herring ranges from age–2 to age–5 (Hay, 1985). 1996, the U.S. Fish and Wildlife Service Pacific herring in the Eastern Pacific Along the west coast of North America, and NMFS adopted a policy to clarify Ocean range from northern Baja populations of Pacific herring exhibit a the agencies’ interpretation of the California north to at least the latitudinal cline in age at first maturity, phrase ‘‘distinct population segment of Mackenzie Delta in the Beaufort Sea. such that herring in southern locations any species of vertebrate fish or They are also found in the Russian (i.e., California) mature at an earlier age wildlife’’ (ESA section 3(15)) for the Arctic from the Chukchi Sea in the east and herring in the north (i.e., Bering purposes of listing, delisting, and to the White Sea in the west, although Sea) mature at later ages (Hay, 1985). In reclassifying a species under the ESA the boundary between Atlantic and Puget Sound, Pacific herring reach (51 FR 4722). The joint DPS policy Pacific herring is unclear in this region sexual maturity at age–2 to age–4 identified two elements that must be (Hay et al., 2001b). In the Northwestern (Bargmann, 1998). Pacific herring in the considered when making DPS Pacific they are found throughout the Strait of Georgia and other major determinations: (1) the discreteness of Western Bering Sea, the east coast of assessment areas in British Columbia the population segment in relation to Kamchatka, and the Sea of Okhotsk; on reach sexual maturity at age–3 (Hay and the remainder of the species (or the east and west coasts of Hokkaido, McCarter, 1999). In general, populations subspecies) to which it belongs; and (2) Japan; and south and west to the Yellow of Pacific herring also exhibit a the significance of the population Sea off the Korean Peninsula (Haegele latitudinal cline in mean size-at-age, segment to the remainder of the species and Schweigert, 1985; Hay et al., such that herring in southern locations (or subspecies) to which it belongs. 2001b). (i.e., California) exhibit small size and Section 3 of the ESA defines an Adult herring in the Eastern Pacific herring in the north (i.e., Bering Sea) endangered species as ‘‘any species move inshore during winter and early attain a far larger size at a similar age. which is in danger of extinction spring and reside in holding areas Herring may spawn annually for several throughout all or a significant portion of before moving to adjacent spawning years (Hay, 1985), with overall
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fecundity increasing as body size marine fishes in Puget Sound, including For a summary of the specific increases (Ware, 1985; Hay, 1985). Pacific herring. We concluded that the information presented in the two In the state of Washington there are 21 Pacific herring stocks in Puget Sound do petitions, the reader is referred to the documented spawning stocks: 19 stocks not constitute a DPS (and therefore do above mentioned Federal Register in Puget Sound (including the Cherry not qualify as a ‘‘species’’ under the notice describing the petition findings. Point stock and the recently re- ESA). We determined that these Puget Most significantly, the petition received discovered Wollochet Bay stock), and Sound herring stocks, including the on May 14, 2004, presented new genetic two on the Washington Coast Cherry Point stock, belonged to a larger information (Small et al., 2004) (Bargmann, 1998; Stout et al., 2001). Georgia Basin Pacific herring DPS indicating that the Cherry Point herring The Cherry Point Pacific herring stock consisting of over 40 inshore stocks stock may be ‘‘discrete’’ and historically spawned along the from Puget Sound and the Strait of ‘‘significant’’ with respect to the species, Washington coastline from Hale Passage Georgia in the United States and Canada and may thereby qualify as a DPS for (between the north end of Bellingham (64 FR 17659; April 3, 2001). We listing consideration under the ESA. Bay and the east coast of Lummi Island), concluded that the Georgia Basin DPS is The majority of the information north to Cherry Point, Birch Point, Point not threatened or endangered provided by the petitioners regarding Roberts, and the border with Canada throughout all or a significant portion of the viability of the Cherry Point herring (Lemberg et al., 1997). Since 1996, its range (64 FR 17659; April 3, 2001); stock was evaluated in our earlier 2001 spawning of the Cherry Point stock has however, we did note concern regarding status review. The Cherry Point herring only occurred in the vicinity of Birch two herring stocks within the Georgia stock has declined dramatically over the Point and along the Cherry Point Reach. Basin DPS (the Cherry Point and last three decades, with the spawning Spawning at Cherry Point can begin as Discovery Bay stocks) that have shown biomass in 2000 representing a 94 early as late-March and end as late as marked declines in range and percent decline from historical mid-June, although peak spawning abundance. Although we recognized observations. The 2001 status review activity occurs around May 10th that these two declining stocks may be noted that there was a 50 percent (O’Toole et al., 2000). Spawning at all vulnerable to extirpation, we concluded chance that the Cherry Point stock other Pacific herring locations in Puget that they represent a relatively small would decline to 1 ton or less in 100 Sound, Hood Canal, and the Strait of portion of the more than 40 stocks and years (Stout et al., 2001). The petitioners Juan de Fuca normally occurs from late- assessment areas composing the DPS also provided additional biomass January through late-April (Trumble, and do not confer significant risk to the information from 2001–2004 for the 1983; Lemberg et al., 1997; O’Toole et DPS throughout all or a significant period since the 2001 status review. al., 2000) with peak spawning starting portion of its range. the last week of February or the first Updated Status Review of Pacific week of March (O’Toole et al., 2000). Summary of Petitions Received Herring Since record keeping began in 1928, On January 22, 2004, NMFS received The ESA requires that, as a British Columbia Pacific herring have a petition from the Northwest consequence of accepting the above been observed to spawn at over 1,300 Ecosystem Alliance, the Center for petition, NMFS promptly commence a locations along the approximately 5,200 Biological Diversity, Ocean Advocates, km of coastline that is classified as People for Puget Sound, Public review of the species’ status and make herring spawning habitat (Hay and Employees for Environmental a finding within 12 months after McCarter, 2004). In any given year, Responsibility, Sam Wright, and the receiving the petition, whether the between 450 and 600 km of the British Friends of the San Juans to find that the petitioned action is warranted (ESA Columbia coast receives herring spawn. Cherry Point (Washington) stock of Section 4(b)(3)). To ensure that our The Canada Department of Fisheries Pacific herring qualifies as a DPS and review was based on the best available and Oceans has identified six stock warrants listing as a threatened or and most recent scientific information, assessment regions and 101 sub-areas or endangered species under the ESA. we solicited information during a 60– ‘‘Herring Sections’’ characterized by Subsequently, on May 14, 2004, the day public comment period regarding consistent Pacific herring spawning same petitioners submitted additional the DPS structure and extinction risk of, activity. In general, Pacific herring information including new genetic and efforts being made to protect, the spawn from January to May in southern information on the stock structure of species (69 FR 48455; August 10, 2004). British Columbia and from mid-January Pacific herring in Puget Sound and the We convened a Biological Review to June in northern British Columbia Strait of Georgia (Washington) that had Team (BRT) (an expert panel of (Taylor, 1964; Hourston, 1980). As at become available since the initial scientists from NMFS’ Northwest and Cherry Point, Pacific herring in several petition was received on January 22, Alaska Fisheries Science Centers, and Herring Sections in British Columbia 2004. We considered the petitioners’ NOAA’s National Ocean Service) to exhibit notably late spawn timing for supplemental submission (in review the available information and their local region (e.g., Skidegate Inlet conjunction with the January 22, 2004, determine: (1) the DPS structure of [Section 022] and Masset Inlet [Section submission) as a distinct petition Pacific herring, specifically whether the 011] in the Queen Charlotte Islands received by the agency on May 14, 2004. Cherry Point herring stock qualifies as a Region and Burke Channel [Section 084] On August 10, 2004, we issued our ‘‘species’’ for consideration under the in the Central Coast Region) (Hay et al., finding that the petition received on ESA; and (2) whether the identified 1989). January 22, 2004, fails to present DPS(s) are in danger of extinction or substantial scientific and commercial likely to become so in the foreseeable Previous Federal Actions Relating to information indicating that the future throughout all or a significant Pacific Herring petitioned action may be warranted, but portion of its range. The BRT’s findings We completed a status review of that the petition received on May 14, are presented in a January 24, 2005, Pacific Herring in 2001 (Stout et al., 2004, does present substantial scientific memorandum ‘‘Summary of Scientific 2001). This earlier review was initiated and commercial information indicating Conclusions of the Status of Cherry in response to a petition received in that the petitioned action may be Point Pacific Herring (Clupea pallasii) February 1999 to list 18 species of warranted (69 FR 48455). and Update of the Status of the Georgia
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Basin Pacific Herring DPS,’’ and are (2) a population sharing a common unusual location of its spawning habitat summarized briefly below. environment that is sufficiently discrete on an exposed section of coastline; (3) to warrant consideration as a self- its consistently large size-at-age and Determination of ‘‘Species’’ perpetuating system that can be continued growth after maturation Under the joint DPS policy (51 FR managed separately (Larkin, 1972); (3) a relative to other local herring stocks; 4722; February 7, 1996) a population species group or population of fish that and (4) its differential accumulation of segment may be considered discrete if it maintains and sustains itself over time toxic compounds relative to other local satisfies either one of the following in a definable area (Booke, 1981); and herring stocks, indicative of different conditions: (1) it is markedly separated (4) an intraspecific group of randomly rearing or migratory conditions for from other populations of the same mating individuals with temporal or Cherry Point herring. biological taxon as a consequence of spatial integrity (Ihssen et al., 1981). Although the BRT determined that the physical, physiological, ecological, or None of these definitions imply that a Cherry Point stock represents a discrete behavioral factors (quantitative fish stock is ecologically, biologically, or population, the BRT concluded that the measures of genetic or morphological physiologically significant in relation to stock is not ‘‘significant’’ to the taxon, discontinuity may provide evidence of the biological species as a whole. Hence, and hence does not constitute a DPS this separation); or (2) it is delimited by information establishing a group of fish (NMFS, 2005). The BRT noted that: (1) international governmental boundaries as a stock, such as the Cherry Point over the broad geographic range of across which there is a significant stock of Pacific herring, does not Pacific herring, the local distinctiveness difference in exploitation control, necessarily qualify it as a DPS. A DPS of the Cherry Point stock is not unusual; habitat management or conservation may be composed of a group of related (2) the late spawn timing of the Cherry status. Under the joint DPS policy, if a stocks, or in some cases (if the evidence Point stock is not exceptional for Pacific population is determined to be discrete, warrants) a single stock, that form(s) a herring, as there are other Pacific the agency must then consider whether discrete population and are (is) herring stocks with similarly it is significant to the taxon to which it significant to the biological species as a exceptionally late (as well as early) belongs. Considerations in evaluating whole. spawn timing for their local region; (3) the significance of a discrete population other Pacific herring stocks have include: (1) persistence of the discrete Pacific Herring as a Metapopulation spawning habitats located on exposed population in an unusual or unique A ‘‘metapopulation’’ is an aggregation coastlines subject to high-energy wave ecological setting for the taxon; (2) of subpopulations linked by migration, action; and (4), given the level of genetic evidence that the loss of the discrete and subject to periodic extinction and variability observed within and between population segment would cause a recolonization events (Levins, 1968, herring stocks, the level of genetic significant gap in the taxon’s range; (3) 1970). Observations of herring differentiation exhibited by the Cherry evidence that the discrete population population structure in the Atlantic and Point stock was unlikely to indicate a segment represents the only surviving Pacific are consistent with this marked or evolutionarily significant natural occurrence of a taxon that may metapopulation concept (McQuinn, level of differentiation. Based on this be more abundant elsewhere outside its 1997; Ware et al., 2000; Ware and information, the BRT concluded that the historical geographic range; or (4) Schweigert, 2001 ,2002; Ware and Cherry Point stock does not satisfy the evidence that the discrete population Tovey, 2004): (1) local herring stocks are applicable DPS criteria for significance: has marked genetic differences from distributed across spatially fragmented Cherry Point does not represent a other populations of the species. spawning habitat; (2) local stocks unique or unusual ecological setting for The BRT considered several types of exhibit partially independent Pacific herring; the loss of the Cherry information in evaluating the DPS demographics and dynamics; (3) there is Point herring stock would not result in structure of Pacific herring, including appreciable straying and gene flow a significant gap in the extensive range whether the Cherry Point herring stock among local populations; and (4) there of Pacific herring; and the Cherry Point qualifies for listing consideration as an is evidence of disappearance and stock does not exhibit marked genetic independent DPS. Information recolonization events. Consistent with differentiation relative to other Pacific considered in evaluating the the consideration of Pacific herring as a herring populations. discreteness of stocks include: (1) metapopulation, local spawning stocks Petition Finding geographic variability in life-history of herring may demonstrate distinctive characteristics and morphology; (2) demographic patterns and reproductive As summarized above, the May 14, tagging and recapture studies indicating isolation over relatively short temporal 2004, petition submitted by the the level of migration among stocks; and scales, yet over longer time periods Northwest Ecosystem Alliance and co- (3) genetic differentiation among stocks regularly exchange low levels of petitioners sought a finding that the reflective of marked reproductive individuals or experience periodic Cherry Point (Washington) stock of isolation. waves of dispersal during years of Pacific herring qualifies as a DPS and abundant recruitment. warrants listing as a threatened or Relationship of Stock and DPS Concepts endangered species under the ESA. In a Pacific herring in the vicinity of DPS Determination for the Cherry Point Federal Register notice published on Cherry Point (Washington) are Stock of Pacific Herring August 10, 2004 (69 FR 48455), we considered to be a stock for management The BRT concluded that the Cherry published the finding that the petition purposes in the state of Washington Point stock of Pacific herring was presented substantial scientific and (Bargmann, 1998). There is no definition ‘‘discrete’’ under the DPS policy (NMFS, commercial information indicating that of the term ‘‘stock’’ that is generally 2005). The BRT determined that the the petitioned action may be warranted. accepted by fisheries biologists (Stout et Cherry Point stock is markedly As described in the preceding section, al., 2001). The term stock has been used separated from other Pacific herring we have determined that the Cherry to refer to: (1) fish spawning in a populations as a consequence of Point stock of Pacific herring is particular place or time, separated to a physical, physiological, ecological, or ‘‘discrete,’’ but is not ‘‘significant’’ substantial degree from fish spawning in behavioral factors due to: (1) its locally under the joint NMFS/U.S. Fish and a different place or time (Ricker, 1972); unique late spawn timing; (2) the locally Wildlife Service DPS policy. Thus, the
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Cherry Point herring stock does not an endangered species within the over 100,000 metric tons) and numbers qualify as a DPS for listing foreseeable future throughout all or a of herring (estimated at more than half consideration under the ESA. significant portion of its range. Section a billion mature herring). However, the Accordingly, we find that the action 4(b)(1) of the ESA requires that the BRT was concerned about the observed sought by the May 14, 2004, Northwest listing determination be based solely on decline in the number of the Cherry Ecosystem Alliance et al. petition is not the best scientific and commercial data Point herring spawners from an warranted. available, after conducting a review of estimated 24 million fish in 2003 to 14 the status of the species and taking into million fish in 2004. DPS Determination for Pacific Herring account those efforts, if any, being made The majority opinion of the BRT was in the Georgia Basin to protect such species. that there is low risk to the productivity The BRT considered a number of The BRT considered the best available of the DPS, concluding that it is alternative DPS configurations for biological information to assess the level unlikely to contribute significantly to Pacific herring incorporating the Cherry of extinction risk for the Georgia Basin the risk of extinction for the DPS by Point herring stock, ranging from the DPS of Pacific herring. The BRT itself, but that there may be concern in previously identified Georgia Basin DPS evaluated the DPS’s extinction risk combination with other factors. The to a DPS encompassing Pacific herring based on risks to its abundance, BRT noted that the DPS as a whole is from San Diego (California) to Sitka productivity, spatial structure highly productive with the overall (Alaska). Evidence suggesting a DPS (including spatial distribution and population trend and growth rate being configuration larger than the Georgia connectivity), and diversity. These four highly positive. The BRT observed that Basin includes: (1) tagging studies ‘‘Viable Salmonid Population’’ (VSP; the overall DPS appeared to be in steep indicating that straying among herring McElhany et al., 2000) criteria were decline in the 1960s. However, some stocks occurs at spatial scales exceeding developed to provide a consistent and stocks have exhibited high levels of that of the Georgia Basin; (2) logical framework for assessing risks to productivity conferring resiliency to the information indicating relative genetic populations and DPSs of West Coast DPS and reflecting an apparent ability to homogeneity of Pacific herring stocks in salmon and steelhead. Although rebound from past declines. The recent the Pacific Northwest, Strait of Georgia, initially developed for application to short-term trend for the overall DPS is and British Columbia; and (3) evidence salmonid metapopulations, the VSP also very positive and recruitment levels supporting the concept that local criteria are well founded in the remain high, despite an apparent herring stocks are part of a larger Pacific conservation biology literature. Threats increase in adult mortality, possibly due herring metapopulation. to a species’ long-term persistence are to predation by seals, disease factors, Notwithstanding this information, the manifested demographically as risks to and other risk factors. majority of the BRT favored the its abundance, productivity, spatial The BRT’s appraisal of risk to the previous delineation of a Georgia Basin structure, and productivity. These spatial structure of the DPS ranged from DPS of Pacific herring, finding that the demographic risks thus provide the very low risk to increasing risk. The available information is insufficient to most direct and robust biological majority opinion of the BRT was that warrant modification of the previous indicators of extinction risk. The BRT’s the DPS faces low risk to its spatial DPS delineation (NMFS, 2005). A assessment of extinction risk did not structure, concluding that it is unlikely variety of evidence supports the finding include an evaluation of the likely or that spatial distribution and that Georgia Basin Pacific herring satisfy potential contribution of efforts being connectivity contribute significantly to the criteria for discreteness and made to protect the species, but was the risk of extinction by themselves, and significance under the joint DPS policy, based solely on the available biological that there is some concern that they may including: the similarity in age information assuming that present in combination with other factors. The composition of herring stocks in the conditions will continue, and BRT noted that the DPS remains well Strait of Georgia and Puget Sound recognizing that natural demographic distributed, with no gaps in the supporting the discreteness of Georgia and environmental variability is an geographic range of spawning within Basin Pacific herring, and the ecological inherent feature of present conditions. the DPS. All, or nearly all, of the uniqueness of the inshore waters of Below we summarize the BRT’s historically occupied areas continue to Puget Sound and the Strait of Georgia assessment of demographic risks to the support spawning, and moderate supporting the significance of the Georgia Basin DPS’s abundance, migration rates based on tagging Pacific herring in the Georgia Basin to productivity, spatial structure, and information indicate little loss of the taxon as-a-whole. (For a more diversity, as well as the BRT’s connectivity among stocks within the detailed discussion of the information extinction risk assessment for the DPS DPS. The BRT noted that increasing supporting the delineation of the based on these risks. trends in the DPS are not uniformly Georgia Basin DPS of Pacific herring, distributed among stocks or spawning Evaluation of Demographic Risks to the the reader is referred to the Stout et al., areas, with the Central and Northeastern DPS 2001, status review). The BRT portions of the DPS exhibiting declines. delineated the Georgia Basin DPS as The majority opinion of the BRT was The BRT was concerned that the bulk of encompassing spawning stocks of that there is very low risk to the the spawning distribution and Pacific herring in the marine waters of abundance of the Georgia Basin DPS, abundance and productivity in the DPS Puget Sound, the Strait of Georgia, and concluding that it is unlikely that the has become spatially compacted, eastern Strait of Juan de Fuca in the current trends and levels of abundance particularly in the northern half of the United States and Canada. contribute significantly to the risk of DPS. However, the BRT felt that extinction for the DPS, either by declining trends in some parts of the Review of the Species’ Status themselves or in combination with other DPS are not a major concern in the The ESA defines an endangered factors. The BRT noted that the overall context of a herring metapopulation, species as any species in danger of abundance of the DPS is at historically particularly in light of observations of extinction throughout all or a significant high levels since monitoring began in high connectivity among stocks, and portion of its range, and a threatened the 1930s, in terms of the estimated evidence of disappearance and species as any species likely to become biomass (the recent abundance is well subsequent recolonization events in the
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British Columbia portion of the DPS. Strait of Georgia) is not by itself cause (sections 3(6) and 3(20)). If it is The BRT also felt that the spatial for concern about the long-term viability determined that the defined species is compaction of the most abundant and of the DPS. Additionally, given the not in danger of extinction or likely to productive spawning stocks may be a metapopulation structure of the DPS, become so throughout all of its range, natural phenomenon. the BRT did not feel that the low but there are major geographic areas The majority opinion of the BRT was demographic risks (described in the where the species is no longer viable, that there is low risk to the diversity of previous section) collectively represent the statute directs that we must address the DPS, concluding that it is unlikely a risk to the long-term viability of the whether such areas represent a that diversity contributes significantly DPS. The few declining stocks represent significant portion of the species’ range. to the risk of extinction for the DPS, but a small proportion of the more than 40 As mentioned above, the BRT expressed that it may in combination with other stocks and assessment areas that concern regarding declines in the factors. The BRT noted that the DPS compose the Georgia Basin DPS. Cherry Point stock and the non- continues to exhibit diversity in spawn Evidence of significant migration among migratory inlet stocks in the eastern timing and migratory behavior both stocks, high levels of gene flow, and Strait of Georgia, but concluded that within and among spawning stocks. disappearance and subsequent these stocks do not represent a Although there is limited long-term data recolonization events for Georgia Basin significant portion of the Georgia Basin regarding the genetic diversity of the Pacific herring suggest that local DPS’s range. The BRT recognized that DPS, the BRT concluded that there has extirpations or stock declines confer the Cherry Point stock is characterized been no apparent genetic loss as little risk to the overall DPS. The by late spawn timing, but noted that this compared to other marine species. The specific stocks exhibiting decline, timing represents the tail of the BRT noted concern that the life-history however, appear to exhibit greater distribution of run timing for the DPS as diversity of the DPS has apparently demographic independence on a whole and overlaps with the range of declined with the compression of generational time scales relative to other spawn timing exhibited by other stocks population age structure (a much stocks within the DPS. It is possible, in the DPS. The BRT noted that the smaller proportion of older age classes), given their weaker connectivity with Cherry Point stock represents only one the decline of late-spawning herring other spawning stocks in the DPS, that of about 40 recognized herring stocks (principally the Cherry Point herring if these declining stocks were lost, and management areas within the DPS. stock), and an apparent decline in recolonization might take longer than it Although at peak abundance (in the nonmigratory inlet herring stocks on the might for a classical metapopulation in early 1970s) the Cherry Point stock eastern side of the Strait of Georgia. The which subpopulations are connected by possibly represented about 11 percent of BRT was uncertain whether the higher rates of exchange. Nonetheless, the DPS’s total biomass, other migratory/nonmigratory life-history the BRT did not feel that the current historically large stocks were severely types are specific to certain populations, risks to these declining stocks posed depressed at the time due to over- or are present to some degree in most or risks to the DPS as a whole, or to any harvesting and poor recruitment all spawning stocks in the Strait of significant portion of the DPS. conditions. Thus, it is speculative to Georgia and Puget Sound. The BRT considered whether recent conclude that the Cherry Point stock factors have disrupted the function of Assessment of the Risk of Extinction historically represented a substantial the metapopulation such that its long- portion of the ESU’s biomass. With Informed by its assessment of term viability is compromised. The BRT respect to the declining inlet stocks in demographic risks to the DPS, and a concluded that the patterns of the eastern Strait of Georgia, the BRT consideration of the interactions among abundance and distribution within the concluded that it is unclear whether demographic risks, the BRT concluded Georgia Basin DPS appear to be typical their nonmigratory life history that the Georgia Basin DPS of Pacific of what is seen in other herring represents a biologically significant herring is not at risk of extinction in all metapopulations throughout portion of the DPS. Pentilla (1986) or a significant portion of its range, nor northwestern North America, including suggested that some proportion of adult likely to become so in the foreseeable metapopulations in relatively pristine herring in Puget Sound are future. The BRT noted that the overall areas in southeastern Alaska and British nonmigratory as well. The BRT abundance of the DPS is at historically Columbia. The BRT noted, however, observed that it is unclear whether the high levels, and that the linear extent of that if habitat areas were lost or nonmigratory life-history type is coastline used for spawning has been permanently degraded to the point that specific to certain stocks or is present to increasing. The BRT concluded that the they lacked the potential to support a some degree in all herring stocks. Based available information suggests that spawning subpopulation, this could on the above information, the BRT spawning stocks in the Georgia Basin seriously impair the function of the concluded that the declining Cherry DPS operate as a ‘‘mixed structure’’ entire metapopulation. The BRT Point and eastern Strait of Georgia inlet metapopulation (Harrison and Taylor, concluded that the declining Cherry herring stocks individually and 1997) in which all subpopulations are Point and eastern Strait of Georgia inlet collectively do not represent a connected by migration, but some are stocks do not appear to be limited by significant portion of the Georgia Basin relatively discrete with weaker habitat factors. The BRT concluded that DPS’s range. demographic linkages to other the available evidence does not suggest Efforts Being Made to Protect the subpopulations in the DPS. It is unusual levels of risk to the DPS as a Species expected in a viable metapopulation whole, nor to any significant portion of that some local subpopulations will be the DPS. Section 4(b)(1)(A) of the ESA requires in decline, other subpopulations will be the Secretary to make listing increasing, and some suitable habitat Consideration of ‘‘Significant Portion of determinations solely on the basis of the patches may be unoccupied. its Range’’ best scientific and commercial data Accordingly, the observation that some The ESA defines endangered and available after taking into account local stocks are declining (principally threatened species in terms of the level efforts being made to protect a species the Cherry Point stock, and the of extinction risk ‘‘throughout all or a (emphasis added). Therefore, in making nonmigratory inlet stocks in the eastern significant portion of its range’’ listing determinations we first assess the
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defined species’ level of extinction risk, SUMMARY: NMFS has received a request stock(s), will not have an unmitigable and identify factors that have led to its from Eglin Air Force Base (EAFB) for adverse impact on the availability of the decline. If it is determined that the the take of small numbers of marine species or stock(s) for subsistence uses, species’ survival is at risk, we then mammals, by harassment, incidental to and that the permissible methods of assess existing efforts being made to Naval Explosive Ordnance Disposal taking and requirements pertaining to protect the species to determine if those School (NEODS) Training Operations at the monitoring and reporting of such measures ameliorate the risks faced by EAFB, Florida. Under the Marine taking are set forth. the species. As described above, the Mammal Protection Act (MMPA), NMFS NMFS has defined ‘‘negligible BRT concluded that the defined species’ is requesting comments on its proposal impact’’ in 50 CFR 216.103 as: (the Georgia Basin DPS of Pacific to authorize the Air Force to take, by an impact resulting from the specified herring) survival is not at risk. It is not harassment, small numbers of two activity that cannot be reasonably expected necessary to assess whether protective species of cetaceans at EAFB beginning to, and is not reasonably likely to, adversely efforts reduce risks to a DPS that has in July 7, 2005. affect the species or stock through effects on annual rates of recruitment or survival. been determined to be viable. DATES: Comments and information must Subsection 101(a)(5)(D) of the MMPA be received no later than July 7, 2005. Listing Determination established an expedited process by ADDRESSES: Comments on the which citizens of the United States can Informed by NMFS’ findings that: (1) application should be addressed to the spawning stocks of Pacific herring in apply for an authorization to Steve Leathery, Chief, Permits, incidentally take small numbers of the Georgia Basin (including the marine Conservation, and Education Division, waters of Puget Sound, the Strait of marine mammals by harassment. The Office of Protected Resources, National National Defense Authorization Act of Georgia, and eastern Juan de Fuca Strait Marine Fisheries Service, 1315 East- in the United States and Canada) 2004 (NDAA) (Public Law 108–136) West Highway, Silver Spring, MD amended the definition of ‘‘harassment’’ constitute a DPS; and (2) the DPS is not 20910–3225. The mailbox address for in section 18(A) of the MMPA as it in danger of extinction or likely to providing e-mail comments on this applies to a ‘‘military readiness activity’’ become endangered in the foreseeable action is [email protected]. NMFS future throughout all or a significant to read as follows: is not responsible for e-mail comments (i) any act that injures or has the significant portion of its range, we conclude that sent to addresses other than the one the Georgia Basin DPS of Pacific herring potential to injure a marine mammal or provided here. Comments sent via e- marine mammal stock in the wild (Level A does not warrant listing as threatened or mail, including all attachments, must Harassment); or (ii) any act that disturbs or endangered under the ESA. not exceed a 10–megabyte file size. is likely to disturb a marine mammal or References Comments may also be submitted via marine mammal stock in the wild by causing facsimile to (301) 427–2521. A copy of disruption of natural behavioral patterns, Copies of the BRT’s Status Review the application containing a list of including, but not limited to, migration, Update report, the petition, and related references used in this document may surfacing, nursing, breeding, feeding, or materials are available on the Internet at sheltering, to a point where such behavioral be obtained by writing to this address, http://www.nwr.noaa.gov, or upon patterns are abandoned or significantly by telephoning the contact listed here request (see ADDRESSES section above). altered (Level B Harassment). (SEE FOR FURTHER INFORMATION Section 101(a)(5)(D) establishes a 45– Authority: 16 U.S.C. 1531 et seq. CONTACT) or online at: http:// day time limit for NMFS review of an Dated: June 1, 2005. www.nmfs.noaa.gov/protlres/PR1/ application followed by a 30–day public Rebecca Lent, SmalllTake/ notice and comment period on any Deputy Assistant Administrator for smalltakelinfo.htm#applications. proposed authorizations for the Regulatory Programs, National Marine Documents cited in this notice may be incidental harassment of small numbers Fisheries Service. viewed, by appointment, during regular of marine mammals. Within 45 days of [FR Doc. 05–11210 Filed 6–6–05; 8:45 am] business hours, at the aforementioned the close of the comment period, NMFS BILLING CODE 3510–22–S address. must either issue or deny issuance of FOR FURTHER INFORMATION CONTACT: Jolie the authorization. Harrison, Office of Protected Resources, Summary of Request DEPARTMENT OF COMMERCE NMFS, (301) 713–2289, ext. 166. SUPPLEMENTARY INFORMATION: On March 11, 2004, NMFS received National Oceanic and Atmospheric an application from EAFB, under Administration Background section 101(a)(5)(D) of the MMPA, [I.D. 031005B] Sections 101(a)(5)(A) and (D) of the requesting authorization for the MMPA (16 U.S.C. 1361 et seq.) direct harassment of small numbers of Atlantic Small Takes of Marine Mammals the Secretary of Commerce to allow, bottlenose dolphins (Tursiops Incidental to Specified Activities; Naval upon request, the incidental, but not truncatus) and Atlantic spotted Explosive Ordnance Disposal School intentional taking of small numbers of dolphins (Stenella frontalis) incidental Training Operations at Eglin Air Force marine mammals by U.S. citizens who to NEODS training operations at EAFB, Base, Florida engage in a specified activity (other than Florida, in the northern Gulf of Mexico AGENCY: National Marine Fisheries commercial fishing) within a specified (GOM). Each of up to six missions per Service (NMFS), National Oceanic and geographical region if certain findings year would include up to 5 live Atmospheric Administration (NOAA), are made and regulations are issued or, detonations of approximately 5–pound Commerce. if the taking is limited to harassment, (2.3–kg) net explosive weight charges to notice of a proposed authorization is occur in approximately 60–ft (18.3–m) ACTION: Notice of receipt of application deep water from one to three nm (1.9 to and proposed authorization for provided to the public for review. Authorization for incidental takings 5.6 km) off shore. Because this activity incidental harassment of marine may be granted if NMFS finds that the will be a multi-year activity, NMFS also mammals; request for comments and taking will have no more than a plans to develop proposed regulations information. negligible impact on the species or for NEODS training operations at EAFB.
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Specified Activities mission. The Navy and the Marine Wursig et al. (2000), and the NMFS The mission of NEODS is to train Corps believe that the ability of Sailors Stock Assessments, which can be personnel to detect, recover, identify, and Marines to detect, characterize, and viewed at: http://www.NMFS.noaa.gov/ l l evaluate, render safe, and dispose of neutralize mines from their operating pr/PR2/Stock Assessment Program/ unexploded ordnance (UXO) that areas at sea, on the shore, and inland, sars.html. constitutes a threat to people, material, is vital to their doctrines. The Navy believes that an array of Atlantic Bottlenose Dolphins installations, ships, aircraft, and transnational, rogue, and subnational Atlantic bottlenose dolphins are operations. The NEODS proposes to adversaries now pose the most distributed worldwide in tropical and utilize three areas within the Eglin Gulf immediate threat to American interests. temperate waters and occur in the slope, Test and Training Range (EGTTR), Because of their relative low cost and shelf, and inshore waters of the GOM. consisting of approximately 86,000 ease of use, mines will be among the Based on a combination of geography square miles within the GOM and the adversaries’ weapons of choice in and ecological and genetic research, airspace above, for Mine shallow-water situations, and they will Atlantic bottlenose dolphins have been Countermeasures (MCM) detonations, be deployed in an asymmetrical and divided into many separate stocks which involve mine-hunting and mine- asynchronous manner. The Navy needs within the GOM. The exact structure of clearance operations. The detonation of organic means to clear mines and these stocks is complex and continues small, live explosive charges disables obstacles rapidly in three challenging to be revised as research is completed. the function of the mines, which are environments: shallow water; the surf For now, bottlenose dolphins inhabiting inert for training purposes. The zone; and the beach zone. The Navy also waters less than 20 m (66 ft) deep in the proposed training would occur needs a capability for rapid clandestine U.S. GOM are believed to constitute 36 approximately one to three nautical surveillance and reconnaissance of inshore or coastal stocks, and those miles (nm) (1.9 to 5.6 km) offshore of minefields and obstacles in these inhabiting waters from 20 to 200 m (66 Santa Rosa Island (SRI) six times environments. The NEODS mission in to 656 ft) deep in the northern GOM annually, at varying times within the the GOM offshore of EAFB is considered from the U.S.-Mexican border to the year. a military readiness activity pursuant to Florida Keys are considered the Each of the six training classes would the NDAA (Public Law 108–136). continental shelf stock (Waring et al., include one or two ‘‘Live Demolition 2004). The proposed action would occur Days.’’ During each set of Live Marine Mammals and Habitat Affected on the ocean floor at a depth of Demolition Days, five inert mines would by the Activity approximately 60 ft (18 m) and therefore be placed in a compact area on the sea Marine mammal species that has the potential to affect both the floor in approximately 60 ft (18.3 m) of potentially occur within the EGTTR continental shelf and inshore stocks. water. Divers would locate the mines by include several species of cetaceans and Continental shelf stock assessments hand-held sonars. The AN/PQS–2A the West Indian manatee. While a few were estimated using data from vessel acoustic locator has a sound pressure manatees may migrate as far north from surveys conducted between 1998 and level (SPL) of 178.5 re 1 microPascal @ southern Florida (where there are 2001 (at 20– to 200–m (66- to 656–ft) 1 meter and the Dukane Underwater generally confined in the winter) as depths). The minimum population Acoustic Locator has a SPL of 157–160.5 Louisiana in the summer, they primarily estimate for the northern GOM re 1 microPascal @ 1 meter. Because inhabit coastal and inshore waters and continental shelf stock of the Atlantic these sonar ranges are below any current rarely venture offshore. NEODS bottlenose dolphin is 20,414 (Waring et threshold for protected species, noise missions are conducted one to 3 nm (5.6 al., 2004). The potential for biological impacts are not anticipated and are not km) from shore and effects on manatees removal (PBR), which is the ‘‘maximum addressed further in this analysis. are therefore considered very unlikely number of animals that may be removed Five charges packed with five lbs (2.3 and not discussed further in this from a stock while allowing the stock to kg) of C–4 explosive material will be set analysis. maintain its optimal sustainable up adjacent to each of the mines. No Cetacean abundance estimates for the population’’, of the continental shelf more than five charges will be detonated project area are derived from GulfCet II stock is currently 204. over the two-day period. Detonation aerial surveys conducted from 1996 to The most recent inshore stock times will begin no earlier than two 1998 over a 70,470 km2 area, including assessment surveys were conducted hours after sunrise and end no later than nearly the entire continental shelf aerially in 1993 and covered the area two hours before dusk and charges region of the EGTTR, which extends from the shore or bay boundaries out to utilized within the same hour period approximately 9 nm (16.7 km) from 9.3 km (5.0 nm) past the 18.3 m (60.0 will have a maximum separation time of shore. The dwarf and pygmy sperm nm) isobath (a slightly different area 20 minutes. Mine shapes and debris will whales are not included in this analysis than that defined as inshore in the more be recovered and removed from the because their potential for being found recent stock assessment above). The water when training is completed. A near the project site is remote. Although minimum population estimate of the more detailed description of the work Atlantic spotted dolphins do not northern GOM coastal stock of the proposed for 2005 and 2006 is normally inhabit nearshore waters, they Atlantic bottlenose dolphin was 3,518 contained in the application which is are included in the analysis to ensure dolphins and the PBR for this stock was available upon request (see ADDRESSES). conservative mitigation measures are 35 (Waring et al., 1997). applied. The two marine mammal Texas A&M University and the NMFS Military Readiness Activity species expected to be affected by these conducted GulfCet II aerial surveys in NEODS supports the Naval Fleet by activities are the bottlenose dolphin an area including the EGTTR from 1996 providing training to personnel from all (Tursiops truncatus) and the Atlantic to 1998. Density estimates were four armed services, civil officials, and spotted dolphin (Stenella frontalis). calculated using abundance data military students from over 70 Descriptions of the biology and local collected from the continental shelf area countries. The NEODS facility supports distribution of these species can be of the EGTTR. In an effort to provide the Department of Defense Joint Service found in the application (see ADDRESSES better species conservation and Explosive Ordnance Disposal training for availability), other sources such as protection, estimates were adjusted to
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incorporate temporal and spatial that small numbers of marine mammals Numbers of Marine Mammals Expected variations, surface and submerged may be injured or killed due to the to be Harassed variations, and overall density energy generated from an explosive Estimates of the potential number of confidence. The adjusted density force on the sea floor. Analysis of Atlantic bottlenose dolphins and estimate for Atlantic bottlenose NEODS noise impacts to cetaceans was Atlantic spotted dolphins to be harassed dolphins within the project area is 0.810 based on criteria and thresholds initially by the training were calculated using 2 individuals/km . A small number of presented in U.S. Navy Environmental the number of distinct firing or test dolphins could not be identified Impact Statements for ship shock trials events (maximum 30 per year), the ZOI specifically as Atlantic bottlenose or of the SEAWOLF submarine and the for noise exposure, and the density of Atlantic spotted and their estimated WINSTON CHURCHILL vessel and animals that potentially occur in the density was 0.053 individuals/km2. subsequently adopted by NMFS. ZOI. The take estimates provided here do not include mitigation measures, Atlantic Spotted Dolphins Non-lethal injurious impacts (Level A which are expected to further minimize Atlantic spotted dolphins are endemic Harassment) are defined in EAFB’s impacts to protected species and make to the tropical and warm temperate application and this proposed IHA as injury or death highly unlikely. waters of the Atlantic Ocean and can be tympanic membrane (TM) rupture and The estimated number of Atlantic found from the latitude of Cape May, the onset of slight lung injury. The bottlenose dolphins and Atlantic New Jersey south along mainland shores threshold for Level A Harassment spotted dolphins potentially taken to Venezuela, including the GOM and corresponds to a 50 percent rate of TM through exposure to the Level A Lesser Antilles. In the GOM, Atlantic rupture, which can be stated in terms of Harassment threshold (205 dB re 1 spotted dolphins occur primarily in an energy flux density (EFD) value of microPa2 s), are less than one (0.22 and continental shelf waters 10 to 200 m (33 205 dB re 1 microPa2 s. TM rupture is 0.19, respectively) annually. to 656 ft) deep out to continental slope well-correlated with permanent hearing For Level B Harassment, two separate waters less than 500 m (1640.4 ft) deep. impairment (Ketten (1998) indicates a criteria were established, one expressed One recent study presents strong genetic in dB re 1 microPa2 s maximum EFD support for differentiation between 30 percent incidence of permanent threshold shift (PTS) at the same level in any 1/3–octave band above 100 GOM and western North Atlantic Hz, and one expressed in psi. The management stocks, but the Gulf of threshold). The zone of influence (ZOI) (farthest distance from the source at estimated numbers of Atlantic Mexico stock has not yet been further bottlenose dolphins and Atlantic which an animal is exposed to the EFD subdivided. spotted dolphins potentially taken level referred to) for the Level A Abundance was estimated in the most through exposure to 182 dB are 4 and recent assessment of the northern GOM Harassment threshold is 52.2 m (171.6 3 individuals, respectively. The stock of the Atlantic spotted dolphin ft). estimated numbers potentially taken using combined data from continental Level B (non-injurious) Harassment through exposure to 23 psi are also 4 shelf surveys (20 to 200 m (66 to 656 ft) includes temporary (auditory) threshold and 3 individuals, respectively. deep) and oceanic surveys (200 m (656 shift (TTS), a slight, recoverable loss of Possible Effects of Activities on Marine ft)) to offshore extent of U.S. Exclusive hearing sensitivity. One criterion used Economic Zone) conducted from 1996 Mammal Habitat for TTS is 182 dB re 1 microPa2 s to 2001. The minimum population maximum EFD level in any 1/3–octave The Air Force anticipates no loss or estimate for the northern GOM is 24,752 band above 100 Hz for toothed whales modification to the habitat used by Atlantic spotted dolphins (Waring et al., Atlantic bottlenose dolphins or Atlantic (e.g., dolphins). The ZOI for this 2004). The estimated PBR for this stock spotted dolphins in the EGTTR. The threshold is 229.8 m (754.0 ft). A second is 248 dolphins. primary source of marine mammal Density estimates for the Atlantic criterion, 23 psi, has recently been habitat impact resulting from the spotted dolphin within the EGTTR were established by NMFS to provide a more NEODS missions is noise, which is calculated using abundance data conservative range for TTS when the intermittent (maximum 30 times per collected during the GulfCet II aerial explosive or animal approaches the sea year) and of limited duration. The surveys. In an effort to provide better surface, in which case explosive energy effects of debris (which will be species conservation and protection, is reduced, but the peak pressure is not. recovered following test activities), estimates were adjusted to incorporate The ZOI for 23 psi is 222 m (728 ft). ordnance, fuel, and chemical residues temporal and spatial variations, surface Level B Harassment also includes were analyzed in the NEODS Biological and submerged variations, and overall behavioral modifications resulting from Assessment and the Air Force density confidence. The adjusted repeated noise exposures (below TTS) to concluded that marine mammal habitat density estimate for Atlantic spotted the same animals (usually resident) over would not be affected. dolphins within the project area is 0.677 a relatively short period of time. Possible Effects of Activities on individuals/km2. A small number of Threshold criteria for this particular dolphins could not be identified Subsistence Needs type of harassment are currently still specifically as Atlantic bottlenose or There are no subsistence uses for under debate. One recommendation is a Atlantic spotted and their estimated Atlantic bottlenose dolphins or Atlantic level of 6 dB below TTS (see 69 FR density was 0.053 individuals/km2. spotted dolphins in Gulf of Mexico 21816, April 22, 2004), which would be waters, and thus, there are no Potential Effects of Activities on Marine 176 dB re 1 microPa2 s. Due to the anticipated effects on subsistence needs. Mammals infrequency of the detonations, the The primary potential impact to the potential variability in target locations, Mitigation and Monitoring Atlantic bottlenose and the Atlantic and the continuous movement of marine Mitigation will consist primarily of spotted dolphins occurring in the mammals off the northern Gulf, surveying and taking action to avoid EGTTR from the proposed detonations behavioral modification from repeated detonating charges when protected is Level B harassment from noise. There exposures to the same animals is species are within the ZOI. A trained, is a slight potential, absent mitigation, considered highly unlikely. NMFS-approved observerwill be staged
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from the highest point possible on a (4) Large schools of fish are observed terms and conditions to minimize the support ship and have proper lines of in the water within of the ZOI. The effects of this take. This proposed IHA communication to the Officer in delay would continue until large fish action is within the scope of the Tactical Command. The survey area will schools are confirmed to be outside the previously analyzed action and does not be 460 m (1509 ft) in every direction ZOI. change the action in a manner that was from the target, which is twice the In the event of a postponement, pre- not considered previously. radius of the ZOI for Level B mission monitoring would continue as National Environmental Policy Act Harassment (230 m (755 ft)). To ensure long as weather and daylight hours visibility of marine mammals to allow. If a charge failed to explode, NMFS is currently conducting an observers, NEODS missions will be mitigation measures would continue analysis, pursuant to NEPA, to delayed if whitecaps cover more than 50 while operations personnel attempted to determine whether or not this activity percent of the surface or if the waves are recognize and solve the problem may have a significant effect on the greater than 3 feet (Beaufort Sea State 4). (detonate the charge). human environment. A record of Pre-mission monitoring will be used Post-mission monitoring is designed decision will be issued prior to the to evaluate the test site for to determine the effectiveness of pre- issuance or denial of this IHA. mission mitigation by reporting any environmental suitability of the Preliminary Conclusions mission. Visual surveys will be sightings of dead or injured marine conducted two hours, one hour, and five mammals or sea turtles. Post-detonation NMFS proposes to issue an IHA to the minutes prior to the mission to verify monitoring, concentrating on the area USAF for the NEODS training missions that the ZOI (230 m (755 ft)) is free of down current of the test site, would to take place at EAFB over a 1–year visually detectable marine mammals, commence immediately following each period. The proposal to issue this IHA sea turtles, large schools of fish, large detonation and continue for at least two is contingent upon adherence to the flocks of birds, large Sargassum mats, or hours after the last detonation. The previously mentioned mitigation, large concentrations of jellyfish and that monitoring team would document and monitoring, and reporting requirements. the weather is adequate to support report to the appropriate marine animal NMFS has preliminarily determined visual surveys. The observer will plot stranding network any marine mammals that the impact of the NEODS training, and record sightings, bearing, and time or turtles killed or injured during the which entails up to six missions per for all marine mammals detected, which test and, if practicable, recover and year, including up to 5 live detonations would allow the observer to determine examine any dead animals. The species, per mission of approximately 5–pound if the animal is likely to enter the test number, location, and behavior of any net explosive weight charges to occur in area during detonation. If an animal animals observed by the teams would be approximately 60–foot (18 m) deep appears likely to enter the test area documented and reported to the Officer water from one to three nm off shore, during detonation, if marine mammals, in Tactical Command. will result in the harassment of small sea turtles, large schools of fish, large numbers of Atlantic bottlenose dolphins Reporting flocks of birds, large Sargassum mats, or and Atlantic spotted dolphins; would large concentrations of jellyfish are The Air Force will notify NMFS 2 have no more negligible impact on these present, or if the weather is inadequate weeks prior to initiation of each training marine mammal stocks; and would not to support monitoring, the observer will session. Any takes of marine mammals have an unmitigable adverse impact on declare the range fouled and the tactical other than those authorized by the IHA, the availability of marine mammal officer will implement a hold until as well as any injuries or deaths of stocks for subsistence uses. Dwarf and monitoring indicates that the test area is marine mammals, will be reported to pygmy sperm whales and manatees are and will remain clear of detectable the Southeast Regional Administrator, unlikely to be found in the area and, marine mammals or sea turtles. NMFS, by the next working day. A therefore, will not be affected. While Monitoring of the test area will summary of mission observations and behavioral modifications may be made continue throughout the mission until test results, including dates and times of by Atlantic bottlenose dolphins and the last detonation is complete. The detonations as well as pre- and post- Atlantic spotted dolphins to avoid the mission would be postponed if: mission monitoring observations, will resultant acoustic stimuli, there is (1) Any marine mammal is visually be submitted to the Southeast Regional virtually no possibility of injury or detected within the ZOI (230 m (755 ft)). Office (NMFS) and to the Division of mortality when the potential density of The delay would continue until the Permits, Conservation, and Education, dolphins in the area and extent of animal that caused the postponement is Office of Protected Resources (NMFS) mitigation and monitoring are taken into confirmed to be outside the ZOI within 90 days after the completion of consideration. The effects of the NEODS (visually observed swimming out of the the last training session. training are expected to be limited to range). Endangered Species Act short-term and localized TTS-related (2) Any marine mammal or sea turtle behavioral changes. is detected in the ZOI and subsequently In a Biological Opinion issued on Due to the infrequency and localized is not seen again. The mission would October 25, 2004, NMFS concluded that nature of these activities, the estimated not continue until the last verified the NEODS training missions and their number of marine mammals potentially location is outside of the ZOI and the associated actions are not likely to taken by harassment is small. In animal is moving away from the mission jeopardize the continued existence of addition, no take by injury and/or death area. threatened or endangered species under is anticipated. No rookeries, mating (3) Large Sargassum rafts or large the jurisdiction of NMFS or destroy or grounds, areas of concentrated feeding, concentrations of jellyfish are observed adversely modify critical habitat that or other areas of special significance for within the ZOI. The delay would has been designated for those species. marine mammals occur within or near continue until the Sargassum rafts or NMFS has issued an incidental take the NEODS test sites. jellyfish that caused the postponement statement (ITS) for sea turtles pursuant are confirmed to be outside of the ZOI to Section 7 of the Endangered Species Information Solicited either due to the current and/or wind Act. The ITS contains reasonable and NMFS requests interested persons to moving them out of the mission area. prudent measures with implementing submit comments and information
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concerning this request (see ADDRESSES). FOR FURTHER INFORMATION CONTACT: Defense (DoD). The purpose of this Concurrent with the publication of this Please see the 2005 Defense Base regional meeting is to allow notice in the Federal Register, NMFS is Closure and Realignment Commission communities experiencing a base forwarding copies of this application to Web site, http://www.brac.gov. The closure or major realignment action the Marine Mammal Commission and Commission invites the public to (defined as loss of 300 civilian positions its Committee of Scientific Advisors. provide direct comment by sending an or 400 military and civilian positions) Dated: June 1, 2005. electronic message through the portal an opportunity to voice their concerns, provided on the Commission’s Web site Michael Payne, counter-arguments, and opinions in a or by mailing comments and supporting live public forum. This meeting will be Acting Deputy Director, Office of Protected documents to the 2005 Defense Base Resources, National Marine Fisheries Service. open to the public, subject to the Closure and Realignment Commission, availability of space. The delegation will [FR Doc. 05–11209 Filed 6–6–05; 8:45 am] 2521 South Clark Street Suite 600, not render decisions regarding the DoD BILLING CODE 3510–22–S Arlington, Virginia 22202–3920. The recommendations at this meeting, but Commission requests that public will gather information for later comments be directed toward matters deliberations by the Commission as a DEFENSE BASE CLOSURE AND bearing on the decision criteria whole. REALIGNMENT COMMISSION described in The Defense Base Closure and Realignment Act of 1990, as DATES: June 28, 2005, from 1 p.m. to Notice of the 2005 Defense Base amended, available on the Commission 5:30 p.m. Closure and Realignment Web site. Sections 2912 through 2914 of ADDRESSES: The Harris Conference Commission—Open Meeting that Act describe the criteria and many Center, Central Piedmont Community AGENCY: Defense Base Closure and of the essential elements of the 2005 College West Campus, 3216 CPCC West Realignment Commission. BRAC process. For questions regarding Campus Drive, Charlotte, North Carolina ACTION: Notice; 2005 Defense Base this announcement, contact Mr. Dan 28208. Closure and Realignment Commission— Cowhig, Deputy General Counsel and FOR FURTHER INFORMATION CONTACT: open meeting (Baltimore, MD). Designated Federal Officer, at the Please see the 2005 Defense Base Commission’s mailing address or by Closure and Realignment Commission SUMMARY: Notice is hereby given that a telephone at 703–699–2950 or 2708. Web site, http://www.brac.gov. The delegation of Commissioners of the 2005 Dated: May 31, 2005. Commission invites the public to Defense Base Closure and Realignment Jeannette Owings-Ballard, provide direct comment by sending an Commission will hold an open meeting Administrative Support Officer. electronic message through the portal on July 8, 2005, from 8:30 a.m. to 5 p.m. provided on the Commission’s Web site at the Kraushaar Auditorium, Goucher [FR Doc. 05–11232 Filed 6–6–05; 8:45 am] BILLING CODE 5001–06–P or by mailing comments and supporting College, 1021 Dulaney Valley Road, documents to the 2005 Defense Base Baltimore, Maryland 21204. The Closure and Realignment Commission, Commission requests that the public DEFENSE BASE CLOSURE AND 2521 South Clark Street Suite 600, consult the 2005 Defense Base Closure REALIGNMENT COMMISSION Arlington, Virginia 22202–3920. The and Realignment Commission Web site, Commission requests that public http://www.brac.gov, for updates. Notice of the 2005 Defense Base comments be directed toward matters The delegation will meet to receive Closure and Realignment bearing on the decision criteria comment from Federal, state and local Commission—Open Meeting described in The Defense Base Closure government representatives and the and Realignment Act of 1990, as general public on base realignment and AGENCY: Defense Base Closure and Realignment Commission. amended, available on the Commission closure actions in the District of Web site. Sections 2912 through 2914 of ACTION: Notice; 2005 Defense Base Columbia, Maryland, New Jersey, that Act describe the criteria and many Closure and Realignment Commission— Pennsylvania and Virginia that have of the essential elements of the 2005 open meeting (Charlotte, NC). been recommended by the Department BRAC process. For questions regarding of Defense (DoD). The purpose of this SUMMARY: Notice is hereby given that a this announcement, contact Mr. Dan regional meeting is to allow delegation of Commissioners of the 2005 Cowhig, Deputy General Counsel and communities experiencing a base Defense Base Closure and Realignment Designated Federal Officer, at the closure or major realignment action Commission will hold an open meeting Commission’s mailing address or by (defined as loss of 300 civilian positions on June 28, 2005, from 1 p.m. to 5:30 telephone at 703–699–2950 or 2708. or 400 military and civilian positions) p.m. at the Harris Conference Center, an opportunity to voice their concerns, Dated: May 31, 2005. Central Piedmont Community College counter-arguments, and opinions in a Jeannette Owings-Ballard, West Campus, 3216 CPCC West Campus live public forum. This meeting will be Administrative Support Officer. Drive, Charlotte, North Carolina 28208. open to the public, subject to the [FR Doc. 05–11233 Filed 6–6–05; 8:45 am] The Commission requests that the availability of space. The delegation will public consult the 2005 Defense Base BILLING CODE 5001–06–P not render decisions regarding the DoD Closure and Realignment Commission recommendations at this meeting, but Web site, http://www.brac.gov, for will gather information for later DEFENSE BASE CLOSURE AND updates. deliberations by the Commission as a REALIGNMENT COMMISSION The delegation will meet to receive whole. comment from Federal, State and local Notice of the 2005 Defense Base DATES: July 8, 2005, from 8:30 a.m. to 5 government representatives and the Closure and Realignment p.m. general public on base realignment and Commission—Open Meeting ADDRESSES: The Kraushaar Auditorium, closure actions in North Carolina and Goucher College, 1021 Dulaney Valley South Carolina that have been AGENCY: Defense Base Closure and Road, Baltimore, Maryland 21204. recommended by the Department of Realignment Commission.
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ACTION: Notice; 2005 Defense Base Designated Federal Officer, at the electronic message through the portal Closure and Realignment Commission— Commission’s mailing address or by provided on the Commission’s Web site open meeting (Buffalo, NY). telephone at 703–699–2950 or 2708. or by mailing comments and supporting Dated: May 31, 2005. documents to the 2005 Defense Base SUMMARY: Notice is hereby given that a Closure and Realignment Commission, Jeannette Owings-Ballard, delegation of Commissioners of the 2005 2521 South Clark Street Suite 600, Defense Base Closure and Realignment Administrative Support Officer. Arlington, Virginia 22202–3920. The Commission will hold an open meeting [FR Doc. 05–11234 Filed 6–6–05; 8:45 am] Commission requests that public on June 27, 2005 from 1 p.m. to 5:30 BILLING CODE 5001–06–P comments be directed toward matters p.m. at Kleinhans Music Hall, 3 bearing on the decision criteria Symphony Circle, Buffalo, New York, described in The Defense Base Closure 14201. The Commission requests that DEFENSE BASE CLOSURE AND and Realignment Act of 1990, as the public consult the 2005 Defense REALIGNMENT COMMISSION amended, available on the Commission Base Closure and Realignment Notice of the 2005 Defense Base Web site. Sections 2912 through 2914 of Commission Web site, http:// that Act describe the criteria and many www.brac.gov, for updates. Closure and Realignment Commission—Open Meeting of the essential elements of the 2005 The delegation will meet to receive BRAC process. For questions regarding comment from Federal, state and local AGENCY: Defense Base Closure and this announcement, contact Mr. Dan government representatives and the Realignment Commission. Cowhig, Deputy General Counsel and general public on base realignment and ACTION: Designated Federal Officer, at the closure actions in New York and Ohio Notice; 2005 Defense Base Closure and Realignment Commission— Commission’s mailing address or by that have been recommended by the telephone at 703–699–2950 or 2708. Department of Defense (DoD). The open meeting (Clovis, NM). Dated: May 31, 2005. purpose of this regional meeting is to SUMMARY: Notice is hereby given that a Jeannette Owings-Ballard, allow communities experiencing a base delegation of Commissioners of the 2005 closure or major realignment action Defense Base Closure and Realignment Administrative Support Officer. (defined as loss of 300 civilian positions Commission will hold an open meeting [FR Doc. 05–11235 Filed 6–6–05; 8:45 am] or 400 military and civilian positions) on June 24, 2005 from 8:30 a.m. to 11 BILLING CODE 5001–06–P an opportunity to voice their concerns, a.m. at Marshall Junior High School, 100 counter-arguments, and opinions in a Commerce Way, Clovis, New Mexico DEFENSE BASE CLOSURE AND live public forum. This meeting will be 88101. The Commission requests that REALIGNMENT COMMISSION open to the public, subject to the the public consult the 2005 Defense availability of space. The delegation will Base Closure and Realignment Notice of the 2005 Defense Base not render decisions regarding the DoD Commission Web site, http:// Closure and Realignment recommendations at this meeting, but www.brac.gov, for updates. Commission—Open Meeting will gather information for later The delegation will meet to receive deliberations by the Commission as a comment from Federal, State and local AGENCY: Defense Base Closure and whole. government representatives and the Realignment Commission. DATES: June 27, 2005 from 1 p.m. to 5:30 general public on base realignment and ACTION: Notice; 2005 Defense Base p.m. closure actions in New Mexico that have Closure and Realignment Commission— ADDRESSES: Kleinhans Music Hall, 3 been recommended by the Department open meeting (Fairbanks, AK). of Defense (DoD). The purpose of this Symphony Circle, Buffalo, New York, SUMMARY: Notice is hereby given that a 14201. regional meeting is to allow communities experiencing a base delegation of Commissioners of the 2005 FOR FURTHER INFORMATION CONTACT: closure or major realignment action Defense Base Closure and Realignment Please see the 2005 Defense Base (defined as loss of 300 civilian positions Commission will hold an open meeting Closure and Realignment Commission or 400 military and civilian positions) on June 15, 2005, from 1 p.m. to 3:30 Web site, http://www.brac.gov. The an opportunity to voice their concerns, p.m. at The Carlson Center, 2010 Commission invites the public to counter-arguments, and opinions in a Second Avenue, Fairbanks, Alaska provide direct comment by sending an live public forum. This meeting will be 99701. The delay of this notice resulted electronic message through the portal open to the public, subject to the from the short time-frame established by provided on the Commission’s Web site availability of space. The delegation will statute for the operations of the Defense or by mailing comments and supporting not render decisions regarding the DoD Base Closure and Realignment documents to the 2005 Defense Base recommendations at this meeting, but Commission and the need to coordinate Closure and Realignment Commission, will gather information for later the schedules of the various Federal, 2521 South Clark Street Suite 600, deliberations by the Commission as a State and local officials whose Arlington, Virginia 22202–3920. The whole. participation was judged essential to a Commission requests that public meaningful public discussion. The comments be directed toward matters DATES: June 24, 2005 from 8:30 a.m. to Commission requests that the public bearing on the decision criteria 11 a.m. consult the 2005 Defense Base Closure described in The Defense Base Closure ADDRESSES: Marshall Junior High and Realignment Commission Web site, and Realignment Act of 1990, as School, 100 Commerce Way, Clovis, http://www.brac.gov, for updates. amended, available on the Commission New Mexico 88101. The delegation will meet to receive Web site. Sections 2912 through 2914 of FOR FURTHER INFORMATION CONTACT: comment from Federal, State and local that Act describe the criteria and many Please see the 2005 Defense Base government representatives and the of the essential elements of the 2005 Closure and Realignment Commission general public on base realignment and BRAC process. For questions regarding Web site, http://www.brac.gov. The closure actions in Alaska that have been this announcement, contact Mr. Dan Commission invites the public to recommended by the Department of Cowhig, Deputy General Counsel and provide direct comment by sending an Defense (DoD). The purpose of this
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regional meeting is to allow SUMMARY: Notice is hereby given that a Dated: May 31, 2005. communities experiencing a base delegation of Commissioners of the 2005 Jeannette Owings-Ballard, closure or major realignment action Defense Base Closure and Realignment Administrative Support Officer. (defined as loss of 300 civilian positions Commission will hold an open meeting [FR Doc. 05–11237 Filed 6–6–05; 8:45 am] or 400 military and civilian positions) on July 12, 2005 from 9 a.m. to 3:30 p.m. BILLING CODE 5001–06–P an opportunity to voice their concerns, at the National D-Day Museum, 945 counter-arguments, and opinions in a Magazine Street, New Orleans, live public forum. This meeting will be Louisiana 70130. The Commission DEFENSE BASE CLOSURE AND open to the public, subject to the requests that the public consult the 2005 REALIGNMENT COMMISSION availability of space. The delegation will Defense Base Closure and Realignment not render decisions regarding the DoD Commission Web site, http:// Notice of the 2005 Defense Base recommendations at this meeting, but www.brac.gov, for updates. Closure and Realignment will gather information for later The delegation will meet to receive Commission—Open Meeting deliberations by the Commission as a comment from Federal, state and local AGENCY: Defense Base Closure and whole. government representatives and the general public on base realignment and Realignment Commission. DATES: June 15, 2005, from 1 p.m. to closure actions in Florida, Louisiana ACTION: Notice; 2005 Defense Base 3:30 p.m. and Mississippi that have been Closure and Realignment Commission— ADDRESSES: The Carlson Center, 2010 recommended by the Department of Open Meeting (Rapid City, SD). Second Avenue, Fairbanks, Alaska Defense (DoD). The purpose of this 99701. regional meeting is to allow SUMMARY: Notice is hereby given that a FOR FURTHER INFORMATION CONTACT: communities experiencing a base delegation of Commissioners of the 2005 Please see the 2005 Defense Base closure or major realignment action Defense Base Closure and Realignment Closure and Realignment Commission (defined as loss of 300 civilian positions Commission will hold an open meeting Web site, http://www.brac.gov. The or 400 military and civilian positions) on June 21, 2005 from 1 p.m. to 3:30 Commission invites the public to an opportunity to voice their concerns, p.m. at The Rushmore Plaza Civic provide direct comment by sending an counter-arguments, and opinions in a Center, 444 Mount Rushmore Road electronic message through the portal live public forum. This meeting will be North, Rapid City, South Dakota 57701. provided on the Commission’s Web site open to the public, subject to the The Commission requests that the or by mailing comments and supporting availability of space. The delegation will public consult the 2005 Defense Base documents to the 2005 Defense Base not render decisions regarding the DoD Closure and Realignment Commission Closure and Realignment Commission, recommendations at this meeting, but Web site, http://www.brac.gov, for 2521 South Clark Street Suite 600, will gather information for later updates. Arlington, Virginia 22202–3920. The deliberations by the Commission as a The delegation will meet to receive Commission requests that public whole. comment from Federal, state and local government representatives and the comments be directed toward matters DATES: July 12, 2005 from 9 a.m. to 3:30 general public on base realignment and bearing on the decision criteria p.m. closure actions in South Dakota that described in The Defense Base Closure ADDRESSES: The National D-Day and Realignment Act of 1990, as have been recommended by the Museum, 945 Magazine Street, New Department of Defense (DoD). The amended, available on the Commission Orleans, Louisiana 70130. Web site. Sections 2912 through 2914 of purpose of this regional meeting is to FOR FURTHER INFORMATION CONTACT: allow communities experiencing a base that Act describe the criteria and many Please see the 2005 Defense Base of the essential elements of the 2005 closure or major realignment action Closure and Realignment Commission (defined as loss of 300 civilian positions BRAC process. For questions regarding Web site, http://www.brac.gov. The this announcement, contact Mr. Dan or 400 military and civilian positions) Commission invites the public to an opportunity to voice their concerns, Cowhig, Deputy General Counsel and provide direct comment by sending an Designated Federal Officer, at the counter-arguments, and opinions in a electronic message through the portal live public forum. This meeting will be Commission’s mailing address or by provided on the Commission’s Web site telephone at 703–699–2950 or 2708. open to the public, subject to the or by mailing comments and supporting availability of space. The delegation will Dated: May 31, 2005. documents to the 2005 Defense Base not render decisions regarding the DoD Jeannette Owings-Ballard, Closure and Realignment Commission, recommendations at this meeting, but Administrative Support Officer. 2521 South Clark Street Suite 600, will gather information for later [FR Doc. 05–11236 Filed 6–6–05; 8:45 am] Arlington, Virginia 22202–3920. The deliberations by the Commission as a BILLING CODE 5001–06–P Commission requests that public whole. comments be directed toward matters bearing on the decision criteria DATES: June 21, 2005 from 1 p.m. to 3:30 DEFENSE BASE CLOSURE AND described in The Defense Base Closure p.m. REALIGNMENT COMMISSION and Realignment Act of 1990, as ADDRESSES: The Rushmore Plaza Civic amended, available on the Commission Center, 444 Mount Rushmore Road Notice of the 2005 Defense Base Web site. Sections 2912 through 2914 of North, Rapid City, South Dakota 57701. Closure and Realignment that Act describe the criteria and many FOR FURTHER INFORMATION CONTACT: Commission—Open Meeting of the essential elements of the 2005 Please see the 2005 Defense Base AGENCY: Defense Base Closure and BRAC process. For questions regarding Closure and Realignment Commission Realignment Commission. this announcement, contact Mr. Dan Web site, http://www.brac.gov. The Cowhig, Deputy General Counsel and Commission invites the public to ACTION: Notice; 2005 Defense Base Designated Federal Officer, at the provide direct comment by sending an Closure and Realignment Commission— Commission’s mailing address or by electronic message through the portal open meeting (New Orleans, LA). telephone at 703–699–2950 or 2708. provided on the Commission’s Web site
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or by mailing comments and supporting availability of space. The delegation will East 11th Avenue, Portland, Oregon documents to the 2005 Defense Base not render decisions regarding the DoD 97232. The delay of this notice resulted Closure and Realignment Commission, recommendations at this meeting, but from the short time-frame established by 2521 South Clark Street Suite 600, will gather information for later statute for the operations of the Defense Arlington, Virginia 22202–3920. The deliberations by the Commission as a Base Closure and Realignment Commission requests that public whole. Commission and the need to coordinate comments be directed toward matters DATES: June 23, 2005 from 8:30 a.m. to the schedules of the various Federal, bearing on the decision criteria 11 a.m. state and local officials whose described in The Defense Base Closure participation was judged essential to a ADDRESSES: The Chester Fritz and Realignment Act of 1990, as meaningful public discussion. The Auditorium, The University of North amended, available on the Commission Commission requests that the public Dakota, University Avenue and Dale Web site. Sections 2912 through 2914 of consult the 2005 Defense Base Closure Drive, Grand Forks, North Dakota that Act describe the criteria and many and Realignment Commission Web site, 58202. of the essential elements of the 2005 http://www.brac.gov, for updates. BRAC process. For questions regarding FOR FURTHER INFORMATION CONTACT: The delegation will meet to receive this announcement, contact Mr. Dan Please see the 2005 Defense Base comment from Federal, state and local Cowhig, Deputy General Counsel and Closure and Realignment Commission government representatives and the Designated Federal Officer, at the Web site, http://www.brac.gov. The general public on base realignment and Commission’s mailing address or by Commission invites the public to closure actions in Oregon and telephone at 703–699–2950 or 2708. provide direct comment by sending an Washington that have been Dated: May 31, 2005. electronic message through the portal recommended by the Department of provided on the Commission’s Web site Defense (DoD). The purpose of this Jeannette Owings-Ballard, or by mailing comments and supporting regional meeting is to allow Administrative Support Officer. documents to the 2005 Defense Base communities experiencing a base [FR Doc. 05–11238 Filed 6–6–05; 8:45 am] Closure and Realignment Commission, closure or major realignment action BILLING CODE 5001–06–P 2521 South Clark Street Suite 600, (defined as loss of 300 civilian positions Arlington, Virginia 22202–3920. The or 400 military and civilian positions) Commission requests that public an opportunity to voice their concerns, DEFENSE BASE CLOSURE AND comments be directed toward matters counter-arguments, and opinions in a REALIGNMENT COMMISSION bearing on the decision criteria live public forum. This meeting will be Notice of the 2005 Defense Base described in The Defense Base Closure open to the public, subject to the Closure and Realignment and Realignment Act of 1990, as availability of space. The delegation will Commission—Open Meeting amended, available on the Commission not render decisions regarding the DoD Web site. Sections 2912 through 2914 of recommendations at this meeting, but AGENCY: Defense Base Closure and that Act describe the criteria and many will gather information for later Realignment Commission. of the essential elements of the 2005 deliberations by the Commission as a ACTION: Notice; 2005 Defense Base BRAC process. For questions regarding whole. Closure and Realignment Commission— this announcement, contact Mr. Dan DATES: June 17, 2005, from 8:30 a.m. to Open meeting (Grand Forks, ND). Cowhig, Deputy General Counsel and 11 a.m. Designated Federal Officer, at the SUMMARY: Notice is hereby given that a ADDRESSES: Eastside Federal Complex, Commission’s mailing address or by first floor auditorium, 911 North East delegation of Commissioners of the 2005 telephone at 703–699–2950 or 2708. Defense Base Closure and Realignment 11th Avenue, Portland, Oregon 97232. Commission will hold an open meeting Dated: May 31, 2005. FOR FURTHER INFORMATION CONTACT: on June 23, 2005 from 8:30 a.m. to 11 Jeannette Owings-Ballard, Please see the 2005 Defense Base a.m. at the Chester Fritz Auditorium, Administrative Support Officer. Closure and Realignment Commission The University of North Dakota, [FR Doc. 05–11239 Filed 6–6–05; 8:45 am] Web site, http://www.brac.gov. The University Avenue and Dale Drive, BILLING CODE 5001–06–P Commission invites the public to Grand Forks, North Dakota 58202. The provide direct comment by sending an Commission requests that the public electronic message through the portal consult the 2005 Defense Base Closure DEFENSE BASE CLOSURE AND provided on the Commission’s Web site and Realignment Commission Web site, REALIGNMENT COMMISSION or by mailing comments and supporting http://www.brac.gov, for updates. documents to the 2005 Defense Base The delegation will meet to receive Notice of the 2005 Defense Base Closure and Realignment Commission, comment from Federal, state and local Closure and Realignment 2521 South Clark Street Suite 600, government representatives and the Commission—Open Meeting Arlington, Virginia 22202–3920. The general public on base realignment and AGENCY: Defense Base Closure and Commission requests that public closure actions in North Dakota that Realignment Commission. comments be directed toward matters have been recommended by the ACTION: Notice; 2005 Defense Base bearing on the decision criteria Department of Defense (DoD). The Closure and Realignment Commission— described in The Defense Base Closure purpose of this regional meeting is to open meeting (Portland, OR). and Realignment Act of 1990, as allow communities experiencing a base amended, available on the Commission closure or major realignment action SUMMARY: Notice is hereby given that a Web site. Sections 2912 through 2914 of (defined as loss of 300 civilian positions delegation of Commissioners of the 2005 that Act describe the criteria and many or 400 military and civilian positions) Defense Base Closure and Realignment of the essential elements of the 2005 an opportunity to voice their concerns, Commission will hold an open meeting BRAC process. For questions regarding counter-arguments, and opinions in a on June 17, 2005, from 8:30 a.m. to 11 this announcement, contact Mr. Dan live public forum. This meeting will be a.m. in the first floor auditorium of the Cowhig, Deputy General Counsel and open to the public, subject to the Eastside Federal Complex, 911 North Designated Federal Officer, at the
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Commission’s mailing address or by DEPARTMENT OF DEFENSE requirements of section 155 of Public telephone at 703–699–2950 or 2708. Law 104–164 dated 21 July 1996. Office of the Secretary Dated: May 31, 2005. FOR FURTHER INFORMATION CONTACT: Ms. Jeannette Owings-Ballard, J. Hurd, DSCA!OPS ADMIN, (703) 604– [Transmittal No. 05–25] 6575. Administrative Support Officer. The following is a copy of a letter to [FR Doc. 05–11241 Filed 6–6–05; 8:45 am] 36(b)(1) Arms Sales Notification the Speaker of the House of BILLING CODE 5001–06–P Representatives, Transmittal 05–25 with AGENCY: Department of Defense, Defense Security Cooperation Agency. attached transmittal, policy justification, and Sensitivity of Technology. ACTION: Notice. Dated: May 31, 2005. SUMMARY: The Department of Defense is Jeannette Owings-Ballard, publishing the unclassified text of a OSD Federal Register Liaison Officer, section 36(b)(1) arms sales notification. Department of Defense. This is published to fulfill the BILLING CODE 5001–06–P
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[FR Doc. 05–11240 Filed 6–6–05; 8:45 am] ADDRESSES: The Defense Intelligence Deadline and Submission Dates: See BILLING CODE 5001–06–C Agency, 200 MacDill Blvd, Washington, Tables A and B at the end of this notice. DC 20340. Table A—Deadline Dates for FOR FURTHER INFORMATION CONTACT: Ms. DEPARTMENT OF DEFENSE Application Processing and Receipt of Victoria Prescott, Program Manager/ Student Aid Reports (SARs) or Office of the Secretary Executive Secretary, DIA Advisory Institutional Student Information Board, Washington, DC, 20340–1328 Records (ISIRs) by Institutions Notice of Meeting ((703) 697–1664). SUPPLEMENTARY INFORMATION: The entire Table A provides deadline dates for AGENCY: DoD Education Benefits Board meeting is devoted to the discussion of application processing, including of Actuaries. classified information as defined in corrections and submission of ACTION: Notice of meeting. section 552b(c)(l), Title 5 of the U.S. signatures, submission of verification SUMMARY: A meeting of the Board has Code, and therefore will be closed to the documents and, for purposes of the been scheduled to execute the public. The Board will receive briefings Federal Pell Grant Program, receipt by provisions of Chapter 101, Title 10, and discuss several current critical institutions of SARs or ISIRs. We are United States Code (10 U.S.C. 2006). intelligence issues in order to advise the using only three deadline dates in Table The Board shall review DoD actuarial Director, DIA. A for the 2005–2006 award year. The methods and assumptions to be used in Dated: May 31, 2005. single date for the submission of a Free the valuation of the Department of Jeannette Owings-Ballard, Application for Federal Student Aid (FAFSA) is June 30, 2006, regardless of Defense Education Benefits Fund. OSD Federal Register Liaison Officer, Persons desiring to: (1) Attend the DoD Department of Defense. the method that the applicant uses to Education Benefits Board of Actuaries [FR Doc. 05–11231 Filed 6–6–05; 8:45 am] submit the FAFSA. September 15, 2006 is the deadline date for the submission meeting, or (2) make an oral BILLING CODE 5001–06–P presentation or submit a written and receipt of a signature page (if statement for consideration at the required), corrections, changes of meeting, must notify Inger Pettygrove at addresses or schools, or requests for a (703) 696–7413 by July 8, 2005. DEPARTMENT OF EDUCATION duplicate SAR. September 22, 2006 is Notice of this meeting is required [CFDA Nos. 84.007, 84.032, 84.033, 84.038, the deadline date for the submission under the Federal Advisory Committee 84.063, 84.069, and 84.268] and receipt of all other documents and Act. materials that are specified in Table A. DATES: August 12, 2005 10 a.m. to 1 Student Assistance General Table B—Federal Pell Grant Program p.m. Provisions, Federal Supplemental Submission Dates for Disbursement Educational Opportunity Grant, ADDRESSES: 4040 N. Fairfax Drive, Suite Information by Institutions 270, Arlington, VA 22203. Federal Family Education Loan, FOR FURTHER INFORMATION CONTACT: Federal Work-Study, Federal Perkins Table B provides the earliest Inger Pettygrove, DoD Office of the Loan, Federal Pell Grant, Leveraging submission and deadline dates for Actuary, 4040 N. Fairfax Drive, Suite Educational Assistance Partnership, institutions to submit Federal Pell Grant 308, Arlington, VA 22203, (703) 696– and William D. Ford Federal Direct disbursement records to the 7413. Loan Programs Department’s Common Origination and Disbursement (COD) System. Dated: May 31, 2005. ACTION: Notice of deadline dates for Jeannette Owings-Ballard, receipt of applications, reports, and In general, an institution must submit OSD Federal Register Liaison Officer, other records for the 2005–2006 award Federal Pell Grant disbursement records Department of Defense. year. no later than 30 days after making a [FR Doc. 05–11230 Filed 6–6–05; 8:45 am] Federal Pell Grant disbursement or BILLING CODE 5001–06–P SUMMARY: The Secretary announces becoming aware of the need to adjust a deadline dates for the receipt of student’s previously reported Federal documents and other information from Pell Grant disbursement. In accordance DEPARTMENT OF DEFENSE institutions and applicants for the with the regulations in 34 CFR 668.164, Federal student aid programs authorized we consider that Federal Pell Grant Office of the Secretary under Title IV of the Higher Education funds are disbursed on the earlier of the Act of 1965, as amended, for the 2005– date that the institution: (a) Credits Defense Intelligence Agency Advisory 2006 award year. The Federal student those funds to a student’s account in the Board Closed Meeting aid programs include the Federal institution’s general ledger or any AGENCY: Department of Defense, Defense Perkins Loan, Federal Work-Study, subledger of the general ledger, or (b) Intelligence Agency. Federal Supplemental Educational pays those funds to a student directly. ACTION: Notice; Defense Intelligence Opportunity Grant, Federal Family We consider that Federal Pell Grant Agency Advisory Board closed meeting. Education Loan, William D. Ford funds are disbursed even if an Federal Direct Loan, Federal Pell Grant, institution uses its own funds in SUMMARY: Pursuant to the provisions of and Leveraging Educational Assistance advance of receiving program funds subsection (d) of section 10 of Public Partnership programs. from the Department. An institution’s Law 92–463, as amended by section 5 of These programs, administered by the failure to submit disbursement records Public Law 94–409, notice is hereby U.S. Department of Education within the required 30-day timeframe given that a closed meeting of the DIA (Department), provide financial may result in an audit or program Advisory Board has been scheduled as assistance to students attending eligible review finding. In addition, the follows: postsecondary educational institutions Secretary may initiate an adverse action, DATES: 22–23 June 2005 (8:30 a.m. to 5 to help them pay their educational such as a fine or other penalty for such p.m.) costs. failure.
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Other Sources for Detailed Information FOR FURTHER INFORMATION CONTACT: To use PDF you must have Adobe We publish a detailed discussion of Harold McCullough, U.S. Department of Acrobat Reader, which is available free the Federal student aid application Education, Federal Student Aid, 830 at this site. If you have questions about process in the following publications: First Street, NE, Union Center Plaza, using PDF, call the U.S. Government • 2005–2006 Student Guide. room 113E1, Washington, DC 20202– Printing Office (GPO), toll free, at 1– • Funding Your Education. 5345. Telephone: (202) 377–4030. 888–293–6498; or in the Washington, • 2005–2006 High School Counselor’s If you use a telecommunications DC, area at (202) 512–1530. Handbook. device for the deaf (TDD), you may call You may also view this document in • A Guide to 2005–2006 SARs and the Federal Relay Service (FRS) at 1– PDF at the following site: http:// ISIRs. 800–877–8339. www.ifap.ed.gov. • 2005–2006 Federal Student Aid Individuals with disabilities may Note: The official version of this document Handbook. obtain this document in an alternative is the document published in the Federal Additional information on the format (e.g., Braille, large print, Register. Free Internet access to the official institutional reporting requirements for audiotape, or computer diskette) on edition of the Federal Register and the Code the Federal Pell Grant Program is request to the program contact person of Federal Regulations is available on GPO contained in the 2005–2006 Common listed under FOR FURTHER INFORMATION Access at: http://www.gpoaccess.gov/nara/ Origination and Disbursement (COD) CONTACT. index.html. Technical Reference, which is available at the Information for Financial Aid Electronic Access to This Document Program Authority: 20 U.S.C. 1070a, Professionals Web site at: http:// You may view this document, as well 1070b–1070b–3, 1070c–1070c–4, 1071– 1087–2, 1087a–1087j, and 1087aa–1087ii; 42 www.ifap.ed.gov. as all other documents of this U.S.C. 2751–2756b. Applicable Regulations: The Department published in the Federal following regulations apply: (1) Student Register, in text or Adobe Portable Dated: June 2, 2005. Assistance General Provisions, 34 CFR Document Format (PDF) on the Internet Theresa S. Shaw, part 668 and (2) Federal Pell Grant at the following site: http://www.ed.gov/ Chief Operating Officer, Federal Student Aid. Program, 34 CFR part 690. news/fedregister. BILLING CODE 4000–01–P
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[FR Doc. 05–11291 Filed 6–6–05; 8:45 am] electronically do not need to make a 10(a) and 16 of the Natural Gas Act BILLING CODE 4000–01–C paper filing. For paper filing, the (NGA) 15 U.S.C. 717–717w and the original and 14 copies of such Natural Gas Policy Act of 1978 (NGPA) comments should be submitted to the (15 U.S.C. 3301–3432). The NGA and DEPARTMENT OF ENERGY Office of the Secretary, Federal Energy NGPA authorize the Commission to Regulatory Commission, 888 First prescribe rules and regulations requiring Federal Energy Regulatory Street, NE., Washington, DC 20426 and natural gas pipeline companies whose Commission refer to Docket No. IC05–11–000. gas was transported or stored for a fee, Documents filed electronically via the [Docket No. IC05–11–000; FERC Form 11] which exceeded 50 million dekatherms Internet must be prepared in in each of the three previous calendar Commission Information Collection WordPerfect, MS Word, Portable years to submit FERC Form 11. The Activities, Proposed Collection; Document Format, or ASCII format. To Commission implements these filing Comment Request; Extension file the document, access the requirements in the Code of Federal Commission’s Web site at http:// Regulations (CFR) under 18 CFR 260.3 April 28, 2005. www.ferc.gov and click on ‘‘Make an E- and 385.2011. AGENCY: Federal Energy Regulatory filing’’, and then follow the instructions Commission, DoE. for each screen. First time users will Although the submission of the form have to establish a user name and is quarterly, the information is reported ACTION: Notice of proposed information on a monthly basis. This permits the collection and request for comments. password. The Commission will send an automatic acknowledgement to the Commission to follow developing trends SUMMARY: In compliance with the sender’s e-mail address upon receipt of on a pipeline’s system. Gas revenues requirements of section 3506(c)(2)(a) of comments. and quantities of gas by rate schedule, the Paperwork Reduction Act of 1995 All comments may be viewed, printed transition cost from upstream pipelines, (Pub. L. 104–13), the Federal Energy or downloaded remotely via the Internet and reservation charges are reported. Regulatory Commission (Commission) is through FERC’s homepage using the This information is used by the soliciting public comment on the eLibrary link. For user assistance, Commission to assess the specific aspects of the information contact [email protected] or reasonableness of the various revenues collection described below. toll-free at (866) 208–3676. or for TTY, and cost of service items claimed in rate filings. It also provides the Commission DATES: Comments on the collection of contact (202) 502–8659. with a view of the status pipeline information are due July 28, 2005. FOR FURTHER INFORMATION CONTACT: Michael Miller may be reached by activities, allows revenue comparisons ADDRESSES: Copies of the proposed between pipelines, and provides the collection of information can be telephone at (202) 502–8415, by fax at (202) 273–0873, and by e-mail at financial status of the regulated obtained from the Commission’s website pipelines. (Http://www.ferc.gov/docs-filings/ [email protected]. elibrary.asp) or to the Federal Energy SUPPLEMENTARY INFORMATION: The Action: The Commission is requesting Regulatory Commission, Attn: Michael information collected under the a three-year extension of the current Miller, Office of the Executive Director requirements of FERC Form 11 ‘‘Natural expiration date, with no changes to the Officer, ED–33, 888 First Street NE., Gas Monthly Quarterly Statement of existing collection of data. Washington, DC 20426. Comments may Monthly Data’’ (OMB No. 1902–0032) is Burden Statement: Public reporting be filed either in paper format or used by the Commission to implement burden for this collection is estimated electronically. Those parties filing the statutory provisions of Sections as:
Number of re- Average bur- Total annual Number of respondents annually sponses per den hours per burden hours (1) respondent response × × (2) (3) (1) (2) (3)
63 4 3 756
Estimated cost burden to respondents collection of information; (5) searching Comments are invited on: (1) Whether is $39,457. (756 hours/2080 hours per data sources; (6) completing and the proposed collection of information year times $108,558 per year average per reviewing the collection of information; is necessary for the proper performance employee = $ 39,457.). The cost per and (7) transmitting, or otherwise of the functions of the Commission, respondent is $626.30. disclosing the information. including whether the information will The reporting burden includes the The estimate of cost for respondents have practical utility; (2) the accuracy of total time, effort, or financial resources is based upon salaries for professional the agency’s estimate of the burden of expended to generate, maintain, retain, and clerical support, as well as direct the proposed collection of information, disclose, or provide the information and indirect overhead costs. Direct costs including the validity of the including: (1) Reviewing instructions; include all costs directly attributable to methodology and assumptions used; (3) (2) developing, acquiring, installing, and providing this information, such as utilizing technology and systems for the administrative costs and the cost for ways to enhance the quality, utility and purposes of collecting, validating, information technology. Indirect or clarity of the information to be verifying, processing, maintaining, overhead costs are costs incurred by an collected; and (4) ways to minimize the disclosing and providing information; organization in support of its mission. burden of the collection of information (3) adjusting the existing ways to These costs apply to activities which on those who are to respond, including comply with any previously applicable benefit the whole organization rather the use of appropriate automated, instructions and requirements; (4) than any one particular function or electronic, mechanical, or other training personnel to respond to a activity. technological collection techniques or
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other forms of information technology original and 14 copies of such and improving navigation, e.g. permitting electronic submission of comments should be submitted to the transmissions and utilization of power responses. Office of the Secretary, Federal Energy over which Congress has jurisdiction. Regulatory Commission, 888 First Section 6 gives the Commission the Linda Mitry, Street, NE., Washington, DC 20426 and authority to prescribe the conditions of Deputy Secretary. refer to Docket No. IC05–510–000. licenses including the revocation or [FR Doc. E5–2880 Filed 6–6–05; 8:45 am] Documents filed electronically via the surrender of the license. Section 13 BILLING CODE 6717–01–P Internet must be prepared in defines the Commission’s authority to WordPerfect, MS Word, Portable delegate time periods for when a license Document Format, or ASCII format. To must be terminated if project DEPARTMENT OF ENERGY file the document, access the construction has not begun. Surrender Federal Energy Regulatory Commission’s Web site at http:// of a license may be desired by a licensee Commission www.ferc.gov and click on ‘‘Make an E- when a licensed project is retired or not filing’’, and then follow the instructions constructed or natural catastrophes have [Docket No. IC05–510–000; FERC–510] for each screen. First time users will damaged or destroyed the project have to establish a user name and facilities. The information collected Commission Information Collection password. The Commission will send an under the designation FERC–510 is in Activities, Proposed Collection; automatic acknowledgement to the the form of a written application for a Comment Request; Extension sender’s e-mail address upon receipt of surrender of a hydropower license. The May 6, 2005. comments. information is used by Commission staff AGENCY: Federal Energy Regulatory All comments may be viewed, printed to determine the broad impact of such Commission, DoE. or downloaded remotely via the Internet a surrender. The Commission will issue through FERC’s homepage using the a notice soliciting comments from the ACTION: Notice of proposed information eLibrary link. For user assistance, public and other agencies and conduct collection and request for comments. contact [email protected] or a careful review of the prepared SUMMARY: In compliance with the toll-free at (866) 208–3676; or for TTY, application before issuing an order for requirements of section 3506(c)(2)(a) of contact (202) 502–8659. Surrender of a License. The order is the the Paperwork Reduction Act of 1995 FOR FURTHER INFORMATION CONTACT: result of an analysis of the information (Pub. L. 104–13), the Federal Energy Michael Miller may be reached by produced, i.e., economic, environmental Regulatory Commission (Commission) is telephone at (202) 502–8415, by fax at concerns, etc., which are examined to soliciting public comment on the (202) 273–0873, and by e-mail at determine if the application for specific aspects of the information [email protected]. surrender is warranted. The order implements the existing regulations and collection described below. SUPPLEMENTARY INFORMATION: The is inclusive for surrender of all types of DATES: Comments on the collection of information collected under the hydropower licenses issued by FERC information are due August 5, 2005. requirements of FERC–510 ‘‘Application and its predecessor, the Federal Power ADDRESSES: Copies of sample filings of for Surrender of Hydropower License’’ Commission. The Commission the proposed collection of information (OMB No. 1902–0068) is used by the implements these mandatory filing can be obtained from the Commission’s Commission to implement the statutory requirements in the Code of Federal Web site (http://www.ferc.gov/docs- provisions of sections 4(e) and 6 and 13 Regulations (CFR) under 18 CFR 6.1– filings/elibrary.asp) or to the Federal of the Federal Power Act (FPA) 16 6.4. Energy Regulatory Commission, Attn: U.S.C. sections 797(e), 799 and 806. Michael Miller, Office of the Executive Section 4(e) gives the Commission Action: The Commission is requesting Director Officer, ED–33, 888 First Street authority to issue licenses for the a three-year extension of the current NE., Washington, DC 20426. Comments purposes of constructing, operating and expiration date, with no changes to the may be filed either in paper format or maintaining dams, water conduits, existing collection of data. electronically. Those parties filing reservoirs, powerhouses, transmissions Burden Statement: Public reporting electronically do not need to make a lines or other power project works burden for this collection is estimated paper filing. For paper filing, the necessary or convenient for developing as:
Number of respondents annually Number of responses per re- Average burden hours per re- Total annual burden hours spondent sponse × × (1) (2) (3) (1) (2) (3)
8 1 10 80
Estimated cost burden to respondents purposes of collecting, validating, The estimate of cost for respondents is $4,175. (80 hours/2080 hours per year verifying, processing, maintaining, is based upon salaries for professional times $108,558 per year average per disclosing and providing information; and clerical support, as well as direct employee = $4,175). The cost per (3) adjusting the existing ways to and indirect overhead costs. Direct costs respondent is $522.00. comply with any previously applicable include all costs directly attributable to The reporting burden includes the instructions and requirements; (4) providing this information, such as total time, effort, or financial resources training personnel to respond to a administrative costs and the cost for expended to generate, maintain, retain, collection of information; (5) searching information technology. Indirect or disclose, or provide the information data sources; (6) completing and overhead costs are costs incurred by an including: (1) Reviewing instructions; reviewing the collection of information; organization in support of its mission. (2) developing, acquiring, installing, and and (7) transmitting, or otherwise These costs apply to activities which utilizing technology and systems for the disclosing the information. benefit the whole organization rather
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than any one particular function or Applicants: Midwest Independent Docket Numbers: ER05–1023–000. activity. Transmission System Operator, Inc. Applicants: TransAlta Centralia Comments are invited on: (1) Whether Description: Midwest Independent Generation L.L.C. the proposed collection of information Transmission System Operator, Inc. Description: TransAlta Centralia is necessary for the proper performance submits a Large Generator Generation, L.L.C. submits FERC Electric of the functions of the Commission, Interconnection Agreement among the Rate Schedule 2 for Reactive Supply including whether the information will PPM Energy, Inc., itself, and Northern and Voltage Control from Generation have practical utility; (2) the accuracy of States Power Company dba Xcel Energy Sources Service that it provides to the agency’s estimate of the burden of under ER05–1018. Bonneville Power Administration from the proposed collection of information, Filed Date: 5/25/2005. its Big Hanaford generating plant under including the validity of the Accession Number: 20050526–0217. ER05–1023. methodology and assumptions used; (3) Comment Date: 5 p.m. Eastern Time Filed Date: 5/26/2005. ways to enhance the quality, utility and on Wednesday, June 15, 2005. Accession Number: 20050531–0124. clarity of the information to be Docket Numbers: ER05–1019–000. Comment Date: 5 p.m. Eastern Time collected; and (4) ways to minimize the Applicants: Nevada Power Company. on Thursday, June 16, 2005. burden of the collection of information Description: Nevada Power Company Docket Numbers: ER05–1024–000. on those who are to respond, including submits a Notice of Cancellation of an Applicants: PJM Interconnection, the use of appropriate automated, Agreement for Long-Term Firm Point-to- L.L.C. electronic, mechanical, or other Point Transmission Service Between Description: PJM Interconnection, technological collection techniques or Nevada Power Company and Duke L.L.C. submits an executed other forms of information technology Energy Trading and Marketing—Service interconnection service agreement with e.g. permitting electronic submission of Agreement No. 97. Eastern Landfill Gas, LLC and Baltimore responses. Filed Date: 5/26/2005. Gas and Electric Company under ER05– 1024. Linda Mitry, Accession Number: 20050531–0123. Comment Date: 5 p.m. Eastern Time Filed Date: 5/25/2005. Deputy Secretary. on Thursday, June 16, 2005. Accession Number: 20050531–0130. [FR Doc. E5–2881 Filed 6–6–05; 8:45 am] Docket Numbers: ER05–1020–000. Comment Date: 5 p.m. Eastern Time BILLING CODE 6717–01–P Applicants: WASP Energy, LLC. on Wednesday, June 15, 2005. Description: WASP Energy, LLC’s Docket Numbers: ER05–1025–000. petition for acceptance of initial rate Applicants: California Independent DEPARTMENT OF ENERGY schedule (FERC Electric Rate Schedule System Operator Corporation. Federal Energy Regulatory 1), waivers and blanket authority under Description: California Independent Commission ER05–1020. System Operator Corporation submits Filed Date: 5/26/2005. Amendment No. 70 to its ISO Tariff Notice of Filings Accession Number: 20050531–0122. under ER05–1025. Comment Date: 5 p.m. Eastern Time Filed Date: 5/25/2005. Wednesday, June 1, 2005. on Thursday, June 16, 2005. Accession Number: 20050531–0131. Take notice that the Commission Docket Numbers: ER05–1021–000. Comment Date: 5 p.m. Eastern Time received the following electric rate Applicants: Pacific Gas & Electric on Wednesday, June 15, 2005. filings: Company. Docket Numbers: ER05–1026–000. Docket Numbers: ER04–170–006; Description: Pacific Gas and Electric Applicants: American Electric Power ER05–1027–000. Company submits Agreements between Services Corporation. Applicants: MxEnergy Electric Inc. Pacific Gas and Electric Company and Description: American Electric Power Description: MxEnergy Electric Inc the City and County of San Francisco Service Corporation on behalf of the submits its Substitute Second Revised PUC for the interconnection of the San AEP Eastern Operating Companies Sheet No. 3, which revises paragraph 8 Francisco Airport Electric Reliability submits a letter agreement, dated 4/28/ of its FERC Electric Rate Schedule No. Project under ER05–1021. 05, to the Amended & Restated Cost 1 and a Notice of Succession of Total Filed Date: 5/26/2005. Allocation Agreement with Buckeye Gas & Electricity (PA) Inc.’s Rate Accession Number: 20050531–0134. Power, Inc under ER05–1026. Schedule No. 2. Comment Date: 5 p.m. Eastern Time Filed Date: 5/26/2005. Filed Date: 5/26/2005. on Thursday, June 16, 2005. Accession Number: 20050531–0129. Accession Number: 20050531–0127. Docket Numbers: ER05–1022–000. Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time Applicants: ISO New England Inc. on Thursday, June 16, 2005. on Thursday, June 16, 2005. and New England Power Pool. Docket Numbers: ER98–1150–005; Docket Numbers: ER05–644–002. Description: ISO New England, Inc. EL05–87–001. Applicants: PSEG Energy Resources & and New England Power Pool submits Applicants: Tucson Electric Power Trade LLC and PSEG Fossil Fossil LLC. proposed market rule changes to modify Company. Description: PSEG Energy Resources the existing methodology for allocating Description: Tucson Electric Power Co & Trade LLC submits Substitute Original surplus Transmission Congestion submits the second of two filings in Sheet No. 1, et al., to FERC Electric Revenue and to conform certain market compliance with FERC’s 4/14/05 Order, Tariff, Original Volume 1 in compliance monitoring definitions used in Market an updated generation market power with FERC’s Order issued 4/25/05 under Rule 1 to the terminology that has been analysis under ER98–1150 et al. ER05–644. adopted as part of the RTO process Filed Date: 5/25/2005. Filed Date: 5/25/2005. under ER05–1022. Accession Number: 20050531–0125. Accession Number: 20050531–0128. Filed Date: 5/25/2005. Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time Accession Number: 20050531–0120. on Wednesday, June 15, 2005. on Wednesday, June 15, 2005. Comment Date: 5 p.m. Eastern Time Docket Numbers: ER99–2251–003; Docket Numbers: ER05–1018–000. on Wednesday, June 15, 2005. ER99–2252–004; ER98–2491–009; ER97–
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705–014; ER02–2080–003; ER02–2546– service, please email Applicants state that a copy of the 004; ER99–3248–006; ER99–1213–004 [email protected]. or call application was served upon the and ER01–1526–004. (866) 208–3676 (toll free). For TTY, call California Public Utilities Commission. Applicants: Consolidated Edison (202) 502–8659. Comment Date: 5 p.m. June 14, 2005. Company of New York, Inc., et al. 2. EME Homer City Generation L.P., Description: ConEdison Companies Linda Mitry, Metropolitan Life Insurance Company, submits amendments to their market- Deputy Secretary. General Electric Capital Corporation based rate tariff, in accordance with [FR Doc. E5–2882 Filed 6–6–05; 8:45 am] FERC’s May 5, 2005 Order under ER99– BILLING CODE 6717–01–P [Docket No. EC05–87–000] 2251 et al. Take notice that on May 24, 2005, Filed Date: 5/25/2005. EME Homer City Generation L.P., (EME Accession Number: 20050527–0023. DEPARTMENT OF ENERGY Homer City) Metropolitan Life Comment Date: 5 p.m. Eastern Time Insurance Company (MetLife) and Federal Energy Regulatory on Wednesday, June 15, 2005. General Electric Capital Corporation Commission Any person desiring to intervene or to (GECG) filed with the Commission an protest in any of the above proceedings application pursuant to section 203 of must file in accordance with Rules 211 [Docket No. EC05–86–000, et al.] the Federal Power Act for authorization of an indirect disposition of and 214 of the Commission’s Rules of La Paloma Generating Company, LLC, jurisdictional facilities whereby Practice and Procedure (18 CFR 385.211 et al.; Electric Rate and Corporate interests in a passive, non-power-selling and 385.214) on or before 5 p.m. Eastern Filings time on the specified comment date. It lessor of the Homer City generating is not necessary to separately intervene May 31, 2005. station in Pennsylvania will be again in a subdocket related to a transferred by GECG or an affiliate to The following filings have been made compliance filing if you have previously MetLife or an affiliate. with the Commission. The filings are intervened in the same docket. Protests Comment Date: 5 p.m. June 14, 2005. listed in ascending order within each will be considered by the Commission docket classification. 3. PJM Interconnection L.L.C. in determining the appropriate action to be taken, but will not serve to make 1. La Paloma Generating Company, [Docket Nos. ER04–742–005 and EL04–105– protestants parties to the proceeding. LLC; La Paloma Holding Company, 003] Anyone filing a motion to intervene or LLC; and La Paloma Acquisition Co, Take notice that on May 24, 2005, protest must serve a copy of that LLC PJM Interconnection, L.L.C. (PJM) document on the Applicant. In reference submitted revisions to the PJM Open [Docket No. EC05–86–000] to filings initiating a new proceeding, Access Transmission Tariff (PJM Tariff) interventions or protests submitted on Take notice that on May 24, 2005, La and the Amended and Restated or before the comment deadline need Paloma Generating Company, LLC Operating Agreement of PJM not be served on persons other and the (Genco), La Paloma Holding Company, Interconnection, L.L.C. (Operating Applicant. LLC (La Paloma Holding), and La Agreement) in compliance with the The Commission encourages Paloma Acquisition Co, LLC (La Paloma Commission’s May 9, 2005 order in electronic submission of protests and Acquisition Co) (collectively, Docket Nos. EL04–742–004 and ER04– interventions in lieu of paper, using the Applicants) submitted an application 105–002, 111 FERC ¶ 61,187 (May 9 FERC Online links at http:// pursuant to section 203 of the Federal Order), concerning the allocation of www.ferc.gov. To facilitate electronic Power Act for authorization of a auction revenue rights and financial service, persons with Internet access disposition of jurisdictional facilities, transmission rights. PJM states that the who will eFile a document and/or be whereby La Paloma Holding proposes to submitted revisions reflect an effective listed as a contact for an intervenor transfer to La Paloma Acquisition Co date of March 8, 2005, consistent with must create and validate an one-hundred percent of the membership the effective date previously established eRegistration account using the interests in Genco, which owns and in this proceeding. eRegistration link. Select the eFiling operates an approximately 1,022 MW PJM states that copies of this filing link to log on and submit the combined cycle generating facility in were served upon all persons on the intervention or protests. the California Independent System service list in these dockets, as well as Persons unable to file electronically Operator (CAISO) market, and certain all PJM members, and each state electric should submit an original and 14 copies related rights and assets. Genco states utility regulatory commission in the of the intervention or protest to the that the sale of the membership interests PJM region. PJM also states that the Federal Energy Regulatory Commission, in Genco from La Paloma Holding to La requested waiver of the Commission’s 888 First St. NE., Washington, DC Paloma Acquisition Co will constitute posting requirements to permit 20426. the indirect disposition of certain electronic service on the PJM members The filings in the above proceedings jurisdictional facilities and assets held and state commissions. are accessible in the Commission’s by Genco, including a market-based rate Comment Date: 5 p.m. on June 14, eLibrary system by clicking on the wholesale power sales tariff on file with 2005. appropriate link in the above list. They the Commission, certain 4. Black Hills Power, Inc. are also available for review in the interconnection facilities associated Commission’s Public Reference Room in with the generating facility, and related [Docket No. ER05–924–001] Washington, DC. There is an FPA jurisdictional accounts, books and Take notice that on May 24, 2005, eSubscription link on the Web site that records. Genco also states that the Black Hills Power, Inc. (Black Hills enables subscribers to receive email Applicants seek expedited review of the Power), submitted an amendment to its notification when a document is added application and request confidential April 29, 2005 filing in ER05–924–000. to a subscribed dockets(s). For treatment of certain documents Comment Date: 5 p.m. on June 14, assistance with any FERC Online submitted therewith. 2005.
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5. El Paso Electric Company eSubscription link on the Web site that Dated: June 3, 2005. [Docket No. ES05–30–000] enables subscribers to receive email Jeanette C. Brinkley, notification when a document is added Secretary, Farm Credit Administration Board. Take notice that on May 25, 2005, El to a subscribed docket(s). For assistance Paso Electric Company (El Paso) with any FERC Online service, please *Session Closed—Exempt pursuant to 5 U.S.C. 552b(c)(8) and (9). submitted an application pursuant to email [email protected] or section 204 of the Federal Power Act call (866) 208–3676 (toll free). For TYY, [FR Doc. 05–11375 Filed 6–3–05; 12:04 pm] seeking authorization to undertake call (202) 502–8659. BILLING CODE 6705–01–P certain transactions and assume obligations associated with the Linda Mitry, refinancing of pollution control bonds Deputy Secretary. (PCBs) issued for the benefit of El Paso. [FR Doc. E5–2883 Filed 6–6–05; 8:45 am] FEDERAL RESERVE SYSTEM El Paso also requests a waiver from BILLING CODE 6717–01–P the Commission’s competitive bidding Formations of, Acquisitions by, and and negotiated placement requirements Mergers of Bank Holding Companies at 18 CFR 34.2. FARM CREDIT ADMINISTRATION Comment Date: 5 p.m. Eastern Time The companies listed in this notice have applied to the Board for approval, on June 17, 2005. Sunshine Act Meeting; Farm Credit pursuant to the Bank Holding Company Administration Board Standard Paragraph Act of 1956 (12 U.S.C. 1841 et seq.) Any person desiring to intervene or to AGENCY: Farm Credit Administration. (BHC Act), Regulation Y (12 CFR Part protest in any of the above proceedings SUMMARY: Notice is hereby given, 225), and all other applicable statutes must file in accordance with Rules 211 pursuant to the Government in the and regulations to become a bank and 214 of the Commission’s Rules of Sunshine Act (5 U.S.C. 552b(e)(3)), of holding company and/or to acquire the Practice and Procedure (19 CFR 385.211 the regular meeting of the Farm Credit assets or the ownership of, control of, or and 385.214) on or before 5 p.m. Eastern Administration Board (Board). the power to vote shares of a bank or time on the specified comment date. It DATE AND TIME: The regular meeting of bank holding company and all of the is not necessary to separately intervene the Board will be held at the offices of banks and nonbanking companies again in a subdocket related to a the Farm Credit Administration in owned by the bank holding company, compliance filing if you have previously McLean, Virginia, on June 9, 2005, from including the companies listed below. intervened in the same docket. Protests 9 a.m. until such time as the Board The applications listed below, as well will be considered by the Commission concludes its business. as other related filings required by the Board, are available for immediate in determining the appropriate action to FOR FURTHER INFORMATION CONTACT: inspection at the Federal Reserve Bank be taken, but will not serve to make Jeanette C. Brinkley, Secretary to the indicated. The application also will be protestants parties to the proceeding. Farm Credit Administration Board, available for inspection at the offices of Anyone filing a motion to intervene or (703) 883–4009, TTY (703) 883–4056. protest must serve a copy of that the Board of Governors. Interested ADDRESSES: document on the Applicant. In reference Farm Credit persons may express their views in to filings initiating a new proceeding, Administration, 1501 Farm Credit Drive, writing on the standards enumerated in interventions or protests submitted on McLean, Virginia 22102–5090. the BHC Act (12 U.S.C. 1842(c)). If the or before the comment deadline need SUPPLEMENTARY INFORMATION: Parts of proposal also involves the acquisition of not be served on persons other than the this meeting of the Board will be open a nonbanking company, the review also Applicant. to the public (limited space available), includes whether the acquisition of the The Commission encourages and parts will be closed to the public. nonbanking company complies with the electronic submission of protests and In order to increase the accessibility to standards in section 4 of the BHC Act interventions in lieu of paper, using the Board meetings, persons requiring (12 U.S.C. 1843). Unless otherwise FERC Online links at http:// assistance should make arrangements in noted, nonbanking activities will be www.ferc.gov. To facilitate electronic advance. The matters to be considered conducted throughout the United States. service, persons with Internet access at the meeting are: Additional information on all bank who will eFile a document and/or be Open Session holding companies may be obtained listed as a contact for an intervenor from the National Information Center must create and validate an A. Approval of Minutes website at www.ffiec.gov/nic/. eRegistration account using the • May 12, 2005 (Open) Unless otherwise noted, comments eRegistration link. Select the eFiling regarding each of these applications link to long on and submit the B. Reports must be received at the Reserve Bank intervention or protests. • Farm Credit System Building indicated or the offices of the Board of Persons unable to file electronically Association Quarterly Report Governors not later than June 30, 2005. should submit an original and 14 copies • Young, Beginning, and Small A. Federal Reserve Bank of Atlanta of the intervention or protests to the Farmer Reporting Results—2004 What (Andre Anderson, Vice President) 1000 Federal Energy Regulatory Commission, Trends are Emerging? Peachtree Street, N.E., Atlanta, Georgia 888 First Street, NE., Washington, DC • FCA Implements GIS Mapping 30303: 20426. Software 1. Mountain Valley Bancshares, Inc., The filings in the above proceedings Cleveland, Georgia; to become a bank are accessible in the Commission’s C. New Business—Regulations holding company by acquiring 100 eLibrary system by clicking on the • Farmer Mac Non-Program percent of the voting shares of Mountain appropriate link in the above list. They Investments and Liquidity—Final Rule Valley Community Bank, Cleveland, are also available to review in the Georgia. Commission’s Public Reference Room in Closed Session* B. Federal Reserve Bank of Chicago Washington, DC. There is an • OSMO Quarterly Report (Patrick M. Wilder, Assistant Vice
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President) 230 South LaSalle Street, Statement (EIS) for the proposed Master Alternatives Under Consideration Chicago, Illinois 60690-1414: Plan for the redevelopment of the St. GSA will analyze a range of Master 1. Albany Bancshares, Inc., Albany, Elizabeths (St. Es) West Campus in Plan alternatives for the St. Es West Illinois; to acquire 100 percent of the Southeast Washington, DC. GSA has Campus. In addition, as required by voting shares of Hillsdale Development initiated consultation under Section 106 NEPA, GSA will study the no action Corporation, Hillsdale, Illinois, and of the National Historic Preservation alternative under which a Master Plan thereby indirectly acquire voting shares Act, 16 U.S.C. § 470f, for the proposed will not be adopted and the site will of Old Farmers & Merchants State Bank, Master Plan. remain in its current state. As part of the Hillsdale, Illinois. C. Federal Reserve Bank of FOR FURTHER INFORMATION CONTACT: EIS, GSA will study the impacts of each Minneapolis (Jacqueline G. Nicholas, Denise Decker, NEPA Lead, General alternative on the human environment. Community Affairs Officer) 90 Services Administration, National Scoping Process Hennepin Avenue, Minneapolis, Capital Region, at (202) 205–5821. Also, In accordance with NEPA, a scoping Minnesota 55480-0291: call this number if special assistance is process will be conducted to (i) aid in 1. Menahga Bancshares, Inc., needed to attend and participate in the determining the alternatives to be Menahga, Minnesota; to merge with scoping meeting. considered and the scope of issues to be Sebeka Bancshares, Inc., Sebeka, SUPPLEMENTARY INFORMATION: The notice addressed, and (ii) identify the Minnesota, and thereby indirectly of intent is as follows: significant issues related to the acquire voting shares of Security State Notice of Intent To Prepare an proposed Master Plan for the Bank of Sebeka, Minnesota. Environmental Impact Statement for the redevelopment of the St. Es West 2. St. Joseph Bancshares Acquisitions, Proposed Master Plan for the Redevelopment Inc., St. Joseph, Minnesota; to become a Campus. Scoping will be accomplished of the St. Elizabeths West Campus in through a public scoping meeting, direct bank holding company by acquiring 100 Southeast Washington, DC percent of the voting shares of St. Joseph mail correspondence to potentially Bancshares, Inc., St. Joseph, Minnesota, The General Services Administration interested persons, agencies, and and thereby indirectly acquire First intends to prepare an Environmental organizations, and meetings with State Bank of St. Joseph, St. Joseph, Impact Statement (EIS) to analyze the agencies having an interest in the Minnesota. potential impacts resulting from proposed Master Plan. It is important D. Federal Reserve Bank of Dallas adoption and implementation of a that Federal, regional, and local (W. Arthur Tribble, Vice President) 2200 Master Plan to redevelop the St. agencies, and interested individuals and North Pearl Street, Dallas, Texas 75201- Elizabeths (St. Es) West Campus in groups take this opportunity to identify 2272: Southeast Washington, DC. GSA’s environmental concerns that should be 1. Pilot Point Bancorp, Inc., ESOP, primary purpose for this proposed addressed during the preparation of the Pilot Point, Texas; to become a bank action is to develop secure office space Draft EIS. holding company by acquiring 26.05 in the District of Columbia to GSA is also using the NEPA scoping percent of the voting shares of Pilot accommodate substantial Federal process to facilitate consultation with Point Bancorp, Inc., Pilot Point, Texas, operations. the public under Section 106 of the National Historic Preservation Act (36 and thereby indirectly acquire Background PointBank, Pilot Point, Texas. CFR Part 800 [Protection of Historic Properties]). GSA welcomes comments Board of Governors of the Federal Reserve The St. Es West Campus, formerly a System, June 1, 2005. mental health facility, consists of 176 from the public to ensure that it takes into account the effects of its action on Robert deV. Frierson, acres and 61 buildings constructed historic and cultural resources. Deputy Secretary of the Board. between the 1850s and the 1960s. The [FR Doc. 05–11211 Filed 6–6–05; 8:45 am] buildings contain approximately 1.1 Public Scoping Meeting million gross square feet of space. The BILLING CODE 6210–01–S entire site, including the brick wall The public scoping meeting will be running along Martin Luther King Jr. held on Tuesday, June 14, 2005, from Avenue, is a National Historic 6:00 p.m. to 8:30 p.m., at Birney GENERAL SERVICES Landmark. The St. Es West Campus also Elementary School (Auditorium), ADMINISTRATION contains a Civil War cemetery. From located at 2501 Martin Luther King Jr. 1953 to December 2004, St. Es West Avenue in Southeast Washington, DC. Notice of Intent to Prepare an The meeting will be an informal open Environmental Impact Statement Campus was controlled by the U.S. Department of Health and Human house, where visitors may come, receive AGENCY: General Services Services (HHS). information, and give comments. GSA Administration (GSA), National Capital will publish notices in the Washington GSA has identified a need to Post, Washington Times, and a local Region. redevelop the West Campus because (i) ACTION: Notice. community newspaper announcing this there is an immediate need for secure meeting approximately two weeks prior SUMMARY: Pursuant to the requirements Federal office space in the National to the meeting. GSA will prepare a of the National Environmental Policy Capital Region; (ii) the site is within the scoping report, available to the public Act of 1969 (NEPA) , 42 U.S.C. § 4321– District of Columbia boundary and that will summarize the comments 4347, the Council on Environmental proximate to the Central Employment received for incorporation into the EIS Quality Regulations (40 CFR parts Area (CEA); and (iii) the existing site is and Section 106 processes. 1500—1508), GSA Order PBS P 1095.1F currently underutilized. Written Comments: Agencies and the (Environmental considerations in To implement this redevelopment, public are encouraged to provide decision-making, dated October 19, GSA is preparing a Master Plan that will written comments on the scoping issues 1999), and the GSA Public Buildings guide the long-term use and in addition to or in lieu of giving their Service NEPA Desk Guide, GSA plans to redevelopment of the St. Es West comments at the public scoping prepare an Environmental Impact Campus. meeting. Written comments regarding
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the environmental analysis for the • Eligible organizations include Section VI. Award Administration redevelopment of the St. Es West NPCR funded cancer registries, or their Information Campus must be postmarked no later designated agent, meeting United States 1. Award Notices than July 5, 2005, and sent to the Cancer Statistics (USCS) publication 2. Administrative and National Policy criteria for the diagnosis year 2000 or Requirements following address: General Services A. Cooperative Agreement Terms and Administration, National Capital 2001. For-profit organizations, non- Conditions of Award Region, Attention: Denise Decker, NEPA profit organizations, public and private 1. Principal Investigator Rights and Lead, 301 7th Street, SW, Room 7600, institutions, units of State government, Responsibilities Washington, DC 20407. Fax (202) 708— and domestic institutions that can 2. NCCDPHP Responsibilities 7671. [email protected]. provide evidence of an active 3. Collaborative Responsibilities 4. Arbitration Process Dated: May 31, 2005. collaboration with their respective NPCR funded cancer registry are also 3. Reporting Patricia T. Ralston, eligible to apply. Section VII. Agency Contact(s) Acting Director, Portfolio Management. • Individuals with the skills, 1. Scientific/Research Contact(s) [FR Doc. 05–11242 Filed 6–6–05; 8:45 am] knowledge, and resources necessary to 2. Peer Review Contact(s) 3. Financial/ Grants Management BILLING CODE 6820–23–S carry out the proposed research are Contact(s) invited to work with their institution to Section VIII. Other Information—Required develop an application for support. Federal Citations DEPARTMENT OF HEALTH AND Individuals from underrepresented HUMAN SERVICES racial and ethnic groups as well as I. Funding Opportunity Description individuals with disabilities are always The purpose of this RFA is to support Centers for Disease Control and encouraged to apply for CDC funding research focused on two priority Prevention announcements. cancers, female breast cancer and • An applicant may submit only one prostate cancer, which will build on and Breast and Prostate Cancer Data application under this funding expand the work of two Patterns of Care Quality and Patterns of Care Study announcement. • (PoC) projects conducted collaboratively Announcement Type: New. Applications must be prepared by CDC and selected state cancer Funding Opportunity Number: CDC– using the ‘‘Application for a DHHS registries. This program addresses the RFA–DP05–071. Public Health Service Grant’’ (PHS 398, ‘‘Healthy People 2010’’ focus areas of Catalog of Federal Domestic rev. 9/04). The PHS 398 instructions Access to Quality Health Services and Assistance Number: 93.395. and forms are available at http:// Cancer. Key Dates: grants.nih.gov/grants/forms.htm. Measurable outcomes of the program • Telecommunications for the hearing Release Date: May 11, 2005. will be in alignment with the following Letters of Intent Receipt Date: May 27, impaired is available at: TTY 301–451– performance goals for the National 2005. 0088 Center for Chronic Disease Prevention Application Receipt Date: June 28, 2005. Table of Contents and Health Promotion (NCCDPHP): (1) Earliest Anticipated Start Date: August To improve the quality of state-based Part I Overview Information cancer registries, (2) to increase early 31, 2005. Section I. Funding Opportunity Description Expiration Date: June 29, 2005. 1. Research Objectives detection of breast and cervical cancer Due Dates for E.O. 12372: Section II. Award Information by building nationwide programs in Not applicable. 1. Mechanism(s) of Support breast and cervical prevention, 2. Funds Available especially among high-risk, underserved I. Funding Opportunity Description Section III. Eligibility Information women, and (3) to expand community- Executive Summary 1. Eligible Applicants based breast and cervical cancer A. Eligible Institutions screening and diagnostic services to low • This RFA will support up to six B. Eligible Individuals registries to conduct enhanced 2. Cost Sharing or Matching income, medically underserved women. surveillance and operations research 3. Other—Special Eligibility Criteria For women diagnosed with cancer or utilizing population-based data from the Section IV. Application and Submission pre-cancer, ensure access to treatment National Program of Cancer Registries Information services. 1. Address to Request Application (NPCR). The research will focus on Information 1. Research Objectives improving the completeness, timeliness, 2. Content and Form of Application Nature of Research Opportunity quality, and use of first course of Submission treatment and stage data, and on 3. Submission Dates and Times The research priorities of the Centers describing patterns of care for female A. Receipt and Review and Anticipated for Disease Control and Prevention’s breast cancer and prostate cancer. A Start Dates (CDC) Cancer Surveillance Branch, long term goal is to strengthen the 1. Letter of Intent within the Division of Cancer B. Sending an Application to the CDC Prevention and Control, are to describe capacity of NPCR funded state cancer C. Application Processing registries to use their data to improve 4. Intergovernmental Review the burden of priority cancers and aspects of cancer care. 5. Funding Restrictions patterns of care among minority, rural, • It is estimated that approximately 6. Other Submission Requirements and other populations and to assess the $2 million will be available each year to Section V. Application Review Information quality of these data in NPCR funded fund up to six registries. A total of 1. Criteria cancer registries. This RFA builds on approximately $6 million will be 2. Review and Selection Process and extends the work of two patterns of available for the entire three year project A. Additional Review Criteria care (PoC) projects conducted B. Additional Review Considerations period. collaboratively by CDC and selected • C. Sharing Research Data This funding opportunity will use D. Sharing Research Resources state cancer registries. It solicits the cooperative agreement funding 3. Anticipated Announcement and Award applications in the form of cooperative mechanism (CDC U58). Dates agreements to utilize data from NPCR
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funded cancer registries to perform Additionally, CDC funded three NPCR II. Award Information enhanced surveillance and research cancer registries for a second PoC study, regarding patterns of care in female Ovarian Cancer Treatment Patterns and 1. Mechanism(s) of Support breast and prostate cancers. Outcomes (PoC Part 3), which was This funding opportunity will use the Recently published statistics from designed to describe the first course of CDC (U58) cooperative agreement award United States Cancer Statistics: 2001 treatment for ovarian cancer and to mechanism. The award recipient will be Incidence and Mortality, a joint assess the effects of physician specialty solely responsible for planning, publication of CDC and the National on the quality of staging and treatment directing, and executing the proposed Cancer Institute in collaboration with data. the North American Association of project. In the cooperative agreement Central Cancer Registries, revealed that Scientific Knowledge To Be Achieved mechanism, the Principal Investigator prostate cancer is the leading cancer Through This Funding Opportunity retains the primary responsibility and dominant role for planning, directing, diagnosed in men in the United States The research to be supported by this and executing the proposed project, (U.S.) and breast cancer is the most RFA will focus on improving the with NCCDPHP staff being substantially common form of cancer diagnosed in completeness, timeliness, quality, and involved as a partner with the Principal U.S. women. Prostate and female breast use of recent first course of treatment cancers are the second leading cause of and stage data and on describing Investigator, as described under the cancer death among men and women. patterns of care for two priority cancers, Section VI. 2. Administrative Requirements, ‘‘Cooperative Agreement Background female breast cancer and prostate cancer. Additional research on the Terms and Conditions of Award’’. In 1992, Congress established the patterns of care for patients diagnosed This funding opportunity uses the NPCR by enacting the Cancer Registries with these two cancers, and continued Amendment Act (Public Law 102–515). just-in-time budget concepts. It requires assessment of the quality and This law, generally, authorizes the summary budget information provided Centers for Disease Control and completeness of relevant data collected in the application package, including Prevention to provide funds to states by population-based cancer registries, the budget justification and support, and territories to: improve existing has the potential to influence adherence written in the form, format, and the cancer registries; plan and implement to established standards of cancer care. level of detail as specified in the budget registries where they do not exist; A long term goal of conducting such guidelines. You may access the latest develop model legislation and studies is to further develop the version of the budget guidelines by regulations to enhance the viability of capacity of NPCR funded registries to accessing the following Web site: http:/ registry operations; set data standards engage in advanced cancer surveillance /www.cdc.gov/od/pgo/funding/ for data completeness, timeliness, and activities that will contribute to budgetguide2004.htm. improving aspects of cancer care. quality; provide training for registry This RFA is a one-time solicitation. personnel; and help establish a Experimental Approach and Research The total project period for an computerized reporting and data- Objectives application submitted in response to processing system. this RFA may not exceed three years The Institute of Medicine (IOM) Using a standardized protocol for data reported in 1999 that some individuals collection by the participating NPCR 2. Funds Available with cancer were not receiving the care funded registries, enhanced surveillance known to be the most effective for their and research will be conducted targeting The NCCDPHP intends to commit cancer diagnoses. Subsequently in 2000, female breast cancer and prostate approximately $2 million in FY 2005 to the IOM strongly recommended that cancer. The four broad research fund up to six new competitive information from existing data systems, objectives of this RFA are to: cooperative agreements in response to specifically NPCR, be used to assess the (1) Determine the proportion of this RFA. An applicant may request a quality of cancer care and variations in patients who received the recognized project period of up to three years and adherence to established standards of standard of care for stages I through III a maximum budget for total costs of care in the United States. In addition, female breast cancer. $333,000 per year. Approximately $6 the 2000 IOM report also documented (2) Describe the treatment patterns for million will be available for the entire the need to assess the quality of data in all stages of prostate cancer. three years. NPCR funded registries for measuring (3) Determine the tumor, patient, The earliest anticipated start date is variations in the delivery of cancer care. provider, and health system August 31, 2005, with three In 2001, CDC responded to the IOM characteristics that are associated with performance periods between report by funding the Breast, Prostate, different cancer treatments for female September 2005 and September 2008. and Colon Data Quality and Patterns of breast and prostate cancers. Care study (PoC Part 1) involving eight Although the financial plans of the NPCR funded cancer registries. This (4) Assess the completeness and NCCDPHP provide support for this study was designed to assess the quality quality of the stage and first course of program, awards pursuant to this of data collected by population-based treatment data that are collected by funding opportunity are contingent registries and to determine the cancer registries for female breast and upon the availability of funds and the proportion of patients diagnosed within prostate cancers. receipt of a sufficient number of a certain time period who received the These four research objectives will meritorious applications. Continuation established, stage-specific standard of focus on the two most recent diagnosis of awards will be conditioned on the care. The eight NPCR funded cancer years available, as determined by the availability of funds, evidence of registries also participated in Phase II of Steering Committee and defined in the satisfactory progress by the recipient (as the international CONCORD study, study protocol. documented in required reports), and which sought to measure and explain See Section VIII, Other Information— the determination that continued differences in cancer survival between Required Federal Citations, for policies funding is in the best interest of the Europe, Canada, and the United States. related to this announcement. Federal Government.
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Section III. Eligibility Information single-field and inter-field computerized 705–5711 or through the Web site at edits. Funding will be contingent on http://www.dnb.com/us/. The D&B 1. Eligible Applicants registry data meeting USCS publication number should be entered on line 11 of 1. A. Eligible Institutions criteria for diagnosis year 2002. the face page of the PHS 398 form. You may submit an application if 1.b. NPCR funded cancer registries The title and number of this funding your organization has any of the that have a minimum of 2,000 female opportunity must be typed on line 2 of following characteristics: breast cancer cases (stages I through III) the face page of the application form • Public nonprofit organizations and 2,000 prostate cancer cases (all and the YES box must be checked. • stages) over the two year period, as Private nonprofit organizations 3. Submission Dates and Times • For profit organizations demonstrated in Appendix E of the 2000 • Universities and 2001 publications of USCS. Applications must be received on or • Colleges 2. Public or private institutions that before the receipt date described below • Research institutions can demonstrate an effective and well- (Section IV.3.A). • Hospitals defined working relationship between • State and local governments or their the institution and the NPCR funded 3.A. Receipt, Review, and Anticipated Bona Fide Agents (this includes the cancer registry in that state. Evidence Start Dates District of Columbia, the must be provided in the form of a Letter Letter of Intent Receipt Date: May 27, Commonwealth of Puerto Rico, the of Support from the NPCR funded 2005. Virgin Islands, the Commonwealth of registry describing the strong working Application Receipt Date: June 38, the Northern Marianna Islands, relationship and assuring access to data 2005. American Samoa, Guam, the Federated for the period of the study. States of Micronesia, the Republic of the Investigators may submit only one Peer Review Date: Week of July 25, Marshall Islands, and the Republic of application under this funding 2005. Palau) announcement. If your application is Earliest Anticipated Start Date: A Bona Fide Agent is an agency/ incomplete or non-responsive to the August 31, 2005. organization identified by the state as special eligibility requirements listed in Explanation of Deadlines: All eligible to submit an application under this section, it will not be entered into requested information must be received the state eligibility in lieu of a state the review process and you will be in the CDC Procurement and Grants application. If you are applying as a notified that your application did not Office by 4 p.m. eastern time on the bona fide agent of a state or local meet the submission requirements. deadline date. government, you must provide a letter Applicants that request a funding If you submit your LOI or application from the state or local government as amount greater than the award ceiling by the United States Postal Service or documentation of your status. Place this will be considered non-responsive. commercial delivery service, you must documentation behind the first page of Note: Title 2 of the United States Code ensure that the carrier will be able to your application form. Section 1611 states that an organization guarantee delivery by the closing date Institution eligibility is limited to described in Section 501(c)(4) of the Internal and time. If CDC receives your those with broad research capacity and Revenue Code that engages in lobbying submission after closing due to: (1) access to the data sources and activities is not eligible to receive Federal carrier error, when the carrier accepted populations necessary to conduct the funds constituting an award, grant, or loan. the package with a guarantee for research activities of the RFA. delivery by the closing date and time, or Section IV. Application and Submission 1. B. Eligible Individuals (2) significant weather delays or natural Information disasters, you will be given the Any individual with the skills, 1. Address To Request Application opportunity to submit documentation of knowledge, and resources necessary to Information the carrier’s guarantee. If the carry out the proposed research is The PHS 398 application instructions documentation verifies a carrier invited to work with their institution to problem, CDC will consider the develop an application for support. are available at PHS 398 Application Form in an interactive format. submission as having been received by Individuals from underrepresented the deadline. racial and ethnic groups as well as Applicants must use the currently This announcement is the definitive individuals with disabilities are always approved version of the PHS 398. If you guide on LOI and application content, encouraged to apply for CDC programs. do not have access to the Internet, or if you have difficulty accessing the forms submission address, and deadlines. It 2. Cost Sharing or Matching on-line, you may contact the CDC supersedes information provided in the Cost sharing is not required. Procurement and Grants Office application instructions. If your Technical Information Management application does not meet the deadline 3. Other-Special Eligibility Criteria Section (PGO–TIM) staff at: 770/488– above, it will not be eligible for review The following criteria will be used to 2700, e-mail: [email protected]. and will be discarded. You will be determine an applicant’s eligibility: notified that you did not meet the 1.a. NPCR funded cancer registries, or 2. Content and Form of Application submission requirements. their designated agent, meeting United Submission CDC will not notify you upon receipt States Cancer Statistics (USCS) Applications must be prepared using of your submission. If you have a publication criteria for either diagnosis the most current PHS 398 research grant question about the receipt of your LOI year 2000 or 2001. Publication criteria application instructions and forms. or application, first contact your courier. are demonstrated through case Applications must have a D&B Data If you still have a question, contact the ascertainment of ≥90% with ≤5% of Universal Numbering System (DUNS) PGO-TIM staff at: 770/488–2700. Before cases being ascertained by death number as the universal identifier when calling, please wait two to three days certificate only, ≤5% of cases missing applying for Federal grants or after the submission deadline. This will race, ≤3% of cases missing sex and age, cooperative agreements. The D&B allow time for submissions to be and ≥97% of cases passing a set of number can be obtained by calling 866/ processed and logged.
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3.A.1. Letter of Intent described above (Section IV.3.A.). If an approval by the Office of Management CDC requests that prospective application is received after that date, it and Budget (OMB) under the Paperwork applicants send a Letter of Intent (LOI). will be returned to the applicant Reduction Act. without review. Although an LOI is not required, is not Section V. Application Review Upon receipt, applications will be binding, and does not enter into the Information review of a subsequent application, the evaluated for completeness by the information that it contains allows Procurement and Grants Office (PGO) 1. Criteria NCCDPHP staff to estimate the potential and responsiveness by the NCCDPHP. Applicants are required to provide reviewer workload and plan the review. Incomplete and non-responsive measures of effectiveness that will LOI format: applications will not be reviewed. demonstrate the accomplishment of the • Two page maximum, one side only. 4. Intergovernmental Review various identified objectives of the • One-inch margins, 12 point font, Executive Order 12372 does not apply cooperative agreement. Measures of single spaced. to this program. effectiveness must relate to the LOI contents: performance goals stated in Section I. • Number and title of this funding 5. Funding Restrictions Funding Opportunity Description of this opportunity (RFA or PA) Restrictions, which must be taken into announcement. Measures must be • Descriptive title of proposed account while writing your budget, are objective and quantitative, and must research. as follows: measure the intended outcome. These • Name, address, e-mail, and • Funds relating to the conduct of measures of effectiveness must be telephone number of the Principal research will not be released until the submitted with the application and will Investigator. appropriate assurances and Institutional be an element of evaluation. • Names of other key personnel. Review Board approvals are in place. The goals of CDC-supported research • Participating Institutions. • Reimbursement of pre-award costs are to advance the understanding of The LOI should be mailed, faxed, or is not allowed. biological systems, improve the control e-mailed by May 27, 2005, to: Office of If you are requesting indirect costs in and prevention of disease and injury, Extramural Research, NCCDPHP, your budget, you must include a copy and enhance health. In the written Centers for Disease Control and of your indirect cost rate agreement. If comments, reviewers will be asked to Prevention, 4770 Buford Highway, NE., your indirect cost rate is a provisional evaluate the application in order to Mailstop K–92, Atlanta, GA 30341. rate, the agreement should be less than judge the likelihood that the proposed Telephone: 770/488–8390. Fax: 770/ 12 months of age. research will have a substantial impact 488–8046. E-mail: [email protected]. on the pursuit of these goals. 6. Other Submission Requirements The following will be considered in 3.B. Sending an Application The general instructions in the PHS making funding decisions: Applications must be prepared using 398 should be followed; however, • Scientific merit of the proposed the PHS 398 research grant application applications must also include the project as determined by peer review. instructions and forms as described following: • Availability of funds. above. Submit a signed, typewritten 1. A work plan describing activities to • Relevance of program priorities. original of the application, including the meet the project goals and objectives Preference may be given to checklist, and two signed photocopies and demonstrating the capability to applications based on evidence of in one package to: Technical abstract the required number of cases. accessibility to populations with racial/ Information Management–CDC–RFA 2. A personnel plan describing the ethnic and socio-economic diversity DP–05–071, CDC Procurement and team members’ roles in carrying out the necessary to achieve socio-economic Grants Office, 2920 Brandywine Road, objectives of the project, including the and racial/ethnic representation of the Atlanta, GA 30341. planned percent of effort for team United States population. At the time of submission, three members. 2. Review and Selection Process additional copies of the complete 3. A timeline that adequately application, including the appendix demonstrates appropriate distribution of Upon receipt, applications will be material, must be sent to: Brenda Colley project activities over the three year reviewed for completeness by PGO and Gilbert, Ph.D., M.S.P.H., Centers for study period. responsiveness by the NCCDPHP. Disease Control and Prevention, Office 4. Letters of support from Incomplete and/or non-responsive of Extramural Research, NCCDPHP, collaborating partners that provide applications will not be reviewed. 4770 Buford Highway, NE., Mailstop K– evidence of an active collaboration and Applicants will be notified that their 92, Atlanta, GA 30341. commitment to work as full partners. application did not meet submission FedEX Address: Brenda Colley This announcement requires requirements. Gilbert, Ph.D., M.S.P.H., Office of summary budget information provided Applications that are complete and Extramural Research, NCCDPHP, Koger in the application package, including responsive to the RFA will be evaluated Center/Williams Building, 2877 the budget justification and support, for scientific and technical merit by an Brandywine Road, Room 5516, Atlanta, written in the form, format, and the external peer review group convened by GA 30341. level of detail as specified in the budget the NCCDPHP in accordance with the For further assistance contact the CDC guidelines. You may access the latest review criteria stated below. Procurement and Grants Office, version of the budget guidelines by As part of the initial merit review, all Technical Information Management accessing the following Web site: http:/ applications will: Section: telephone 770/488–2700, e- /www.cdc.gov/od/pgo/funding/ • Undergo a selection process in mail [email protected]. budgetguide2004.htm. which only those applications deemed Projects that involve the collection of to have the highest scientific merit, 3.C. Application Processing information from ten or more generally the top half of applications Applications must be received on or individuals and funded by cooperative under review, will be discussed and before the application receipt date agreement will be subject to review and assigned a priority score.
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• Receive a written critique within 30 4. Investigators. Are the investigators differences when warranted; and (4) a days after the review. appropriately trained and well suited to statement as to whether the plans for Scored applications will receive a carry out this work? Is the work recruitment and outreach for study second level of review by the NCCDPHP proposed appropriate to the experience participants include the process of Secondary Review Committee. The level of the principal investigator and establishing partnerships with review process will follow the policy other researchers? Does the investigative community(ies) and recognition of requirements as stated in the GPD 2.04 team bring complementary and mutual benefits. (http://198.102.218.46/doc/gpd204.doc). integrated expertise to the project (if 2. B. Additional Review Considerations The following review criteria will be applicable)? addressed and considered in assigning Does the project team have expertise Budget: The reasonableness of the the overall score, weighting them as in cancer surveillance research or proposed budget and the requested appropriate for each application. Note provide evidence of recent preparation period of support in relation to the that an application does not need to be that would enhance its successful proposed research. The priority score strong in all categories to be judged involvement in such a project? should not be affected by the evaluation likely to have major scientific impact 5. Environment. Does the scientific of the budget. and thus deserve a high priority score. environment in which the work will be 3. Anticipated Announcement and For example, an investigator may done contribute to the probability of Award Dates propose to carry out important work success? Do the proposed studies that by its nature is not innovative but benefit from unique features of the CDC expects to make awards on or is essential to move a field forward. scientific environment, or subject about August 31, 2005. 1. Significance. Does this study populations, or employ useful Section VI. Award Administration address an important problem? If the collaborative arrangements? Is there Information aims of the application are achieved, evidence of institutional support? how will scientific knowledge or 1. Award Notices 2. A. Additional Review Criteria clinical practice be advanced? What will After the peer review of the be the effect of these studies on the Collaboration. Does the applicant application is completed, the Principal concepts, methods, technologies, provide evidence of an active Investigator will receive a written treatments, services, or preventative collaboration and commitment to work critique called a Summary Statement. interventions that drive this field? as full partners? Do current or past Those applications under consideration 2. Approach. Are the conceptual or cancer surveillance projects involve for funding will receive a call or email clinical framework, design, methods, successful collaborations between the from the Grants Management Specialist and analyses adequately developed, researchers and the partnering public or (GMS) of the Procurements and Grants well integrated, well reasoned, and private institutions? Office (PGO) with additional appropriate to the aims of the project? In addition to the above criteria, the information. Does the applicant acknowledge following items will continue to be A formal notification in the form of a potential problem areas and consider considered in the determination of Notice of Award (NoA) will be provided alternative tactics? scientific merit and the priority score: to the applicant organization. The NoA Does the work plan describe activities Protection of Human Subjects from signed by the Grants Management that meet the project goals and Research Risk. Federal regulations (45 Officer (GMO) is the authorizing objectives and demonstrate the CFR part 46) require that applications document. This document will be capability to abstract the required and proposals involving human subjects mailed and/or emailed to the number of cases? Does the personnel be evaluated and that they reference the institutional fiscal officer identified in plan describe the team members’ roles risk to the subjects, the adequacy of the application. in carrying out the objectives of the protection against these risks, the Selection of the application for award project? Are the PI’s and other team potential benefits of the research to the is not an authorization to begin members’ percent effort adequate for the subjects and others, and the importance performance. Any cost incurred before conduct of the study? Is a timeline of the knowledge gained or to be gained receipt of the NoA is at the recipient’s provided that demonstrates appropriate (http://www.hhs.gov/ohrp/ risk. See also Section IV.5. Funding distribution of project activities over the humansubjects/guidance/45cfr46.htm). Restrictions. three-year study period? Does the The involvement of human subjects and 2. Administrative and National Policy applicant provide evidence of the protections from research risk relating to Requirements capacity to engage in advanced cancer their participation in the proposed surveillance activities that will research will be assessed (see the The Code of Federal Regulations 45 ultimately contribute to improving Research Plan, Section E on Human CFR part 74 and part 92 have details aspects of cancer care? Subjects in the PHS Form 398). about policy requirements. For more 3. Innovation. Is the project original Inclusion of Women, Minorities and information on the Code of Federal and innovative? For example: Does the Children in Research. Does the Regulations, see the National Archives project challenge existing paradigms or application adequately address the CDC and Records Administration at the clinical practice; address an innovative Policy requirements regarding the following Internet address: http:// hypothesis or critical barrier to progress inclusion of women, ethnic, and racial www.access.gpo.gov/nara/cfr/cfr-table- in the field? Does the project develop or groups in the proposed research? This search.html. The following additional employ novel concepts, approaches, includes: (1) The proposed plan for the requirements can be found in Section methodologies, tools, or technologies for inclusion of both sexes and racial and VIII. Other Information of this document this area? ethnic minority populations for or on the CDC Web site at the following Does the project have the potential to appropriate representation; (2) the Internet address: http://www.cdc.gov/ provide insights about patterns of care proposed justification when od/pgo/funding/ARs.htm. These will be in diverse racial, ethnic, geographic, representation is limited or absent; (3) a incorporated into the award statement socio-economic, and other special statement as to whether the design of and will be provided to the Principal populations? the study is adequate to measure Investigator, as well as to the
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appropriate institutional official, at the 4. Obtain an annual, updated local 4. Facilitate movement of the initial time of award. institutional IRB approval. research protocol through the CDC 5. Assure and maintain the Institutional Review Board (IRB), 2. A. Cooperative Agreement Terms and confidentiality of all study data. including keeping the CDC IRB abreast Conditions of Award 6. Participate actively in CDC site of protocol amendments, and facilitating The following special terms of award visits designed to support and enhance annual reviews. are in addition to, and not in lieu of, research progress and performance. 5. Participate in joint data analyses otherwise applicable OMB 7. Participate in the analyses of and interpretation and the presentation administrative guidelines, HHS grant aggregated study data and state-specific and publication of findings. administration regulations at 45 CFR data. 6. Collaborate in producing technical Parts 74 and 92 (Part 92 is applicable 8. Develop and produce technical reports and manuscripts for peer- when State and local Governments are reports or manuscripts for peer- reviewed publications, as appropriate. eligible to apply), and other HHS, PHS, reviewed publications. 7. Facilitate distribution and and CDC grant administration policies. 9. Serve as a member of the Steering dissemination of research findings. The administrative and funding Committee that will provide scientific 8. Assure and maintain the instrument used for this program will be oversight for the study. confidentiality of all study data. the cooperative agreement (CDC U58), 10. Participate in national, regional, Additionally, an agency program an ‘‘assistance’’ mechanism (rather than and local communication of study official or the NCCDPHP program an ‘‘acquisition’’ mechanism), in which development, implementation, and director will be responsible for the substantial NCCDPHP programmatic findings to public, professional, and normal scientific and programmatic involvement with the awardees is governmental organizations and stewardship of the award and will be anticipated during the performance of agencies, through written, oral, and named in the award notice. the activities. Under the cooperative electronic means. agreement, the NCCDPHP’s purpose is 11. Communicate state-specific 2. A.3. Collaborative Responsibilities to support and stimulate the recipients’ findings to the public, cancer registry, The following are areas of joint activities by involvement in, and and medical and cancer control responsibility between the award otherwise working jointly with, the communities through presentations and recipients and the NCCDPHP project award recipients in a partnership role; publications. team: it is not to assume direction, prime Awardees will retain custody of and 1. Participation in the development of responsibility, or a dominant role in the have primary rights to the data and a Steering Committee that will provide activities. Consistent with this concept, software developed under these awards, scientific oversight for the study. The the dominant role and prime subject to Government rights of access Steering Committee, the main governing responsibility resides with the awardees consistent with current HHS, PHS, and board of the study, will be composed of for the project as a whole, although CDC policies and applicable federal the Principal Investigator from each specific tasks and activities may be laws and regulations. research site and a NCCDPHP Project shared among the awardees and the 2. A.2. NCCDPHP Responsibilities Scientist serving as consultant. The role NCCDPHP as defined above. A NCCDPHP Project Scientist and of chairperson will be rotated among the 2. A.1. Principal Investigator Rights and PoC multidisciplinary team will have Principal Investigators of the research Responsibilities substantial programmatic involvement sites. The Principal Investigators must The Principal Investigator at each that is above and beyond the normal have proven evidence of leadership research site will have the primary stewardship role in awards, as described ability and be able to make an adequate responsibility to lead the efforts of the below: time commitment to the cooperative research team to: 1. Participate in the development of agreement. 1. Participate effectively within the the study by providing scientific The Steering Committee, in research collaborative group, composed consultation and technical assistance in collaboration with NCCDPHP project of investigators from each of the the development of the research scientists, will meet initially to develop research sites and CDC investigators, to questions, study design and protocol, the protocol and throughout the year to develop the specific research questions the development of sampling discuss the progress of the study. It will to be addressed in the project (Section procedures, the design of the have primary responsibility for I Research Objectives, 1–4) and the instruments, development of study developing a common research design, resulting standard research protocol, methods and procedures, including protocols and manuals of operations, including the study design, design of collection, analysis, and interpretation facilitating the conduct and monitoring the instruments, development of study of data, resolution of data quality issues, of studies, developing policies relating methods and procedures, collection, and dissemination of results. to access to patient data, and reporting analysis and interpretation of data, and 2. Facilitate communication among study results. The Steering Committee methods for dissemination of results. recipients for the development of a must approve the protocol, changes to 2. Assist in the development of a common protocol, quality control, protocols, and manuals of operation. research protocol for the Institutional interim data monitoring, data analysis, The Principal Investigator of each Review Board (IRB) review by all interpretation of findings, reporting, and research site will be responsible for the cooperating institutions participating in coordination of activities, through execution of the protocol and will the research project. The CDC IRB will written, oral, and electronic means. provide progress reports to the Steering review and approve the protocol 3. Support the recipients’ activities by Committee. The Steering Committee initially, and on at least an annual basis, collaborating and providing ongoing will establish guidelines for until the research project is completed. scientific and public health consultation presentations at scientific meetings and 3. Collaborate with other study and assistance in the development of for writing and publishing manuscripts investigators and follow common activities related to the cooperative on the findings of the study. protocols and manuals of operation agreement, including conducting site 2. Identify ways to collaborate with developed by the Steering Committee. visits to recipient institutions. cancer care providers and others to use
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research findings to improve care to 3. Peer Review Contacts Note: In addition to other applicable patients. committees, Indian Health Service (IHS) Scientific Review Administrator, 3. Establish agreements for sharing institutional review committees must also Centers for Disease Control and data. review the project if any component of IHS Prevention, Office of Extramural Each full member will have one vote. will be involved with or will support the Research, NCCDPHP, 4770 Buford Grantee members of the Steering research. If any American Indian community Highway, NE., Mailstop K–92, Atlanta, Committee will be required to accept is involved, its tribal government must also GA 30341. Telephone: 770/488–8390. E- and implement policies approved by the approve the applicable portion of that mail: [email protected]. Steering Committee. project. 4. Financial or Grants Management 3. Reporting Contacts AR–2 Requirements for Inclusion of Grantees must provide CDC with an Women and Racial and Ethnic original, plus two hard copies of the Lucy Picciolo, Procurements and Minorities in Research Grants Office, Centers for Disease following reports: It is the policy of the Centers for 1. Interim progress report, (use form Control and Prevention, Koger Office Park, Colgate Building, Mailstop E–14, Disease Control and Prevention (CDC) PHS 2590, OMB Number 0925–0001, and the Agency for Toxic Substances rev. 5/2001 as posted on the CDC Atlanta, GA 30341–5539. Telephone: 770/488–2683. E-mail: [email protected]. and Disease Registry (ATSDR) to ensure website) no less than 90 days before the that individuals of both sexes and the end of the budget period. The progress Section VIII. Other Information various racial and ethnic groups will be report will serve as your non-competing included in CDC/ATSDR-supported continuation application and must Required Federal Citations research projects involving human contain the following elements: AR–1 Human Subjects Requirements subjects, whenever feasible and a. Current Budget Period Activities appropriate. Racial and ethnic groups Objectives. If the proposed project involves research on human subjects, the are those defined in OMB Directive No. b. Current Budget Period Financial 15 and include American Indian or Progress. applicant must comply with the Department of Health and Human Alaska Native, Asian, Black or African c. New Budget Period Program Services (DHHS) Regulations (Title 45 American, Hispanic or Latino, Native Proposed Activity Objectives. Code of Federal Regulations Part 46) Hawaiian or Other Pacific Islander. d. Budget. regarding the protection of human Applicants shall ensure that women, e. Measures of Effectiveness. research subjects. All awardees of CDC racial and ethnic minority populations f. Additional Requested Information. grants and cooperative agreements and are appropriately represented in 2. Annual Progress Report, due 90 their performance sites engaged in applications for research involving days after the end of the budget period. human subjects research must file an human subjects. Where clear and 3. Financial status report, no more assurance of compliance with the compelling rationale exist that inclusion than 90 days after the end of the budget Regulations and have continuing is inappropriate or not feasible, this period. reviews of the research protocol by situation must be explained as part of 4. Final financial and performance appropriate institutional review boards. the application. This policy does not reports, no more than 90 days after the In order to obtain a Federalwide apply to research studies when the end of the project period. Assurance (FWA) of Protection for investigator cannot control the race, These reports must be mailed to the Human Subjects, the applicant must ethnicity, and/or sex of subjects. Further Grants Management Specialist listed in complete an on-line application at the guidance to this policy is contained in the ‘‘Agency Contacts’’ section of this Office for Human Research Protections the Federal Register, Vol. 60, No. 179, announcement. (OHRP) Web site or write to the OHRP pages 47947–47951, and dated Friday, Section VII. Agency Contacts for an application. OHRP will verify that September 15, 1995. the Signatory Official and the Human We encourage your inquiries AR–9 Paperwork Reduction Act Subjects Protections Administrator have concerning this funding opportunity Requirements completed the OHRP Assurance and welcome the opportunity to answer Training/Education Module before questions from potential applicants. Under the Paperwork Reduction Act, approving the FWA. Existing Multiple Inquiries may fall into three areas: projects that involve the collection of Project Assurances (MPAs), Cooperative Scientific/research, peer review, and information from ten or more Project Assurances (CPAs), and Single financial or grants management issues: individuals and funded by a grant or a Project Assurances (SPAs) remain in full cooperative agreement will be subject to 1. General Questions effect until they expire or until review and approval by the Office of Technical Information Management December 31, 2003, whichever comes Management and Budget (OMB). first. Section, CDC Procurement and Grants AR–10 Smoke-Free Workplace Office, 2920 Brandywine Road, Atlanta, To obtain a FWA contact the OHRP at: Requirements GA 30341. Telephone: 770/488–2700. E- http://ohrp.osophs.dhhs.gov/ mail: [email protected]. irbasur.htm. Or: CDC strongly encourages all If your organization is not Internet- recipients to provide a smoke-free 2. Scientific/Research Contacts active, please obtain an application by workplace and to promote abstinence Brenda Colley Gilbert, PhD, M.S.P.H., writing to: Office for Human Research from all tobacco products. Public Law Centers for Disease Control and Protections (OHRP), Department of 103–227, the Pro-Children Act of 1994, Prevention, Office of Extramural Health and Human Services, 6100 prohibits smoking in certain facilities Research, NCCDPHP, 4770 Buford Executive Boulevard, Suite 3B01, MSC that receive Federal funds in which Highway, NE., Mailstop K–92, Atlanta, 7501, Rockville, Maryland 20892–7507. education, library, day care, health care, GA 30341. Telephone: 770/488–8390. E- (For express or hand delivered mail, use or early childhood development mail: [email protected]. ZIP code 20852.) services are provided to children.
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AR–11 Healthy People 2010 The provisions are not intended to AR–15 Proof of Non-profit Status prohibit all interaction with the Proof of nonprofit status must be CDC is committed to achieving the legislative branch, or to prohibit health promotion and disease submitted by private nonprofit educational efforts pertaining to public prevention objectives of ‘‘Healthy organizations with the application. Any health. Clearly there are circumstances People 2010,’’ a national activity to of the following is acceptable evidence when it is advisable and permissible to reduce morbidity and mortality and of nonprofit status: (a) A reference to the provide information to the legislative improve the quality of life. For the applicant organization’s listing in the conference copy of ‘‘Healthy People branch in order to foster Internal Revenue Service’s (IRS) most 2010,’’ visit the Internet site: http:// implementation of prevention strategies recent list of tax-exempt organizations www.health.gov/healthypeople. to promote public health. However, it described in section 501(c)(3) of the IRS would not be permissible to influence, Code; (b) a copy of a currently valid IRS AR–12 Lobbying Restrictions directly or indirectly, a specific piece of tax exemption certificate; (c) a statement Applicants should be aware of pending legislation. It remains from a State taxing body, State Attorney restrictions on the use of HHS funds for permissible to use CDC funds to engage General, or other appropriate State lobbying of Federal or State legislative in activity to enhance prevention; Official certifying that the applicant bodies. Under the provisions of 31 collect and analyze data; publish and organization has a nonprofit status and U.S.C. 1352, recipients (and their sub- disseminate results of research and that none of the net earnings accrue to tier contractors) are prohibited from surveillance data; implement prevention any private shareholders or individuals; using appropriated Federal funds (other strategies; conduct community outreach (d) a certified copy of the organization’s than profits from a Federal contract) for services; provide leadership and certificate of incorporation or similar lobbying Congress or any Federal training, and foster safe and healthful document that clearly establishes agency in connection with the award of environments. nonprofit status; (e) any of the above proof for a State or national parent a particular contract, grant, cooperative Recipients of CDC grants and organization and a statement signed by agreement, or loan. This includes cooperative agreements need to be the parent organization that the grants/cooperative agreements that, in careful to prevent CDC funds from being applicant organization is a local whole or in part, involve conferences for used to influence or promote pending nonprofit affiliate. which Federal funds cannot be used legislation. With respect to conferences, directly or indirectly to encourage public events, publications, and AR–16 Security Clearance participants to lobby or to instruct ‘‘grassroots’’ activities that relate to Requirement participants on how to lobby. specific legislation, recipients of CDC All individuals who will be In addition, no part of CDC funds should give close attention to performing work under a grant or appropriated funds, shall be used, other isolating and separating the appropriate cooperative agreement in a CDC-owned than for normal and recognized use of CDC funds from non-CDC funds. or leased facility (on-site facility) must executive-legislative relationships, for CDC also cautions recipients of CDC receive a favorable security clearance, publicity or propaganda purposes, for funds to be careful not to give the and meet all security requirements. This the preparation, distribution, or use of appearance that CDC funds are being means that all awardee employees, any kit, pamphlet, booklet, publication, used to carry out activities in a manner fellows, visiting researchers, interns, radio, television, or video presentation that is prohibited under Federal law. etc., no matter the duration of their stay designed to support or defeat legislation AR–14 Accounting System at CDC must undergo a security pending before the Congress or any clearance process. State or local legislature, except in Requirements presentation to the Congress or any AR–22 Research Integrity The services of a certified public State or local legislature itself. No part accountant licensed by the State Board The signature of the institution of the appropriated funds shall be used of Accountancy or the equivalent must official on the face page of the to pay the salary or expenses of any application submitted under this grant or contract recipient, or agent be retained throughout the project as a part of the recipient’s staff or as a Program Announcement is certifying acting for such recipient, related to any compliance with the Department of activity designed to influence legislation consultant to the recipient’s accounting personnel. These services may include Health and Human Services (DHHS) or appropriations pending before the regulations in title 42 part 50, subpart A, Congress or any State or local the design, implementation, and maintenance of an accounting system entitled ‘‘Responsibility of PHS legislature. Awardee and Applicant Institutions for that will record receipts and Any activity designed to influence Dealing with and Reporting Possible expenditures of Federal funds in action in regard to a particular piece of Misconduct in Science.’’ accordance with accounting principles, pending legislation would be The regulation places several Federal regulations, and terms of the considered ‘‘lobbying.’’ That is lobbying requirements on institutions receiving cooperative agreement or grant. for or against pending legislation, as or applying for funds under the PHS Act well as indirect or ‘‘grass roots’’ Capability Assessment that are monitored by the DHHS Office lobbying efforts by award recipients that of Research Integrity’s (ORI) Assurance are directed at inducing members of the It may be necessary to conduct an on- Program. For examples: public to contact their elected site evaluation of some applicant Section 50.103(a) of the regulation representatives at the Federal or State organization’s financial management states: ‘‘Each institution that applies for levels to urge support of, or opposition capabilities prior to or immediately or receives assistance under the Act for to, pending legislative proposals is following the award of the grant or any project or program which involves prohibited. As a matter of policy, CDC cooperative agreement. Independent the conduct of biomedical or behavioral extends the prohibitions to lobbying audit statements from a Certified Public research must have an assurance with respect to local legislation and Accountant (CPA) for the preceding two satisfactory to the Secretary (DHHS) that local legislative bodies. fiscal years may also be required. the applicant: (1) Has established an
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administrative process, that meets the a. In a timely manner. DEPARTMENT OF HEALTH AND requirements of this subpart, for b. Completely, and as accurately as HUMAN SERVICES reviewing, investigating, and reporting possible. allegations of misconduct in science in Centers for Disease Control and connection with PHS-sponsored c. To facilitate the broader Prevention biomedical and behavioral research community. conducted at the applicant institution or d. Developed in accordance with CDC Incidence, Natural History, and Quality sponsored by the applicant; and (2) Will policy on Releasing and Sharing Data, of Life of Diabetes in Youth comply with its own administrative April 16, 2003, http://www.cdc.gov/od/ Part I—Overview Information process and the requirements of this foia/policies/sharing.htm, and in full subpart.’’ compliance with the 1996 Health Department of Health and Human Section 50.103(b) of the regulation Insurance Portability and Services states that: ‘‘An applicant or recipient Accountability Act (HIPPA), (where Issuing Organization institution shall make an annual applicable), The Office of Management submission to the [ORI] as follows: (1) Centers for Disease Control and The institution’s assurance shall be and Budget Circular A110, (2000) Prevention (CDC), (http://www.cdc. submitted to the [ORI], on a form revised 2003, http://www.whitehouse. gov/). gov/omb/query.html?col=omb&qt= prescribed by the Secretary, * * * and Participating Organizations updated annually thereafter * * * (2) Releasing+and+Sharing+of+Data and An institution shall submit, along with Freedom of Information Act (FOIA) Centers for Disease Control and its annual assurance, such aggregate http://www.4.law.cornell.edu/uscode/5/ Prevention (CDC), (http://www.cdc. information on allegations, inquiries, 5/552/html. gov/). National Institutes of Health (NIH), and investigations as the Secretary may Applications must include a copy of (http://www.nih.gov/). prescribe.’’ An additional policy is the applicant’s Data Release Plan. added in the year 2000 that ‘‘requires Applicants should provide CDC with Components of Participating research institutions to provide training appropriate documentation on the Organizations in the responsible conduct of research to reliability of the data. Applications all staff engaged in research or research National Center for Chronic Disease submitted without the required Plan training with PHS funds. Prevention and Health Promotion may be ineligible for award. Award will (NCCDPHP), (http://www.cdc.gov/ AR–24 Health Insurance Portability be made when reviewing officials have nccdphp/), Division of Diabetes and Accountability Act Requirements approved an acceptable Plan. The Translation (DDT), (http://www.cdc.gov/ Recipients of this grant award should successful applicant and the Program diabetes/). note that pursuant to the Standards for Manager will determine the National Institute of Diabetes and Privacy of Individually Identifiable documentation format. CDC Digestive and Kidney Diseases (NIDDK), Health Information promulgated under recommends data is released in the form (http://www.niddk.nih.gov/). the Health Insurance Portability and closest to micro data and one that will Title: Incidence, Natural History, and Accountability Act (HIPAA) (45 CFR preserve confidentiality. Quality of Life of Diabetes in Youth. parts 160 and 164) covered entities may Announcement Type: New. disclose protected health information to Authority and Regulations Request For Applications (RFA) public health authorities authorized by Number: RFA–DP–05–069. This program is described in the Catalog of Federal Domestic law to collect or receive such Catalog of Federal Domestic Assistance information for the purpose of Assistance Number: 93.945. at http://www.cfda.gov/ and is not preventing or controlling disease, Key Dates: Release Date: May 11, subject to the intergovernmental review injury, or disability, including, but not 2005. requirements of Executive Order 12372 limited to, the reporting of disease, Letters of Intent Receipt Date: May 25, injury, vital events such as birth or or Health Systems Agency review. 2005. death, and the conduct of public health Awards are made under the Application Receipt Date: June 24, surveillance, public health authorization of 399B of the Public 2005. investigations, and public health Health Service Act (PHS Act), 42 U.S.C. Earliest Anticipated Start Date: interventions. The definition of a public 280e, 399C of the PHS Act, 42 U.S.C. August 31, 2005. Expiration Date: June 25, 2005. health authority includes a person or 280e–1, 399D of the PHS Act, 42 U.S.C. Due Dates for E.O. 12372: Not entity acting under a grant of authority 280e–2, 317(k)(2) of the PHS Act, 42 Applicable. from or contract with such public U.S.C. 247b(k)(2), and 301(a) of the PHS agency. CDC considers this project a Act, 42 U.S.C. 241(a). All awards are Additional Overview Content public health activity consistent with subject to the terms and conditions, cost Executive Summary the Standards for Privacy of principles, and other considerations Individually Identifiable Health described in the NIH Grants Policy • This RFA has two components, A Information and CDC will provide Statement. The NIH Grants Policy and B: successful recipients a specific grant of Statement can be found at http:// Component A solicits applications for public health authority for the purposes grants.nih.gov/grants/policy/policy.htm. conducting multi-center, population- of this project. based research studies aimed at: Dated: May 31, 2005. assessing the incidence and secular AR–25 Release and Sharing of Data William P. Nichols, trends of diabetes in youth; enhancing The Data Release Plan is the Grantee’s Director, Procurement and Grants Office, our knowledge of the natural history of assurance that the dissemination of any Centers for Disease Control and Prevention. diabetes and its complications in and all data collected under the CDC [FR Doc. 05–11254 Filed 6–6–05; 8:45 am] children; conducting research on health data sharing agreement will be released BILLING CODE 4163–18–P care utilization, processes of care, and as follows: quality of life of youth with diabetes;
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and developing and validating 3. Submission Dates and Times factors of diabetes mellitus with onset in classification schemes of diabetes in A. Receipt and Review and Anticipated childhood and adolescence. A second youth suitable for public health Start Dates component of this RFA is the funding of 1. Letter of Intent a data management, analysis, and study surveillance. B. Sending an Application to the CDC Component B solicits applications for C. Application Processing Coordinating Center (CC) that will a study Coordinating Center (CC) to 4. Intergovernmental Review collaborate with award recipients and provide the data management and 5. Funding Restrictions the NCCDPHP. analysis to support this multi-center 6. Other Submission Requirements Background research study. Section V. Application Review Information • The participating organizations 1. Criteria Diabetes mellitus, a leading cause of plan on contributing $4.1 million in FY 2. Review and Selection Process end-stage renal disease, blindness, non- 2005 to fund up to six new cooperative A. Additional Review Criteria traumatic amputation, and B. Additional Review Considerations cardiovascular disease, is one of the agreement awards for Component A and C. Sharing Research Data one cooperative agreement award for D. Sharing Research Resources most prevalent severe chronic diseases Component B. 3. Anticipated Announcement and Award of childhood in the United States. Until • This funding opportunity will use Dates recently, diabetes diagnosed in children the cooperative agreement funding Section VI. Award Administration and adolescents was almost entirely mechanism (CDC U58). Information considered to be type 1, which is • Applications may be submitted by: 1. Award Notices usually attributed to the destruction of for-profit organizations, non-profit 2. Administrative and National Policy the beta cells of the pancreas leading to organizations; public or private Requirements an absolute deficiency of insulin. A. Cooperative Agreement Terms and institutions such as universities, Conditions of Award However, in the last two decades colleges, hospitals, and laboratories; 1. Principal Investigator Rights and diabetes in children and adolescents has units of State government; domestic Responsibilities emerged as a complex disorder with institutions; and faith- or community- 2. NCCDPHP Responsibilities heterogeneity in its pathogenesis, based organizations, including Native 3. Collaborative Responsibilities clinical presentation, and outcomes. American tribal organizations. 4. Arbitration Process In adolescents, especially those from • Any individuals with the skills, 3. Reporting minority race/ethnic U.S. groups, type 2 knowledge, and resources necessary to Section VII. Agency Contact(s) diabetes appears to be increasing. Type 1. Scientific/Research Contact(s) carry out the proposed research are 1 diabetes incidence is also increasing 2. Peer Review Contact(s) worldwide; however, type 1 diabetes invited to work with their institution to 3. Financial/Grants Management Contact(s) develop an application for support. Section VIII. Other Information—Required registries in the U.S. have reported Individuals from underrepresented Federal Citations conflicting results. Knowledge of the racial and ethnic groups, as well as magnitude of diabetes in adolescents individuals with disabilities, are always Part II—Full Text of Announcement and children, the rate of increase, and encouraged to apply for CDC funding Section I. Funding Opportunity the clinical course and evolution of announcements. Description different forms of diabetes in children • An applicant may submit only one and youth is limited. The purpose of this RFA is to support In 2000, CDC in collaboration with application for either Component A or research that will expand the B, but not both under this funding the National Institute of Diabetes and preliminary findings of a five year Digestive and Kidney Diseases (NIDDK) announcement. research project, SEARCH for Diabetes • Applications must be prepared of the National Institutes of Health in Youth, and enhance our using the ‘‘Application for a DHHS (NIH) under Program Announcement understanding of the natural history, Public Health Service Grant’’ (PHS 398, #00097 (Uniform Population-Based complications, and risk factors of rev. 9/04). The PHS 398 instructions Approach to Case Ascertainment, diabetes mellitus with onset in and forms are available at http:// Typology, Surveillance, and Research childhood and adolescence. This grants.nih.gov/grants/forms.htm. on Childhood Diabetes) established a 5- • Telecommunications for the hearing program addresses the ‘‘Healthy People year research project to assess the impaired is available at: TTY 301–451– 2010’’ focus area of Diabetes. burden of diabetes with onset in Measurable outcomes of the program 0088. childhood and adolescence in the U.S. will be in alignment with the following The goals of this project (now called Table of Contents performance goal for the National SEARCH for Diabetes in Youth) were to: Part I Overview Information Center for Chronic Disease Prevention (1) Identify prevalent and incident cases Part II Full Text of Announcement and Health Promotion (NCCDPHP): To of diabetes among individuals under age Section I. Funding Opportunity Description increase the capacity of state diabetes 20 years in order to estimate population 1. Research Objectives control programs to address the Section II. Award Information prevalence and incidence rates; (2) prevention of diabetes and its develop gold standards for the 1. Mechanism(s) of Support complications at the community level. 2. Funds Available classification of diabetes type in youth; Section III. Eligibility Information 1. Research Objectives and (3) describe and compare clinical 1. Eligible Applicants presentation and characteristics of type A. Eligible Institutions Nature of the Research Opportunity 1, type 2, and other types of diabetes. B. Eligible Individuals This RFA builds upon a five year Six SEARCH research centers, located 2. Cost Sharing or Matching research project, SEARCH for Diabetes across the U.S., were funded to conduct 3. Other—Special Eligibility Criteria in Youth, and solicits applications in this study. Approximately 5.5 million Section IV. Application and Submission ∼ Information the form of cooperative agreements to children aged < 20 years ( 6% of the 1. Address to Request Application conduct research that will expand the <20 years U.S. population), with wide Information preliminary findings from SEARCH and racial/ethnic, socioeconomic, and 2. Content and Form of Application enhance our understanding of the geographic representation, have been Submission natural history, complications, and risk under surveillance at the SEARCH
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research centers to estimate diabetes macro-vascular complications and their budget guidelines. You may access the prevalence and incidence by age, sex, risk factors. latest version of the budget guidelines race/ethnicity, and diabetes type. • Assess the impact of quality of by accessing the following web site: diabetes care in youth on short- and http://www.cdc.gov/od/pgo/funding/ Scientific Knowledge To Be Achieved long-term diabetes outcomes, including budgetguide2004.htm. Through this Funding Opportunity quality of life. This RFA is a one-time solicitation. Data from SEARCH reveal important • Develop and validate simple and The total project period for an preliminary findings that warrant low-cost case definition and application submitted in response to further scientific study: classification of diabetes in youth that this RFA may not exceed five years. • can be used for public health The incidence of diabetes in U.S. 2. Funds Available youth is higher at all the SEARCH sites surveillance. and among all age groups than had been Component B will establish a data The participating organizations, expected based on estimates from management, analysis, and study NCCDPHP and NIDDK, intend to previous diabetes registries. However, Coordinating Center (CC) to collaborate commit approximately $4.4 million in this does not necessarily imply that the with award recipients from Component FY 2005 to fund up to six competitive incidence has increased. Differences in A and with the NCCDPHP. The cooperative agreements under case definition and in ascertainment objectives of this research program Component A and one competitive methodology, or changes in screening under Component B are for the CC to: cooperative agreement under patterns, may partly explain the higher • Create and maintain a central data Component B in response to this RFA. incidence estimated by SEARCH. In repository and create protocols and An applicant under Component A may order to assess temporal trends, it is mechanisms to secure transmission of request a project period of up to five necessary to monitor diabetes incidence data and relevant data management years and a budget for total costs in youth for a longer period of time reports between the CC and the study between $450,000 and $650,000 per using consistent methodology for case sites. year. An applicant under Component B ascertainment and classification. • Ensure the training and certification may request a project period of up to • Some subjects not only exhibit the of staff at the study sites on five years and a budget for total costs up clinical features of type 2 diabetes, but measurement and study procedures as to $1.1 million per year. also have positive diabetes autoantibody outlined in the protocol and manual of The earliest anticipated start date is status (a characteristic of type 1 operations. August 31, 2005 with performance autoimmune diabetes). This finding • Provide statistical and other periods between September 2005 and demonstrates the limits of the current analytic support to the multi-center September 2010. diabetes classification scheme in youth study. Although the financial plans of the and the need to better understand the • Act, directly or through a NCCDPHP and NIDDK provide support natural history and long-term evolution subcontractor, as a central laboratory for for this program, awards pursuant to of diabetes in youth, especially those the analyses of specimens from the this funding opportunity are contingent with features of both type 1 and type 2 study sites and ensure rapid upon the availability of funds, evidence diabetes. transmission of the results. of satisfactory progress by the recipient This RFA will fund research that will See Section VIII, Other Information— (as documented in required reports), expand our understanding of the natural Required Federal Citations, for policies and the determination that continued history, complications, and risk factors related to this announcement. funding is in the best interest of the Federal Government. of diabetes with onset in childhood and Section II. Award Information adolescence. Additional research will Section III. Eligibility Information also provide consistency and ensure 1. Mechanism(s) of Support 1. Eligible Applicants sustainable and simplified criteria for This funding opportunity will use the case ascertainment and classification for CDC (U58) cooperative agreement award 1.A. Eligible Institutions surveillance purposes, across centers, mechanism for both Component A and You may submit an application if across populations, and over time. This B. The applicant will be solely your organization has any of the approach will constitute an essential responsible for planning, directing, and following characteristics: basis for assembling large numbers of executing the proposed project. In the • incident cases for additional clinical, Public nonprofit organizations cooperative agreement mechanism, the • Private nonprofit organizations epidemiological, health care, or Principal Investigator retains the • For profit organizations therapeutic research into childhood primary responsibility and dominant • Universities diabetes. role for planning, directing, and • Colleges Experimental Approach and Research executing the proposed project, with • Research institutions Objectives NCCDPHP staff being substantially • Hospitals involved, as a partner with the Principal • Community-based organizations Using an established standardized Investigator, as described under the • Faith-based organizations multi-center, population-based Section VI. 2. Administrative and • Federally recognized Indian tribal approach in a diverse population, the National Policy Requirements, governments objectives of this research program ‘‘Cooperative Agreement Terms and • Indian tribes under Component A are to: Conditions of Award’’. • Indian tribal organizations • Assess the incidence of diabetes This funding opportunity uses the • State and local governments or their with onset in childhood and just-in-time budget concepts. It requires Bona Fide Agents (this includes the adolescence by age, gender, and race/ the summary budget information District of Columbia, the ethnicity. provided in the application package, Commonwealth of Puerto Rico, the • Describe the natural history of including the budget justification and Virgin Islands, the Commonwealth of diabetes in youth, including the support, written in the form, format, and the Northern Mariana Islands, occurrence of diabetes micro- and the level of detail as specified in the American Samoa, Guam, the
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Federated States of Micronesia, the with other institutional partners should 2. Content and Form of Application Republic of the Marshall Islands, and be provided in the form of letters of Submission the Republic of Palau) support, publications, reports, and Applications must be prepared using A Bona Fide Agent is an agency/ abstracts. the most current PHS 398 research grant For Component B (Coordinating organization identified by the state as application instructions and forms. Center), the following criteria will be eligible to submit an application under Applications must have a D&B Data used to determine an applicant’s the state eligibility in lieu of a state Universal Numbering System (DUNS) eligibility: application. If you are applying as a number as the universal identifier when • A minimum of five years bona fide agent of a state or local applying for Federal grants or experience in directing and operating a government, you must provide a letter cooperative agreements. The D&B coordinating center for collaborative, from the state or local government as number can be obtained by calling 866/ population-based, large-scale documentation of your status. Place this 705–5711 or through the web site at epidemiological research projects that documentation behind the first page of http://www.dnb.com/us/. The D&B included coordination of multi-site your application form. number should be entered on line 11 of studies, development of training/ Institution eligibility is limited to the face page of the PHS 398 form. certification programs, monitoring site those with broad research capacity and The title and number of this funding performance and progress of studies, access to the data sources that are opportunity must be typed on line 2 of representative of the overall U.S. and providing governance support. • Experience in providing data the face page of the application form population, including the specific and the YES box must be checked. populations targeted in this management, analysis, and statistical announcement. support to multi-site research studies 3. Submission Dates and Times that included development and Applications must be received on or 1.B. Eligible Individuals management of a multi-site database, before the receipt date described below Any individual with the skills, the design, analysis, and interpretation (Section IV.3.A). knowledge, and resources necessary to of data, and the development/ carry out the proposed research is production of data summaries and 3.A. Receipt, Review and Anticipated invited to work with their institution to statistical reports. Start Dates • develop an application for support. Experience with working with Letter of Intent Receipt Date: Add Individuals from underrepresented centralized laboratories and tracking of Information Here. racial and ethnic groups as well as specimens. Application Receipt Date: Month XX, Investigators may submit one individuals with disabilities are always 2005. application for either Component A or encouraged to apply for CDC programs. Peer Review Date: Add Information B, but not both under this funding Here. 2. Cost Sharing or Matching announcement. Cost sharing is not required. If your application is incomplete or Earliest Anticipated Start Date: non-responsive to the special August 31, 2005. 3. Other—Special Eligibility Criteria requirements listed in this section, it Explanation of Deadlines: All For Component A, the following will not be entered into the review requested information must be received criteria will be used to determine an process and you will be notified that in the CDC Procurement and Grants applicant’s eligibility: your application did not meet Office by 4 p.m. Eastern Time on the • Access to a research infrastructure submission requirements. Applicants deadline date. and an established population-based that request a funding amount greater If you submit your LOI or application childhood diabetes registry. Evidence than the ceiling of the award range will by the United States Postal Service or should be provided in the form of be considered non-responsive. commercial delivery service, you must summaries of existing data collected in ensure that the carrier will be able to the last five years which shows Note: Title 2 of the United States Code guarantee delivery by the closing date Section 1611 states that an organization incidence and prevalence of diabetes in and time. If CDC receives your described in Section 501(c)(4) of the Internal submission after closing due to: (1) youth by age, sex, race/ethnicity, and Revenue Code that engages in lobbying diabetes type. In addition, a description activities is not eligible to receive Federal Carrier error, when the carrier accepted of an already established cohort of funds constituting an award, grant, or loan. the package with a guarantee for youth with diabetes including age, race/ delivery by the closing date and time, or ethnicity, socio-economic status, and Section IV. Application and Submission (2) significant weather delays or natural diabetes type distribution should be Information disasters, you will be given the included. opportunity to submit documentation of • Experience in the recruitment and 1. Address To Request Application the carrier’s guarantee. If the retention of youth with diabetes, Information documentation verifies a carrier especially those from older adolescent The PHS 398 application instructions problem, CDC will consider the populations, racial/ethnic minorities, are available at http://grants.nih.gov/ submission as having been received by and socio-economic disadvantaged grants/funding/phs398/phs398.html in the deadline. populations. an interactive format. Applicants must This announcement is the definitive • A minimum of five years use the currently approved version of guide on LOI and application content, experience collaborating with other the PHS 398. If you do not have access submission address, and deadline. It partners in a multi-center study that to the Internet, or if you have difficulty supersedes information provided in the included a common protocol, accessing the forms on-line, you may application instructions. If your development of methods and contact the CDC Procurement and application does not meet the deadline procedures, design of instruments, the Grants Office Technical Information above, it will not be eligible for review, collection, analysis and interpretation of Management Section (PGO–TIM) staff and will be discarded. You will be data, and dissemination of results. at: 770/488–2700, E-mail: notified that you did not meet the Evidence of previous collaborations [email protected]. submission requirements.
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CDC will not notify you upon receipt Ph.D., M.S.P.H., Office of Extramural commitment of the parties involved of your submission. If you have a Research, NCCDPHP, Koger Center/ including the terms of access to data question about the receipt of your LOI Williams Building, 2877 Brandywine and populations and any specified or application, first contact your courier. Road, Room 5516, Atlanta, GA 30341. limits to collaboration. If you still have a question, contact the For further assistance contact the CDC For Component B (Coordinating PGO–TIM staff at: 770/488–2700. Before Procurement and Grants Office, Center) of this RFA the general calling, please wait two to three days Technical Information Management instructions in the PHS 398 should be after the submission deadline. This will Section: Telephone 770/488–2700, E- followed; however, the applicant should allow time for submissions to be mail [email protected]. include: • processed and logged. 3.C. Application Processing Evidence that the applicant has the staffing and facilities to implement the 3.A.1. Letter of Intent Applications must be received on or before the application receipt date program at the time of the award. The CDC requests that you send a Letter of described above (Section IV.3.A.). If an cost of coordinating at least four annual Intent (LOI) if you intend to apply for application is received after that date, it meetings with the Principal this funding announcement. Although will be returned to the applicant Investigators of the study sites and the an LOI is not required, is not binding, without review. Steering Committee must be included in and does not enter into the review of a the budget. Upon receipt, applications will be subsequent application, the information • A proposed organizational structure evaluated for completeness by the that it contains allows NCCDPHP staff to for facilitating and supporting, Procurement and Grants Office (PGO) estimate the potential reviewer scientifically and administratively, a and responsiveness by the NCCDPHP. workload and plan the review. collaborative, multi-center research Incomplete and non-responsive LOI Format study. applications will not be reviewed. • • Examples of materials and methods Two page maximum, one side only 4. Intergovernmental Review used to recruit and retain children and • One-inch margins, 12 point font, Executive Order 12372 does not apply adolescents in health care research. single spaced • to this program. A description of the research LOI Contents infrastructure and physical facilities for 5. Funding Restrictions developing a central database. • Number and title of this funding Restrictions, which must be taken into • Examples of innovative analytic opportunity (RFA) • Descriptive title of proposed account while writing your budget, are approaches to evaluating research data research as follows: from multi-site studies. • Funds relating to the conduct of • • Name, address, e-mail, and Examples of detailed data research will not be released until the telephone number of the Principal management and quality control appropriate assurances and Institutional Investigator procedures, including methods for • Review Board approvals are in place. assuring privacy and maintaining Names of other key personnel • Reimbursement of pre-award costs • Participating Institutions confidentiality, methods for sending is not allowed. and receiving data, descriptions and The LOI should be mailed, faxed, or If you are requesting indirect costs in examples of data forms and emailed by Month XX, 2005 to your budget, you must include a copy questionnaires, and descriptions of of your indirect cost rate agreement. If Office of Extramural Research, software/computer programs. your indirect cost rate is a provisional NCCDPHP, Centers for Disease Control • A description of the approach that rate, the agreement should be less than will be used for soliciting and and Prevention, 4770 Buford Highway 12 months of age. NE, Mailstop K–92, Atlanta, GA 30341. evaluating proposals for centralized Phone: 770/488–8390. Fax: 770/488– 6. Other Submission Requirements laboratories and/or reading centers. 8046. E-mail: [email protected]. For Component A of this RFA the Principal Investigators must include a research plan of the activities to be 3.B. Sending an Application to the CDC general instructions in the PHS 398 should be followed; however, the conducted over the entire project period Applications must be prepared using applicant should include: and a Data Release Plan that addresses the PHS 398 research grant application • Copies of publications, reports, and the dissemination of any and all data instructions and forms as described abstracts on the epidemiology of collected in their application. This above. Submit a signed, typewritten diabetes with onset in childhood and announcement also requires summary original of the application, including the adolescence authored by the Principal budget information provided in the checklist, and two signed photocopies Investigator or co-principal investigator application package, including the in one package to: Technical and published within the last five years. budget justification and support, written Information Management—RFA DP–05– • Plans for recruiting children and in the form, format, and the level of 069, CDC Procurement and Grants adolescents with diabetes and retaining detail as specified in the budget Office, 2920 Brandywine Road, Atlanta, them for long-term follow-up, especially guidelines. You may access the latest GA 30341. those from racial/ethnic minorities and version of the budget guidelines by At the time of submission, three socio-economically disadvantaged accessing the following Web site: additional copies of the complete populations. http://www.cdc.gov/od/pgo/funding/ application, including the appendix • Strategies for the follow-up of the budgetguide2004.htm. material, must be sent to: Brenda Colley incident cases and prevalent cases of Projects that involve the collection of Gilbert, Ph.D., M.S.P.H., Office of childhood diabetes for studying the information from ten or more Extramural Research, NCCDPHP, natural history of the disease and the individuals and funded by cooperative Centers for Disease Control and long-term impact of quality of diabetes agreement will be subject to review and Prevention, 4770 Buford Highway NE, care. approval by the Office of Management Mailstop K–92, Atlanta, GA 30341. • Letters of support from and Budget (OMB) under the Paperwork FedEx Address: Brenda Colley Gilbert, collaborating partners specifying the Reduction Act.
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Section V. Application Review Secondary Review Committee. The 4. Investigators. Are the investigators Information review process will follow the policy appropriately trained and well suited to requirements as stated in the GPD 2.04 carry out this work? Is the work 1. Criteria [http://198.102.218.46/doc/gpd204.doc]. proposed appropriate to the experience Applicants are required to provide The following review criteria will be level of the principal investigator and measures of effectiveness that will addressed and considered in assigning other researchers? Does the investigative demonstrate the accomplishment of the the overall score, weighting them as team bring complementary and various identified objectives of the appropriate for each application. Note integrated expertise to the project (if cooperative agreement. Measures of that an application does not need to be applicable)? effectiveness must relate to the strong in all categories to be judged For Component A: Does the Principal performance goals stated in Section I. likely to have major scientific impact Investigator or the co-principal Funding Opportunity Description of this and thus deserve a high priority score. investigator have a history of announcement. Measures must be For example, an investigator may conducting competitively funded peer objective and quantitative, and must propose to carry out important work reviewed research on the epidemiology measure the intended outcome. These that by its nature is not innovative but of diabetes with onset in childhood and measures of effectiveness must be is essential to move a field forward. adolescence within the last five years? submitted with the application and will 1. Significance. Does this study Is there evidence of prior experience in be an element of evaluation. address an important problem? If the working collaboratively to carry out a The goals of CDC-supported research aims of the application are achieved, population-based, multi-center study or are to advance the understanding of how will scientific knowledge or standard protocol? Does the applicant’s biological systems, improve the control clinical practice be advanced? What will project team include significant and prevention of disease and injury, be the effect of these studies on the expertise in pediatric endocrinology, and enhance health. In the written concepts, methods, technologies, epidemiology of diabetes and its micro- comments, reviewers will be asked to treatments, services, or preventative and macro-vascular complications, and/ evaluate the application in order to interventions that drive this field? or health care research? judge the likelihood that the proposed 2. Approach. Are the conceptual or For Component B: Is the Principal research will have a substantial impact clinical framework, design, methods, Investigator an experienced on the pursuit of these goals. and analyses adequately developed, biostatistician, epidemiologist, The following will be considered in well integrated, well reasoned, and physician, or other professional with making funding decisions: appropriate to the aims of the project? experience in directing a coordinating • Scientific merit of the proposed Does the applicant acknowledge center for a collaborative, population- project as determined by peer review. potential problem areas and consider based, large-scale epidemiological • Availability of funds. alternative tactics? research project? Does the applicant’s • Relevance of program priorities. For Component A: Does the project team include senior statistical Preference may be given to application adequately describe: (a) The staff that will devote substantial time to applications based on evidence of population source (including size, age, developing data analysis methods for accessibility to populations with racial/ ethnicity, medical insurance status, use in the study? Does the applicant ethnic and socio-economic diversity socio-economic status, and geographic demonstrate experience in developing necessary to achieve socio-economic distribution); (b) the partnership/ materials and methods for the and racial/ethnic representation of the network(s) which will provide access to recruitment and retention of children U.S. population. information on the cases of diabetes and adolescents? within this population source; (c) access 2. Review and Selection Process 5. Environment. Does the scientific to racial and ethnic minority and socio- environment in which the work will be Upon receipt, applications will be economically disadvantaged done contribute to the probability of reviewed for completeness by PGO and populations; (d) data sources (hospital success? Do the proposed studies responsiveness by the NCCDPHP. and non-hospital) that will be used; (e) benefit from unique features of the Incomplete and/or non-responsive how the population size (denominator) scientific environment, or subject applications will not be reviewed. will be ascertained for estimation of populations, or employ useful Applicants will be notified that their incidence and secular trends over the collaborative arrangements? Is there application did not meet submission five years of study; and (f) strategies for evidence of institutional support? requirements. the follow-up of the incident cases and For Component A: Is there an Applications that are complete and prevalent cases of childhood diabetes institutional research infrastructure to responsive to the announcement will be for studying the natural history of the carry out large, complex, population- evaluated for scientific and technical disease and the long-term impact of based projects, as well as facilities to merit by an external peer review group quality of diabetes care? perform in-person visits, and handle in accordance with the review criteria For Component B: Does the applicant and process biological samples? stated below. describe the approach that would be For Component B: Is there a As part of the initial merit review, all used for soliciting and evaluating description of the applicant’s physical applications will: proposals for centralized laboratories facilities, data management and • Undergo a process in which only and/or reading centers? computer resources, and facilities for those applications deemed to have the 3. Innovation. Is the project original data retrieval and storage? highest scientific merit, generally the and innovative? For example: Does the top half of the applications under project challenge existing paradigms or 2.A. Additional Review Criteria review, will be discussed and assigned clinical practice; address an innovative In addition to the above criteria, the a priority score. hypothesis or critical barrier to progress following items will continue to be • Receive a written critique within 30 in the field? Does the project develop or considered in the determination of days after the review. employ novel concepts, approaches, scientific merit and the priority score: Scored applications will receive a methodologies, tools, or technologies for Protection of Human Subjects from second level review by the NCCDPHP this area? Research Risk: Federal regulations (45
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CFR Part 46) require that applications to the applicant organization. The NoA shared among the awardees and the and proposals involving human subjects signed by the Grants Management NCCDPHP as defined above. be evaluated and that they reference the Officer (GMO) is the authorizing 2.A.1. Principal Investigator Rights and risk to the subjects, the adequacy of document. This document will be Responsibilities protection against these risks, the mailed and/or emailed to the potential benefits of the research to the institutional fiscal official identified in The Principal Investigator under subjects and others, and the importance the application. Component A will have the primary of the knowledge gained or to be gained Selection of an application for award responsibility for: (http://www.hhs.gov/ohrp/ is not an authorization to begin 1. Participating in the Steering humansubjects/guidance/45cfr46.htm). performance. Any costs incurred before Committee, the primary governing body The involvement of human subjects and receipt of the NoA are at the recipient’s of the study and comprised of the protections from research risk relating to risk. See Also Section IV.5. Funding Principal Investigators from each study their participation in the proposed Restrictions. site (see section 2.A.3). research will be assessed (see the 2. Establishing and maintaining Research Plan, Section E on Human 2. Administrative and National Policy networks or partnerships with health Subjects in the PHS Form 398). Requirements care providers and health care systems Inclusion of Women, Minorities and The Code of Federal Regulations 45 that have access to information on cases Children in Research: Does the CFR Part 74 and Part 92 have details of childhood diabetes. application adequately address the CDC about policy requirements. For more 3. Participating in the methodology Policy requirements regarding the information on the Code of Federal and protocol development of the study, inclusion of women, ethnic, and racial Regulations, see the National Archives on-going data collection and follow up, groups in the proposed research? This and Records Administration at the quality control, data analysis and includes: (1) The proposed plan for the following Internet address: http:// interpretation, and the preparation of inclusion of both sexes and racial and www.access.gpo.gov/nara/cfr/cfr-table- peer-reviewed publications for ethnic minority populations for search.html. The following additional presentation of findings. 4. Collaborating with other study appropriate representation; (2) The requirements can be found in Section investigators and following common proposed justification when VIII. Other Information of this document protocol(s) and manuals of operations representation is limited or absent; (3) A or on the CDC website at the following developed by the Steering Committee. statement as to whether the design of Internet address: http://www.cdc.gov/ the study is adequate to measure 5. Maintaining an effective and od/pgo/funding/ARs.htm. These will be differences when warranted; and (4) A adequate management and staffing plan. incorporated into the award statement statement as to whether the plans for 6. Assuring and maintaining the and will be provided to the Principal recruitment and outreach for study confidentiality of all study data. Investigator, as well as to the participants include the process of 7. Performing joint analysis with appropriate institutional official, at the establishing partnerships with aggregate data and communicating time of award. community(ies) and recognition of scientifically via publications, abstracts, mutual benefits. Plans for the 2.A. Cooperative Agreement Terms and and presentations, the main and recruitment and retention of subjects Conditions of Award secondary findings pertaining to the will also be evaluated (see the Research goals of the study. Plan, Section E on Human Subjects in The following special terms of award Awardees of Component A will retain the PHS Form 398). are in addition to, and not in lieu of, custody of and have primary rights to otherwise applicable OMB the data and software developed under 2.B. Additional Review Considerations administrative guidelines, HHS grant these awards, subject to Government Budget: The reasonableness of the administration regulations at 45 CFR rights of access consistent with current proposed budget and the requested Parts 74 and 92 (Part 92 is applicable HHS, PHS, and CDC policies. period of support in relation to the when State and local Governments are The Principal Investigator under proposed research. The priority score eligible to apply), and other HHS, PHS, Component B (Coordinating Center) will should not be affected by the evaluation and CDC grant administration policies. have the primary responsibility for: of the budget. The administrative and funding 1. Promoting and facilitating a multi- instrument used for this program will be center and collaborative environment 3. Anticipated Announcement and the cooperative agreement (CDC U58), Award Dates among the award recipients. an ‘‘assistance’’ mechanism (rather than 2. Facilitating the formation of a CDC expects to make awards on or an ‘‘acquisition’’ mechanism), in which Steering Committee (SC) consisting of about August 31, 2005. substantial NCCDPHP programmatic the Principal Investigators from each Section VI. Award Administration involvement with the awardees is study site. The SC will have a minimum Information anticipated during the performance of of four meetings each year and regular the activities. Under the cooperative teleconferences throughout the year. 1. Award Notices agreement, the NCCDPHP’s purpose is The SC may create sub-committees as After the peer review of applications to support and stimulate the recipients’ appropriate to accomplish its goals. is complete, Principal Investigators will activities by involvement in and 3. Coordinating the statistical analyses receive a written critique called a otherwise working jointly with the and data management aspects of the Summary Statement. Those applications award recipients in a partnership role; study. The CC will have both scientific under consideration for funding will it is not to assume direction, prime and administrative functions. receive a call or e-mail from the Grants responsibility, or a dominant role in the 4. Reviewing the study protocol and Management Specialist (GMS) of the activities. Consistent with this concept, assisting in the development of the Procurements and Grants Office (PGO) the dominant role and prime statistical design for the multi-center for additional information. responsibility resides with the awardees study, analyzing study results, and A formal notification in the form of a for the project as a whole, although reviewing all manuscripts for statistical Notice of Award (NoA) will be provided specific tasks and activities may be considerations. Based on input from the
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Steering Committee, the CC will prepare reviewed publications, as appropriate. proven evidence of leadership ability and update the protocols and manuals Provide assistance for joint analysis and be able to make an adequate time of operation, provide materials to aid in with aggregate data. commitment to the cooperative patient recruitment and retention, and An External Advisory Committee agreement. ensure the training and certification of (EAC) will be appointed by the The Steering Committee will meet staff at the study sites as outlined in the NCCDPHP. It will consist of a Chair and initially to develop the protocol and study protocol. scientists with expertise in throughout the year to discuss the 5. Establishing a database to epidemiology, biostatistics, and progress of the study. It will have accommodate data generated by each diabetes. Clinical scientists primary responsibility for developing study site, developing a data knowledgeable about diabetes, but who common research designs, protocols and transmission system, and assessing data are not participating at a designated manuals of operations, facilitating the quality and completeness throughout Research Center, may be invited to conduct and monitoring of studies, and the study. The CC will provide for assess the study protocol. reporting study results. The Steering central registration of all individuals The EAC will evaluate the protocol Committee must approve the protocol, enrolled in the study. proposed by the Steering Committee changes to protocols, and manuals of 6. Establishing, directly or through based on the importance of the question operation. The Principal Investigator of subcontracts, central laboratories and to be addressed, scientific merit of the each study site will be responsible for reading centers, as determined by the experimental design, feasibility, and the execution of the protocol and will Steering Committee. consistency with NCCDPHP mission provide progress reports to the Steering 7. Providing statistical reports on the and policies. The EAC will provide a Committee. The Steering Committee progress of the study at Steering written critique of the protocol and a will also develop policies relating to Committee meetings and facilitating final recommendation to the Steering access to patient data and specimens communication among investigators, Committee and the NCCDPHP. During and ancillary studies. It will establish including scheduling meetings and the implementation phase of the guidelines for presentations at scientific conference calls, developing agendas protocol, the EAC will monitor each meetings and for writing and publishing and documenting minutes, and research center for adherence to the manuscripts on the findings of the maintaining membership rosters and study protocol and progress towards study. committee lists. study goals. The EAC will have the Each full member of the Steering The Principal Investigator of the CC authority to recommend protocol or Committee will have one vote. Grantee will be a member of the Steering procedural changes or early termination members of the Steering Committee will Committee. The Coordinating Center of any award for poor performance. be required to accept and implement The EAC is advisory to both the will not retain custody of or have policies approved by the Steering NCCDPHP and the Steering Committee. primary rights to the data and software Committee. To promote the The Chairperson of the Steering developed under this award. Primary development of a collaborative program Committee and the Principal rights to collected data will remain with among awardees, Principal Investigators Investigator of the CC will attend annual the awardees under Component A. are expected to attend Steering EAC meetings. 2.A.2. NCCDPHP Responsibilities The CDC reserves the right to Committee meetings and participate in conference calls on a regular basis. For both Component A and B, a terminate or curtail the study (or an NCCDPHP Project Scientist will have individual award) in the event of 3. Reporting substantial shortfall in participant substantial programmatic involvement Grantees must provide CDC with an recruitment, follow-up, data reporting, that is above and beyond the normal original, plus two hard copies of the quality control, or other major breach of stewardship role in awards, as described following reports: below: the protocol. The CDC can also 1. Interim progress report, (use form 1. Support the grantees’ activities by terminate or curtail the study (or an PHS 2590, OMB Number 0925–0001, collaborating and providing scientific individual award) if human subject rev. 5/2001 as posted on the CDC and public health consultation and safety or ethical issues dictate a website) no less than 90 days before the assistance in the development of premature termination. The CDC may end of the budget period. The progress activities related to the cooperative also terminate the project if there is report will serve as your non-competing agreement. failure to develop or implement a continuation application and must 2. Assist in facilitating mutually agreeable collaborative contain the following elements: communication among grantees’ for the protocol. development of common multi-center Additionally, an agency program a. Current Budget Period Activities protocol(s), quality control, interim data official or NCCDPHP program director Objectives. monitoring, data analysis, will be responsible for the normal b. Current Budget Period Financial interpretation, reporting, and scientific and programmatic Progress. coordination. stewardship of the award and will be c. New Budget Period Program 3. Ensure adherence of human named in the award notice. Proposed Activity Objectives. subjects requirements, and approval of d. Budget. 2.A.3. Collaborative Responsibilities study protocol by appropriate local e. Measures of Effectiveness. IRBs, for all cooperating institutions The Steering Committee, the main f. Additional Requested Information. participating in the research study. governing board of the study, will be 2. Annual Progress Report, due 90 4. Serve as a consultant to the comprised of the Principal Investigator days after the end of the budget period. Steering Committee. from each study site, the Principal 3. Financial status report, no more 5. Facilitate the process for obtaining Investigator of the CC, and a NCCDPHP than 90 days after the end of the budget Certificates of Confidentiality in the Project Scientist serving as consultant. period. form of 301(d), as appropriate. A chairperson will be selected from the 4. Final financial and performance 6. Collaborate to produce technical non-federal Steering Committee reports, no more than 90 days after the reports or manuscripts for peer- members. The chairperson must have end of the project period.
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5. Data collected must be released to reviews of the research protocol by situation must be explained as part of the public no later than two years after appropriate institutional review boards. the application. This policy does not the end of the budget period as specified In order to obtain a Federalwide apply to research studies when the in the application’s Data Release Plan Assurance (FWA) of Protection for investigator cannot control the race, and in accordance with CDC policy on Human Subjects, the applicant must ethnicity, and/or sex of subjects. Further Releasing and Sharing Data. complete an on-line application at the guidance to this policy is contained in These reports must be mailed to the Office for Human Research Protections the Federal Register, Vol. 60, No. 179, Grants Management Specialist listed in (OHRP) website or write to the OHRP pages 47947–47951, and dated Friday, the ‘‘Agency Contacts’’ section of this for an application. OHRP will verify that September 15, 1995. announcement. the Signatory Official and the Human AR–8 Subjects Protections Administrator have Section VII. Agency Contacts completed the OHRP Assurance Public Health System Reporting We encourage your inquiries Training/Education Module before Requirements concerning this funding opportunity approving the FWA. Existing Multiple This program is subject to the Public and welcome the opportunity to answer Project Assurances (MPAs), Cooperative Health System Reporting Requirements. questions from potential applicants. Project Assurances (CPAs), and Single Under these requirements, all Inquiries may fall into three areas: Project Assurances (SPAs) remain in full community-based non-governmental scientific/research, peer review, and effect until they expire or until organizations submitting health services financial or grants management issues: December 31, 2003, whichever comes applications must prepare and submit 1. General Questions: Technical first. the items identified below to the head Information Management Section, CDC To obtain a FWA contact the OHRP at: of the appropriate State and/or local Procurement and Grants Office, 2920 http://ohrp.osophs.dhhs.gov/ health agency(s) in the program area(s) Brandywine Road, Atlanta, GA 30341. irbasur.htm OR If your organization is that may be impacted by the proposed Telephone: 770/488–2700. E-mail: not Internet-active, please obtain an project no later than the application [email protected]. application by writing to: Office for deadline date of the Federal application. 2. Scientific/Research Contacts: Human Research Protections (OHRP), The appropriate State and/or local Brenda Colley Gilbert, Ph.D., M.S.P.H., Department of Health and Human health agency is determined by the Office of Extramural Research, Services, 6100 Executive Boulevard, applicant. The following information NCCDPHP, Centers for Disease Control Suite 3B01, MSC 7501, Rockville, must be provided: and Prevention (CDC), 4770 Buford Maryland 20892–7507. (For Express or A. A copy of the face page of the Highway NE, Mailstop K–92, Atlanta, Hand Delivered Mail, Use Zip Code application (SF 424). GA 30341. Telephone: 770/488–8390. E- 20852) B. A summary of the project that mail: [email protected]. Note: In addition to other applicable should be titled ‘‘Public Health System 3. Peer Review Contacts: Scientific committees, Indian Health Service (IHS) Impact Statement’’ (PHSIS), not exceed Review Administrator, Office of institutional review committees must also one page, and include the following: A Extramural Research, NCCDPHP, review the project if any component of IHS description of the population to be Centers for Disease Control and will be involved with or will support the served. A summary of the services to be Prevention (CDC), 4770 Buford Highway research. If any American Indian community provided. A description of the NE, Mailstop K–92, Atlanta, GA 30341. is involved, its tribal government must also coordination plans with the appropriate Telephone: 770/488–8390. E-mail: approve the applicable portion of that state and/or local health agencies. [email protected]. project. If the State and/or local health official 4. Financial or Grants Management AR–2 should desire a copy of the entire Contacts: Sylvia Dawson, Procurement application, it may be obtained from the and Grants Office, Centers for Disease Requirements for Inclusion of Women State Single Point of Contact (SPOC) or Control and Prevention (CDC), Koger and Racial and Ethnic Minorities in directly from the applicant. Office Park, Colgate Building, Mail-Stop Research E–14, 2920 Brandywine Road, Atlanta, It is the policy of the Centers for AR–9 GA 30341–5539. Telephone: 770/488– Disease Control and Prevention (CDC) Paperwork Reduction Act 2771. E-mail: [email protected]. and the Agency for Toxic Substances Requirements Section VIII. Other Information and Disease Registry (ATSDR) to ensure that individuals of both sexes and the Under the Paperwork Reduction Act, Required Federal Citations various racial and ethnic groups will be projects that involve the collection of information from 10 or more individuals AR–1 included in CDC/ATSDR-supported research projects involving human and funded by a grant or a cooperative Human Subjects Requirements subjects, whenever feasible and agreement will be subject to review and If the proposed project involves appropriate. Racial and ethnic groups approval by the Office of Management research on human subjects, the are those defined in OMB Directive No. and Budget (OMB). applicant must comply with the 15 and include American Indian or AR–10 Department of Health and Human Alaska Native, Asian, Black or African Services (DHHS) Regulations (Title 45 American, Hispanic or Latino, Native Smoke-Free Workplace Requirements Code of Federal Regulations Part 46) Hawaiian or Other Pacific Islander. CDC strongly encourages all regarding the protection of human Applicants shall ensure that women, recipients to provide a smoke-free research subjects. All awardees of CDC racial and ethnic minority populations workplace and to promote abstinence grants and cooperative agreements and are appropriately represented in from all tobacco products. Public Law their performance sites engaged in applications for research involving 103–227, the Pro-Children Act of 1994, human subjects research must file an human subjects. Where clear and prohibits smoking in certain facilities assurance of compliance with the compelling rationale exist that inclusion that receive Federal funds in which Regulations and have continuing is inappropriate or not feasible, this education, library, day care, health care,
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or early childhood development prohibited. As a matter of policy, CDC Accountant (CPA) for the preceding two services are provided to children. extends the prohibitions to lobbying fiscal years may also be required. with respect to local legislation and AR–11 AR–15 local legislative bodies. Healthy People 2010 The provisions are not intended to Proof of Non-profit Status CDC is committed to achieving the prohibit all interaction with the Proof of nonprofit status must be health promotion and disease legislative branch, or to prohibit submitted by private nonprofit prevention objectives of ‘‘Healthy educational efforts pertaining to public organizations with the application. Any People 2010,’’ a national activity to health. Clearly there are circumstances of the following is acceptable evidence reduce morbidity and mortality and when it is advisable and permissible to of nonprofit status: (a) A reference to the improve the quality of life. For the provide information to the legislative applicant organization’s listing in the conference copy of ‘‘Healthy People branch in order to foster Internal Revenue Service’s (IRS) most 2010,’’ visit the internet site: http:// implementation of prevention strategies recent list of tax-exempt organizations www.health.gov/healthypeople. to promote public health. However, it described in section 501(c)(3) of the IRS would not be permissible to influence, Code; (b) a copy of a currently valid IRS AR–12 directly or indirectly, a specific piece of tax exemption certificate; (c) a statement Lobbying Restrictions pending legislation. It remains from a State taxing body, State Attorney Applicants should be aware of permissible to use CDC funds to engage General, or other appropriate State restrictions on the use of HHS funds for in activity to enhance prevention; Official certifying that the applicant lobbying of Federal or State legislative collect and analyze data; publish and organization has a nonprofit status and bodies. Under the provisions of 31 disseminate results of research and that none of the net earnings accrue to U.S.C. Section 1352, recipients (and surveillance data; implement prevention any private shareholders or individuals; their sub-tier contractors) are prohibited strategies; conduct community outreach (d) a certified copy of the organization’s from using appropriated Federal funds services; provide leadership and certificate of incorporation or similar (other than profits from a Federal training, and foster safe and healthful document that clearly establishes contract) for lobbying congress or any environments. nonprofit status; (e) any of the above Federal agency in connection with the Recipients of CDC grants and proof for a State or national parent award of a particular contract, grant, cooperative agreements need to be organization and a statement signed by cooperative agreement, or loan. This careful to prevent CDC funds from being the parent organization that the includes grants/cooperative agreements used to influence or promote pending applicant organization is a local that, in whole or in part, involve legislation. With respect to conferences, nonprofit affiliate. public events, publications, and conferences for which Federal funds AR–16 cannot be used directly or indirectly to ‘‘grassroots’’ activities that relate to Security Clearance Requirement encourage participants to lobby or to specific legislation, recipients of CDC instruct participants on how to lobby. funds should give close attention to All individuals who will be In addition, no part of CDC isolating and separating the appropriate performing work under a grant or appropriated funds, shall be used, other use of CDC funds from non-CDC funds. cooperative agreement in a CDC-owned than for normal and recognized CDC also cautions recipients of CDC or leased facility (on-site facility) must executive-legislative relationships, for funds to be careful not to give the receive a favorable security clearance, publicity or propaganda purposes, for appearance that CDC funds are being and meet all security requirements. This the preparation, distribution, or use of used to carry out activities in a manner means that all awardee employees, any kit, pamphlet, booklet, publication, that is prohibited under Federal law. fellows, visiting researchers, interns, radio, television, or video presentation AR–14 etc., no matter the duration of their stay designed to support or defeat legislation at CDC must undergo a security pending before the Congress or any Accounting System Requirements clearance process. State or local legislature, except in The services of a certified public AR–22 presentation to the Congress or any accountant licensed by the State Board State or local legislature itself. No part of Accountancy or the equivalent must Research Integrity of the appropriated funds shall be used be retained throughout the project as a The signature of the institution to pay the salary or expenses of any part of the recipient’s staff or as a official on the face page of the grant or contract recipient, or agent consultant to the recipient’s accounting application submitted under this acting for such recipient, related to any personnel. These services may include Program Announcement is certifying activity designed to influence legislation the design, implementation, and compliance with the Department of or appropriations pending before the maintenance of an accounting system Health and Human Services (DHHS) Congress or any State or local that will record receipts and regulations in Title 42 Part 50, Subpart legislature. expenditures of Federal funds in A, entitled ‘‘Responsibility of PHS Any activity designed to influence accordance with accounting principles, Awardee and Applicant Institutions for action in regard to a particular piece of Federal regulations, and terms of the Dealing with and Reporting Possible pending legislation would be cooperative agreement or grant. Misconduct in Science.’’ considered ‘‘lobbying.’’ That is lobbying The regulation places several Capability Assessment for or against pending legislation, as requirements on institutions receiving well as indirect or ‘‘grass roots’’ It may be necessary to conduct an on- or applying for funds under the PHS Act lobbying efforts by award recipients that site evaluation of some applicant that are monitored by the DHHS Office are directed at inducing members of the organization’s financial management of Research Integrity’s (ORI) Assurance public to contact their elected capabilities prior to or immediately Program. For examples: representatives at the Federal or State following the award of the grant or Section 50.103(a) of the regulation levels to urge support of, or opposition cooperative agreement. Independent states: ‘‘Each institution that applies for to, pending legislative proposals is audit statements from a Certified Public or receives assistance under the Act for
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any project or program which involves services funded with such assistance. A Information and CDC will provide the conduct of biomedical or behavioral religious organization that participates successful recipients a specific grant of research must have an assurance in the DHHS funded programs or public health authority for the purposes satisfactory to the Secretary (DHHS) that services will retain its independence of this project. the applicant: (1) Has established an from Federal, State, and local AR–25 administrative process, that meets the governments, and may continue to carry requirements of this subpart, for out its mission, including the definition, Release and Sharing of Data reviewing, investigating, and reporting practice, and expression of its religious The Data Release Plan is the Grantee’s allegations of misconduct in science in beliefs, provided that it does not use assurance that the dissemination of any connection with PHS-sponsored direct financial assistance from DHHS to and all data collected under the CDC biomedical and behavioral research support inherently religious activities data sharing agreement will be released conducted at the applicant institution or such as those activities described above. as follows: sponsored by the applicant; and (2) Will A faith-based organization may, a. In a timely manner. comply with its own administrative however, use space in its facilities to process and the requirements of this provide programs or services funded b. Completely, and as accurately as Subpart.’’ with financial assistance from DHHS possible. Section 50.103(b) of the regulation without removing religious art, icons, c. To facilitate the broader states that: ‘‘an applicant or recipient scriptures, or other religious symbols. In community. institution shall make an annual addition, a religious organization that d. Developed in accordance with CDC submission to the [ORI] as follows: (1) receives financial assistance from DHHS policy on Releasing and Sharing Data, The institution’s assurance shall be retains its authority over its internal April 16, 2003, http://www.cdc.gov/od/ submitted to the [ORI], on a form governance, and it may retain religious foia/policies/sharing.htm, and in full prescribed by the Secretary, * * * and terms in its organization’s name, select compliance with the 1996 Health updated annually thereafter * * * (2) its board members on a religious basis, Insurance Portability and An institution shall submit, along with and include religious references in its Accountability Act (HIPPA), (where its annual assurance, such aggregate organization’s mission statements and applicable), The Office of Management information on allegations, inquiries, other governing documents in and Budget Circular A110, (2000) and investigations as the Secretary may accordance with all program revised 2003, www.whitehouse.gov/ prescribe.’’ requirements, statutes, and other omb/query.html? An additional policy is added in the applicable requirements governing the col=omb&qt=Releasing+and+ year 2000 that ‘‘requires research conduct of DHHS funded activities. For Sharing+of+Data and Freedom of institutions to provide training in the further guidance on the use of DHHS Information Act (FOIA), responsible conduct of research to all direct financial assistance see Title 45, www.4.law.cornell.edu/uscode/5/5/552/ staff engaged in research or research Code of Federal Regulations, Part 87, html. training with PHS funds. Equal Treatment for Faith-Based Applications must include a copy of the AR–23 Organizations, and visit the Internet applicant’s Data Release Plan. site: http://www.whitehouse.gov/ Applicants should provide CDC with Compliance With Executive Order government/fbci/. appropriate documentation on the 13279 AR–24 reliability of the data. Applications Faith-based organization are eligible submitted without the required Plan to receive federal financial assistance, Health Insurance Portability and may be ineligible for award. Award will and their applications are evaluated in Accountability Act Requirements be made when reviewing officials have the same manner and using the same Recipients of this grant award should approved an acceptable Plan. The criteria as those for non-faith-based note that pursuant to the Standards for successful applicant and the Program organizations in accordance with Privacy of Individually Identifiable Manager will determine the Executive Order 13279, Equal Protection Health Information promulgated under documentation format. CDC of the Laws for Faith-Based and the Health Insurance Portability and recommends data is released in the form Community Organizations. All Accountability Act (HIPAA) (45 CFR closest to micro data and one that will applicants should, however, be aware of Parts 160 and 164) covered entities may preserve confidentiality. restrictions on the use of direct financial disclose protected health information to Authority and Regulations assistance from the Department of public health authorities authorized by Health and Human Services (DHHS) for law to collect or receive such This program is described in the inherently religious activities. Under the information for the purpose of Catalog of Federal Domestic Assistance provisions of Title 45, Parts 74, 87, 92 preventing or controlling disease, at http://www.cfda.gov/ and is not and 96, organizations that receive direct injury, or disability, including, but not subject to the intergovernmental review financial assistance from DHHS under limited to, the reporting of disease, requirements of Executive Order 12372 any DHHS program may not engage in injury, vital events such as birth or or Health Systems Agency review. inherently religious activities, such as death, and the conduct of public health Awards are made under the worship, religious instruction, or surveillance, public health authorization of 317(k)(2) of the Public proselytization as a part of the programs investigations, and public health Health Service Act (PHS Act), 42 U.S.C. or services funded with direct financial interventions. The definition of a public 247b(k)(2) and 301(a) of the PHS Act, 42 assistance from DHHS. If an health authority includes a person or U.S.C. 241(a). All awards are subject to organization engages in such activities, entity acting under a grant of authority the terms and conditions, cost it must offer them separately, in time or from or contract with such public principles, and other considerations location, from the programs or services agency. CDC considers this project a described in the NIH Grants Policy funded with direct DHHS assistance, public health activity consistent with Statement. The NIH Grants Policy and participation must be voluntary for the Standards for Privacy of Statement can be found at http:// the beneficiaries of the programs or Individually Identifiable Health grants.nih.gov/grants/policy/policy.htm.
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Dated: June 1, 2005. sites listed on, or proposed for, the ACTION: Notice. William P. Nichols, Superfund National Priorities List and Director, Procurement and Grants Office, at sites that are the subject of petitions SUMMARY: The Department of Health and Centers for Disease Control and Prevention. from the public; and other health- Human Services (‘‘HHS’’) gives notice of [FR Doc. 05–11253 Filed 6–6–05; 8:45 am] related activities such as epidemiologic a decision to designate a class of employees at the Iowa Army BILLING CODE 4163–18–P studies, health surveillance, exposure and disease registries, health education, Ammunition Plant (IAAP), in substance-specific applied research, Burlington, Iowa as an addition to the DEPARTMENT OF HEALTH AND emergency response, and preparation of Special Exposure Cohort (SEC) under HUMAN SERVICES toxicological profiles. the Energy Employees Occupational Purpose: This study group is charged Illness Compensation Program Act of Centers for Disease Control and with locating, evaluating, cataloguing, 2000. On May 20, 2005, the Secretary of Prevention and copying documents that contain HHS designated the following class of information about historical chemical or employees as an addition to the SEC: Study Team for the Los Alamos radionuclide releases from facilities at Employees of the Department of Energy Historical Document Retrieval and the Los Alamos National Laboratory (DOE) or DOE contractors or subcontractors Assessment (LAHDRA) Project since its inception. The purpose of this employed by the Iowa Army Ammunition The Centers for Disease Control and meeting is to review the goals, methods, Plant, Line 1, during the period from March 1949 through 1974 who were employed for Prevention (CDC) and the Agency for and schedule of the project, discuss progress to date, provide a forum for a number of work days aggregating at least Toxic Substances and Disease Registry 250 work days either solely under this (ATSDR) announces the following community interaction, and serve as a employment or in combination with work meeting. vehicle for members of the public to days within the parameters (excluding Name: Public Meeting of the Study express concerns and provide advice to aggregate work day requirements) established Team for the Los Alamos Historical CDC. for other classes of employees included in Document Retrieval and Assessment Matters to be Discussed: Agenda items the SEC. include a presentation from the National Project. This designation will become Center for Environmental Health Time and Date: 5 p.m.–7 p.m., effective on June 19, 2005, unless (NCEH) and its contractor regarding the (mountain time), June 23, 2005. Congress provides otherwise prior to the status of project work. There will be Place: Cities of Gold Hotel in effective date. After this effective date, time for public input, questions, and Pojoaque (15 miles north of Santa Fe on HHS will publish a notice in the comments. U.S. 84/285), 10–A Cities of Gold Road, Federal Register reporting the addition Santa Fe, New Mexico 87506, Agenda items are subject to change as priorities dictate. of this class to the SEC or the result of telephone: 505–455–0515. any action by Congress. Status: Open to the public, limited Contact Person For Additional Information: Phillip R. Green, Public FOR FURTHER INFORMATION CONTACT: only by the space available. The meeting Larry Elliott, Director, Office of room accommodates approximately 100 Health Advisor, Radiation Studies Branch, NCEH, CDC, 1600 Clifton Road, Compensation Analysis and Support, people. National Institute for Occupational Background: Under a Memorandum N.E. (MS–E39), Atlanta, GA 30333, telephone 404/498–1717, fax 404/498– Safety and Health, 4676 Columbia of Understanding (MOU) signed in Parkway, MS C–46, Cincinnati, OH December 1990 with the Department of 1811. The Director, Management Analysis 45226, Telephone 513–533–6800 (this is Energy (DOE) and replaced by MOUs and Services Office, has been delegated not a toll-free number). Information signed in 1996 and 2000, the the authority to sign Federal Register requests can also be submitted by e-mail Department of Health and Human notices pertaining to announcements of to [email protected] Services (HHS) was given the meetings and other committee responsibility and resources for Dated: May 27, 2005. management activities for both CDC and conducting analytic epidemiologic John Howard, ATSDR. investigations of residents of Director, National Institute for Occupational communities in the vicinity of DOE Dated: June 2, 2005. Safety and Health, Centers for Disease Control facilities, workers at DOE facilities, and Diane Allen, and Prevention. other persons potentially exposed to Acting Director, Management Analysis and [FR Doc. 05–11255 Filed 6–6–05; 8:45 am] radiation or to potential hazards from Services Office, Centers for Disease Control BILLING CODE 4160–17–P non-nuclear energy production use. and Prevention (CDC). HHS delegated program responsibility [FR Doc. 05–11363 Filed 6–6–05; 8:45 am] to CDC. In addition, a memo was signed BILLING CODE 4163–18–P DEPARTMENT OF HEALTH AND in October 1990 and renewed in HUMAN SERVICES November 1992, 1996, and in 2000, Administration for Children and between the Agency for Toxic DEPARTMENT OF HEALTH AND Families Substances and Disease Registry HUMAN SERVICES (ATSDR) and DOE. The MOU delineates Administration for Native Americans; the responsibilities and procedures for Centers for Disease Control and Prevention Grants and Cooperative Agreements; ATSDR’s public health activities at DOE Notice of Availability sites required under sections 104, 105, Designation of a Class of Employees Funding Opportunity Title: 107, and 120 of the Comprehensive for Addition to the Special Exposure Environmental Mitigation. Environmental Response, Cohort Compensation, and Liability Act Announcement Type: Initial. (CERCLA or ‘‘Superfund’’). These AGENCY: Centers for Disease Control and Funding Opportunity Number: HHS– activities include health consultations Prevention (CDC), Department of Health 2005–ACF–ANA–NM–0019. and public health assessments at DOE and Human Services (HHS). CFDA Number: 93.582.
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Due Date for Applications: 07/08/ Wide, not less than $8,000,000 shall be ANA Administrative Policies 2005. made available until expended to Applicants must comply with the Executive Summary: provide for the mitigation of following Administrative Policies: The Administration for Native environmental impacts, including • An application from a Tribe, Alaska Americans (ANA), within the training and technical assistance to Native Village or Native American Administration for Children and tribes, related administrative support, organization must be from the governing Families (ACF), announces the the gathering of information, body. availability of funds to eligible documenting of environmental damage, • A non-profit organization applicants to mitigate environmental and developing a system for prioritizing submitting an application must submit impacts on Indian lands due to of mitigation, on Indian lands resulting proof of its non-profit status at the time Department of Defense (DOD) activities from Department of Defense activities. of submission. The non-profit agency on Formerly Used Defense Sites (FUDS). Achieving compliance with Federal can accomplish this by providing: (1) A Financial assistance is provided environmental protection legislation is reference to the applicant organization’s utilizing the competitive process in the driving force behind all Federal listing in the Internal Revenue Service’s accordance with the Native Americans clean-up activities. The following is a (IRS) most recent list of tax-exempt Programs Act of 1974, as amended. list of major Federal environmental organizations described in the IRS Code; Program Areas of Interest are projects legislation that should be recognized in or (2) a copy of the currently valid IRS that ANA considers supportive to a regulatory review of all Federal, state tax exemption certificate; or (3) a Native American communities for the and local regulatory requirements which statement from a State taxing body, purpose of FUDS environmental could have major impacts in the design State Attorney General, or other activities. Although eligibility for of mitigation strategies: • appropriate State official certifying that funding is not restricted to projects of Indian Environmental General the applicant organization has a non- the type listed in this program Assistance Program Act of 1992; • profit status and none of the net announcement, these Program Areas of Clean Air Act (CAA); earnings accrue to any private • Clean Water Act (CWA); Interest are ones which ANA sees as shareholders or individuals; or (4) a particularly beneficial to the • Safe Drinking Water Act (SDWA); • Surface Mining Control and certified copy of the organization’s development of an environmental certificate of incorporation or similar mitigation project. Reclamation Act of 1977 (SMCRA); • Marine Protection, Research and document that clearly establishes non- I. Funding Opportunity Description Sanctuaries Act of 1972 (MPRSA); profit status; or (5) any of the items in The Administration for Native • Toxic Substances Control Act the subparagraphs immediately above Americans (ANA), within the (TSCA); for a State or national parent • Administration for Children and Federal Insecticide, Fungicide, and organization and a statement signed by Rodenticide Act (FIFRA); the parent organization that the Families, announces the availability of • financial assistance for new community- Nuclear Waste Policy Act of 1982 applicant organization is a local non- based projects under the competitive (NWPA); profit affiliate. • • If the applicant, other than a tribe area: Environmental Mitigation. This Comprehensive Environmental or an Alaska Native Village government, announcement contains information on Resource Conservation and Liability Act is proposing a project benefiting Native financial assistance from the (CERCLA or Superfund); • Resource Conservation and Americans, Alaska Natives, or both, it Environmental Mitigation Program, Recovery Act of 1976 (RCRA); must provide assurance that its duly authorized under Section 8094A of the • Hazardous and Solid Waste elected or appointed board of directors Department of Defense Appropriation Amendments of 1984 (HSWA); is representative of the community to be Act, Public Law 103–139 and Public • National Environmental Policy Act served. Applicants must provide Law 103–335 (the Act). The Congress of 1969 (NEPA). information that at least a majority of has recognized that DOD activities may Other Federal legislation that should the individuals serving on a non-profit have caused environmental impacts on be included in the regulatory review applicant’s board fall into one or more Indian lands. For this specific purpose, and that should be of assistance are the of the following categories: (1) a current Indian lands are defined as all lands of tribal specific legislative acts, such as: or past member of the community to be American Indian Tribes and Alaska • American Indian Religious Freedom served; (2) a prospective participant or Native Villages. Accordingly, the Act; beneficiary of the project to be funded; • Congress has taken steps to help those National Historic Preservation Act or (3) have a cultural relationship with affected begin to mitigate environmental of 1991. • the community be to served. impacts from DOD activities by assisting Indian Environmental Regulatory • Applicants must describe how the them in the planning, development and Enhancement Act of 1990; Other proposed project objectives and implementation of programs for such regulatory considerations could involve activities relate to a locally determined mitigation. applicable tribal, village, state and local strategy. The Environmental Mitigation laws, codes, ordinances, standards, etc., • ANA will review proposed projects program began through a program which should also be reviewed to assist to ensure applicants have considered all announcement published on December in planning, the mitigation design, and resources available to the community to 29, 1993 as a response to the development of the comprehensive support the project. Department of Defense Appropriations mitigation strategy. • Proposed projects must present a Act, Public Law 103–139, which was In this announcement, ANA strategy to overcome the challenges that enacted on November 11, 1993. This encourages Native American tribes to hinder movement toward self- program continues under Public Law develop their own plans and technical sufficiency in the community. 103–335 (Act), enacted on September capabilities and access the necessary • All funded applications will be 30, 1994. Section 809 4–A of the Act financial and technical resources in reviewed to ensure that the applicant states that of the funds appropriated to order to assess, plan, develop and has provided a positive statement to the Department of Defense (DOD) for implement projects to mitigate any give credit to ANA on all materials Operations and Maintenance Defense- impacts caused by DOD activities. developed using ANA funds.
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• ANA will not accept applications that can apply their own cultural and which benefit a Federally assisted from tribal components that are tribally socio-economic values in implementing project or program and which are authorized divisions unless the ANA ANA’s program objectives and goals. In contributed by the grantee, non-Federal application includes a tribal resolution. discussing the applicant’s community, third parties without charge to the • ANA will only accept one the following information must be grantee, or a cost-type contractor under application per eligible entity. The first provided: (1) A description of the the grant agreement. Any proposed in- application received by ANA shall be population segment within the kind match must meet the applicable the application considered for community to be served or impacted; (2) requirements found in 45 CFR part 74 competition unless ANA is notified in the size of the community; (3) and part 92. writing which application should be geographic description or location, Letter of Commitment: A third party considered for competitive review. including the boundaries of the statement to document the intent to • An applicant can have only one community; (4) demographic data on provide specific in-kind contributions active ANA Environmental Mitigation the target population; and (5) the or cash to support the applicant. The grant operating at any given time. relationship of the community to any Letter of Commitment must state the • ANA funds short-term projects, not larger group or tribe. dollar amount (if applicable), the length programs. Projects must have definitive Community Involvement: How the of time the commitment will be goals and objectives that will be community participated in the honored, and the conditions under achieved by the end of the project development of the proposed project, which the organization will support the period. All projects funded by ANA how the community will be involved proposed ANA project. If a dollar must be completed, or self-sustaining, or during the project implementation and amount is included, the amount must be supported by other than ANA funding at after the project is completed. Evidence based on market and historical rates the end of the project period. of community involvement can include, charged and paid. The resources to be • ANA reviews the quarterly and but is not limited to, certified petitions, committed may be human, natural, annual reports of grantees to determine public meeting minutes, surveys, needs physical, or financial, and may include if the grantee is meeting its goals, assessments, newsletters, special other Federal and non-Federal objectives and activities identified in meetings, public Council meetings, resources. Statements about resources the OWP. public committee meetings, public which have been committed to support • Applications from National and hearings, and annual meetings with a proposed project made in the Regional organizations must clearly representatives from the community. application without supporting demonstrate a need for the project, Completed Project: A project funded documentation will be disregarded. explain how the project originated, and by ANA is finished, or self-sustaining, Minor Renovation or Alteration: Work discuss the community-based delivery or funded by other than ANA funds, and required to change the interior strategy of the project, identify and the results and outcomes are achieved arrangements or other physical describe the intended beneficiaries, by the end of the project period. characteristics of an existing facility, or describe and relate the actual project Consortium—Tribe/Village: A group install equipment so that it may be more benefits to the community and of Tribes or Villages that join together effectively used for the project. Minor organization, and describe a either for long-term purposes or for the alteration and renovation may include community-based delivery system. purpose of an ANA project. work referred to as improvements, National and Regional organizations Construction: The initial building of a conversion, rehabilitation, remodeling, must describe their membership, define facility. or modernization, but is distinguished how the organization operates, and Core Administration: Salaries and from construction and major demonstrate Native community and/or other expenses for those functions that renovations. A minor alteration and or Tribal government support for the support the applicant’s organization as renovation must be incidental and project. The type of community to be a whole or for purposes that are essential for the project (‘‘incidental’’ served will determine the type of unrelated to the actual management or meaning the total alteration and documentation necessary to support the implementation of the ANA project. renovation budget must not exceed the project. Equipment: Tangible, non-expendable lesser of $150,000 or 25 percent of total personal property, including exempt direct costs approved for the entire Definitions property, charged directly to the award project period.). Program specific terms and concepts having a useful life of more than one Multi-purpose Organization: A are defined and should be used as a year and an acquisition cost of $5,000 or community-based corporation whose guide in writing and submitting the more per unit. However, consistent with charter specifies that the community proposed project. The funding for recipient policy, lower limits may be designates the Board of Directors and/or allowable projects in this program established. officers of the organization through an announcement is based on the following Impact Indicators: Measurement elective procedure and that the definitions: descriptions used to identify the organization functions in several Authorized Representative: The outcomes or results of the project. different areas of concern to the person or person(s) authorized by Tribal Outcomes or results must be members of the local Native American or Organizational resolution to execute quantifiable, measurable, verifiable and community. These areas are specified in documents and other actions required related to the outcome of the project to the by-laws and/or policies adopted by by outside agencies. determine that the project has achieved the organization. Budget Period: The interval of time its desired objective and can be Objective(s): Specific outcomes or into which the project period is divided independently verified through ANA results to be achieved within the for budgetary or funding purposes, and monitoring and evaluation. proposed project period that are for which a grant is made. A budget Indian Land: All lands used by specified in the Objective Work Plan. period usually lasts one year in a multi- American Indian tribes and Alaska Completion of objectives must result in year project period. Native Villages. specific, measurable outcomes that Community: A group of people In-kind Contributions: In-kind would benefit the community and residing in the same geographic area contributions are property or services directly contribute to the achievement
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of the stated community goals. Total Approved Project Costs: The responsive and will not be considered Applicants should relate their proposed sum of the Federal request and the non- for competition. project objectives to outcomes that Federal share. III. Eligibility Information support the community’s long-range Priority Area 1 goals. Objectives are an important 1. Eligible Applicants component of Criterion III and are the Environmental Mitigation Native American Tribal governments foundation for the Objective Work Description: The purpose of (Federally recognized) Plans. Environmental Mitigation projects is to Native American Tribal organizations Objective Work Plan (OWP): The conduct the research and planning (other than Federally recognized Tribal project plan the applicant will use in needed to identify environmental governments) meeting the results and benefits impacts to Indian lands caused by DOD Additional Information on Eligibility: expected for the project. The results and • Federally Recognized Indian Tribes; activities on or near Indian lands and to • benefits are directly related to the plan for remedial investigations to Incorporated non-Federally Impact Indicators. The OWP provides determine and carry out a preliminary recognized and State-recognized Indian detailed descriptions of how, when, Tribes; assessment of these problems. • where, by whom and why activities are Mitigation projects should result in Alaska Native Villages, as defined proposed for the project and is adequately detailed documentation of in the Alaska Native Claims Settlement complemented and condensed in the the problems and sources of help in Act (ANSCA) and/or non-profit Village Objective Work Plan. ANA will require solving them to provide a useful basis consortia; • Non-profit Alaska Native Regional separate OWPs for each year of the for examining alternative mitigation Corporations/Associations with Village- project. (Form OMB# 0980–0204 exp. approaches. 10/31/06) specific projects; Program Areas of Interest are: • Partnerships: Agreements between • Non-profit Native organizations in Projects that identify the disruption Alaska with Village-specific projects; two or more parties that will support the of subsistence activities due to • development and implementation of the Other Tribal or Village contamination of the food chain and/or organizations or consortia of Indian proposed project. Partnerships include the development of a remediation plan other community-based organizations or Tribes; and to address subsistence contamination. • Tribal governing bodies (Indian associations, Tribes, Federal and State • Projects to conduct a agencies and private or non-profit Reorganization Act or Traditional comprehensive environmental Councils) as recognized by the Bureau organizations, which may include faith- assessment. based organizations. • of Indian Affairs. Projects to conduct site inspections Please refer to Section I. Funding Real Property: Land, including land and remedial investigation to identify Opportunity Description to review improvements, structures, and problems and causes related to DOD general ANA Administrative Policies appurtenances thereto, excluding activities. and Section IV.5 Funding Restrictions. movable machinery and equipment. • Projects that identify approaches Resolution: Applicants are required to and methodologies to be undertaken in 2. Cost Sharing/Matching include a current signed and dated mitigation activities. No. Resolution (a formal decision voted on • Projects to develop a mitigation by the official governing body) in strategy plan to address problem areas 3. Other support of the project for the entire identified such as: land use restoration, All applicants must have a Dun & project period. The Resolution should clean-up processes, and the resources Bradstreet number. On June 27, 2003 the indicate who is authorized to sign necessary to implement clean-up Office of Management and Budget documents and negotiate on behalf of actions. The plan should include: published in the Federal Register a new the Tribe or organization. The technical assistance and management Federal policy applicable to all Federal Resolution should indicate that the expertise required; protocols for grant applicants. The policy requires community was involved in the project environmental assessments; cost Federal grant applicants to provide a planning process, and indicate the estimates of short- and long-term Dun & Bradstreet Data Universal specific dollar amount of any non- mitigation activities; estimate of impacts Numbering System (DUNS) number Federal matching funds (if applicable). of short-term and/or long-term when applying for Federal grants or Sustainable Project: A sustainable approaches; and, cultural, economic and cooperative agreements on or after project is an ongoing program or service human health-risk impacts. October 1, 2003. The DUNS number will that can be maintained without be required whether an applicant is additional ANA funds. II. Award Information submitting a paper application or using Self-Sufficiency: The ability to Funding Instrument Type: Grant. the government-wide electronic portal generate resources to meet a Anticipated Total Priority Area (www.Grants.gov). A DUNS number will community’s needs in a sustainable Funding: $1,200,000. be required for every application for a manner. A community’s progress Anticipated Number of Awards: 8 to new award or renewal/continuation of toward self-sufficiency is based on its 10. an award, including applications or efforts to plan, organize, and direct Ceiling on Amount of Individual plans under formula, entitlement and resources in a comprehensive manner Awards Per Budget Period: 125,000. block grant programs, submitted on or that is consistent with its established Floor on Amount of Individual after October 1, 2003. long-range goals. For a community to be Awards Per Budget Period: $50,000. Please ensure that your organization self-sufficient, it must have local access Average Projected Award Amount Per has a DUNS number. You may acquire to, control of, and coordination of Budget Period: $100,000. a DUNS number at no cost by calling the services and programs that safeguard the Length of Project Periods: 12-month dedicated toll-free DUNS number health, well-being, and culture of the project and budget period. request line on 1–866–705–5711 or you people that reside and work in the Applicants that exceed the ceiling may request a number on-line at community. amount will be considered non- http://www.dnb.com.
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Non-profit organizations applying for IV. Application and Submission budget justifications and the OWP form funding are required to submit proof of Information (OMB Control Number 0980–0204 exp their non-profit status. Proof of non- 10/31/06) will be exempt from the page 1. Address To Request Application limitation. Part Three of the application profit status is any one of the following: Package • A reference to the applicant is the Appendix. This section of the Region I: AL, AR, CT, DC, DE, FL, GA, application may not exceed 20 pages organization’s listing in the Internal IA, IL, IN, KS, KY, LA, MA, MD, ME, (the exception to this 20-page limit Revenue Service’s (IRS) most recent list MI, MN, MO, MS, NC, ND, NE, NH, NJ, applies only to projects that require, if of tax-exempt organizations described in NY, OH, OK, PA, RI, SC, SD, TN, TX, relevant to the project, a Business Plan the IRS Code. VA, VT, WI, W.VA or any Third-Party Agreements). • A copy of a currently valid IRS tax Native American Management Electronic Submission: While ACF exemption certificate. Services, Inc., 6858 Old Dominion does have the capability to receive • A statement from a State taxing Drive, Suite 302, McLean, VA 22101, program announcement applications body, State attorney general, or other Phone: 888–221–9686, Fax: 703–821– electronically through Grants.gov, appropriate State official certifying that 3680, Rondelle Clay, Project Manager, electronic submission of applications the applicant organization has a non- Email: [email protected], URL: will not be available for this particular www.anaeastern.org. profit status and that none of the net announcement. There are required Region II: AZ, CA, CO, ID, MT, NM, application form(s) specific to ANA that earning accrue to any private NV, OR, UT, WA, WY. have not yet received clearance from shareholders or individuals. ACKCO, INC., 1326 N. Central, Suite Grants.gov. While electronic submission • A certified copy of the 208, Phoenix, Arizona 85004, Toll Free: of applications may be available in the organization’s certificate of 800–525–2859, Direct: 602–253–9211, next fiscal year for this program, no incorporation or similar document that Fax 602–253–9135, Theron Wauneka, electronic submission of applications clearly establishes non-profit status. Project Manager, Email: will be accepted for this announcement • Any of the items in the [email protected], URL: this year as they would be missing those subparagraphs immediately above for a www.anawestern.org. required ANA forms and be considered Region III: Alaska State or national parent organization incomplete. Native American Management Organization and Preparation of and a statement signed by the parent Services, Inc., 11723 Old Glenn organization that the applicant Application: Due to the intensity and Highway, Suite 201, Eagle River, Alaska pace of the application review and organization is a local non-profit 99577, Toll Free 877–770–6230, Direct: evaluation process, ANA strongly affiliate. 907–694–5711, Fax 907–694–5775, P.J. recommends applicants organize, label, Private, non-profit organizations are Bell, Project Manager, E-Mail: and insert required information in encouraged to submit with their [email protected], URL: accordance with Part One, Part Two and applications the survey located under www.anaalaska.org. Part Three as presented in the table ‘‘Grant Related Documents and Forms,’’ 2. Content and Form of Application below. ANA strongly suggests ‘‘Survey for Private, Non-Profit Grant Submission applicants label the application for ease Applicants,’’ titled, ‘‘Survey on of reviewing. The application must Ensuring Equal Opportunity for Please refer to Section I. Funding begin with the information requested in Applicants,’’ at: http://www.acf.hhs.gov/ Opportunity Description, to review Part One of the chart in the prescribed programs/ofs/forms.htm. general ANA Administrative Policies order. Utilizing this format will insure and Section IV.5 Funding Restrictions. all information submitted to support an Disqualification Factors Application Submission: Each applicant’s request for funding is application should include one signed thoroughly reviewed. Submitting Applications that exceed the ceiling original and two additional copies of the amount will be considered non- information in this format will assist the complete application are required. The panel reviewer in locating and responsive and will not be considered original copy must include all required evaluating the information. Deviation for funding under this announcement. forms, certifications, assurances, and from this suggested format will reduce Any application that fails to satisfy appendices, contain an original the applicant’s ability to receive the deadline requirements referenced in signature by an authorized maximum points, which are directly Section IV.3 will be considered non- representative, and be submitted related to ANA’s funding review responsive and will not be considered unbound. The two additional copies of decisions. for funding under this announcement. the complete application must include ANA Application Format: ANA Applications that do not include a all required forms, certifications, requires all applications to be labeled in current signed and dated Resolution (a assurances, and appendices and must compliance with the format provided in also be submitted unbound. Applicants formal decision voted on by the official the program announcement. This format have the option of omitting from the applies to all applicants submitting governing body) in support of the application copies (not the original) applications for funding. All pages project for the entire project period will specific salary rates or amounts for submitted (including government forms, be considered non-responsive and will individuals specified in the application certifications and assurances) must be not be considered for competition. budget. A complete application for numbered consecutively (for example, If the applicant is not a Tribe or assistance under this Program the first page of the application is the SF Alaska Native Village government, Announcements consists of Three Parts. 424 and must be labeled as page one). applications that do not include proof Part One includes the SF 424, other The paper size shall be 8.5 x 11 inches, that a majority of the governing board of required government forms, and other line spacing shall be a space and a half directors is representative of the required documentation. Part Two of (1.5 line spacing), printed only on one community to be served will be the application is the project narrative. side, and have a half-inch margin on all considered non-responsive and will not This section of the application may not sides of the paper. (Note: the 1.5 line be considered for competition. exceed 40 pages, the line-item budgets, spacing does not apply to the Project
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Abstract Form, Appendices, the Table of Applicants must also understand they representatives of the applicant, or by Contents, the Objective Work Plans, and will be held accountable for the overnight/express mail couriers shall be the Budget.) The font size shall be 12- smoking prohibition included within considered as meeting an announced point and the font type shall be Times Public Law 103–227, Title XII deadline if they are received on or New Roman. Environmental Tobacco Smoke (also before the deadline date, between the Private, non-profit organizations are known as the PRO–KIDS Act of 1994). hours of 8 a.m. and 4:30 p.m., eastern encouraged to submit with their A copy of the Federal Register notice time, at the address referenced in applications the survey located under which implements the smoking Section IV.6., between Monday and ‘‘Grant Related Documents and Forms,’’ prohibition is included with forms. By Friday (excluding Federal holidays). ‘‘Survey for Private, Non-Profit Grant signing and submitting the application, ACF cannot accommodate Applicants,’’ titled, ‘‘Survey on applicants are providing the transmission of applications by Ensuring Equal Opportunity for certification and need not mail back the facsimile. Therefore, applications Applicants,’’ at: http://www.acf.hhs.gov/ certification with the application. transmitted to ACF by fax will not be programs/ofs/forms.htm. Applicants must make the appropriate accepted regardless of date or time of certification of their compliance with all Standard Forms and Certifications submission and time of receipt. Federal statutes relating to Receipt acknowledgement for The project description should nondiscrimination. By signing and application packages will not be include all the information submitting the applications, applicants provided to applicants who submit their requirements described in the specific are providing the certification and need package via mail, courier services, or by evaluation criteria outlined in the not mail back the certification form. hand delivery. However, applicants will program announcement under Section V Complete the standard forms and the receive an electronic acknowledgement Application Review Information. In associated certifications and assurances for applications that are submitted via addition to the project description, the based on the instructions on the forms. http://www.Grants.gov. applicant needs to complete all the The forms and certifications may be standard forms required for making Late Applications: Applications that found at: http://www.acf.hhs.gov/ do not meet the criteria above are applications for awards under this programs/ofs/forms.htm. announcement. considered late applications. ACF shall Those organizations required to notify each late applicant that its Applicants seeking financial provide proof of non-profit status, assistance under this announcement application will not be considered in please refer to Section III.3. the current competition. must file the Standard Form (SF) 424, Please see Section V.1, for Any application received after 4:30 Application for Federal Assistance; SF instructions on preparing the full p.m. eastern time on the deadline date 424A, Budget Information—Non- project description. Construction Programs; SF 424B, will not be considered for competition. Assurances—Non-Construction 3. Submission Dates and Times Applicants using express/overnight Programs. The forms may be reproduced Due Date for Applications: 07/08/ mail services should allow two working for use in submitting applications. 2005. days prior to the deadline date for Applicants must sign and return the Explanation of Due Dates: receipt of applications. Applicants are standard forms with their application. The closing date for receipt of cautioned that express/overnight mail Applicants must furnish prior to applications is referenced above. services do not always deliver as agreed. award an executed copy of the Standard Applications received after 4:30 p.m. Extension of deadlines: ACF may Form LLL, Certification Regarding eastern time on the closing date will be extend application deadlines when Lobbying, when applying for an award classified as late. circumstances such as acts of God in excess of $100,000. Applicants who Deadline: Applications shall be (floods, hurricanes, etc.) occur, or when have used non-Federal funds for considered as meeting an announced there are widespread disruptions of mail lobbying activities in connection with deadline if they are received on or service, or in other rare cases. A receiving assistance under this before the deadline time and date determination to extend or waive announcement shall complete a referenced in Section IV.6. Applicants deadline requirements rests with the disclosure form, if applicable, with their are responsible for ensuring Chief Grants Management Officer. applications (approved by the Office of applications are mailed or submitted Checklist Management and Budget under control electronically well in advance of the number 0348–0046). Applicants must application due date. You may use the checklist below as a sign and return the certification with Applications hand carried by guide when preparing your application their application. applicants, applicant couriers, other package.
PART ONE.—FEDERAL FORMS AND OTHER REQUIRED DOCUMENTS
What to submit Required content Required form or format When to submit
Table of Contents ... See Section IV ...... Applicant must include a table of contents that accurately identifies the page By application due number and where the information can be located. Table of Contents does date. not count against application page limit. SF424 ...... See Section IV ...... http://www.acf.hhs.gov/programs/ofs/forms.htm ...... By application due date. SF424A ...... See Section IV ...... http://www.acf.hhs.gov/programs/ofs/forms.htm ...... By application due date. SF424B ...... See Section IV ...... http://www.acf.hhs.gov/programs/ofs/forms.htm ...... By application due date. Proof of Non-Profit See Section III ...... As described in this announcement under Section III ‘‘Additional Information By award date. Status. on Eligibility’’.
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PART ONE.—FEDERAL FORMS AND OTHER REQUIRED DOCUMENTS—Continued
What to submit Required content Required form or format When to submit
Resolution ...... See Section I ...... As described in this announcement under Section I ‘‘Definitions’’ ...... By application due date. Board of Directors See Section I ...... As described in this announcement under Section I ‘‘ANA Administrative Poli- By application due Documentation. cies’’. date. Audit Letter ...... See Section I ...... A Certified Public Accountant’s ‘‘Independent Auditors’ Report on Financial By application due Statement.’’ This is usually only a two to three page document. (This re- date. quirement applies only to applicants with annual expenditures of $500,000 or more of Federal funds). Applicant must also include only that portion of the audit document titled ‘‘Supplemental Schedule of Expenditures of Fed- eral Awards’’. Indirect Cost Agree- See Section V ...... Organizations and Tribes must submit a current indirect cost agreement (if By application due ment. claiming indirect costs) that aligns with the approved ANA project period. date. The Indirect Cost Agreement must identify the individual components and percentages that make up the indirect cost rate. Certification Regard- See Section I ...... May be found at: www.acf.hhs.gov/programs/ofs/forms.htm ...... By award date. ing Maintenance of Effort. Certification Regard- See Section IV ...... May be found at: www.acf.hhs.gov/programs/ofs/forms.htm ...... By award date. ing Lobbying Dis- closure of Lob- bying Activities— SF LLL. Environmental To- See Section IV ...... May be found at: www.acf.hhs.gov/programs/ofs/forms.htm ...... By award date. bacco. Smoke Certification.
PART TWO.—APPLICATION REVIEW CRITERIA
Required form or format What to submit Required content ANA application review criteria When to submit this section may not exceed 40 pages
Criteria One (10 pts) See Section V ...... Introduction and Project Summary/Application Format ...... By application due Include the ANA Project Abstract form (OMB # 0980–0204 exp. 10/31/06) ..... date. Criteria Two (20 pts) See Section V ...... Need for Assistance ...... By application due date. Criteria Three (25 See Section V ...... Project Approach ...... By application due pts). Include an Objective Work Plan (OWP) form (OMB # 0980–0204 exp. 10/31/ date. 06) for each 12-month budget period. Note: The OWP is not included in the page count for this Part ...... Criteria Four (15 pts) See Section V ...... Organizational Capacity ...... By application due date. Criteria Five (15 pts) See Section V ...... Project Impact/Evaluation ...... By application due date. Criteria Six (15 pts) See Section V ...... Budget and Budget Justification/Cost Effectiveness ...... By application due Note: The line item budget and budget justification are not included in the date. page count for this Part.
PART THREE.—APPENDIX
Required form or format What to submit Required content this section may not exceed 20 pages When to submit
Support Documenta- See Section V ...... Part Three includes only supplemental information or required support docu- By application due tion. mentation that addresses the applicant’s capacity to carry out and fulfill the date. proposed project. These items include: letters of agreement with cooper- ating entities, in-kind commitment and support letters, business plans, and a summary of the Third Party Agreements. Do not include books, video- tapes, studies or published reports and articles, as they will not be made available to the reviewers or returned to the applicant.
Additional Forms applications the survey located under Ensuring Equal Opportunity for ‘‘Grant Related Documents and Forms,’’ Applicants,’’ at: http://www.acf.hhs.gov/ Private, non-profit organizations are ‘‘Survey for Private, Non-Profit Grant programs/ofs/forms.htm. encouraged to submit with their Applicants,’’ titled, ‘‘Survey on
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What to submit Required content Location When to submit
Survey for Private, Non- See form ...... Found in http://www.acf.hhs.gov/programs/ofs/ By application due date. Profit Grant Applicants. forms.htm.
4. Intergovernmental Review functions and are not related to the Aerospace Center, 901 D Street, SW., This program is not subject to proposed project. Washington, DC 20024. • Costs associated with fund-raising, Executive Order 12372, including financial campaigns, V. Application Review Information ‘‘Intergovernmental Review of Federal endowment drives, solicitation of gifts Programs,’’ or 45 CFR part 100, The Paperwork Reduction Act of 1995 and bequests, and similar expenses ‘‘Intergovernmental Review of (Pub. L. 104–13) incurred solely to raise capital or obtain Department of Health and Human contributions are unallowable under an Public reporting burden for this Services Programs and Activities’’. ANA grant award. collection of information is estimated to 5. Funding Restrictions • Projects originated and designed by average 20 hours per response, ANA does not fund: consultants who provide a major role for including the time for reviewing • Activities in support of any themselves and are not members of the instructions, gathering and maintaining foreseeable litigation against the United applicant organization, Tribe, or Village. the data needed and reviewing the • Activities that are not responsive to States Government that are unallowable collection information. Environmental Mitigation program under OMB Circulars A–87 and A–122. The project description is approved • goals. ANA does not fund duplicative • Major renovations or alterations are under OMB control number 0970–0139 projects or allow any one community or prohibited activities because these which expires 4/30/2007. region to receive a disproportionate activities are not authorized under the An agency may not conduct or share of the funds available for award. Native American Programs Act of 1974 sponsor, and a person is not required to When making decisions on awards of as amended. Minor alterations, as respond to, a collection of information grants the agency will consider whether defined in this announcement, may be unless it displays a currently valid OMB the project is essentially identical or allowable. control number. similar, in whole or significant part, to • ANA will not fund activities by a projects in the same community consortium of Tribes that duplicate 1. Criteria previously funded or being funded activities for which a consortium The following are instructions and under the same competition. The agency member Tribe also receives funding guidelines on how to prepare the will also consider whether the grantee is from ANA. already receiving funding for a SEDS, ‘‘project summary/abstract’’ and ‘‘full Language, or Environmental project 6. Other Submission Requirements project description’’ sections of the from ANA. The agency will also take Submission by Mail: An applicant application. Under the evaluation into account in making funding must provide an original application criteria section, note that each criterion decisions whether a proposed project with all attachments, signed by an is preceded by the generic evaluation would require funding on indefinite or authorized representative and two requirement under the ACF Uniform recurring basis. This determination will copies. Please see Section IV.3 for an Project Description (UPD). be made after it is determined whether explanation of due dates. Applications Part I—The Project Description the application meets the requirements should be mailed to: Overview for eligibility as set forth in 45 CFR part Attention: Tim Chappelle, U.S. 1336, subpart C, but before funding Department of Health and Human Purpose decisions are complete [See Section I. Services, Administration for Children Funding Opportunity Description— and Services, Office of Grants The project description provides a ANA Administrative Policies regarding Management, Division of Discretionary major means by which an application is short-term projects]. Grants, 370 L’Enfant Promenade, SW., evaluated and ranked to compete with • Projects in which a grantee would Washington, DC 20447. other applications for available provide training and/or technical Hand Delivery: An applicant must assistance. The project description assistance (T/TA) to other Tribes or provide an original application with all should be concise and complete and Native American organizations that are attachments signed by an authorized should address the activity for which otherwise eligible to apply for ANA representative and two copies. The Federal funds are being requested. funding. However, ANA will fund T/TA application must be received at the Supporting documents should be requested by a grantee for its own use address below by 4:30 p.m. eastern time included where they can present or for its members’ use (as in the case on or before the closing date. information clearly and succinctly. In of a consortium), when the T/TA is Applications that are hand delivered preparing your project description, necessary to carry out project objectives. will be accepted between the hours of information responsive to each of the • The purchase of real property or 8 a.m. to 4:30 p.m. eastern time, requested evaluation criteria must be construction because these activities are Monday through Friday. Applications provided. Awarding offices use this and not authorized by the Native American should be delivered to: other information in making their Programs Act of 1974, as amended. Attention: Tim Chappelle, US funding recommendations. It is • Core administration (see Department of Health and Human important, therefore, that this Definitions) functions, or other Services, Office of Grants Management, information be included in the activities, that essentially support only Division of Discretionary Grants, ACF application in a manner that is clear and the applicant’s ongoing administrative Mail Room, Second Floor Loading Dock, complete.
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General Instructions progress towards the stated results or The non-profit agency can accomplish ACF is particularly interested in benefits, and how impact indicators this by providing: (a) A reference to the specific project descriptions that focus under this program area can be applicant organization’s listing in the on outcomes and convey strategies for monitored, evaluated and verified. Internal Revenue Service’s (IRS) most recent list of tax-exempt organizations achieving intended performance. Project Approach descriptions are evaluated on the basis described in the IRS Code; (b) a copy of of substance and measurable outcomes, Outline a plan of action which a currently valid IRS tax exemption not length. Extensive exhibits are not describes the scope and detail of how certificate, (c) a statement from a State required. Cross-referencing should be the proposed work will be taxing body, State attorney general, or used rather than repetition. Supporting accomplished. Account for all functions other appropriate State official information concerning activities that or activities identified in the certifying that the applicant will not be directly funded by the grant application. Cite factors which might organization has a non-profit status and or information that does not directly accelerate or decelerate the work and that none of the net earnings accrue to pertain to an integral part of the grant state your reason for taking the any private shareholders or individuals; funded activity should be placed in an proposed approach rather than others. (d) a certified copy of the organization’s appendix. Pages should be numbered Describe any unusual features of the certificate of incorporation or similar and a table of contents should be project such as design or technological document that clearly establishes non- included for easy reference. innovations, reductions in cost or time, profit status, (e) any of the items or extraordinary social and community immediately above for a State or Introduction involvement. national parent organization and a Applicants required to submit a full Provide quantitative monthly or statement signed by the parent project description shall prepare the quarterly projections of the organization that the applicant project description statement in accomplishments to be achieved for organization is a local non-profit accordance with the following each function or activity in such terms affiliate. instructions while being aware of the as the number of people to be served Third-Party Agreements specified evaluation criteria. The text and the number of activities options give a broad overview of what accomplished. When accomplishments Provide written and signed your project description should include cannot be quantified by activity or agreements between grantees and while the evaluation criteria identifies function, list them in chronological subgrantees or subcontractors or other the measures that will be used to order to show the schedule of cooperating entities. These agreements evaluate applications. accomplishments and their target dates. must detail scope of work to be performed, work schedules, If any data is to be collected, Project Summary/Abstract remuneration, and other terms and maintained, and/or disseminated, Provide a summary of the project conditions that structure or define the clearance may be required from the U.S. description (a page or less) with relationship. Office of Management and Budget reference to the funding request. (OMB). This clearance pertains to any Budget and Budget Justification Objectives and Need for Assistance ‘‘collection of information that is Provide a budget with line item detail Clearly identify the physical, conducted or sponsored by ACF.’’ and detailed calculations for each economic, social, financial, List organizations, cooperating budget object class identified on the institutional, and/or other problem(s) entities, consultants, or other key Budget Information form. Detailed requiring a solution. The need for individuals who will work on the calculations must include estimation assistance must be demonstrated and project along with a short description of methods, quantities, unit costs, and the principal and subordinate objectives the nature of their effort or contribution. other similar quantitative detail of the project must be clearly stated; Additional Information sufficient for the calculation to be supporting documentation, such as duplicated. Also include a breakout by letters of support and testimonials from Following are requests for additional the funding sources identified in Block concerned interests other than the information that need to be included in 15 of the SF 424. applicant, may be included. Any the application: Provide a narrative budget relevant data based on planning studies Organizational Profiles justification that describes how the should be included or referred to in the categorical costs are derived. Discuss endnotes/footnotes. Incorporate Provide information on the applicant the necessity, reasonableness, and demographic data and participant/ organization(s) and cooperating allocability of the proposed costs. partners, such as organizational charts, beneficiary information, as needed. In General developing the project description, the financial statements, audit reports or applicant may volunteer or be requested statements from CPAs/Licensed Public Use the following guidelines for to provide information on the total Accountants, Employer Identification preparing the budget and budget range of projects currently being Numbers, names of bond carriers, justification. Both Federal and non- conducted and supported (or to be contact persons and telephone numbers, Federal resources shall be detailed and initiated), some of which may be child care licenses and other justified in the budget and narrative outside the scope of the program documentation of professional justification. ‘‘Federal resources’’ refers announcement. accreditation, information on only to the ACF grant for which you are compliance with Federal/State/local applying. ‘‘Non Federal resources’’ are Results or Benefits Expected government standards, documentation all other Federal and non-Federal Identify the results and benefits to be of experience in the program area, and resources. It is suggested that budget derived. other pertinent information. If the amounts and computations be presented Applicants are encouraged to describe applicant is a non-profit organization, in a columnar format: first column, the qualitative and quantitative data submit proof of non-profit status in its object class categories; second column, collected, how this data will measure application. Federal budget; next column(s), non-
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Federal budget(s), and last column, total per unit, the number of units, the total Justification: Provide computations, a budget. The budget justification should cost, and a plan for use on the project, narrative description and a justification be a narrative. as well as use or disposal of the for each cost under this category. equipment after the project ends. An Personnel Indirect Charges applicant organization that uses its own Description: Costs of employee definition for equipment should provide Description: Total amount of indirect salaries and wages. a copy of its policy or section of its costs. This category should be used only Justification: Identify the project policy which includes the equipment when the applicant currently has an director or principal investigator, if definition. indirect cost rate approved by the known. For each staff person, provide Department of Health and Human the title, time commitment to the project Supplies Services (HHS) or another cognizant (in months), time commitment to the Description: Costs of all tangible Federal agency. project (as a percentage or full-time personal property (other than that Justification: An applicant that will equivalent), annual salary, grant salary, included under the Equipment charge indirect costs to the grant must wage rates, etc. Do not include the costs category.) enclose a copy of the current rate of consultants or personnel costs of Justification: Specify general agreement. If the applicant organization delegate agencies or of specific categories of supplies and their costs. is in the process of initially developing project(s) or businesses to be financed Show computations and provide other or renegotiating a rate, upon notification by the applicant. information which supports the amount that an award will be made, it should requested. Fringe Benefits immediately develop a tentative indirect Contractual cost rate proposal based on its most Description: Costs of employee fringe recently completed fiscal year, in benefits unless treated as part of an Description: Costs of all contracts for accordance with the cognizant agency’s approved indirect cost rate. services and goods except for those that guidelines for establishing indirect cost Justification: Provide a breakdown of belong under other categories such as rates, and submit it to the cognizant the amounts and percentages that equipment, supplies, construction, etc. agency. Applicants awaiting approval of comprise fringe benefit costs such as Include third party evaluation contracts their indirect cost proposals may also health insurance, FICA, retirement (if applicable) and contracts with request indirect costs. When an indirect insurance, taxes, etc. secondary recipient organizations, cost rate is requested, those costs including delegate agencies and specific Travel included in the indirect cost pool project(s) or businesses to be financed should not also be charged as direct Description: Costs of project-related by the applicant. costs to the grant. Also, if the applicant Justification: Demonstrate that all travel by employees of the applicant is requesting a rate which is less than procurement transactions will be organization (does not include costs of what is allowed under the program, the conducted in a manner to provide, to consultant travel). authorized representative of the Justification: For each trip, show the the maximum extent practical, open and applicant organization must submit a total number of traveler(s), travel free competition. Recipients and signed acknowledgement that the destination, duration of trip, per diem, subrecipients, other than States that are applicant is accepting a lower rate than mileage allowances, if privately owned required to use Part 92 procedures, must allowed. vehicles will be used, and other justify any anticipated procurement transportation costs and subsistence action that is expected to be awarded Program Income allowances. Travel costs for key staff to without competition and exceed the Description: The estimated amount of attend ACF-sponsored workshops simplified acquisition threshold fixed at income, if any, expected to be generated should be detailed in the budget. 41 U.S.C. 403(11) (currently set at from this project. $100,000). Equipment Justification: Describe the nature, Recipients might be required to make source and anticipated use of program Description: ‘‘Equipment’’ means an available to ACF pre-award review and income in the budget or refer to the article of nonexpendable, tangible procurement documents, such as pages in the application which contain personal property having a useful life of request for proposals or invitations for this information. more than one year and an acquisition bids, independent cost estimates, etc. cost which equals or exceeds the lesser Note: Whenever the applicant intends to Federal of (a) the capitalization level established delegate part of the project to another agency, ANA Evaluation Criteria by the organization for the financial the applicant must provide a detailed budget statement purposes, or (b) $5,000. (Note: and budget narrative for each delegate The following evaluation criteria Acquisition cost means the net invoice agency, by agency title, along with the appear in weighted descending order. unit price of an item of equipment, required supporting information referred to The corresponding score values indicate including the cost of any modifications, in these instructions. the relative importance that ACF places attachments, accessories, or auxiliary on each evaluation criterion; however, apparatus necessary to make it usable Other applicants need not develop their for the purpose for which it is acquired. Enter the total of all other costs. Such applications precisely according to the Ancillary charges, such as taxes, duty, costs, where applicable and appropriate, order presented. Application protective in-transit insurance, freight, may include but are not limited to components may be organized such that and installation shall be included in or insurance, food, medical and dental a reviewer will be able to follow a excluded from acquisition cost in costs (noncontractual), professional seamless and logical flow of information accordance with the organization’s services costs, space and equipment (i.e., from a broad overview of the regular written accounting practices.) rentals, printing and publication, project to more detailed information Justification: For each type of computer use, training costs, such as about how it will be conducted). equipment requested, provide a tuition and stipends, staff development In considering how applicants will description of the equipment, the cost costs, and administrative costs. carry out the responsibilities addressed
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under this announcement, competing geographic location of the project and to travel to one regional ANA post- applications for financial assistance will where the project and grant will be award grant training and technical be reviewed and evaluated against the administered. Applicant must describe assistance workshop. This expenditure following criteria: how the proposed project objectives and is allowable for new grant recipients activities relate to a locally determined and optional for grantees that have had Approach—25 Points strategy. previous ANA grant awards, and will be Project Approach: The Project The applicant must provide negotiated upon award. Approach narrative must be clear and documentation of the community’s Cost Effectiveness: This section of the concise. The narrative must include a support for the proposed project. criterion reflects ANA’s concern with detailed project description with goals Applications from regional ensuring that the expenditure of its and objectives. It must discuss the organizations must clearly demonstrate limited resources yields the greatest project strategy and implementation a need for the project, explain how the benefit possible in achieving plan over the project period. The project originated, identify the intended environmentally sound and healthy applicant must use the Objective Work beneficiaries, describe and relate the Native American communities. Plan (OWP) form to identify the project actual project benefits to the community objectives, time frames, proposed and organization, and describe a Results or Benefits Expected—15 Points activities, results and benefits expected community-based project delivery Project Impact/Evaluation: In this and criteria for evaluating results and strategy. Regional organizations must criterion, the applicant will discuss the benefits, as well as the individuals also identify their membership and ‘‘Impact Indicators’’ (see Definitions) responsible for completing the specifically discuss how the and the benefits expected as a result of objectives and performing the activities. organization operates and impacts this project. Impact indicators identify Within the results and benefits section Native American people and qualitative and quantitative data of the OWP the applicant must provide communities. Proposed project directly associated with the project. quantitative quarterly projections of the objectives support the identified need Each applicant must submit five impact accomplishments to be achieved for and must be measurable. indicators to support the applicant’s each function or activity. In this project. For each impact indicator criterion, the applicant describes how Budget and Budget Justification—15 submitted the applicant must discuss the project description, objective(s), Points the relevance of the impact indicators to approach and strategy are inter-related. Budget and Budget Justification/Cost The applicant must also include the Effectiveness: An applicant must submit the project, the method used to track the names and activities of any an itemized budget detailing the indicator and the method used to organizations, consultants, or other key applicant’s Federal request. A budget determine project success. Impact individuals who will contribute to the justification narrative to support the indicators will be reported to ANA in project, utilizing the column for Non- line-item budget request must also be the grantee’s quarterly report. The Salaried Personnel to list the hours included. The budget must include a applicant must indicate a target number incurred for these activities. line-item justification for each Object to be achieved for the impact indicators. Class Category listed under Section B: The impact indicators may be selected Objectives and Need for Assistance—20 ‘‘Budget Categories’’ on the ‘‘Budget from the suggested list below, or they Points Information-Non Construction may be developed for a specific Need for Assistance: Applicant must Programs’’ (SF 424A) form. The line- proposed project, or the applicant may show a clear relationship between the item budget and budget justification submit a combination of both the ANA proposed project, the Environmental narrative must include the necessary suggested indicators and project specific Mitigation strategy, and the details to facilitate the determination of indicators. The suggested ANA community’s long-range goals. The need allowable costs and the relevance of indicators are: (1) The number of sites for assistance must clearly identify the these costs to the proposed project. A assessed (i.e., contamination sites or physical, economic, social, financial, line-item budget and budget instances of pathway contamination due governmental, and institutional justification narrative should be to proximity to FUDS); (2) the type of challenges and problem(s) requiring a included for any non-Federal resources data collected for assessment; (3) solution that supports the funding committed to support the project (cite number of contaminants identified; (4) request. Describe the community (see source of commitment). types of capacity building systems Definitions) to be affected by the project If an applicant plans to charge or created and implemented to support and the community involvement in the otherwise seek credit for indirect costs environmental mitigation program project. The applicant must describe the in its ANA application, a copy of its functions; (5) identification of Tribal or community’s long-range goals, the current Indirect Cost Rate Agreement Village government regulations, codes community planning process, and how must be included in the application, or ordinances that were enacted and the project supports the community with all costs broken down by category adopted; (6) number of infrastructure goals. Provide any existing so ANA reviewers can be certain that no and administrative systems, including documentation from preliminary site budgeted line items are included in the policies and procedures developed and inspections that identifies problems or indirect cost pool. Applicants that do implemented. causes due to DOD activities. Include not submit a current Indirect Cost Rate The applicant should discuss the documentation that identifies Agreement may not be able to claim the project’s value and long-term impact to contamination sites or instances of Indirect Cost Rate as an allowable cost, the participants and the community and pathway contamination due to may have the grant award amount explain how the information relates to proximity to FUDS (Formerly Used reduced, or may experience a delay in the proposed project goals, objectives Defense Sites). The applicant must grant award. and outcomes. Applicants should describe how the proposed goals, Applicants are strongly encouraged to discuss and present objectives and goals objectives, and activities reflect the include sufficient funds for principal to be achieved and evaluated at the end Environmental Mitigation needs of the representatives, such as the applicant’s of each budget period or quarter (if local community. Discuss the chief financial officer or project director applicable). Project outcomes should
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support the identified need and should application. An application from a body; and, (d) if the applicant is not a be measurable and quantifiable. consortium must have goals and Tribe or Alaska Native Village objectives that will create positive government, the applicant has Organizational Profiles—15 Points impacts and outcomes in the submitted proof of a majority of the Organizational Capacity: In this communities of its members. ANA will board of directors is representative of criterion, the application provides not fund activities by a consortium of the community to be served. An information on the management Tribes that duplicate activities for application that does not meet one of structure of the applicant and the which member Tribes also receive the above elements will be determined organizational relationships with its funding from ANA. The consortium to be incomplete and excluded from the cooperating partners. Include an application must identify the role and competitive review process. Applicants organizational chart that indicates responsibility of each participating with incomplete applications will be where the proposed project will fit in consortium member and a copy of the notified by mail within 30 business days the existing structure. Demonstrates consortia legal agreement or Memoranda from the closing date of this program experience in the program area. of Agreement to support the proposed announcement. ANA staff cannot Describe the administrative structure, project. respond to requests for information and the applicant’s ability to administer regarding funding decisions prior to the Introduction—Project Summary/ and implement a project of the proposed official applicant notification. After the Abstract—10 Points scope and its capacity to fulfill the Commissioner has made decisions on implementation plan. Applicants are Introduction and Project Summary/ all applications, unsuccessful applicants required to affirm that they will credit Application Format: Introduction and will be notified in writing within 90 the Administration for Native Project Summary: Using the ANA days. The notification will include the Americans, and reference the ANA Project Abstract form (OMB Control reviewer comments. Applicants are not funded project on any audio, video, Number 0980–0204, exp. 10/31/06), the ranked based on general financial need. and/or printed materials developed in applicant must include: The name of the Applicants who are initially excluded whole or in part with ANA funds. applicant, the project title, the Federal from competition because of Applicants must list all current amount requested, the amount of ineligibility may appeal the agency’s sources of Federal funding, the agency, matching funds to be provided, length decision. Applicants may also appeal an purpose, amount, and provide the most of time required to accomplish the ANA decision that an applicant’s recent certified signed audit letter for project, the goal of the project, a list of proposed activities are ineligible for the organization to be included in Part the project objectives (not activities), the funding consideration. The appeals One of the application. If the applicant estimated number of people to be served process is stated in the final rule has audit exceptions, these issues must and the expected outcomes of the published in the Federal Register on be discussed in this criterion. project. August 19, 1996 (61 FR 42817 and 45 Applicants must provide ‘‘staffing and In addition to the Project Abstract CFR part 1336, subpart C). position data’’ to include a proposed form, the applicant will provide an Competitive Review Process: staffing pattern for the project where the introductory summary narrative that Applications that pass the initial ANA applicant highlights the new project includes: An overview of the project, a screening process will be analyzed, staff. Positions discussed in this section description of the community to be evaluated and rated by an independent must match the positions identified in served, the location of the identified review panel on the basis of the the Objective Work Plan and in the community, a declarative statement Evaluation Criteria. The evaluation proposed budget. Applicant must identifying the need for the project, and criteria were designed to analyze and provide a paragraph of the duties and a brief overview of the project’s assess the quality of a proposed skills required for the proposed staff and objectives, strategy and community or community-based project, the likelihood a paragraph on qualifications and organizational impact. of its success, and the ability of ANA to experience of current staff. Full position Application Format: Applicants are monitor and evaluate community descriptions are required to be required to submit applications in a impact and long-term results. The submitted and included in the standard format, following the ANA evaluation criteria and analysis are Appendix. Applicant must explain how requirements on application length, closely related and are wholly the current and future staff will manage font, numbering, line spacing, etc. considered in judging the overall quality the proposed project. Brief biographies Please refer to Section IV Part 2, of an application. In addition, the of key positions or individuals must be ‘‘Content and Form of Application evaluation criteria standardizes the included. (Note: Applicants are strongly Submission’’ for detailed formatting review of each application and encouraged to give preference to instructions. distributes the number of points more qualified Native Americans in hiring equitably. Applications will be project staff and in contracting services 2. Review and Selection Process evaluated in accordance with the under an approved ANA grant.) No grant award will be made under program announcement criteria and If applicable, applicant must identify this announcement on the basis of an ANA’s program areas of interest. A consortium membership. The incomplete application. determination will be made as to consortium applicant must be the Initial Screening: Each application whether the project is an effective use recipient of the funds. A consortium submitted under an ANA program of Federal funds. applicant must be an ‘‘eligible entity’’ as announcement will undergo a pre- Application Review Criteria: defined by this Program Announcement review screening to determine: (a) Applicants will be reviewed based on and the ANA regulations. Consortium Timeliness—the application was the following criteria and points: ANA’s applicants must include documentation received by 4:30 p.m. eastern time on criteria categories are Introduction and (a resolution adopted pursuant to the the closing date; (b) the funding request Project Summary/Application Format; organization’s established procedures does not exceed the upper value of the Need for Assistance; Project Approach; and signed by an authorized dollar range specified; (c) the applicant Organizational Capacity; Project Impact/ representative) from all consortium has submitted a current signed and Evaluation; and Budget and Budget members supporting the ANA dated resolution from the governing Narrative/Cost Effectiveness.
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Application Consideration: The granted, the terms and conditions of the Phone: 877–922–9262, E-mail: Commissioner’s funding decision is grant, the effective date of the grant, the [email protected]. based on an analysis of the application budget period for which initial support Grants Management Office Contact by the review panel, panel review scores will be given, the non-Federal share to and recommendations; an analysis by be provided (if applicable), and the total Tim Chappelle, Administration for ANA staff; review of previous ANA project period for which support is Children and Families, Office of Grants grantee’s past performance; comments contemplated. The Financial Assistance Management, Division of Discretionary from State and Federal agencies having Award will be signed by the Grants Grants, 370 L’Enfant Promenade SW., contract and grant performance related Officer and transmitted via postal mail. Aerospace Building 8th Floor West, information; and other interested Organizations whose applications will Washington, DC 20447–0002, Phone: parties. The Commissioner makes grant not be funded will be notified in 202–401–2344, E-mail: awards consistent with the purpose of writing. [email protected]. the Native American Programs Act 2. Administrative and National Policy VIII. Other Information (NAPA), all relevant statutory and Requirements regulatory requirements, this program Notice: Beginning with FY 2006, the announcement, and the availability of Grantees are subject to the Administration for Children and appropriated funds. The Commissioner requirements in 45 CFR Part 74 (non- Families (ACF) will no longer publish reserves the right to award more, or less, governmental) or 45 CFR part 92 grant announcements in the Federal than the funds described or under such (governmental); 45 CFR part 1336; and, Register. Beginning October 1, 2005 circumstances as may be deemed to be Native American Programs Act of 1974– applicants will be able to find a in the best interest of the Federal 42 U.S.C. 2991 et seq. synopsis of all ACF grant opportunities government. Applicants may be Direct Federal grants, subaward and apply electronically for required to reduce the scope of projects funds, or contracts under this Program opportunities via: www.Grants.gov. based on the amount of approved shall not be used to support inherently Applicants will also be able to find the award. religious activities such as religious complete text of all ACF grant Federal. Since ACF will be using non- instruction, worship, or proselytization. announcements on the ACF Web site Federal reviewers in the process, Therefore, organizations must take steps located at: http://www.acf.hhs.gov/ applicants have the option of omitting to separate, in time or location, their grants/index.html. from the application copies (not the inherently religious activities from the Training and Technical Assistance original) of specific salary rates or services funded under this Program. (T&TA): All potential ANA applicants amounts for individuals specified in the Regulations pertaining to the are eligible to receive T&TA. application budget and Social Security prohibition of Federal funds for Prospective applicants should check numbers, if otherwise required for inherently religious activities can be ANA’s Web site for training and individuals. The copies may include found on the HHS Web site at: http:// technical assistance dates and locations, summary salary information. www.os.dhhs.gov/fbci/waisgate21.pdf. or contact the ANA Help Desk at 1–877– Approved but Unfunded 922–9262. 3. Reporting Requirements Please reference Section IV.3 for Applications. Applications that are details about acknowledgement of approved but unfunded may be held Program Progress Reports: Quarterly received applications. over for funding in the next funding Financial Reports: Quarterly cycle, pending the availability of funds, Special Reporting Requirements: An Dated: May 24, 2005. for a period not to exceed one year. original and one copy of each Kimberly Romine, performance report and financial status Deputy Commissioner, Administration for 3. Anticipated Announcement and report must be submitted to the Grants Native Americans. Award Dates Officer. Failure to submit these reports [FR Doc. 05–11279 Filed 6–6–05; 8:45 am] Approximately 120 days after the when required will mean the grantee is BILLING CODE 4184–01–P application due date, the successful non-compliant with the terms and applicants will be notified by mail conditions of the grant award and through the issuance of a Financial subject to administrative action or DEPARTMENT OF HEALTH AND Assistance Award document which will termination. Program progress reports HUMAN SERVICES set forth the amount of funds granted, are submitted 30 days after each quarter the terms and conditions of the grant, (3-month intervals) of the budget period. Food and Drug Administration the effective date of the grant, the The final program progress report, due [Docket No. 2004N–0526] budget period for which initial support 90 days after the project period end will be given, the non-Federal share to date, shall cover grantee performance Agency Information Collection be provided and the total project period during the entire project period. All Activities; Submission for Office of for which support is contemplated. The grantees shall use the SF 269 (Long Management and Budget Review; Financial Assistance Award will be Form) to report the status of funds. Comment Request; Guidance for signed by the Grants Officer and sent to Financial Status Reports are submitted Industry: Fast Track Drug the applicant’s Authorizing Official. 30 days after each quarter (3-month Development Programs—Designation, Applications not funded in this intervals) of the budget period. The final Development, and Application Review competition will be notified in writing. SF 269 report shall be due 90 days after the end of the project period. AGENCY: Food and Drug Administration, VI. Award Administration Information HHS. VII. Agency Contacts 1. Award Notices ACTION: Notice. The successful applicants will be Program Office Contact SUMMARY: The Food and Drug notified through the issuance of a ANA Applicant Help Desk, Aerospace Administration (FDA) is announcing Financial Assistance Award document Center, 8th Floor West, 370 L’Enfant that a proposed collection of which sets forth the amount of funds Promenade SW., Washington, DC 20047, information has been submitted to the
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Office of Management and Budget previously been submitted to the attributed solely to the guidance will be (OMB) for review and clearance under agency, may, in some cases, be minimal. the Paperwork Reduction Act of 1995. incorporated into the request by Under section 506(c) of the act, a DATES: Fax written comments on the referring to the information rather than sponsor must submit sufficient clinical collection of information by July 7, resubmitting it. data for the agency to determine, after 2005. Under section 506(a)(1) of the act, an preliminary evaluation, that a fast track product may be effective. Section 506(c) ADDRESSES: OMB is still experiencing applicant who seeks fast track also requires that an applicant provide significant delays in the regular mail, designation is required to submit a a schedule for the submission of including first class and express mail, request to the agency showing that the information necessary to make the and messenger deliveries are not being product may do the following: (1) Is application complete before FDA can accepted. To ensure that comments on intended for a serious or life-threatening commence its review. The guidance the information collection are received, condition and (2) the product has the does not provide for any new collection OMB recommends that written potential to address an unmet medical of information regarding the submission comments be faxed to the Office of need. Mostly, the agency expects that of portions of an application that is not Information and Regulatory Affairs, information to support a designation required under section 506(c) of the act OMB, Attn: Fumie Yokota, Desk Officer request will have been gathered under or any other provision of the act. All for FDA, FAX: 202–395–6974. existing provisions of the act, the PHS forms referred to in the guidance have FOR FURTHER INFORMATION CONTACT: Act, or implementing regulations. If such information has already been a current OMB approval: FDA Forms Jonna Capezzuto, Office of Management 1571 (OMB control number 0910–0014, Programs (HFA–250), Food and Drug submitted to the agency, the information may be summarized in the fast track expires January 31, 2006); 356h (OMB Administration, 5600 Fishers Lane, control number 0910–0338, expires Rockville, MD 20857, 301–827–4659. designation request. The guidance recommends that a designation request August 31, 2005); and 3397 (OMB SUPPLEMENTARY INFORMATION: In control number 0910–0297, expires compliance with 44 U.S.C. 3507, FDA include, where applicable, additional information not specified elsewhere by December 31, 2006). has submitted the following proposed Respondents to this information statute or regulation. For example, collection of information to OMB for collection are sponsors and applicants additional information may be needed review and clearance. who seek fast track designation under to show that a product has the potential section 506 of the act. The agency Guidance for Industry: Fast Track Drug to address an unmet medical need estimates the total annual number of Development Programs—Designation, where an approved therapy exists for Development, and Application respondents submitting requests for fast the serious or life-threatening condition track designation to the Center for Review—(OMB Control Number 0910– to be treated. Such information may 0389)—Extension Biologics Evaluation and Research include clinical data, published reports, (CBER) and the Center for Drug Section 112(a) of the Food and Drug summaries of data and reports, and a list Evaluation and Research (CDER) will be Administration Modernization Act of of references. The amount of approximately 56. To obtain this 1997 (FDAMA) (Public Law 105–115) information and discussion in a estimate, FDA averaged the number of amended the Federal Food, Drug, and designation request need not be requests for fast track designation Cosmetic Act (the act) by adding section voluminous, but it should be sufficient received by CBER and CDER in the 3- 506 (21 U.S.C. 356). The section to permit a reviewer to assess whether year period from 2001 to 2003. For these authorizes FDA to take appropriate the criteria for fast track designation 3 years, CBER and CDER together action to facilitate the development and have been met. received a yearly average of 67 requests expedite the review of new drugs, After the agency makes a fast track from 56 respondents. The rate of including biological products, intended designation, a sponsor or applicant may submissions is not expected to change to treat a serious or life-threatening submit a premeeting package, which significantly in the next few years. FDA condition and that demonstrate a may include additional information estimates that the number of hours potential to address an unmet medical supporting a request to participate in needed to prepare a request for fast track need. Under FDAMA section 112(b), certain fast track programs. The designation may range between 40 and FDA issued guidance to industry on fast premeeting package serves as 80 hours per request, depending on the track policies and procedures outlined background information for the meeting complexity of each request, with an in section 506 of the act. The guidance and should support the intended average of 60 hours per request, as discusses collections of information that objectives of the meeting. As with the indicated in table 1 of this document. are specified under section 506 of the request for fast track designation, the Not all requests for fast track act, other sections of the Public Health agency expects that most sponsors or designation may meet the statutory Service Act (the PHS Act), or applicants will have already gathered standard. Of the average 67 requests implementing regulations. The guidance such information to meet existing made per year, the agency granted 47 describes three general areas involving requirements under the act, the PHS requests for fast track designation. For the following collection of information: Act, or implementing regulations. These each of the 47 granted requests, FDA (1) Fast track designation requests, (2) may include descriptions of clinical estimates that a premeeting package was premeeting packages, and (3) requests to safety and efficacy trials not conducted submitted to the agency. FDA estimates submit portions of an application. Of under an investigational new drug that the preparation hours may these, fast track designation requests application (IND) (i.e., foreign studies), generally range between 80 and 120 and premeeting packages, in support of and information to support a request for hours, with an average of 100 hours per receiving a fast track program benefit, accelerated approval. If such package, as indicated in table 1 of this provide for additional collections of information has already been submitted document. information not covered elsewhere in to FDA the information may be In the Federal Register of December statute or regulation. Information in summarized in the premeeting package. 13, 2004 (69 FR 72202), FDA published support of fast track designation or fast Consequently, FDA anticipates that the a 60-day notice requesting public track program benefits that has additional collection of information comment on the information collection
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provisions. One comment was received but was not related to the information collection.
TABLE 1.—ESTIMATED ANNUAL REPORTING BURDEN1
Annual Frequency per Total Annual Re- Hours per Reporting Activity Number of Respondents Response sponses Respondent Total Hours
Designation Request 56 1.20 67 60 4,020
Premeeting Packages 47 1.00 47 100 4,700
Total 8,720 1There are no capital costs or operating and maintenance costs associated with this collection of information.
Dated: May 31, 2005. Administration, 5600 Fishers Lane, more foreign countries and one or both Jeffrey Shuren, Rockville, MD 20857, 301–827–1223. of the following two conditions are met Assistant Commissioner for Policy. SUPPLEMENTARY INFORMATION: In as follows: [FR Doc. 05–11206 Filed 6–6–05; 8:45 am] compliance with 44 U.S.C. 3507, FDA 1. One of the foreign countries BILLING CODE 4160–01–S has submitted the following proposed certifies, accredits, or otherwise collection of information to OMB for recognizes the AP the applicant has review and clearance. selected as a person authorized to DEPARTMENT OF HEALTH AND Requests for Inspection by an conduct inspections of device HUMAN SERVICES Accredited Person under the Inspection establishments; or by Accredited Persons Program 2. A statement that the law of a Food and Drug Administration Section 201 of the Medical Device country where the applicant markets or User Fee and Modernization Act of 2002 intends to market the device recognizes [Docket No. 2004D–0251] (MDUFMA) (Public Law 107–250) an inspection by the FDA or by the AP. amends section 704 of the Federal Food, • Information that shows that the Agency Information Collection Drug, and Cosmetic Act (the act) (21 applicant’s most recent inspection Activities; Submission for Office of U.S.C. 374) by adding paragraph (g). performed by FDA, or by an AP under Management and Budget Review; This amendment authorizes FDA to this program, was classified by FDA as Comment Request; Requests for establish a voluntary third party either ‘‘No Action Indicated (NAI)’’ or Inspection by an Accredited Person inspection program applicable to ‘‘Voluntary Action Indicated (VAI);’’ Under the Inspection by Accredited manufacturers of class II or class III and Persons Program medical devices who meet certain • A notice to FDA requesting AGENCY: Food and Drug Administration, eligibility criteria. Under this new clearance (approval) to use an AP, and HHS. Inspection by Accredited Persons identifying the AP the applicant Program (AP program), such selected. ACTION: Notice. manufacturers may elect to have third In the Federal Register of June 3, 2004 SUMMARY: The Food and Drug parties that have been accredited by (69 FR 31397 at 31398), FDA published Administration (FDA) is announcing FDA (accredited person or AP) conduct a 60-day notice requesting public that a proposed collection of some of their inspections instead of comment on the information collection information has been submitted to the FDA. provisions. FDA received one comment Office of Management and Budget The AP program applies to concerning the potential burden (OMB) for review and clearance under manufacturers who currently market associated with the third party the Paperwork Reduction Act of 1995. their medical devices in the United inspectional program application process if related cumulative partial DATES: Fax written comments on the States and who also market or plan to collection of information by July 7, market their devices in foreign inspections over a 2-year period were 2005. countries. Such manufacturers may not recognized by FDA as a single need current inspections of their comprehensive inspection. FDA ADDRESSES: The Office of Management establishments to operate in global clarified the guidance to state that and Budget (OMB) is still experiencing commerce. manufacturers may rely on a single significant delays in the regular mail, The applicant must submit the comprehensive inspection or a serious including first class and express mail, following information in support of a of partial inspections that would and messenger deliveries are not being request for approval to use an AP: cumulatively constitute a complete accepted. To ensure that comments on • Information that shows that the inspection for the purposes of meeting the information collection are received, applicant ‘‘manufactures, prepares, FDA’s biennial inspection requirement. OMB recommends that comments be propagates, compounds, or processes’’ Reapplication to the FDA AP inspection faxed to the Office of Information and class II or class III medical devices. program will not be necessary to Regulatory Affairs, OMB, Attn: Fumie • Information that shows that the conduct each related partial inspection Yokota, Desk Officer for FDA, FAX: applicant markets at least one of the that cumulatively constitutes a single 202–395–6974. devices in the United States. comprehensive inspection of an FOR FURTHER INFORMATION CONTACT: • Information that shows that the establishment. Peggy Robbins, Office of Management applicant markets or intends to market FDA estimates the burden of this Programs (HFA–250), Food and Drug at least one of the devices in one or collection of information as follows:
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TABLE 1.—ESTIMATED ANNUAL REPORTING BURDEN1
No. of Respondents Annual Frequency per Response Total Annual Responses Hours per Response Total Hours
100 1 100 15 1,500 1 There are no capital costs or operating and maintenance costs associated with this collection of information.
There are approximately 8,000 foreign DATES: Submit written or electronic respondents, including through the use and 10,000 domestic manufacturers of comments on the collection of of automated collection techniques, medical devices. Approximately 5,000 information by August 8, 2005. when appropriate, and other forms of of these firms only manufacture class I ADDRESSES: Submit electronic information technology. devices and are, therefore, not eligible comments on the collection of Food Contact Substances Notification for the AP program. In addition, 40 information to: http://www.fda.gov/ System—21 CFR 170.101 and 170.106— percent of the domestic firms do not dockets/ecomments. Submit written (OMB Control Number 0910–0495)— export devices and therefore are not comments on the collection of Extension eligible for the AP program. Also 10 to information to the Division of Dockets 15 percent of the firms are not eligible Management (HFA–305), Food and Drug Section 409(h) of the Federal Food, due to the results of their previous Administration, 5630 Fishers Lane, rm. Drug, and Cosmetic Act (the act) (21 inspection. FDA estimates that there are 1061, Rockville, MD 20852. All U.S.C. 348(h)) establishes a premarket 4,000 domestic manufacturers and 4,000 comments should be identified with the notification process for food contact foreign manufacturers that are eligible docket number found in brackets in the substances. Section 409(h)(6) of the act for inclusion in the AP program. Based heading of this document. defines a ‘‘food contact substance’’ as ‘‘any substance intended for use as a on informal communications with FOR FURTHER INFORMATION CONTACT: component of materials used in industry, FDA estimates that Peggy Robbins, Office of Management approximately 100 of these manufacturing, packing, packaging, Programs (HFA–250), Food and Drug transporting, or holding food if such use manufacturers may apply to use an AP Administration, 5600 Fishers Lane, in any given year. is not intended to have any technical Rockville, MD 20857,301–827–1223. effect in such food.’’ Section 409(h)(3) of Dated: May 31, 2005. SUPPLEMENTARY INFORMATION: Under the the act requires that the notification Jeffrey Shuren, PRA (44 U.S.C. 3501–3520), Federal process be used for authorizing the Assistant Commissioner for Policy. agencies must obtain approval from the marketing of food contact substances [FR Doc. 05–11264 Filed 6–6–05; 8:45 am] Office of Management and Budget except where FDA determines that the BILLING CODE 4160–01–S (OMB) for each collection of submission and premarket review of a information they conduct or sponsor. food additive petition (FAP) under ‘‘Collection of information’’ is defined section 409(b) of the act is necessary to DEPARTMENT OF HEALTH AND in 44 U.S.C. 3502(3) and 5 CFR provide adequate assurance of safety or HUMAN SERVICES 1320.3(c) and includes agency requests where FDA and the manufacturer or or requirements that members of the supplier agree that an FAP should be Food and Drug Administration public submit reports, keep records, or submitted. Section 409(h)(1) of the act provide information to a third party. requires that a notification include [Docket No. 2005N–0209] Section 3506(c)(2)(A) of the PRA (44 information on the identity and the U.S.C. 3506(c)(2)(A)) requires Federal intended use of the food contact Agency Information Collection agencies to provide a 60-day notice in substance and the basis for the Activities; Proposed Collection; the Federal Register concerning each manufacturer’s or supplier’s Comment Request; Food Contact proposed collection of information, determination that the food contact Substances Notification System including each proposed extension of an substance is safe under the intended existing collection of information, conditions of use. AGENCY: Food and Drug Administration, before submitting the collection to OMB Sections 170.101 and 170.106 of HHS. for approval. To comply with this FDA’s regulations (21 CFR 170.101 and ACTION: Notice. requirement, FDA is publishing notice 170.106) require that a food contact of the proposed collection of notification (FCN) include FDA Form SUMMARY: The Food and Drug information set forth in this document. 3480 entitled ‘‘Notification for New Use Administration (FDA) is announcing an With respect to the following of a Food Contact Substance’’ and that opportunity for public comment on the collection of information, FDA invites a notification for a food contact proposed collection of certain comments on these topics: (1) Whether substance formulation include FDA information by the agency. Under the the proposed collection of information Form 3479 entitled ‘‘Notification for a Paperwork Reduction Act of 1995 (the is necessary for the proper performance Food Contact Substance Formulation.’’ PRA), Federal agencies are required to of FDA’s functions, including whether These forms will serve to summarize publish notice in the Federal Register the information will have practical pertinent information in the concerning each proposed collection of utility; (2) the accuracy of FDA’s notification. FDA believes that these information, including each proposed estimate of the burden of the proposed forms will facilitate both preparation extension of an existing collection of collection of information, including the and review of notifications because the information, and to allow 60 days for validity of the methodology and forms will serve to organize information public comment in response to the assumptions used; (3) ways to enhance necessary to support the safety of the notice. This notice solicits comments on the quality, utility, and clarity of the use of the food contact substance. The the collection of information associated information to be collected; and (4) burden of filling out the appropriate with the Food Contact Substances ways to minimize the burden of the form has been included in the burden Notification System. collection of information on estimate for the notification.
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Description of Respondents: FDA estimates the burden of this Manufacturers of food contact collection of information as follows: substances.
TABLE 1.—ESTIMATED ANNUAL REPORTING BURDEN1
No. of Annual Frequency Total Annual Hours per 21 CFR Section Respondents Form per Response Responses Response Total Hours
170.1062 (Category A) 5 FDA 3479 1 5 2 10
170.101 3,7 (Category B) 5 FDA 3480 1 5 25 125
170.101 4,7 (Category C) 5 FDA 3480 2 10 120 1,200
170.101 5,7 (Category D) 33 FDA 3480 2 66 150 9,900
170.101 6,7 (Category E) 30 FDA 3480 1 30 150 4,500
Total 15,735 1 There are no capital costs or operating and maintenance costs associated with this collection of information. 2 Notifications for food contact substance formulations and food contact articles. These notifications require the submission of FDA Form 3479 (‘‘Notification for a Food Contact Substance Formulation’’) only. 3 Duplicate notifications for uses of food contact substances. 4 Notifications for uses that are the subject of exemptions under 21 CFR 170.39 and very simple food additive petitions. 5Notifications for uses that are the subject of moderately complex food additive petitions. 6 Notifications for uses that are the subject of very complex food additive petitions. 7 These notifications require the submission of FDA Form 3480.
These estimates are based on FDA’s DEPARTMENT OF HEALTH AND Administration, 5600 Fishers Lane, experience with the food contact HUMAN SERVICES Rockville, MD 20857, 301–827–1482. substances notification system. SUPPLEMENTARY INFORMATION: In Food and Drug Administration • Based on input from industry compliance with 44 U.S.C. 3507, FDA sources, FDA estimates that the agency [Docket No. 2005N–0003] has submitted the following proposed will receive approximately five collection of information to OMB for Agency Information Collection review and clearance. This notice notifications annually for food contact Activities; Submission for Office of solicits comments on regulations substance formulations. Management and Budget Review; requiring the distribution of patient • FDA also has included five Comment Request; Prescription Drug labeling, called Medication Guides, for expected duplicate submissions in the Product Labeling; Medication Guide certain products that pose a serious and second row of table 1 of this document. Requirements significant public health concern FDA expects that the burden for requiring distribution of FDA-approved AGENCY: Food and Drug Administration, preparing these notifications primarily patient medication information. HHS. will consist of the manufacturer or ACTION: Notice. Prescription Drug Product Labeling; supplier filling out FDA Form 3480, Medication Guide Requirements— verifying that a previous notification is SUMMARY: The Food and Drug (OMB Control Number 0910–0393— effective, and preparing necessary Administration (FDA) is announcing Extension documentation. that a proposed collection of FDA regulations require the information has been submitted to the • Based on the submissions received, distribution of patient labeling, called Office of Management and Budget FDA identified three other tiers of FCNs Medication Guides, for certain (OMB) for review and clearance under that represent escalating levels of prescription human drug and biological the Paperwork Reduction Act of 1995. burden required to collect information products used primarily on an (the third, fourth and fifth rows of table DATES: Fax written comments on the outpatient basis that pose a serious and 1 of this document). collection of information by July 7, significant public health concern 2005. • FDA estimated the median number requiring distribution of FDA-approved ADDRESSES: OMB is still experiencing of hours necessary for collecting patient medication information. These significant delays in the regular mail, Medication Guides inform patients information for each type of notification including first class and express mail, about the most important information within each of the three tiers based on and messenger deliveries are not being they should know about these products input from industry sources. accepted. To ensure that comments on in order to use them safely and Dated: May 31, 2005. the information collection are received, effectively. Included is information such Jeffrey Shuren, OMB recommends that written as the drug’s approved uses, Assistant Commissioner for Policy. comments be faxed to the Office of contraindications, adverse drug Information and Regulatory Affairs, [FR Doc. 05–11265 Filed 6–6–05; 8:45 am] reactions, and cautions for specific OMB, Attn: Fumie Yokota, Desk Officer populations, with a focus on why the BILLING CODE 4160–01–S for FDA, FAX: 202–395–6974. particular product requires a Medication FOR FURTHER INFORMATION CONTACT: Guide. These regulations are intended to Karen Nelson, Office of Management improve the public health by providing Programs (HFA–250), Food and Drug information necessary for patients to use
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certain medication safely and approval according to the prescribed required, when dispensing the product effectively. content and format. to a patient or to a patient’s agent, must The regulations contain the following 21 CFR 314.70(b)(3)(ii) and 21 CFR provide a Medication Guide directly to reporting requirements that are subject 601.12(f)—Application holders must each patient unless an exemption to the PRA, and the estimates for the submit changes to Medication Guides to applies under 21 CFR 208.26. burden hours imposed by the following FDA for prior approval as supplements regulations are listed in table 1 of this to their applications. 21 CFR 208.26(a)—Requests may be document: 21 CFR 208.24(e)—Each authorized submitted for exemption or deferral 21 CFR 208.20—Applicants must dispenser of a prescription drug product from particular Medication Guide submit draft Medication Guides for FDA for which a Medication Guide is content or format requirements.
TABLE 1.—ESTIMATED ANNUAL REPORTING BURDEN1
No. of Annual Frequency Total Annual Hours Per 21 CFR Section Respondents Per Response Responses Response Total Hours
208.20 8 1 8 320 2,560
314.70(b)(3)(ii) and 601.12(f) 2 1 2 72 144
208.24(e) 55,000 20 1,100,000 .0014 1,540
208.26(a) 1 1 1 4 4
Total 4,248 1 There are no capital costs or operating and maintenance costs associated with this collection of information.
In the Federal Register of January 12, is required. Thus, the final rule imposes products or circumstances. The purpose 2005 (70 FR 2174), FDA requested a third-party reporting burden on of the draft guidance is to respond to the comments for 60 days on the authorized dispensers, who, for the questions. information collection. No comments most part, will be pharmacists. FDA DATES: Submit written or electronic were received on this information estimates that, on average, it would take comments on the draft guidance by collection. a pharmacist approximately 5 seconds August 8, 2005. General comments on FDA estimates that, on average, (.0014 hour) to provide a Medication agency guidance documents are approximately 8 products annually Guide to a patient. welcome at any time. would be classified as serious and Dated: May 31, 2005. ADDRESSES: Submit written requests for significant and thus require Medication Jeffrey Shuren, single copies of the draft guidance to the Guides. FDA’s regulatory impact Assistant Commissioner for Policy. Division of Drug Information (HFD– analysis estimated that applicants 240), Center for Drug Evaluation and [FR Doc. 05–11267 Filed 6–6–05; 8:45 am] would require approximately 2 months Research, Food and Drug of full-time effort (320 hours) to develop BILLING CODE 4160–01–S Administration, 5600 Fishers Lane, (i.e., develop for submission to FDA for Rockville, MD 20857; or the Office of review and approval) each Medication DEPARTMENT OF HEALTH AND Communication, Training, and Guide. Based on an average annual HUMAN SERVICES Manufacturers Assistance (HFM–40), professional labor cost of $70,000, the Center for Biologics Evaluation and cost of developing each Medication Food and Drug Administration Research, Food and Drug Guide would be approximately $11,666 Administration, 1401 Rockville Pike, for a total cost of $93,328. [Docket No. 2005D–0202] Rockville, MD 20852–1448. Send one In addition, FDA estimates that the self-addressed adhesive label to assist Draft Guidance for Industry on Bar sponsor of one of the new or that office in processing your requests. Code Label Requirements—Questions supplementary applications will request Submit written comments on the draft and Answers; Availability an exemption from at least some of the guidance to the Division of Dockets Medication Guide format or content AGENCY: Food and Drug Administration, Management (HFA–305), Food and Drug requirements. FDA estimates that this HHS. Administration, 5630 Fishers Lane, rm. will entail approximately 4 hours of ACTION: Notice. 1061, Rockville, MD 20852. Submit work, or about $200. electronic comments to http:// In addition, FDA estimates that two SUMMARY: The Food and Drug www.fda.gov/dockets/ecomments. See existing Medication Guides annually Administration (FDA) is announcing the the SUPPLEMENTARY INFORMATION section might require minor change under 21 availability of a draft guidance for for electronic access to the draft CFR 314.70(b)(3)(ii) or 21 CFR 601.12(f), industry entitled ‘‘Bar Code Label guidance document. necessitating 3 days (72 hours) of full- Requirements—Questions and FOR FURTHER INFORMATION CONTACT: time effort per Medication Guide, for a Answers.’’ FDA regulations require For products regulated by the Center for total of 144 hours or $5,250. certain human drug and biological Drug Evaluation and Research: Under section 204.24(e) authorized products to have on their labels a linear Michael D. Jones, Center for Drug dispensers are required to provide a bar code that identifies the drug’s Evaluation and Research (HFD–5), Medication Guide directly to the patient National Drug Code (NDC) number. We Food and Drug Administration, (or the patient’s agent) upon dispensing have received several inquiries about 5600 Fishers Lane, Rockville, MD a product for which a Medication Guide how the requirements apply to specific 20857, 301–594–2041.
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For products regulated by the Center for Dated: May 27, 2005. family of proteins that is modified post- Biologics Evaluation and Research: Jeffrey Shuren, translationally by the addition of a Elizabeth Callaghan, Center for Assistant Commissioner for Policy. farnesyl group. In progeria, the Biologics Evaluation and Research [FR Doc. 05–11266 Filed 6–6–05; 8:45 am] abnormal protein (progerin) can still be (HFM–370), Food and Drug BILLING CODE 4160–01–S farnesylated, however, a subsequent Administration, 1401 Rockville cleavage is blocked. Pike, Rockville, MD 20852–1448, The present invention describes a 301–827–3424. DEPARTMENT OF HEALTH AND possible treatment of laminopathies, SUPPLEMENTARY INFORMATION: HUMAN SERVICES cellular aging and aging-related conditions such as HGPS through the I. Background National Institutes of Health use of farnesyltransferase inhibitors FDA is announcing the availability of (FTIs) and other related compounds. a draft guidance for industry entitled Government-Owned Inventions; This treatment should lead to a decrease ‘‘Bar Code Label Requirements— Availability for Licensing in the accumulation of abnormal Questions and Answers.’’ Under FDA AGENCY: National Institutes of Health, proteins such as progerin in case of regulations, certain human drug and Public Health Service, DHHS. HGPS patients and therefore reduce or biological product labels must have a eliminate many of the devastating ACTION: Notice. bar code containing the drug’s NDC clinical symptoms of the underlying number (69 FR 9120, February 26, SUMMARY: The inventions listed below biological defect of nuclear membrane 2004). Bar codes will help reduce the are owned by an agency of the U.S. instability (Goldman R, Shumaker DK, number of medication errors in Government and are available for Erdos MR, Eriksson M, Goldman AE, hospitals and other health care settings licensing in the U.S. in accordance with Gordon LB, Gruenbaum Y, Khuon S, by allowing health care professionals to 35 U.S.C. 207 to achieve expeditious Mendez M, Varga R, Collins FS. use bar code scanning equipment to commercialization of results of Accumulation of mutant lamin A causes verify that the right drug (in the right federally-funded research and progressive changes in nuclear dose and right route of administration) development. Foreign patent architecture in Hutchinson-Gilford is being given to the right patient at the applications are filed on selected progeria syndrome. Proc Natl Acad Sci right time. This draft guidance is inventions to extend market coverage U S A 2004; 8963–8968.). intended to explain certain bar code for companies and may also be available In addition to licensing, the labeling requirements and their for licensing. technology is available for further application to human drug and ADDRESSES: Licensing information and development through collaborative biological products. research opportunities with the This draft guidance is being issued copies of the U.S. patent applications inventors. consistent with FDA’s good guidance listed below may be obtained by writing practices regulation (21 CFR 10.115). to the indicated licensing contact at the Cell Culture System for Efficient The draft guidance, when finalized, will Office of Technology Transfer, National Expression of Self-Replicating Norwalk represent the agency’s current thinking Institutes of Health, 6011 Executive Virus Boulevard, Suite 325, Rockville, on certain questions and answers on bar Kyeong-Ok Chang, Stanislav code labeling requirements. It does not Maryland 20852–3804; telephone: 301/ 496–7057; fax: 301/402–0220. A signed Sosnovtsev, Gael M. Belliot, Kim Y. create or confer any rights for or on any Green (NIAID). person and does not operate to bind Confidential Disclosure Agreement will U.S. Provisional Application filed 08 FDA or the public. An alternative be required to receive copies of the Apr 2005 (DHHS Reference No. E–043– approach may be used if such approach patent applications. 2005/0–US–01). satisfies the requirements of the Farnesyltransferase Inhibitors for Licensing Contact: Michael applicable statutes and regulations. Treatment of Laminopathies, Cellular Shmilovich; 301/435–5019; II. Comments Aging and Atherosclerosis [email protected]. Interested persons may submit to the Francis Collins (NHGRI) et al. Available for licensing and Division of Dockets Management (see U.S. Provisional Application No. 60/ commercial development is a cell ADDRESSES) written or electronic 648,307 filed 28 Jan 2005 (DHHS culture system for the efficient comments regarding this document. Reference No. E–055–2005/0–US–01). expression of self-replicating Norwalk Submit a single copy of electronic Licensing Contact: Fatima Sayyid; virus (NV) RNA (NV replicons). This comments or two paper copies of any 301/435–4521; [email protected]. invention provides compositions and mailed comments, except that Hutchinson-Gilford Progeria methods for preparing a cell-based individuals may submit one paper copy. Syndrome (HGPS) is a very rare system for molecular studies of NV Comments are to be identified with the progressive childhood disorder replication and the development of docket number found in brackets in the characterized by premature aging antiviral drugs. A method related to heading of this document. Received (progeria). Recently, the gene effectively clearing NV replicons, by comments may be seen in the Division responsible for HGPS was identified subjecting cells infected with NV of Dockets Management between 9 a.m. (Eriksson M, Brown WT, Gordon LB, replicon to IFN-alpha is included that and 4 p.m., Monday through Friday. Glynn MW, Singer J, Scott L, et al. demonstrates the applicability of this Recurrent de novo point mutations in invention to drug development. A III. Electronic Access lamin A cause Hutchinson-Gilford method of effectively clearing NV Persons with access to the Internet progeria syndrome. Nature 2003; replicons, by subjecting cells expressing may obtain the document at either http:/ 423(6937): 293–8), and HGPS joined a the NV replicon to nucleotide analogues /www.fda.gov/cder/guidance/index.htm, group of syndromes—the is also provided. These methods provide http://www.fda.gov/cber/ laminopathies—all of which are caused molecular tools for the identification guidelines.htm, or http://www.fda.gov/ by various mutations in the lamin A/C and development of treatments for NV ohrms/dockets/default.htm. gene (LMNA). Lamin A is one of the and may also extend to other members
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of the Calicivirus(es) (e.g., Norovirus, U.S. Provisional Application No. 60/ cancer patient’s immune system and a Sapovirus, Lagovirus and Vesivirus). 605,238 filed 27 Aug 2004 (DHHS very time consuming procedure to Reference No. E–121–2004/0–US–01). isolate and expand the appropriate T- Therapeutic Delivery of Nitric Oxide Licensing Contact: Robert M. Joynes; cells. From Novel Diazeniumdiolated 301/594–6565; [email protected]. This invention describes the Derivatives of Acrylonitrile-based This technology relates to the finding composition and use of nucleic acid Polymers that the antiviral activity of interferon sequences that encode polypeptides Joseph Hrabie, Michael Citro, Frank (IFN) is mediated by the activation of an capable of forming a T cell receptor DeRosa, and Larry Keefer (NCI). enzyme RNA adenosine deaminase (TCR) in a genetically engineered cell. U.S. Provisional Application No. 60/ (ADAR1). This enzyme acts by Specifically, these nucleic acid 613,257 filed 27 Sep 2004 (DHHS deaminating adenosine residues in sequences will encode TCR’s specific to Reference No. E–188–2004/0–US–01). dsRNA molecules of the virus into tumor associated antigens (TAA), gp100, Licensing Contact: Norbert Pontzer; inosine residues. This, in turn, may lead NY–ESO–1, and MART–1. T Cells 301/435–5502; [email protected]. to mutations, genomic instability and engineered with these tumor associated Nucleophile/nitric oxide adduct ions ultimately to complete degradation and antigen specific TCRs show specific (materials containing the X–N2O2– elimination of the virus. The subject immune responses against TAA functional group; known as patent application focuses on Hepatitis expressing cancer cells. This diazeniumdiolates or NONOates) C virus (HCV), but may be broadly observation has a profound effect on the spontaneously dissociate at applied to the other viruses. potential efficiency of new adoptive physiological pH to release nitric oxide Based on the above-described finding, therapies targeted towards cancer. (NO) with reproducible half-lives the technology offers two important An adoptive therapy method has been ranging from 2 seconds to 20 hours. The utilities in the medical field: developed using the TAA specific TCR bulk of the known and patented NIH 1. Antiviral therapeutics: Because nucleic acids to engineer isolated, non- compositions and methods using ADAR is so potent as an inhibitor of the specific T-cells. This method could diazeniumdiolates are derived from growth of HCV, an agonist of this eliminate the need to isolate and expand amine nucleophiles (i.e., where X–is pathway or specifically of ADAR should T-cells that may or may not be present R1R2N–). These inventors more recently enhance the clearance of the virus from in a cancer patient. Clinical trials are developed simple and efficient chemical the cells. Methods to identify such currently underway to prove the methods to produce diazeniumdiolates ADAR agonists are described in the efficacy of this new adoptive therapy in by bonding the N2O2–functional group subject patent applications. malignant melanoma. directly to carbon atoms. Using these 2. HCV cell line for drug and vaccine Details of this invention are published methods, the NIH inventors have now research: The finding described in the in: produced and tested polymers in which subject patent application may lead to 1. Morgan RA, Dudley ME, Yu YY, the NO releasing group is attached an efficient cell line for growing HCV. Zheng Z, Robbins PF, Theoret MR, directly to the carbon backbone of Currently, there is not a good system to Wunderlich JR, Hughes MS, Restifo NP, polyacrylonitrile containing polymers. grow this virus. The addition of ADAR Rosenberg SA. High efficiency TCR gene Available for licensing are inhibitors (such as RNAi or chemicals transfer into primary human compounds, compositions, medical that target the catalytic domain of lymphocytes affords avid recognition of devices, and methods of treatment using ADAR) to the system will result in a melanoma tumor antigen glycoprotein acrylonitrile-based polymers that release system that can efficiently grow the 100 and does not alter the recognition NO for a week or longer. virus. Such a cell line is important for of autologous melanoma antigens. J Polyacrylonitrile itself, co-polymers, vaccine development against HCV as Immunol. 2003 Sep 15;171(6):3287–95. admixtures, and products such as cloth well as the development of anti-viral 2. Zhao Y, Zheng Z, Robbins PF, and hollow fiber hemofilters have been therapeutics. Khong HT, Rosenberg SA, Morgan RA. treated and shown to release NO over In addition to licensing, the Primary human lymphocytes time. These polyacrylonitrile-based technology is available for further transduced with NY–ESO–1 antigen- products could be useful in conjunction development through collaborative specific TCR genes recognize and kill with medical devices where the many research opportunities with the diverse human tumor cell lines. J therapeutic actions of NO would be inventors. Immunol. 2005 Apr 1;174(7):4415–23. beneficial. Treatments using stents, 3. Hughes MS, Yu YY, Dudley ME, extracorporeal blood tubing, shunts, Compositions Comprising T Cell Zheng Z, Robbins PF, Li Y, Wunderlich wound dressings and many other Receptors and Methods of Use Thereof J, Hawley RG, Moayeri M, Rosenberg devices could be greatly improved by Richard Morgan (NCI) and Steven SA, Morgan RA. Transfer of a TCR Gene NO actions including but not limited to Rosenberg (NCI). Derived from a Patient with a Marked prevention of clotting, promotion of PCT Application No. PCT/US2004/ Antitumor Response Conveys Highly tissue vascularization, and reduction of 029608 filed 13 Sep 2004 (DHHS Active T-Cell Effector Functions. Hum excessive tissue proliferation. Reference No. E–106–2004/0–PCT–01). Gene Ther. 2005 Apr;16(4):457–72. In addition to licensing, the Licensing Contact: Michelle A. In addition to licensing, the technology is available for further Booden; 301/451–7337; technology is available for further development through collaborative [email protected]. development through collaborative research opportunities with the Historically, adoptive immunotherapy research opportunities with the inventors. has shown promise in treating cancer. inventors. Traditionally, these adoptive techniques A New Antiviral Pathway that is developed to date have relied on Retrovirus-Like Particles and Responsible for Viral Clearance: isolating and expanding T-cells reactive Retroviral Vaccines Modulation of ADAR1 Activities to a specific tumor associated antigen. David E. Ott (NCI). Enhance Antiviral Therapies and Virus However, the approach has been limited PCT Application filed 27 Oct 2003 Infection of Tissue Culture Systems by number of isolatable T cells specific (DHHS Reference No. E–236–2003/0– Deborah R. Taylor et al. (FDA). to a tumor-associated antigen in a PCT–01).
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Licensing Contact: Susan Ano; 301/ Name of Committee: National Heart, Lung, Street, NW., Washington, DC 20005 435–5515; [email protected]. and Blood Advisory Council. which was published in the Federal This technology describes retrovirus- Date: June 16, 2005. Register on April 27, 2005, 70 FR Doc: like particles and their production from Open: 8:30 a.m. to 1 p.m. Agenda: Discussion of program policies 05–8413. retroviral constructs in which the gene and issues. The meeting will be held for one day encoding all but seven amino acids of Place: National Institutes of Health, on June 14, 2005 from 8 a.m. to 5 p.m. the nucleocapsid (NC) protein was Building 31, 31 Center Drive, Bethesda, MD The meeting is closed to the public. deleted. This deletion functionally 20892. Dated: May 27, 2005. eliminates packaging of the genomic Closed: 1 p.m. to 4 p.m. LaVerne Y. Stringfield, RNA, thus resulting in non-infectious Agenda: To review and evaluate grant retrovirus-like particles. These particles applications. Director, Office of Federal Advisory Place: National Institutes of Health, Committee Policy. can be used in vaccines or immunogenic Building 31, 31 Center Drive, Bethesda, MD compositions. Specific examples using [FR Doc. 05–11222 Filed 6–6–05; 8:45 am] 20892. BILLING CODE 4140–01–M HIV–1 constructs are given. Contact Person: Deborah P. Beebe, PhD, Furthermore, efficient formation of Director, Division of Extramural Affairs, these particles requires inhibition of the National Heart, Lung, and Blood Institute, National Institutes of Health, Two Rockledge DEPARTMENT OF HEALTH AND protease enzymatic activity, either by HUMAN SERVICES mutation to the protease gene in the Center, Room 7100, 6701 Rockledge Drive, construct or by protease inhibitor Bethesda, MD 20892. 301/435–0260. This notice is being published less than 15 National Institutes of Health thereby ensuring the production of non- days prior to the meeting due to the timing infectious retrovirus-like particles. This limitations imposed by the review and National Institute of Dental & technology is further described in Ott et funding cycle. Craniofacial Research; Notice of al., Journal of Virology, 2003, 77(5), Any interested person may file written Closed Meetings 5547. comments with the committee by forwarding the statement to the Contact Person listed on Pursuant to section 10(d) of the Dated: May 26, 2005. this notice. The statement should include the Federal Advisory Committee Act, as Steven M. Ferguson, name, address, telephone number and when amended (5 U.S.C. Appendix 2), notice Director, Division of Technology Development applicable, the business or professional is hereby given of the following and Transfer, Office of Technology affiliation of the interested person. meetings. Transfer,National Institutes of Health. In the interest of security, NIH has The meetings will be closed to the [FR Doc. 05–11221 Filed 6–6–05; 8:45 am] instituted stringent procedures for entrance public in accordance with the into the building by non-government BILLING CODE 4140–01–P employees. Persons without a government provisions set forth in sections I.D. will need to show a photo I.D. and sign- 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., in at the security desk upon entering the as amended. The grant applications and DEPARTMENT OF HEALTH AND building. the discussions could disclose HUMAN SERVICES Information is also available on the confidential trade secrets or commercial Institute’s/Center’s home page http:// property such as patentable material, National Institutes of Health www.nhlbi.nih.gov/meetings/index.htm, and personal information concerning where an agenda and any additional individuals associated with the grant National Heart, Lung, and Blood information for the meeting will be posted Institute; Notice of Meeting when available. applications, the disclosure of which would constitute a clearly unwarranted Pursuant to section 10(d) of the (Catalogue of Federal Domestic Assistance invasion of persoanl privacy. Federal Advisory Committee Act, as Program Nos. 93.233, National Center for Name of Committee: National Institute of amended (5 U.S.C. Appendix 2), notice Sleep Disorders Research; 93.837, Heart and Dental and Craniofacial Research Special is hereby given of a meeting of the Vascular Diseases Research; 93.838, Lung Emphasis Panel, 05–84, Review K22. National Heart, Lung, and Blood Diseases Research; 93.839, Blood Diseases Date: June 30, 2005. Advisory Council. and Resources Research, National Institutes Time: 2 p.m. to 3 p.m. The meeting will be open to the of Health, HHS.) Agenda: To review and evaluate grant public as indicated below, with Dated: May 31, 2005. applications. attendance limited to space available. LaVerne Y. Stringfield, Place: National Institutes of Health, Individuals who plan to attend and Director, Office of Federal Advisory Natcher Building, 45 Center Drive, Bethesda, need special assistance, such as sign Committee Policy. MD 20892, (Telephone Conference Call). [FR Doc. 05–11218 Filed 6–6–05; 8:45 am] Contact Person: Soheyla Saadi, PhD, language interpretation or other Scientific Review Administrator, Intern, reasonable accommodations, should BILLING CODE 4410–01–M Scientific Review Branch, 45 Center Dr. Rm notify the Contact Person listed below 4AN32A, National Inst of Dental & in advance of the meeting. Craniofacial Research, National Institutes of The meeting will be closed to the DEPARTMENT OF HEALTH AND Health, Bethesda, MD 20892, (301) 594–4805, public in accordance with the HUMAN SERVICES [email protected]. provisions set forth in secions 552b(c)(4) Name of Committee: National Institute of and 552b(c)(6), title 5 U.S.C., as National Institutes of Health Dental and Craniofacial Research Special Emphasis Panel, 05–79, Review R13s. amended. The grant applications and National Institute of Neurological the discussions could disclose Date: July 6, 2005. Disorders and Stroke; Amended Notice Time: 2 p.m. to 4 p.m. confidential trade secrets or commercial of Meeting property such as patentable material, Agenda: To review and evaluate grant applications. and personal information concerning Notice is hereby given of a change in Place: National Institutes of Health, individuals associated with the grant the meeting of the Neurological Natcher Building, 45 Center Drive, Bethesda, applications, the disclosure of which Sciences and Disorders C, June 14, 2005, MD 20892, (Telephone Conference Call). would constitute a clearly unwarranted 8 a.m. to June 15, 2005, 5 p.m. Contact Person: Mary Kelly, Scientific invasion of personal privacy. Wyndham Washington, DC 1400 M Review Specialist, National Institute of
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Dental & Craniofacial Res., 45 Center Drive, Time: 8 a.m. to 11 a.m. Room 3123, Bethesda, MD 20817, (Telephone Natcher Bldg., RM 4AN38J, Bethesda, MD Agenda: To review and evaluate personal Conference Call). 20892–6402, (301) 594–4809,, qualifications and performance, and Contact Person: Alec Ritchie, PhD., [email protected]. competence of individual investigators. Scientific Review Administrator, Scientific Name of Committee: National Institute of Place: National Institutes of Health, Review Program, Division of Extramural Dental and Craniofacial Research Special Building 50, 50 Center Drive, Bethesda, MD Activities, NIAID/NID/DHHS, 6700 B Emphasis Panel, 05–74, Review R03. 20892. Rockledge Drive, MSC 7616, Bethesda, MD Date: July 8, 2005. Contact Person: Thomas J. Kindt, PhD, 20892–7616, 301–435–1614, Time: 1 p.m. to 2 p.m. Director, Division of Intramural Research, [email protected]. Agenda: To review and evaluate grant National Institute of Allergy and Infectious Name of Committee: National Institute of applications. Diseases, Building 10, Room 4A31, Bethesda, Allergy and Infectious Diseases Special Place: National Institutes of Health, MD 20892, (301) 496–3006, [email protected]. Emphasis Panel Lymphocyte Survival and Natcher Building, 45 Center Drive, Bethesda, This meeting is being published less than Death. MD 20892, (Telephone Conference Call). 15 days before the meeting date because of Date: June 29, 2005. Contact Person: Soheyla Saadi, PhD, a clerical error. In the interest of security, Time: 1 p.m. to 4 p.m.. Scientific Review Administrator, Intern, NIH has instituted stringent procedures for Agenda: To review and evaluate grant Scientific Review Branch, 45 Center Dr. Rm entrance into the building by non- applications. 4AN32A, National Inst of Dental & government employees. Persons without a Place: National Institutes of Health, Craniofacial Research, National Institutes of government I.D. will need to show a photo Rockledge 6700, 6700B Rockledge Drive, Health, Bethesda, MD 20892, (301) 594–4805, I.D. and sign-in at the security desk upon Bethesda, MD 20817, (Telephone Conference [email protected]. entering the building. Call). Contact Person: Paul A. Amstad, PhD., (Catalogue of Federal Domestic Assistance (Catalogue of Federal Domestic Assistance Scientific Review Administrator, Scientific Program Nos. 93–121, Oral Diseases and Program Nos. 93.855, Allergy, Immunology, Review Program, Division of Extramural Disorders Research, National Institutes of and Transplantation Research, 93.856, Activities, National Institutes of Health/ Health, HHS.) Microbiology and Infectious Diseases NIAID, 6700B Rockledge Drive, MSC 7616, Dated: May 27, 2005. Research, National Institutes of Healath, HHS). Bethesda, MD 20892–7616, (301) 402–7098, LaVerne Y. Stringfield, Dated: May 27, 2005. [email protected]. Director, Office of Federal Advisory LaVerne Y. Stringfield, Catalogue of Federal Domestic Assistance Committee Policy. Director, Office of Federal Advisory Program Nos. 93.855, Allergy, Immunology, [FR Doc. 05–11226 Filed 6–6–05; 8:45 am] Committee Policy. and Transplantation Research; 93.856, Microbiology and Infectious Diseases BILLING CODE 4140–01–M [FR Doc. 05–11227 Filed 6–6–05; 8:45 am] Research, National Institutes of Health, HHS) BILLING CODE 4140–01–M Dated: May 27, 2005. DEPARTMENT OF HEALTH AND LaVerne Y. Stringfield, HUMAN SERVICES DEPARTMENT OF HEALTH AND Director, Office of Federal Advisory Committee Policy. HUMAN SERVICES National Institutes of Health [FR Doc. 05–11228 Filed 6–6–05; 8:45 am] National Institute of Allergy and National Institutes of Health BILLING CODE 4140–01–M Infectious Diseases; Notice of Closed National Institute of Allergy and Meeting Infectious Diseases; Notice of Closed DEPARTMENT OF HEALTH AND Pursuant to section 10(d) of the Meetings HUMAN SERVICES Federal Advisory Committee Act, as Pursuant to section 10(d) of the amended (5 U.S.C. Appendix 2) notice National Institutes of Health Federal Advisory Committee Act, as is hereby given of a meeting of the amended (5 U.S.C. Appendix 2), notice National Library of Medicine; Notice of Board of Scientific Counselors, NIAID. Meeting Pursuant to section 10(d) of the is hereby given of the following Federal Advisory Committee Act, as meetings. The meetings will be closed to the Pursuant to section 10(a) of the amended (5 U.S.C. Appendix 2), notice public in accordance with the Federal Advisory Committee Act, as is hereby given of a meeting of the provisions set forth in sections amended (5 U.S.C. Appendix 2), notice Board of Scientific Counselors, NIAID. is hereby given of the first meeting of The meeting will be closed to the 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the NIH Public Access Working Group public as indicated below in accordance under the National Library of with the provisions set forth in section the discussions could disclose confidential trade secrets or commercial Medicine’s (NLM) Board of Regents. 552b(c)(6), Title 5 U.S.C., as amended The meeting will be open to the property such as patentable material, for the review, discussion, and public, with attendance limited to space and personal information concerning evaluation of individual intramural available. Individuals who plan to individuals associated with the grant programs and projects conducted by the attend and need special assistance, such applications, the disclosure of which National Institute of Allergy and as sign language interpretation or other would constitute a clearly unwarranted Infectious Diseases, including reasonable accommodations, should invasion of personal privacy. consideration of personnel notify the Contact Person listed below qualifications and performance, and the Name of Committee: National Institute of in advance of the meeting. competence of individual investigators, Allergy and Infectious Disease Special The mission of the NIH Public Access the disclosure of which would Emphasis Panel Review of an Unsolicited Working Group is to advise the NLM constitute a clearly unwarranted Protozoa P01 application. Board of Regents on implementation of Date: June 23, 2005. invasion of personal privacy. Time: 2 p.m. to 5 p.m. the new NIH Public Access Policy. This Name of Committee: Board of Scientific Agenda: To review and evaluate grant policy responds to strong Congressional Counselors, NIAID, Division of Intramural applications. interest in improving the public’s access Reserach, Board of Scientific Counselors. Place: National Institutes of Health, to the published results of NIH-funded Date: June 6–8, 2005. Rockledge 6700, 6700B Rockledge Drive, research. Under the policy, NIH-
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supported investigators are encouraged The meeting location remains the same. DEPARTMENT OF HEALTH AND to submit manuscripts electronically to The meeting is closed to the public. HUMAN SERVICES the National Library of Medicine’s Dated: May 31, 2005. PubMed Central (PMC). The PMC is the National Institutes of Health NIH digital repository of full-text, peer- LaVerne Y. Stringfield, reviewed biomedical, behavioral, and Director, Office of Federal Advisory Center for Scientific Review; Notice of clinical research journals. The policy Committee Policy. Closed Meetings included the establishment of this [FR Doc. 05–11219 Filed 6–6–05; 8:45 am] Pursuant to section 10(d) of the working group with representation from BILLING CODE 4140–01–M Federal Advisory Committee Act, as a broard range of interested amended (5 U.S.C. Appendix 2), notice stakeholders. The Working Group will: is hereby given of the following (1) Review statistical evidence on the DEPARTMENT OF HEALTH AND meetings. impact of the policy, e.g., number of HUMAN SERVICES The meetings will be closed to the manuscripts submitted, summary data public in accordance with the on embargo periods, connections to National Institutes of Health provisions set forth in sections other NIH information resources, level 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Center for Scientific Review; of use, etc.; (2) provide suggestions for as amended. The grant applications and improving the implementation of the Cancellation of Meeting the discussions could disclose manuscript submission system and confidential trade secrets or commercial procedures; (3) assess the extent to Notice is hereby given of the property such as patentable material, which the policy is achieving its stated cancellation of the Center for Scientific and personal information concerning goals; and (4) suggest any changes to the Review Special Emphasis Panel, June individuals associated with the grant policy that might further these goals. 24, 2005, 9 a.m. to June 24, 4 p.m., applications, the disclosure of which Marriott Bethesda North Conference Name of Committee: NIH Public Access would constitute a clearly unwarranted Working Group. Center, 5701 Marinelli Rd, Bethesda, invasion of personal privacy. MD 20852 which was published in the Date: July 11, 2005. Name of Committee: Center for Scientific Time: 10 a.m. to 3 p.m. Federal Register on May 26, 2005, 70 Review Special Emphasis Panel, Head and Agenda: NIH Public Access Policy FR 30475–30477. Neck Cancer Genetics. Research and Discussion. Date: June 23, 2005. Place: National Library of Medicine, The meeting is cancelled due to the reassignment of the applications. Time: 4 p.m. to 5 p.m. Building 38, Board Room, 2nd Floor, 8600 Agenda: To review and evaluate grant Rockville Pike, Bethesda, MD 20894. Dated: May 31, 2005. applications. Contact Person: Donald A.B. Lindberg, LaVerne Y. Stringfield, Place: National Institutes of Health, 6701 M.D., Director, National Library of Medicine, Rockledge Drive, Bethesda, MD 20892, Director, Office of Federal Advisory National Institutes of Health, Building 38, (Telephone Conference Call). Room 2E17, Bethesda, MD 20894, 301–496– Committee Policy. Contact Person: Joanna M. Watson, PhD, 6221. [FR Doc. 05–11220 Filed 6–6–05; 8:45 am] Scientific Review Administrator, Center for Any interested person may file written BILLING CODE 4140–01–M Scientific Review, National Institutes of comments with the committee by forwarding Health, 6701 Rockledge Drive, Room 6046–G, the statement to the Contact Person listed on MSC 7804, Bethesda, MD 20892, 301–435– this notice. The comments should include 1048, [email protected]. the name, address, telephone number and, DEPARTMENT OF HEALTH AND when applicable, the business or professional HUMAN SERVICES Name of Committee: Center for Scientific affiliation of the interested person. Review Special Emphasis Panel, Special National institutes of Health Review in Cognition and Perception. Dated: May 27, 2005. Date: June 24, 2005. LaVerne Y. Stringfield, Center for Scientific Review; Time: 8:30 a.m. to 9:30 a.m. Agenda: To review and evaluate grant Director, Office of Federal Advisory Cancellation of Meeting Committee Policy. applications. Place: Radisson Barcelo, 2121 P St, NW., [FR Doc. 05–11225 Filed 6–6–05; 8:45 am] Notice is hereby given of the Washington, DC 20037. BILLING CODE 4140–01–M cancellation of the Biomaterials and Contact Person: Dana Jeffrey Plude, PhD, Biointerfaces Study Section, June 27, Scientific Review Administrator, Center for 2005, 8 a.m. to June 28, 2005, 5 p.m., Scientific Review, National Institutes of DEPARTMENT OF HEALTH AND Holiday Inn Select Bethesda, 8120 Health, 6701 Rockledge Drive, Room 3192, HUMAN SERVICES MSC 7848, Bethesda, MD 20892, 301–435– Wisconsin Ave, Bethesda, MD, 20814 2309, [email protected]. which was published in the Federal National Institutes of Health Name of Committee: Center for Scientific Register on May 26, 2005, 70 FR 30475– Review Special Emphasis Panel, Mating in Center for Scientific Review; Amended 30477. Mosquitoes. Notice of Meeting The meeting is cancelled due to a lack Date: June 24, 2005. of quorum. Time: 3 p.m. to 4 p.m. Notice is hereby given of a change in Agenda: To review and evaluate grant the meeting of the Center for Scientific Dated: May 27, 2005. applications. Review Special Emphasis Panel, June 6, LaVerne Y. Stringfield, Place: National Institutes of Health, 6701 Rockledge Drive, Bethesda, MD 20892, 2005, 12 p.m. to June 6, 2005, 1 p.m., Director, Office of Federal Advisory Lathan Hotel, 3000 M Street, NW., (Telephone Conference Call). Committee Policy. Contact Person: Fouad A. El-Zaatari, PhD, Washington, DC 20007 which was [FR Doc. 05–11223 Filed 6–6–05; 8:45 am] published in the Federal Register on Scientific Review Administrator, Center for BILLING CODE 4140–01–M Scientific Review, National Institutes of May 6, 2005, 70 FR 24099–24102. Health, 6701 Rockledge Drive, Room 3206, The meeting will be held June 6, MSC 7808, Bethesda, MD 20814–9692, (301) 2005, 12 p.m. to June 7, 2005, 12 p.m. 435–1149, [email protected].
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(Catalogue of Federal Domestic Assistance (2) Evaluate the accuracy of the number, date of birth, address, phone Program Nos. 93.306, Comparative Medicine; agency’s estimate of the burden; number; and fingerprints. 93.333, Clinical Research, 93.306, 93.333, (3) Enhance the quality, utility, and The current estimated annual 93.337, 93.393–93.396, 93.837–93.844, clarity of the information to be reporting burden is 8,299 hours. 93.846–93.878, 93.892, 93.893, National Institutes of Health, HHS.) collected; and Issued in Arlington, Virginia, on June 1, Dated: May 27, 2005. (4) Minimize the burden of the 2005. collection of information on those who LaVerne Y. Stringfield, Lisa S. Dean, are to respond, including through the Privacy Officer. Director, Office of Federal Advisory use of appropriate automated, Committee Policy. [FR Doc. 05–11263 Filed 6–6–05; 8:45 am] electronic, mechanical, or other BILLING CODE 4910–62–P [FR Doc. 05–11224 Filed 6–6–05; 8:45 am] technological collection techniques or BILLING CODE 4140–01–M other forms of information technology. 1652–0029; Enhanced Security DEPARTMENT OF HOUSING AND Procedures for Operations at Certain URBAN DEVELOPMENT DEPARTMENT OF HOMELAND Airports in the Washington, DC, SECURITY Metropolitan Area Flight Restricted [Docket No. FR–4971-N–29] Zone (Maryland Three Airports (MD–3)) Transportation Security Administration 49 CFR part 1562. The Federal Aviation Notice of Submission of Proposed [Docket No. TSA–2005–20118] Administration initially required this Information Collection to OMB; Land collection under Special Federal Survey Report for Insured Multifamily Notice of Intent To Request Renewal Aviation Regulation (SFAR) 94, for Projects From the Office of Management and which OMB granted approval under AGENCY: Budget (OMB) of One Current Public Office of the Chief Information control number 2120–0677. The Officer, HUD. Collection of Information; Enhanced responsibility for the collection was ACTION: Notice. Security Procedures for Operations at transferred to TSA and assigned OMB Certain Airports in the Washington, control number 1652–0029 with the SUMMARY: The proposed information DC, Metropolitan Area Flight Restricted implementation of an interim final rule collection requirement described below Zone (IFR) published on February 10, 2005 has been submitted to the Office of AGENCY: Transportation Security (70 FR 7150). This IFR codified and Management and Budget (OMB) for Administration (TSA), DHS. transferred responsibility for ground review, as required by the Paperwork security requirements and procedures at ACTION: Notice. Reduction Act. The Department is three Maryland airports that are located soliciting public comments on the SUMMARY: TSA invites public comment within the Washington, DC, subject proposal. on one currently approved information Metropolitan Area Flight Restricted To secure a marketable title and title collection requirement abstracted below Zone, and for individuals operating insurance for their property, that will be submitted to OMB for aircraft to and from these airports, from multifamily projects submit a land renewal in compliance with the FAA to TSA. These three airports survey and related information. HUD is Paperwork Reduction Act. (Maryland Three Airports) are College requesting an extension of the currently Park Airport (CGS), Potomac Airfield DATES: Send your comments by August approved collection. (VKX), and Washington Executive/Hyde 8, 2005. DATES: Comments Due Date: July 7, Field (W32). The information collected 2005. ADDRESSES: Comments may be mailed is used to determine compliance with or delivered to Katrina Wawer, 49 CFR part 1562. ADDRESSES: Interested persons are Information Collection Specialist, Office Part 1562 allows an individual who is invited to submit comments regarding of Transportation Security Policy, TSA– approved by TSA to operate an aircraft this proposal. Comments should refer to 9, Transportation Security to or from one of the Maryland Three the proposal by name and/or OMB Administration, 601 South 12th Street, Airports. In order to be approved an approval Number (2502–0010) and Arlington, VA 22202–4220. individual is required to successfully should be sent to: HUD Desk Officer, FOR FURTHER INFORMATION CONTACT: Ms. complete a security threat assessment. Office of Management and Budget, New Wawer at the above address or by As part of this threat assessment, an Executive Office Building, Washington, telephone (571) 227–1995 or facsimile individual is required to undergo a DC 20503; fax: 202–395–6974. (571) 227–2594. criminal history records check. An FOR FURTHER INFORMATION CONTACT: SUPPLEMENTARY INFORMATION: individual (pilot or airport security Wayne Eddins, Reports Management In accordance with the Paperwork coordinator) also is required to undergo Officer, AYO, Department of Housing Reduction Act of 1995, (44 U.S.C. 3501 a terrorist threat analysis. This may and Urban Development, 451 Seventh et seq.), an agency may not conduct or include a check of terrorist watch lists Street, SW., Washington, DC 20410; e- sponsor, and a person is not required to and other databases to determine mail [email protected]; or respond to a collection of information, whether an applicant poses a security Lillian Deitzer at unless it displays a valid OMB control threat or to confirm an applicant’s [email protected] or number. Therefore, in preparation for identity. An individual will not receive telephone (202) 708–2374. This is not a submission to renew clearance of the TSA approval under this analysis if TSA toll-free number. Copies of available following information collection, TSA is determines or suspects the individual of documents submitted to OMB may be soliciting comments to— being a threat to national or obtained from Mr. Eddins or Ms. (1) Evaluate whether the proposed transportation security, or of posing a Deitzer, or downloaded from HUD’s information requirement is necessary for threat of terrorism. The following Web site at http://hlannwp031.hud.gov/ the proper performance of the functions information must be provided to TSA by po/i/icbts/collectionsearch.cfm. of the agency, including whether the prospective pilots and airport security SUPPLEMENTARY INFORMATION: This information will have practical utility; coordinators: full name, social security notice informs the public that the
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Department of Housing and Urban accuracy of the agency’s estimate of the Title of Proposal: Land Survey Report Development has submitted to OMB a burden of the proposed collection of for Insured Multifamily Projects. request for approval of the information information; (3) enhance the quality, OMB Approval Number: 2502–0010. collection described below. This notice utility, and clarity of the information to Form Numbers: HUD–2457. be collected; and (4) minimize the is soliciting comments from members of Description of the Need for the the public and affecting agencies burden of the collection of information on those who are to respond; including Information and Its Proposed Use: To concerning the proposed collection of secure a marketable title and title information to: (1) Evaluate whether the through the use of appropriate automated collection techniques or insurance for their property, proposed collection of information is multifamily projects submit a land necessary for the proper performance of other forms of information technology, e.g., permitting electronic submission of survey and related information, the functions of the agency, including responses. Frequency of Submission: Twice: whether the information will have This notice also lists the following during application period and closing practical utility; (2) evaluate the information: period.
Number of re- Annual re- × Hours per re- spondents sponses sponse = Burden hours
Reporting burden ...... 1,300 2 0.5 1300
Total Estimated Burden Hours: 1,300. 2. Parties receiving service of the the Federal Land Policy and Status: Extension of a currently decision by certified mail shall have 30 Management Act of 1976 and approved collection. days from the date of receipt to file an regulations at Title 43 CFR 2920. The Authority: Section 3507 of the Paperwork appeal. land, consisting of approximately 1 acre, Reduction Act of 1995, 44 U.S.C. 35, as Parties who do not file an appeal in is on the Middle Fork of the Goodnews amended. accordance with the requirements of 43 River approximately 10 miles upstream CFR Part 4, Subpart E, shall be deemed Dated: May 31, 2005. from the village of Goodnews Bay: to have waived their rights. located within a portion of the NW1/ Wayne Eddins, ADDRESSES: A copy of the decision may 4SW1/4 of Section 3, T. 12 S., R. 72 W., Departmental Paperwork Reduction Act be obtained from: Bureau of Land Seward Meridian. Officer, Office of the Chief Information Officer Management, Alaska State Office, 222 . DATES: Interested parties may submit West Seventh Avenue, #13, Anchorage, comments until July 22, 2005. [FR Doc. E5–2878 Filed 6–6–05; 8:45 am] Alaska 99513–7599. BILLING CODE 4210–27–P ADDRESSES: Mail comments to Gary FOR FURTHER INFORMATION CONTACT: Eileen Ford, by phone at (907) 271– Reimer, Field Manager, Anchorage Field 5715, or by e-mail at Office, 6881 Abbott Loop Road, DEPARTMENT OF THE INTERIOR [email protected]. Persons who Anchorage, Alaska 99507–2599. FOR FURTHER INFORMATION CONTACT: Carl Bureau of Land Management use a telecommunication device (TTD) may call the Federal Information Relay Persson, (907) 267–1277 or (800) 478– [AK964–1410–HY–P, F–14861–B, BSA–2] Service (FIRS) at 1–800–877–8330, 24 1263. hours a day, seven days a week, to SUPPLEMENTARY INFORMATION: This is a Alaska Native Claims Selection contact Ms. Ford. notice of a proposal for a land use AGENCY: Bureau of Land Management, Eileen Ford, authorization. No additional proposals DOI. Land Law Examiner, Branch of Adjudication will be accepted. The proponent will ACTION: Notice of decision approving II. reimburse the United States for lands for conveyance. [FR Doc. 05–11201 Filed 6–6–05; 8:45 am] reasonable administrative fees and other BILLING CODE 4310–$$–M costs incurred by the United States in SUMMARY: As required by 43 CFR processing the proposed authorization. 2650.7(d), notice is hereby given that an The proposed authorization would appealable decision approving lands for DEPARTMENT OF THE INTERIOR authorize the proponent’s conveyance pursuant to the Alaska improvements to remain on the land. Native Claims Settlement Act will be Bureau of Land Management 1 Fish weir consisting of a 130 ft issued to Golovin Native Corporation, [AK040–1410–EQ] resistance board weir for the lands in T. 13 S., R. 20 W., Tps. 2 Wall tents 11 and 13 S., R. 21 W., and T. 12 S., R. Notice of Realty Action; FLPMA 22 W., Kateel River Meridian, located in Section 302 Lease, Goodnews River, 1 Weatherport tent the vicinity of Golovin, Alaska, AK 1 Wooden steam bath containing approximately 4,388 acres. Various camp structures such as Notice of the decision will also be AGENCY: Bureau of Land Management, wooden tables, grated walking published four times in the Nome Interior. platforms, work benches and storage Nugget. ACTION: Notice of realty action. shelving DATES: The time limits for filing an SUMMARY: The State of Alaska, 1 Wooden outhouse appeal are: Department of Fish & Game (proponent) The proposed authorization would be 1. Any party claiming a property submitted a proposal for a land use offered to the Applicant for a term of 10 interest which is adversely affected by authorization to continue operating a years and would require rent to be paid the decision shall have until July 7, salmon weir and associated camp on to the United States at fair market value. 2005, to file an appeal. public land pursuant to Section 302 of In the absence of a timely objection, this
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proposal may become the final decision described public land is not needed for 81212, on or before July 22, 2005. of the Department of the Interior. any federal purpose and has been Comments on the proposed identified for disposal in the Northeast classification are restricted to the Clinton Hanson, Colorado Resource Management Plan following four criteria, which are Acting Field Manager, Anchorage Field (September 1986). Leasing and outlined in the regulations at 43 CFR Office. subsequent disposal of the land to 2410.1: [FR Doc. 05–11202 Filed 6–6–05; 8:45 am] Boulder County for recreational 1. Whether the land is physically BILLING CODE 4310–JA–P purposes is consistent with current BLM suited for the purpose for which it is land use planning and would classified; complement the County’s public 2. Whether the proposed use will DEPARTMENT OF THE INTERIOR outdoor recreation program. The lease maximize the future use or uses of the land and minimize disturbance to or Bureau of Land Management would be issued for an initial term of five years to allow Boulder County dislocation of existing users; [CO200–1430–ES, ET; COC–63837] sufficient time to develop the parking 3. Whether the proposed use is area, trailhead and interpretive signs. consistent with local planning and Notice of Realty Actions The BLM would subsequently convey zoning requirements; and 4. Whether the proposed use is AGENCY: Bureau of Land Management, the land to Boulder County after recreational development activities have consistent with state and federal Interior. programs. ACTION: Notice of realty actions. been completed. The lease and subsequent patent, if The BLM Colorado State Director will review any adverse comments received SUMMARY: The Bureau of Land issued, would be subject to the following terms, conditions, and on the proposed classification. In the Management (BLM) has examined and absence of any adverse comments, the found suitable for classification for lease reservations: 1. Provisions of the Recreation and classification will become effective on and conveyance under the provisions of August 8, 2005. the Recreation and Public Purposes Act Public Purposes Act and all applicable approximately 102.91 acres of public regulations of the Secretary of the Application Comments land located Boulder County. The realty Interior. You may also submit comments 2. A reservation to the United States would be developed and used for hiking regarding the specific uses and facilities of a right-of-way for ditches and canals and other recreational pursuits. proposed in Boulder County’s constructed by the authority of the DATES: Comments as to the proposed Recreation and Public Purposes Act United States under the Act of August classification and the lease and application and plan of development, or 30, 1890 (43 U.S.C. 945). conveyance application must be 3. A reservation to the United States any other factor not directly related to received by BLM on or before July 22, of all minerals, together with the right the suitability of the land for 2005. to prospect for, mine, and remove the recreational use and development. Your ADDRESSES: Comments should be sent to minerals under applicable laws and comments on Boulder County’s the Field Manager, Royal Gorge Field regulations established by the Secretary application should be sent to the Royal Office, Bureau of Land Management, of the Interior. Gorge Field Manager, Bureau of Land 3170 East Main Street, Can˜ on City, 4. All valid existing rights. Management, 3170 East Main Street, Colorado 81212. 5. Terms, covenants and conditions Can˜ on City, Colorado 81212, on or FOR FURTHER INFORMATION, CONTACT: identified through the applicable before July 22, 2005. Debbie Bellew, Land Law Examiner, environmental analysis or that the (Authority: 43 CFR 2741.5(h)(1) and (h)(3)). BLM Royal Gorge Field Office, (719) authorized officer determines Roy L. Masinton, 269–8514. appropriate to ensure public access and Royal Gorge Field Manager. SUPPLEMENTARY INFORMATION: the proper use and management of the The Board [FR Doc. 05–11203 Filed 6–6–05; 8:45 am] of County Commissioners for Boulder, realty. BILLING CODE 4310–JB–P County, Colorado, has filed a petition- You may obtain additional detailed application under the provisions of the information concerning this Notice of Realty Action from the Royal Gorge Recreation and Public Purposes Act, as DEPARTMENT OF THE INTERIOR amended (43 U.S.C. 869 et seq.), for Field Office of the BLM, 3170 East Main ˜ classification, and for a lease and Street, Canon City, Colorado 81212. National Park Service subsequent conveyance of the following On June 7, 2005, the above-described described public land: public land is segregated from all forms National Register of Historic Places; of appropriation under the public land Notification of Pending Nominations T. 1 N., R. 73 W., Sixth Principal Meridian, laws, including the mining and mineral and Related Actions Colorado, leasing laws, except for leasing or Section 12, lots 33, 43, 47, 48, 50, 59, and conveyance under the Recreation and Nominations for the following 65, containing approximately 102.91 acres. Public Purposes Act. properties being considered for listing The BLM has examined the above- or related actions in the National described land in Boulder County and Classification Comments Register were received by the National finds it is suitable for classification lease You may submit comments regarding Park Service before May 21, 2005. and subsequent conveyance to the the proposed classification of the above- Pursuant to section 60.13 of 36 CFR part County under the provisions of the described public land as suitable for use 60 written comments concerning the Recreation and Public Purposes Act, as by Boulder County as a recreation area, significance of these properties under amended (43 U.S.C. 869 et seq.). The to include a parking area, trailhead, the National Register criteria for land would be used for hiking and other interpretive signs, and trail management evaluation may be forwarded by United recreational purposes and would to the Royal Gorge Field Manager, States Postal Service, to the National include a parking area, trailhead, Bureau of Land Management, 3170 East Register of Historic Places, National interpretive signs, and trails. The above- Main Street, Can˜ on City, Colorado Park Service, 1849 C St. NW., 2280,
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Washington, DC 20240; by all other Virginia implementing provisions of the carriers, National Register of Historic Fredericksburg Independent City, Carl’s, Paperwork Reduction Act of 1995 (Pub. Places, National Park Service, 1201 Eye 2200 Princess Anne St., Fredericksburg L. 104–13), require that interested St. NW, 8th floor, Washington DC (Independent City), 05000642 members of the public and affected 20005; or by fax, 202–371–6447. Written Wisconsin agencies have an opportunity to or faxed comments should be submitted Portage County comment on information collection and by June 22, 2005. Nelson Hall, 1209 Fremont St., Stevens recordkeeping activities [see 5 CFR 1320.8(d)]. This notice identifies John W. Roberts, Point, 05000643 To assist in the preservation of the information collections that OSM will Acting Chief, National Register/National following historic property the comment be submitting to OMB for approval. Historic Landmarks Program. period has been shortened to three (3) days: These collections are contained in (1) 30 Connecticut Georgia CFR part 740, General requirements for Hartford County Pickens County surface coal mining and reclamation Moore, Rosswell, II, House, (Colonial Georgia Marble Company and Tate Historic operations on Federal lands (1029– Houses of Southington TR) 1166 District, Centered on GA 53 bet GA 5 and 0027); and (2) 30 CFR part 780, State- Andrews St., Southington, 05000629 Long Swamp Creek, Tate, 05000644 Federal cooperative agreements (1029– Maryland [FR Doc. 05–11204 Filed 6–6–05; 8:45 am] 0092). OSM will request a 3-year term BILLING CODE 4312–51–P of approval for each information Anne Arundel County collection activity. Marley Neck Rosenwald School, (Rosenwald Schools of Anne Arundel Comments are invited on: (1) The County, Maryland MPS) 7780 Solley Rd., DEPARTMENT OF THE INTERIOR need for the collection of information Glen Burnie, 05000630 for the performance of the functions of Office of Surface Mining Reclamation the agency; (2) the accuracy of the Missouri and Enforcement agency’s burden estimates; (3) ways to Jackson County enhance the quality, utility and clarity Notice of Proposed Information Old Town Historic District (Boundary of the information collection; and (4) Collection for 1029–0027 and 1029– Increase), 119, 207 and 213 Walnut St., ways to minimize the information 0036 Kansas City, 05000632 collection burden on respondents, such St. Louis Independent City, Wolfner, Henry AGENCY: Office of Surface Mining as use of automated means of collection L., Memorial Library for the Blind, 3842– 44 Olive St., St. Louis (Independent Reclamation and Enforcement. of the information. A summary of the City), 05000631 ACTION: Notice and request for public comments will accompany comments. OSM’s submission of the information New Mexico collection requests to OMB. Santa Fe County SUMMARY: In compliance with the The following information is provided Route 66 and National Old Trails Road Paperwork Reduction Act of 1995, the for the information collection: (1) Title Historic District at La Bajada, (Route 66 Office of Surface Mining Reclamation of the information collection; (2) OMB through New Mexico MPS) Appox. 0.5 and Enforcement (OSM) is announcing control number; (3) summary of the mi. NE of N terminus of NM 16, La its intention to request approval to information collection activity; and (4) Bajada Village, 05000633 continue the collections of information frequency of collection, description of New York under 30 CFR part 740, Surface Coal the respondents, estimated total annual Greene County Mining and Reclamation Operations on responses, and the total annual Platte Clove Post Office, Old, 2340 Platte Federal Lands; and 30 CFR part 780, reporting and recordkeeping burden for Clove Rd., Elka Park, 05000637 Surface Mining Permit Applications— the collection of information. Orange County Minimum Requirements for Title: 30 CFR part 740—General Sawyer Farmhouse, 178 Maple Ave., Reclamation and Operation Plans. These requirements for surface coal mining Goshen, 05000636 information collection activities were and reclamation operations on Federal Wisner, George T., House, 145 South St., previously approved by the Office of lands. Goshen, 05000634 Management and Budget (OMB), and OMB Control Number: 1029–0027. Orleans County assigned clearance numbers 1029–0027 Summary: Section 523 of SMCRA Blood, Jackson, Cobblestone House, and –0036, respectively. (Cobblestone Architecture of New York requires that a Federal lands program be DATES: Comments on the proposed State MPS) 142 S. Main St., Lyndonville, established to govern surface coal 05000635 information collection must be received mining and reclamation operations on by August 8, 2005 Federal Register, to Federal lands. The information Oregon be assured of consideration. requested is needed to assist the Benton County ADDRESSES: Comments may be mailed to regulatory authority determine the Watson—Price Farmstead, 23380 Hoskins John A. Trelease, Office of Surface eligibility of an applicant to conduct Rd., Philomath, 05000638 Mining Reclamation and Enforcement, surface coal mining operations on Clackamas County 1951 Constitution Ave, NW., Room 202– Federal lands. Willamette River (Oregon City) Bridge (No. SIB, Washington, DC 20240. Comments Frequency of Collection: Once. 357), Spanning the Williamette River on may also be submitted electronically to Description of Respondents: Oswego Hwy 3(Ore-43) bet. Oregon City [email protected]. and West Linn, Oregon City, 05000639 Applicants for surface coal mine FOR FURTHER INFORMATION CONTACT: To Josephine County permits on Federal lands, and State Rogue Theatre, 143 SE ‘‘H’’ St., Grants request a copy of the information Regulatory Authorities. Pass, 05000640 collection requests, explanatory Total Annual Responses: 42. Multnomah County information and related forms, contact Total Annual Burden Hours for Auto Freight Transport Building of Oregon John A. Trelease, at (202) 208–2783. Applicants: 2,602. and Washington, 1001 SE Water Ave., SUPPLEMENTARY INFORMATION: OMB Total Annual Burden Hours for Portland, 05000641 regulations at 5 CFR 1320, which States: 800.
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Total Annual Burden for All Trade Commission, 500 E Street, SW., On April 13, 2005, the Commission Respondents: 3,402. Washington, DC 20436, telephone (202) issued a notice indicating (1) that it had Title: 30 CFR part 780—Surface 708–5468. Copies of non-confidential determined not to review the ALJ’s ID Mining Permit Applications—Minimum documents filed in connection with this granting the Commission investigative Requirements for Reclamation and investigation are or will be available for attorney’s (‘‘IA’’) motion for summary Operation Plan. inspection during official business determination of no violation because of OMB Control Number: 1029–0036. hours (8:45 a.m. to 5:15 p.m.) in the noninfringement of the ‘866 patent by Summary: Sections 507(b), 508(a), Office of the Secretary, U.S. Pet Center, Inc., and (2) that it was 510(b), 515(b), and (d), and 522 of International Trade Commission, 500 E terminating the investigation as to the Public Law 95–87 require applicants to Street, SW., Washington, DC 20436, last respondent, Pet Center. 70 FR 20596 submit operations and reclamation telephone (202) 205–2000. General (April 20, 2005). The Commission also plans for coal mining activities. information concerning the Commission requested briefing on the issues of Information collection is needed to may also be obtained by accessing its remedy, the public interest, and determine whether the plans will Internet server (http://www.usitc.gov). bonding relating to the default finding achieve the reclamation and The public record for this investigation of unlawful importation and sale of environmental protections pursuant to may be viewed on the Commission’s infringing products by TsingTao China. the Surface Mining Control and electronic docket (EDIS) at http:// Id. The IA submitted his brief on Reclamation Act. Without this edis.usitc.gov. Hearing-impaired remedy, the public interest, and information, Federal and State persons are advised that information on bonding and his proposed order on regulatory authorities cannot review and this matter can be obtained by April 25, 2005. The complainants did approve permit application requests. contacting the Commission’s TDD not submit a brief or a proposed order Bureau Form Number: None. terminal on (202) 205–1810. and the respondent did not file a reply Frequency of Collection: Once. SUPPLEMENTARY INFORMATION: This submission. Description of Respondents: patent-based section 337 investigation The Commission found that each of Applicants for surface coal mine was instituted by the Commission based the statutory requirements of section permits on Federal lands, and State on a complaint filed by complainants, 337(g)(1)(A)–(E), 19 U.S.C. Regulatory Authorities. Thomas J. Baumgartner and Hillbilly 1337(g)(1)(A)–(E), has been met with Total Annual Responses: 505. Smokehouse, Inc., both of Rogers, respect to defaulting respondent Total Annual Burden Hours for Arkansas. 69 FR 32044 (June 8, 2004). TsingTao China. Accordingly, pursuant Applicants: 146,376. The complainants alleged violations of to section 337(g)(1), 19 U.S.C. Total Annual Burden Hours for section 337 in the importation into the 1337(g)(1), and Commission rule States: 88,752. United States, the sale for importation, 210.16(c) 19 CFR 210.16(c), the Total Annual Burden for All and the sale within the United States Commission presumed the facts alleged Respondents: 235,128. after importation of certain pet food in the amended complaint to be true. Total Annual Burden Costs for All treats by reason of infringement of The Commission determined that the Respondents: $2,258,045. United States Design Patent No. 383,866 appropriate form of relief in this Dated: June 1, 2005. (the ‘‘ ‘866 patent’’). The amended investigation is a limited exclusion Stephen C. Parsons, complaint named six respondents, order prohibiting the unlicensed entry Acting Chief, Division of Regulatory Support. including TsingTao ShengRong Seafood, of pet food treats covered by the ‘866 [FR Doc. 05–11294 Filed 6–6–05; 8:45 am] Inc. of China (‘‘TsingTao China’’). The patent that are manufactured abroad by Commission has terminated the BILLING CODE 4310–05–M or on behalf of, or imported by or on investigation as to the five other behalf of, TsingTao China or any of its respondents based on findings of non- affiliated companies, parents, infringement, failure to prosecute, or subsidiaries, or other related business INTERNATIONAL TRADE settlement agreements. No petitions for COMMISSION entities, or their successors or assigns. review of the ALJ’s Initial The Commission further determined [Inv. No. 337–TA–511] Determinations (‘‘IDs’’) were filed. that the public interest factors On August 19, 2004, complainants enumerated in section 337(g)(1), 19 In the Matter of Certain Pet Food filed a motion for an order directed to U.S.C. 1337(g)(1), do not preclude Treats; Issuance of a Limited several respondents, including TsingTao issuance of the limited exclusion order. Exclusion Order Against a Respondent China, to show cause why they should Finally, the Commission determined Found in Default; Termination of not be found in default for failing to that the amount of bond to permit Investigation respond to the complaint and notice of temporary importation during the investigation. TsingTao China did not Presidential review period shall be in AGENCY: U.S. International Trade file a response to complainants’ motion. Commission. the amount of 100 percent of the entered On October 4, 2004, the ALJ issued an value of the infringing imported pet ACTION: Notice. order (Order No. 6) requiring TsingTao food treats. The Commission’s order was China to show cause why it should not SUMMARY: Notice is hereby given that delivered to the President on the day of be found in default. TsingTao China did its issuance. the U.S. International Trade not respond to the show cause order. On Commission has issued a limited November 10, 2004, the ALJ issued an The authority for the Commission’s exclusion order against a respondent ID (Order No. 8), which was not determination is contained in section found in default in the above-captioned reviewed by the Commission, finding 337 of the Tariff Act of 1930, as investigation and has terminated the respondent TsingTao China in default. amended (19 U.S.C. 1337), and in investigation. On November 22, 2004, the section 210.16(c) of the Commission’s FOR FURTHER INFORMATION CONTACT: complainants filed a motion for Rules of Practice and Procedure (19 CFR Michelle Walters, Esq., Office of the immediate relief against TsingTao China 210.16(c)). General Counsel, U.S. International based on the ‘866 patent. Issued: June 1, 2005.
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By order of the Commission. proceedings in this matter were not Office of the DEA Deputy Marilyn R. Abbott, required. Attched to the Government’s Administrator. Secretary to the Commission. Motion was a copy of the Texas Board’s The Deputy Administrator has [FR Doc. 05–11215 Filed 6–6–05; 8:45 am] Order Granting Temporary Suspension, considered the record in its entirety and pursuant to 21 CFR 1316.67, hereby BILLING CODE 7020–02–P temporarily suspending Respondent’s medical license, effective July 27, 2004, issues her final order based upon until such time as that action was findings of fact and conclusions of law superseded by a subsequent order of the as hereinafter set forth. The Deputy DEPARTMENT OF JUSTICE Board. Administrator adopts, in full, the Drug Enforcement Administration On November 18, 2004, Judge Bittner Opinion and Recommended Decision of issued a Memorandum to Counsel the Administrative Law Judge. [Docket No. 05–2] providing Respondent until December 6, The Deputy Administrator finds that 2004, to respond to the Government’s Respondent holds DEA Certificate of Stuart A. Bergman, M.D., Revocation of Motion. Respondent filed an opposition Registration BB0187953 as a Registration and an amended opposition to the practitioner. The Deputy Administrator further finds that effective July 27, 2004, On September 16, 2004, the Deputy Government’s Motion and on December Respondent’s license to practice Assistant Administrator, Office of 17, 2004, his counsel requested that medicine in Texas was temporarily Diversion Control, Drug Enforcement Judge Bittner delay her ruling on the Government’s Motion until after suspended after the Texas Board Administration (DEA), issued an Order February 2, 2005, when a hearing was concluded ‘‘Respondent’s continuation to Show Cause to Stuart A. Bergman, scheduled before the Texas Board, in the practice of medicine would M.D., (Respondent) of San Antonio, which could impact the suspension constitute a continuing threat to the Texas, notifiying him of an opportunity status of his license. Over the public welfare.’’ That action was based to show cause as to why DEA should Government’s objections, Judge Bittner primarily upon facts similar to those not revoke his DEA Certificate of granted Respondent a delay until March alleged in DEA’s Order to Show Cause Registration BB0187953 as a practitioner 1, 2005, in order to file documentation and there is no evidence that the pursuant to 21 U.S.C. 824(a)(3) and (4), showing he was then-authorized to temporary suspension has been set and deny any pending applications for handle controlled substances in Texas. aside, stayed or modified. renewal or modification of that On March 1, 2005, Respondent filed The Deputy Administrator therefore registration pursuant to 21 U.S.C. 823(f). an Advisory Memorandum with the finds Respondent is currently not As a basis for revocation, the Order to Administrative Law Judge. In that licensed to practice medicine in Texas Show Cause alleged, in sum, that document he did not claim his Texas and lacks authorization to handle Respondent’s Texas medical license had medical license had been reinstated. controlled substances in that state. been temporarily suspended and he did However he asserted that during the DEA does not have statutory authority not have authority to handle controlled February 2nd hearing, the Texas Board under the Controlled Substances Act to substances in that state; that he issued had offered to return his license, subject issue or maintain a registration if the prescriptions to a physician’s assistant to certain conditions. However, applicant or registrant is without state for non-therapeutic resaons and failed to Respondent claimed that when he authority to handle controlled keep medical records on that individual; received the draft Agreed Order, he substances in the state in which he that he failed to respond to inquiries would not sign it, as he felt it contained conducts business. See 21 U.S.C. from pharmacies and the Texas State findings and conditions to which he had 802(21), 823(f) and 824(a)(3). This Board of Medical Examiners (Texas not agreed. Because he did not sign the prerequisite has been consistently Board) about those prescriptions; that he Agreed Order, the matter would be upheld. See Stephen J. Graham, M.D., left threatening voicemails for a staff proceeding to a formal disciplinary 69 FR 11,661 (2004), Dominick A. Ricci, attorney from the Texas Board; and that hearing and Respondent asked Judge M.D., 58 FR 51,104 (1993); Bobby Watts, he purchased excessive quantities of Bittner to ‘‘temporarily suspend’’ his M.D., 53 FR 11,919 (1988). Denial or controlled substances and told DEA registration until the Texas Board revocation is also appropriate when a investigators he distributed them to had rendered its final decision. state license has been suspended, but family members without keeping On March 8, 2005, Judge Bittner with the possibiity of future medical charts on those individuals. issued her Opinion and Recommended reinstatement. See Paramabaloth Edwin, Respondent, through counsel, timely Decision of the Administrative Law M.D., 69 FR 58,540 (2004); Alton E. requested a hearing in this matter and Judge (Opinion and Recommended Ingram, Jr., M.D., 69 FR 22,562 (2004); Presiding Administrative Law Judge Decision). As part of her recommended Anne Lazar Thorn, M.D., 62 FR 847 Mary Ellen Bittner (Judge Bittner) issued ruling, Judge Bittner denied (1997). an Order for Prehearing Statements. On Respondent’s request to temporarily Here, it is clear Respondent is not November 17, 2004, in lieu of filing a suspend his registration and granted the currently licensed to handle controlled prehearing statement, the Government Government’s Motion for Summary substances in Texas, the jurisdiction in filed its Motion for Summary Disposition, finding Respondent lacked which he is registered with DEA. Disposition and Motion to Stay the authorization to handle controlled Therefore, he is not entitled to Filing of Prehearing Statements substances in Texas, the state in which registration in that state. (Motion). In its Motion the Government he is registered with DEA and Accordingly, the Deputy asserted the Texas Board had recommending that Respondent’s DEA Administrator of the Drug Enforcement temporarily suspended Respondent’s Certificate of Registration be revoked Administration, pursuant to the license to practice medicine, effective and any pending applications denied. authority vested in her by 21 U.S.C. 823 July 27, 2004, and that he was no longer No exceptions were filed by either and 824 and 28 CFR 0.100(b) and 0.104, authorized to handle controlled party to Judge Bittner’s Opinion and hereby orders that DEA Certificate of substances in Texas, where he is Recommended Decision and on April Registration BB0187953, issued to registered with DEA. As a result, the 14, 2005, the record of these Stuart A. Bergman, M.D., be, and it Government argued that further proceedings was transmitted to the hereby is, revoked. The Deputy
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Administrator further orders that any After considering material from the (2004); Anne Lazar Thorn, M.D. 62 FR pending applications for renewal or investigative file in this matter, the 847 (1997). modification of such registration be, and Deputy Administrator now enters her Here, it is clear Dr. Canon’s medical they hereby are, denied. This order is final order without a hearing pursuant license has been suspended and he is effective July 7, 2005. to 21 CFR 1301.43(d) and (e) and not currently licensed to handle Dated: May 25, 2005. 1301.46. controlled substances in Tennessee, Michele M. Leonhart, The Deputy Administrator finds Dr. where he is registered with DEA. Deputy Administrator. Canon currently possesses DEA Therefore, he is not entitled to a DEA Certificate of Registration AC2221707, registration in that state. [FR Doc. 05–11244 Filed 6–6–05; 8:45 am] as a practitioner authorized to handle Accordingly, the Deputy BILLING CODE 4410-09-M controlled substances. The Deputy Administrator of the Drug Enforcement Administrator further finds that on Administration, pursuant to the DEPARTMENT OF JUSTICE August 18, 2004, the State of Tennessee authority vested in her by 21 U.S.C. 823 Board of Medical Examiners (Tennessee and 824 and 28 CFR 0.100(b) and 0.104, Drug Enforcement Administration Board) issued an Order suspending Dr. hereby orders that DEA Certificate of Canon’s license to practice medicine in Registration AC2221707, issued to Robert M. Canon, M.D., Revocation of Tennessee. Robert M. Canon, M.D., be, and it Registration That suspension was based upon the hereby is, revoked. The Deputy Administrator further orders that any On February 11, 2005, the Deputy Tennessee Board’s findings that on pending applications for renewal or Assistant Administrator, Office of March 1, 2004, Dr. Canon was convicted Diversion Control, Drug Enforcement in the United States District Court for modification of such registration be, and Administration (DEA), issued an Order the Eastern District of Tennessee of 95 they hereby are, denied. This order is to Show Cause to Robert M. Canon, felony counts of False Statements effective July 7, 2005. M.D. (Dr. Canon) of Tullahoma, Relating to a Healthcare Matter and Dated: May 24, 2005. Tennessee, notifying him of an Health Care Fraud, in violation of 18 Michele M. Leonhart, opportunity to show cause as to why U.S.C. 1035 and 1347. He was sentenced Deputy Administrator. to 41 months imprisonment on each DEA should not revoke his DEA [FR Doc. 05–11245 Filed 6–6–05; 8:45 am] count, to be served concurrently and Certificate of Registration AC2221707 BILLING CODE 4410–09–M under 21 U.S.C. 824(a)(3) and deny any was ordered to pay over three million pending applications for renewal or dollars in restitution. That judgment is modification of that registration currently on appeal to the United States DEPARTMENT OF JUSTICE pursuant to 21 U.S.C. 823(f). As a basis Court of Appeals for the Sixth Circuit for revocation, the Order to Show Cause and Dr. Canon is free on bond pending Drug Enforcement Administration resolution of his appeal. The Tennessee alleged that Dr. Canon is not currently [Docket No. 03–025] authorized to practice medicine or Board’s Order provides that the suspension of Dr. Canon’s medical handle controlled substances in Carlin Paul Graham, Jr., M.D. license is to remain in effect until his Tennessee, his state of registration and Revocation of Registration practice. The Order to Show Cause also criminal case has been fully notified Dr. Canon that should no adjudicated. On November 8, 2004, the Deputy request for a hearing be filed within 30 The investigative file contains no Assistant Administrator, Office of days, his hearing right would be deemed evidence that the Tennessee Board’s Diversion Control, Drug Enforcement waived. Order has been stayed, modified or Administration (DEA), issued an Order The Order to Show Cause was sent by terminated or that Dr. Canon’s medical to Show Cause to Carlin Paul Graham, certified mail to Dr. Canon at his license has been reinstated. Therefore, Jr., (Respondent) of Talladega, Alabama, registered address at 600 East Carroll the Deputy Administrator finds Dr. notifying him of an opportunity to show Street, Tullahoma, Tennessee 37388. Canon is not currently authorized to cause as to why DEA should not revoke However, that letter was unclaimed by practice medicine in the State of his DEA Certificate of Registration Dr. Canon and eventually returned by Tennessee. As a result, it is reasonable BG2476186 as a practitioner pursuant to postal authorities to DEA, as he to infer he is also without authorization 21 U.S.C. 824(a) and deny any pending apparently did not provide the post to handle controlled substances in that applications for renewal or modification office a forwarding address. DEA has state. of that registration pursuant to 21 U.S.C. not received a request for hearing or any DEA does not have statutory authority 823(f). As a basis for revocation, the other reply from Dr. Canon or anyone under the Controlled Substances Act to Order to Show Cause alleged that purporting to represent him in this issue or maintain a registration if the Respondent’s license to practice matter. applicant or registrant is without state medicine in Alabama had been Therefore, the Deputy Administrator authority to handle controlled indefinitely suspended and he was no of DEA, finding that thirty days having substances in the state in which he longer authorized to handle controlled passed since the attempted delivery of conducts business. See 21 U.S.C. substances in that state. the Order to Show Cause to the 802(21), 823(f) and 824(a)(3). This Respondent, through counsel, timely registrant’s address of record and no prerequisite has been consistently requested a hearing in this matter. One request for hearing having been upheld. See Stephen J. Graham, M.D., January 19, 2005, the Presiding received, concludes that Dr. Canon is 69 FR 11,661 (2004); Dominick A. Ricci, Administrative Law Judge Gail A. deemed to have waived his hearing M.D., 58 FR 51,104 (1993); Bobby Watts, Randall (Judge Randall) issued the right. See Thomas J. Mulhearn, III, M.D., M.D., 53 FR 11,919 (1988). Revocation Government, as well as Respondent, an 70 FR 24,625 (2005); James E. Thomas, is also appropriate when a state license Order for Prehearing Statements. M.D., 70 FR 3,654 (2005); Steven A. has been suspended, but with In lieu of filing a prehearing Barnes, M.D., 69 FR 51,474 (2004); possibility of future reinstatement. See statement, the Government filed a David W. Linder, 67 FR 12,579 (2002). Alton E. Ingram, Jr., M.D., 69 FR 22,562 Request for Stay of Proceedings and
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Motion for Summary Disposition issue or maintain a registration if the identified as the ‘‘gray market’’ and that (Motion). In that Motion the applicant or registrant is without state a September 2001 audit by DEA Government asserted the Medical authority to handle controlled Diversion Investigators showed the Licensure Commission of Alabama substances in the state in which he company had serious record keeping (Alabama Commission), had indefinitely conducts business. See 21 U.S.C. deficiencies. suspended Respondent’s Alabama State 802(21), 823(f) and 824(a)(3). This Respondent requested a hearing on Medical License and, as a result, he was prerequisite has been consistently the issues raised by the Order to Show no longer authorized to handle upheld. See Stephen J. Graham, M.D., Cause and the matter was docketed controlled substances in the state where 69 FR 11,661 (2004), Dominick A. Ricci, before Administrative Law Judge Gail A. he is registered with DEA. Attached to M.D., 58 FR 51,104 (1993); Bobby Watts, Randall. Following pre-hearing the Government’s Motion was a copy of M.D., 53 FR 11,919 (1988). Denial or procedures, a hearing was held in the Alabama Commission’s Order dated revocation is also appropriate when a Memphis, Tennessee, on March 11 and October 30, 2003, indefinitely state license has been suspended, but 12, 2004. At the hearing, both parties suspending Respondent’s medical with the possibility of future called witnesses to testify and license. reinstatement. See Paramabaloth Edwin, introduced documentary evidence. On January 31, 2005, Judge Randall M.D., 69 FR 58,540 (2004); Alton E. Subsequently, both parties filed issued an order allowing Respondent Ingram, Jr., M.D., 69 FR 22,562 (2004); Proposed Findings of Fact, Conclusions until February 22, 2005, to respond to Anne Lazar Thorn, M.D., 62 FR 847 of Law, and Argument. the Government’s Motion. Respondent (1997). On September 29, 2004, Judge Randall did not file any response and on March Here, it is clear Respondent is not issued her Recommended Findings of 25, 2005, Judge Randall issued her currently licensed to handle controlled Fact, Conclusions of Law, and Decision Order, Opinion and Recommended substances in Alabama, the jurisdiction of the Administrative Law Judge Decision of the Administrative Law in which he holds a DEA registration. (Opinion and Recommended Ruling), Judge (Opinion and Recommended Therefore, he is not entitled to recommending that Respondent’s Decision). In it, she granted the registration in that state. registration to distribute Government’s Motion, finding Accordingly, the Deputy pseudoephedrine and ephedrine Respondent lacked authorization to Administrator of the Drug Enforcement products be continued and its handle controlled substances in his state Administration, pursuant to the application for renewal be granted, of DEA registration and recommended authority vested in her by 21 U.S.C. 823 subject to enumerated monitoring that his registration be revoked. and 824 and 28 CFR 0.100(b) and 0.014, conditions. She recommended denying No exceptions were filed by either hereby orders that DEA Certificate of the request to distribute party to the Opinion and Recommended Registration BG2476186, issued to phenylpropanolamine. The Government Decision and on April 26, 2005, the filed Exceptions to the Opinion and Carlin Paul Graham Jr., M.D., be, and it record of these proceedings was Recommended Ruling, to which hereby is, revoked. The Deputy transmitted to the Office of the DEA Respondent submitted a Reply and on Administrator further orders that any Deputy Administrator. November 8, 2004, Judge Randall pending applications for renewal or The Deputy Administrator has transmitted the record of these modification of such registration be, and considered the record in its entirety and proceedings to the Deputy they hereby are, denied. This order is pursuant to 21 CFR 1316.67, hereby Administrator. issues her final order, based upon effective July 7, 2005. The Deputy Administrator has findings of fact and conclusions of law Dated: May 25, 2005. considered the record in its entirety and as hereinafter set forth. The Deputy Michele M. Leonhart, pursuant to 21 CFR 1316.67, hereby Administrator adopts, in full, the Deputy Administrator. issues her final order based upon Opinion and Recommended Decision of [FR Doc. 05–11247 Filed 6–6–05; 8:45 am] findings of fact and conclusions of law the Administrative Law Judge. BILLING CODE 4410–09–M hereinafter set forth. Except as The Deputy Administrator finds otherwise set forth in this final order, Respondent currently holds DEA the Deputy Administrator adopts the Certificate of Registration BG2476186 as DEPARTMENT OF JUSTICE findings of fact and conclusions of law a practitioner and that on October 30, of the Administrative Law Judge. The 2003, the Alabama Commission Drug Enforcement Administration Deputy Administrator agrees with the recommendation that Respondent be indefinitely suspended his license to [Docket No. 03–35] practice medicine in that State. The denied registration to distribute suspension was predicated on the Joy’s Ideas, Revocation of Registration phenylpropanolamine, but disagrees Commission’s findings that Respondent with Judge Randall’s recommendation engaged in unprofessional conduct, had On June 13, 2003, the Deputy that Respondent be registered to staff privileges terminated, revoked or Assistant Administrator, Office of distribute ephedrine and restricted by a hospital and was ‘‘unable Diversion Control, Drug Enforcement pseudoephedrine, even under close to practice medicine with reasonable Administration (DEA), issued an Order monitoring conditions. skill and safety to patients by reason of to Show Cause to Joy’s Ideas (Joy’s Respondent is a sole proprietorship illness or as a result of a mental or Ideas/Respondent) proposing to revoke owned and operated by Ms. Joy Carter physical condition.’’ its DEA Certificate of Registration which is located in Memphis, The Deputy Administrator’s therefore 003278JIY as a distributor of list I Tennessee. It has been a DEA registrant finds Respondent is currently not chemicals and deny its pending since March 1998 and holds DEA licensed to practice medicine in application for renewal under 21 U.S.C. Certificate of Registration 003278JIY. On Alabama and lacks authorization to 824(a)(4) and 823(h) as being November 10, 2003, Ms. Carter filed an handle controlled substances in that inconsistent with the public interest. application for renewal of that state. The Order to Show Cause alleged, in registration, which was due to expire on DEA does not have statutory authority sum, that Respondent was distributing December 31, 2003. In it, she sought under the Controlled Substances Act to list I chemicals to what DEA has registration to distribute list I products
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containing pseudoephedrine, ephedrine showed that Ms. Carter was adhering to Phenylpropanolamine is also used as a and phenylpropanolamine. Having filed the improved accountability procedures. precursor in the illicit manufacture of a timely application for renewal, The Respondent is a wholesale methamphetamine and amphetamine. In Respondent has been allowed to distributor of about 200 sundry products November 2000, the United States Food continue distributing listed chemicals to convenience stores and gas stations. and Drug Administration issued a during the pendency of these Seven of her approximately 60 public health advisory requesting drug proceedings. See 21 CFR 1309.45. customers are located in Arkansas and companies to discontinue marketing In September 2001, DEA Diversion Mississippi and the balance are in products containing Investigators conducted a routine Memphis. Each of these customers buy phenylpropanolamine, due to risk of regulatory investigation of Respondent listed chemicals from Joy’s Ideas, which hemorrhagic stroke. As a result, and met Ms. Carter at her residence, makes up between 20 to 30 percent of pharmaceutical companies have which is also the registered premises. Respondent’s total sales. Most stopped using phenylpropanolamine as The physical security and monitoring customers purchase approximately an active ingredient. See, Gazaly systems were found to be adequate and $100.00 of list I chemical products from Trading, 69 FR 22,561 (2004). Ms. Carter testified at the hearing that Respondent each month. As testified to by government she had never had any listed chemical Ms. Carter, the sole employee, witnesses and as addressed in previous products stolen or lost. testified she personally delivers the DEA final orders, methamphetamine is As a part of their investigation, the listed chemicals and places them on an extremely potent central nervous Diversion Investigators conducted a two customer’s shelves. As a result, she system stimulant and its abuse is a day accountability audit. However, the believed she could monitor her persistent and growing problem in the results were hampered by Respondent’s customers’ stocks and tell if she was United States. See, e.g., Direct their only supplier of listed products. lack of an accurate inventory and Wholesale, 69 FR 11,654 (2004); Branex, Affidavits from several long term investigators assigned a beginning Inc., 69 FR 8,682 (2004); Denver customers were also introduced which inventory of zero as their starting Wholesale, 67 FR 99,986 (2002); Yemen affirmed they only purchased listed inventory. Ms. Carter was cooperative Wholesale Tobacco and Candy Supply, chemicals from Respondent and their and provided investigators all purchase Inc., 67 FR 9,997 (2002). retail customers did not buy more than The Government introduced and sales records for the period covering two weeks packets or bottles of listed documentary and testimonial evidence March 1, 2001 to September 12, 2001. chemicals at a time. According to regarding the rapid proliferation of At the conclusion of the audit, records introduced at the hearing, clandestine methamphetamine investigators found there were overages Respondent also did not exceed the laboratories in Tennessee and its of four listed chemical products and threshold quantities of sales to a single adjoining states and described local shortages of two such products. Ms. purchaser which are established by the methods of production, as well as the Carter was unable to account for 15 100- Comprehensive Methamphetamine multiple health hazards and social costs count bottles of ‘‘Efedrin’’ and 557 60- Control Act of 1996. Ms. Carter further stemming from production and abuse of count bottles of ‘‘Mini-thins.’’ The testified that she instructed her methamphetamine. As discussed in overages involved 6-count packages and customers to not sell more than two several recently published final orders, 60-count bottles of ‘‘Efedrin,’’ 60-count bottles of ephedrine products to any Tennessee leads the DEA Atlanta Region bottles of ‘‘Max Brand Two Way’’ and 6- single customer. in the number of clandestine count packages of ‘‘Mini Thins.’’ Ms. Carter has never been charged or laboratories seized. See, e.g., Elk Evidence was introduced that convicted under Federal or state law of International Inc., d.b.a. Tri City overages can be anticipated when a zero any crime involving controlled Wholesale (Elk International), 70 FR starting inventory is used and/or they substances or listed chemicals. Joy’s 24,615 (2005); Prachi Enterprises, Inc., may be attributable to improperly Ideas is her only source of income and 69 FR 69,407 (2004); CWK Enterprises, maintained records. Shortages can result she expressed fear that if she were not Inc., 69 FR 69,400 (2004). Further, DEA from improperly maintained records or able to provide customers listed has found that local ‘‘[d]istributors or from theft or loss of the product. At the chemicals, they would take their entire retailers serving the illicit hearing, a mathematical error impacting business to other wholesalers, who methamphetamine trade observe no the overage of one product was could provide ‘‘one stop’’ shopping. borders and trade across state lines.’’ Id. discovered and a former DEA Diversion List I chemicals are those that may be 69 FR at 69,401. Investigator testified that more often used in the manufacture of a controlled A DEA Special Agency credibly than not, these audits do not result in substance in violation of the Controlled testified that the list I chemical product perfectly balanced inventories, Substance Act. 21 U.S.C. 802(34); 21 of choice found in about eighty percent particularly when a zero opening CFR 1310.02(a). Pseudoephedrine and of illicit laboratories in Tennessee is balance is used. ephedrine are list I chemicals which are distributed under the off-name brand At the hearing Ms. Carter testified that legitimately manufactured and ‘‘Max Brand’’ label and is usually before receiving the Order to Show distributed in single entity and obtained from convenience stores. Judge Cause, she was unfamiliar with combination forms as decongestants and Randall found Respondent has procedures for ensuring accountability bronchodilators, respectively. Both are distributed this product. However, there of listed chemicals or how to conduct an used as precursor chemicals in the illicit was no direct evidence showing a audit. After receiving that Order, she manufacture of methamphetamine and known diversion of Respondent’s began working with her attorney and amphetamine. products to illicit manufacturing. certified pubic accountant to establish Phenylpropanolamine, also a list I By written declaration, a DEA procedures for accurately recording chemicals, is a legitimately Diversion Investigator contrasted the purchase and sales data and initiated manufactured and distributed product ‘‘traditional’’ market for list I chemicals weekly physical inventories of listed used to provide relief of symptoms with what DEA has termed the ‘‘gray chemicals. This system was put into resulting from inflammation of the market’’ for these products. The operation in November 2003 and sinus, nasal and upper respiratory tract traditional market, characterized by a records introduced at the hearing tissues and for weight control. short distribution chain from
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manufacturer to distributor to retailer, average monthly sales figure of about As to factor one, maintenance by the typically includes large chain grocery $20.00 and that sales of more than applicant of effective controls against stores, chain pharmacies, large $100.00 in a month would be expected diversion, the Deputy Administrator convenience stores and large discount to occur in a random sampling about agrees with Judge Randall that stores. The gray market is characterized once in one million to the tenth power. Respondent’s physical security system by additional layers of distribution and According to Mr. Robbin, after is adequate. With regard to the 2001 includes such non-traditional retailers evaluating Tennessee convenience store accountability audit’s results, Judge as small convenience stores, gas stations sales data, half of the Tennessee stores Randall found the statistics and other retail establishments where analyzed showed implied sales over ten ‘‘questionable’’ and based on the customers do not usually purchase over- times expectation, with ten of them over statistics alone, could not conclude that the-counter medications. These non- twenty times expectation. These any listed chemical products distributed traditional retailers typically sell higher- differences were extremely significant by Respondent had been diverted. She strength products in larger package statistically and in his expert opinion, also concluded that Ms. Carter had a sizes, such as 60, 100 or 120-county ‘‘[t]he implausible nature of such faulty accountability system at the time bottles of 60 mg. pseudoephedrine. The exceptionally large hypothetical sales at of the audit. However, that was Diversion Investigator also identified retail leads to a virtually mitigated by the significant the off-name brands found in incontrovertible conclusion that the accountability improvements crafted by disproportionate numbers during goods are not actually being purveyed at her certified public accountant after clandestine laboratory seizures. These retail to ordinary customers in the receipt of the Order to Show Cause. included Max Brand, Mini Two Way, store’s trading area at all, but are being Judge Randall also found Ms. Carter had MiniThin and Action-Pseudo products. diverted to some other channel ‘under a long standing relationship with her In previous final orders DEA has the counter.’’’ He concluded that many customers and personally delivered identified convenience stores as the small Tennessee convenience stores their listed chemical products and ‘‘primary source’’ for the purchase of were not selling pseudoephedrine and placed them on the shelves, allowing ‘‘Max Brand products, which are the ephedrine products for their intended her to monitor whether or not they were preferred brand for use by illicit purpose as non-prescription drugs in obtaining listed chemicals from other methamphetamine producers.* * * ’’ the legitimate market and the wholesalers. Judge Randall concluded See, Elk International, supra, 70 FR assumption that they were supplying a this factor weighted in favor of 24,615; Express Wholesale, 69 FR ‘‘gray market’’ was statistically registration. 62,086, 62,087 (2004); see also, RAM, supported ‘‘many times over * * *’’ The Deputy Administrator agrees with Inc. d/b/a American Wholesale Pursuant to 21 U.S.C. 823(h), the the Government’s Exceptions that the Distribution Corp., 70 FR 11,693 (2005). Deputy Administrator may deny an shortages established by the 2001 By declaration, the Government application for a Certificate of inventory would normally show up as introduced evidence regarding Registration if she determines that overages, given that a zero opening ephedrine and pseudoephedrine sales granting the registration would be balance was used, and that diversion and the convenience store market from inconsistent with the public interest, as may be inferred from such shortages. Mr. Jonathan Robbin, a consultant in determined under that section. Section However, given the apparent good faith marketing information systems and 823(h) requires the following factors be of Ms. Carter to avoid diversion and the databases, who is an expert in statistical considered in determining the public inadequate accountability systems she analysis and quantitative marketing interest: was using at the time of the audit, under research. (1) Maintenance of effective controls the facts of this case the inference of Using the 1997 United States against diversion of listed chemicals diversion attributable to the audit is not Economic Census of Retail Trade, Mr. into other than legitimate channels; strong. Robbin tabulated data indicating that (2) Compliance with applicable On the other hand, given the number over 97% of all sales of non-prescription Federal, State, and local law; of Respondent’s retail customers and drug products, including non- (3) Any prior conviction record under imprecise and unrecorded ‘‘eyeball’’ prescription cough, cold and nasal Federal or State laws relating to monitoring of what is on their shelves, congestion remedies, occur in drug controlled substances or to chemicals the Deputy Administrator has concern stores and pharmacies, supermarkets, controlled under Federal or State law; over Ms. Carter’s ability to know, with large discount merchandisers, mail- (4) Any past experience in the an acceptable degree of certainty, order houses and through electronic manufacture and distribution of whether or not her customers are shopping. He characterized these five chemicals; and obtaining products from other retail industries as the traditional (5) Such other factors as are relevant distributors. DEA has previously found marketplace where such goods are to and consistent with the public health that gray markets retailers supplying purchased by ordinary customers. and safety. chemicals for illicit use regularly Analyzing national sales data specific As with the public interest analysis acquire their product from multiple to over-the-counter, non-prescription for practitioners and pharmacies distributors in order to mask their drugs containing pseudoephedrine, Mr. pursuant to subsection (f) of section 823, acquisition of large amounts of listed Robbin’s research and analysis showed these factors are considered in the chemicals. See, Elk International Inc., that a very small percentage of the sales disjunctive; the Deputy Administrator supra, 70 FR 24,615; Titan Wholesale, of such goods occur in convenience may rely on any one or combination of Inc., 70 FR 12,727 (2005). stores; only about 2.6% of the Health factors, and may give each factor the Further, convenience store operators and Beauty Care category of weight she deems appropriate in engaged in this illicit trade could be merchandise or 0.05% of total in-store determining whether a registration obtaining products from other (non-gasoline) sales. He determined that should be revoked or an application for wholesalers, yet not be displaying them the normal expected retail sales of registration denied. See, e.g., Direct on retail shelves, also compromising pseudoephedrine tablets in a Wholesale, supra, 69 FR 11,654; Energy Ms. Carter’s efforts to ensure she was convenience store would range between Outlet, 64 FR 14,269 (1999); Henry J. the only supplier. Accordingly, so long $10.00 and $30.00 per month, with an Schwartz, Jr., M.D., 54 FR 16,422 (1989). as Respondent services this suspect
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market, even the most sincere efforts by Express Wholesale, supra, 69 FR at system and her familiarity with her Ms. Carter to self-regulate her customers 62,089. customers’ operations, factor four cannot guarantee that current and/or Of particular relevance to Joy’s Ideas weighed in favor of continued future customers will not be obtaining and similarly situated Tennessee registration, especially if close precursor chemicals from other applicants and registrants, after Judge monitoring was maintained by DEA distributors, as well as from Randall signed her Opinion and over Respondent. The Deputy Respondent, and then resell them for Recommended Ruling, legislation was Administrator disagrees with this illicit purposes. enacted by the State of Tennessee conclusion. Nevertheless, given Ms. Carter’s patterned after the Oklahoma initiative. The evidence showed Respondent commendable actions to improve her That legislation (Senate Bill 2318/House was selling most of her convenience accountability systems and her honest Bill 2334), collectively known as the store customers about $100.00 of list I and credible desire to avoid ‘‘Meth-Free Tennessee Act of 2005,’’ chemicals per month. As established by contributing to the scourge of was signed into law by Governor Phil Mr. Robbin’s expert opinion evidence, methamphetamine, in a ‘‘close call,’’ the Bredeson on March 31, 2005, and makes this far exceeds the amount of expected Deputy Administrator agrees with Judge it unlawful for establishments, other sales of these products for legitimate Randall that factor one weighs in favor than licensed pharmacies, to sell therapeutic purposes. Even though, as of continued registration. tableted pseudoephedrine products in Judge Randall concluded, there was no With regard to factor two, Tennessee after April 1, 2005. This direct evidence that Respondent Respondent’s compliance with included both name brand and off-name contributed to the diversion of listed applicable Federal, state and local law, brand products. See, e.g., Elk chemical products, she did find the Judge Randall concluded this factor also International Inc., supra, 70 FR 24,615. record contained ‘‘abundant statistical According to evidence introduced at weighs in favor of registration. However, evidence that, without further the hearing, approximately 53 of the significance for this factor and factor explanation, would logically lead to the Respondent’s 60 customers are five as well, the Deputy Administrator conclusion that the Respondent convenience stores and gas stations notes that state legislatures throughout distributed more listed chemical located in Tennessee. Therefore, with the United States are actively products to its convenience store only a few exceptions, Respondent’s considering legislation designed to customers than could reasonably be sold entire customer base is now prohibited impede the ready availability of at resale for legitimate use.’’ by state law from selling the The Deputy Administrator cannot precursor chemicals. Many of these pseudoephedrine products Respondent find a plausible explanation in the proposals are similar to legislation seeks DEA registration to distribute. record for this deviation from the enacted by the State of Oklahoma, titled Thus, factor two weighs heavily against expected norm, other than diversion at the ‘‘Oklahoma Methamphetamine registration. See, Elk International, the retail level. Accordingly, while Ms. Reduction Act of 2004.’’ Under that supra, 70 FR at 24,618; Tysa Carter may have been an unknowing measure, as of April 6, 2004, Management, d/b/a Osmani Lucky and unintentional contributor to pseudoephedrine tablets were Wholesale, supra, 70 FR at 12,734; Tennessee’s methamphetamine designated as Schedule V controlled Express Wholesale, supra, 69 FR at problem, it is logical to infer that the substances and may be sold only from 62,089. listed products she was distributing to licensed pharmacies within that state. As to factor three, any prior area convenience stores were being As a result, it is prohibited in conviction record relating to listed diverted to illicit purposes. Oklahoma to sell these products from chemicals or controlled substances, the Accordingly, the Deputy Administrator gray market establishments, such as Deputy Administrator concurs with finds that factor four weights against independent convenience stores, which Judge Randall that there is no evidence Respondent’s continued registration. have contributed so much to the of any prior convictions of Respondent With regard to factor five, other methamphetamine abuse problem. See, or its owner relating to listed chemicals factors relevant and consistent with the e.g., Express Wholesale, supra, 69 FR at or controlled substances. Accordingly, public health and safety, Judge Randall 62,809 [denying DEA registration to an this factor weighs in favor of acknowledged earlier DEA precedent Oklahoma gray market distributor, in registration. applying this factor to deny registration part, because of new state restrictions]. With regard to factor four, the to a gray market distributor based on A review of data for 2004 reveals the applicant’s past experience in statistical evidence. See, Xtreme Oklahoma law has resulted in an distributing listed chemicals, Judge Enterprises, Inc., 67 FR 76,195 (2002); apparent reduction in the number of Randall found that Ms. Carter’s lack of Branex, Inc., supra, 69 FR 8,682, 8,693. seizures involving clandestine knowledge concerning how to conduct However, based on the amounts of listed methamphetamine laboratories in that accountability audits and lack of products being distributed by state. These developments are inventory control, which were Respondent, their wholesale prices and encouraging and represent an important uncovered in the 2001 audit, weighed Ms. Carter’s apparent good faith and step in the ongoing battle to curb against Respondent’s continued willingness to adhere to DEA methamphetamine abuse in the United handling of listed chemical products. requirements, given the facts of the case, States. State legislation, such as However, this was balanced by Ms. Judge Randall was unwilling to Oklahoma’s, reflects a positive trend Carter’s aggressive actions to improve conclude that Respondent’s listed and growing recognition that the her inventory and accountability chemical products were being diverted diversion of precursor chemicals practices. She was also familiar with or would likely be diverted in the through the gray market insidiously listed chemical products, as well as her future. She therefore found factor five impacts public health and safety. See, customers, and never sold over-the weighed in favor of continued e.g., Tysa Management, d/b/a Osmani threshold quantities. registration to distribute ephedrine and Lucky Wholesale, 70 FR 12,732, 12,734 The Administrative Law Judge pseudoephedrine. (2005) [denying registration to intended concluded that while ‘‘a close matter,’’ In Xtreme Enterprises, the Deputy Oklahoma distributor, in part, on basis because of Ms. Carter’s willingness to Administrator found its owner had only of enactment of recent state legislation]; create and maintain a viable inventory a rudimentary knowledge of what
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would constitute a suspicious order and Express Wholesale, supra, 69 FR 62,086; Dated: May 25, 2005. no experience in the manufacture or Absolute Distributing, Inc., 69 FR Michele M. Leonhart, distribution of listed chemicals. While 62,078 (2004). Deputy Administrator. given Ms. Carter’s past experience, those In any event, Judge Randall’s [FR Doc. 05–11249 Filed 6–6–05; 8:45 am] findings do not apply to Respondent. recommendation that Respondent be BILLING CODE 4410–09–M However, most significant for this and allowed to continue distributing listed similar cases, the Deputy Administrator chemicals to convenience stores in also found that ‘‘[v]irtually all of the Tennessee, albeit with close monitoring DEPARTMENT OF JUSTICE Respondent’s customers, consisting of by DEA through the submission of a gas station and convenience stores, are Drug Enforcement Administration monthly log and consent to inspection considered part of the grey market, in without an administrative inspection [Docket No. 04–62] which large amounts of listed chemicals warrant, has been mooted by are diverted to the illicit manufacture of Tennessee’s recent enactment of Kennard Kobrin, M.D., Revocation of amphetamine and methamphetamine.’’ Registration Xtreme Enterprises, Inc., supra, 67 FR at legislation requiring that all pill and 76,197. tablet pseudoephedrine products, On June 28, 2004, the Deputy DEA has expansively applied Xtreme including those marketed under Assistant Administrator, Office of Enterprises to a multitude of applicants traditional brand names, be sold only Diversion Control, Drug Enforcement and registrants seeking to do business in through registered pharmacies. As this Administration (DEA), issued an Order the gray market. See e.g., Express state statute, discussed more fully under to Show Cause to Kennard Kobrin, M.D., Wholesale, supra, 69 FR 62,086; Value factor two, effectively bars distribution (Respondent) of Fall River, Wholesale, 69 FR 58,548 (2004); K & Z of those products throughout Massachusetts, notifying him of an Enterprises, Inc., 69 FR 51,475 (2004); Tennessee’s gray market, it is also opportunity to show cause as to why William E. ‘‘Bill’’ Smith d/b/a B & B relevant under factor five and weighs DEA should not revoke his DEA Wholesale, 69 FR 22,559 (2004); Branex heavily against Respondent’s continued Certificate of Registration AK8615013 as Incorporated, supra, 69 FR 8,682; Shop registration. See, e.g., Elk International, a practitioner pursuant to 21 U.S.C. It for Profit. 69 FR 1,311 (2003); Shani supra, 70 FR at 24,618. 824(a)(2), (3) and (4), and deny any Distributors, 69 FR 62,324 (2003). Finally, as recommended by Judge pending applications for renewal or modification of that registration As in those cases, Ms. Carter’s lack of Randall, due to the apparent lack of pursuant to 21 U.S.C. 823(f). As a basis a criminal record, previous general safety associated with the use of for revocation, the Order to Show Cause compliance with the law and phenylpropanolamine, factor five is also alleged that Respondent had been regulations and willingness to comply relevant to Respondent’s initial proposal convicted of three state felony counts, with regulations and guard against to distribute that product. DEA has which involved illegal prescribing of a diversion, are far outweighed by her previously determined that such a intent to continue selling ephedrine and controlled substance and Medicaid request constitute a ground under factor fraud. As a part of his sentence, the pseudoephedrine exclusively in the gray five for denial of an application for market. Unlawful methamphetamine court ordered Respondent to cease registration. See J & S Distributors, production and use is a growing public prescribing any medications for two supra, 69 FR 62,089; Gazaly Trading health and safety concern throughout years, effective August 28, 2003. supra, 69 FR 22,561; William E. ‘‘Bill’’ the United States and specifically in the Therefore, the Government alleged that Smith d/b/a B & B Wholesale, supra, 69 locality where Respondent does Respondent was no longer authorized to business. Pseudoephedrine and FR 22,559; Shani Distributors, supra, 68 handle controlled substances in ephedrine are the precursor products FR 62,324. However, it is noted that Massachusetts, his state of practice and used to manufacture methamphetamine after the hearing and the Government’s DEA registration. and area laboratory operators have filing of its Exceptions to the Opinion Respondent, through counsel, timely predominantly acquired their precursor and Recommended Ruling, requested a hearing in this matter and chemicals from the customer base Respondent’s Reply indicated that it did Presiding Administrative Law Judge Respondent seeks to continue serving. not intend to carry products containing Mary Ellen Bittner (Judge Bittner) issued While Ms. Carter may intend to avoid phenylpropanolamine. an Order for Prehearing Statements. contributing to this problem, the risk of Based on the foregoing, the Deputy After various motions had been filed diversion once her listed chemicals Administrator concludes that and addressed by Judge Bittner, on enter the gray market is real, substantial continuing Respondent’s registration November 22, 2004, the Government and compelling. and granting its pending application for filed its Request for Stay of Proceedings This reasoning has also been applied renewal would be inconsistent with the and Motion for Summary Disposition by the Deputy Administrator in a series public interest. (Motion). In that Motion it was asserted of final orders published after Judge that the Massachusetts Board of Accordingly, the Deputy Randall issued her Opinion and Registration in Medicine (Medical Recommended Ruling in the matter. Administrator of the Drug Enforcement Board) had revoked Respondent’s See, Elk International, supra, 70 FR Administration, pursuant to the license to practice medicine in that 24,615; TNT Distributors, Inc., supra, 70 authority vested in her by 21 U.S.C. 823 state, effective December 17, 2004, and FR 12,729; Titan Wholesale, Inc., supra, and 28 CFR 0.100(b) and 0.104, hereby that as a result, he was no longer 70 FR 12,727; RAM, Inc. d/b/a orders that DEA Certificate of authorized to handle controlled American Wholesale Distribution Corp., Registration, 003278JIY, issued to Joy’s substances in the state where he is supra, 70 FR 11,693; Al-Alousi, Inc., 70 Ideas, be, and it hereby is, revoked. registered with DEA. Attached to the FR 3,561 (2005); Volusia Wholesale, 69 Further, the pending application for Government’s Motion was a copy of the FR 69,409, (2004); Prachi Enterprises, renewal of said Certificate of Medical Board’s Final Decision & Order, Inc., supra, 69 FR 69,407; CWK Registration submitted by Joy’s Ideas dated November 17, 2004, revoking Enterprises, Inc. 69 FR 69,400 (2004); J should be, and hereby is, denied. Respondent’s Massachusetts medical & S Distributors, 69 FR 62,089 (2004); This order is effective July 7, 2005. license as of December 17, 2004.
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On November 29, 2004, Judge Bittner conducts business. See 21 U.S.C. 843(a)(3) and was sentenced to four issued an order affording Respondent an 802(21), 823(f) and 824(a)(3). This months home confinement and placed opportunity to respond to the prerequisite has been consistently on probation for four years. It was Government’s Motion. On December 13 upheld. See Stephen J. Graham, M.D., further alleged that between 1994 and and 14, 2004, Respondent filed his 69 FR 11,661 (2004), Dominick A. Ricci, 2000, the Kansas State Dental Board response, objecting to a summary M.D., 58 FR 51,104 (1993); Bobby Watts, (Dental Board) took several disciplinary disposition of the proceeding and M.D., 53 FR 11,919 (1998). actions against Respondent, ranging requesting an indefinite stay. In it, he Here, it is clear Respondent is not from license suspensions in 1994 and argued that his state criminal currently licensed to handle controlled 1998 to discipline imposed in 2000 for convictions and the Medical Board’s substances in Massachusetts, the practicing without a license. revocation order were then-pending jurisdiction in which he holds a DEA Respondent, acting pro se, requested appear and they should not be used as registration. Therefore, he is not entitled a hearing and the matter was docketed a basis for adverse action on his DEA to registration in that state. before Administrative Law Judge Mary registration. However, Respondent did Accordingly, the Deputy Ellen Bittner. Following pre-hearing not deny that as of December 17, 2004, Administrator of the Drug Enforcement procedures, a hearing was held in he was no longer licensed to practice Administration, pursuant to the Topeka, Kansas, on July 15, 2004. At the medicine in Massachusetts. authority vested in her by 21 U.S.C. 823 hearing, both parties called witnesses to On December 27, 2004, Judge Bittner and 824 and 28 CFR 0.100(b) and 0.104, testify and introduced documentary issued her Opinion and Recommended hereby orders that DEA Certificate of evidence. Subsequently, both parties Decision of the Administrative Law Registration AK8615013, issued to filed Proposed Findings of Fact, Judge (Opinion and Recommended Kennard Kobrin, M.D., be, and it hereby Conclusions of Law, and Argument. Decision). In it, she granted the is, revoked. The Deputy Administrator On January 3, 2005, Judge Bittner Government’s Motion, finding further orders that any pending issued her Opinion and Recommended Respondent lacked authorization to applications for renewal or modification Ruling, Findings of Fact, Conclusions of handle controlled substances in his state of such registration be, and they hereby Law, and Decision of the Administrative of DEA registration and she are, denied. This order is effective July Law Judge (Opinion and Recommended recommended that his registration be 7, 2005. Ruling), recommending that Respondent’s application for revoked. Dated: May 25, 2005 No exceptions were filed by either registration as a practitioner be granted, party to the Opinion and Recommended Michele M. Leonhart, with the following restrictions: (1) Decision and on February 2, 2005, the Deputy Administrator. Respondent shall not write any record of these proceedings was [FR Doc. 05–11246 Filed 6–6–05; 8:45 am] prescriptions for himself, and shall not transmitted to the Office of the DEA BILLING CODE 4410–09–M obtain or possess for his use any Deputy Administrator. controlled substance except upon the The Deputy Administrator has written prescription of another licensed considered the record in its entirety and DEPARTMENT OF JUSTICE medical professional, and (2) for at least pursuant to 21 CFR 1316.67, hereby Drug Enforcement Administration two years from the date of the entry of issues her final order, based upon a final order in this proceeding, findings of fact and conclusions of law Scott H. Nearing, D.D.S., Grant of Respondent shall continue to attend as hereinafter set forth. The Deputy Restricted Registration Caduceus meetings on a monthly basis. Administrator adopts, in full, the No Exceptions to the Opinion and Opinion and Recommended Decision of On January 27, 2003, the Deputy Recommended Ruling were filed and on the Administrative Law Judge. Assistant Administrator, Office of February 2, 2005, Judge Bittner The Deputy Administrator finds Diversion Control, Drug Enforcement transmitted the record of these Respondent currently holds DEA Administration (DEA) issued an Order proceedings to the Deputy Certificate of Registration AK8615013 as to Show Cause to Scott H. Nearing, Administrator. a practitioner and that on November 17, D.D.S. (Dr. Nearing/Respondent) of The Deputy Administrator has 2004, the Massachusetts Medical Board Wichita, Kansas. Dr. Nearing was considered the record in its entirety and revoked his license to practice medicine notified of an opportunity to show cause pursuant to 21 CFR 1316.67, hereby in that state, effective as of December as to why DEA should not deny this issues her final order based upon 17, 2004. That action was predicated on application for a DEA Certificate of findings of fact and conclusions of law Respondent’s criminal convictions Registration as a practitioner on the hereinafter set forth. The Deputy which under Massachusetts law, either grounds that his registration would be Administrator adopts in full, the undermined the public’s confidence in inconsistent with the public interest, as recommended ruling, findings of fact the integrity of the medical profession that term is used in 21 U.S.C. 823(f). and conclusions of law of the or showed Respondent’s lack of moral The Order to Show Cause alleged in Administrative Law Judge and agrees character. sum, that between April 1989 and May Respondent’s application should be The Deputy Administrator therefore 1993 Dr. Nearing wrote and presented approved, with restrictions. finds Respondent is not currently more than 100 fictitious prescriptions to The record before the Deputy licensed to practice medicine in local pharmacies for controlled Administrator shows Dr. Nearing Massachusetts and lacks authorization substances and ordered narcotic and graduated from the University of to handle controlled substances in that benzodiazepine controlled substances Missouri, Kansas City Dental School in state. from a wholesale drug company, all for 1983. In March 1984, he purchased a DEA does not have statutory authority his personal use and not for legitimate small dental practice from the widow of under the Controlled Substances Act to medical purposes. As a result of these another dentist located in Overland issue or maintain a registration if the actions, he surrendered his DEA Park, Kansas and nine years later, DEA applicant or registrant is without state Certificate of Registration on June 23, began investigating Respondent after authority to handle controlled 1993, and on July 11, 1994, pled guilty local pharmacies began questioning substances in the state in which he to one count of violating 21 U.S.C. prescriptions he had written.
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Based on records from approximately treatment program and required to pay continued participation in Caduceus, a 30 Kansas City pharmacies, DEA a $1,000.00 fine. support group for health professionals Diversion Investigators determined that On March 22, 1994, the Dental Board patterned after Alcoholics Anonymous between 1989 and 1993, Respondent entered into a stipulation with and Narcotics Anonymous. The Director presented multiple fictitious Respondent under which his license to further recommended that Dr. Nearing prescriptions for narcotic controlled practice dentistry was suspended for not engage in a solo practice, as the substances, using false names of one year. However, the suspension was strains of running such a business had patients. Most were for drugs containing stayed so long as he met certain contributed to his original abuse hydrocodone, a Schedule III controlled conditions, including complying with a problems. substance, but some were for rehabilitation program and refraining Based on this recommendation, in an oxycodone, a Schedule II controlled from any use of alcohol or controlled Order dated January 30, 2001, the substance. It was also determined substances. This program included Dental Board lifted Dr. Nearing’s license Respondent had ordered narcotic and attendance at twelve-step meetings, suspension and as of the date of the benzodiazepine controlled substances personal counseling, working with a DEA hearing, he is fully licensed to for his personal use from a wholesale sponsor, participation in an aftercare practice dentistry in Kansas. drug company. group and drug testing upon demand. Respondent testified at the hearing, On June 22, 1993, Diversion The administrator of the Impaired describing his history of violations and Investigators went to Respondent’s Provider Program (IPP) later advised the rehabilitative efforts. Immediately after office and confronted him about the Dental Board that Respondent was not the June 1993 interview, where he was fictitious prescriptions. After initial complying with the program’s apprised that authorities were aware of denials, he cooperated and admitting requirements because he had refused his activities, he entered his first in- writing the fraudulent prescriptions to therapy. As a result, Respondent entered patient treatment program. From 1994 to feed his drug abuse problem. Dr. into a Stipulation Agreement and 1997 he underwent rehabilitative Nearing also executed a DEA Form Enforcement Order with the Dental treatment as recommended by the 1204, voluntarily surrendered his DEA Board in December 1996. Under that Dental Board. However, he did stop Certificate of Registration and agreed to Order, his license would be suspended seeing the therapist which the program’s not reapply for registration for a for twelve months; however, this director had recommended. Dr. Nearing minimum of two years. suspension was also not put into effect, attributed this to confusion over Records introduced at the hearing as long as Respondent re-enrolled in IPP whether seeing the therapist was showed that between May 1, 1989 and and adhered with its requirements. mandatory and his then-belief the April 27, 1993, Respondent issued Respondent did reenter IPP, however, therapy was not helping him. This approximately 188 fraudulent as a result of a second refusal to undergo resulted in the first letter to the Dental prescriptions for Schedule II and III therapy, the administrator again advised Board that he was not in compliance controlled substances, most of which the Dental Board that he was not in with the program. Although he were for 16 or 20 dosage units. Further compliance with the program. As a discontinued therapy, his urine screens documentary evidence showed that consequence, in a Final Order dated were all negative and he attended between March 27 and June 10, 1993, January 16, 1998, Respondent’s dental Alcoholics Anonymous meetings. Dr. Dr. Nearing ordered approximately 1700 license was suspended for twelve Nearing was reinstated into the program dosage units of Vicodin, Darvocet N– months. During this period, Respondent but in 1998 was dropped once more, 100 and Valium from two drug failed to renew his license and it was again apparently for not seeing a wholesalers. Vicodin is the brand name cancelled, effective March 1, 1999. In therapist as directed. for a product containing hydrocodone, late 1999, after his suspension period On the recommendation of the Dental Valium is the brand name of a product had run, Respondent was seen Board, he finally entered the Center’s containing diazepam, a Schedule IV practicing dentistry by a state program in Lawrence, which addressed controlled substance and Darvocet N– investigator and because he had not problems that had previously gone 100 is the brand name for a product renewed his license, Respondent was undiagnosed and this led eventually to containing propoxyphene, also a then practicing without a license. full reinstatement of his license to Schedule IV controlled substance. Dr. He applied for a new license and in practice dentistry. Respondent testified Nearing testified at the hearing that a Stipulation and Final Agency Order that he has not used drugs since August while most of the Valium was provided dated May 20, 2000, the Dental Board 18, 1994, and has not consumed alcohol to patients, he probably personally used granted his application. However, as a since at least August 1999. the other drugs. There is no evidence sanction, it suspended his license to At the time of the hearing, Dr. Nearing that Dr. Nearing ever diverted any of practice while he underwent additional was the supervising dentist in a clinic these controlled substances to others or rehabilitation. Respondent then entered owned by another dentist. He oversees that any patient was harmed as a result a program run by the Professional the professional practice of several other of his personal abuse problems. Renewal Center (Center) of Lawrence, dentists, but does not have the business As a result of this investigation, on Kansas. This included intensive responsibilities which contributed to his June 8, 1994, Respondent was charged psychotherapy and treatment for a abuse problems while operating a solo in a one-count information in the previously undiagnosed problem, which practice. He described his current United States District Court for the the Center had discovered. situation as a ‘‘wonderful practice’’ and District of Kansas, with violating 21 In January 2001, the Center’s then- there is no evidence he has relapsed or U.S.C. 843(a)(3) by fraudulently Director wrote the Dental Board abused any drugs since 1994. Dr. obtaining a Schedule III narcotic supporting Respondent’s request to Nearing continues to attend Caduceus controlled substance. Dr. Nearing pled return to practice, noting Dr. Nearing’s meetings and testified that he would not guilty to that offense and on September significant progress, the support of his object to having conditions placed on 19, 1994, was placed on probation for family and his significant motivation for his registration if the application was four years, sentenced to four months change. The Director supported Dr. granted. home confinement, ordered to Nearing’s resumption of practice under The current director of the Center and participate in a substance abuse enumerated conditions, which included Respondent’s monitoring physician
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jointly wrote DEA in support of his that Respondent’s registration would be deny Respondent’s application, the application for registration. They inconsistent with the public interest. question remains as to whether the reported Dr. Nearing was in sustained The Deputy Administrator concurs. Deputy Administrator should, in the full remission and characterized his The record also establishes exercise of her discretion, grant or deny dependence recovery as being Respondent entered a guilty plea to a the application. Like Judge Bittner, the ‘‘remarkable.’’ charge of violating federal law by Deputy Administrator concludes that it Pursuant to 21 U.S.C. 823(f), the fraudulently obtaining a Schedule III would not be inconsistent with the Deputy Administrator may deny any narcotic controlled substance. Thus, as public interest to grant Respondent’s pending application for registration if also found by Judge Bittner, factor three pending application. See Karen A. she determines that registration would weighs in favor of a finding that Kreuger, M.D., 69 FR 7,016 (2004) [grant be inconsistent with the public interest. Respondent’s registration would be of restricted registration]; Jeffrey Martin Section 823(f) requires that the inconsistent with the public interest. Ford, D.D.S., 68 FR 10,750 (2003) following factors be considered in With regard to factor four, compliance [same]. determining the public interest: with applicable laws relating to The Deputy Administrator finds (1) The recommendation of the controlled substances, Respondent’s use significant Respondent’s willingness to appropriate state licensing board or of purported prescriptions with cooperate with investigators and accept professional disciplinary authority. fictitious names violated statutory and responsibility, both administratively (2) The applicant’s experience in regulatory requirements that and criminally. Upon discovery of his dispensing or conducting research with prescriptions be issued only for activities he immediately entered respect to controlled substances. legitimate medical purposes and must rehabilitation and most recently (3) The applicant’s conviction record bear the full name and address of the completed an intensive program for under Federal or state laws relating to patient. As found by Judge Bittner, this health professionals tailored to a the manufacture, distribution, or factor also weighs against registration. diagnosis made only upon Dr. Nearing’s dispensing of controlled substances. Finally, with regard to factor five, admission to that program. (4) Compliance with applicable state, beyond the violations addressed above, Most importantly, there is no Federal, or local laws relating to the Deputy Administrator agrees with evidence he has misused any controlled controlled substances. Judge Bittner that Respondent has not substances for almost eleven years now (5) Such other conduct which may engaged in other conduct that may and he is in a responsible professional threaten the public health or safety. threaten the public health or safety. situation that is conducive to his These factors are to be considered in Applying the above factors, Judge continued compliance with the laws the disjunctive; the Deputy Bittner concluded the record clearly and regulations governing controlled Administrator may rely on any one or a establishes grounds for finding that substances. In sum, it appears from combination of factors and may give Respondent’s registration would be these positive developments that each factor the weight she deems inconsistent with the public interest. Respondent has acknowledged his past appropriate in determining whether a However, she recommended that the problems and taken steps to ensure registration should be revoked or an Deputy Administrator, in the exercise of continued recovery. application for registration denied. See her discretion, grant Respondent’s However, given the concerns about Henry J. Schwartz, Jr., M.D., 54 FR application, with restrictions. Respondent’s past mishandling of 16,422 (1989). Judge Bittner noted Respondent controlled substances, a restricted With regard to factor one, the cooperated with DEA investigators registration is warranted. Accordingly, recommendation of the appropriate state when he was first confronted with his the Deputy Administrator adopts the licensing board or professional misconduct in 1994. He admitted his following restrictions upon the disciplinary authority, Judge Bittner abuse of controlled substances and the Respondent’s DEA registration, as found Respondent is now fully licensed fraudulent means used to acquire them. recommended by Judge Bittner: by the State of Kansas to practice He immediately sought treatment and 1. Respondent shall not write any dentistry and has authority to handle there is no evidence that Dr. Nearing has prescriptions for himself, and shall not controlled substances in that state. She abused any controlled substances for obtain or possess for his use any therefore found this factor weighed in almost 11 years. While terminated from controlled substance except upon the favor of registration. Nevertheless, as his initial rehabilitation program over written prescription of another licensed noted by the Administrative Law Judge, the therapy issue, he did not return to medical professional. state licensure is a necessary, but not drug use and eventually Dr. Nearing 2. For at least two years from the date sufficient condition for registration, and successfully completed an intensive of the entry of a final order in this therefore this factor is not dispositive. program for impaired professionals. proceeding, Respondent shall continue See e.g., Wesley G. Harline, M.D., 65 FR The Administrative Law Judge, who to attend Caduceus meetings on a 5,665–01 (2000); James C. LaJevic, observed Respondent’s demeanor monthly basis. D.M.D., 64 FR 55,962 (1999). The during the hearing, credited his Additionally, Deputy Administrator agrees. testimony that he has continued 3. Respondent’s controlled substance With regard to factor two, rehabilitation and concluded that Dr. handling authority shall be limited to Respondent’s experience in handling Nearing is unlikely to repeat his past the administering of controlled controlled substances, he abused misconduct. She therefore found that substances in his office and the writing controlled substances after obtaining granting Respondent’s application of prescriptions only. them through fictitious prescriptions would not be inconsistent with the 4. Respondent shall inform the DEA, and ordering them from wholesalers. public interest, subject to the within 30 days of the event, of any Judge Bittner concluded that even enumerated restrictions. adverse action taken by any state upon though Respondent never The Deputy Administrator also finds his license to practice dentistry or upon inappropriately prescribed, that adequate grounds exist for denying his authorization to handle controlled administered or otherwise dispensed Respondent’s application for DEA substances within that state. controlled substances to any patient, registration. Having concluded that Accordingly, the Deputy this factor weighed in favor of a finding there is a lawful basis upon which to Administrator of the Drug Enforcement
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Administration, pursuant to the 1998, the California Board revoked The record before the Deputy authority vested in her by 21 U.S.C. 823 Respondent’s medical license, effective Administrator shows Respondent and 824 and 28 CFR 0.100(b) and 0.104, March 13, 1998. However, the Board received his medical degree in 1971 hereby orders that the application for stayed the revocation, placing from Christian Medical College in DEA Certificate of Registration Respondent’s license on probation for Vellore, India. He interned and submitted by Scott H. Nearing, D.D.S. three years, with conditions. On March completed a residency in Maryland and be, and it hereby is, granted, subject to 20, 2001, as a result of the California in 1981 was licensed to practice in the above described restrictions. This action, Respondent entered into a California. He also practiced medicine order is effective July 7, 2005. Consent Order with the Louisiana State in Louisiana from an undetermined date Dated: May 25, 2005. Board of Medical Examiners (Louisiana until 1992, when he moved to California and opened a practice in Redlands. He Michele M. Leonhart, Board) in which he agreed to an indefinite suspension of his Louisiana eventually began working in the Salinas Deputy Administrator. medical license. office of Rinaldo Fong, M.D. and took [FR Doc. 05–11251 Filed 6–6–05; 8:45 am] Finally, it was alleged that in over that practice when Dr. Fong was BILLING CODE 4410–09–M February 1998 and February 2001, deported. Respondent has held DEA Respondent materially falsified a total of Certificate of Registration BP3420344 for four applications for renewal of his DEA the Redlands location since November DEPARTMENT OF JUSTICE registrations by failing to disclose the 18, 1992, and DEA resignation BP4416029 for the Salinas office since Drug Enforcement Administration California Board’s action placing his medical license in a probationary status. May 8, 1995. While Respondent is [Docket No. 02–28] Respondent requested a hearing on Board eligible in anesthesiology, his the issues raised by the Order to Show specialty at all relevant times has been Felix K. Prakasam, M.D. Revocation of Cause and following pre-hearing bariatric medicine i.e., weight control. Registration procedures, a hearing was held in San In July 1996, after reports were received of Respondent’s possible On February 6, 2002, the Deputy Francisco, California, on March 12 and purchase of excessive quantities of Assistant Administrator, Office of 13, 2003. At the hearing, both parties controlled substances, DEA Diversion Diversion Control, Drug Enforcement called witnesses to testify and Investigators, accompanied by an Administration (DEA), issued an Order introduced documentary evidence. After the hearing, both parties submitted investigator from the California Board, to Show Cause to Felix K. Prakasam, conducted an inspection and M.D. (Respondent) notifying proposed findings of fact, conclusions of law, and argument. accountability audit at Respondent’s Respondent of an opportunity to show Salinas office. The inspection revealed cause as to why DEA should not revoke On January 30, 2004, Presiding Administrative Law Judge Mary Ellen Respondent had not complied with his DEA Certificates of Registration multiple regulatory requirements, BP3420344 and BP44160029, pursuant Bittner (Judge Bittner/ALJ) issued her Opinion and Recommended Ruling, including failures: (1) Maintain an to 21 U.S.C. 824(a)(1) and (a)(4) on the inventory of controlled substances as of grounds he had materially falsified four Findings of Fact, Conclusions of Law and Decision of the Administrative Law a specific date and as of the opening or DEA renewal applications and that his closing of business; (2) maintain continued registration would be Judge (Opinion and Recommended inconsistent with the public interest, as Ruling) in which she recommended that Respondent’s two DEA registrations be ruling, the Government declined to provide that term is used in 21 U.S.C. 823(f) and Respondent the reports, contending they were not 824(a)(4). The Order to Show Cause also revoked and any pending applications releasable under the rules and statutes governing proposed that any pending applications for renewal denied. No exceptions were DEA administrative hearings. Transcript, pages 168–169; Opinion and Recommended Ruling, page for renewal should be denied under 21 submitted by the parties, and on March 2, 2004, Judge Bittner transmitted the 5, fn. 1. U.S.C. 823(f). The reports appear to be Jencks Act material (18 The Order to Show Cause alleged, in record of these proceedings to the then- U.S.C. 3500) and the Deputy Administrator has sum, that during 1995–1996, Acting Deputy Administrator of DEA. previously ruled that ‘‘pursuant to applicable law The Deputy Administrator has and regulations governing DEA administrative Respondent failed to maintain complete hearings, neither the principles of the Jencks and accurate records of controlled considered the record in its entirety and pursuant to 21 CFR 1316.67, hereby decision nor the Jencks Act are applicable to these substances dispensed at this medical proceedings.’’ See e.g., Branex Inc., 69 FR 8,682, offices located in Redlands and Salinas, issues her final order based upon 8,685 (2004) (Emphasis added) [Confirming predecessor Deputy Administrator’s interlocutory California, and accountability audits finding of fact and conclusions of law as hereinafter set forth. decision that the Government is not required to during this period revealed overages supply a respondent at an administrative hearing, The Deputy Administrator adopts the and shortages of controlled substances statements made and adopted by Government findings of fact and recommendation of at both registered locations. As a result, witnesses during their direct testimony.] the Administrative Law Judge that Applying the principles of Branex and its on March 10, 1997, after an informal Respondent’s DEA Certificates of predecessors, which addressed evidentiary/ administrative hearing at the DEA San Registration be revoked.1 discovery standards applicable to DEA Francisco office, Respondent entered administrative hearing and detailed the into a Memorandum of Understanding Government’s limited obligations to provide 1 In an evidentiary/discovery ruling which did discovery before and during the course of hearings with DEA in which he agreed to address not impact relevant findings of fact or her under the Administrative Procedures Act (5 U.S.C. the record-keeping violations and recommendation for revocation, the ALJ concluded 556(d)) and DEA regulations (21 CFR 1316.54– provide effective controls against theft the Government should have provided Respondent 1316.59), the Deputy Administrator concludes the and diversion of controlled substances. copies of several DEA–6 Reports of Investigation Government correctly declined to provide which had been prepared by a DEA Diversion Respondent the reports in question here. See e.g., The Order to Show Cause further Investigator while investigating the allegations, Nicholas A. Sychak, d.b.a. Medicap Pharmacy, 65 alleged that on April 30, 1997, the several years before the hearing. Before testifying FR 75,959, 75,960–75,961 (2000) [No requirement California Medical Board (California for the Government, the Diversion Investigator had for Government to disclose potentially exculpatory used the reports to refresh his memory and information to respondents in DEA administrative Board) brought on Accusation against Respondent’s request for the documents was made hearings]; Rosalind A. Cropper, M.D., 66 FR 41,040, Respondent’s California medical after the Diversion Investigator completed testifying 41,041 (2001) [‘‘the Federal Rules of Evidence do license. As a result, on February 11, on direct examination. Notwithstanding the ALJ’s not apply directly to these proceedings’’].
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addresses of patients to whom required receiving records; (6) follow also required to notify and appear before Respondent directly dispensed drug destruction procedures established the Louisiana Board, prior to seeking controlled substances or the initials or by the DEA San Francisco office; and (7) renewal or reinstatement of his name of the dispenser; (3) adequately provide effective controls against theft Louisiana license and he would accept document a return of controlled and diversion of controlled substances. any terms or conditions the Louisiana substances to a supplier; (4) document The California Board conducted Board might impose as a condition of a transfer of controlled substances additional investigations of Respondent reinstatement. between his Redlands and Salinas and on April 30, 1997, issued an Respondent testified at the DEA offices; and (5) retain a purchase Accusation against Respondent alleging hearing that when he signed the invoice. multiple violations, including the Memorandum of Understanding with An accountability audit performed in matters from the 1996 DEA inquiries. DEA in May 1997, he understood ‘‘that conjunction with the investigation in On February 11, 1998, the California the matter would be laid to rest at that July 1996 indicated substantial overages Board issued a Decision, effective March moment, and never again brought up; of phentermine 30 mg. and 15 mg. and 13, 1998, adopting a Stipulated but it was not done so.’’ He also testified a substantial shortage of phentermine Settlement and Decision (Stipulation) he agreed to settle the California Board 37.5. However, Judge Bittner concluded that Respondent and his then-attorney proceedings because he paid the overages were most likely executed on January 5, 1998. In the ‘‘thousands of dollars’’ in attorney fees attributable to the use of a zero opening Stipulation, Respondent waived various and had no money left. However, he inventory and did not necessarily rights but did not admit engaging in any regretted that decision because he indicate diversion. of the alleged misconduct. considered the allegations to be false. With regard to the shortage, there was The Stipulation revoked Respondent’s With regard to the Louisiana Consent a conflict in the evidence as to whether medical license and license to supervise Order, Respondent testified he signed it investigators had inventoried some physician assistants, but stayed the because he ‘‘had not desire to go back 48,000 dosage units of phentermine 37.5 revocations and placed his licenses on to Louisiana.’’ mg. which, if counted, would have probation for three years. Among its On February 25 and 28, 1998, resulted in an overage of that drug. A provisions, the Stipulation required Respondent executed renewal second inventory was performed at the Respondent to take continuing medical applications for the DEA registrations at Salinas Office on October 29 and 30, education courses and courses in his Redlands and Salinas locations. On 1996, showing a substantial overage of prescribing practices and ethics, to both applications, Respondent checked phentermine 37.5 mg. and no significant maintain records of all controlled ‘‘No’’ in response to the question, ‘‘Has shortages. Given the numbers, Judge substances he prescribed, dispensed or the applicant even been convicted of a Bittner concluded the second audit’s administered, to make these records crime in connection with controlled overage indicated the 48,000 units of available for inspection, to take and pass substances under State or Federal law or phentermine 37.5 mg. had actually been an oral clinical examination, to have a ever surrendered or had a Federal on hand in July, but not counted in the third party present while examining or controlled substance registration first audit. treating female patients and to comply revoked, suspended, restricted, or The Deputy Administrator agrees with with a probation surveillance program. denied or ever had a State professional Judge Bittner that the record is The Stipulation provided that upon license or controlled substance inadequate to determine whether or not successful completion of probation, registration revoked, suspended, denied, the July 1996 inventory was accurate. Respondent’s California licenses would restricted, or placed on probation or is Therefore, it cannot be established be reinstated. That, in fact, occurred and any such action pending against the whether or not Respondent was on May 11, 2001, Respondent was applicant?’’ (Emphasis added). An responsible for the shortage indicated by notified he had successfully completed applicant who responds affirmatively to the first audit. probation. He has since been licensed to this question is required to explain his On February 6, 1997, a Notice of practice medicine in California without answer on the back of the application. Hearing was issued by DEA informing restriction. The evidence introduced at Respondent left this space blank on both Respondent an informal hearing would the DEA hearing indicates that since the applications. be held in San Francisco on March 10, 1996 DEA inquiry, he has complied On February 27 and 28, 2001, 1997. The notice alleged the record with controlled substance record Respondent again executed renewal keeping and regulatory violations from keeping requirements. applications for his Salinas and the 1996 DEA investigations. Respondent was also licensed to Redlands offices. These applications Respondent appeared, represented by practice medicine in Louisiana for a included the so-called ‘‘liability counsel, and testified regarding the period of time prior to 1998, when his questions’’ pertaining to individual reasons for the regulatory violations, but license expired. Under Louisiana law, applicants. Question 3(d) asked, ‘‘Has disputed the accuracy of the he was entitled to renew the license for the applicant ever had a state inventories. a period of four years from its professional license or controlled On May 8, 1997, Respondent executed expiration. On Februry 2, 2001, substance registration revoked, a Memorandum of Understanding with Respondent entered into a Consent suspended, denied, restricted, or placed DEA’s San Francisco Field Division. In Order with the Louisiana Board, in on probation?’’ (Emphasis added). that Memorandum Respondent agreed which the Board indefinitely suspended Respondent answered this question in to: (1) Comply with the provisions of the Respondent’s entitlement to the negative on both applications and Controlled Substances Act and its reinstatement of his Louisiana medical left the space for explanations of implementing regulations at each of his license. It further imposed, as a affirmative answers blank. registered locations; (2) take an condition of eventual reinstatement, In June 2001, a Diversion Investigator inventory of controlled substances upon that Respondent successfully complete from DEA’s Riverside office looking into receiving a new DEA registration; (3) all probationary conditions levied by Respondent’s February 2001 renewal maintain dispensing logs that met the California Board and obtain an applications, contacted the California regulatory requirements; (4) keep unrestricted license to practice Board and learned that Respondent’s complete and accurate records; (5) keep medicine in California. Respondent was medical license for that state had been
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placed on probation. In October 2001, Administrator may revoke a registration substances, Respondent’s falsification of the investigator wrote a report if she determines the registrant has the renewal applications and the concluding Respondent had not committed acts that would render his regulatory violations discussed above, truthfully answered the liability continued registration inconsistent with establish he has not complied with the questions and recommend initiation of the public interest, as that term is laws relating to controlled substances. the instant Show Cause proceedings. determined under 21 U.S.C. 823(f). That The Deputy Administrator agrees with Respondent testified at the DEA section requires the following factors be Judge Bittner that this factor weighs hearing that when he executed the two considered in determining the public against continued registration. February 1998 applications, no interest: As to factor five, other conduct that discipline had yet taken effect against (1) The recommendation of the may threaten the public health and either his California or Louisiana appropriate state licensing board or safety, Judge Bittner noted that, medical licenses. When asked his professional disciplinary authority. although Respondent committed various understanding of the relevant question, (2) The applicant’s experience in regulatory violations prior to 1996, his Respondent replied he thought the dispensing, or conducting research with subsequent recordkeeping apparently question applied only to a separate state respect to controlled substances. complied with DEA regulations. She license to handle controlled substances, (3) The applicant’s conviction record therefore found this factor weighs in such as he had in Louisiana, and that no under Federal or State laws relating to favor of continued registration. The action had been taken against that the manufacture, distribution, or Deputy Administrator agrees. license. He further testified he would dispensing of controlled substances. In sum, Judge Bittner concluded have expected someone from DEA to (4) Compliance with applicable State, Respondent corrected the recordkeeping contact him if there was a problem with Federal, or local laws relating to deficiencies uncovered in 1996 and the 1998 applications and that did not controlled substances. under the circumstances, the audit occur. (5) Such other conduct which may results did not warrant a finding that On cross-examination, Respondent threaten the public health or safety. Respondent mishandled controlled acknowledged that as of January 5, These factors are to be considered in substances during the period July 1995 1998, he was aware he was entering into the disjunctive; the Deputy to October 1996. She concluded that the an agreement with the California Board Administrator may rely on any one or a factors considered pursuant to 21 U.S.C. which would result in his California combination of factors and may give 832(f), other than those relating to medical license being placed on each factor the weight she deems falsification of applications, did not probation and that the questions on his appropriate in determining whether a establish that Respondent’s continued February 1998 applications referred to registration should be revoced or an registration was inconsistent with the pending disciplinary actions, in application for registration denied. See public interest under 21 U.S.C. addition to discipline already imposed. Henry J. Schwartz, Jr., M.D., 54 FR 824(a)(4). The Deputy Administrator Nonetheless, when asked, ‘‘isn’t it true 16,422 (1989). agrees revocation is unwarranted under that, on February 25, 1998, you were With regard to the public interest that section. aware that the California Medical Board factors, the Deputy Administrator finds, However, as Judge Bittner concluded, was going to place [you] on in agreement with Judge Bittner as to the issue of Respondent’s falsification of probation?’’—Respondent answered, factor one, that Respondent has regained renewal applications ‘‘is another ‘‘Yes, but that’s not how I read that.’’ his unrestricted license to practice matter.’’ DEA has previously held that Asked further what he thought the medicine in California and this weighs in finding there has been a material correct answer to the application’s in favor of continued registration. falsification of an application, it must be question was, Respondent replied, ‘‘My However, inasmuch as State license is a determined the applicant knew or opinion would be the correct answer is necessary but not sufficient condition should have known that the response no.’’ for DEA registration, this factor is not given to the liability question was false. Similarly, when asked whether the determinative. See Edson W. Redard, See Merlin E. Shuck, D.V.M., 69 FR February 2, 2001, Consent Order with M.D., 65 FR 30,616, 30,619 (2000); 22,566 (2004); James C. LaJavic, D.M.D., the Louisiana Board resulted in a James C. LaJevic, D.M.D., 64 FR 55,962, supra, 64 FR 55,962; Martha Hernandez, suspension or probation of his 55,964 (1999). M.D., 62 FR 61,145 (1997). In that Louisiana medical license, Respondent As to factor two, Respondent’s regard, Judge Bittner found Respondent replied the Consent Order was based on experience in handling controlled materially falsified four applications for the California settlement and he had substances, Judge Bittner concluded that renewal of his DEA registrations. agreed not to practice in Louisiana and the recordkeeping deficiencies disclosed The two 1998 applications did not not renewed his license in that state. in the 1996 investigation indicated that refer only to licenses to handle With respect to the two 2001 DEA continued registration would not be in controlled substances, but to ‘‘a state applications, Respondent testified his the public interest. However, with professional license or controlled answers to question 3(d) were correct regard to the 1996 audits, Judge Bittner substance registration,’’ and it is clear because the probationary period for his concluded the evidence introduced at that applicants were required to report California medical license had run by the DEA hearing was insufficient to actions against their medical or other that time and he thought the question show Respondent responsible for any professional licenses, both completed referred to his controlled substance shortages of controlled substances and and then-pending. Further, although the license, rather than his medical license. thus weighed in favor of continued probation of Respondent’s California The Controlled Substances Act registration. The Deputy Administrator license did not take effect until March specifies in 21 U.S.C. 824(a)(1) that the agrees with these conclusions. 13, 1998, the disciplinary action was Deputy Administrator may revoke a As to factor three, there is no evidence obviously pending on February 25 and DEA Certificate of Registration if she Respondent has ever been convicted of 28, 1998, when Respondent executed finds the registrant has materially a crime relating to controlled his applications. Also, regarding the two falsified any application for DEA substances. February 2001 applications, at that time registration. The Act also provides in As to factor four, his compliance with Respondent’s California license had section 824(a)(4) that the Deputy applicable laws relating to controlled been on probation and the fact that the
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probationary period was over did not registration would be inconsistent with registration number to issue a justify a negative answer to the the public interest, he materially prescription for controlled substances. question, as it asked whether the falsified four applications for renewal of Respondent, through counsel, timely applicant ‘‘ever’’ had discipline take registration, which constitutes an requested a hearing in this matter. On against a state license. independent ground for revocation. November 22, 2004, the Presiding The Deputy Administrator also agrees The Deputy Administrator shares Administrative Law Judge Mary Ellen with Judge Bittner’s conclusions, made Judge Bittner’s concern regarding Bittner (Judge Bittner) issued the after observing Respondent’s demeanor, Respondent’s on-going refusal or Government, as well as Respondent, an that ‘‘Respondent’s explanations for the inability to acknowledge a registrant’s Order for Prehearing Statements. misstatements and his continued responsibility to provide forthright and In lieu of filing a prehearing insistence that his answers were correct complete information to DEA, when statement, the Government filed a are disingenuous at best’’ and that he required to do so as a matter of law or Motion for Summary Disposition. In its materially falsified the applications, regulation. This attitude, reflected most motion the Government asserted that as which establishes grounds for revoking recently in his testimony at the hearing of December 20, 2004, Respondent was his registrations under 21 U.S.C. under oath, does not auger well for his no longer authorized to handle 824(a)(1).2 future compliance with the controlled substances in Illinois, his As Judge Bittner notes in her Opinion responsibilities of a registrant. state of applied-for registration. As a and Recommended Ruling, the Accordingly, the Deputy result, further proceedings in this matter governing statute is discretionary. See Administrator of the Drug Enforcement were not required. Attached to the Mary Thomson, M.D. 65 FR 75,969 Administration, pursuant to the Government’s motion was a copy of the (2000). In exercising discretion in authority vested in her by 21 U.S.C. 823 Illinois Department of Financial and determining the appropriate remedy in and 824 and 28 CFR 0.100(b), and 0.104, Professional Regulation, Division of any given case, the Deputy hereby orders the DEA Certificates of Professional Regulation (Illinois Board) Administrator considers all the facts Registration BP3420344 and BP4416029, Order dated December 20, 2004. That and circumstances of the case. See issued to Felix K. Prakasam, M.D., be, Order temporarily suspended Martha Hernandez, M.D., supra, 62 FR and hereby are, revoked. The Deputy Respondent’s Illinois medical license 61,145. Administrator further orders that any and state Controlled Substances In recommending revocation of pending applications to renew or Registration, pending further Respondent’s registrations, Judge Bittner modify said registrations be denied. proceedings before the Illinois Board. On January 4, 2005, Judge Bittner concluded, This order is effective July 7, 2005. issued a Memorandum to Counsel False statements on an application for DEA Dated: May 25, 2005. providing Respondent until January 18, registration withhold from DEA information Michele M. Leonhart, that is germane to the applicant’s fitness to 2005, to respond to the Government’s hold that registration. Kuen H. Chen, M.D., Deputy Administrator. motion. Respondent then filed a motion 58 FR 65401 (DEA 1993). Further, as [FR Doc. 05–11248 Filed 6–6–05; 8:45 am] on January 14, 2005, seeking an discussed above, Respondent insisted that BILLING CODE 4410–09–M extension of time to file his response to his answers to the questions on his 1998 and the Government’s motion. In it, he 2001 applications for renewal of his DEA claimed there was a hearing scheduled registrations were accurate. DEPARTMENT OF JUSTICE before the Illinois Board on January 18, They were not. In addition and also 2005, which could impact the discussed above, Respondent’s explanations Drug Enforcement Administration suspension order. Over the of his answers on these applications were at best disingenuous. Respondent’s cavalier [Docket No. 05–9] Government’s objections, Judge Bittner attitude toward his responsibility to granted Respondent an extension until truthfully answer questions on the Roger A. Rodriguez, M.D., Denial of February 8, 2005, to file his response. application raises serious concerns about Registration On February 8, 2005, Respondent whether he is willing to accept the other filed his Response to the Motion for responsibilities inherent in a DEA On October 8, 2004, the Deputy Summary Disposition. In that response registration. Assistant Administrator, Office of he did not contest that his medical and The Deputy Administrator has Diversion Control, Drug Enforcement controlled substance licenses were then- examined the record and finds the facts Administration (DEA), issued an Order suspended, but asserted he was in and credibility determinations of Judge to Show Cause to Roger A. Rodriguez, negotiations with the Illinois Board that Bittner to be well supported by the M.D. (Respondent) of Peoria, Illinois, might result in an agreed-to four-month evidence. While the record does not notifying him of an opportunity to show suspension of his medical license. establish that Respondent’s continued cause as to why DEA should not deny Respondent asked Judge Bittner to stay his application for a DEA Certificate of action on the Government’s motion 2 Respondent signed the Consent Order with the Registration as a practitioner pursuant until the state disciplinary proceeding Louisiana Board on February 2, 2001, however it to 21 U.S.C. 823(f). was resolved. was not effective until March 20, 2001. Judge As a basis for denial, the Order to On February 16, 2005, Judge Bittner Bittner noted that the 2001 DEA applications, which Respondent signed on February 27 and 28, Show Cause alleged, in substance, that issued her Opinion and Recommended 2001, did not specifically ask whether any Respondent: (1) Issued prescriptions Decision of the Administrative Law disciplinary proceedings were then ‘‘pending.’’ and dispensed controlled substances to Judge (Opinion and Recommended Accordingly, she concluded that, ‘‘at least arguably, undercover law enforcement personnel Decision). As part of her recommended Respondent was not required to disclose the Louisiana action inasmuch as it was not effective on multiple occasions without an ruling, Judge Bittner denied until March 20, 2001.’’ While, given the wording of adequate physical examination or bona Respondent’s request to stay the the application’s questions, Respondent’s omissions fide medical reason; (2) failed to proceedings and granted the in failing to report this action may not have maintain required controlled substance Government’s Motion for Summary amounted to material misrepresentations under 21 USC 824(a)(1), it demonstrates his willingness to records; and (3) surrendered a prior Disposition, finding Respondent lacked draw exceptionally fine lines in dealing with DEA DEA registration on June 19, 2003, and authorization to handle controlled regulators. then used another practitioner’s DEA substances in Illinois, the jurisdiction
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where he was applying for registration. reinstatement. See Paramabaloth Edwin, of Registration on Dr. Smith’s attorney Judge Bittner recommended that M.D., 69 FR 58,540 (2004); Alton E. at Respondent’s medical office in Respondent’s application for a DEA Ingram, Jr., M.D., 69 FR 22,562 (2004); Philadelphia, Pennsylvania. Since that Certificate of Registration be denied. Anne Lazar Thorn, M.D., 62 FR 847 date, DEA has not received a request for No exceptions were filed by either (1997). a hearing or any other reply from Dr. party to Judge Bittner’s Opinion and Here, it is clear Respondent is not Smith or anyone purporting to represent Recommended Decision and on March currently licensed to handle controlled him in this matter. 22, 2005, the record of these substances in Illinois, the jurisdiction in Therefore, the Deputy Administrator proceedings was transmitted to the which he has applied for a DEA of DEA, finding that (1) thirty days Office of the DEA Deputy registration. Therefore, he is not entitled having passed since personal delivery of Administrator. to registration in that state. the Order to Show Cause/Immediate The Deputy Administrator has Accordingly, the Deputy Suspension of Registration to the considered the record in its entirety and Administrator of the Drug Enforcement registrant and (2) no request for hearing pursuant to 21 CFR 1316.67, hereby Administration, pursuant to the having been received, concludes that Dr. issues her final order based upon authority vested in her by 21 U.S.C. 823 Smith is deemed to have waived his findings of fact and conclusions of law and 824 and 28 CFR 0.100(b) and 0.104, hearing right. See David W. Linder, 67 as hereinafter set forth. The Deputy hereby orders that the application for a FR 12,579 (2002). After considering Administrator adopts, in full, the DEA Certificate of Registration material from the investigative file in Opinion and Recommended Decision of submitted by Roger A. Rodriguez, M.D., this matter, the Deputy Administrator the Administrative Law Judge. be, and it hereby is, denied. This order now enters her final order without a The Deputy Administrator finds that is effective July 7, 2005. hearing pursuant to 21 CFR 1301.43(d) Respondent previously held DEA and (e) and 1301.46. Certificate of Registration BR4105032, Dated: May 25, 2005. The Deputy Administrator finds that which he surrendered on June 19, 2003, Michele M. Leonhart, Dr. Smith is registered with DEA as a while a Federal Search Warrant was Deputy Administrator. being executed upon his medical office. [FR Doc. 05–11243 Filed 6–6–05; 8:45 am] practitioner under Certificate of Registration AS6932669 with a Three weeks later, Respondent filed the BILLING CODE 4410–09–M application for DEA registration which registered location at 1420 Locust Street, is the subject of these proceedings. Suite 200, Philadelphia, Pennsylvania. The Deputy Administrator further DEPARTMENT OF JUSTICE In May 2003, DEA began investigating finds that, effective December 20, 2004, Dr. Smith as a result of complaints from Respondent’s license to practice Drug Enforcement Administration area pharmacies that were encountering medicine in Illinois and his Illinois large numbers of young, seemingly Robert A. Smith, M.D., Revocation of healthy individuals, filling prescriptions Controlled Substances Registration were Registration temporarily suspended, pending further issued by Dr. Smith for OxyContin and proceedings, after the Illinois Board This order serves as a correction of Percocet, both schedule II controlled found ‘‘the public interest, safety, and the final order previously issued in this substances. These individuals paid cash welfare imperatively require emergency matter and published on May 10, 2005. for their prescriptions and appeared to action to prevent the continued practice On September 29, 2004, the Deputy be traveling long distances to have them of the Respondent, in that Respondent’s Administrator, Drug Enforcement prescribed and filled. actions constitute an immediate danger Administration (DEA), issued an Order On June 27, 2003, Independence Blue to the public.’’ The Illinois Board’s to Show Cause/Immediate Suspension Cross (IBC) insurance investigators action was based primarily on the facts of Registration to Robert A. Smith, M.D. interviewed IBC beneficiary ‘‘H.B.’’ alleged in DEA’s Order to Show Cause, (Dr. Smith) who was notified of an regarding prescriptions for OxyContin, coupled with Respondent’s violation of opportunity to show cause as to why Percocet and Methadone which had an Agreement of Care, Counseling and DEA should not revoke his DEA been issued by Dr. Smith under her Treatment, which he had entered into Certificate of Registration AS6932669 name and insurance data. H.B. had with state authorities. under 21 U.S.C. 824(a)(4) and deny any never seen or heard of Dr. Smith and The Deputy Administrator therefore pending applications for renewal or had no medical conditions warranting finds Respondent is currently not modification of that registration under the prescriptions. It was also established licensed to practice medicine in Illinois 21 U.S.C. 823(f). Dr. Smith was further that H.B.’s son’s father, ‘‘M.P.,’’ was a and lacks authorization to handle notified that his registration was being heroin addict and that M.P.’s sister, controlled substances in that state. immediately suspended under 21 U.S.C. ‘‘L.P.,’’ who also had a history of DEA does not have statutory authority 824(d) as an imminent danger to the narcotic’s abuse, worked for Dr. Smith under the Controlled Substances Act to public health and safety. as his office assistant. issue or maintain a registration if the The Order to Show Cause alleged in On July 9, 2003, NBC investigators applicant or registrant is without state relevant part, that Dr. Smith diverted interviewed ‘‘C.P.,’’ who was L.P.’s authority to handle controlled controlled substances for a substantial sister. IBC’s records reflected that on substances in the state in which he time by knowingly issuing fraudulent May 10, 2003, Dr. Smith issued conducts business. See 21 U.S.C. prescriptions to individuals, without a prescriptions for Percocet and 802(21), 823(f) and 824(a)(3). This bona fide doctor-patient relationship or Alprazolam (Xanax), a schedule IV prerequisite has been consistently legitimate medical purpose. The Order controlled substance, using C.P.’s name upheld. See Stephen J. Graham, M.D., to Show Cause also notified Dr. Smith and policy, which were then paid for by 69 FR 11,661 (2004), Dominick A. Ricci, that should no request for a hearing be insurance company. Investigators M.D., 58 FR 51,104 (1993); Bobby Watts, filed within 30 days, his hearing right determined C.P. had never met or been M.D., 53 FR 11,919 (1988). Denial or would be deemed waived. examined by Dr. Smith, that she did not revocation is also appropriate when a On October 20, 2004, a DEA receive the prescriptions written in her state license has been suspended, but investigator personally served the Order name and had no medical conditions with the possibility of future to Show Cause/Immediate Suspension warranting them.
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On November 6, 2003, DEA Diversion majority was for schedule II and IV considered in determining the public Investigators responded to the Lombard controlled substances. interest: Apothecary in Philadelphia to interview On May 20, 2004, a Confidential (1) The recommendation of the ‘‘D.N.,’’ who had attempted to fill a Source (CS) was provided $400.00 to appropriate state licensing board or prescription for OxyContin issued by purchase fraudulent prescriptions professional disciplinary authority. Dr. Smith using D.N.’s mother’s name written by Dr. Smith. The CS used that (2) The applicant’s experience in and insurance. D.N. admitted that her money to obtain twelve separate dispensing, or conducting research with mother had no knowledge of the prescriptions from an individual who, respect to controlled substances. prescription and was not a patient of Dr. in turn, had received them from Dr. (3) The applicant’s conviction record Smith. D.N. had asked Dr. Smith to Smith. under Federal or state laws relating to issue her fraudulent prescriptions, as On May 27, 2004, Diversion the manufacture, distribution, and she had no medical insurance of her Investigators interviewed ‘‘J.G.’’ who, dispensing of controlled substances. (4) Compliance with applicable state, own. He also had written her a for six or eight months, had been seeing federal, or local laws relating to prescription for OxyContin, using her Dr. Smith on a weekly basis. J.G. would brother’s name and insurance data. D.N. controlled substances. give Dr. Smith a list of fictitious names (5) Such other conduct which may then used the OxyContin to feed her and types of controlled substances he threaten the public health or safety. personal narcotics addiction. desired and Dr. Smith would issue three These factors are considered in the On November 26, 2003, ‘‘J. S.’’ was prescriptions under each name, usually disjunctive; the Deputy Administrator interviewed by local law enforcement for Percocet, OxyContin and Xanax. Dr. may rely on any one or a combination authorities, with DEA Diversion Smith issued between nine and fifteen of factors and may give each factor the Investigators present. She admitted fraudulent prescriptions for controlled weight she deems appropriate in receiving seven to ten prescriptions for substances per visit and received determining whether a registration OxyContin from Dr. Smith, per visit, on $100.00 for each set of three should be revoked or an application for a weekly basis. These prescriptions prescriptions. J.G. then sold the registration denied. See Henry J. would be written in J.S.’s name, as well prescriptions to a third party who, in Schwartz, Jr., M.D., 54 FR 16,422 (1989). as her father’s and fiancee’s names. She turn, sold the drugs on the street. Dr. As to factor one, the recommendation paid $65.00 per visit and an additional Smith was aware of and knowingly of the appropriation state licensing $100.00, each time, to ensure Dr. Smith participated in this scheme. board or professional disciplinary would continue providing her On June 1, 17 and 19, 2004, a CS authority, there is no evidence in the fraudulent prescriptions. Additionally, visited Dr. Smith’s medical office. On investigative file that the State of Dr. Smith would ask J.S. for sexual each occasion, he obtained fraudulent Pennsylvania has yet taken adverse favors during her office visits. While she prescriptions for Xanax, OxyContin and action against Dr. Smith’s medical personally declined to fulfill his Percocet, paying Dr. Smith $500.00 for license. However, ‘‘inasmuch as State requests, as a substitute, she paid fifteen prescriptions, written under five licensure is a necessary but not another woman $100.00 to perform a different fraudulent identities. sufficient condition for a DEA sexual act upon Dr. Smith. J.S. also On June 29, 2004, Diversion registration* * * this factor is not reported that Dr. Smith’s office Investigators were contacted by Family dispositive.’’ See Edson W. Redard, assistant, L.P., had provided her blank Meds, a mail order pharmacy in M.D., 65 FR 30,616, 30,619 (2000). prescriptions in return for $40.00 and Connecticut. On June 22, 2004, the With regard to factors two and four, OxyContin pills. pharmacy received five prescriptions for Respondent’s experience in handling Dr. Smith also wrote prescriptions for controlled substances written by Dr. controlled substances and his ‘‘A.D.,’’ who had heard of Respondent’s Smith for ‘‘M.B.’’ Family Meds had compliance with applicable controlled ‘‘street’’ reputation for providing contacted Dr. Smith, who verified substance laws, the investigative file controlled substance prescriptions. A.D. issuing the prescriptions. However, the contains overwhelming evidence that was first seen by Dr. Smith in February pharmacy ultimately refused to fill them Dr. Smith unlawfully prescribed and 2003 and the only examination involved and verified that on June 6, 2004, M.B. diverted controlled substances over an measuring A.D.’s blood pressure. In had filled identical prescriptions issued extensive period of time. He knowingly March and April 2003, Dr. Smith issued by Dr. Smith at another pharmacy. prescribed controlled substances to prescriptions for OxyContin and A review of reports from the individuals without bona fide doctor- Percocet, using both A.D.’s and his Pennsylvania Attorney General’s Office, patient relationships and issued wife’s names. In February 2004, Dr. Bureau of Narcotics Investigation and fraudulent prescriptions destined to Smith also wrote ten prescriptions for Drug Control showed that from January feed the recipient’s personal addiction A.D. using A.D.’s name, his wife’s name 14, 2002, to April 30, 2004, Dr. Smith or to be sold on the street. He did so in and a friend’s name. issued over 6,500 prescriptions for a calculated manner, for financial gain, On February 22, 2004, ‘‘S.K.’’ was schedule II narcotic controlled violating multiple state and federal laws found, apparently unresponsive, by her substances. These prescriptions and abysmally failing to meet the mother-in-law, who called 911. S.K. constituted a significant portion of the rudimentary responsibilities of a died of a drug overdose and a few weeks total schedule II prescriptions filled in physician and registrant. Thus, factors later S.K.’s mother-in-law contacted the Philadelphia and New Jersey area. two and four weigh in favor of a finding DEA Diversion Investigators and Pursuant to 21 U.S.C. 823(f) and that continued registration would be advised that S.K. had been addicted to 824(a)(4), the Deputy Administrator may inconsistent with the public interest. narcotics and Dr. Smith was the source revoke a DEA Certificate of Registration Factor three, the applicant’s of her prescriptions. The Philadelphia and deny any pending applications for conviction record under Federal or state Medical Examiner’s Office provided renewal of such registration, if she laws relating to the manufacture, DEA investigators 31 prescription determines that the continued distribution, or dispensing of controlled bottles recovered from S.K.’s residence. registration would be inconsistent with substances, is not relevant for All of their labels indicated they were the public interest. Section 823(f) consideration, as there is no evidence prescribed by Dr. Smith and the requires that the following factors be Dr. Smith has yet been convicted of any
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crime related to controlled substances. NUCLEAR REGULATORY Therefore, the staff considered the However, it is noted the investigation COMMISSION impact of the residual radioactivity at has been provided to Federal authorities the facility and concluded that since the [Docket No. 030–33656] for possible initiation of criminal residual radioactivity meets the requirements in subpart E of 10 CFR charges. Notice of Availability of Environmental part 20, a Finding of No Significant With respect to factor five, other Assessment and Finding of No Impact is appropriate. conduct that may threaten the public Significant Impact for License health and safety, Respondent’s actions Amendment for PPD, Inc.’s (formerly III. Finding of No Significant Impact discussed above are also relevant under PPD Development and PPD Pharmaco) The staff has prepared the EA this factor. The Deputy Administrator is Facility in Richmond, VA (summarized above) in support of the particularly troubled by Dr. Smith’s AGENCY: Nuclear Regulatory license amendment to release the efforts to enrich himself at the expense Commission. facility for unrestricted use. The NRC of the public health and safety. Not only staff has evaluated PPD, Inc.’s request ACTION: Notice of availability. has a large quantity of controlled and the results of the surveys and has concluded that the completed action substances been diverted over an FOR FURTHER INFORMATION CONTACT: John complies with the criteria in subpart E extensive period of time as a result of Nicholson, Commercial and R&D his illegal activities, at least one patient of 10 CFR part 20. The staff has found Branch, Division of Nuclear Materials that the radiological environmental has died of a drug overdose after taken Safety, Region I, 475 Allendale Road, medications prescribed by Dr. Smith. impacts from the action are bounded by King of Prussia, Pennsylvania, 19406, the impacts evaluated by NUREG–1496, The exact degree of suffering and telephone (610) 337–5236, fax (610) Volumes 1–3, ‘‘Generic Environmental costs, both social and economic, 337–5269; or by e-mail: [email protected]. Impact Statement in Support of stemming from Dr. Smith’s activities SUPPLEMENTARY INFORMATION: Rulemaking on Radiological Criteria for will never be known. Suffice it to say, I. Introduction License Termination of NRC-Licensed his unprofessional and criminal conduct Facilities’’ (ML042310492, has resulted in the diversion of large The Nuclear Regulatory Commission ML042320379, and ML042330385). The quantities of controlled substances in (NRC) is issuing a license amendment to staff also found that the non-radiological the Philadelphia area for a lengthy PPD, Inc. for Materials License No. 45– impacts are not significant. On the basis period of time, with correspondingly 25314–01, to authorize release of its of the EA, the NRC has concluded that severe consequences for public health facility in Richmond, Virginia for the environmental impacts from the and safety. unrestricted use. NRC has prepared an action are expected to be insignificant Environmental Assessment (EA) in and has determined not to prepare an In sum, Dr. Smith’s cavalier disregard support of this action in accordance environmental impact statement for the for the law and abandonment of his with the requirements of 10 CFR part action. responsibilities as a physician and 51. Based on the EA, the NRC has registrant cannot be tolerated. They concluded that a Finding of No IV. Further Information weigh, irresistibly, in favor of a finding Significant Impact (FONSI) is Documents related to this action, that continued registration would not be appropriate. The amendment will be including the application for the license in the public interest. issued following the publication of this amendment and supporting Accordingly, the Deputy notice. documentation, are available electronically at the NRC’s Electronic Administrator of the Drug Enforcement II. EA Summary Administration, pursuant to the Reading Room at http://www.nrc.gov/ The purpose of the action is to authority vested in her by 21 U.S.C. 823 reading-rm/adams.html. From this site, authorize the release of the licensee’s you can access the NRC’s Agencywide and 28 CFR 0.100(b), and 0.104, hereby Richmond, Virginia facility for Document Access and Management orders that DEA Certificate of unrestricted use. PPD, Inc. was System (ADAMS), which provides text Registration AS6932669, issued to authorized by NRC from November 23, and image files of NRC’s public Robert A. Smith, M.D., be, and it hereby 1994, to use radioactive materials for documents. The ADAMS accession is, revoked. The Deputy Administrator research and development purposes at numbers for the documents related to further orders that any pending the site. On November 18, 1997, PPD, this notice are: The Environmental applications for renewal or modification Inc. requested that NRC release the Assessment [ML051510116], NRC of such registration be, and they hereby facility for unrestricted use. PPD, Inc. Inspection Report No. 45–25314–01/98– are, denied. This order is effective July has conducted surveys of the facility 01 [ML050450536] and Final 7, 2005. and provided information to the NRC to Radiological Survey Report for 2246C Dated: May 25, 2005. demonstrate that the site meets the Dabney Circle dated October 1997 license termination criteria in subpart E Michele M. Leonhart, prepared by RSO, Inc., for PPD of 10 CFR part 20 for unrestricted use. Pharmaco [ML050450524]. Persons who Deputy Administrator. The NRC staff has prepared an EA in do not have access to ADAMS or who [FR Doc. 05–11250 Filed 6–6–05; 8:45 am] support of the license amendment. The encounter problems in accessing the BILLING CODE 4410–09–M facility was remediated and surveyed documents located in ADAMS, should prior to the licensee requesting the contact the NRC PDR Reference staff by license amendment. The NRC staff has telephone at (800) 397–4209 or (301) reviewed the information and final 415–4737, or by e-mail to [email protected]. status survey submitted by PPD, Inc. Documents related to operations Based on its review, the staff has conducted under this license not determined that there are no additional specifically referenced in this notice remediation activities necessary to may not be electronically available complete the proposed action. and/or may not be publicly available.
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Persons who have an interest in Contact person for more information: the pendency before the Commission of reviewing these documents should Dave Gamberoni, (301) 415–1651. a request for a hearing from any person. submit a request to NRC under the * * * * * This biweekly notice includes all Freedom of Information Act (FOIA). The NRC Commission Meeting notices of amendments issued, or Instructions for submitting a FOIA Schedule can be found on the Internet proposed to be issued from May 13, request can be found on the NRC’s Web at: http://www.nrc.gov/what-we-do/ 2005 to May 25, 2005. The last biweekly site at http://www.nrc.gov/reading-rm/ policy-making/schedule.html. notice was published on May 24, 2005 foia/foia-privacy.html. (70 FR 29785). * * * * * Dated in King of Prussia, Pennsylvania this The NRC provides reasonable Notice of Consideration of Issuance of 31st day of May, 2005. accommodation to individuals with Amendments to Facility Operating For the Nuclear Regulatory Commission. disabilities where appropriate. If you Licenses, Proposed No Significant James P. Dwyer, need a reasonable accommodation to Hazards Consideration Determination, Chief, Commercial and R&D Branch, Division participate in these public meetings, or and Opportunity for a Hearing of Nuclear Materials Safety, Region I. need this meeting notice or the The Commission has made a [FR Doc. 05–11217 Filed 6–6–05; 8:45 am] transcript or other information from the proposed determination that the BILLING CODE 7590–01–P public meetings in another format (e.g. following amendment requests involve braille, large print), please notify the no significant hazards consideration. NRC’s Disability Program Coordinator, Under the Commission’s regulations in NUCLEAR REGULATORY August Spector, at 301–415–7080, TDD: 10 CFR 50.92, this means that operation COMMISSION 301–415–2100, or by e-mail at of the facility in accordance with the Sunshine Act Meeting [email protected]. Determinations on proposed amendment would not (1) requests for reasonable accommodation involve a significant increase in the AGENCY HOLDING THE MEETINGS: Nuclear will be made on a case-by-case basis. probability or consequences of an Regulatory Commission. * * * * * accident previously evaluated; or (2) create the possibility of a new or DATE: This notice is distributed by mail to Weeks of June 6, 13, 20, 27, July different kind of accident from any 4, 11, 2005. several hundred subscribers; if you no longer wish to receive it, or would like accident previously evaluated; or (3) PLACE: Commissioners’ Conference to be added to the distribution, please involve a significant reduction in a Room, 11555 Rockville Pike, Rockville, contact the Office of the Secretary, margin of safety. The basis for this Maryland. Washington, DC 20555 (301–415–1969). proposed determination for each STATUS: Public and closed. In addition, distribution of this meeting amendment request is shown below. MATTERS TO BE CONSIDERED: notice over the Internet system is The Commission is seeking public comments on this proposed available. If you are interested in Week of June 6, 2005 determination. Any comments received receiving this Commission meeting within 30 days after the date of There are no meetings scheduled for schedule electronically, please send an publication of this notice will be the week of June 6, 2005. electronic message to [email protected]. considered in making any final Week of June 13, 2005—Tentative Dated: June 2, 2005. determination. Within 60 days after the There are no meetings scheduled for Dave Gamberoni, date of publication of this notice, the the week of June 13, 2005. Office of the Secretary. licensee may file a request for a hearing [FR Doc. 05–11350 Filed 6–3–05; 9:41 am] with respect to issuance of the Week of June 20, 2005—Tentative BILLING CODE 7590–01–M amendment to the subject facility There are no meetings scheduled for operating license and any person whose the week of June 20, 2005. interest may be affected by this NUCLEAR REGULATORY proceeding and who wishes to Week of June 27, 2005—Tentative COMMISSION participate as a party in the proceeding Tuesday, June 28, 2005. must file a written request for a hearing 9:30 a.m. Briefing on Equal Biweekly Notice; Applications and and a petition for leave to intervene. Employment Opportunity (EEO) Amendments to Facility Operating Normally, the Commission will not Program (Public Meeting) (Contact: Licenses Involving No Significant issue the amendment until the Corenthis Kelley, 301–415–7380). Hazards Considerations expiration of 60 days after the date of publication of this notice. The This meeting will be Webcast live at Background the Web address—http://www.nrc.gov. Commission may issue the license Wednesday, June 29, 2005. Pursuant to section 189a.(2) of the amendment before expiration of the 60- 9:30 a.m. Discussion of Security Atomic Energy Act of 1954, as amended day period provided that its final Issues (Closed—Ex. 1). (the Act), the U.S. Nuclear Regulatory determination is that the amendment Commission (the Commission or NRC involves no significant hazards Week of July 4, 2005—Tentative staff) is publishing this regular biweekly consideration. In addition, the There are no meetings scheduled for notice. The Act requires the Commission may issue the amendment the week of July 4, 2005. Commission publish notice of any prior to the expiration of the 30-day amendments issued, or proposed to be comment period should circumstances Week of July 11, 2005—Tentative issued and grants the Commission the change during the 30-day comment There are no meetings scheduled for authority to issue and make period such that failure to act in a the week of July 11, 2005. immediately effective any amendment timely way would result, for example in * The schedule for Commission to an operating license upon a derating or shutdown of the facility. meetings is subject to change on short determination by the Commission that Should the Commission take action notice. To verify the status of meetings such amendment involves no significant prior to the expiration of either the call (recording)—(301) 415–1292. hazards consideration, notwithstanding comment period or the notice period, it
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will publish in the Federal Register a As required by 10 CFR 2.309, a when the hearing is held. If the final notice of issuance. Should the petition for leave to intervene shall set determination is that the amendment Commission make a final No Significant forth with particularity the interest of request involves no significant hazards Hazards Consideration Determination, the petitioner in the proceeding, and consideration, the Commission may any hearing will take place after how that interest may be affected by the issue the amendment and make it issuance. The Commission expects that results of the proceeding. The petition immediately effective, notwithstanding the need to take this action will occur should specifically explain the reasons the request for a hearing. Any hearing very infrequently. why intervention should be permitted held would take place after issuance of Written comments may be submitted with particular reference to the the amendment. If the final by mail to the Chief, Rules and following general requirements: (1) The determination is that the amendment Directives Branch, Division of name, address, and telephone number of request involves a significant hazards Administrative Services, Office of the requestor or petitioner; (2) the consideration, any hearing held would Administration, U.S. Nuclear Regulatory nature of the requestor’s/petitioner’s take place before the issuance of any Commission, Washington, DC 20555– right under the Act to be made a party amendment. 0001, and should cite the publication to the proceeding; (3) the nature and A request for a hearing or a petition date and page number of this Federal extent of the requestor’s/petitioner’s for leave to intervene must be filed by: Register notice. Written comments may property, financial, or other interest in (1) First class mail addressed to the also be delivered to Room 6D22, Two the proceeding; and (4) the possible Office of the Secretary of the White Flint North, 11545 Rockville effect of any decision or order which Commission, U.S. Nuclear Regulatory Pike, Rockville, Maryland, from 7:30 may be entered in the proceeding on the Commission, Washington, DC 20555– a.m. to 4:15 p.m. Federal workdays. requestor’s/petitioner’s interest. The 0001, Attention: Rulemaking and Copies of written comments received petition must also set forth the specific Adjudications Staff; (2) courier, express may be examined at the Commission’s contentions which the petitioner/ mail, and expedited delivery services: Public Document Room (PDR), located requestor seeks to have litigated at the Office of the Secretary, Sixteenth Floor, at One White Flint North, Public File proceeding. One White Flint North, 11555 Rockville Area O1F21, 11555 Rockville Pike (first Each contention must consist of a Pike, Rockville, Maryland, 20852, floor), Rockville, Maryland. The filing of specific statement of the issue of law or Attention: Rulemaking and requests for a hearing and petitions for fact to be raised or controverted. In Adjudications Staff; (3) e-mail leave to intervene is discussed below. addition, the petitioner/requestor shall addressed to the Office of the Secretary, Within 60 days after the date of provide a brief explanation of the bases U.S. Nuclear Regulatory Commission, publication of this notice, the licensee for the contention and a concise [email protected]; or (4) facsimile may file a request for a hearing with statement of the alleged facts or expert transmission addressed to the Office of respect to issuance of the amendment to opinion which support the contention the Secretary, U.S. Nuclear Regulatory the subject facility operating license and and on which the petitioner/requestor Commission, Washington, DC, any person whose interest may be intends to rely in proving the contention Attention: Rulemakings and affected by this proceeding and who at the hearing. The petitioner/requestor Adjudications Staff at (301) 415–1101, wishes to participate as a party in the must also provide references to those verification number is (301) 415–1966. proceeding must file a written request specific sources and documents of A copy of the request for hearing and for a hearing and a petition for leave to which the petitioner is aware and on petition for leave to intervene should intervene. Requests for a hearing and a which the petitioner/requestor intends also be sent to the Office of the General petition for leave to intervene shall be to rely to establish those facts or expert Counsel, U.S. Nuclear Regulatory filed in accordance with the opinion. The petition must include Commission, Washington, DC 20555– Commission’s ‘‘Rules of Practice for sufficient information to show that a 0001, and it is requested that copies be Domestic Licensing Proceedings’’ in 10 genuine dispute exists with the transmitted either by means of facsimile CFR part 2. Interested persons should applicant on a material issue of law or transmission to (301) 415–3725 or by e- consult a current copy of 10 CFR 2.309, fact. Contentions shall be limited to mail to [email protected]. A copy which is available at the Commission’s matters within the scope of the of the request for hearing and petition PDR, located at One White Flint North, amendment under consideration. The for leave to intervene should also be Public File Area 01F21, 11555 Rockville contention must be one which, if sent to the attorney for the licensee. Pike (first floor), Rockville, Maryland. proven, would entitle the petitioner/ Nontimely requests and/or petitions Publicly available records will be requestor to relief. A petitioner/ and contentions will not be entertained accessible from the Agencywide requestor who fails to satisfy these absent a determination by the Documents Access and Management requirements with respect to at least one Commission or the presiding officer of System’s (ADAMS) Public Electronic contention will not be permitted to the Atomic Safety and Licensing Board Reading Room on the Internet at the participate as a party. that the petition, request and/or the NRC Web site, http://www.nrc.gov/ Those permitted to intervene become contentions should be granted based on reading-rm/doc-collections/cfr/. If a parties to the proceeding, subject to any a balancing of the factors specified in 10 request for a hearing or petition for limitations in the order granting leave to CFR 2.309(a)(1)(i)–(viii). leave to intervene is filed within 60 intervene, and have the opportunity to For further details with respect to this days, the Commission or a presiding participate fully in the conduct of the action, see the application for officer designated by the Commission or hearing. amendment which is available for by the Chief Administrative Judge of the If a hearing is requested, and the public inspection at the Commission’s Atomic Safety and Licensing Board Commission has not made a final PDR, located at One White Flint North, Panel, will rule on the request and/or determination on the issue of no Public File Area 01F21, 11555 Rockville petition; and the Secretary or the Chief significant hazards consideration, the Pike (first floor), Rockville, Maryland. Administrative Judge of the Atomic Commission will make a final Publicly available records will be Safety and Licensing Board will issue a determination on the issue of no accessible from the ADAMS Public notice of a hearing or an appropriate significant hazards consideration. The Electronic Reading Room on the Internet order. final determination will serve to decide at the NRC Web site, http://
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www.nrc.gov/reading-rm/adams.html. If feed Fermi 2. Furthermore, the 10 CFR Energy Northwest, Docket No. 50–397, you do not have access to ADAMS or if 50.65(a)(4) program monitors the condition of Columbia Generating Station, Benton there are problems in accessing the the offsite electrical system and switchyard County, Washington configuration for each entry into the documents located in ADAMS, contact Date of amendment request: April 19, the PDR Reference staff at 1 (800) 397– extended completion time to ensure that there is no significant increase in the 2005. 4209, (301) 415–4737 or by e-mail to probability or consequences of an accident. Description of amendment request: [email protected]. The proposed change does not alter the The proposed amendment would revise Detroit Edison Company, Docket No. operation of any plant equipment assumed to technical specifications (TS) testing 50–341, Fermi 2, Monroe County, function in response to an analyzed event or frequency for the surveillance Michigan otherwise increase its failure probability. requirement (SR) in TS 3.1.4, ‘‘Control Therefore, this change does not involve a Rod Scram Times.’’ Specifically, the Date of amendment request: May 18, significant increase in the probability or the proposed change would revise the 2005. consequences of any accident previously frequency for SR 3.1.4.2, Control Rod Description of amendment request: evaluated. Scram Time Testing, from ‘‘120 days The proposed amendment would revise 2. The proposed change does not create the cumulative operation in MODE 1’’ to Fermi 2 Technical Specifications (TSs) possibility of a new or different kind of ‘‘200 days cumulative operation in to add Actions to Limiting Condition for accident from any accident previously MODE 1.’’ Operation (LCO) 3.8.1, ‘‘AC Sources— evaluated. The proposed change does not alter the The NRC staff issued a notice of Operating,’’ for one offsite circuit availability of a model no significant inoperable, for two offsite circuits design, configuration, or method of operation of the plant. It simply provides longer hazards consideration (NSHC) inoperable, and for one offsite circuit Completion Times for inoperable offsite determination for referencing in and one or both emergency diesel circuits. No physical or operational changes licensing amendment applications in generators (EDGs) in one Division to the components of the A. C. power systems the Federal Register on August 23, 2004 inoperable, in accordance with are being made by this change; therefore, no (69 FR 51864). The licensee affirmed the Regulatory Guide 1.93, ‘‘Availability of new system interactions are being created. applicability of the model NSHC The proposed change does not produce any Electric Power Sources.’’ The current determination in its application dated Fermi 2 TSs contain only a single parameters or conditions that could contribute to the initiation of accidents April 19, 2005. Action for one or two offsite circuits Basis for proposed no significant inoperable. different from those already evaluated. Therefore, this change does not create the hazards consideration determination: Basis for proposed no significant As required by 10 CFR 50.91(a), an hazards consideration determination: possibility of a new or different kind of accident from any accident previously analysis of the issue of no significant As required by 10 CFR 50.91(a), the evaluated. hazards consideration is presented licensee has provided its analysis of the 3. The change does not involve a below: issue of no significant hazards significant reduction in the margin of safety. consideration, which is presented The proposed change will replace the 1. Does the proposed change involve a below: existing LCO 3.8.1 Action C for one or two significant increase in the probability or offsite circuits inoperable with a required consequences of an accident previously 1. The proposed change does not involve evaluated? Completion Time of 12 hours to be in MODE a significant increase in the probability or Response: No. 3, and 36 hours to be in MODE 4, with new consequences of an accident previously The proposed change extends the Actions C, D, and E to allow a single offsite evaluated. frequency for testing control rod scram time circuit to be inoperable for up to 72 hours, The proposed change to replace the testing from every 120 days of cumulative existing LCO 3.8.1 Action C for one or two two offsite circuits to be inoperable for up to Mode 1 operation to 200 days of cumulative offsite circuits inoperable with a required 24 hours, and one offsite circuit and one or Mode 1 operation. The frequency of Completion Time of 12 hours to be in MODE both EDGs in one Division to be inoperable surveillance testing is not an initiator of any 3, and 36 hours to be in MODE 4, with new for up to 12 hours, provided other Required accident previously evaluated. The frequency Actions C, D, and E to allow a single offsite Actions are taken. This change is consistent of surveillance testing does not affect the circuit to be inoperable for up to 72 hours, with NUREG 1433, ‘‘Standard Technical ability to mitigate any accident previously two offsite circuits to be inoperable for up to Specifications General Electric Plants, BWR/ evaluated, as the tested component is still 24 hours, and one offsite circuit and one or 4,’’ and with the guidelines in Regulatory required to be operable. Therefore, the both EDGs in one Division to be inoperable Guide 1.93. The proposed change does not proposed change does not involve a for up to 12 hours, provided other Required affect any analysis that is used to establish significant increase in the probability or Actions are taken is consistent with the safety margins, nor does it alter the design, consequences of an accident previously NUREG 1433, ‘‘Standard Technical configuration, or method of operation of the evaluated. Specifications General Electric Plants, BWR/ plant. Therefore, the proposed change does 2. Does the change create the possibility of 4,’’ criteria, and with the guidelines in not involve a significant reduction in a a new or different kind of accident from any Regulatory Guide 1.93. There is no change in margin of safety. accident previously evaluated? plant design, and [Title 10 of the Code of Response: No. Federal Regulations (10 CFR)] 10 CFR 50, The NRC staff has reviewed the The proposed change extends the Appendix A, General Design Criteria 17, licensee’s analysis and, based on this frequency for testing control rod scram time ‘‘Electric Power Systems’’ will continue to be review, it appears that the three testing from every 120 days of cumulative met. Increasing the Completion Times for standards of 10 CFR 50.92(c) are Mode 1 operation to 200 days of cumulative inoperable offsite circuits will not satisfied. Therefore, the NRC staff Mode 1 operation. The proposed change does significantly increase the potential for a loss proposes to determine that the not result in any new or different modes of of offsite power. This is due to the plant operation. Therefore, the proposed redundancy and diversity of the offsite amendment request involves no change does not create the possibility of a electrical configuration at Fermi 2. significant hazards consideration. new or different kind of accident from any Inoperability of an offsite circuit does slightly Attorney for licensee: David G. previously evaluated. increase the potential for a loss of divisional Pettinari, Legal Department, 688 WCB, 3. Does the proposed change involve a power. The probability of losing the opposite Detroit Edison Company, 2000 2nd significant reduction in a margin of safety? division of offsite power in this condition is Response: No. extremely small due to the physical Avenue, Detroit, Michigan 48226–1279. The proposed change extends the separation of the offsite power sources that NRC Section Chief: L. Raghavan. frequency for testing control rod scram time
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testing from every 120 days of cumulative previously evaluated since it is not standards of 10 CFR 50.92(c) are Mode 1 operation to 200 days of cumulative associated with the initiation of any accident. satisfied. Therefore, the NRC staff Mode 1 operation. The proposed change The relay setpoint verification frequency of proposes to determine that the continues to test the control rod scram time 18 or 24 months has no significant effect on amendment request involves no to ensure the assumptions in the safety the consequences of an accident because the analysis are protected. Therefore, the relays are intended to be calibrated on this significant hazards consideration. proposed change does not involve a frequency. This frequency of calibration is Attorney for licensee: Mr. John Fulton, significant reduction in a margin of safety. based on operating experience, and is Assistant General Counsel, Entergy consistent with industry practice. Therefore, Nuclear Operations, Inc., 440 Hamilton Based on the above, the proposed the proposed change does not involve a change presents no significant hazards Avenue, White Plains, NY 10601. significant increase in the probability or NRC Section Chief: Richard J. Laufer. consideration under the standards set consequences of an accident previously forth in 10 CFR 50.92(c), and evaluated. Exelon Generation Company, LLC, accordingly, a finding of ‘‘no significant 2. Does the proposed change create the Docket Nos. 50–373 and 50–374, LaSalle hazards consideration’’ is justified. possibility of a new or different kind of County Station, Units 1 and 2, LaSalle Attorney for licensee: Thomas C. accident from any accident previously County, Illinois Poindexter, Esq., Winston & Strawn, evaluated? 1400 L Street, NW., Washington, DC Response: No. Date of amendment request: April 13, The proposed change adds a note to 20005–3502. 2005. indicate that the IP2 and IP3 degraded Description of amendment request: NRC Section Chief: Robert A. Gramm. voltage relays and the IP3 undervoltage relays do not require setpoint verification The proposed amendments would Entergy Nuclear Operations, Docket extend the completion time (CT) for Nos. 50–247 and 50–286, Indian Point when the TADOT required by TS surveillances is performed on a monthly required Action A.1, ‘‘Restore Residual Nuclear Generating Unit Nos. 2 and 3 basis. This effectively changes the frequency Heat Removal Service Water (RHRSW) (IP2 and 3), Westchester County, New required by the surveillance requirement subsystem to OPERABLE status,’’ York from 31 days to either 18 months or 24 associated with Technical Specification Date of amendment request: April 22, months. The change does not affect the (TS) Section 3.7.1 from 7 days to 10 2005. function of the relays or otherwise affect the days. This proposed change would only Description of amendment request: design and operation of plant systems and components and therefore no new accident be used during the upcoming Unit 1 The amendments would revise the scenarios would be created. The change does 2006 refueling outage. The surveillance requirements (SRs) for not affect the manner is which equipment is establishment of a 6 day (for Division 2 Technical Specification (TS) 3.3.5, operated but does affect the manner in which core standby cooling system (CSCS) ‘‘Loss of Power (LOP) Diesel Generator it is maintained by extending the frequency maintenance) or 10 day (for Division 1 (DG) Start Instrumentation.’’ for setpoint verification. The frequency CSCS maintenance ) CT for TS Section Specifically, a note would be added to change continues to provide adequate 3.7.2 when one or more required diesel IP2 TS SR 3.3.5.2 to indicate that the verification of the operability of equipment generator cooling water (DGCW) verification of the setpoint is not and limits the time which the relay function is inoperable or degraded while performing subsystem(s) are inoperable. This required for the 480 volt (V) bus verification. Therefore, no new failure modes proposed change will only be used degraded voltage function when are being introduced that could lead to during each of the upcoming Unit 1 performing the trip actuating device different accidents. 2006, and Unit 2 2007, refueling operational test (TADOT). A similar 3. Does the proposed change involve a outages, and during the subsequent Unit note would be added to IP3 TS SR significant reduction in a margin of safety? 1 2008, refueling outage. An extension 3.3.5.1 for the 480V degraded voltage Response: No. of the CT for required Action C.4, and undervoltage functions. The proposed change adds a note to ‘‘Restore required Diesel Generator (DG) indicate that the IP2 and IP3 degraded Basis for proposed no significant to OPERABLE status,’’ associated with hazards consideration determination: voltage relays and the IP3 undervoltage relays do not require setpoint verification TS Section 3.8.1 from 72 hours to 6 As required by 10 CFR 50.91(a), the when the TADOT required by TS days. This proposed change will only be licensee has provided its analysis of the surveillances is performed on a monthly used during the upcoming Unit 2 2007 issue of no significant hazards basis. Setpoint verification of these relays refueling outage, and during subsequent consideration, which is presented occurs as part of the channel calibration that Unit 1, 2008, refueling outage. An below: is performed at either an 18 month or a 24 extension of the CT for required Action month frequency. The margin associated 1. Does the proposed change involve a F.1, ‘‘Restore one required Diesel with these relays is the assurance that these significant increase in the probability or relays will properly sense either degraded Generator (DG) to OPERABLE status,’’ consequences of an accident previously voltage or undervoltage on the 480 volt safety associated with TS Section 3.8.1 from 2 evaluated[?] related buses and to initiate the start of the hours to 6 days. This proposed change Response: No. EDG for all events where the loss of offsite will only be used during the upcoming The proposed change adds a note to power is postulated. The proposed frequency Unit 2, 2007, refueling outage, and indicate that the IP2 and IP3 degraded of calibration is based on operating during subsequent Unit 1, 2008, voltage relays and the IP3 undervoltage experience, and is consistent with industry relays do not require setpoint verification refueling outage. practice. These indicate that setpoint Basis for proposed no significant when the TADOT required by TS verification at 18 month or 24 month surveillances is performed on a monthly [frequency] is adequate to assure hazards consideration determination: basis. Setpoint verification of these relays performance of the function. Verification of As required by 10 CFR 50.91(a), the occurs as part of the channel calibration that setpoints on a monthly basis either degrades licensee has provided its analysis of the is performed at either an 18 month or a 24 the reliability of the function or makes it issue of no significant hazards month frequency. These relays are used to inoperable. Therefore, the proposed change consideration, which is presented sense either degraded voltage or undervoltage does not involve a significant reduction in [a] below: on the 480 volt safety related buses and to margin of safety. initiate the start of the EDG [emergency 1. The proposed TS change does not diesel generator] for all events where the loss The NRC staff has reviewed the involve a significant increase in the of offsite power is postulated. This function licensee’s analysis and, based on this probability or consequences of an accident has no effect on the probability of an accident review, it appears that the three previously evaluated.
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The proposed changes have been evaluated are initiated and no new setpoints or The TS Index, affected TS pages and using the risk-informed processes described protective actions are introduced. The design Bases would also be revised and in RG [Regulatory Guide] 1.174, ‘‘An and operation of the CSCS system remains repaginated as necessary to reflect the Approach for Using Probabilistic Risk unchanged. The risk assessment with the proposed TS change. Assessment in Risk-Informed Decisions on proposed increase in the CTs for TS 3.7.1, TS Basis for proposed no significant Plant-Specific Changes to the Licensing 3.7.2, and TS 3.8.1 were evaluated using the Basis,’’ dated July 1998, and RG 1.177, ‘‘An risk-informed processes described in RG hazards consideration determination: Approach for Plant-Specific, Risk-Informed 1.174, ‘‘An Approach for Using Probabilistic As required by 10 CFR 50.91(a), the Decision Making: Technical Specifications,’’ Risk Assessment in Risk-Informed Decisions licensee has provided its analysis of the dated August 1998. The risk associated with on Plant-Specific Changes to the Licensing issue of no significant hazards the proposed change was found to be Basis,’’ dated July 1998, and RG 1.177, ‘‘An consideration, which is presented acceptable. Approach for Plant-Specific, Risk-Informed below: The previously analyzed accidents are Decision Making: Technical Specifications,’’ 1. Does the proposed change involve a initiated by the failure of plant structures, dated August 1998. The risk was shown to significant increase in the probability or systems, or components. The proposed be acceptable. Based on this evaluation, the consequences of an accident previously change does not have a detrimental impact proposed change does not involve a evaluated? on the integrity of any plant structure, significant reduction in a margin of safety. system, or component that initiates an No. The proposed change modifies the analyzed event. No active or passive failure The NRC staff has reviewed the BVPS Unit 2 TSs to incorporate steam mechanisms that could lead to an accident licensee’s analysis and, based on this generator tube inspection scope based on are affected. Non-code line stops required to review, it appears that the three WCAP–16385, Revision 1. Of the various isolate the Unit 1 portion of the common standards of 10 CFR 50.92(c) are accidents previously evaluated in the BVPS Unit 2 Updated Final Safety Analysis Report discharge header from the Unit 2 portion of satisfied. Therefore, the NRC staff the header during the specified CSCS (UFSAR), the proposed changes only affect proposes to determine that the the steam generator tube rupture (SGTR) maintenance will maintain the availability of requested amendments involve no the online unit’s Division 2 CSCS system. event evaluation and the postulated steam significant hazards consideration. line break (SLB) accident evaluation. Loss-of- The non-code line stops being used to isolate Attorney for licensee: Mr. Thomas S. coolant accident (LOCA) conditions cause a the system during the specified refueling compressive axial load to act on the tube. outages are being designed to the same O’Neill, Associate General Counsel, Therefore, since the LOCA tends to force the pressure rating and seismic requirements as Exelon Generation Company, LLC, 4300 tube into the tubesheet rather than pull it out, the CSCS piping. Winfield Road, Warrenville, IL 60555. it is not a factor in this amendment request. Redundancy is provided by designing the NRC Section Chief : Gene Y. Suh. Another faulted load consideration is a safe CSCS system as multiple independent FirstEnergy Nuclear Operating shutdown earthquake (SSE); however, the subsystems. Separation between subsystems seismic analysis of Model 51M SGs has assures that no single failure can affect more Company, et al., Docket No. 50–412, shown that axial loading of the tubes is than one subsystem. Therefore, assuming a Beaver Valley Power Station, Unit No. 2 (BVPS–2), Beaver County, Pennsylvania negligible during an SSE. single failure in any subsystem including the For the SGTR event, the required structural subsystem shared between units, two Date of amendment request: April 11, margins of the steam generator tubes will be subsystems in each unit will remain 2005. maintained by the presence of the tubesheet. unaffected. These two subsystems can supply Description of amendment request: Tube rupture is precluded for cracks in the the minimum required cooling water for safe The proposed amendment would revise tube expansion region due to the constraint shutdown of a unit or mitigate the provided by the tubesheet. Therefore, consequences of an accident. the BVPS–2 Technical Specification (TS) 3.4.5 to change the scope of the Regulatory Guide (RG) 1.121, ‘‘Bases for The proposed limited use of increased CT’s Plugging Degraded PWR [pressurized-water of the operating unit’s CSCS system steam generator (SG) tubesheet reactor] Steam Generator Tubes,’’ margins maintains the design basis assumptions; examinations required in the SG against burst are maintained for both normal therefore, the proposed change does not tubesheet region by using the F* and postulated accident conditions. involve a significant increase in the inspection methodology. Specifically, The F* length supplies the necessary consequences of an accident previously the proposed amendment would alter resistive force to preclude pullout loads evaluated. the tube inspection to exclude the under both normal operating and accident 2. The proposed TS change does not create conditions. The contact pressure results from the possibility of a new or different kind of portion of the SG tube within the tubesheet below the F* distance and to the tube expansion process used during accident from any accident previously manufacturing and from the differential evaluated. exclude the tube-to-tubesheet weld, by pressure between the primary and secondary The proposed change involves the crediting the methodology described in side. The proposed changes do not affect temporary installation of new equipment Westinghouse Topical Report, WCAP– other systems, structures, components or (mechanical line stops) that will be designed 16385, Revision 1. The F* distance is operational features. Therefore, the proposed and installed to the same pressure rating and the distance from the top of the change results in no significant increase in seismic design as the CSCS piping. The tubesheet to the bottom of the F* length the probability of the occurrence of an SGTR currently installed equipment will not be (the maximum length of tubing below or SLB accident. operated in a new or different manner. No The consequences of an SGTR event are new or different system interactions are the bottom of the roll transition (BRT) which must be demonstrated to be non- affected by the primary-to-secondary leakage created and no new processes are introduced. flow during the event. Primary-to-secondary The proposed changes will not introduce any degraded and which is defined as 1.97 leakage flow through a postulated broken new failure mechanisms, malfunctions, or inches on the hot leg side) plus the tube is not affected by the proposed change accident initiators not already considered in distance to the BRT and non-destructive since the tubesheet enhances the tube the design and licensing bases. Based on this examination uncertainties. The integrity in the region of the expansion by evaluation, the proposed change does not licensee’s proposed amendment also precluding tube deformation beyond its create the possibility of a new or different would revise the TS requirements to initial expanded outside diameter. The kind of accident from any accident require tubes with service-induced resistance to both tube rupture and collapse previously evaluated. degradation identified in the F* is strengthened by the tubesheet in that 3. The proposed TS change does not region. At normal operating pressures, involve a significant reduction in a margin of distance or less than or equal to 3.0 leakage from primary water stress corrosion safety. inches below the top of the tubesheet, cracking (PWSCC) below the F* length is The proposed change does not alter any whichever is greater, to be repaired or limited by both the tube-to-tubesheet crevice existing setpoints at which protective actions removed from service upon detection. and the limited crack opening permitted by
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the tubesheet constraint. Consequently, tubesheet. WCAP–16385, Revision 1, defines from the last Type A test would be extended negligible normal operating leakage is a length, F*, of degradation-free expanded to end prior to startup from the SL2–17 expected from cracks within the tubesheet tubing that provides the necessary resistance refueling. This is anticipated to be an region. to tube pullout due to the pressure-induced approximately six-month addition to the 15 SLB leakage is limited by leakage flow forces (with applicable safety factors year interval. The proposed extension to the restrictions resulting from the crack and tube- applied). Application of the F* criteria will Type A testing interval does not significantly to-tubesheet contact pressures that provide a preclude unacceptable primary-to-secondary increase the probability of an accident restricted leakage path above the indications leakage during all plant conditions. The previously evaluated since the containment and also limit the degree of crack face methodology for determining leakage Type A test is not a modification, nor a opening compared to free span indications. provides for large margins between change in the way that plant systems, The total leakage (i.e., the combined leakage calculated and actual leakage values in the structures or components (SSC) are operated, for all such tubes) meets the industry F* criteria. and is not an activity that could lead to performance criterion, plus the combined Plugging of the steam generator tubes equipment failure or accident initiation. The leakage developed by any other alternate reduces the reactor coolant flow margin for proposed extension of the test interval does repair criteria, and will be maintained below core cooling. Implementation of F* not involve a significant increase in the the maximum allowable SLB leak rate limit, methodology at Beaver Valley Unit 2 will consequences of an accident since research such that off-site doses are maintained less result in maintaining the margin of flow that documented in NUREG–1493 has found that than 10 CFR [Part] 100 guideline values and may have otherwise been reduced by tube generically, very few potential leak paths are the limits evaluated in the BVPS Unit 2 plugging. not identified with Type B and C tests (LLRT UFSAR. Based on the above, it is concluded that the [local leak-rate test]). The Type B and C Therefore, based on the above evaluation, proposed changes do not result in a testing are unaffected by this proposed the proposed changes do not involve a significant reduction of margin with respect change. The NUREG concluded that an significant increase in the probability or to plant safety as defined in the Final Safety increase in the Type A test interval to twenty consequences of an accident previously Analysis Report Update or bases of the plant years resulted in an imperceptible increase in evaluated. Technical Specifications. risk. St. Lucie Unit 2 provides a high degree of assurance through testing and inspection 2. Does the proposed change create the The NRC staff has reviewed the possibility of a new or different kind of that the containment will not degrade in a accident from any accident previously licensee’s analysis and, based on this manner only detectable by Type A testing. evaluated? review, it appears that the three Inspections required by the ASME [American No. The proposed changes do not standards of 10 CFR 50.92(c) are Society of Mechanical Engineers] Code, the containment leakage rate testing program, the introduce any changes or mechanisms that satisfied. Therefore, the NRC staff plant protective coatings program, and create the possibility of a new or different proposes to determine that the Maintenance Rule are performed in order to kind of accident. Tube bundle integrity will amendment request involves no identify indications of containment continue to be maintained for all plant significant hazards consideration. degradation that could affect leak tightness. conditions upon implementation of the F* Attorney for licensee: Mary O’Reilly, Type B and C testing required by 10 CFR 50, methodology. FirstEnergy Nuclear Operating Appendix J, are not affected by this proposed The proposed changes do not introduce Company, FirstEnergy Corporation, 76 extension to the Type A test interval and will any new equipment or any change to existing identify openings in containment equipment. No new effects on existing South Main Street, Akron, OH 44308. NRC Section Chief: Richard J. Laufer. penetrations that would otherwise require a equipment are created nor are any new Type A test. malfunctions introduced. Florida Power and Light Company, (2) Operation of the facility in accordance Therefore, the proposed change does not Docket No. 50–389, St. Lucie Plant, Unit with the proposed amendment would not create the possibility of a new or different No. 2 (SL2), St. Lucie County, Florida create the possibility of a new or different kind of accident from any previously kind of accident from any previously evaluated. Date of amendment request: March evaluated. 3. Does the proposed change involve a 31, 2005. The proposed change does not result in significant reduction in a margin of safety? Description of amendment request: facility operation that would create the No. The proposed changes maintain the The proposed amendment would revise possibility of a new or different kind of required structural margins of the steam Administrative Technical Specification accident from any accident previously generator tubes for both normal and accident Section 6.8.4.h, ‘‘Containment Leakage evaluated. The proposed extension to Type A conditions, including the planned uprated Rate Testing Program,’’ to allow a one- testing does not create a new or different type power level of 2910 Mwt. NRC [Nuclear of accident for St. Lucie because no physical Regulatory Commission] Regulatory Guide time extension of the currently approved 15-year test interval to plant changes are made and no compensatory (RG) 1.121 is used as the basis in the measures are being imposed that could development of the F* methodology for approximately 15.5 years. potentially lead to a failure. There are no determining that steam generator tube Basis for proposed no significant operational changes that could introduce a integrity considerations are maintained hazards consideration determination: new failure mode or create a new or different within acceptable limits. RG 1.121 describes As required by 10 CFR 50.91(a), the kind of accident. The proposed change only a method acceptable to the NRC staff for licensee has provided its analysis of the adds an extension to the current interval for meeting General Design Criteria 14, 15, 31, issue of no significant hazards Type A testing and does not change and 32 by reducing the probability and consideration, which is presented implementation aspects of the test. consequences of an SGTR. RG 1.121 below: (3) Operation of the facility in accordance concludes that by determining the limiting with the proposed amendment would not safe conditions of tube wall degradation (1) Operation of the facility in accordance involve a significant reduction in a margin of beyond which tubes with unacceptable with the proposed amendment would not safety. cracking, as established by inservice involve a significant increase in the The proposed change would not result in inspection, should be removed from service probability or consequences of an accident operation of the facility involving a or repaired, the probability and consequences previously evaluated. significant reduction in a margin of safety. of an SGTR are reduced. This RG uses safety The proposed change does not involve a The proposed license amendment adds a factors on loads for tube burst that are significant increase in the probability or one-time extension to the current interval for consistent with the requirements of Section consequences of an accident previously Type A testing (ILRT). The current one-time III of the American Society of Mechanical evaluated. The proposed amendment of the test interval of 15 years from the last Type Engineers (ASME) Code. Technical Specifications adds a one-time A test would be extended to end prior to For primarily axially oriented cracking extension to the current surveillance interval startup from the SL2–17 refueling outage. located within the tubesheet, tube burst is for Type A testing (ILRT [integrated leak rate This is anticipated to be an approximately six precluded due to the presence of the testing]). The current test interval of 15 years month addition to the 15 year interval.
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The NUREG–1493 generic study of the current] Sources—Shutdown,’’ to add that a DG automatically start in response to effects of extending the Type A test interval an additional note to the surveillance the ECCS initiation signal when the ECCS out to 20 years concluded that there is an that verifies automatic start of the subsystems that are supported by the DG are imperceptible increase in plant risk. A plant emergency diesel generators and not required to be operable does not reduce specific risk calculation obtained results the required ECCS protection. consistent with the generic conclusions automatic load shedding from the 4. Revision of TS 3.9.1., Condition A regarding risk which show a slight but emergency buses, is considered to be Required Action. The actions taken when a negligible increase in risk. Inspections met without the ECCS initiation signals refueling equipment interlock is inoperable required by the ASME code and maintenance operable when ECCS initiation signals are not initiators of any accident previously rule are performed to ensure that the are not required to be operable per Table evaluated. The level of protection against containment will not degrade in a manner 3.3.5.1–1, ECCS Instrumentation. withdrawing a control rod during the that is only detectable by Type A testing 4. TSTF–225, Revision 2, ‘‘Fuel insertion of a fuel assembly or loading a fuel (ILRT). movement with inoperable refueling assembly into the vessel with a control rod The NRC staff has reviewed the equipment interlocks’’—This change withdrawn, provided by the proposed alternate Required Actions, is equivalent to licensee’s analysis and, based on this modifies TS Section 3.9.1, ‘‘Refueling that provided by the current Required review, it appears that the three Equipment Interlocks,’’ to add required Action. The radiological consequences of an standards of 50.92(c) are satisfied. actions to allow insertion of a control accident described in the Updated Safety Therefore, the NRC staff proposes to rod withdrawal block and verification Analysis Report (USAR) while taking the determine that the amendment request that all control rods are fully inserted as proposed alternate Required Actions are not involves no significant hazards alternate actions to suspending in-vessel different from the consequences of an consideration. fuel movement in the event that one or accident under the current Required Actions. Attorney for licensee: M.S. Ross, more required refueling equipment Based on the above NPPD [Nebraska Public Attorney, Florida Power & Light, P.O. Power District] concludes that the proposed interlocks are inoperable. changes do not involve a significant increase Box 14000, Juno Beach, Florida 33408– Basis for proposed no significant in the probability or consequences of an 0420. hazards consideration determination: accident previously evaluated. NRC Section Chief: Michael L. As required by 10 CFR 50.91(a), the 2. Do the proposed changes create the Marshall, Jr. licensee has provided its analysis of the possibility of a new or different kind of Nebraska Public Power District, Docket issue of no significant hazards accident from any accident previously evaluated? No. 50–298, Cooper Nuclear Station, consideration, which is presented below: Response: No. Nemaha County, Nebraska The proposed changes to the CNS Date of amendment request: April 13, 1. Do the proposed changes involve a operating license involve revisions to the significant increase in the probability or requirements for when certain surveillances 2005. consequences of an accident previously Description of amendment request: are to be performed (change no. 1 and no. 3), evaluated? clarification of when ECCS instrumentation The proposed amendment would Response: No. incorporate several Technical is required to be operable (change no. 2), and 1. Revision of CNS [Cooper Nuclear addition of alternative Required Actions if Specification Task Force (TSTF) Station] TS SR 3.1.4.1 and SR 3.1.4.4. The certain plant components are inoperable frequency at which control rod scram time is changes to the licensee’s Technical (change no. 4). These changes will not result verified is not a precursor of an accident. A Specifications (TSs). The specific TSTF in revision of plant design, physical scram time slower than required might result changes that would be incorporated are: alteration of a plant structure, system, or in an increase in the consequences of an 1. TSTF–222–A, Revision 1, ‘‘Control component (SSC), or installation of a new or accident. However, revising the frequency for Rod Scram Time Testing’’—This change verifying the scram time of the control rods different type of equipment. The changes do modifies TS Section 3.1.4, ‘‘Control Rod does not impact the scram time. Verifying not involve any revision of how the plant, an Scram Times,’’ to clarify that control rod that the scram time is acceptable will SSC, or a refueling equipment interlock, are scram time testing is required only for continue to be required prior to plant startup operated. Based on this, the proposed core cells in which work on the control following fuel movement or work on the changes do not create the possibility of a new or different kind of accident. rod or drive has been performed or fuel control rods or control rod drive system. Therefore, revising the frequency for 3. Do the proposed changes involve a has been moved or replaced. significant reduction in a margin of safety? 2. TSTF–275–A, Revision 0, ‘‘Clarify verifying insertion time to clarify when it is required does not involve a significant Response: No. Requirement for EDG [emergency diesel increase in the probability of an accident or 1. Revision of CNS TS SR 3.1.4.1 and SR generator] start signal on RPV [reactor an increase in the consequences of an 3.1.4.4. Sufficiently rapid insertion of control pressure vessel] Level—Low, Low, Low accident. rods following certain accidents (scram time) during RPV cavity flood-up’’—This 2. Revision of TS Table 3.3.5.1–1. will prevent fuel damage, and thereby change modifies the TS Section 3.3.5.1, Clarifying when certain ECCS maintain a margin of safety to fuel damage. ‘‘ECCS [emergency core cooling system] instrumentation must be operable with the No change is being made to the required plant shut down will not increase either the insertion rate specified in plant technical Instrumentation,’’ to clarify that the specifications. Clarifying when control rod ECCS initiation instrumentation, probability of an accident or the consequences of the accident. The ECCS insertion times must be verified following identified as being required in modes 4 instrumentation is required to be operable movement of fuel assemblies, without and 5, is required to be operable only only when the associated ECCS subsystems actually changing the requirement when the associated ECCS subsystems are required to be operable. This continues to (verification of insertion times will continue are required to be operable as defined in ensure that the instrumentation will be to be required whenever work that might limiting condition of operation (LCO) operable when it is required. impact the rod insertion time is done), does 3.5.2, ‘‘ECCS—Shutdown.’’ 3. Revision of TS SR 3.8.2.1. The frequency not reduce the margin of safety related to fuel 3. TSTF–300–A, Revision 0, of verifying certain actions by surveillances damage. ‘‘Eliminate DG [diesel generator] LOCA is not a precursor to accidents. Clarifying that 2. Revision of TS Table 3.3.5.1–1. Clarifying when certain ECCS [loss-of-coolant accident]—Start SRs the actions required in response to an ECCS initiation signal are not required when the instrumentation is required to be operable [surveillance requirements] while in S/ ECCS initiation signals are not required to be when CNS is in a shutdown mode does not D [shutdown] when no ECCS is operable does not result in increased change the requirement. Not requiring ECCS Required’’—This change modifies the probability of an accident or increased signals that initiate a DG to be operable when TS Section 3.8.2, ‘‘AC [alternating consequences of an accident. Not requiring the ECCS subsystems that are supported by
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the DG are not required to be operable does April 15, 2003 (68 FR 18294). The Attorney for licensee: Jeffrie J. Keenan, not result in a reduction of a margin of safety licensee affirmed the applicability of the Esquire, Nuclear Business Unit—N21, for the safety related equipment that is model NSHC determination (modified P.O. Box 236, Hancocks Bridge, NJ required to be operable. slightly to address plant-specific TS 08038. 3. Revision of TS SR 3.8.2.1. Clarifying that NRC Section Chief: Darrell J. Roberts. automatic start of the DGs in response to the format) in its application dated February ECCS initiation signal is not required when 25, 2005. R.E. Ginna Nuclear Power Plant, LLC, Basis for proposed no significant the ECCS subsystems that are supported by Docket No. 50–244, R.E. Ginna Nuclear hazards consideration determination: the DG are not required to be operable does Power Plant, Wayne County, New York not result in a reduction in a margin of safety. As required by 10 CFR 50.91(a), an 4. Revision of TS 3.9.1, Condition A analysis of the issue of no significant Date of amendment request: March Required Action. The proposed alternate hazards consideration is presented 10, 2005. Required Actions to be taken when a below: Description of amendment request: refueling interlock is inoperable provide a The amendment would revise Technical level of protection against inadvertent Criterion 1—The proposed change does not involve a significant increase in the Specification Section 5.5.15, criticality while inserting or moving fuel in ‘‘Containment Leakage Rate Testing the reactor vessel that is equivalent to the probability or consequences of an accident previously evaluated. Program,’’ to allow a one-time extension level provided by the current Required of the interval between the Type A, Action. As a result, the proposed alternate A change is proposed to allow the affected SDV vent and drain line to be isolated when Required Actions do not result in a integrated leakage rate tests (ILRTs), there are one or more SDV vent or drain lines significant reduction in a margin of safety from 10 years to no more than 15 years. with inoperable valves instead or requiring related to protection against inadvertent Basis for proposed no significant the valves to be restored to operable status or criticality when inserting or moving fuel hazards consideration determination: the unit be in hot shutdown within 12 hours. assemblies. With SDV vent or drain valves inoperable in As required by 10 CFR 50.91(a), an Based on the above NPPD concludes that one or more lines, the isolation function analysis of the issue of no significant the proposed changes do not involve a would be maintained since the redundant hazards consideration is presented significant reduction in a margin of safety. valve in the affected line would perform its below: The NRC staff has reviewed the safety function of isolating the SDV. Criterion 1—The Proposed Change Does licensee’s analysis and, based on this Following the completion of the required Not Involve a Significant Increase in the action, the isolation function is fulfilled since review, it appears that the three Probability or Consequences of an Accident the associated line is isolated. The ability to standards of 10 CFR 50.92(c) are Previously Evaluated. vent and drain the SDV is maintained and The proposed change to Technical satisfied. Therefore, the NRC staff controlled through administrative controls. Specification 5.5.15, Containment Leakage proposes to determine that the This requirement assures the reactor Rate Testing Program, involves a one-time amendment request involves no protection system is not adversely affected by extension to the current interval for Type A significant hazards consideration. the inoperable valves. With the safety containment testing. The current test interval Attorney for licensee: Mr. John C. functions of the valves being maintained, the of ten (10) years would be extended on a one- probability or consequences of an accident McClure, Nebraska Public Power time basis to no longer than fifteen (15) years District, Post Office Box 499, Columbus, previously evaluated are not significantly increased. from the last Type A test. NE 68602–0499. The proposed Technical Specification NRC Section Chief: David Terao. Criterion 2—The proposed change does not create the possibility of a new or different change does not involve a physical change to the plant or a change in the manner which PSEG Nuclear, LLC, Docket No. 50–354, kind of accident from any accident previously evaluated. the plant is operated or controlled. The Hope Creek Generating Station, Salem reactor containment is designed to provide County, New Jersey The proposed change does not involve a physical alteration of the plant (no new or an essentially leak tight barrier against the Date of amendment request: February different type of equipment will be installed) uncontrolled release of radioactivity to the 25, 2005. or a change in the methods governing normal environment for postulated accidents. As Description of amendment request: plant operation. Thus, this change does not such the reactor containment itself and the The proposed amendment would revise create the possibility of a new or different testing requirements invoked to periodically kind of accident from any previously demonstrate the integrity of the reactor Technical Specification (TS) 3.1.3.1, containment exist to ensure the plant’s ‘‘Control Rod Operability,’’ such that evaluated. Criterion 3—The proposed change does not ability to mitigate the consequences of an scram discharge volume (SDV) vent or involve a significant reduction in [a] margin accident, and do not involve the prevention drain lines with inoperable valves of safety. or identification of any precursors of an would be isolated instead of requiring The proposed change ensures that the accident. that the valve be restored to Operable safety functions of the SDV vent and drain The proposed change involves only the status or the unit be placed in Hot valves are fulfilled. The isolation function is extension of the interval between Type A Shutdown within 12 hours. maintained by redundant valves and by the containment leakage tests. Type B and C The NRC staff issued a Notice of required action to isolate the affected line. containment leakage tests will continue to be The ability to vent and drain the SDV is performed at the frequency currently Opportunity for Comment in the required by plant Technical Specifications. Federal Register on February 24, 2003 maintained through administrative controls. In addition, the reactor protection system Industry experience has shown, as (68 FR 8637), on possible amendments will prevent filling of the SDV to the point documented in NUREG–1493, that Type B to revise the action for one or more SDV that it has insufficient volume to accept a full and C containment leakage tests have vent or drain lines with an inoperable scram. Maintaining the safety functions identified a very large percentage of valve, including a model safety related to isolation of the SDV and insertion containment leakage paths and that the evaluation and model no significant of control rods ensures that the proposed percentage of containment leakage paths that hazards consideration (NSHC) change does not involve a significant are detected only by Type A testing is very determination, using the consolidated reduction in the margin of safety. small. The Ginna ILRT test history supports this conclusion. In NUREG–1493 Section 10, line-item improvement process. The Based on the reasoning presented Summary of Technical Findings, it is NRC staff subsequently issued a Notice above, the NRC staff proposes to concluded, in part, that reducing the of Availability of the models for determine that the amendment request frequency of Type A containment leak tests referencing license amendment involves no significant hazards to once per twenty (20) years leads to an applications in the Federal Register on consideration. imperceptible increase in risk.
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The proposed change does not result in an leakage tests. Type B and C containment changes to the Technical Specifications (TS) increase in core damage frequency since the leakage tests will continue to be performed are necessary to properly accommodate the containment system is used for mitigation at the frequency currently required by plant changes in plant configuration and ensure purposes only. Containment Leakage Rate Technical Specifications. proper testing of the modified components. Testing Program local leak rate test Ginna and industry experience strongly The proposed changes do not adversely requirements and administrative controls supports the conclusion that Type B and C affect accident initiators or precursors nor such as design change control, ASME testing detects a large percentage of significantly alter the design assumptions, [American Society of Mechanical Engineers] containment leakage paths and that the conditions, and configuration of the facility Section XI Inservice Inspection (ISI) Program percentage of containment leakage paths that or the manner in which the plant is operated Containment Repair and Replacement are detected only by Type A testing is small. and maintained. The proposed changes do Program and procedural requirements for The containment inspections performed in not adversely alter or prevent the ability of system restoration ensure that containment accordance with the ASME Section XI structures, systems, and components (SSCs) integrity is not degraded by plant Inservice Inspection (ISI) Program from performing their intended function to modifications or maintenance activities. The Containment Program, Boric Acid Corrosion mitigate the consequences of an initiating design and construction requirements of the Program, inspections in accordance with event within the assumed acceptance limits. reactor containment itself combined with the Regulatory Guide 1.163 position C.3 and the The proposed changes do not affect the containment inspections performed in Maintenance Rule serve to provide a high source term, containment isolation, or accordance with the ASME Section XI degree of assurance that the containment will radiological release assumptions used in Inservice Inspection (ISI) Program not degrade in a manner that is detectable evaluating the radiological consequences of Containment Program, Boric Acid Corrosion only by Type A testing. The combination of an accident previously evaluated. Further, Program, inspections in accordance with these factors ensures that the margin of safety the proposed changes do not increase the Regulatory Guide 1.163 position C.3 and the that is inherent in plant safety analysis is types and amounts of radioactive effluent Maintenance Rule serve to provide a high maintained. that may be released offsite, nor significantly degree of assurance that the containment will Therefore, the proposed Technical increase individual or cumulative not degrade in a manner that is detectable Specification change does not involve a occupational/public radiation exposures. The only by Type A testing. significant reduction in a margin of safety. proposed changes cannot affect the Therefore, the proposed Technical probability of an accident occurring since Specification change does not involve a The NRC staff proposes to determine they reflect a change in plant design significant increase in the consequences of an that the amendment request involves no consistent with current design which is not accident previously evaluated. significant hazards consideration. an accident initiator. The proposed changes Criterion 2—The Proposed Change Does Attorney for licensee: Daniel F. cannot increase the consequences of Not Create the Possibility of a New or Stenger, Ballard Spahr Andrews & postulated accidents since they reflect a Different Kind of Accident from any Ingersoll, LLP, 601 13th Street, NW., change in plant design that will continue to Previously Evaluated. Suite 1000 South, Washington, DC mitigate the effects of feedwater addition to The proposed change to Technical 20005. a faulted steam generator for a main steam Specification 5.5.15 involves a one-time NRC Section Chief: Richard J. Laufer. line break inside containment. extension to the current interval for Type A Therefore, the changes do not involve a containment testing. The reactor containment R.E. Ginna Nuclear Power Plant, LLC, significant increase in the probability or and the testing requirements invoked to Docket No. 50–244, R.E. Ginna Nuclear consequences of an accident previously periodically demonstrate the integrity of the Power Plant, Wayne County, New York evaluated. reactor containment exist to ensure the 2. Does the proposed change create the plant’s ability to mitigate the consequences of Date of amendment request: April 29, possibility of a new or different kind of an accident and do not involve the 2005. accident from any accident previously prevention or identification of any precursors Description of amendment request: evaluated? of an accident. The proposed Technical The amendment would revise Technical Response: No. Specification change does not involve a Specification Section 3.7.3, ‘‘Main The proposed changes involve a physical change to the plant (i.e., no new or Feedwater Regulating Valves (MFRVs), modification to the plant configuration to different type of equipment will be installed) Associated Bypass Valves, and Main ensure the acceptability of containment or changes in the methods in which the plant Feedwater Pump Discharge Valves response for Steam Line Breaks (SLB) inside is operated or controlled. (MFPDVs),’’ to allow the use of the main containment. The changes have also been Therefore, the proposed Technical evaluated to ensure the core response for Specification change does not create the feedwater isolation valves in lieu of the steam system piping breaks remains possibility of a new or different kind of main feedwater pump discharge valves acceptable. The changes to the Technical accident from any previously evaluated. to provide isolation capability to the Specifications (TS) are necessary to properly Criterion 3—The Proposed Change Does steam generators in the event of a steam accommodate the changes in plant Not Involve a Significant Reduction in a line break. configuration and ensure proper testing of Margin of Safety. Basis for proposed no significant the modified components. The proposed change to Technical hazards consideration determination: The change in plant configuration Specifications involves a one-time extension As required by 10 CFR 50.91(a), an significantly reduces the available water to the current interval for Type A analysis of the issue of no significant volume and therefore the mass and energy containment testing. The proposed Technical hazards consideration is presented released to the containment in the event of Specification change does not alter the an SLB with failure of a feedwater regulating manner in which safety limits, limiting safety below: valve. Existing feedwater flow paths or system set points, or limiting conditions for 1. Does the proposed changes involve a piping are not significantly altered. An operation are determined. The specific significant increase in the probability or existing manual valve in the flow path to requirements and conditions of the Primary consequences of an accident previously each steam generator is utilized as the main Containment Leakage Rate Testing Program, evaluated? feedwater isolation valve by the addition of as defined in Technical Specifications, exist Response: No. an air actuator to provide automatic isolation to ensure that the degree of reactor The proposed changes involve a capability. The changes do not involve a containment structural integrity and leak- modification to the plant configuration to significant change in the methods governing tightness that is considered in the plant ensure the acceptability of containment normal plant operation. The TS changes safety analysis is maintained. The overall response for Steam Line Breaks (SLB) inside modify the limiting condition for operation, containment leakage rate limit specified by containment. required action statements, associated Technical Specifications is maintained. The The changes have also been evaluated to completion times and surveillance proposed change involves only the extension ensure the core response for steam system requirements to those that are consistent with of the interval between Type A containment piping breaks remains acceptable. The those previously approved for Westinghouse
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plants in the Standard Technical R.E. Ginna Nuclear Power Plant, LLC, change in plant design that will continue to Specifications found in NUREG–1431. The Docket No. 50–244, R.E. Ginna Nuclear mitigate the effects of potential accidents. proposed TS changes do not create the Power Plant, Wayne County, New York Therefore, the changes do not involve a possibility of a new or different [kind] of significant increase in the probability or accident from those previously evaluated Date of amendment request: April 29, consequences of an accident previously since they reflect a design change that will 2005. evaluated. accomplish the same feedwater isolation Description of amendment request: 2. Does the proposed change create the function as previously performed by the The amendment would revise Technical possibility of a new or different kind of main feedwater pump discharge isolation Specification (TS) 3.5.1, accident from any accident previously valves with no significant change to the ‘‘Accumulators,’’ and TS 3.5.4, evaluated? manner in which the feedwater system ‘‘Refueling Water Storage Tank Response: No. The proposed changes include revising operates. (RWST),’’ to reflect the results of revised Therefore, the changes do not create the accumulator volume and boron concentration possibility of a new or different kind of analyses performed to accommodate a requirements and RWST boron concentration accident from any accident previously planned power uprate for the facility requirements that are necessary to evaluated. and revise TS 5.6.5, ‘‘Core Operating accommodate expected changes in the 3. Does the proposed change involve a Limits Report (COLR),’’ to permit the nuclear fuel (e.g., higher enrichment) that are significant reduction in a margin of safety? use of NRC-approved methodology for associated with the planned power uprate. Response: No. large-break and small-break loss-of- Additionally, the change would allow Ginna The proposed changes involve a coolant accidents (LOCAs). to utilize analysis methodologies that have modification to the plant configuration to Basis for proposed no significant been previously approved for use at ensure the acceptability of containment Westinghouse nuclear plants. The changes to hazards consideration determination: the TS are necessary to ensure the response for Steam Line Breaks (SLB) inside As required by 10 CFR 50.91(a), an containment. The changes have also been acceptability of these systems to perform evaluated to ensure the core response for analysis of the issue of no significant their intended function in the event of an steam system piping breaks remains hazards consideration is presented accident. acceptable. The changes to the Technical below: The proposed changes involve changes to accumulator volume and boron concentration Specifications (TS) are necessary to properly 1. Does the proposed change involve a requirements and RWST boron concentration accommodate the changes in plant significant increase in the probability or requirements to ensure the continued configuration and ensure proper testing of consequences of an accident previously acceptability of LOCA and post LOCA the modified components. evaluated? analysis results. The changes to the The level of safety of facility operation is Response: No. Technical Specifications (TS) are necessary unaffected by the proposed changes since The proposed changes include revising there is no change in the intent of the TS accumulator volume and boron concentration to properly accommodate the changes in requirements of assuring proper main requirements and Refueling Water Storage plant design. The changes ensure applicable feedwater isolation in the event of a steam Tank (RWST) boron concentration acceptance criteria will continue to be met. line break inside containment. The response requirements that are necessary to The changes do not involve a significant of the plant systems to accidents and accommodate expected changes in the change in the methods governing normal transients reported in the Updated Final nuclear fuel (e.g., higher enrichment) that are plant operation. The proposed TS changes do Safety Analysis Report (UFSAR) is not associated with the planned power uprate. not create the possibility of a new or different adversely affected by this change. Therefore, Additionally, the change would allow Ginna [kind] of accident from those previously the capability to satisfy accident analysis to utilize analysis methodologies that have evaluated since they reflect a change that will acceptance criteria is not adversely affected. been previously approved for use at ensure the accumulators and RWST will The TS changes modify the limiting Westinghouse nuclear plants. The changes to continue to perform their intended function condition for operation, required action the TS are necessary to ensure the in the event of an accident. statements, associated completion times and acceptability of these systems to perform Therefore, the changes do not create the surveillance requirements to those that are their intended function in the event of an possibility of a new or different kind of consistent with those previously approved accident. accident from any accident previously for Westinghouse plants in the Standard The proposed changes do not adversely evaluated. Technical Specifications found in NUREG– affect accident initiators or precursors nor 3. Does the proposed change involve a 1431. The proposed TS changes do not significantly alter the design assumptions, significant reduction in a margin of safety? involve a significant reduction in [a] margin conditions, and configuration of the facility Response: No. of safety since they are based upon a or the manner in which the plant is operated The proposed changes include revising modification that will maintain [a] margin of and maintained. The proposed changes do accumulator volume and boron concentration safety with respect to feedwater addition for not adversely alter or prevent the ability of requirements and RWST boron concentration a main steam line break inside containment structures, systems, and components (SSCs) requirements that are necessary to to the previously analyzed condition. from performing their intended function to accommodate expected changes in the Therefore, the changes do not involve a mitigate the consequences of an initiating nuclear fuel (e.g., higher enrichment) that are significant reduction in a margin of safety. event within the assumed acceptance limits. associated with the planned power uprate. The proposed changes do not affect the Additionally, the change would allow Ginna The NRC staff has reviewed the source term, containment isolation, or to utilize analysis methodologies that have licensee’s analysis and, based on this radiological release assumptions used in been previously approved for use at review, it appears that the three evaluating the radiological consequences of Westinghouse nuclear plants. The changes to standards of 10 CFR 50.92(c) are an accident previously evaluated. Further, the TS are necessary to ensure the satisfied. Therefore, the NRC staff the proposed changes do not increase the acceptability of these systems to perform types and amounts of radioactive effluent their intended function in the event of an proposes to determine that the that may be released offsite, nor significantly accident. amendment request involves no increase individual or cumulative The level of safety of facility operation is significant hazards consideration. occupational/public radiation exposures. The not significantly affected by the proposed Attorney for licensee: Daniel F. proposed changes cannot affect the changes since there is no change in the intent Stenger, Ballard Spahr Andrews & probability of an accident occurring since of the TS requirements of assuring proper Ingersoll, LLP, 601 13th Street, NW., they reflect a necessary change in plant plant response in the event of an accident. Suite 1000 South, Washington, DC design consistent with current design which The response of the plant systems to is not an accident initiator. The proposed accidents and transients reported in the 20005. changes cannot increase the consequences of Updated Final Safety Analysis Report NRC Section Chief: Richard J. Laufer. postulated accidents since they reflect a (UFSAR) is not adversely affected by this
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change. Therefore, the capability to satisfy The proposed changes associated with the for the planned extended power uprate. It has accident analysis acceptance criteria is not RAOC and FQ(Z) methodologies do not affect [been] determined that implementation of adversely affected. The proposed TS change plant systems such that their function in the RAOC at the extended power uprate power cannot involve a significant reduction in [a] control of radiological consequences is level does not result in a significant margin of safety since it is based upon adversely affected. The actual plant reduction in a margin of safety. The analysis changes that will maintain a substantial configurations, performance of systems, or performed for EPU [extended power uprate] margin of safety with respect to accumulators initiating event mechanisms are not being bounds operation at the current power level. and RWST functions. Therefore, the changes changed as a result of the proposed changes. Therefore, the proposed changes do not do not involve a significant reduction in a The design standards and applicable safety involve a significant reduction in [a] margin margin of safety. criteria limits will continue to be met; of safety. therefore, fission barrier integrity is not The NRC staff has reviewed the The NRC staff has reviewed the licensee’s analysis and, based on this challenged. The proposed changes associated with the RAOC and FQ(Z) methodologies licensee’s analysis and, based on this review, it appears that the three have been shown not to adversely affect the review, it appears that the three standards of 10 CFR 50.92(c) are plant response to postulated accident standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff scenarios. The proposed changes will satisfied. Therefore, the NRC staff proposes to determine that the therefore not affect the mitigation of the proposes to determine that the amendment request involves no radiological consequences of any accident amendment request involves no described in the Updated Final Safety significant hazards consideration. significant hazards consideration. Attorney for licensee: Daniel F. Analysis Report (UFSAR). Therefore, the proposed changes do not Attorney for licensee: Daniel F. Stenger, Ballard Spahr Andrews & Stenger, Ballard Spahr Andrews & Ingersoll, LLP, 601 13th Street, NW., involve a significant increase in the consequences of an accident previously Ingersoll, LLP, 601 13th Street, NW., Suite 1000 South, Washington, DC evaluated. Suite 1000 South, Washington, DC 20005. 2. Do the proposed changes create the 20005. NRC Section Chief: Richard J. Laufer. possibility of a new or different kind of NRC Section Chief: Richard J. Laufer. accident from any accident previously R.E. Ginna Nuclear Power Plant, LLC, Previously Published Notices of Docket No. 50–244, R.E. Ginna Nuclear evaluated? Response: No. Consideration of Issuance of Power Plant, Wayne County, New York The proposed changes will not create the Amendments to Facility Operating Date of amendment request: April 29, possibility of a new or different kind of Licenses, Proposed No Significant 2005. accident from any accident previously Hazards Consideration Determination, Description of amendment request: evaluated. and Opportunity for a Hearing The amendment would revise Technical No new accident scenarios, failure Specifications (TSs) to allow the use of mechanisms, or limiting single failures are The following notices were previously introduced as a result of the proposed Relaxed Axial Offset Control (RAOC) published as separate individual change. The proposed changes do not notices. The notice content was the methodology in reducing operator challenge the performance or integrity of any action required to maintain same as above. They were published as safety-related system. The possibility for a individual notices either because time conformance with power distribution new or different type of accident from any control TS and increasing the ability to accident previously evaluated is not created did not allow the Commission to wait return to power after a plant trip or since the proposed changes do not result in for this biweekly notice or because the transient while still maintaining margin a change to the design basis of any plant action involved exigent circumstances. to safety limits under all operating structure, system or component. Evaluation They are repeated here because the conditions. of the effects of the proposed changes has biweekly notice lists all amendments Basis for proposed no significant shown that design standards and applicable issued or proposed to be issued safety criteria continue to be met. involving no significant hazards hazards consideration determination: Equipment important to safety will As required by 10 CFR 50.91(a), an consideration. continue to operate as designed and For details, see the individual notice analysis of the issue of no significant component integrity will not be challenged. hazards consideration is presented The proposed changes do not result in any in the Federal Register on the day and below: event previously deemed incredible being page cited. This notice does not extend the notice period of the original notice. 1. Does the proposed changes involve a made credible. The proposed changes will significant increase in the probability or not result in conditions that are more adverse Nuclear Management Company, LLC, and will not result in any increase in the consequences of an accident previously Docket No. 50–305, Kewaunee Nuclear evaluated? challenges to safety systems. Therefore, the proposed changes do not Power Plant, Kewaunee County, Response: No. Wisconsin The proposed changes will not involve a create the possibility of a new or different significant increase in the probability or kind of accident from any previously Date of amendment request: May 5, consequences of an accident previously analyzed. 2005. evaluated. 3. Do the proposed changes involve a significant reduction in a margin of safety? Brief description of amendment The proposed changes do not initiate an request: The proposed amendment accident. Evaluations and analyses of Response: No. accidents, which are potentially affected by The proposed changes will not involve a would change the Technical the parameters and assumptions, associated significant reduction in a margin of safety. Specifications to modify the auxiliary with the RAOC and FQ(Z) methodologies The proposed changes will assure feedwater (AFW) pump suction have shown that design standards and continued compliance within the acceptance protection requirements and change the applicable safety criteria will continue to be limits previously reviewed and approved by design basis as described in the Updated met. The consideration of these changes does the NRC for RAOC and FQ(Z) methodologies. Safety Analysis Report to revise the not result in a situation where the design, The appropriate acceptance criteria for the functionality of the discharge pressure various analyses and evaluations will material, or construction standards that were switches to provide pump runout applicable prior to the change are altered. continue to be met. Therefore, the proposed changes will not The projected impact associated with the protection, which requires operator result in any additional challenges to plant implementation of RAOC on peak cladding actions to restore the AFW pumps for equipment that could increase the probability temperature (PCT) has been incorporated into specific post-accident recovery of any previously evaluated accident. the LOCA [loss-of-coolant accident] analyses activities.
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Date of publication of individual Notice of Consideration of Issuance of 23, 2004, as part of the Consolidated notice in Federal Register: May 13, Amendment to Facility Operating Line Item Improvement Process (CLIIP). 2005 (70 FR 25619). License, Proposed No Significant Date of issuance: May 20, 2005. Effective date: As of the date of Expiration date of individual notice: Hazards Consideration Determination, issuance and shall be implemented June 13, 2005. and Opportunity for a Hearing in connection with these actions was within 60 days. PPL Susquehanna, LLC, Docket Nos. 50– published in the Federal Register as Amendment No.: 165. 387 and 50–388, Susquehanna Steam indicated. Facility Operating License No. NPF– Electric Station, Units 1 and 2 (SSES 1 62: The amendment revised the Unless otherwise indicated, the and 2), Luzerne County, Pennsylvania Technical Specifications. Commission has determined that these Date of initial notice in Federal Date of amendment request: April 27, amendments satisfy the criteria for Register: April 12, 2005 (70 FR 19114). 2005, as supplemented May 4, 2005. categorical exclusion in accordance The Commission’s related evaluation with 10 CFR 51.22. Therefore, pursuant of the amendment is contained in a Description of amendment request: to 10 CFR 51.22(b), no environmental The proposed amendment would revise Safety Evaluation dated May 20, 2005. impact statement or environmental No significant hazards consideration the SSES 1 and 2, Technical assessment need be prepared for these comments received: No. Specification 3.8.4, ‘‘DC Sources- amendments. If the Commission has Operating,’’ to address new required prepared an environmental assessment Duke Energy Corporation, Docket Nos. actions for the condition in which a 125 under the special circumstances 50–269, 50–270, and 50–287, Oconee volt direct current (VDC) charger is provision in 10 CFR 51.12(b) and has Nuclear Station, Units 1, 2, and 3, taken out of service for the purposes of made a determination based on that Oconee County, South Carolina a special inspection and related assessment, it is so indicated. Date of application of amendments: activities. The proposed changes would For further details with respect to the February 14, 2005. be in effect until the special inspection action see (1) the applications for Brief description of amendments: The and related activities are completed on amendment, (2) the amendment, and (3) amendments revised the Technical each of the 125 VDC Class 1E battery the Commission’s related letter, Safety Specification Surveillance Requirement chargers but no later than 60 days Evaluation and/or Environmental 3.3.7.1 to extend the frequency of the following the issuance of the Unit 1 and Assessment as indicated. All of these channel functional test for the 2 amendments. Specifically, required items are available for public inspection Engineered Safeguards Protective Action A.2.1 would require that at the Commission’s Public Document System digital actuation logic channels surveillance requirement 3.8.6.1 be Room (PDR), located at One White Flint from once every 31 days to once every performed within 2 hours and once-per- North, Public File Area 01F21, 11555 92 days. 12 hours thereafter; and, required Rockville Pike (first floor), Rockville, Date of Issuance: May 19, 2005. Action A.2.2 would restrict the Maryland. Publicly available records Effective date: As of the date of issuance and shall be implemented restoration time for the inoperable will be accessible from the Agencywide within 90 days. electrical power subsystem to 36 hours. Documents Access and Management Systems (ADAMS) Public Electronic Amendment Nos.: 345, 347 and 346. Date of publication of individual Reading Room on the internet at the Renewed Facility Operating License notice in Federal Register: May 12, NRC Web site, http://www.nrc.gov/ Nos. DPR–38, DPR–47, and DPR–55: 2005 (70 FR 25122). reading-rm/adams.html. If you do not Amendments revised the Technical Expiration date of individual notice: have access to ADAMS or if there are Specifications. Comments, May 27, 2005; Hearing, July problems in accessing the documents Date of initial notice in Federal 11, 2005. located in ADAMS, contact the PDR Register: March 15, 2005 (70 FR 12745). Reference staff at 1 (800) 397–4209, The Commission’s related evaluation Notice of Issuance of Amendments to (301) 415–4737 or by e-mail to of the amendments is contained in a Facility Operating Licenses [email protected]. Safety Evaluation dated May 19, 2005. No significant hazards consideration During the period since publication of AmerGen Energy Company, LLC, Docket comments received: No. the last biweekly notice, the No. 50–461, Clinton Power Station, Unit Commission has issued the following 1, DeWitt County, Illinois Entergy Operations, Inc., Docket No. 50– amendments. The Commission has 368, Arkansas Nuclear One, Unit No. 2, Pope County, Arkansas determined for each of these Date of application for amendment: October 21, 2004, as supplemented amendments that the application Date of amendment request: January 4, 2005. complies with the standards and December 20, 2004, as supplemented by requirements of the Atomic Energy Act Brief description of amendment: The letter dated April 12, 2005. of 1954, as amended (the Act), and the amendment deleted the Technical Brief description of amendment: The Commission’s rules and regulations. Specification (TS) requirements to amendment deletes TS 6.6.1, The Commission has made appropriate submit monthly operating reports and ‘‘Occupational Radiation Exposure annual occupational radiation exposure findings as required by the Act and the Report’’ and TS 6.6.4, ‘‘Monthly reports. The change is consistent with Operating Reports,’’ as described in the Commission’s rules and regulations in Revision 1 of NRC-approved Industry/ Notice of Availability published in the 10 CFR Chapter I, which are set forth in Technical Specifications Task Force Federal Register on June 23, 2004 (69 the license amendment. (TSTF) Standard TS Change Traveler, FR 35067). TSTF–369, ‘‘Removal of Monthly Date of issuance: May 13, 2005. Operating Report and Occupational Effective date: As of the date of Radiation Exposure Report.’’ This TS issuance and shall be implemented improvement was announced in the within 90 days from the date of Federal Register (69 FR 35067) on June issuance.
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Amendment No.: 259. Facility Operating License No. NPF– Exelon Generation Company, LLC, and Facility Operating License No. NPF–6: 38: The amendment revised the PSEG Nuclear LLC, Docket Nos. 50–277 Amendment revised the Technical Operating License. and 50–278, Peach Bottom Atomic Specifications. Date of initial notice in Federal Power Station, Units 2 and 3,York and Date of initial notice in Federal Register: May 5, 2005 (70 FR 23892). The Lancaster Counties, Pennsylvania Register: January 18, 2005 (70 FR 2890). Date of application for amendments: The supplement dated April 12, 2005, May 12, 2005, supplemental letter June 15, 2004, as supplemented January provided additional information that provided clarifying information that did 12, 2005. clarified the application, did not expand not change the scope of the original Brief description of amendments: the scope of the application as originally Federal Register notice or the original These amendments changed noticed, and did not change the staff’s no significant hazards consideration Surveillance Requirement (SR) 3.8.1.3, original proposed no significant hazards determination. monthly diesel surveillance test; SR consideration determination. The Commission’s related evaluation 3.8.1.10, diesel full load rejection test; The Commission’s related evaluation of the amendment is contained in a SR 3.8.1.14.3.b, diesel 24-hour run test; of the amendment is contained in a Safety Evaluation dated May 23, 2005. and, SR 3.8.1.15, diesel hot restart test, Safety Evaluation dated May 13, 2005. to permit these tests to be run at a No significant hazards consideration No significant hazards consideration higher load up to 2800 kW. comments received: No. comments received: No. Date of issuance: May 20, 2005. Entergy Operations, Inc., Docket No. 50– Exelon Generation Company, LLC, Effective date: As of the date of 382, Waterford Steam Electric Station, Docket Nos. STN 50–454 and STN 50– issuance, and shall be implemented Unit 3, St. Charles Parish, Louisiana 455, Byron Station, Unit Nos. 1 and 2, within 30 days. Ogle County, Illinois; Docket Nos. STN Date of amendment request: Amendments Nos.: 253 and 256. 50–456 and STN 50–457, Braidwood December 22, 2004. Renewed Facility Operating License Brief description of amendment: The Station, Unit Nos. 1 and 2, Will County, Nos. DPR–44 and DPR–56: The requested change deletes Technical Illinois amendments revised the Technical Specification (TS) 6.9.1.5, Specifications. Date of application for amendments: Date of initial notice in Federal ‘‘Occupational Radiation Exposure September 15, 2004. Report,’’ and 6.9.1.6, ‘‘Monthly Register: July 20, 2004, (69 FR 43461). Operating Reports,’’ as described in the Brief description of amendments: The The January 12, 2005, supplement Notice of Availability published in the amendments deleted the Technical provided additional information that Federal Register on June 23, 2004 (69 Specification (TS) requirements related clarified the application, did not expand FR 35067). to hydrogen recombiners. The TS the scope of the application as originally Date of issuance: May 25, 2005. changes support implementation of the noticed, and did not change the staff’s Effective date: As of the date of revisions to Title 10 of the Code of original proposed no significant hazards issuance and shall be implemented 90 Federal Regulations (10 CFR) section consideration determination as days from the date of issuance. 50.44, ‘‘Standards for Combustible Gas published in the Federal Register on Amendment No.: 202. Control System in Light-Water-Cooled July 20, 2004 (69 FR 43461). Facility Operating License No. NPF– Power Reactors,’’ that became effective The Commission’s related evaluation 38: The amendment revised the on October 16, 2003. The changes are of the amendments is contained in a Safety Evaluation dated May 20, 2005. Technical Specifications. consistent with Revision 1 of the NRC- No significant hazards consideration Date of initial notice in Federal approved Industry/Technical comments received: No. Register: March 15, 2005 (70 FR 12746). Specifications Task Force (TSTF) The Commission’s related evaluation Standard Technical Specification Omaha Public Power District, Docket of the amendment is contained in a Change Traveler, TSTF–447, No. 50–285, Fort Calhoun Station, Unit Safety Evaluation dated May 25, 2005. ‘‘Elimination of Hydrogen Recombiners No. 1, Washington County, Nebraska No significant hazards consideration comments received: No. and Change to Hydrogen and Oxygen Date of amendment request: May 21, Monitors.’’ 2004, as supplemented by letters dated Entergy Operations, Inc., Docket No. 50– Date of issuance: May 19, 2005. September 16, and December 14, 2004. 382, Waterford Steam Electric Station, Brief description of amendment: The Effective date: As of the date of Unit 3 (Waterford 3), St. Charles Parish, amendment revised the Technical issuance and shall be implemented Louisiana Specification Bases Section to allow the within 120 days. Date of amendment request: April 27, containment spray pumps to be secured 2005, as supplemented by letter dated Amendment Nos.: 137, 137, 143, 143. during a loss-of-coolant accident, when May 12, 2005. Facility Operating License Nos. NPF– certain conditions are met, to minimize Brief description of amendment: The 37, NPF–66, NPF–72 and NPF–77: The the potential for containment sump amendment removed the license amendments revised the Technical clogging. condition on instrument uncertainty Specifications. Date of issuance: May 20, 2005. that was imposed on the Waterford 3 Effective date: As of the date of Federal license with the issuance of License Date of initial notice in issuance, and shall be implemented Amendment 199 for the extended power Register: February 1, 2005 (70 FR within 120 days of issuance. uprate. 5243). Amendment No.: 235. Date of issuance: May 23, 2005. The Commission’s related evaluation Renewed Facility Operating License Effective date: As of the date of of the amendments is contained in a No. DPR–40: The amendment revised issuance and shall be implemented Safety Evaluation dated May 19, 2005. the Technical Specifications Bases. Date of initial notice in Federal within 60 days from the date of No significant hazards consideration issuance. Register: June 22, 2004 (69 FR 34703). comments received: No. Amendment No.: 201. The September 16, and December 14,
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2004, supplemental letters provided 76019). The supplements dated In circumstances where failure to act additional information that clarified the December 13 and 22, 2004, and in a timely way would have resulted, for application, did not expand the scope of February 23 and March 1, 2005, example, in derating or shutdown of a the application as originally noticed, provided additional information that nuclear power plant or in prevention of and did not change the staff’s original clarified the application, did not expand either resumption of operation or of no significant hazards consideration the scope of the application as originally increase in power output up to the determination. noticed, and did not change the staff’s plant’s licensed power level, the The Commission’s related evaluation original proposed no significant hazards Commission may not have had an of the amendment is contained in a consideration determination as opportunity to provide for public safety evaluation dated May 20, 2005. published in the Federal Register. comment on its no significant hazards No significant hazards consideration The Commission’s related evaluation consideration determination. In such comments received: No. of the amendments is contained in a case, the license amendment has been Safety Evaluation dated May 19, 2005. issued without opportunity for South Carolina Electric & Gas Company, comment. If there has been some time South Carolina Public Service No significant hazards consideration comments received: No. for public comment but less than 30 Authority, Docket No. 50–395, Virgil C. days, the Commission may provide an Summer Nuclear Station, Unit No. 1, Notice of Issuance of Amendments to opportunity for public comment. If Fairfield County, South Carolina Facility Operating Licenses and Final comments have been requested, it is so Date of application for amendment: Determination of No Significant stated. In either event, the State has May 21, 2004. Hazards Consideration and been consulted by telephone whenever Brief description of amendment: The Opportunity for a Hearing (Exigent possible. amendment revises Technical Public Announcement or Emergency Under its regulations, the Commission Specifications related to the reactor Circumstances) may issue and make an amendment coolant pump flywheel inspection During the period since publication of immediately effective, notwithstanding program by relocating the requirements the last biweekly notice, the the pendency before it of a request for from the limiting conditions for Commission has issued the following a hearing from any person, in advance operation to the administrative controls amendments. The Commission has of the holding and completion of any section and increasing the inspection determined for each of these required hearing, where it has interval to 20 years. amendments that the application for the determined that no significant hazards Date of issuance: May 9, 2005. amendment complies with the consideration is involved. The Commission has applied the Effective date: As of the date of standards and requirements of the standards of 10 CFR 50.92 and has made issuance and shall be implemented Atomic Energy Act of 1954, as amended within 60 days. a final determination that the (the Act), and the Commission’s rules amendment involves no significant Amendment No.: 172. and regulations. The Commission has Renewed Facility Operating License hazards consideration. The basis for this made appropriate findings as required No. NPF–12: Amendment revises the determination is contained in the by the Act and the Commission’s rules Technical Specifications. documents related to this action. and regulations in 10 CFR chapter I, Date of initial notice in Federal Accordingly, the amendments have which are set forth in the license Register: March 1, 2005 (70 FR 9995). been issued and made effective as amendment. The Commission’s related evaluation indicated. of the amendment is contained in a Because of exigent or emergency Unless otherwise indicated, the Safety Evaluation dated May 9, 2005. circumstances associated with the date Commission has determined that these No significant hazards consideration the amendment was needed, there was amendments satisfy the criteria for comments received: No. not time for the Commission to publish, categorical exclusion in accordance for public comment before issuance, its with 10 CFR 51.22. Therefore, pursuant STP Nuclear Operating Company, usual Notice of Consideration of to 10 CFR 51.22(b), no environmental Docket Nos. 50–498 and 50–499, South Issuance of Amendment, Proposed No impact statement or environmental Texas Project, Units 1 and 2, Matagorda Significant Hazards Consideration assessment need be prepared for these County, Texas Determination, and Opportunity for a amendments. If the Commission has Date of amendment request: October Hearing. prepared an environmental assessment 21, 2004, as supplemented December 13 For exigent circumstances, the under the special circumstances and 22, 2004, and February 23 and Commission has either issued a Federal provision in 10 CFR 51.12(b) and has March 1, 2005. Register notice providing opportunity made a determination based on that Brief description of amendments: for public comment or has used local assessment, it is so indicated. Conforming license amendments to media to provide notice to the public in For further details with respect to the remove AEP Texas Central Company as the area surrounding a licensee’s facility action see (1) The application for an ‘‘Owner’’ in the facility operating of the licensee’s application and of the amendment, (2) the amendment to licenses. Commission’s proposed determination Facility Operating License, and (3) the Date of issuance: May 19, 2005. of no significant hazards consideration. Commission’s related letter, Safety Effective date: As of the date of The Commission has provided a Evaluation and/or Environmental issuance and shall be implemented reasonable opportunity for the public to Assessment, as indicated. All of these within 365 days of issuance. comment, using its best efforts to make items are available for public inspection Amendment Nos.: Unit 1–172; Unit available to the public means of at the Commission’s Public Document 2–160 communication for the public to Room (PDR), located at One White Flint Facility Operating License Nos. NPF– respond quickly, and in the case of North, Public File Area 01F21, 11555 76 and NPF–80: The amendments telephone comments, the comments Rockville Pike (first floor), Rockville, revised the licenses. have been recorded or transcribed as Maryland. Publicly available records Date of initial notice in Federal appropriate and the licensee has been will be accessible from the Agencywide Register: December 14, 2004 (69 FR informed of the public comments. Documents Access and Management
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System’s (ADAMS) Public Electronic property, financial, or other interest in petitioner/requestor who seeks to adopt Reading Room on the Internet at the the proceeding; and (4) the possible the contention must either agree that the NRC Web site, http://www.nrc.gov/ effect of any decision or order which sponsoring petitioner/requestor shall act reading-rm/adams.html. If you do not may be entered in the proceeding on the as the representative with respect to that have access to ADAMS or if there are requestor’s/petitioner’s interest. The contention, or jointly designate with the problems in accessing the documents petition must also identify the specific sponsoring petitioner/requestor a located in ADAMS, contact the PDR contentions which the petitioner/ representative who shall have the Reference staff at 1 (800) 397–4209, requestor seeks to have litigated at the authority to act for the petitioners/ (301) 415–4737 or by e-mail to proceeding. requestors with respect to that [email protected]. Each contention must consist of a contention. The Commission is also offering an specific statement of the issue of law or opportunity for a hearing with respect to fact to be raised or controverted. In Those permitted to intervene become the issuance of the amendment. Within addition, the petitioner/requestor shall parties to the proceeding, subject to any 60 days after the date of publication of provide a brief explanation of the bases limitations in the order granting leave to this notice, the licensee may file a for the contention and a concise intervene, and have the opportunity to request for a hearing with respect to statement of the alleged facts or expert participate fully in the conduct of the issuance of the amendment to the opinion which support the contention hearing. Since the Commission has subject facility operating license and and on which the petitioner intends to made a final determination that the any person whose interest may be rely in proving the contention at the amendment involves no significant affected by this proceeding and who hearing. The petitioner must also hazards consideration, if a hearing is wishes to participate as a party in the provide references to those specific requested, it will not stay the proceeding must file a written request sources and documents of which the effectiveness of the amendment. Any for a hearing and a petition for leave to petitioner is aware and on which the hearing held would take place while the intervene. Requests for a hearing and a petitioner intends to rely to establish amendment is in effect. petition for leave to intervene shall be those facts or expert opinion. The A request for a hearing or a petition filed in accordance with the petition must include sufficient for leave to intervene must be filed by: Commission’s ‘‘Rules of Practice for information to show that a genuine (1) First class mail addressed to the Domestic Licensing Proceedings’’ in 10 dispute exists with the applicant on a Office of the Secretary of the CFR part 2. Interested persons should material issue of law or fact.1 Commission, U.S. Nuclear Regulatory consult a current copy of 10 CFR 2.309, Contentions shall be limited to matters Commission, Washington, DC 20555– which is available at the Commission’s within the scope of the amendment 0001, Attention: Rulemaking and PDR, located at One White Flint North, under consideration. The contention Adjudications Staff; (2) courier, express Public File Area 01F21, 11555 Rockville must be one which, if proven, would mail, and expedited delivery services: Pike (first floor), Rockville, Maryland, entitle the petitioner to relief. A Office of the Secretary, Sixteenth Floor, and electronically on the Internet at the petitioner/requestor who fails to satisfy One White Flint North, 11555 Rockville NRC Web site, http://www.nrc.gov/ these requirements with respect to at Pike, Rockville, Maryland, 20852, reading-rm/doc-collections/cfr/. If there least one contention will not be Attention: Rulemaking and are problems in accessing the document, permitted to participate as a party. Adjudications Staff; (3) e-mail contact the PDR Reference staff at 1 Each contention shall be given a addressed to the Office of the Secretary, (800) 397–4209, (301) 415–4737, or by e- separate numeric or alpha designation U.S. Nuclear Regulatory Commission, mail to [email protected]. If a request for a within one of the following groups: [email protected]; or (4) facsimile hearing or petition for leave to intervene 1. Technical—primarily concerns/ transmission addressed to the Office of is filed by the above date, the issues relating to technical and/or the Secretary, U.S. Nuclear Regulatory Commission or a presiding officer health and safety matters discussed or Commission, Washington, DC, designated by the Commission or by the referenced in the applications. Attention: Rulemakings and Chief Administrative Judge of the 2. Environmental—primarily Adjudications Staff at (301) 415–1101, Atomic Safety and Licensing Board concerns/issues relating to matters verification number is (301) 415–1966. Panel, will rule on the request and/or discussed or referenced in the A copy of the request for hearing and petition; and the Secretary or the Chief environmental analysis for the petition for leave to intervene should Administrative Judge of the Atomic applications. also be sent to the Office of the General Safety and Licensing Board will issue a 3. Miscellaneous—does not fall into Counsel, U.S. Nuclear Regulatory notice of a hearing or an appropriate one of the categories outlined above. Commission, Washington, DC 20555– order. As specified in 10 CFR 2.309, if two 0001, and it is requested that copies be As required by 10 CFR 2.309, a or more petitioners/requestors seek to petition for leave to intervene shall set transmitted either by means of facsimile co-sponsor a contention, the petitioners/ transmission to (301) 415–3725 or by e- forth with particularity the interest of requestors shall jointly designate a the petitioner in the proceeding, and mail to [email protected]. A copy representative who shall have the of the request for hearing and petition how that interest may be affected by the authority to act for the petitioners/ results of the proceeding. The petition for leave to intervene should also be requestors with respect to that sent to the attorney for the licensee. should specifically explain the reasons contention. If a petitioner/requestor why intervention should be permitted seeks to adopt the contention of another Nontimely requests and/or petitions with particular reference to the sponsoring petitioner/requestor, the and contentions will not be entertained following general requirements: (1) The absent a determination by the name, address, and telephone number of 1 To the extent that the applications contain Commission or the presiding officer or the requestor or petitioner; (2) the attachments and supporting documents that are not the Atomic Safety and Licensing Board nature of the requestor’s/petitioner’s publicly available because they are asserted to that the petition, request and/or the contain safeguards or proprietary information, right under the Act to be made a party petitioners desiring access to this information contentions should be granted based on to the proceeding; (3) the nature and should contact the applicant or applicant’s counsel a balancing of the factors specified in 10 extent of the requestor’s/petitioner’s and discuss the need for a protective order. CFR 2.309(a)(1)(i)–(viii).
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Tennessee Valley Authority, Docket No. declaration should submit their views in corporate parent of Commonwealth 50–260, Browns Ferry Nuclear Plant, writing by June 24, 2005 to the Edison Company (‘‘ComEd’’), PECO Unit 2, Limestone County, Alabama Secretary, Securities and Exchange Energy Company (‘‘PECO’’), Exelon Date of amendment request: April 26, Commission, Washington DC 20549– Generation Company, LLC (‘‘Exelon 2005, as supplemented on April 29 and 0609 and serve a copy on the declarant Generation’’) and the other Exelon at the address specified below. Proof of subsidiaries, and become the ultimate on May 3, 2005. service (by affidavit or, in case of an corporate parent of Public Service Description of amendment request: attorney at law, by certificate) should be Electric and Gas Company (‘‘PSE&G’’), a Revises the Completion Time for the filed with the request. Any request for public utility company under the Act, Action associated with an inoperable hearing should specifically identify the and the other PSEG subsidiaries. low pressure Emergency Core Cooling issues of facts or law that are disputed. Exelon will continue to be a registered System injection/spray system to 14 A person who so desires will be notified public utility holding company under days on a one-time basis. of any hearing, if ordered, and will the Act, and ComEd, PECO and PSE&G Date of issuance: May 9, 2005. receive a copy of any notice or order will continue to be operating franchised Effective date: As of date of issuance issued in this matter. After June 24, public utility companies. Exelon will and shall be implemented within 7 2005, the declaration, as filed or remain headquartered in Chicago, but days. amended, may be granted or permitted will also have energy trading and Amendment No.: 294. to become effective. nuclear headquarters in southeastern Facility Operating License No. DPR– Pennsylvania and generation 52: Amendment revises the Technical Exelon Corporation (70–10291) headquarters in Newark, New Jersey. Specifications. Exelon Corporation (‘‘Exelon’’), 10 PSE&G will remain headquartered in Public comments requested as to South Dearborn Street, 37th Floor, Newark. PECO will remain proposed no significant hazards Chicago, Illinois, 60603, a registered headquartered in Philadelphia and consideration (NSHC): No. holding company, has filed a ComEd will remain headquartered in The Commission’s related evaluation declaration, as amended (‘‘Declaration’’) Chicago. of the amendment, finding of emergency under sections 6(a), 7 and 12(e) of the Under the terms of the Merger circumstances, and final determination Public Utility Holding Company Act of Agreement, Exelon and PSEG have of NSHC determination are contained in 1935 as amended (‘‘Act’’), and rules 54 agreed to convene meetings of their a Safety Evaluation dated May 9, 2005. and 62 under the Act. respective shareholders for the purpose Attorney for licensee: General Exelon seeks authority to amend its of obtaining required stockholder Counsel, Tennessee Valley Authority, Amended and Restated Articles of approvals relating to the Merger. Exelon 400 West Summit Hill Drive, ET 11A, Incorporation to increase the amount of will seek to obtain the affirmative vote Knoxville, Tennessee 37902. the Exelon’s authorized capital stock of a majority of votes cast by holders of NRC Section Chief: Michael L. and authority to solicit the proxies of the outstanding shares of the common Marshall, Jr. the holders of common stock of Exelon. stock of Exelon (‘‘Exelon Shares’’) Dated in Rockville, Maryland, this 27th On December 20, 2004, Exelon and represented at the Exelon shareholders day of May 2005. Public Service Enterprise Group meeting (‘‘Exelon Shareholders For the Nuclear Regulatory Commission. Incorporated (‘‘PSEG’’), an electric and Meeting’’) (provided that at least a gas utility holding company that claims Ledyard B. Marsh, majority of the Exelon Shares are exemption from registration pursuant to represented in person or by proxy at Director, Division of Licensing Project rule 2 under section 3(a)(1) of the Act, Management, Office of Nuclear Reactor such meeting). Exelon is seeking Regulation. entered into an Agreement and Plan of authority to solicit proxies with respect Merger (‘‘Merger Agreement’’).1 Under [FR Doc. E5–2848 Filed 6–6–05; 8:45 am] to proposals for Exelon shareholders to the terms of the Merger Agreement, approve the issuance of shares of Exelon BILLING CODE 7590–01–P PSEG would merge into Exelon common stock as contemplated by the (‘‘Merger’’), thereby ending the separate Merger Agreement, and an amendment corporate existence of PSEG. Each PSEG to Exelon’s Amended and Restated SECURITIES AND EXCHANGE shareholder will be entitled to receive Articles of Incorporation to increase the COMMISSION 1.225 shares of Exelon common stock number of authorized shares of Exelon [Release No. 35–27978] for each PSEG share held and cash in common stock from 1,200,000,000 to lieu of any fraction of an Exelon share 2,000,000,000. In addition, Exelon’s Notice of Proposal To Amend Articles that a PSEG shareholder would have shareholders will be asked to vote on of Incorporation; Order Authorizing the otherwise been entitled to receive. the election of five directors to Exelon’s Solicitation of Proxies Exelon common stock will be unaffected Board of Directors, the ratification of the by the Merger, with each issued and Company’s independent accountants for June 1, 2005. outstanding share remaining 2005, and the approval of the Exelon Notice is hereby given that the outstanding following the Merger as a 2006 Long-Term Incentive Plan and the following filing has been made with the share in the surviving company. Upon Exelon Employee Stock Purchase Plan Commission pursuant to provisions of completion of the Merger, Exelon will for Unincorporated Subsidiaries. the Act and rules promulgated under change its name to Exelon Electric & Gas Exelon further asks the Commission the Act. All interested persons are Corporation (‘‘Exelon’’). to issue an order authorizing Exelon to referred to the declaration for complete As the surviving company in the amend its Amended and Restated statements of the proposed transactions Merger, Exelon will remain the ultimate Articles of Incorporation to increase the summarized below. The declaration and number of authorized shares of Exelon any amendments are available for public 1 The Merger is subject to a number of conditions, common stock from 1,200,000,000 to inspection through the Commission’s including the approval of the Commission under 2,000,000,000. the Act and other regulatory approvals. On March Branch of Public Reference. 15, 2005 Exelon filed an application with this Fees and expenses in the estimated Interested persons wishing to Commission seeking approval of the Merger and amount of $2,140,750.00 are expected comment or request a hearing on the related transactions. SEC File No. 70–10294. by Exelon to be incurred in connection
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with the proposed transactions proposal, as amended, pursuant to Commission in June 2004.8 The Amex (including costs associated with the Section 19(b)(3)(A) of the Act,4 and Rule believes that the Pilot Program has solicitation of proxies). Exelon states 19b–4(f)(6) thereunder,5 which renders operated as designed, providing that no state or federal commission, the proposal effective upon the filing investors with greater flexibility in other than this Commission, has with the Commission of Amendment achieving their investment strategies in jurisdiction over the transactions No. 2 to the proposal.6 The Commission connection with stocks trading below proposed in the Application. is publishing this notice to solicit $20. Accordingly, the Amex believes Exelon has filed its proxy solicitation comments on the proposed rule change, that a one-year extension, through June materials and requests that its proposal as amended, from interested persons. 5, 2006, is reasonable and consistent to solicit proxies be permitted to with the intent of the Pilot Program. become effective immediately, as I. Self-Regulatory Organization’s The Pilot Program permits the provided in rule 62(d) under the Act. It Statement of the Terms of Substance of Exchange to select a total of five appears to the Commission that the the Proposed Rule Change individual stocks on which options Declaration, with respect to the The Amex proposes to amend series may be listed at $1 strike price proposed solicitation of proxies, should Commentary .05 to Amex Rule 903, intervals. To be eligible for the Pilot be permitted to become effective ‘‘Series of Options Open for Trading,’’ to Program, an underlying stock must close immediately under rule 62(d). extend until June 5, 2006, its pilot below $20 on its primary market on the It is ordered, under rule 62 under the program for listing options series on previous trading day. If selected, the Act, that the Declaration regarding the selected stocks trading below $20 at Exchange may list $1 strike prices at $1 proposed solicitation of proxies be, and one-point intervals (‘‘Pilot Program’’). intervals from $3 to $20, consistent with it hereby is, permitted to become The text of the proposed rule change is the terms of the Pilot Program. Under effective immediately, subject to the available on the Amex’s Web site the Pilot Program, a $1 strike price may terms and conditions contained in rule (http://www.amex.com), at the Amex’s not be listed that is greater than $5 from 24 under the Act. principal office, and at the the underlying stock’s closing price on its primary market on the previous day. For the Commission, by the Division of Commission’s Public Reference Room. Investment Management, pursuant to The Exchange may also list $1 strikes on delegated authority. II. Self-Regulatory Organization’s any other options class designated by Statement of the Purpose of, and Margaret H. McFarland, another options exchange that employs Statutory Basis for, the Proposed Rule a similar pilot program approved by the Deputy Secretary. Change Commission. [FR Doc. E5–2898 Filed 6–6–05; 8:45 am] The Pilot Program prohibits the BILLING CODE 8010–01–P In its filing with the Commission, the Amex included statements concerning Exchange from listing $1 strikes on any series of individual equity options the purpose of and basis for the classes that have greater than nine proposed rule change and discussed any SECURITIES AND EXCHANGE months until expiration. In addition, the comments it received on the proposed COMMISSION Exchange is restricted from listing any rule change. The text of these statements series that would result in strike prices [Release No. 34–51770; File No. SR–Amex– may be examined at the places specified 2005–040] being $0.50 apart. in Item IV below. The Amex has To date, the Exchange believes that Self-Regulatory Organizations; prepared summaries, set forth in the Pilot Program has been beneficial to American Stock Exchange LLC; Notice Sections A, B, and C below, of the most investors and the options market by of Filing and Immediate Effectiveness significant aspects of such statements. providing investors with greater of a Proposed Rule Change and A. Self-Regulatory Organization’s flexibility in the trading of equity Amendment Nos. 1 and 2 to Extend Statement of the Purpose of, and options that overlie stocks trading below Until June 5, 2006, a Pilot Program for Statutory Basis for, the Proposed Rule $20. In this manner, options investors Listing Options on Selected Stocks Change are able to better tailor their strategies Trading Below $20 at One-Point through the availability of $1 strikes. Intervals 1. Purpose The Pilot Program Report, attached as Exhibit 3, provides data regarding the May 31, 2005. The Pilot Program was established in 7 Pilot Program as required in the Pilot Pursuant to Section 19(b)(1) of the June 2003, with a one-year extension through June 5, 2005, granted by the Program Extension Notice.9 The Amex Securities Exchange Act of 1934 notes that, as the data indicates, the $1 1 2 (‘‘Act’’) and Rule 19b–4 thereunder, strikes exhibited higher volume and notice is hereby given that on April 14, change it from a filing made pursuant to Section 19(b)(2) of the Act to a filing made pursuant to open interest than the ‘‘standard’’ strike 2005, the American Stock Exchange LLC Section 19(b)(3)(A) of the Act and Rule 19b–4(f)(6) price intervals. Specifically, the five (‘‘Amex’’ or ‘‘Exchange’’) filed with the thereunder. In addition, Amendment No. 2 requests options classes selected by the Amex for Securities and Exchange Commission a one-year extension of the $1 strikes pilot program, $1 strikes had a trading volume of (‘‘Commission’’) the proposed rule through June 5, 2006, rather than permanent approval of the pilot. 595,836 contracts, while the ‘‘standard’’ change as described in Items I and II 4 15 U.S.C. 78s(b)(3)(A). strikes for the same options classes had below, which Items have been prepared 5 17 CFR 240.19b–4(f)(6). a trading volume of 342,553 contracts. by the Amex. The Amex filed 6 As noted above, Amendment No. 2 changed the Of even greater significance is the Amendment Nos. 1 and 2 to the proposal from a filing made pursuant to Section difference in open interest between the proposal on May 10, 2005, and May 18, 19(b)(2) of the Act to a filing made pursuant to $1 strikes and ‘‘standard’’ strikes. As of 3 Section 19(b)(3)(A) of the Act. The Amex has asked 2005, respectively. The Amex filed the the Commission to waive the five-day pre-filing notice requirement and the 30-day operative delay. 8 See Securities Exchange Act Release No. 49813 1 15 U.S.C. 78s(b)(1). See Rule 19b–4(f)(6)(iii), 17 CFR 240.19b–4(f)(6)(iii). (June 4, 2004), 69 FR 33088 (June 14, 2004) (notice 2 17 CFR 240.19b–4. 7 See Securities Exchange Act Release No. 48024 of filing and immediate effectiveness of File No. 3 Amendment No. 2 replaced and superseded the (June 12, 2003), 68 FR 36617 (June 18, 2003) (order SR–Amex–2004–45) (‘‘Pilot Program Extension original filing and Amendment No. 1 in their approving File No. SR–Amex–2003–36) (‘‘Pilot Notice’’). entirety. Amendment No. 2 revises the proposal to Approval Order’’). 9 See note 8, supra.
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March 8, 2005, $1 strikes open interest is consistent with the protection of IV. Solicitation of Comments totaled 883,471 contracts versus 677,553 investors and the public interest. In contracts for ‘‘standard’’ strikes. Given addition, Rule 19b–4(f)(6)(iii) requires a Interested persons are invited to the limited nature of the Pilot Program, self-regulatory organization to provide submit written data, views, and the Exchange submits that the impact on the Commission with written notice of arguments concerning the foregoing, systems has been minimal. Accordingly, its intent to file the proposed rule including whether the proposed rule the Amex believes that an extension of change, along with a brief description change is consistent with the Act. the Pilot Program for one year through and text of the proposed rule change, at Comments may be submitted by any of June 5, 2006, is warranted. least five business days prior to the date the following methods: 2. Statutory Basis of filing of the proposed rule change, or Electronic Comments such shorter time as designated by the The Amex believes that the proposed Commission. The Amex has asked the • Use the Commission’s Internet rule change is consistent with the Commission to waive the five-day pre- 10 comment form (http://www.sec.gov/ Section 6(b) of the Act, in general, and filling notice requirement and the 30- rules/sro.shtml); or furthers the objective of Section 6(b)(5) day operative delay so that the proposal 11 • Send an e-mail to rule- of the Act, in particular, in that it is will be effective on June 5, 2005. designed to promote just and equitable [email protected]. Please include File principles of trade and to remove The Commission waives the five-day No. SR–Amex-2005–040 on the subject impediments to and perfect the pre-filing notice requirement. In line. mechanism of a free and open market. addition, the Commission believes that waiving the 30-day operative delay is Paper Comments B. Self-Regulatory Organization’s consistent with the protection of • Send paper comments in triplicate Statement on Burden on Competition investors and the public interest because it will allow the Pilot Program to Jonathan G. Katz, Secretary, The Amex believes that the proposed Securities and Exchange Commission, rule change will impose no burden on to continue without interruption through June 5, 2006.14 For this reason, 450 Fifth Street, NW., Washington, DC competition that is not necessary or 20549–0609. appropriate in the furtherance of the the Commission designates that the purposes of the Act. proposal become operative on June 5, All submissions should refer to File No. 2005.15 SR–Amex-2005–040. This file number C. Self-Regulatory Organization’s should be included on the subject line Statement on Comments on the At any time within 60 days of the filing of the proposed rule change, the if e-mail is used. To help the Proposed Rule Change Received From Commission process and review your Members, Participants, or Others Commission may summarily abrogate such rule change if it appears to the comments more efficiently, please use No written comments were solicited Commission that such action is only one method. The Commission will or received with respect to the proposed necessary or appropriate in the public post all comments on the Commission’s rule change. interest, for the protection of investors, Internet Web site (http://www.sec.gov/ III. Date of Effectiveness of the or otherwise in furtherance of the rules/sro.shtml). Copies of the Proposed Rule Change and Timing for purposes of the Act. submission, all subsequent Commission Action amendments, all written statements 14 For purposes only of waiving the 30-day with respect to the proposed rule The Amex has filed the proposed rule operative delay, the Commission has considered the change that are filed with the change pursuant to Section 19(b)(3)(A) proposed rule’s impact on efficiency, competition, Commission, and all written of the Act 12 and subparagraph (f)(6) of and capital formation. 15 U.S.C. 78c(f). Rule 19b–4 thereunder.13 Because the 15 As set forth in the Commission’s initial communications relating to the foregoing proposed rule change: (1) approval of the Pilot Program, if the Amex proposes proposed rule change between the to: (1) extend the Pilot Program; (2) expand the Commission and any person, other than Does not significantly affect the number of options eligible for inclusion in the Pilot protection of investors or the public Program; or (3) seek permanent approval of the Pilot those that may be withheld from the interest; (2) does not impose any Program, it must submit a Pilot Program report to public in accordance with the the Commission along with the filing of its proposal provisions of 5 U.S.C. 552, will be significant burden on competition; and to extend, expand, or seek permanent approval of (3) by its terms does not become the Pilot Program. The Amex must file any such available for inspection and copying in operative for 30 days after the date of proposal and the Pilot Program report with the the Commission’s Public Reference this filing, or such shorter time as the Commission at least 60 days prior to the expiration Room, 450 Fifth Street, NW., of the Pilot Program. The Pilot Program report must Washington, DC 20549. Copies of such Commission may designate if consistent cover the entire time the Pilot Program was in effect with the protection of investors and the and must include: (1) Data and written analysis on filing will also be available for public interest, the proposed rule the open interest and trading volume for options (at inspection and copying at the principal change has become effective pursuant to all strike price intervals) selected for the Pilot office of the Amex. All comments Program; (2) delisted options series (for all strike Section 19(b)(3)(A) of the Act and Rule price intervals) for all options selected for the Pilot received will be posted without change; 19b–4(f)(6) thereunder. Program; (3) an assessment of the appropriateness the Commission does not edit personal A proposed rule change filed under of $1 strike price intervals for the options the Amex identifying information from Rule 19b–4(f)(6) normally does not selected for the Pilot Program; (4) an assessment of the impact of the Pilot Program on the capacity of submissions. You should submit only become operative for 30 days after the the Amex’s, the Options Price Reporting information that you wish to make date of filing. However, Rule 19b– Authority’s, and vendors’ automated systems; (5) available publicly. All submissions 4(f)(6)(iii) permits the Commission to any capacity problems or other problems that arose should refer to File No. SR–Amex-2005– designate a shorter time if such action during the operation of the Pilot Program and how the Amex addressed them; (6) any complaints that 040 and should be submitted on or the Amex received during the operation of the Pilot 10 before June 28, 2005. 15 U.S.C. 78f(b). Program and how the Amex addressed them; and 11 15 U.S.C. 78f(b)(5). (7) any additional information that would help to 12 15 U.S.C. 78s(b)(3)(A). assess the operation of the Pilot Program. See Pilot 13 17 CFR 240.19b–4(f)(6). Approval Order, supra note 7.
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For the Commission, by the Division of II. Self-Regulatory Organization’s stocks 8 by allowing investors to Market Regulation, pursuant to delegated Statement of the Purpose of, and establish equity options positions that authority.16 Statutory Basis for, the Proposed Rule are better tailored to meet their Margaret H. McFarland, Change investment objectives.9 As reflected in Deputy Secretary. In its filing with the Commission, the the Pilot Extension Notice, the trading [FR Doc. E5–2897 Filed 6–6–05; 8:45 am] CBOE included statements concerning volume in a wide majority of the classes BILLING CODE 8010–01–P the purpose of and basis for the selected for the Pilot Program increased proposed rule change and discussed any significantly within the first year after 10 comments it received on the proposed being selected for the Pilot Program. In SECURITIES AND EXCHANGE rule change. The text of these statements ten of the 22 classes originally selected, COMMISSION may be examined at the places specified average daily trading volume (‘‘ADV’’) in Item IV below. The CBOE has increased over 100%, and in some [Release No. 34–51771; File No. SR–CBOE– classes ADV more than tripled.11 Now, 2005–37] prepared summaries, set forth in Sections A, B, and C below, of the most almost two years since the inception of the Pilot Program, the CBOE notes that Self-Regulatory Organizations; significant aspects of such statements. ADV in several options classes remains Chicago Board Options Exchange, A. Self-Regulatory Organization’s significantly higher than immediately Incorporated; Notice of Filing and Statement of the Purpose of, and prior to their selection for the Pilot Immediate Effectiveness of a Proposed Statutory Basis for, the Proposed Rule Program.12 It should be noted that, as Rule Change to Extend until June 5, Change reflected in the Pilot Program Report, 2006, a Pilot Program for Listing ADV also has dropped in several Options on Selected Stocks Trading 1. Purpose options classes since their selection for Below $20 at One-Point Intervals The purpose of the proposed rule the Pilot Program, although it is difficult change is to extend the Pilot Program for to identify the specific market factors May 31, 2005. an additional year.6 The Pilot Program Pursuant to Section 19(b)(1) of the that may contribute to the increase or allows the CBOE to select a total of five decrease in options trading volume from Securities Exchange Act of 1934 individual stocks on which option 1 2 one particular class to another, (‘‘Act’’) and Rule 19b–4 thereunder, series may be listed at $1 strike price notice is hereby given that on May 9, especially considering the time removed intervals. To be eligible for inclusion in since the inception of the Pilot Program. 2005, the Chicago Board Options the Pilot Program, the underlying stock However, the Exchange still believes Exchange, Incorporated (‘‘CBOE’’ or must close below $20 on its primary that the practice of offering customers ‘‘Exchange’’) filed with the Securities market on the previous trading day. If strike prices for lower-priced stocks at and Exchange Commission selected for the Pilot Program, the $1 intervals contributes to the overall (‘‘Commission’’) the proposed rule Exchange may list strike prices at $1 volume of the participating options change as described in Items I and II intervals from $3 to $20, but no $1 strike classes. below, which Items have been prepared price may be listed that is greater than by the CBOE. The CBOE filed the With regard to the impact on system $5 away from the underlying stock’s capacity, the CBOE’s analysis of the proposal pursuant to Section 19(b)(3)(A) closing price on its primary market on Pilot Program also suggests that the of the Act,3 and Rule 19b–4(f)(6) the previous day. The Exchange also impact on the CBOE’s, the Options Price thereunder,4 which renders the proposal may list $1 strikes on any other options Reporting Authority’s (‘‘OPRA’’), and effective upon filing with the class designated by another options market data vendors’ respective Commission.5 The Commission is exchange that employs a similar pilot automated systems has been minimal. publishing this notice to solicit program under its rules. Under the Specifically, the CBOE notes that in comments on the proposed rule change terms of the Pilot Program, the Exchange February 2005, the 21 classes from interested persons. may not list long-term option series participating in the Pilot Program (‘‘LEAPS’’ at $1 strike price intervals I. Self-Regulatory Organization’s accounted for 8,482,369 quotes per day for any class selected for the Pilot Statement of the Terms of Substance of or 2.26% of the industry’s 374,547,949 the Proposed Rule Change Program. The Exchange also is restricted from listing any series that would result average quotes per day. These 21 classes The CBOE proposes to amend in strike prices being $0.50 apart. averaged 285,509 contracts per day or Commentary .01 to CBOE Rule 5.5, As stated in its previous filings 5.11% of the industry’s 5,589,841 ‘‘Series of Option Contracts Open for establishing and extending the Pilot average contracts per day. The classes Trading,’’ to extend until June 5, 2006, Program,7 the CBOE believes that $1 involved totaled 881 series or 2.47% of 13 its pilot program for listing options strike price intervals provide investors all series listed. It should be noted that series on selected stocks trading below with greater flexibility in the trading of these quoting statistics may overstate $20 at one-point intervals (‘‘Pilot equity options that overlie lower-priced Program’’). The text of the proposed rule 8 To be eligible for inclusion in the Pilot Program, the underlying stock must close below $20 per 6 change is available on the CBOE’s Web The Commission approved the Pilot Program on share on its primary market on the previous trading site (http://www.cboe.com), at the June 5, 2003. See Securities Exchange Act Release day. No. 47991 (June 5, 2003), 68 FR 35243 (June 12, 9 See Pilot Approval Order and Pilot Extension CBOE’s principal office, and at the 2003) (order approving File No. SR–CBOE–2001– Notice, supra note 6. Commission’s Public Reference Room. 60) (‘‘Pilot Approval Order’’). The Pilot Program 10 was extended for an additional year on June 3, See Pilot Extension Notice, supra note 6. 2004. See Securities Exchange Act Release No. 11 See Pilot Extension Notice, supra note 6. 16 17 CFR 200.30–3(a)(12). 49799 (June 3, 2004), 69 FR 32642 (June 10, 2004) 12 Pursuant to the Pilot Extension Notice, the 1 15 U.S.C. 78s(b)(1). (notice of filing and immediate effectiveness of File CBOE is submitting a report (the ‘‘Pilot Program 2 17 CFR 240.19b–4. No. SR–CBOE–2004–34) (‘‘Pilot Extension Notice’’). Report’’), as Exhibit 3 to the proposal. Among other 3 15 U.S.C. 78s(b)(3)(A). Under Interpretation and Policy .01(a) to CBOE things, the Pilot Program Report contains analyses 4 17 CFR 240.19b–4(f)(6). Rule 5.5, the Pilot Program is scheduled to expire of the ADV and open interest (‘‘OI’’) for the options 5 The CBOE has asked the Commission to waive on June 5, 2005. classes that have been selected for the Pilot Program the 30-day operative delay. See Rule 19b–4(f)(6)(iii), 7 See Pilot Approval Order and Pilot Extension since its inception. 17 CFR 240.19b–4(f)(6)(iii). Notice, supra note 6. 13 See Pilot Program Report, infra Exhibit 3.
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the contribution of $1 strike prices this filing, or such shorter time as the At any time within 60 days of the because these figures also include Commission may designate if consistent filing of the proposed rule change, the quotes for series listed in intervals with the protection of investors and the Commission may summarily abrogate higher than $1 (i.e., $2.50 strikes) in the public interest, the proposed rule such rule change if it appears to the same options classes. Even with the change has become effective pursuant to Commission that such action is non-$1 strike series quoting being Section 19(b)(3)(A) of the Act and Rule necessary or appropriate in the public included in these figures, the CBOE 19b–4(f)(6) thereunder. As required interest, for the protection of investors, believes that the overall impact on under Rule 19b–4(f)(6)(iii), the CBOE or otherwise in furtherance of the capacity is still minimal. provided the Commission with written purposes of the Act. notice of its intention to file the IV. Solicitation of Comments 2. Statutory Basis proposed rule change at least five The Exchange believe that an business days prior to filing the Interested persons are invited to extension of the Pilot Program is proposal with the Commission or such submit written data, views, and warranted because the data indicates shorter period as designated by the arguments concerning the foregoing, that there is strong investor demand for Commission. including whether the proposed rule $1 strikes and because the Pilot Program A proposed rule change filed under change is consistent with the Act. has not adversely impacted systems Rule 19b–4(f)(6) normally does not Comments may be submitted by any of capacity. For these reasons, the become operative for 30 days after the the following methods: date of filing. However, Rule 19b– Exchange believe the proposed rule Electronic Comments 4(f)(6)(iii) permits the Commission to change is consistent with the Act and • the rules and regulations under the Act designate a shorter time if such action Use the Commission’s Internet applicable to a national securities is consistent with the protection of comment form (http://www.sec.gov/ investors and the public interest. The rules/sro.shtml); or exchange and, in particular, the • requirements of Section 6(b) of the CBOE has asked the Commission to Send an e-mail to rule- Act.14 Specifically, the Exchange waive the 30-day operative delay to [email protected]. Please include File believes the proposed rule change is permit the Pilot Program extension to No. SR–CBOE–2005–37 on the subject consistent with the requirements of become effective at the time the line. Section 6(b)(5) 15 that the rules of a Commission waives the 30-day Paper Comments operative delay. national securities exchange be • Send paper comments in triplicate designed to promote just and equitable The Commission believes that waiving the 30-day operative delay is to Jonathan G. Katz, Secretary, principles of trade, to prevent Securities and Exchange Commission, fraudulent and manipulative acts and, consistent with the protection of investors and the public interest 450 Fifth Street, NW., Washington, DC in general, to protect investors and the 20549–0609. public interest. because it will allow the Pilot Program to continue without interruption All submissions should refer to File B. Self-Regulatory Organization’s through June 5, 2006.18 For this reason, No. SR–CBOE–2005–37. This file Statement on Burden on Competition the Commission designates that the number should be included on the subject line if e-mail is used. To help the The CBOE does not believes that the proposal become operative on June 5, 2005.19 Commission process and review your proposed rule change will impose any comments more efficiently, please use burden on competition that is not 18 only one method. The Commission will necessary or appropriate in the For purposes only of waiving the 30-day operative delay, the Commission has considered the post all comments on the Commission’s furtherance of the purposes of the Act. proposed rule’s impact on efficiency, competition, Internet Web site (http://www.sec.gov/ and capital formation. 15 U.S.C. 78c(f). rules/sro.shtml). Copies of the C. Self-Regulatory Organization’s 19 As set forth in the Commission’s initial Statement on Comments on the approval of the Pilot Program, if the CBOE proposes submission, all subsequent Proposed Rule Change Received From to: (1) Extend the Pilot Program; (2) expand the amendments, all written statements Members, Participants, or Others number of options eligible for inclusion in the Pilot with respect to the proposed rule Program; or (3) seek permanent approval of the Pilot change that are filed with the No written comments were solicited Program, it must submit a Pilot Program report to Commission, and all written or received. the Commission along with the filing of its proposal to extend, expand, or seek permanent approval of communications relating to the III. Date of Effectiveness of the the Pilot Program. The CBOE must file any such proposed rule change between the proposal and the Pilot Program report with the Proposed Rule Change and Timing for Commission at least 60 days prior to the expiration Commission and any person, other than Commission Action of the Pilot Program. The Pilot Program report must those that may be withheld from the The CBOE has filed the proposed rule cover the entire time the Pilot Program was in effect public in accordance with the and must include: (1) Data and written analysis on provisions of 5 U.S.C. 552, will be change pursuant to Section 19(b)(3)(A) the open interest and trading volume for options (at of the Act 16 and subparagraph (f)(6) of all strike price intervals) selected for the Pilot available for inspection and copying in Rule 19b–4 thereunder.17 Because the Program; (2) delisted options series (for all strike the Commission’s Public Reference foregoing proposed rule change: (1) price intervals) for all options selected for the Pilot Room, 450 Fifth Street, NW., Program; (3) an assessment of the appropriateness Washington, DC 20549. Copies of such Does not significantly affect the of $1 strike price intervals for the options the CBOE protection of investors or the public selected for the Pilot Program; (4) an assessment of filing will also be available for interest; (2) does not impose any the impact of the Pilot Program on the capacity of inspection and copying at the principal the CBOE’s, OPRA’s, and vendors’ automated significant burden on competition; and office of the CBOE. All comments systems; (5) any capacity problems or other received will be posted without change; (3) by its terms does not become problems that arose during the operation of the operative for 30 days after the date of Pilot Program and how the CBOE addressed them; the Commission does not edit personal (6) any complaints that the CBOE received during identifying information from the operation of the Pilot Program and how the 14 submissions. You should submit only 15 U.S.C. 78f(b). CBOE addressed them; and (7) any additional 15 15 U.S.C. 78f(b)(5). information that would help to assess the operation information that you wish to make 16 15 U.S.C. 78s(b)(3)(A). of the Pilot Program. See Pilot Approval Order, available publicly. All submissions 17 17 CFR 240.19b–4(f)(6). supra note 6. should refer to File No. SR–CBOE–
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2005–37 and should be submitted on or or below in the case of a put option. III. Discussion and Commission before June 28, 2005. When options market makers hedge Findings For the Commission, by the Division their option positions by taking a long After careful review, the Commission of Market Regulation, pursuant to or short position in the underlying finds that the proposed rule change, as delegated authority.20 security, the underlying security is amended, is consistent with the Margaret H. McFarland, allowed ‘‘good faith’’ margin treatment, requirements of the Act and the rules provided the underlying security meets Deputy Secretary. and regulations thereunder applicable to the definition of a ‘‘permitted offset.’’ To a national securities exchange.6 In [FR Doc. E5–2891 Filed 6–6–05; 8:45 am] qualify as a permitted offset, CBOE Rule BILLING CODE 8010–01–P particular, the Commission believes that 12.3(f)(3) requires, among other things, the proposed rule change is consistent that the transaction price of the with Section 6(b)(5) of the Act 7, which SECURITIES AND EXCHANGE underlying security be not more than requires that the rules of the exchange COMMISSION two standard exercise price intervals be designed, among other things, to below the exercise price of the option remove impediments to and perfect the [Release No. 34–51766; File No. SR–CBOE– being hedged in the case of a call 2004–54] mechanisms of a free and open market, option, or above in the case of a put and, in general, to protect investors and option. The term ‘‘in-or-at-the-money’’ Self-Regulatory Organizations; the public interest. The Commission is used in CBOE Rule 12.3(f)(3) to refer Chicago Board Options Exchange, finds that amending the rules relating to to the two standard strike price interval Incorporated; Order Approving a margin treatment on stock transactions requirement. Stated another way, ‘‘in-or- Proposed Rule Change and Partial effected by an options market maker to Amendment No. 1 To Amend Rules at-the-money’’ means the option being hedge options positions, by eliminating Relating to Margin Treatment on Stock hedged cannot be ‘‘out-of-the-money’’ the ‘‘in-or-at-the-money’’ requirement, is Transactions Effected by an Options by more than two standard exercise consistent with the requirements of Market Maker to Hedge Options price intervals. Section 6(b)(5), in that the ‘‘in-or-at-the- Positions The Exchange has stated that the money’’ requirement impedes options intent of this requirement was to market makers from hedging, on a good May 31, 2005. confine good faith margining of faith margin basis, ‘‘out-of-the-money’’ transactions in the underlying security I. Introduction options having standard exercise price to those that constituted meaningful intervals of less than five points. On July 30, 2004, the Chicago Board hedges of an option position. The Options Exchange, Incorporated Exchange has proposed to remove the IV. Conclusion. 5 (‘‘CBOE’’ or ‘‘Exchange’’) filed with the ‘‘in-or-at-the-money’’ requirement. It is therefore ordered, pursuant to Securities and Exchange Commission The Exchange noted that the ‘‘in-or-at- Section 19(b)(2) of the Act,8 that the (‘‘Commission’’), pursuant to Section the-money’’ requirement is not proposed rule change (File No. SR– 19(b)(1) of the Securities Exchange Act consistent with current options market- 1 2 CBOE–2004–54), as amended, be, and it of 1934 (‘‘Act’’) and Rule 19b-4 maker hedging technique. Options hereby is, approved. thereunder, a proposed rule change market-makers will take a less than 100 seeking to amend rules relating to share position in the underlying For the Commission, by the Division of margin treatment on stock transactions Market Regulation, pursuant to delegated security per option being hedged so that authority.9 effected by an options market maker to any gain/loss on that position in dollar Margaret H. McFarland, hedge options positions. On February terms closely tracks that of the dollar 22, 2005, the CBOE filed a partial gain/loss on the option position. When Deputy Secretary. amendment to its proposed rule options market-makers hedge in this [FR Doc. E5–2889 Filed 6–6–05; 8:45 am] change.3 The proposed rule change, as manner, known as ‘‘delta neutral BILLING CODE 8010–01–P amended, was published for comment hedging,’’ they cannot benefit from any in the Federal Register on April 13, gain on a position in the underlying 2005.4 The Commission received no security because it is equally offset by SECURITIES AND EXCHANGE comments on the proposal. a loss in the option being hedged. COMMISSION II. Description The Exchange further noted that the ‘‘in-or-at-the-money’’ requirement is [Release No. 34–51763; File No. SR–CHX– 2005–15] The Exchange has proposed to unnecessary because, when a clearing eliminate a rule that essentially firm extends good faith margin on a disallows favorable margin treatment on Self-Regulatory Organizations; security underlying an option, it must Chicago Stock Exchange, Inc.; Notice stock transactions initiated by options reduce its net capital by any amount by market makers to hedge an option of Filing and Immediate Effectiveness which the deduction required by Rule of Proposed Rule Change and position if the exercise price of the 15c3–1 under the Securities Exchange option is more than two standard Amendment No. 1 Thereto Relating to Act of 1934 (the ‘‘haircut’’) exceeds the Participant Fees and Credits exercise price intervals above the price amount of equity in the options market of the stock in the case of a call option, maker’s account. May 31, 2005. Pursuant to Section 19(b)(1) of the 20 17 CFR 200.30–3(a)(12). 5 The New York Stock Exchange (‘‘NYSE’’) also 1 Securities Exchange Act of 1934 15 U.S.C. 78s(b)(1). has filed a proposed rule change to remove the ‘‘in- 2 17 CFR 240.19b–4. or-at-the-money’’ language from its rules on 6 3 SR–CBOE–2004–54: Amendment No. 1. Under permitted offsets. Although the language of the In approving this proposed rule change, the the partial amendment, the options market maker NYSE’s proposed rule change differs from the Commission notes that it has considered the must be able to demonstrate that it effected its language of the CBOE’s proposed rule change, the proposed rule’s impact on efficiency, competition, permitted offset transactions for market-making proposed changes from the two exchanges are and capital formation. 15 U.S.C. 78c(f). purposes. substantively identical. The Commission is 7 15 U.S.C. 78f(b)(5). 4 See Securities Exchange Act Release No. 51497 publishing a notice to solicit comments on the 8 15 U.S.C. 78s(b)(2). (April 6, 2005), 70 FR 19536 (April 13, 2005). NYSE’s proposed rule change. 9 17 CFR 200.30–3(a)(12).
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(‘‘Act’’),1 and Rule 19b–4 thereunder,2 the assignment fee for listed securities of the Act,8 in particular, in that it notice is hereby given that on May 2, that are not assigned in competition; provides for the equitable allocation of 2005, the Chicago Stock Exchange, Inc. and (2) modify the Exchange’s fixed fee reasonable dues, fees, and other charges (‘‘CHX’’ or ‘‘Exchange’’) filed with the for specialists trading Nasdaq/NM among its members. Securities and Exchange Commission securities. B. Self-Regulatory Organization’s (‘‘Commission’’) the proposed rule Eliminating certain assignment fees. Statement on Burden on Competition change as described in Items I, II and III Under the current Fee Schedule, the below, which Items have been prepared Exchange charges a fee to a specialist The Exchange does not believe that by the Exchange. On May 23, 2005, the that receives the assignment of a listed the proposed rule change will impose Exchange filed Amendment No. 1 to the security when other firms are not any inappropriate burden on proposed rule change.3 The Commission competing for the assignment. To competition. is publishing this notice to solicit encourage firms to trade additional C. Self-Regulatory Organization’s comments on the proposed rule change, listed securities by reducing their costs Statement on Comments on the as amended, from interested persons. of doing so, the Exchange proposes to Proposed Rule Change Received From eliminate this assignment fee.4 The I. Self-Regulatory Organization’s Members, Participants, or Others Exchange previously had waived this Statement of the Terms of Substance of fee on a temporary basis, through the No written comments were either the Proposed Rule Change end of 2004; the current proposal would solicited or received. The CHX proposes to amend its eliminate the fee altogether.5 III. Date of Effectiveness of the Participant Fee Schedule (the ‘‘Fee Modifying the fixed fee. The Exchange Proposed Rule Change and Timing for Schedule’’) to (1) eliminate the currently charges specialists trading Commission Action assignment fee for listed securities that Nasdaq/NM securities a base fixed fee The proposed rule change has become are not assigned in competition; and (2) that is the greater of (a) $20,000 or (b) effective upon filing pursuant to Section modify the Exchange’s fixed fee for the firm’s pro rata share of $60,000. The 19(b)(3)(A)(ii) of the Act 9 and specialists trading Nasdaq/NM Exchange now believes that it is subparagraph (f)(2) of Rule 19b–4 securities. The text of the proposed rule appropriate to modify the calculation to thereunder,10 because it establishes or change is available on the CHX’s Web impose a flat base fee of $20,000. This changes a due, fee, or other charge site (www.chx.com), at the CHX’s Office modified calculation allows the imposed by the CHX. At any time of the Secretary, and at the Exchange to recoup many of the fixed within 60 days of the filing of the Commission’s Public Reference Room. costs of running its OTC specialist proposed rule change, the Commission II. Self-Regulatory Organization’s program, while not imposing may summarily abrogate such rule 6 Statement of the Purpose of, and unnecessary fees on specialist firms. change if it appears to the Commission Statutory Basis for, the Proposed Rule The Exchange believes that these that such action is necessary or Change changes to the Fee Schedule represent a appropriate in the public interest, for fair allocation of the costs associated the protection of investors, or otherwise In its filing with the Commission, the with the Exchange’s specialist programs. CHX included statements concerning in furtherance of the purposes of the As noted above, the changes are also Act.11 the purpose of, and basis for, the intended to provide specialists with an proposed rule change and discussed any appropriate incentive to increase the IV. Solicitation of Comments comments it received on the proposed number of issues that they trade Interested persons are invited to rule change. The text of these statements (consistent with the specialist’s duties submit written data, views and may be examined at the places specified as a specialist), which could allow the arguments concerning the foregoing, in Item IV below. The CHX has prepared Exchange’s participants to offer their including whether the proposed rule summaries, set forth in Sections A, B, customers access to a wider array of change, as amended, is consistent with and C below, of the most significant specialist-traded securities. the Act. Comments may be submitted by aspects of such statements. 2. Statutory Basis any of the following methods: A. Self-Regulatory Organization’s Electronic Comments Statement of the Purpose of, and The Exchange believes that the Statutory Basis for, the Proposed Rule proposed rule change is consistent with • Use the Commission’s Internet 7 Change Section 6(b) of the Act, in general, and comment form (http://www.sec.gov/ furthers the objectives of Section 6(b)(4) rules/sro.shtml); or 1. Purpose • Send an e-mail to rule- The Exchange proposes to modify its 4 The Exchange would continue to charge [email protected]. Please include File Fee Schedule in two ways. Specifically, specialist assignment fees with respect to securities Number SR–CHX–2005–15 on the that are assigned to a specialist firm in competition the Exchange proposes to (1) eliminate with other firms, reflecting the increased subject line. administrative costs associated with allocating Paper Comments 1 15 U.S.C. 78s(b)(1). stocks in competition. 2 17 CFR 240.19b–4. 5 See Securities Exchange Act Release No. 50657 • Send paper comments in triplicate 3 In Amendment No. 1, the Exchange made (November 12, 2004), 69 FR 67615 (November 18, to Jonathan G. Katz, Secretary, technical corrections to the rule text of the 2004) (SR–CHX–2004–34). Securities and Exchange Commission, proposed rule change. The effective date of the 6 At a basic level, many of the Exchange’s costs original proposed rule change is May 2, 2005, and of supporting the OTC specialist program do not 450 Fifth Street, NW., Washington, DC the effective date of the amendment is May 23, vary based on the number of OTC specialist firms 20549–0609. 2005. For purposes of calculating the 60-day period or the number of issues traded. These costs, All submissions should refer to File within which the Commission may summarily however, can increase with substantial increases in Number SR–CHX–2005–15. This file abrogate the proposed rule change, as amended, trading volume or can decrease with substantial under Section 19(b)(3)(C) of the Act, the decreases in trading volume or in the number of 8 Commission considers the period to commence on firms that trade Nasdaq/NM securities. The 15 U.S.C. 78f(b)(4). May 23, 2005, the date on which the Exchange Exchange’s proposed changes to the fixed fee are 9 15 U.S.C. 78s(b)(3)(A)(ii). submitted Amendment No. 1. See 15 U.S.C. consistent with these principles. 10 17 CFR 240.19b–4(f)(2). 78s(b)(3)(C). 7 15 U.S.C. 78f(b). 11 See supra note 3.
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number should be included on the proposed rule change as described in included in the Pilot Program, the ISE subject line if e-mail is used. To help the Items I and II below, which Items have is also permitted to list options on other Commission process and review your been prepared by the ISE. The ISE filed individual stocks at $1 strike price comments more efficiently, please use the proposal pursuant to Section intervals if other options exchanges only one method. The Commission will 19(b)(3)(A) of the Act,3 and Rule 19b– listed those series pursuant to their post all comments on the Commission’s 4(f)(6) thereunder,4 which renders the respective rules. The ISE selected the Internet Web site (http://www.sec.gov/ proposal effective upon filing with the following five options classes to rules/sro.shtml). Copies of the Commission.5 The Commission is participate in the Pilot Program: AMR submission, all subsequent publishing this notice to solicit Corp. [AMR], Clapine Corp. [CPN], EMC amendments, all written statements comments on the proposed rule change Corp. [EMC], El Paso Corp. [EP], and with respect to the proposed rule from interested persons. Sun Microsystems Inc. [SUNW]. The change that are filed with the Pilot Program, after being extended on I. Self-Regulatory Organization’s Commission, and all written two prior occasions,7 is set to expire on Statement of the Terms of Substance of communications relating to the June 5, 2005.8 The ISE believes the Pilot the Proposed Rule Change proposed rule change between the Program has been successful. Thus, the Commission and any person, other than The ISE proposes to amend ISE proposes to extend the Pilot those that may be withheld from the Supplementary Material .01 to ISE Rule Program until June 5, 2006. In support public in accordance with the 504, ‘‘Series of Options Contracts Open of this proposed rule change, and as provisions of 5 U.S.C. 552, will be for Tracing,’’ to extend until June 5, required by the Pilot Program Approval available for inspection and copying in 2006, its pilot program for listing Order and the Pilot Extension Notices, the Commission’s Public Reference options series on selected stocks trading the Exchange is submitting to the Room. Copies of the filing also will be below $20 at one-point intervals (‘‘Pilot Commission a report (the ‘‘Pilot available for inspection and copying at Program’’). The text of the proposed rule Program Report’’), attached as Exhibit 3 the principal offices of the CHX. All change is available on the ISE’s Web site to the proposal, that details the comments received will be posted (http://www.iseoptions.com), at the Exchange’s experience with the Pilot without change; the Commission does ISE’s principal office, and at the Program. Specifically, the Pilot Program not edit personal identifying Commission’s Public Reference Room. Report contains data and written information from submissions. You II. Self-Regulatory Organization’s analysis regarding the five options should submit only information that Statement of the Purpose of, and classes included in the Pilot Program for you wish to make available publicly. All Statutory Basis for, the Proposed Rule the period between May 1, 2004, and submissions should refer to File Change February 28, 2005. Number SR–CHX–2005–15 and should The Exchange believes there is be submitted on or before June 28, 2005. In its filing with the Commission, the sufficient investor interest and demand ISE included statements concerning the For the Commission, by the Division of to extend the Pilot Program for another Market Regulation, pursuant to delegated purpose of and basis for the proposed year. The Exchange continues to believe authority.12 rule change and discussed any that the Pilot Program has provided Margaret H. McFarland, comments it received on the proposed investors with greater trading Deputy Secretary. rule change. The text of these statements opportunities and flexibility and the may be examined at the places specified [FR Doc. E5–2888 Filed 6–6–05; 8:45 am] ability to more closely tailor their in Item IV below. The ISE has prepared investment strategies and decisions to BILLING CODE 8010–01–P summaries, set forth in Sections A, B, the movement of the underlying and C below, of the most significant security. Furthermore, the Exchange has SECURITIES AND EXCHANGE aspects of such statements. not detected any material proliferation COMMISSION A. Self-Regulatory Organization’s of illiquid options series resulting from the narrower strike price intervals. [Release No. 34–51769; File No. SR–ISE– Statement of the Purpose of, and 2005–22] Statutory Basis for, the Proposed Rule 2. Statutory Basis Change The ISE believes the proposed rule Self-Regulatory Organizations; 1. Purpose change is consistent with the Act and International Securities Exchange, Inc.; Notice of Filing and Immediate On June 16, 2003, the Commission the rules and regulations thereunder approved the ISE’s Pilot Program, which and, in particular, the requirements of Effectiveness of a Proposed Rule 9 Change To Extend Until June 5, 2006, allows the ISE to list series with $1 Section 6(b) of the Act. Specifically, a Pilot Program for Listing Options on strike price intervals on equity option the ISE believes the proposed rule Selected Stocks Trading Below $20 at classes that overlie up to five individual change is consistent with the One-Point Intervals stocks, provided that the strike prices requirements under Section 6(b)(5) of are $20 or less, but not less than $3, the Act that the rules of a national May 31, 2005. subject to the terms of the Pilot securities exchange be designed to Pursuant to Section 19(b)(1) of the Program.6 Although the ISE may select Securities Exchange Act of 1934 only up to five individual stocks to be 7 See Securities Exchange Act Release Nos. 49827 (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 (June 8, 2004), 69 FR 33966 (June 17, 2004) (notice of filing and immediate effectiveness of File No. notice is hereby given that on May 10, 3 15 U.S.C. 78s(b)(3)(A). SR–ISE–2004–21) (extending the $1 Strike Pilot 2005, the International Securities 4 17 CFR 240.19b–4(f)(6). Program until August 5, 2004); and 50060 (July 22, Exchange, Inc. (‘‘ISE’’ or ‘‘Exchange’’) 5 The ISE has asked the Commission to waive the 2004), 69 FR 45864 (July 30, 2004) (notice of filing filed with the Securities and Exchange five-day pre-filing notice requirement and the 30- and immediate effectiveness of File No. SR–ISE– Commission (‘‘Commission’’) the day operative delay. See Rule 19b–4(f)(6)(iii), 17 2004–26) (extending the $1 Strike Pilot Program CFR 240.19b–4(f)(6)(iii). until June 5, 2005) (collectively, the ‘‘Pilot 6 See Securities Exchange Act Release No. 48033 Extension Notices’’). 12 17 CFR 200.30–3(a)(12). (June 13, 2003), 68 FR 37036 June 20, 2003) (order 8 See Securities Exchange Act Release No. 50060, 1 15 U.S.C. 78s(b)(1). approving File No. SR–ISE–2003–17) (‘‘Pilot supra note 7. 2 17 CFR 240.19b–4. Program Approval Order’’). 9 15 U.S.C. 78f(b).
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promote just and equitable principles of the Commission with written notice of change is consistent with the Act. trade, to prevent fraudulent and its intent to file the proposed rule Comments may be submitted by any of manipulative acts, to remove change, along with a brief description the following methods: impediments to and perfect the and text of the proposed rule change, at mechanism of a free and open market least five business days prior to the date Electronic Comments and a national market system, and, in of filing of the proposed rule change, or • Use the Commission’s Internet general, to protect investors and the such shorter time as designated by the comment form (http://www.sec.gov/ Commission. The ISE has asked the public interest. The ISE believes that rules/sro.shtml); or extension of the Pilot Program until Commission to waive the five-day pre- • June 5, 2006, will result in a continuing filing notice requirement and the 30-day Send an e-mail to rule- benefit to investors by allowing them to operative delay to prevent a lapse in the [email protected]. Please include File more closely tailor their investment operation of the Pilot Program. No. SR–ISE–2005–22 on the subject decisions, and will allow the ISE to The Commission waives the five-day line. pre-filing notice requirement. In further study investor interest in $1 Paper Comments strike price intervals. addition, the Commission believes that waiving the 30-day operative delay is • Send paper comments in triplicate B. Self-Regulatory Organization’s consistent with the protection of Statement on Burden on Competition to Jonathan G. Katz, Secretary, investors and the public interest Securities and Exchange Commission, The ISE believes that the proposed because it will allow the Pilot Program 450 Fifth Street, NW., Washington, DC rule change does not impose any burden to continue without interruption 20549–0609. on competition that is not necessary or through June 5, 2006.12 For this reason, appropriate in the furtherance of the the Commission designates that the All submissions should refer to File purposes of the Act. proposal become operative on June 5, No. SR–ISE–2005–22. This file number 2005.13 should be included on the subject line C. Self-Regulatory Organization’s At any time within 60 days of the if e-mail is used. To help the Statement on Comments on the filing of the proposed rule change, the Commission process and review your Proposed Rule Change Received From Commission may summarily abrogate comments more efficiently, please use Members, Participants, or Others such rule change if it appears to the only one method. The Commission will The ISE has not solicited, and does Commission that such action is post all comments on the Commission’s not intend to solicit, comments on this necessary or appropriate in the public Internet Web site (http://www.sec.gov/ proposed rule change. The ISE has not interest, for the protection of investors, rules/sro.shtml). Copies of the received any unsolicited written or otherwise in furtherance of the submission, all subsequent comments from members or other purposes of the Act. amendments, all written statements interested persons. IV. Solicitation of Comments with respect to the proposed rule change that are filed with the III. Date of Effectiveness of the Interested persons are invited to Proposed Rule Change and Timing for Commission, and all written submit written data, views, and communications relating to the Commission Action arguments concerning the foregoing, proposed rule change between the including whether the proposed rule The ISE has filed the proposed rule Commission and any person, other than change pursuant to Section 19(b)(3)(A) those that may be withheld from the 10 12 For purposes only of waiving the 30-day of the Act and subparagraph (f)(6) of public in accordance with the Rule 19b–4 thereunder.11 Because the operative delay, the Commission has considered the proposed rule’s impact on efficiency, competition, provisions of 5 U.S.C. 552, will be foregoing proposed rule change: (1) and capital formation. 15 U.S.C. 78c(f). available for inspection and copying in Does not significantly affect the 13 As set forth in the Commission’s initial the Commission’s Public Reference protection of investors or the public approval of the Pilot Program, if the ISE proposes Room, 450 Fifth Street, NW., interest; (2) does not impose any to: (1) extend the Pilot Program; (2) expand the number of options eligible for inclusion in the Pilot Washington, DC 20549. Copies of such significant burden on competition; and Program; or (3) seek permanent approval of the Pilot filing will also be available for (3) by its terms does not become Program, it must submit a Pilot Program report to inspection and copying at the principal operative for 30 days after the date of the Commission along with the filing of its proposal to extend, expand, or seek permanent approval of office of the ISE. All comments received this filing, or such shorter time as the the Pilot Program. The ISE must file any such Commission may designate if consistent will be posted without change; the proposal and the Pilot Program report with the Commission does not edit personal with the protection of investors and the Commission at least 60 days prior to the expiration public interest, the proposed rule of the Pilot Program. The Pilot Program report must identifying information from change has become effective pursuant to cover the entire time the Pilot Program was in effect submissions. You should submit only and must include: (1) data and written analysis on information that you wish to make Section 19(b)(3)(A) of the Act and Rule the open interest and trading volume for options (at 19b–4(f)(6) thereunder. all strike price intervals) selected for the Pilot available publicly. All submissions A proposed rule change filed under Program; (2) delisted options series (for all strike should refer to File No. SR–ISE–2005– Rule 19b–4(f)(6) normally does not price intervals) for all options selected for the Pilot 22 and should be submitted on or before Program; (3) an assessment of the appropriateness June 28, 2005. become operative for 30 days after the of $1 strike price intervals for the options the ISE date of filing. However, Rule 19b– selected for the Pilot Program; (4) an assessment of For the Commission, by the Division of 4(f)(6)(iii) permits the Commission to the impact of the Pilot Program on the capacity of Market Regulation, pursuant to delegated the ISE’s, the Options Price Reporting Authority’s, designate a shorter time if such action 14 and vendors’ automated systems; (5) any capacity authority. is consistent with the protection of problems or other problems that arose during the Margaret H. McFarland, investors and the public interest. In operation of the Pilot Program and how the ISE Deputy Secretary. addition, Rule 19b–4(f)(6)(iii) requires a addressed them; (6) any complaints that the ISE self-regulatory organization to provide received during the operation of the Pilot Program [FR Doc. E5–2899 Filed 6–6–05; 8:45 am] and how the ISE addressed them; and (7) any BILLING CODE 8010–01–P additional information that would help to assess the 10 15 U.S.C. 78s(b)(3)(A). operation of the Pilot Program. See Pilot Program 11 17 CFR 240.19b–4(f)(6). Approval Order, supra note 6. 14 17 CFR 200.30–3(a)(12).
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SECURITIES AND EXCHANGE through its subsidiary, The Nasdaq (‘‘NMC’’) and Nasdaq’s Brut Facility COMMISSION Stock Market, Inc. (‘‘Nasdaq’’), filed (‘‘Brut’’). The text of the proposed with the Securities and Exchange change to NASD Rule 7010 is below. [Release No. 34–51757; File No. SR–NASD– 2005–037] Commission (‘‘Commission’’) the Additions are in italics and deletions proposed rule change as described in are in brackets. Self-Regulatory Organizations; Items I and II below, which Items have * * * * * National Association of Securities been prepared by Nasdaq. On May 10, 7000. Charges for Services and Dealers, Inc.; Notice of Filing and 2005, Nasdaq submitted Amendment 3 Equipment Order Granting Accelerated Approval No. 1 to the proposed rule change. The of Proposed Rule Change and Commission is publishing this notice to 7010. System Services Amendment No. 1 Thereto To Modify solicit comments on the proposed rule (a)—(e) No change Certain Fees for Connecting to the change, as amended, from interested (f) Access Services. Nasdaq Market Center and Nasdaq’s persons and to grant accelerated Brut Facility for Non-Members approval to the proposed rule change, as The following charges are assessed by amended. Nasdaq for connectivity to the Nasdaq May 27, 2005. Market Center (NMC) and, where Pursuant to Section 19(b)(1) of the I. Self-Regulatory Organization’s indicated, to Nasdaq’s Brut Facility Securities Exchange Act of 1934 Statement of the Terms of Substance of (Brut). (‘‘Act’’) 1 and Rule 19b-4 thereunder,2 the Proposed Rule Change (1) and (2) No change. notice is hereby given that on March 24, Nasdaq proposes to amend NASD (3) Computer to computer interface 2005, the National Association of Rule 7010 to modify certain fees for (CTCI) and Financial Information Securities Dealers, Inc. (‘‘NASD’’), connecting to the Nasdaq Market Center Exchange (FIX)
Options Price
Option 1: Dual 56kb lines (one for redundancy), single hub and router, and optional single FIX $1275/month. port. Option 2: Dual 56kb lines (one for redundancy), dual hubs (one for redundancy), dual routers $1600/month. (one for redundancy), and optional single FIX port. Option 3: Dual T1 lines (one for redundancy), dual hubs (one for redundancy), dual routers $8000/month (CTCI or CTCI/FIX lines) $4000/ (one for redundancy), and optional single FIX port. Includes base bandwidth of 128kb. month (FIX-only lines). FIX Trading Port (NMC and Brut) [Charge] ...... $[300] 400/port/month. FIX Port for Services Other than Trading ...... $500/port/month. Dedicated FIX server ...... $1,000/server/month. Dedicated FIX server (Brut) ...... 3,000/server/month; initial term of not less than 12 months is required. Option 1, 2, or 3 with Message Queue software enhancement Bandwidth 20% ...... Fee for Option 1, 2, or 3 (including any En- hancement Fee) plus. Disaster Recovery Option: Single 56kb line with single hub and router and optional single FIX $975/month. port. (For remote disaster recovery sites only.). Bandwidth Enhancement Fee (for T1 subscribers only) ...... $600/month per 64kb increase above 128kb T1 base. Installation Fee ...... $2000 per site for dual hubs and routers. $1000 per site for single hub and router. Relocation Fee (for the movement of TCP/IP-capable lines within a single location) ...... $1700 per relocation.
FIX connectivity through Options 1, rule change. The text of these statements members and non-members alike. As 2, or 3 or the Disaster Recovery Option may be examined at the places specified further described below, these changes will not be available to new subscribers in Item III below. Nasdaq has prepared modify certain fees and establish new that are (i) NASD members after January summaries, set forth in Sections A, B, options for connecting to the NMC and 1, 2004, or (ii) not NASD members after and C below, of the most significant Brut. the effective date of SR–NASD–2003– aspects of such statements. Today, Nasdaq offers participants 196. A. Self-Regulatory Organization’s Financial Information Exchange (‘‘FIX’’) (4) No change. (g)—(v) No change. Statement of the Purpose of, and the protocol connectivity for entering orders * * * * * Statutory Basis for, the Proposed Rule to buy and sell securities into the NMC Change and Brut. Effective April 1, 2005, the II. Self-Regulatory Organization’s port charge for such a connection will Statement of the Purpose of, and 1. Purpose Statutory Basis for, the Proposed Rule be set at $400 per month for both the Change The proposed rule change would NMC and Brut. For NMC users, this apply to non-members certain rule represents a $100 per month increase In its filing with the Commission, changes that were immediately effective from the current $300 monthly charge; Nasdaq included statements concerning with respect to NASD members.4 for Brut users, this is a new charge,5 the purpose of and basis for the According to Nasdaq, an important which is being instituted in order to proposed rule change and discussed any objective of this proposal is to ensure harmonize NMC and Brut charges for comments it received on the proposed uniform treatment under the rules of similar services.
1 15 U.S.C. 78s(b)(1). 3 See Form 19b–4, dated May 10, 2005 4 See SR–NASD–2005–036. 2 17 CFR 240.19b–4. (‘‘Amendment No. 1’’). Amendment No. 1 replaced 5 To assure service quality, a Brut FIX port has the original rule filing in its entirety. been provisioned as a port pair, in which a
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This charge better reflects the market costs of activating a dedicated server are 2. Statutory Basis conditions and the costs associated with allocated properly, Nasdaq intends to Nasdaq believes that the proposed providing the service. The $100/month require a one-year minimum term for a rule change is consistent with Section increase in the charge for an NMC FIX dedicated Brut FIX server. Users will be 15A of the Act,9 in general, and Section port is necessary in light of the higher- responsible for the full first year’s 15A(b)(5) 10 of the Act, in particular, in than-expected infrastructure costs that charges even if they wish to terminate that it provides for the equitable Nasdaq is currently incurring in their contract early. allocation of reasonable dues, fees and providing this service. In estimating its The monthly charge for a dedicated other charges among members and costs, Nasdaq considers the cost of FIX server at Brut is higher than the issuers and other persons using any necessary hardware, software, charge for a dedicated FIX server at the facility or system which the NASD maintenance and staff. operates or controls. In response to subscriber demand, NMC. This difference in charges is in Nasdaq also intends to make FIX large part a reflection of the differences B. Self-Regulatory Organization’s connectivity available for services other in the cost of necessary hardware, Statement on Burden on Competition maintenance fees, software licensing than trading (i.e., other than the entry of Nasdaq does not believe that the orders). As such, on April 1, 2005, fees, and staff support costs. A Brut dedicated FIX server also entails higher proposed rule change will impose any Nasdaq expects to enable FIX burden on competition that is not initial costs, and the requirement of a connectivity to the NMC for the purpose necessary or appropriate in furtherance 12-month minimum term is designed to of accepting trade reports from those of the purposes of the Act. participants that are eligible to submit reduce Nasdaq’s financial exposure in such reports to the NMC. In the future, the event that a user decides to C. Self-Regulatory Organization’s it may become possible to use such non- terminate the arrangement after less Statement on Comments on the trading FIX connection for additional than a year (although Nasdaq’s Proposed Rule Change Received From Nasdaq services. expectation is that users that choose the Members, Participants or Others The proposed port charge for this dedicated server option continue with Nasdaq has neither solicited nor connection is slightly higher than the this option for longer than a year). The received comments on the proposed charge for a trading port, which is a initial and operating costs of an NMC rule change. reflection of current market conditions dedicated FIX server are lower, and in and costs. It is based on the expected the event of an early termination of this III. Solicitation of Comments level of demand for this type of service option by a user, the equipment used to Interested persons are invited to and the expected infrastructure costs provide such service can be more submit written data, views, and (including hardware, software and staff readily (than the Brut equipment) arguments concerning the foregoing, costs). Initially, this port will be used converted to other uses. including whether the proposed rule for the purpose of accepting trade change, as amended, is consistent with reports from those participants that are Nasdaq carefully monitors incoming and outgoing message traffic on all the Act. Comments may be submitted by eligible to submit such reports to the any of the following methods: NMC. In the future, it may become servers used for Brut access in order to possible to use this connection for other ensure that connectivity to and from Electronic Comments existing or to-be-established services. Of Brut is not degraded because of Use the Commission’s Internet course, Nasdaq will submit rule change insufficient capacity on such servers. comment form (http://www.sec.gov/ filings with respect to any new services This process will not change with the rules/sro.shtml); or whenever required to do so pursuant to implementation of dedicated servers. • Send an e-mail to rule- Section 19(b)(1) of the Act 6 and Rule Nasdaq regularly reviews the [email protected]. Please include File 19b-4 thereunder.7 performance statistics for each user Number SR–NASD–2005–037 on the Nasdaq is currently offering a connected to Nasdaq’s and Brut’s subject line. dedicated-to-a-specific-firm FIX server servers. If it appears that a server is Paper Comments that can be used to connect to the NMC. reaching its capacity limits (for A dedicated server is not necessary for example, if a particular user is • Send paper comments in triplicate a proper FIX connection to the NMC, experiencing greater volumes than in to Jonathan G. Katz, Secretary, but some participants may choose it as the past), Nasdaq would reassign servers Securities and Exchange Commission, an option.8 In response to participant and users to ensure that there is no 450 Fifth Street, NW., Washington, DC interest, Nasdaq is also making available degradation in the speed of 20549–0609. • a dedicated FIX server for Brut. The transmission. As a result, the choice a All submissions should refer to File charge for a dedicated Brut FIX server user makes between a shared and a Number SR–NASD–2005–037. This file will reflect the costs of providing it. In dedicated server has no impact on number should be included on the order to further ensure that all initial transmission speed. Nasdaq will install subject line if e-mail is used. To help the additional non-dedicated servers Commission process and review your redundant second port is included for use as whenever necessary to provide a high comments more efficiently, please use backup. Nasdaq does not intend to change this level of support across all FIX servers. only one method. The Commission will practice at this time. Therefore, a Brut user will post all comments on the Commission’s receive both ports in the pair for a single payment A dedicated FIX server at Brut would Internet Web site (http://www.sec.gov/ of $400/month. also be capable of being converted to 6 rules/sro.shtml). Copies of the 15 U.S.C. 78s(b)(1). provide access to the NMC if at any time 7 17 CFR 240.19b–4. submission, all subsequent 8 See Securities Exchange Act Release No. 51170 Nasdaq decided to make the appropriate amendments, all written statements (Feb. 9, 2005), 70 FR 7988 (Feb. 16, 2005) (SR– system modifications. The use of such a with respect to the proposed rule NASD–2005–002) (explains that Nasdaq will server for connectivity to and from the change that are filed with the carefully monitor message traffic on all dedicated NMC would not confer any transmission and non-dedicated servers to ensure that dedicated servers will not provide firms that receive them speed advantage or disadvantage upon 9 15 U.S.C. 78o–3. with any transmission speed advantage). this server’s users. 10 15 U.S.C. 78o–3(b)(5).
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Commission, and all written thirtieth day after publication in the (‘‘Act’’),1 and Rule 19b–4 thereunder,2 communications relating to the Federal Register. The Commission notes notice is hereby given that on March 24, proposed rule change between the that the proposed fees for non-NASD 2005, the National Association of Commission and any person, other than members are identical to those in SR– Securities Dealers, Inc. (‘‘NASD’’), those that may be withheld from the NASD–2005–036, which implemented through its subsidiary, The Nasdaq public in accordance with the these fees for NASD members and Stock Market, Inc. (‘‘Nasdaq’’), filed provisions of 5 U.S.C. 552, will be which became effective pursuant to with the Securities and Exchange available for inspection and copying in Section 19(b)(3)(A) of the Act.13 The Commission (‘‘Commission’’) the the Commission’s Public Reference Commission notes that this change will proposed rule change as described in Room. Copies of the filing also will be promote consistency in Nasdaq’s fee Items I, II and III below, which Items available for inspection and copying at schedule by applying the same pricing have been prepared by Nasdaq. On May the principal offices of the NASD. All schedule with the same date of 10, 2005, Nasdaq submitted comments received will be posted effectiveness for both NASD members Amendment No. 1 to the proposed rule without change; the Commission does and non-NASD members. Accordingly, change.3 Nasdaq has designated this not edit personal identifying the Commission finds good cause, proposal as establishing or changing a information from submissions. You consistent with Section 19(b)(2) of the due, fee, or other charge imposed by a should submit only information that Act,14 to approve the proposed rule self-regulatory organization pursuant to you wish to make available publicly. All change, as amended, on an accelerated Section 19(b)(3)(A) of the Act,4 and Rule submissions should refer to File basis. 19b–4(f)(2) thereunder,5 which renders Number SR–NASD–2005–037 and the proposal effective upon filing with V. Conclusion should be submitted on or before June the Commission.6 The Commission is 28, 2005. It is therefore ordered, pursuant to publishing this notice to solicit Section 19(b)(2) of the Act,15 that the comments on the proposed rule change, IV. Commission Findings and Order proposed rule change (SR–NASD–2005– as amended, from interested persons. Granting Accelerated Approval of 037), as amended, is approved. Proposed Rule Change I. Self-Regulatory Organization’s For the Commission, by the Division of Statement of the Terms of Substance of The Commission finds that the Market Regulation, pursuant to delegated the Proposed Rule Change proposed rule change, as amended, is authority.16 consistent with the requirements of the Margaret H. McFarland, Nasdaq proposes to amend NASD Act and the rules and regulations Deputy Secretary. Rule 7010 to modify certain fees for thereunder applicable to a self- [FR Doc. E5–2890 Filed 6–6–05; 8:45 am] connecting to the Nasdaq Market Center 11 (‘‘NMC’’) and Nasdaq’s Brut Facility regulatory organization. In particular, BILLING CODE 8010–01–P the Commission believes that the (‘‘Brut’’). The text of the proposed proposed rule change is consistent with change to NASD Rule 7010 is below. the requirements of Section 15A(b)(5) of SECURITIES AND EXCHANGE Additions are in italics and deletions the Act,12 which requires that the rules COMMISSION are in brackets. of the self-regulatory organization * * * * * provide for the equitable allocation of [Release No. 34–51756; File No. SR–NASD– 7000. Charges for Services and 2005–036] reasonable dues, fees, and other charges Equipment among members and issuers and other Self-Regulatory Organizations; 7010. System Services persons using any facility or system National Association of Securities (a)—(e) No change which it operates or controls. Dealers, Inc.; Notice of Filing and (f) Access Services. Specifically, the Commission notes that Immediate Effectiveness of Proposed The following charges are assessed by this proposal would permit the schedule Rule Change and Amendment No. 1 Nasdaq for connectivity to the Nasdaq for non-NASD members to mirror the Thereto To Modify Certain Fees for Market Center (NMC) and, where schedule applicable to NASD members Connecting to the Nasdaq Market indicated, to Nasdaq’s Brut Facility that was effective pursuant to SR– Center and Nasdaq’s Brut Facility (Brut). NASD–2005–036. (1) and (2) No change. The Commission finds good cause for May 27, 2005. (3) Computer to computer interface accelerating approval of the proposed Pursuant to Section 19(b)(1) of the (CTCI) and Financial Information rule change, as amended, prior to the Securities Exchange Act of 1934 Exchange (FIX)
Options Price
Option 1: Dual 56kb lines (one for redundancy), single hub and router, and optional single FIX $1275/month. port. Option 2: Dual 56kb lines (one for redundancy), dual hubs (one for redundancy), dual routers $1600/month. (one for redundancy), and optional single FIX port. Option 3: Dual T1 lines (one for redundancy), dual hubs (one for redundancy), dual routers $8000/month (CTCI or CTCI/FIX lines) (one for redundancy), and optional single FIX port. Includes base bandwidth of 128kb. $4000/month (FIX-only lines). FIX Trading Port (NMC and Brut) [Charge] ...... $[300] 400/port/month. FIX Port for Services Other than Trading ...... $500/port/month.
11 The Commission has considered the proposed 16 17 CFR 200.30–3(a)(12). 5 17 CFR 240.19b–4(f)(2). rule’s impact on efficiency, competition and capital 1 15 U.S.C. 78s(b)(1). 6 Nasdaq is simultaneously filing, and requesting formation. 15 U.S.C. 78c(f). 2 17 CFR 240.19b–4. accelerated approval for, another rule change 12 15 U.S.C. 78o–3(b)(5). 3 See Form 19b–4, dated May 10, 2005 proposal, which would make the changes described 13 15 U.S.C. 78s(b)(3)(A). (‘‘Amendment No. 1’’). Amendment No. 1 clarified herein also applicable to non-members. 14 15 U.S.C. 78s(b)(2). the substance of and basis for the proposal. 15 15 U.S.C. 78s(b)(2). 4 15 U.S.C. 78s(b)(3)(A).
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Options Price
Dedicated FIX server ...... $1,000/server/month. Dedicated FIX server (Brut) ...... 3,000/server/month; initial term of not less than 12 months is required. Option 1, 2, or 3 with Message Queue software enhancement ...... Fee for Option 1, 2, or 3 (including any Band- width Enhancement Fee) plus 20%. Disaster Recovery Option: Single 56kb line with single hub and router and optional single FIX $975/month. port. (For remote disaster recovery sites only.). Bandwidth Enhancement Fee (for T1 subscribers only) ...... $600/month per 64kb increase above 128kb T1 base. Installation Fee ...... $2000 per site for dual hubs and routers. $1000 per site for single hub and router. Relocation Fee (for the movement of TCP/IP-capable lines within a single location) ...... $1700 per relocation.
FIX connectivity through Options 1, harmonize NMC and Brut charges for but some participants may choose it as 2, or 3 or the Disaster Recovery Option similar services. an option.10 In response to participant will not be available to new subscribers This charge better reflects the market interest, Nasdaq is also making available that are (i) NASD members after January conditions and the costs associated with a dedicated FIX server for Brut. The 1, 2004, or (ii) not NASD members after providing the service. The $100/month charge for a dedicated Brut FIX server the effective date of SR–NASD–2003– increase in the charge for an NMC FIX will reflect the costs of providing it. In 196. port is necessary in light of the higher- order to further ensure that all initial than-expected infrastructure costs that (4) No change. costs of activating a dedicated server are Nasdaq is currently incurring in allocated properly, Nasdaq intends to (g)–(v) No change. providing this service. In estimating its require a one-year minimum term for a * * * * * costs, Nasdaq considers the cost of dedicated Brut FIX server. Users will be necessary hardware, software, responsible for the full first year’s II. Self-Regulatory Organization’s maintenance and staff. charges even if they wish to terminate Statement of the Purpose of, and In response to subscriber demand, their contract early. Statutory Basis for, the Proposed Rule Nasdaq also intends to make FIX The monthly charge for a dedicated Change connectivity available for services other FIX server at Brut is higher than the than trading (i.e., other than the entry of charge for a dedicated FIX server at the In its filing with the Commission, orders). As such, on April 1, 2005, NMC. This difference in charges is in Nasdaq included statements concerning Nasdaq expects to enable FIX large part a reflection of the differences the purpose of and basis for the connectivity to the NMC for the purpose in the cost of necessary hardware, proposed rule change and discussed any of accepting trade reports from those maintenance fees, software licensing comments it received on the proposed participants that are eligible to submit fees, and staff support costs. A Brut rule change. The text of these statements such reports to the NMC. In the future, dedicated FIX server also entails higher may be examined at the places specified it may become possible to use such non- initial costs, and the requirement of a in Item IV below. Nasdaq has prepared trading FIX connection for additional 12-month minimum term is designed to summaries, set forth in Sections A, B, Nasdaq services. reduce Nasdaq’s financial exposure in and C below, of the most significant The proposed port charge for this the event that a user decides to aspects of such statements. connection is slightly higher than the terminate the arrangement after less A. Self-Regulatory Organization’s charge for a trading port, which is a than a year (although Nasdaq’s Statement of the Purpose of, and reflection of current market conditions expectation is that users that choose the Statutory Basis for, the Proposed Rule and costs. It is based on the expected dedicated server option continue with Change level of demand for this type of service this option for longer than a year). The and the expected infrastructure costs initial and operating costs of an NMC 1. Purpose (including hardware, software and staff dedicated FIX server are lower, and in costs). Initially, this port will be used the event of an early termination of this Today, Nasdaq offers participants for the purpose of accepting trade option by a user, the equipment used to Financial Information Exchange (‘‘FIX’’) reports from those participants that are provide such service can be more protocol connectivity for entering orders eligible to submit such reports to the readily (than the Brut equipment) to buy and sell securities into the NMC NMC. In the future, it may become converted to other uses. and Brut. Effective April 1, 2005, the possible to use this connection for other Nasdaq carefully monitors incoming port charge for such a connection will existing or to-be-established services. Of and outgoing message traffic on all be set at $400 per month for both the course, Nasdaq will submit rule change servers used for Brut access in order to NMC and Brut. For NMC users, this filings with respect to any new services ensure that connectivity to and from represents a $100 per month increase whenever required to do so pursuant to Brut is not degraded because of from the current $300 monthly charge; Section 19(b)(1) of the Act 8 and Rule insufficient capacity on such servers. for Brut users, this is a new charge,7 19b–4 thereunder.9 This process will not change with the which is being instituted in order to Nasdaq is currently offering a implementation of dedicated servers. dedicated-to-a-specific-firm FIX server 7 To assure service quality, a Brut FIX port has that can be used to connect to the NMC. 10 See Securities Exchange Act Release No. 51170 been provisioned as a port pair, in which a A dedicated server is not necessary for (Feb. 9, 2005), 70 FR 7988 (Feb. 16, 2005) (SR– redundant second port is included for use as a proper FIX connection to the NMC, NASD–2005–002) (explains that Nasdaq will backup. Nasdaq does not intend to change this carefully monitor message traffic on all dedicated practice at this time. Therefore, a Brut user will and non-dedicated servers to ensure that dedicated receive both ports in the pair for a single payment 8 15 U.S.C. 78s(b)(1). servers will not provide firms that receive them of $400/month. 9 17 CFR 240.19b–4. with any transmission speed advantage).
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Nasdaq regularly reviews the may summarily abrogate such rule should submit only information that performance statistics for each user change if it appears to the Commission you wish to make available publicly. All connected to Nasdaq’s and Brut’s that such action is necessary or submissions should refer to File servers. If it appears that a server is appropriate in the public interest, for Number SR–NASD–2005–036 and reaching its capacity limits (for the protection of investors, or otherwise should be submitted on or before June example, if a particular user is in furtherance of the purposes of the 28, 2005. 15 experiencing greater volumes than in Act. For the Commission, by the Division of the past), Nasdaq would reassign servers IV. Solicitation of Comments Market Regulation, pursuant to delegated and users to ensure that there is no authority.16 degradation in the speed of Interested persons are invited to Margaret H. McFarland, transmission. As a result, the choice a submit written data, views, and Deputy Secretary. user makes between a shared and a arguments concerning the foregoing, [FR Doc. E5–2895 Filed 6–6–05; 8:45 am] including whether the proposed rule dedicated server has no impact on BILLING CODE 8010–01–P transmission speed. Nasdaq will install change, as amended, is consistent with additional non-dedicated servers the Act. Comments may be submitted by whenever necessary to provide a high any of the following methods: SECURITIES AND EXCHANGE level of support across all FIX servers. Electronic Comments COMMISSION A dedicated FIX server at Brut would • Use the Commission’s Internet [Release No. 34–51765; File No. SR–NSX– also be capable of being converted to 2005–02] provide access to the NMC if at any time comment form (http://www.sec.gov/ rules/sro.shtml); or Nasdaq decided to make the appropriate Self-Regulatory Organizations; • Send an e-mail to rule- system modifications. The use of such a National Stock Exchange; Notice of [email protected]. Please include File server for connectivity to and from the Filing of Proposed Rule Change, and Number SR–NASD–2005–036 on the NMC would not confer any transmission Amendments No. 1 and 2 Thereto, subject line. speed advantage or disadvantage upon Relating to the Composition of NSX’s this server’s users. Paper Comments Board of Directors and Committees • 2. Statutory Basis Send paper comments in triplicate May 31, 2005. Nasdaq believes that the proposed to Jonathan G. Katz, Secretary, Pursuant to Section 19(b)(1) of the rule change is consistent with Section Securities and Exchange Commission, Securities Exchange Act of 1934 15A of the Act,11 in general, and Section 450 Fifth Street, NW., Washington, DC (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 15A(b)(5) 12 of the Act, in particular, in 20549–0609. notice is hereby given that on March 31, that it provides for the equitable All submissions should refer to File 2005, the National Stock ExchangeSM allocation of reasonable dues, fees and Number SR–NASD–2005–036. This file (the ‘‘Exchange’’ or ‘‘NSX’’SM) filed with other charges among members and number should be included on the the Securities and Exchange issuers and other persons using any subject line if e-mail is used. To help the Commission (‘‘Commission’’) the facility or system which the NASD Commission process and review your proposed rule change as described in operates or controls. comments more efficiently, please use Items I, II, and III below, which Items only one method. The Commission will have been prepared by NSX. On March B. Self-Regulatory Organization’s post all comments on the Commission’s 31, 2005, the Exchange filed Statement on Burden on Competition Internet Web site (http://www.sec.gov/ Amendment No. 1 to the proposed rule Nasdaq does not believe that the rules/sro.shtml). Copies of the change.3 On May 19, 2005, the proposed rule change will impose any submission, all subsequent Exchange filed Amendment No. 2 to the burden on competition that is not amendments, all written statements proposed rule change.4 The Commission necessary or appropriate in furtherance with respect to the proposed rule is publishing this notice to solicit of the purposes of the Act. change that are filed with the comments on the proposed rule change, Commission, and all written as amended, from interested persons. C. Self-Regulatory Organization’s communications relating to the Statement on Comments on the proposed rule change between the I. Self-Regulatory Organization’s Proposed Rule Change Received From Commission and any person, other than Statement of the Terms of Substance of Members, Participants or Others those that may be withheld from the the Proposed Rule Change Nasdaq has neither solicited nor public in accordance with the The Exchange proposes to amend its received comments on the proposed provisions of 5 U.S.C. 552, will be By-Laws to make modifications to the rule change. available for inspection and copying in composition of its Board of Directors the Commission’s Public Reference (‘‘Board’’) and committees. These III. Date of Effectiveness of the Room. Copies of the filing also will be changes are being made in connection Proposed Rule Change and Timing for available for inspection and copying at with a termination of rights agreement Commission Action the principal offices of the NASD. All entered into between NSX and the The foregoing rule change has become comments received will be posted Chicago Board Options Exchange effective pursuant to Section 19(b)(3)(A) without change; the Commission does (‘‘CBOE’’) and in order to comport with of the Act 13 and subparagraph (f)(2) of not edit personal identifying Rule 19b–4 thereunder.14 At any time information from submissions. You 16 17 CFR 200.30–3(a)(12). within 60 days of the filing of such 1 15 U.S.C. 78s(b)(1). 2 proposed rule change, the Commission 15 15 See 15 U.S.C. 78s(b)(3)(C). For purposes of 17 CFR 240.19b–4. calculating the 60-day abrogation period, the 3 In Amendment No. 1, the Exchange corrected Commission considers the period to commence on page numbering errors in the initial filing. 11 15 U.S.C. 78o–3. May 10, 2005, the date Nasdaq filed Amendment Amendment No. 1 replaced the original filing in its 12 15 U.S.C. 78o–3(b)(5). No. 1. The effective date of the original proposed entirety. 13 15 U.S.C. 78s(b)(3)(a). rule change is March 24, 2005, and the effective 4 In Amendment No. 2, the Exchange revised the 14 17 CFR 240.19b–4(f)(2). date of the amendment is May 10, 2005. proposed definition of ‘‘Independent Director.’’
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industry trends and anticipated changes of these By-Laws, has applied for, and other than as a public trustee or director in regulatory requirements. been admitted to, membership as a (‘‘Public Director’’)]. Below is the amended text of the proprietary member subsequent to the Excepting affiliations with national proposed rule change. Proposed new effective date of these By-Laws. securities exchanges, no two or more language is in italics; proposed [(l)] (o) The term ‘‘statutory Directors may be partners, officers of deletions are in [brackets]. disqualification’’ shall mean any directors of the same person or be * * * * * statutory disqualification as defined in affiliated with the same person. the Act. (b) Changes in Composition on the CODE OF REGULATIONS (BY-LAWS) [(m) The term ‘‘CBOE’’ shall mean the Occurrence of Certain Events. OF NATIONAL STOCK EXCHANGE Chicago Board Options Exchange, Notwithstanding the provisions of ARTICLE I. Definitions Incorporated.] Section 1(a) of this Article V: (i) The current terms of the Directors Section 1. When used in this Code of [(n) The term ‘‘CBOE member(s)’’ currently serving as of the effective date Regulations (By-Laws), unless the shall mean an individual CBOE member of this provision of these By-laws (the context otherwise requires— or a CBOE member organization that is a regular member of CBOE as described ‘‘Effective Date’’) shall be unchanged. (a)–(e). No change. in Article II, Section 2.1(b) of the CBOE (ii) Following the Effective Date, the (f) The term ‘‘CBOE’’ shall mean the Constitution or that is a special member three new Independent Directors who Chicago Board Options Exchange, of CBOE as described in Article II are authorized by Section 1(a)(iii) (‘‘New Incorporated. Section 2.1(d) of the CBOE Constitution Independent Directors’’) shall be either (g) The term ‘‘CBOE member(s)’’ shall as such CBOE members may exist from (as determined by the Board) (y) mean an individual CBOE member or a time to time, except that in the case of selected in accordance with Sections CBOE member organization that is a a transferable regular CBOE membership 2.1(c) and 2.2(b) of this Article V, except regular member of CBOE as described in which is subject to a lease agreement, that each candidate for New Article II, Section 2.1(b) of the CBOE the lessee and not the lessor shall be Independent Director shall be submitted Constitution or that is a special member deemed to be the CBOE member]. by the Nominating Committee to the of CBOE as described in Article II * * * * * Board for approval or disapproval as Section 2.1(d) of the CBOE Constitution soon as practical, or (z) appointed in as such CBOE members may exist from ARTICLE V. Exchange Organization and accordance with Sections 2.1(c) and 3 of time to time. Administration this Article V. [(f)] (h) The term ‘‘Commission’’ (iii) On the date of the first means the United States Securities and Section 1. Board of Directors Subsequent Closing (as defined below) Exchange Commission. [1.1. General] [(g)] (i) The term ‘‘Exchange’’ means to occur after January 18, 2005, the (a) General Composition. The number of positions on the Board to be National Stock Exchange. management and administration of the [(h)] (j) The term ‘‘Exchange Rules’’ filled by CBOE Directors shall be affairs of the Exchange shall be vested reduced from three to two and the means those rules adopted by the in a Board of Directors, which shall be Exchange pursuant to the provisions of number of positions to be filled by composed of thirteen (subject to Section Independent Directors shall be Article X of these By-Laws. 1(b)) voting Directors (a majority of (k) The term ‘‘Independent Director’’ increased from six to seven. Following whom will be independent pursuant to means a member of the Board that the the first Subsequent Closing, a new Section 1(b)), as follows: Board has determined to have no Independent Director shall be either (as material relationship with the Exchange [(a)] (i) the Chief Executive Officer of determined by the Board) (y) selected in or any affiliate of the Exchange, any the Exchange [President]; accordance with Sections 2.1(c) and member of the Exchange or any affiliate [(b) two] (ii) three Proprietary 2.2(b) of this Article V, except that the of any such member, other than as a Members, or executive officers of candidate for Independent Director member of the Board. Proprietary Member organizations[, who shall be submitted by the Nominating [(i)] (l) The term ‘‘person’’ means a are Designated Dealers in the National Committee to the Board for approval or natural person, company, government, Securities Trading System (‘‘Designated disapproval as soon as practical, or (z) or political subdivision, agency or Dealer Directors’’); (c) one Proprietary appointed in accordance with Sections instrumentality of a government. Member or an executive officer of a 2.1(c) and 3 of this Article V. [(j)] (m) The terms ‘‘person associated Proprietary Member organization, who (iv) If no Subsequent Closing has with a member’’ or ‘‘associated person conducts a nonmember public customer occurred prior to February 15, 2006, of a member’’ mean any partner, officer, business on the Exchange (‘‘At-Large] then in order to achieve a majority of director, or branch manager of a member (‘‘Member Directors’’); Independent Directors serving on the (or any person occupying a similar (iii) six Independent Directors (subject Board, the Board may, in its discretion, status or performing similar functions), to increase under Section 1(b) below); add up to two new Independent any person directly or indirectly and Directors and thereby increase the controlling, controlled by, or under [(d) the Chairman of CBOE (‘‘CBOE number of Directors serving on the common control with the member, of Director’’); (e) the President of CBOE Board from thirteen to not more than any employee of such member, except (‘‘CBOE Director’’); (f) four] (iv) three fifteen. In such event the two new that any person associated with a executive officers of CBOE, CBOE Independent Directors authorized member whose functions are solely members or executive officers of CBOE hereby shall be either (as determined by clerical or ministerial shall not be member organizations (‘‘CBOE the Board) (y) selected in accordance included in the meaning of such terms. Directors’’)[; and (g) three with Sections 2.1(c) and 2.2(b) of this [(k)] (n) The term ‘‘Proprietary representatives of issuers and investors Article V, except that each candidate for Member’’ means a person who was a who shall not be associated with any Independent Director shall be submitted ‘‘Regular Member’’ prior to the effective member of the Exchange or with any by the Nominating Committee to the date of these By-Laws or a person who, registered broker or dealer or with Board for approval or disapproval as pursuant to the provisions of Article II another self-regulatory organization, soon as practical, or (z) appointed in
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accordance with Sections 2.1(c) and 3 of President of CBOE—1988 (a) The [three] candidates for election this Article V. CBOE Director—1988 to the Board [either] as [Designated (v) On the date of the second CBOE Director—1988 Dealer Directors or as At-Large] Member Subsequent Closing to occur after CBOE Director—1988 Directors shall be selected by the January 18, 2005, the number of CBOE Director—1988] Nominating Committee. The Committee positions on the Board to be filled by shall select at least one candidate for the CBOE Directors shall be reduced from Section 2. Election of Directors position to be voted upon. An two to one, and the Board may, in its 2.1. Terms of Office additional candidate or candidates may discretion, increase by one the number (a) The board term of the Chief be nominated by a petition signed by of positions to be filled by either Executive Officer shall expire when ten percent or more of the Proprietary Independent Directors or Member such individual ceases to be Chief Members and delivered to the Secretary Directors. Following the second Executive Officer of the Exchange. of the Exchange, provided that such Subsequent Closing, a new Director may [(a)] (b) The [a Designated Dealer] candidate or candidates conforms to the be either (as determined by the Board) Member Directors [, At-Large Director or requirements for the open position(s). (y) elected or appointed in accordance Public Director] shall be divided into There shall be an annual election [on with Sections 2.1 and 2.2 of this Article three classes, each initially composed of the second Monday of January of each V, except that the requisite action may no more than one Member Director. year (if such day is a legal holiday, then be taken as soon as practical, or (z) Each Member Director shall be elected on the next business day)] during the appointed in accordance with Sections for a term expiring at the third annual meeting of the membership, at 2.1 and 3 of this Article V. successive annual meeting of the which only Proprietary Members can (vi) On the earliest to occur of (A) the membership, or when such Director’s vote. date on which CBOE owns less than five successor is thereafter elected and (b) The Independent Directors shall be percent (5%) of the outstanding qualified, and shall be identified as selected by means of the following certificates of proprietary membership being of the same class as the Director process. The Nominating Committee of the Exchange or (B) the third such Director succeeds. shall select, after receipt of input from anniversary of the fourth Subsequent Notwithstanding the foregoing, in the interested parties, the candidate(s) to be Closing (the earliest of these to occur case of any new Member Director submitted to the Board for approval or being the ‘‘CBOE Withdrawal Date’’), the subject to initial election or disapproval at the first Board meeting number of positions on the Board to be appointment pursuant to Section 1(b) of following the annual membership filled by CBOE Directors shall be this Article V, such Director shall be meeting. reduced from one to zero, and the Board added to a class, as determined by the may, in its discretion, increase by one Board at the time of such Director’s [(b)] (c) The [four] CBOE Directors the number of positions to be filled by initial election or appointment, and [members or executive officers of CBOE either Independent Directors or Member shall have an initial term expiring at the member organizations] shall be elected Directors. The remaining CBOE Director same time as the term of the class to to the Board by the CBOE Board of shall be deemed to have resigned from which such Director has been added. In Directors at their January meeting or as the Board as of the CBOE Withdrawal no case will any Member Director be soon thereafter as possible. Date. Following the CBOE Withdrawal added to a class that is already [(c) The three Public Directors shall be Date, a new Director may be either (as composed of two Member Directors selected by means of the following determined by the Board) (y) elected or [years or until a successor is elected and process. The Exchange’s Chairman shall appointed in accordance with Sections qualified]. submit a name or names of a 2.1 and 2.2 of this Article V, except that (c) The Independent Directors shall be candidate(s) to the Nominating the requisite action may be taken as divided into three classes, each initially Committee. The Nominating Committee soon as practical, or (z) appointed in composed of no more than two shall approve the candidate(s) to be accordance with Sections 2.1 and 3 of Independent Directors. Each submitted to the Board for approval or this Article V. Independent Director shall be selected disapproval at the first Board meeting (vii) ‘‘Subsequent Closing’’ has the for a term expiring at the third following the annual membership meaning given to it in the Termination successive annual meeting of the meeting.] of Rights Agreement between CBOE and membership or when such Director’s * * * * * the Exchange dated as of September 27, successor is thereafter elected and 2004. qualified, and shall be identified as ARTICLE VI. Committees [1.2. Term being of the same class as the Director Notwithstanding Paragraphs 1.1 and such Director succeeds. Section 1. Establishment of Committees 2.1 and 2.2 below, from the effective Notwithstanding the foregoing, in the * * * * * date of this provision of these By-Laws case of any new Independent Director 1.4. Selection of Members to the first Board of Directors meeting subject to initial selection or after the annual election meeting in appointment pursuant to Section 1(b) of The membership of such committees 1988, 1989 or 1990, as appropriate, the this Article V, such Director shall be shall be chosen in such a way as to initial terms of the Exchange Directors added to a class, as determined by the assure fair representation of the public shall be as follows: Board at the time of such Director’s and, as appropriate, all classes of Public Director—1990 initial selection or appointment, and members in the administration of the Public Director—1989 shall have an initial term expiring at the Exchange. Each committee shall be Public Director—1988 same time as the term of the class to comprised of at least three persons President of the Exchange—1988 which such Director has been added. [members, at least one of whom shall be Designated Dealer Director—1990 [(b)] (d) The term of a CBOE Director a member of the Board, except that all Designated Dealer Director—1989 shall be one year or until a successor is members of the Executive Committee, if At-Large Director—1988 elected and qualified. any, shall be members of the Board]. Chairman of CBOE—1988 2.2. Candidate Selection * * * * *
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Section 3. Special Provisions Relating to certain rights associated with NSX, in As a result of the relinquishment of Certain Committees exchange for certain cash payments and the three NSX Board positions by CBOE 3.1. Securities Committee other undertakings by NSX, subject to and in anticipation of future [(a) The Securities Committee shall the terms and conditions set forth in a relinquishments of NSX Board positions have as members at least one termination of rights agreement entered pursuant to the terms of the Proprietary Member with a certificate into between NSX and CBOE on Termination Agreement, revisions to the and at least one representative of issuers September 27, 2004 (the ‘‘Termination NSX By-Laws are necessary to describe and investors who is not associated with Agreement’’). changes to the composition of the Board a member or a broker or dealer. One of the conditions to the initial respecting those positions. The Notwithstanding anything in these By- closing of the Termination Agreement Exchange is also proposing additional Laws to the contrary, from the effective called for amendments to the NSX By- revisions to its Board composition date of this provision of these By-Laws Laws to eliminate the right of CBOE requirements to include a new category to the first Board meeting in 1989, the members to become NSX members of directors known as ‘‘Independent members of the Securities Committee without purchasing membership Directors.’’ This category will replace shall be those members appointed to the certificates, and thus the elimination of the current ‘‘Public Directors’’ category. Committee as of the effective date of this the ‘‘CBOE Exerciser Member’’ The Exchange is also proposing to provision of the By-Laws. membership class,6 the elimination of provide a transition schedule for making (b)] The Securities Committee shall the Exchange’s Special Nominating a majority of its thirteen member Board have the authority to adopt operating Committee, and the removal of certain be Independent Directors. These procedures necessary and appropriate special limitations on changes to certain independence-related revisions are for the Exchange’s automated interface By-Laws and Rules. These changes were being proposed to comport with with the Intermarket Trading System approved by the Commission on January industry trends and in anticipation of (ITS). The Securities Committee also 13, 2005.7 governance requirements that the may delegate its authority in Rule 11.9 On January 18, 2005, the initial Commission may be imposing upon to approve Designated Dealers and closing under the Termination self-regulatory organizations.8 Various Designated Issues to an officer of the Agreement took place. As part of that other related changes to the composition Exchange. closing, NSX paid CBOE cash of the Board and its committees, which * * * * * consideration in exchange for the are described below, are also being relinquishment of three of CBOE’s six proposed. The specific changes being II. Self-Regulatory Organization’s NSX Board positions and other rights, as proposed are described below. Statement of the Purpose of, and well as the transfer of a number Statutory Basis for, the Proposed Rule a. Board Composition, Terms and certificates of proprietary membership Candidate Selection Change to the Exchange. The Termination Immediately preceding the initial In its filing with the Commission, the Agreement also anticipates subsequent closing date under the Termination Exchange included statements closings or events whereby NSX shall Agreement, the Board consisted of concerning the purpose of, and basis for, pay CBOE cash and/or other thirteen Directors: (A) The NSX the proposal and discussed any consideration in exchange for the President; (B) two Designated Dealer comments it received on the proposed relinquishment of the remainder of rule change, as amended. The text of Directors; (C) an At-Large Member CBOE’s three NSX Board positions and Director; (D) the CBOE Chairman, the these statements may be examined at other rights, as well as the transfer of the places specified in Item IV below. CBOE President and four CBOE Member additional certificates of proprietary Directors (collectively referred to as the The Exchange has prepared summaries, membership to the Exchange. set forth in Sections A, B, and C below, six ‘‘CBOE Directors’’); and (E) three 9 of the most significant aspects of such Public Directors. The composition of 6 As part of the 1986 affiliation agreement the Board is proposed to be revised to statements. between the Exchange and CBOE, the Exchange’s By-Laws had been amended to provide that CBOE consist of the following Directors: the A. Self-Regulatory Organization’s members were eligible to become Proprietary NSX Chief Executive Officer; three Statement of the Purpose of, and Members of NSX without having to purchase and Member Directors; six Independent Statutory Basis for, the Proposed Rule own a certificate of proprietary membership, Directors; and three CBOE Directors. Change provided that each such CBOE member met all In sum, the Exchange is proposing to: other eligibility requirements for NSX membership. (A) Change the position reserved for the 1. Purpose This class of NSX membership was known as ‘‘Proprietary Members without certificates’’ and President of the Exchange in favor of the On November 14, 1986, NSX and these NSX members were commonly referred to as CBOE entered into an agreement of ‘‘CBOE Exerciser Members.’’ 8 To the extent that the proposed rule change, as affiliation pursuant to which CBOE held 7 In eliminating the ‘‘CBOE Exerciser Member’’ amended, runs counter to the Commission’s recent 162 certificates of proprietary class of membership, a ninety day transition period governance and transparency proposals, Securities was provided for whereby any CBOE Exerciser Exchange Act Release No. 50699 (November 18, membership in NSX, and CBOE and its Members existing on the effective date, January 13, 2004), 69 CFR 71125 (December 8, 2004), NSX members had certain rights associated 2005 (the ‘‘Effective Date’’), will have ninety days represents that upon adoption of final rulemaking with NSX.5 NSX and CBOE have from the Effective Date (which is April 13, 2005) to it will conform its By-laws accordingly. Telephone purchase a certificate of proprietary membership. conversation among Jennifer M. Lamie, Assistant recently taken steps to terminate or During the ninety day period, a CBOE Exerciser General Counsel & Secretary, NSX and Geraldine amend certain aspects of their affiliation Member who has not purchased a certificate shall Idrizi, Attorney, Division of Market Regulation, and, in connection therewith, CBOE has have the rights and obligations of a Proprietary Commission, on May 23, 2005. agreed to transfer certain of its Member without certificate as those rights and 9 The current members of the Board are David obligations existed prior to the Effective Date. At Colker (NSX President); Peter B. Madoff and certificates to NSX and to relinquish the conclusion of the ninety day period, any CBOE Cameron Smith (Designated Dealer Directors); Exerciser Member who does not own a certificate Antoine C. Kemper, Jr. (At-Large Member Director); 5 See Securities Exchange Act Release No. 24090 shall automatically cease to qualify for membership James M. Anderson, J. Carter Beese and Donald L. (February 12, 1987), 52 FR 5225 (February 19, on the Exchange and may not again become a Calvin (Public Directors); and William J. Brodsky, 1987)(order approving proposed rule change by the member of the Exchange without first complying Mark F. Duffy and Gary P. Lahey (CBOE Directors). Cincinnati Stock Exchange relating to an affiliation with all the procedures and requirements set forth As discussed elsewhere, there are also three vacant with CBOE). in the NSX By-Laws and Rules. CBOE Director positions.
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NSX’s Chief Executive Officer;10 (B) annual membership meeting; or (ii) combine the two Designated Dealer and appointed in accordance with proposed b. Subsequent Changes in Board one At-Large Member positions into a Section 2.1 of the NSX By-Laws and the Composition single ‘‘Member Director’’ category, procedures for filling intraterm which would be defined in proposed vacancies set out in Section 3 of Article The Termination Agreement Article V, Section 1(a)(ii) of the NSX By- V of the NSX By-Laws (collectively anticipates subsequent closings or Laws as ‘‘Proprietary Members or referred to hereinafter as the ‘‘New events whereby NSX shall pay CBOE cash and/or other consideration in executive officers of Proprietary Director Selection Procedures’’). The exchange for the relinquishment of the Member organizations;’’ (C) eliminate initial terms of the three new 11 reminder of CBOE’s three NSX Board the existing Public Director category Independent Directors shall be staggered in favor of an ‘‘Independent Director’’ positions and other rights, as well as the to expire at the same times as the category, which would be defined in transfer of additional certificates of current terms of the three existing proposed Article I, Section 1(k) of the proprietary membership to the NSX By-Laws as ‘‘a member of the Independent Directors in accordance Exchange. The Exchange is therefore Board that the Board has determined to with proposed Article V, Section 2.1(c) proposing to adopt additional have no material relationship with the of the NSX By-Laws. provisions to accommodate the resultant Exchange or any affiliate of the The terms of office for the four changes in composition to the Board Exchange, any member of the Exchange categories of Director described in that would occur upon such closing(s) or any affiliate of any such member, Article V, Section 2.1 of the NSX By- and in order to achieve a majority of other than as a member of the Board’’ Laws will remain for the most part Independent Directors serving on the and increased from three to six unchanged. The Chief Executive Board should there be no subsequent positions; and (D) combine the CBOE Officer’s board term shall expire when closings. These provisions will be Chairman, CBOE President and CBOE such individual ceases to be Chief reflected in proposed Article V, Section Member Director categories into a single Executive Officer, each Member Director 1(b) of the NSX By-Laws and would ‘‘CBOE Director’’ category, which would provide: and Independent Director will be • be defined in proposed Article V, appointed for a three-year term or until On the date of the first ‘‘Subsequent Closing’’13 to occur after January 18, Section 1(a)(iv) of the NSX By-Laws as a successor is thereafter elected and 2005, the number of positions on the ‘‘executive officers of CBOE, CBOE qualified, and each CBOE Director will Board to be filled by CBOE Directors members or executive officers of CBOE be appointed for a one-year term or until member organizations’’ and decreased shall be reduced from three to two and a successor is elected and qualified. from six to three positions. the number of positions to be filled by Modifications to provisions regarding Corresponding references throughout Independent Directors shall be the NSX By-Laws are proposed to be Directors’ terms of office are, however, increased from six to seven. Following amended accordingly. being proposed to add procedures to the first Subsequent Closing, a new The ten Directors now serving on the account for when new Member Independent Director shall be selected, Board shall remain and their current Directors’ and new Independent as determined by the Board, pursuant to terms shall continue unchanged.12 As Directors’ initial terms would begin. the New Director Section Procedures. determined by the Board, the three new The candidate selection process • If no Subsequent Closing has Independent Directors (who will be described in Article V, Section 2.2 of the occurred prior to February 15, 2006, replacing the three CBOE Director NSX By-Laws will be modified as then in order to achieve a majority of positions that were vacated as part of follows. The procedures for the election Independent Directors serving on the the initial closing) will be either (i) of Member Director candidates are Board, the Board may, in its discretion, selected in accordance with the proposed to be modified to clarify the add up to two new Independent applicable candidate selection processes language and existing Exchange practice Directors and thereby increase the set out in proposed Sections 2.1 and 2.2 that the annual election, at which number of Directors serving on the Board from thirteen to not more than of Article V of the NSX By-Laws Proprietary Members vote for the (described below), except that each fifteen. In such event, the two new candidate(s), occurs during the annual candidate will be submitted by the Independent Directors shall be selected, meeting of the membership, which Nominating Committee to the Board for as determined by the Board, pursuant to approval or disapproval as soon as occurs in January in accordance with the New Director Selection Procedures. practical rather than following the Article II, Section 10.1 of the NSX By- • On the date of the second Laws. Reference to the procedures for Subsequent Closing to occur after 10 The President and Chief Executive Officer are the selection of Public Directors will be January 18, 2005, the number of currently the same person. deleted and the proposed procedures for positions on the Board to be filled by 11 ‘‘Public Directors’’ are defined as the selection of Independent Directors CBOE Directors will be reduced from ‘‘representatives of issuers and investors who shall will be added to provide that the not be associated with any member of the Exchange two to one, and the Board may, in its or with any registered broker or dealer or with Nominating Committee shall select, discretion, increase by one the number another self-regulatory organization, other than as a after receipt of input from interested of positions to be filled by either public trustee or director[.]’’ Article V, Section parties, the candidate(s) to be submitted Independent Directors or Member 1.1(g) of the NSX By-Laws. 12 The members of the Board immediately to the Board for approval or disapproval Directors. Following the second following approved of the proposed revisions will at the first Board meeting following the Subsequent Closing, a new Director may be David Colker (NSX Chief Executive Officer); annual membership meeting. The CBOE be selected, as determined by the Board, Antoine J. Kemper, Jr., Peter B. Madoff and Directors shall continue to be elected to pursuant to the New Director Selection Cameron Smith (Member Directors); James M. Anderson, J. Carter Beese and Donald L. Calvin the NSX Board by the CBOE’s board of Procedures. (Independent Directors); and William J. Brodsky, directors at their January meeting or as Mark F. Duffy and Gary P. Lahey (CBOE Directors). soon thereafter as possible. 13 ‘‘Subsequent Closing’’ would be defined in There will also be three new Independent Directors proposed Article V, Section 1(b)(vii) of the NSX By- selected in accordance with Article V, Section 2.2 Laws to have meaning given to it in the of the NSX By-Laws. Termination Agreement.
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• On the earliest to occur of (A) the 2. Statutory Basis Electronic Comments date on which CBOE owns less than five • percent (5%) of the outstanding The Exchange believes the proposed Use the Commission’s Internet certificates of proprietary membership rule change, as amended, is consistent comment form (http://www.sec.gov/ with Section 6(b) of the Act14 of the Exchange or (B) the third in general, rules/sro.shtml); or and furthers the objectives of Section anniversary of the fourth Subsequent • Send an e-mail to rule- 6(b)(5)15 in particular, in that it is Closing (the earliest of these to occur designed to promote just and equitable [email protected]. Please include File being the ‘‘CBOE Withdrawal Date’’), principles of trade and to remove Number SR–NSX–2005–02 on the the number of positions on the Board to impediments to and perfect the subject line. be filled by CBOE Directors shall be mechanism of a free and open market reduced from one to zero, and the Board Paper Comments and a national market system and, may, in its discretion, increase by one generally, in that it protects investors • Send paper comments in triplicate the number of positions to be filled by and the public interest. The Exchange to Jonathan G. Katz, Secretary, either Independent Directors or Member believes that the proposed rule change, Securities and Exchange Commission, Directors. The remaining CBOE Director as amended, also furthers the objectives 450 Fifth Street, NW., Washington, DC shall be deemed to have resigned from of Section 6(b)(1),16 in that it helps to 20549–0609. the Board as of the CBOE Withdrawal assure that the Exchange is so organized All submissions should refer to File Date. Following the CBOE Withdrawal and has the capacity to be able to carry Number SR–NSX–2005–02. This file Date, a new Director may be selected, as out the purposes of the Act and to number should be included on the determined by the Board, pursuant to comply, and to enforce compliance by subject line if e-mail is used. To help the the New Director Selection Procedures. its members, with the Act. Commission process and review your c. Changes in Committee Composition B. Self-Regulatory Organization’s comments more efficiently, please use In order to comport with industry Statement on Burden on Competition only one method. The Commission will practice and anticipated changes in The Exchange does not believe that post all comments on the Commission’s regulatory requirements, the Exchange the proposed rule change, as amended, Internet Web site (http://www.sec.gov/ is proposing to revise the general will impose any inappropriate burden rules/sro.shtml). Copies of the composition requirements for on competition. submission, all subsequent committees contained in Article VI, amendments, all written statements Section 1.4 of the NSX By-Laws to C. Self-Regulatory Organization’s with respect to the proposed rule provide that membership of such Statement on Comments on the change, as amended, that are filed with committees shall be chosen in such a Proposed Rule Change Received from the Commission, and all written way to assure fair representation of the Members, Participants, or Others communications relating to the public and, as appropriate, all classes of No written comments were solicited proposed rule change, as amended, members. The Exchange is also or received in connection with the between the Commission and any proposing to delete references in: (i) proposed rule change, as amended. person, other than those that may be Article VI, Section 1.4 of the NSX By- withheld from the public in accordance III. Date of Effectiveness of the Laws to the requirements that at least with the provisions of 5 U.S.C. 552, will one member of each committee be a Proposed Rule Change and Timing for Commission Action be available for inspection and copying member of the Board and that all in the Commission’s Public Reference members of the Executive Committee be Within 35 days of the date of Room. Copies of such filing also will be members of the Board, and (ii) Article publication of this notice in the Federal available for inspection and copying at VI, Section 3.1 of the NSX By-Laws to Register or within such longer period (i) the principal office of NSX. All the requirements that the Securities as the Commission may designate up to comments received will be posted Committee have at least one Proprietary 90 days of such date if it finds such without change; the Commission does Member and at least one representative longer period to be appropriate and not edit personal identifying of issuers and investors who is not publishes its reasons for so finding or information from submissions. You associated with a member or a broker or (ii) as to which the Exchange consents, should submit only information that dealer, and composition requirements the Commission will: you wish to make available publicly. All that were no longer applicable after (a) By order approve such proposed submissions should refer to File 1989. rule change, as amended; or Number SR–NSX–2005–02 and should d. Definition Changes (b) institute proceedings to determine be submitted on or before June 28, 2005. whether the proposed rule change, as As indicated above, the Exchange is amended, should be disapproved. For the Commission, by the Division of proposing to adopt a definition for Market Regulation, pursuant to delegated 17 ‘‘Independent Director.’’ The Exchange IV. Solicitation of Comments authority. is also proposing to modify the Interested persons are invited to Margaret H. McFarland, definition of ‘‘CBOE member(s)’’ to submit written data, views, and Deputy Secretary. delete reference to the requirement, in arguments concerning the foregoing, [FR Doc. E5–2892 Filed 6–6–05; 8:45 am] the case of a transferable regular CBOE including whether the proposed rule BILLING CODE 8010–01–P membership that is subject to a lease change, as amended, is consistent with agreement, that the lessee and not the the Act. Comments may be submitted by lessor be deemed to the CBOE member. any of the following methods: Finally, the Exchange is proposing to reorganize the list of definitions in 14 15 U.S.C. 78f(b). alphabetical order and renumber the 15 15 U.S.C. 78f(b)(5). provisions accordingly. 16 15 U.S.C. 78f(b)(1). 17 17 CFR 200.30–3(a)(12).
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SECURITIES AND EXCHANGE summaries, set forth in Sections A, B, mechanism of a free and open market COMMISSION and C below, of the most significant and a national market system, and, in aspects of such statements. general, to protect investors and the [Release No. 34–51767; File No. SR-PCX– public interest. 2005–69] A. Self-Regulatory Organization’s Statement of the Purpose of, and B. Self-Regulatory Organization’s Self-Regulatory Organizations; Pacific Statutory Basis for, the Proposed Rule Statement on Burden on Competition Exchange, Inc.; Notice of Filing and Change Immediate Effectiveness of a Proposed The PCX does not believe that the Rule Change To Extend Until June 5, 1. Purpose proposed rule change will impose any burden on competition that is not 2006, a Pilot Program for Listing The purpose of this proposal is to Options on Selected Stocks Trading necessary or appropriate in the extend for one year the PCX’s Pilot furtherance of the purposes of the Act. Below $20 at One-Point Intervals Program. The current Pilot Program May 31, 2005. expires on June 5, 2005. The PCX notes C. Self-Regulatory Organization’s Pursuant to Section 19(b)(1) of the that Member Firms have expressed a Statement on Comments on the Securities Exchange Act of 1934 continued interest in listing additional Proposed Rule Change Received From (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 strike prices on low-priced stocks so Members, Participants, or Others notice is hereby given that on May 23, that they can provide their customers Written comments on the proposed 2005, the Pacific Exchange, Inc. (‘‘PCX’’ with greater flexibility in their rule change were neither solicited nor or ‘‘Exchange’’) filed with the Securities investment choices. For this reason, the received. and Exchange Commission Exchange proposes to extend the Pilot Program. The Exchange notes that all of III. Date of Effectiveness of the (‘‘Commission’’) the proposed rule Proposed Rule Change and Timing for change as described in Items I and II the issues eligible to be included in the Commission Action below, which Items have been prepared Pilot Program, the procedures for adding by the PCX. The PCX filed the proposal $1 strike prices, the procedures for The PCX has filed the proposed rule pursuant to Section 19(b)(3)(A) of the phasing out $2.50 strike prices, the change pursuant to Section 19(b)(3)(A) Act,3 and Rule 19b–4(f)(6) thereunder,4 prohibition against listing long-term of the Act 7 and subparagraph (f)(6) of which renders the proposal effective options (also known as ‘‘LEAPS’’) in Rule 19b–4 thereunder.8 Because the upon filing with the Commission.5 The equity option classes at $1 strike foregoing proposed rule change: (1) Commission is publishing this notice to intervals, the procedures for adding Does not significantly affect the solicit comments on the proposed rule expiration months, and the procedures protection of investors or the public change from interested persons. for deleting $1 strike prices will remain interest; (2) does not impose any the same. In support of the Exchange’s significant burden on competition; and I. Self-Regulatory Organization’s proposal to extend the Pilot Program (3) by its terms does not become Statement of the Terms of Substance of until June 5, 2006, the Exchange is operative for 30 days after the date of the Proposed Rule Change submitting to the Commission a report this filing, or such shorter time as the The PCX proposes to amend (the ‘‘Pilot Program Report’’), attached Commission may designate if consistent Commentary .04 to PCX Rule 6.4, as Exhibit 3 to the proposal, that offers with the protection of investors and the ‘‘Series of Options Open for Trading,’’ to detailed data from, and analysis of, the public interest, the proposed rule extend until June 5, 2006, its pilot Pilot Program. change has become effective pursuant to Section 19(b)(3)(A) of the Act and Rule program for listing options series on 2. Statutory Basis selected stocks trading below $20 at 19b–4(f)(6) thereunder. one-point intervals (‘‘Pilot Program’’). The PCX believes that the A proposed rule change filed under The text of the proposed rule change is continuation of $1 strike prices will Rule 19b–4(f)(6) normally does not available on the PCX’s Web site stimulate customer interest in options become operative for 30 days after the (http://www.pacificex.com), at the PCX’s overlying lower-priced stocks by date of filing. However, Rule 19b– principal office, and at the creating greater trading opportunities 4(f)(6)(iii) permits the Commission to Commission’s Public Reference Room. and flexibility. The Exchange further designate a shorter time if such action believes that continuation of $1 strike is consistent with the protection of II. Self-Regulatory Organization’s prices will provide customers with the investors and the public interest. In Statement of the Purpose of, and ability to more closely tailor investment addition, Rule 19b–4(f)(6)(iii) requires a Statutory Basis for, the Proposed Rule strategies to the precise movement of self-regulatory organization to provide Change the underlying security. For these the Commission with written notice of In its filing with the Commission, the reasons, the Exchange believes the its intent to file the proposed rule PCX included statements concerning the proposed rule change is consistent with change, along with a brief description purpose of and basis for the proposed the Act and the rules and regulations and text of the proposed rule change, at rule change and discussed any thereunder and, in particular, the least five business days prior to the date comments it received on the proposed requirements of Section 6(b) of the Act.6 of filing of the proposed rule change, or rule change. The text of these statements Specifically, the PCX believes the such shorter time as designated by the may be examined at the places specified proposed rule change is consistent with Commission. The PCX has asked the in Item IV below. The PCX has prepared the requirements under Section 6(b)(5) Commission to waive the five-day pre- of the Act that the rules of a national filling notice requirement and the 30- 1 15 U.S.C. 78s(b)(1). securities exchange be designed to day operative delay to allow the PCX to 2 17 CFR 240.19b–4. promote just and equitable principles of continue to list the same options series 3 15 U.S.C. 78s(b)(3)(A). trade, to prevent fraudulent and listed on other options exchanges and to 4 17 CFR 240.19b–4(f)(6). manipulative acts, to remove provide the public with the benefits of 5 The PCX has asked the Commission to waive the five-day pre-filing notice requirement and the 30- impediments to and perfect the day operative delay. See Rule 19b–4(f)(6)(iii), 17 7 15 U.S.C. 78s(b)(3)(A). CFR 240.19b–4(f)(6)(iii). 6 15 U.S.C. 78f(b). 8 17 CFR 240.19b–4(f)(6).
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price competition and added liquidity Electronic Comments SECURITIES AND EXCHANGE in these series. • COMMISSION The Commission waives the five-day Use the Commission’s Internet pre-filing notice requirement. In comment form (http://www.sec.gov/ [Release No. 34–51752; File No. SR–PCX– 2005–34] addition, the Commission believes that rules/sro.shtml); or waiving the 30-day operative delay is • Send an e-mail to rule- Self-Regulatory Organizations; Pacific consistent with the protection of [email protected]. Please include File Exchange, Inc.; Notice of Filing and investors and the public interest No. SR–PCX–2005–69 on the subject Immediate Effectiveness of Proposed because it will allow the Pilot Program line. Rule Change and Amendment No. 1 to continue without interruption thereto Relating to ETP Holders through June 5, 2006.9 For this reason, Paper Comments Borrowing from or Lending to Their the Commission designates that the • Customers proposal become operative on June 5, Send paper comments in triplicate 2005.10 to Jonathan G. Katz, Secretary, May 27, 2005. At any time within 60 days of the Securities and Exchange Commission, Pursuant to Section 19(b)(1) of the filing of the proposed rule change, the 450 Fifth Street, NW., Washington, DC Securities Exchange Act of 1934 Commission may summarily abrogate 20549–0609. (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 such rule change if it appears to the All submissions should refer to File notice is hereby given that on April 15, Commission that such action is No. SR–PCX–2005–69. This file number 2005, the Pacific Exchange, Inc. (‘‘PCX’’ necessary or appropriate in the public should be included on the subject line or ‘‘Exchange’’) filed with the Securities interest, for the protection of investors, if e-mail is used. To help the and Exchange Commission or otherwise in furtherance of the Commission process and review your (‘‘Commission’’) the proposed rule purposes of the Act. comments more efficiently, please use change as described in Items I and II, only one method. The Commission will which Items have been prepared by IV. Solicitation of Comments PCX. The proposed rule change has post all comments on the Commission’s Interested persons are invited to been filed by the PCX as a ‘‘non- Internet Web site (http://www.sec.gov/ submit written data, views, and controversial’’ rule change pursuant to arguments concerning the foregoing, rules/sro.shtml). Copies of the Rule 19b–4(f)(6) under the Act.3 On May including whether the proposed rule submission, all subsequent 25, 2005, the PCX filed Amendment No. change is consistent with the Act. amendments, all written statements 1 to the proposed rule change Comments may be submitted by any of with respect to the proposed rule (‘‘Amendment No. 1’’).4 The the following methods: change that are filed with the Commission is publishing this notice to Commission, and all written solicit comments on the proposed rule 9 For purposes only of waiving the 30-day communications relating to the change, as amended, from interested operative delay, the Commission has considered the proposed rule change between the persons. proposed rule’s impact on efficiency, competition, Commission and any person, other than and capital formation. 15 U.S.C. 78c(f). I. Self-Regulatory Organization’s 10 those that may be withheld from the As set forth in the Commission’s initial Statement of the Terms of Substance of approval of the Pilot Program and in its order public in accordance with the the Proposed Rule Change extending the operation of the Pilot Program provisions of 5 U.S.C. 552, will be through June 5, 2005, if the PCX proposes to: (1) PCX, through its wholly-owned Extend the Pilot Program; (2) expand the number available for inspection and copying in of options eligible for inclusion in the Pilot the Commission’s Public Reference subsidiary PCX Equities, Inc. (‘‘PCXE’’), Program; or (3) seek permanent approval of the Pilot Room, 450 Fifth Street, NW., proposes to adopt a new rule restricting Program, it must submit a Pilot Program report to Washington, DC 20549. Copies of such registered persons of ETP Holders from the Commission along with the filing of its proposal filing will also be available for borrowing from or lending to their to extend, expand, or seek permanent approval of customers, except pursuant to the the Pilot Program. The PCX must file any such inspection and copying at the principal conditions specified in the rule. The proposal and the Pilot Program report with the office of the PCX. All comments Commission at least 60 days prior to the expiration text of the proposed rule change is set received will be posted without change; of the Pilot Program. The Pilot Program report must forth below. Proposed new language is cover the entire time the Pilot Program was in effect the Commission does not edit personal in italics. and must include: (1) Data and written analysis on identifying information from the open interest and trading volume for options (at * * * * * all strike price intervals) selected for the Pilot submissions. You should submit only Program; (2) delisted options series (for all strike information that you wish to make Rule 9.29. Borrowing From or Lending to price intervals) for all options selected for the Pilot available publicly. All submissions Customers Program; (3) an assessment of the appropriateness should refer to File No. SR–PCX–2005– of $1 strike price intervals for the options the PCX (a) No person associated with an ETP selected for the Pilot Program; (4) an assessment of 69 and should be submitted on or before Holder in any registered capacity may the impact of the Pilot Program on the capacity of June 28, 2005. borrow money from or lend money to the PCX’s, the Options Price Reporting Authority’s, and vendors’ automated systems; (5) any capacity For the Commission, by the Division of any customer of such person unless: problems or other problems that arose during the Market Regulation, pursuant to delegated (1) The ETP Holder has written operation of the Pilot Program and how the PCX authority.11 procedures allowing the borrowing and addressed them; (6) any complaints that the PCX lending of money between such received during the operation of the Pilot Program Margaret H. McFarland, and how the PCX addressed them; and (7) any Deputy Secretary. 1 additional information that would help to assess the 15 U.S.C. 78s(b)(1). operation of the Pilot Program. See Securities [FR Doc. E5–2893 Filed 6–6–05; 8:45 am] 2 17 CFR 240.19b–4. Exchange Act Release Nos. 48945 (June 17, 2003), BILLING CODE 8010–01–P 3 17 CFR 240.19b–4(f)(6). 68 FR 37594 (June 24, 2003) (File No. SR–PCX– 4 Amendment No. 1 revised and clarified the 2003–28) (order approving the Pilot Program statutory basis for the proposed rule change. See through June 5, 2004); and 50152 (August 5, 2004), Letter Dated May 23, 2005, from Melanie Grace, 69 FR 49931 (August 12, 2004) (File No. SR–PCX– Office of the Corporate Secretary, PCX, to Nancy 2004–61) (order approving the extension of the Pilot Sanow, Assistant Director, Division of Market Program through June 5, 2005). 11 17 CFR 200.30–3(a)(12). Regulation.
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registered persons and customers of the registered person supports, directly or more specific supervisory ETP Holder; and indirectly, to a material extent. responsibilities for, lending (2) The lending or borrowing * * * * * arrangements between registered arrangement meets one of the following persons and their customers. ETP conditions: II. Self-Regulatory Organization’s Holders could choose to permit their (A) the customer is a member of such Statement of the Purpose of, and registered persons to borrow from or person’s immediate family; Statutory Basis for, the Proposed Rule lend to specified customers consistent (B) the customer is a financial Change with the requirements of the rule. If ETP institution regularly engaged in the In its filing with the Commission, Holders choose to permit their business of providing credit, financing, PCX included statements concerning the registered persons to engage in lending or loans, or other entity or person that purpose of and basis for the proposed arrangements with those customers, the regularly arranges or extends credit in rule change, as amended, and discussed proposed rule change would require the ordinary course of business; any comments it received on the ETP Holders to have written procedures (C) the customer and the registered proposed rule change. The text of these allowing the borrowing and lending of person are both registered persons of the statements may be examined at the money between registered persons and same ETP Holder; places specified in Item IV below. PCX customers or ETP Holders. As stated (D) the lending arrangement is based has prepared summaries, set forth in above, ETP Holders would be permitted on a personal relationship with the Sections A, B and C below, of the most to approve loans only if the loan falls customer, such that the loan would not significant aspects of such statements. within one of the five types of have been solicited, offered, or given permissible lending arrangements set had the customer and the associated A. Self-Regulatory Organization’s forth in the rule. person not maintained a relationship Statement of the Purpose of, and The proposed rule would require ETP outside of the broker/customer Statutory Basis for, the Proposed Rule Holders to pre-approve in writing three relationship; or Change out of the five types of lending (E) the lending arrangement is based 1. Purpose arrangements permitted by the rule. It on a business relationship outside of the would exempt from the rule’s notice broker/customer relationship; The purpose of the proposed rule and approval requirements lending (b) Procedures. change is to adopt a rule that prohibits arrangements involving a registered (1) ETP Holders must pre-approve in registered persons of an ETP Holder person and his/her customer that is (1) writing the lending or borrowing from borrowing money from or lending a member of his/her immediate family arrangements described in money to a customer unless each of the (as defined in the proposed rule); or (2) subparagraphs (a)(2)(C), (D), and (E) following applies: (1) The ETP Holder a financial institution regularly engaged above. has written procedures allowing such in the business of providing credit, (2) With respect to the lending or borrowing or lending arrangements; and financing, or loans (or other entity or borrowing arrangements described in (2) the borrowing or lending persons that regularly arranges or subparagraph (a)(2)(A) above, an ETP arrangement falls within one of five extends credit in the ordinary course of Holder’s written procedures may permissible types of lending business), provided the loan has been 5 indicate that registered persons are not arrangements. In certain cases, the ETP made on commercial terms that the required to notify the ETP Holder, or Holder must also pre-approve the loan customer generally makes available to receive ETP Holder approval either prior in writing. The five types of permissible members of the general public similarly to or subsequent to entering into such lending arrangements are: situated as to need, purpose, and lending or borrowing arrangements. (i) The customer is a member of the creditworthiness. PCX believes the (3) With respect to the lending or registered person’s immediate family (as requirement in the proposed rule that borrowing arrangements described in defined in the proposed rule); certain types of lending and borrowing subparagraph (a)(2)(B) above, an ETP (ii) The customer is a financial institution arrangements must be pre-approved by Holder’s written procedures may regularly engaged in the business of the ETP Holder would enhance the ETP providing credit, financing, or loans, or other indicate that registered persons are not Holder’s ability to supervise such required to notify the ETP Holder or entity or person that regularly arranges or extends credit in the ordinary course of lending and borrowing activities of receive their approval either prior to or business; registered personnel. subsequent to entering into such lending (iii) The customer and the registered PCX also believes that the proposed or borrowing arrangements, provided person are both registered persons of the rule change would enhance PCX’s that the loan has been made on same ETP Holder; ability to monitor loans between commercial terms that the customer (iv) The lending arrangement is based on registered persons and their customers. generally makes available to members of a personal relationship outside of the broker- Currently, under controlling the public similarly situated as to need, customer relationship; or Commission decisions, to bring a (v) The lending arrangement is based on a purpose, and creditworthiness. For business relationship outside of the broker- disciplinary action against a registered purposes of this subparagraph, the ETP customer relationship. person who has entered into an Holder may rely on the registered unethical lending arrangement with a person’s representation that the terms of The proposed rule change establishes customer, PCX generally must prove the loan meet the above-described a regulatory framework that would give that the arrangement is inconsistent standards. ETP Holders greater control over, and with just and equitable principles of (c) The term immediate family shall trade because the registered person has 5 The proposed rule is substantially similar to include parents, grandparents, mother- NASD Rule 2370. See Securities Exchange Act acted in bad faith or unethically. This in-law or father-in-law, husband or wife, Release No. 48242 (August 29, 2003), 68 FR 52806 can be difficult to prove in cases in brother or sister, brother-in-law or sister- (September 5, 2003). NASD Rule 2370 was which the customer is unable or in-law, son-in-law or daughter-in-law, amended in Securities Exchange Act Release No. unavailable to testify, or refuses to 49269 (February 18, 2004), 69 FR 8718 (February children, grandchildren, cousin, aunt or 25, 2004). See also Securities Exchange Act Release testify because he or she is relying on uncle, or niece or nephew, and shall No. 50874 (December 16, 2004), 69 FR 76803 the registered person for financial also include any other person whom the (December 22, 2004) (SR–CBOE–2004–66). advice. The proposed rule change
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would better enable PCX to monitor and C. Self-Regulatory Organization’s those that have been approved. For bring disciplinary actions in cases Statement on Comments on the these reasons, the Commission involving such loans. Proposed Rule Change Received from designates that the proposed rule PCX notes that the safeguards Members, Participants, or Others change has become effective and provided under the proposed rule, Written comments on the proposed operative immediately. including bringing disciplinary actions rule change were neither solicited nor IV. Solicitation of Comments for violations of the rule, are in addition received. Interested persons are invited to to the general powers that PCX has to III. Date of Effectiveness of the bring disciplinary actions against a submit written data, views, and Proposed Rule Change and Timing for arguments concerning the foregoing, registered person who has entered into Commission Action including whether the proposed rule an unethical lending arrangement with PCX has stated that the foregoing change, as amended, is consistent with a customer. It is also important to note proposed rule change has become the Act. Comments may be submitted by that this proposal does not change the effective pursuant to Section any of the following methods: applications of Regulation T to lending 19(b)(3)(A)(iii) of the Act 8 and Rule activities by associated persons. 19b–4(f)(6) 9 thereunder because the Electronic Comments Specifically, the definition of ‘‘creditor’’ proposed rule change: (i) Does not • Use the Commission’s Internet under Regulation T extends to significantly affect the protection of comment form (http://www.sec.gov/ associated persons of broker-dealers and investors or the public interest; (ii) does rules/sro.shtml); or therefore, certain loans to customers by not impose any significant burden on • Send an e-mail to rule- associated persons may require competition; and (iii) does not become [email protected]. Please include File compliance with the provisions of operative for 30 days from the date on Number SR–PCX–2005–34 on the Regulation T. which it was filed, or such shorter time as the Commission may designate if subject line. 2. Statutory Basis consistent with the protection of Paper Comments investors and the public interest. At any For the above reasons, PCX believes • time within 60 days of the filing of such Send paper comments in triplicate that the proposed rule change would proposed rule change, the Commission to Jonathan G. Katz, Secretary, enhance competition. PCX believes that may summarily abrogate such rule Securities and Exchange Commission, the proposed rule change is consistent 450 Fifth Street, NW., Washington, DC 6 change if it appears to the Commission with Section 6(b) of the Act, in general, that such action is necessary or 20549–0609. and furthers the objectives of Section appropriate in the public interest, for All submissions should refer to File 7 6(b)(5), in particular, in that it is the protection of investors, or otherwise Number SR–PCX–2005–34. This file designed to prevent fraudulent and in furtherance of the purposes of the number should be included on the manipulative acts and practices, Act.10 The PCX provided the subject line if e-mail is used. To help the promote just and equitable principles of Commission with written notice of its Commission process and review your trade, to foster competition and to intent to file this proposed rule change comments more efficiently, please use protect investors and the public interest. at least five business days prior to the only one method. The Commission will PCX believes that the proposed rule date of filing the proposed rule change. post all comments on the Commission’s change is designed to accomplish these Pursuant to Rule 19b–4(f)(6)(iii) under Internet Web site (http://www.sec.gov/ ends by establishing a regulatory the Act,11 the proposal does not become rules/sro.shtml). Copies of the framework that will give ETP Holders operative for 30 days after the date of its submission, all subsequent greater control over lending filing, or such shorter time as the amendments, all written statements arrangements by permitting ETP Commission may designate if consistent with respect to the proposed rule Holders to permit such arrangements with the protection of investors and the change that are filed with the only if they fall within the five types of public interest. The PCX has requested Commission, and all written permissible arrangements, or, as was the that the Commission waive the 30-day communications relating to the case before the proposal of this new operative delay so that the proposed proposed rule change between the rule, prohibit such arrangements rule change will become immediately Commission and any person, other than altogether. ETP Holders that permit effective upon filing. those that may be withheld from the The Commission believes that such arrangements would be required to public in accordance with the waiving the 30-day operative delay is keep written procedures. These provisions of 5 U.S.C. 552, will be consistent with the protection of available for inspection and copying in procedures would enable both ETP investors and the public interest.12 the Commission’s Public Reference Holders and PCX to proscribe certain Accelerating the operative date will Section, 450 Fifth Street, NW., customer-broker loans and monitor allow for an immediately effective Washington, DC 20549. Copies of such those that have been approved. mechanism for proscribing certain filing also will be available for B. Self-Regulatory Organization’s customer-broker loans and monitoring inspection and copying at the principal Statement on Burden on Competition office of PCX. All comments received 8 15 U.S.C. 78s(b)(3)(A). will be posted without change; the PCX does not believe that the 9 17 CFR 240.19b–4(f)(6)(iii). Commission does not edit personal proposed rule change will impose any 10 For purposes only of calculating the 60-day abrogation period, the Commission considers the identifying information from burden on competition that is not proposed rule change to have been filed on May 25, submissions. You should submit only necessary or appropriate in furtherance 2005, when Amendment No. 1 was filed. information that you wish to make of the purposes of the Act. 11 Id. available publicly. All submissions 12 For purposes of accelerating the operative date should refer to File Number SR–PCX– of this proposal, the Commission has considered 6 15 U.S.C. 78f(b). the proposed rule’s impact on efficiency, 2005–34 and should be submitted on or 7 15 U.S.C. 78f(b)(5). competition, and capital formation. 15 U.S.C. 78c(f). before June 28, 2005.
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For the Commission, by the Division of Rule 9.29. Borrowing From or Lending to similarly situated as to need, purpose, Market Regulation, pursuant to delegated Customers and creditworthiness. For purposes of authority.13 (a) No person associated with an OTP this subparagraph, the OTP Holder or Margaret H. McFarland, Holder or OTP Firm in any registered OTP Firm may rely on the registered Deputy Secretary. capacity may borrow money from or person’s representation that the terms of [FR Doc. E5–2894 Filed 6–6–05; 8:45 am] lend money to any customer of such the loan meet the above-described BILLING CODE 8010–01–P person unless: standards. (1) The OTP Holder or OTP Firm has (c) The term immediate family shall written procedures allowing the include parents, grandparents, mother- SECURITIES AND EXCHANGE borrowing and lending of money in-law or father-in-law, husband or wife, COMMISSION between such registered persons and brother or sister, brother-in-law or sister- customers of the OTP Holder or OTP in-law, son-in-law or daughter-in-law, [Release No. 34–51751; File No. SR–PCX– Firm; and children, grandchildren, cousin, aunt or 2005–33] (2) The lending or borrowing uncle, or niece or nephew, and shall arrangement meets one of the following also include any other person whom the Self-Regulatory Organizations; Pacific conditions: registered person supports, directly or Exchange, Inc.; Notice of Filing and (A) the customer is a member of such indirectly, to a material extent. Immediate Effectiveness of Proposed person’s immediate family; * * * * * Rule Change and Amendment No. 1 (B) the customer is a financial Thereto Relating to OTP Holders and II. Self-Regulatory Organization’s institution regularly engaged in the Statement of the Purpose of, and OTP Firms Borrowing From or Lending business of providing credit, financing, to Their Customers Statutory Basis for, the Proposed Rule or loans, or other entity or person that Change May 27, 2005. regularly arranges or extends credit in the ordinary course of business; In its filing with the Commission, Pursuant to Section 19(b)(1) of the (C) the customer and the registered PCX included statements concerning the Securities Exchange Act of 1934 person are both registered persons of the purpose of and basis for the proposed (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 same OTP Holder or OTP Firm; rule change, as amended, and discussed notice is hereby given that on April 15, (D) the lending arrangement is based any comments it received on the 2005, the Pacific Exchange, Inc. (‘‘PCX’’ on a personal relationship with the proposed rule change. The text of these or ‘‘Exchange’’) filed with the Securities customer, such that the loan would not statements may be examined at the and Exchange Commission have been solicited, offered, or given places specified in Item IV below. PCX (‘‘Commission’’) the proposed rule had the customer and the associated has prepared summaries, set forth in change as described in Items I and II person not maintained a relationship Sections A, B and C below, of the most below, which Items have been prepared outside of the broker/customer significant aspects of such statements. by PCX. The proposed rule change has relationship; or been filed by the PCX as a ‘‘non- A. Self-Regulatory Organization’s (E) the lending arrangement is based Statement of the Purpose of, and controversial’’ rule change pursuant to on a business relationship outside of the Rule 19b–4(f)(6) under the Act.3 On May Statutory Basis for, the Proposed Rule broker/customer relationship; Change 23, 2005, the PCX filed Amendment No. (b) Procedures. 1 to the proposed rule change (1) OTP Holders or OTP Firms must 1. Purpose (‘‘Amendment No. 1’’).4 The pre-approve in writing the lending or The purpose of the proposed rule Commission is publishing this notice to borrowing arrangements described in change is to adopt a rule that prohibits solicit comments on the proposed rule subparagraphs (a)(2)(C), (D), and (E) registered persons of an OTP Holder or change, as amended, from interested above. OTP Firm from borrowing money from persons. (2) With respect to the lending or or lending money to a customer unless I. Self-Regulatory Organization’s borrowing arrangements described in each of the following applies: (1) The Statement of the Terms of Substance of subparagraph (a)(2)(A) above, an OTP OTP Holder or OTP Firm has written the Proposed Rule Change Holder’s or OTP Firm’s written procedures allowing such borrowing or procedures may indicate that registered lending arrangements; and (2) the PCX proposes to adopt a new rule persons are not required to notify the borrowing or lending arrangement falls restricting registered persons of OTP OTP Holder or OTP Firm, or receive within one of five permissible types of Holders or OTP Firms from borrowing OTP Holder or OTP Firm approval lending arrangements.5 In certain cases, from or lending to their customers, either prior to or subsequent to entering the OTP Holder or OTP Firm must also except pursuant to the conditions into such lending or borrowing pre-approve the loan in writing. The specified in the rule. The text of the arrangements. five types of permissible lending proposed rule change is set forth below. (3) With respect to the lending or arrangements are: Proposed new language is in italics. borrowing arrangements described in (i) The customer is a member of the * * * * * subparagraph (a)(2)(B) above, an OTP Holder’s or OTP Firm’s written registered person’s immediate family (as defined in the proposed rule); 13 17 CFR 200.30–3(a)(12). procedures may indicate that registered 1 persons are not required to notify the 15 U.S.C. 78s(b)(1). 5 The proposed rule is substantially similar to 2 17 CFR 240.19b–4. OTP Holder or OTP Firm or receive their NASD Rule 2370. See Securities Exchange Act 3 17 CFR 240.19b–4(f)(6). approval either prior to or subsequent to Release No. 48242 (August 29, 2003), 68 FR 52806 4 Amendment No. 1 revised and clarified the entering into such lending or borrowing (September 5, 2003). NASD Rule 2370 was statutory basis for the proposed rule change. See arrangements, provided that the loan amended in Securities Exchange Act Release No. Letter Dated May 23, 2005, from Melanie Grace, 49269 (February 18, 2004), 69 FR 8718 (February Office of the Corporate Secretary, PCX, to Nancy has been made on commercial terms 25, 2004). See also Securities Exchange Act Release Sanow, Assistant Director, Division of Market that the customer generally makes No. 50874 (December 16, 2004), 69 FR 76803 Regulation. available to members of the public (December 22, 2004) (SR–CBOE–2004–66).
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(ii) the customer is a financial institution supervise such lending and borrowing within the five types of permissible regularly engaged in the business of activities of registered personnel. arrangements, or, as was the case before providing credit, financing, or loans, or other PCX also believes that the proposed the proposal of this new rule, prohibit entity or person that regularly arranges or rule change would enhance PCX’s such arrangements altogether. OTP extends credit in the ordinary course of ability to monitor loans between business; Holders and OTP Firms that permit (iii) the customer and the registered person registered persons and their customers. such arrangements would be required to are both registered persons of the same OTP Currently, under controlling keep written procedures. These Holder or OTP Firm; Commission decisions, to bring a procedures would enable both OTP (iv) the lending arrangement is based on a disciplinary action against a registered Holders and OTP Firms and PCX to personal relationship outside of the broker- person who has entered into an proscribe certain customer-broker loans customer relationship; or unethical lending arrangement with a and monitor those that have been (v) the lending arrangement is based on a customer, PCX generally must prove approved. business relationship outside of the broker- that the arrangement is inconsistent customer relationship. with just and equitable principles of B. Self-Regulatory Organization’s The proposed rule change establishes trade because the registered person has Statement on Burden on Competition a regulatory framework that would give acted in bad faith or unethically. This PCX does not believe that the OTP Holders and OTP Firms greater can be difficult to prove in cases in proposed rule change will impose any control over, and more specific which the customer is unable or burden on competition that is not supervisory responsibilities for, lending unavailable to testify, or refuses to necessary or appropriate in furtherance arrangements between registered testify because he or she is relying on persons and their customers. OTP the registered person for financial of the purposes of the Act. advice. The proposed rule change Holders and OTP Firms could choose to C. Self-Regulatory Organization’s would better enable PCX to monitor and permit their registered persons to Statement on Comments on the bring disciplinary actions in cases borrow from or lend to specified Proposed Rule Change Received From involving such loans. customers consistent with the Members, Participants, or Others requirements of the rule. If OTP Holders PCX notes that the safeguards provided under the proposed rule, or OTP Firms choose to permit their Written comments on the proposed including bringing disciplinary actions registered persons to engage in lending rule change were neither solicited nor for violations of the rule, are in addition arrangements with those customers, the received. to the general powers that PCX has to proposed rule change would require bring disciplinary actions against a III. Date of Effectiveness of the OTP Holders and OTP Firms to have registered person who has entered into written procedures allowing the Proposed Rule Change and Timing for an unethical lending arrangement with borrowing and lending of money Commission Action a customer. It is also important to note between registered persons and that this proposal does not change the PCX has stated that the foregoing customers or OTP Holders or OTP applications of Regulation T to lending proposed rule change has become Firms. As stated above, OTP Holders activities by associated persons. effective pursuant to Section and OTP Firms would be permitted to Specifically, the definition of ‘‘creditor’’ 19(b)(3)(A)(iii) of the Act 8 and Rule approve loans only if the loan falls under Regulation T extends to 19b–4(f)(6) 9 thereunder because the within one of the five types of associated persons of broker-dealers and proposed rule change: (i) Does not permissible lending arrangements set therefore, certain loans to customers by significantly affect the protection of forth in the rule. associated persons may require investors or the public interest; (ii) does The proposed rule would require OTP compliance with the provisions of not impose any significant burden on Holders and OTP Firms to pre-approve Regulation T. competition; and (iii) does not become in writing three out of the five types of operative for 30 days from the date on 2. Statutory Basis lending arrangements permitted by the which it was filed, or such shorter time rule. It would exempt from the rule’s For the above reasons, PCX believes as the Commission may designate if notice and approval requirements that the proposed rule change would consistent with the protection of lending arrangements involving a enhance competition. PCX believes that investors and the public interest. At any registered person and his/her customer the proposed rule change is consistent time within 60 days of the filing of such that is (1) a member of his/her 6 with Section 6(b) of the Act, in general, proposed rule change, the Commission immediate family (as defined in the and furthers the objectives of Section may summarily abrogate such rule proposed rule); or (2) a financial 7 6(b)(5), in particular, in that it is change if it appears to the Commission institution regularly engaged in the designed to prevent fraudulent and that such action is necessary or business of providing credit, financing, manipulative acts and practices, appropriate in the public interest, for or loans (or other entity or persons that promote just and equitable principles of regularly arranges or extends credit in the protection of investors, or otherwise trade, to foster competition and to in furtherance of the purposes of the the ordinary course of business), protect investors and the public interest. Act.10 The PCX provided the provided the loan has been made on PCX believes that the proposed rule Commission with written notice of its commercial terms that the customer change is designed to accomplish these intent to file this proposed rule change generally makes available to members of ends by establishing a regulatory at least five business days prior to the the general public similarly situated as framework that will give OTP Holders date of filing the proposed rule change. to need, purpose, and creditworthiness. and OTP Firms greater control over PCX believes the requirement in the lending arrangements by permitting proposed rule that certain types of OTP Holders and OTP Firms to permit 8 15 U.S.C. 78s(b)(3)(A). 9 lending and borrowing arrangements such arrangements only if they fall 17 CFR 240.19b–4(f)(6)(iii). 10 For purposes only of calculating the 60-day must be pre-approved by the OTP abrogation period, the Commission considers the Holder or OTP Firm would enhance the 6 15 U.S.C. 78f(b). proposed rule change to have been filed on May 23, OTP Holder’s and OTP Firm’s ability to 7 15 U.S.C. 78f(b)(5). 2005, when Amendment No. 1 was filed.
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Pursuant to Rule 19b–4(f)(6)(iii) under communications relating to the Commission.5 The Commission is the Act,11 the proposal does not become proposed rule change between the publishing this notice to solicit operative for 30 days after the date of its Commission and any person, other than comments on the proposed rule change filing, or such shorter time as the those that may be withheld from the from interested persons. Commission may designate if consistent public in accordance with the with the protection of investors and the provisions of 5 U.S.C. 552, will be I. Self-Regulatory Organization’s public interest. The PCX has requested available for inspection and copying in Statement of the Terms of Substance of that the Commission waive the 30-day the Commission’s Public Reference the Proposed Rule Change operative delay so that the proposed Section, 450 Fifth Street, NW., The Phlx proposes to amend rule change will become immediately Washington, DC 20549. Copies of such Commentary .05 to Phlx Rule 1012, effective upon filing. filing also will be available for The Commission believes that inspection and copying at the principal ‘‘Series of Options Open for Trading,’’ to waiving the 30-day operative delay is office of PCX. All comments received extend until June 5, 2006, its pilot consistent with the protection of will be posted without change; the program for listing options series on investors and the public interest.12 Commission does not edit personal selected stocks trading below $20 at Accelerating the operative date will identifying information from one-point intervals (‘‘Pilot Program’’). allow for an immediately effective submissions. You should submit only As set forth in Phlx Rule 1012, mechanism for proscribing certain information that you wish to make Commentary .05, the Pilot Program customer-broker loans and monitoring available publicly. All submissions allows the Phlx to list options classes those that have been approved. For should refer to File Number SR–PCX– overlying five individual stocks with these reasons, the Commission 2005–33 and should be submitted on or strike price intervals of $1.00 where, designates that the proposed rule before June 28, 2005. among other things, the underlying change has become effective and stock closes below $20 on its primary operative immediately. For the Commission, by the Division of Market Regulation, pursuant to delegated market on the day before the Phlx IV. Solicitation of Comments authority.13 selects the stock for the Pilot Program. Interested persons are invited to Margaret H. McFarland, The Phlx also may list $1 strike prices submit written data, views, and Deputy Secretary. on any options classes selected by other arguments concerning the foregoing, [FR Doc. E5–2896 Filed 6–6–05; 8:45 am] options exchanges that have adopted 6 including whether the proposed rule BILLING CODE 8010–01–P similar pilot programs. The text of the change, as amended, is consistent with proposed rule change is available on the the Act. Comments may be submitted by Phlx’s Web site (http://www.phlx.com), any of the following methods: SECURITITES AND EXCHANGE at the Phlx’s principal office, and at the COMMISSION Commission’s Public Reference Room. Electronic Comments • Use the Commission’s Internet [Release No. 34–51768; File No. SR–Phlx– comment form (http://www.sec.gov/ 2005–35] 5 The Phlx has asked the Commission to waive rules/sro.shtml); or the five-day pre-filing notice requirement and the • Send an e-mail to rule- Self-Regulatory Organizations; 30-day operative delay. See Rule 19b–4(f)(6)(iii), 17 [email protected]. Please include File Philadelphia Stock Exchange, Inc.; CFR 240.19b–4(f)(6)(iii). 6 Number SR–PCX–2005–33 on the Notice of Filing and Immediate The Commission approved the Phlx’s Pilot subject line. Program on June 11, 2003, and extended it through Effectiveness of Proposed Rule June 5, 2005. See Securities Exchange Act Release Paper Comments Change To Extend Until June 5, 2006, Nos. 48013 (June 11, 2003), 68 FR 35933 (June 17, a Pilot Program for Listing Options on • Send paper comments in triplicate 2003) (order approving File No. SR–Phlx–2002–55) Selected Stocks Trading Below $20 at (approving the Pilot Program through June 5, 2004) to Jonathan G. Katz, Secretary, One-Point Intervals (‘‘Phlx Approval Order’’); and 49801 (June 3, 2004), Securities and Exchange Commission, 69 FR 32652 (June 10, 2004) (notice of filing and 450 Fifth Street, NW., Washington, DC May 31, 2005. immediate effectiveness of File No. SR–PHLX– 20549–0609. 2004–38) (extending the Pilot Program through June Pursuant to Section 19(b)(1) of the All submissions should refer to File 5, 2005) (‘‘Phlx Pilot Extension’’). The other options Securities Exchange Act of 1934 exchanges have similar pilot programs that likewise Number SR–PCX–2005–33. This file 1 2 number should be included on the (‘‘Act’’) and Rule 19b–4 thereunder, were extended through June 5, 2005. See, e.g., subject line if e-mail is used. To help the notice is hereby given that on May 16, Securities Exchange Act Release Nos. 49813 (June 2005, the Philadelphia Stock Exchange, 4, 2004), 69 FR 33088 (June 14, 2004) (notice of Commission process and review your filing and immediate effectiveness of File No. SR– comments more efficiently, please use Inc. (‘‘Phlx’’ or ‘‘Exchange’’) filed with the Securities and Exchange Amex–2004–45) (extending the $1 strike price pilot only one method. The Commission will program of the American Stock Exchange LLC, Commission (‘‘Commission’’) the post all comments on the Commission’s through June 5, 2005); 49799 (June 3, 2004), 69 FR Internet Web site (http://www.sec.gov/ proposed rule change as described in 32542 (June 10, 2004) (notice of filing and rules/sro.shtml). Copies of the Items I and II below, which Items have immediate effectiveness of File No. SR–CBOE– submission, all subsequent been prepared by the Phlx. The Phlx 2004–34) (extending the $1 strike price pilot program of the Chicago Board Options Exchange, amendments, all written statements filed the proposal pursuant to Section 19(b)(3)(A) of the Act,3 and Rule 19b– Incorporated, through June 5, 2005); 50060 (July 22, with respect to the proposed rule 4 2004), 69 FR 45864 (July 30, 2004) (notice of filing change that are filed with the 4(f)(6) thereunder, which renders the proposal effective upon filing with the and immediate effectiveness of File No. SR–ISE– Commission, and all written 2004–26) (extending the $1 strike price pilot program of the International Securities Exchange, 13 11 Id. 17 CFR 200.30–3(a)(12). Inc., through June 5, 2005); and 50152 (August 5, 1 12 For purposes of accelerating the operative date 15 U.S.C. 78s(b)(1). 2004), 69 FR 49931 (August 12, 2004) (order of this proposal, the Commission has considered 2 17 CFR 240.19b–4. approving File No. SR–PCX–2004–61) (extending the proposed rule’s impact on efficiency, 3 15 U.S.C. 78s(b)(3)(A). the $1 strike price pilot program of the Pacific competition, and capital formation. 15 U.S.C. 78c(f). 4 17 CFR 240.19b–4(f)(6). Exchange, Inc., through June 5, 2005).
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II. Self-Regulatory Organization’s intervals, and thereafter listed $1 strike the objectives of Section 6(b)(5),11 in Statement of the Purpose of, and prices in options classes selected by particular, in that it is designed to Statutory Basis for, the Proposed Rule other options exchanges for inclusion in perfect the mechanism of a free and Change their $1 strike price pilot programs. The open market and a national market In its filing with the Commission, the Phlx currently lists 22 options classes system, to protect investors and the 8 Phlx included statements concerning with $1 strike prices. According to the public interest, and to promote just an the purpose of and basis for the Phlx, the Exchange’s ability to list equitable principles of trade. The Phlx proposed rule change and discussed any options at $1 strike price intervals believes the proposal would achieve comments it received on the proposed pursuant to the Pilot Program has given this by allowing the continued listing of rule change. The text of these statements investors the opportunity to more options at $1 strike price intervals may be examined at the places specified closely and effectively tailor their within certain parameters, thereby in Item IV below. The Phlx has prepared options investments to the price of the stimulating customer interest in options summaries, set forth in Sections A, B, underlying stock, has allowed the overlying the lowest tier of stocks and and C below, of the most significant Exchange to take advantage of creating greater trading opportunities aspects of such statements. competitive opportunities to list options and flexibility and providing customers at $1 strike prices, and has stimulated with the ability to more closely tailor A. Self-Regulatory Organization’s price competition among the options investment strategies to the precise Statement of the Purpose of, and exchanges in these options. movement of the underlying stocks. Statutory Basis for, the Proposed Rule In its notice extending the Pilot Change B. Self-Regulatory Organization’s Program through June 5, 2005, the Statement on Burden on Competition 1. Purpose Commission indicated that if the Phlx sought to extend, expand, or request The Phlx does not believe that the The purpose of the proposed rule permanent approval of the Pilot proposed rule change will impose any change is to extend the Pilot Program for Program, it would be required to inappropriate burden on competition. one year so that the Exchange may include a Pilot Program report with its continue to list options at $1 strike price C. Self-Regulatory Organization’s filing.9 The Phlx’s Pilot Program Report intervals within the parameters Statement on Comments on the (‘‘Pilot Program Report’’), included as specified in Phlx Rule 1012, Proposed Rule Change Received From Exhibit 3 to the proposal, reviews the Commentary .05. Members, Participants, or Others Because of the large number of stocks Exchange’s experience with the Pilot Program. According to the Phlx, the No written comments were either that have precipitously declined in solicited or received. price over the last four years and the Pilot Program Report clearly supports increasing number of options overlying the Exchange’s belief that extension of III. Date of Effectiveness of the this lowest tier of stocks, the the Pilot Program is proper. Among Proposed Rule Change and Timing for Commission approved the Pilot Program other things, the Phlx believes that the Commission Action and extended it through June 5, 2005.7 Pilot Program Report shows the strength The Phlx has filed the proposed rule The Exchange proposes to extend the and efficacy of the Pilot Program on the change pursuant to Section 19(b)(3)(A) Pilot Program for a period of one year, Exchange, as reflected by the increase in of the Act 12 and subparagraph (f)(6) of through June 5, 2006. The Pilot Program the percentage of $1 strikes in Rule 19b–4 thereunder.13 Because the will remain unchanged so that, under comparison to total options volume foregoing proposed rule change: (1) the terms of the Pilot Program, the Phlx traded on the Phlx (from 37.23% in the Does not significantly affect the may establish $1 strike price intervals 2004 report to 51.59% in 2005 Pilot protection of investors or the public on options classes overlying no more Program Report) and the continuing interest; (2) does not impose any than five individual stocks designated robust open interest of options traded significant burden on competition; and by the Exchange where the underlying on the Phlx at $1 strike price intervals. (3) by its terms does not become stock closes below $20 on its primary The Phlx believes that the Pilot Program operative for 30 days after the date of market on the trading day before the Report establishes that the Pilot Program this filing, or such shorter time as the Exchange selects the stock for the Pilot has not created and in the future should Commission may designate if consistent Program. Under the terms of the Pilot not create capacity problems for the with the protection of investors and the Program, the strike prices listed systems of the Exchange or the Options public interest, the proposed rule pursuant to the Pilot Program must be Price Reporting Authority (‘‘OPRA’’). In change has become effective pursuant to between $3 and $20 and may be no addition, the Pilot Program Report Section 19(b)(3)(A) of the Act and Rule more than $5 above or below the closing explains that most delistings of $1 strike 19b–4(f)(6) thereunder. price of the underlying stock on the price options series occurred to ensure A proposed rule change filed under preceding day. In addition, strike prices that the chosen $1 strike price issues Rule 19b–4(f)(6) normally does not listed pursuant to the Pilot Program may remained within the parameters of the become operative for 30 days after the not be listed within $.50 of an existing Pilot Program. date of filing. However, Rule 19b– $2.50 strike price, and $1 strike prices 2. Statutory Basis 4(f)(6)(iii) permits the Commission to are not applied to long term options designate a shorter time if such action series (‘‘LEAPS’’). Pursuant to the Pilot The Exchange believes the proposed is consistent with the protection of rule change is consistent with Section investors and the public interest. In Program, the Exchange may list $1 strike 10 prices on options classes selected by 6(b) of the Act, in general, and furthers addition, Rule 19b–4(f)(6)(iii) requires a other options exchanges for inclusion in self-regulatory organization to provide their $1 strike price pilot programs. 8 The Phlx continues to list the $1 strike prices the Commission with written notice of in the options classes that it initially chose for the In July 2003, the Phlx chose and listed Pilot Program: TYCO International, LTD (TYC), its intent to file the proposed rule five options classes with $1 strike price Micron Tech. (MU), Oracle Co. (ORQ), Brocade Comm. (UBF), and Juniper Networks (JUP). 11 15 U.S.C. 78f(b)(5). 7 See Phlx Approval Order and Phlx Pilot 9 See Phlx Pilot Extension, supra note 6. 12 15 U.S.C. 78s(b)(3)(A). Extension, supra note 6. 10 15 U.S.C. 78f(b). 13 17 CFR 240.19b–4(f)(6).
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change, along with a brief description Comments may be submitted by any of SMALL BUSINESS ADMINISTRATION and text of the proposed rule change, at the following methods: least five business days prior to the date Wisconsin District Advisory Council; of filing of the proposed rule change, or Electronic Comments Public Meeting such shorter time as designated by the • Use the Commission’s Internet Commission. The Phlx has asked the comment form (http://www.sec.gov/ The U.S. Small Business Commission to waive the five-day pre- rules/sro.shtml); or Administration, Wisconsin District filing notice requirement and the 30-day Advisory Council will be hosting its • operative delay to allow the Exchange to Send an e-mail to rule- first meeting to discuss such matters continue listing $1 strike prices without [email protected]. Please include File that may be presented by members, and a lapse in the operation of the Pilot No. SR–Phlx–2005–35 on the subject staff of the U.S. Small Business Program. line. Administration, or others present. The The Commission waives the five-day meeting will be held on Thursday, June pre-filing notice requirement. In Paper Comments 16, 2005, starting at 1:30 p.m. The addition, the Commission believes that • Send paper comments in triplicate meeting will take place at the U.S. Small waiving the 30-day operative delay is to Jonathan G. Katz, Secretary, consistent with the protection of Business Administration, Wisconsin Securities and Exchange Commission, investors and the public interest District—Milwaukee, 310 West 450 Fifth Street, NW., Washington, DC because it will permit the Pilot Program Wisconsin Avenue, Suite 400, to continue without interruption 20549–0609. Milwaukee, Wisconsin. through June 5, 2006.14 For this reason, All submissions should refer to File Anyone wishing to attend must the Commission designates that the No. SR–Phlx–2005–35. This file number contact Cindy Merrigan in writing or by proposal become operative on June 5, should be included on the subject line fax. Cindy Merrigan, Small Business 2005.15 if e-mail is used. To help the Administration, 740 Regent Street, Suite At any time within 60 days of the Commission process and review your 100, Madison, Wisconsin 53715, phone filing of the proposed rule change, the comments more efficiently, please use (608) 441–5560, fax (202) 481–0815, e- Commission may summarily abrogate only one method. The Commission will mail: [email protected]. such rule change if it appears to the post all comments on the Commission’s Commission that such action is Internet Web site (http://www.sec.gov/ Matthew K. Becker, necessary or appropriate in the public rules/sro.shtml). Copies of the Committee Management Officer. interest, for the protection of investors, submission, all subsequent [FR Doc. 05–11296 Filed 6–6–05; 8:45 am] or otherwise in furtherance of the amendments, all written statements BILLING CODE 8025–01–P purposes of the Act. with respect to the proposed rule IV. Solicitation of Comments change that are filed with the Interested persons are invited to Commission, and all written SMALL BUSINESS ADMINISTRATION submit written data, views, and communications relating to the Region III Regulatory Fairness Board; arguments concerning the foregoing, proposed rule change between the Public Federal Regulatory including whether the proposed rule Commission and any person, other than Enforcement Fairness Hearing change is consistent with the Act. those that may be withheld from the public in accordance with the 14 For purposes only of waiving the 30-day The U.S. Small Business provisions of 5 U.S.C. 552, will be Administration (SBA), Region III operative delay, the Commission has considered the available for inspection and copying in proposed rule’s impact on efficiency, competition, Regulatory Fairness Board and the SBA and capital formation. 15 U.S.C. 78c(f). the Commission’s Public Reference Office of the National Ombudsman will 15 As set forth in the Commission’s initial Room, 450 Fifth Street, NW., hold a public hearing on Friday, June approval of the Pilot Program, if the Phlx proposes Washington, DC 20549. Copies of such to: (1) Extend the Pilot Program; (2) expand the 24, 2005, starting at 9 a.m. The meeting number of options eligible for inclusion in the Pilot filing will also be available for will be held at the William J. Green Program; or (3) seek permanent approval of the Pilot inspection and copying at the principal Federal Building, Ceremonial Program, it must submit a Pilot Program report to office of the Phlx. All comments the Commission along with the filing of its proposal Courtroom, located at 76 North 6th to extend, expand, or seek permanent approval of received will be posted without change; Street, Philadelphia, PA 19106. Please the Pilot Program. The Phlx must file any such the Commission does not edit personal contact the office at (215) 580–2701, to proposal and the Pilot Program report with the identifying information from Commission at least 60 days prior to the expiration receive comments and testimony from of the Pilot Program. The Pilot Program report must submissions. You should submit only small business owners, small cover the entire time the Pilot Program was in effect information that you wish to make and must include: (1) data and written analysis on government entities, and small non- available publicly. All submissions profit organizations concerning the open interest and trading volume for options (at should refer to File No. SR–Phlx–2005– all strike price intervals) selected for the Pilot regulatory enforcement and compliance Program; (2) delisted options series (for all strike 35 and should be submitted on or before actions taken by Federal agencies. price intervals) for all options selected for the Pilot June 28, 2005. Program; (3) an assessment of the appropriateness Anyone wishing to attend or to make of $1 strike price intervals for the options the Phlx For the Commission, by the Division of a presentation must contact Ana selected for the Pilot Program; (4) an assessment of Market Regulation, pursuant to delegated Gallardo in writing or by fax, in order the impact of the Pilot Program on the capacity of authority.16 the Phlx’s, OPRA’s, and vendors’ automated to be put on the agenda. Ana Gallardo, systems; (5) any capacity problems or other Margaret H. McFarland, Business Development Specialist, SBA problems that arose during the operation of the Deputy Secretary. Pilot Program and how the Phlx addressed them; (6) Philadelphia District Office, 900 Market any complaints that the Phlx received during the [FR Doc. E5–2900 Filed 6–6–05; 8:45 am] Street, 5th Floor, Philadelphia, PA operation of the Pilot Program and how the Phlx BILLING CODE 8010–01–P 19107, phone (215) 580–2707, fax (202) addressed them; and (7) any additional information that would help to assess the operation of the Pilot 481–0193, e-mail: [email protected]. Program. See Phlx Approval Order, supra note 6. 16 17 CFR 200.30–3(a)(12).
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For more information, see our Web site at telecommunication economic and • Prevention and control of illicit www.sba.gov/ombudsman. policy issues). Members of the public drug trafficking—Facilitation aspects. Matthew K. Becker, will be admitted to the extent that • Measure to enhance maritime Committee Management Officer. seating is available, and may join in the security—Facilitation aspects. [FR Doc. 05–11295 Filed 6–6–05; 8:45 am] discussions, subject to the instructions • Measures and procedures for the BILLING CODE 8025–01–P of the Chair. Directions to the meeting location and conference bridge treatment of people rescued at sea— information may be obtained from Facilitation aspects. • DEPARTMENT OF STATE [email protected]. Ship/port interface. The International Telecommunication • [Public Notice 4869] Formalities connected with the Advisory Committee (ITAC) will meet arrival, stay and departure of ships. on Thursday, June 16, 2005 to initiate Charter for the Enterprise for the • preparation of U.S. contributions to Formalities connected with the Americas Board ITU–T Study Group 3 (Tariff and arrival, stay and departure of persons— Stowaways. Approval of a charter for advisory accounting principles including related committee: This notice is published in telecommunication economic and • Facilitation aspects of other IMO accordance with the provisions of the policy issues) and discuss other matters forms and certificates. Federal Advisory Committee Act (Pub. associated with U.S. participation in the • Technical co-operation sub- L. 92–463), and advises of the approval next Study Group 3 meeting. The programme for facilitation. of a charter for the Enterprise for the meeting will be held at the AT&T Please note that hard copies of Americas Board. Innovation Center, 1133 21st Street, documents associated with FAL 32 will Purpose of the advisory committee: Suite 210, Washington, DC 20036. not be available at this meeting. The Enterprise for the Americas Board Dated: May 25, 2005. Documents will be available in Adobe advises the Secretary of State on the Anne Jillson, Acrobat format on CD–ROM. To request negotiations of the Enterprise for the Foreign Affairs Officer, International documents, please contact Mr. David Du Americas Framework and Tropical Communications & Information Policy, Pont via e-mail at Forest Conservation Act Agreements. In Department of State. [email protected] or write to addition, the Board, in consultation [FR Doc. 05–11285 Filed 6–6–05; 8:45 am] the address provided below. with appropriate governmental and BILLING CODE 4710–09–P nongovernmental representatives, helps Members of the public may attend ensure that a suitable administering this meeting up to the seating capacity body is identified for each fund in- DEPARTMENT OF STATE of the room. Interested persons may country created under these agreements. seek information by writing to Mr. Finally, the Board reviews the programs, [Public Notice 5065] David Du Pont, Commandant (G–MSR), operations and fiscal audits of each U.S. Coast Guard Headquarters, 2100 Shipping Coordinating Committee; administering body. Second Street SW., Room 1400, Contact for information: The Bureau Notice of Meeting Washington, DC 20593–0001 or by of Oceans and International The Shipping Coordinating calling (202) 267–0971. Environmental and Scientific Affairs, Committee (SHC) will conduct an open Dated: May 24, 2005. Office of Ecology and Terrestrial meeting at 9:30 a.m. on Tuesday, June Clay Diamond, Conservation is the organization within 14, 2005, in Room 1303 of the United Executive Secretary, Shipping Coordinating the Department of State supporting this States Coast Guard Headquarters Committee, Department of State. advisory committee. For additional building, 2100 Second Street SW., [FR Doc. 05–11284 Filed 6–6–05; 8:45 am] information, contact Linda Allen, Washington, DC 20593–0001. The BILLING CODE 4710–09–P Department of State, 2201 C St., NW., primary purpose of the meeting is to Washington DC 20204, telephone (202) prepare for the thirty-second session of 647–3710. the Facilitation Committee (FAL 32) of Dated: May 16, 2005. the International Maritime Organization DEPARTMENT OF TRANSPORTATION Patricia S. Harrison, (IMO), to be held from July 4 to 8, 2005, Assistant Secretary, Bureau of Educational at IMO Headquarters in London, Office of the Secretary and Cultural Affairs, Department of State. England. Aviation Proceedings, Agreements [FR Doc. 05–11283 Filed 6–6–05; 8:45 am] The primary matters for discussion for Filed the Week Ending May 20, 2005 BILLING CODE 4710–09–P FAL 32 will include the following:. • Convention on Facilitation of International Maritime Traffic. The following Agreements were filed DEPARTMENT OF STATE • Consideration and adoption of with the Department of Transportation proposed amendments to the Annex to under the provisions of 49 U.S.C. 412 [Public Notice 5066] the Convention. and 414. Answers may be filed within • 21 days after the filing of the Announcement of Meeting of the Electronic means for the clearance of ships. application. International Telecommunication • Advisory Committee Application of the Committee’s Docket Number: OST–2005–21312. Guidelines. Date Filed: May 20, 2005. SUMMARY: The International • General review of the Convention Telecommunication Advisory including harmonization with other Parties: Members of the International Committee announces a meeting to international instruments. Air Transport Association. prepare positions for the next meeting of • Prevention and suppression of Subject: PTC2 EUR 0603 dated 26 the ITU–T Study Group 3 (Tariff and unlawful acts at sea or in port— April 2005; TC2 Within Europe accounting principles including related Facilitation aspects. Expedited Resolutions r1–r21; Minutes:
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PTC2 EUR 0604 dated 20 May 2005; Docket Number: OST–2005–21307. Preparing the form—8 hr., 37 min Intended effective date: 1 June 2005. Date Filed: May 19, 2005. Copying, assembling, and sending the Due Date for Answers, Conforming form to the IRS—1 hr., 20 min. Maria Gulczewski, Applications, or Motion to Modify Acting Program Manager, Docket Operations, Frequency of response: Annually. Scope: June 9, 2005. Estimated Total Reporting/ Alternate Federal Register Liaison. Description: Application of ASTAR Recordkeeping Burden: 675,900 hours. [FR Doc. 05–11288 Filed 6–6–05; 8:45 am] Air Cargo, Inc., requesting an OMB Number: 1545–1381. BILLING CODE 4910–62–P amendment to its certificate of public Regulation Project Number: CO–49– convenience and necessity for Route 88 Final. 725, to provide scheduled foreign air Type of Review: Extension. DEPARTMENT OF TRANSPORTATION transportation of property and mail Title: Limitations on Corporate Net between the city pair: Los Angeles, CA Operating Loss. Office of the Secretary and Mexico City, Mexico. Description: This regulation provides Notice of Applications for Certificates Maria Gulczewski, rules for the allocation of a loss of Public Convenience and Necessity Acting Program Manager, Docket Operations, corporation’s taxable income or net and Foreign Air Carrier Permits Filed Alternate Federal Register Liaison. operating loss between the periods Under Subpart B (Formerly Subpart Q) [FR Doc. 05–11287 Filed 6–6–05; 8:45 am] before and after an ownership change During the Week Ending May 20, 2005 BILLING CODE 4910–62–P under section 382 of the Code, including an election to make the The following Applications for allocation based on a closing of the Certificates of Public Convenience and books as of the change date. Necessity and Foreign Air Carrier DEPARTMENT OF THE TREASURY Respondents: Business or other for- Permits were filed under Subpart B Submission for OMB Review; profit, Individuals or households. (formerly Subpart Q) of the Department Comment Request Estimated Number of Respondents: of Transportation’s Procedural 2,000. Regulations (See 14 CFR 301.201 et. May 31, 2005. Estimated Burden Hours Respondent: seq.). The due date for Answers, The Department of Treasury has 6 minutes. Conforming Applications, or Motions to submitted the following public Frequency of response: On occasion, Modify Scope are set forth below for information collection requirement(s) to Other (when needed). each application. Following the Answer OMB for review and clearance under the Estimated Total Reporting Burden: period DOT may process the application Paperwork Reduction Act of 1995, 200 hours. by expedited procedures. Such Public Law 104–13. Copies of the OMB Number: 1545–1486. procedures may consist of the adoption submission(s) may be obtained by Regulation Project Number: REG– of a show-cause order, a tentative order, calling the Treasury Bureau Clearance 209793–95 Final. or in appropriate cases a final order Officer listed. Comments regarding this Type of Review: Extension. without further proceedings. information collection should be Title: Simplification of Entity Docket Number: OST–2005–21281. addressed to the OMB reviewer listed Classification Rules. Date Filed: May 16, 2005. Due Date and to the Treasury Department Description: These rules allow certain for Answers, Conforming Applications, Clearance Officer, Department of the unincorporated business organizations or Motion to Modify Scope: June 6, Treasury, Room 11000, 1750 to elect to be treated as corporations or 2005. Pennsylvania Avenue, NW., partnerships for federal tax purposes. Description: Application of Pacific Washington, DC 20220. The information collected on the Island Aviation, Inc., giving notice of DATES: Written comments should be election will be used to verify the intent to resume interstate/foreign received on or before July 7, 2005 to be classification of electing organizations. scheduled air transportation under 49 assured of consideration. Respondents: Business or other for- U.S.C. Section 41102. Internal Revenue Service (IRS) profit, State, Local or Tribal Docket Number: OST–2005–21286. Government. OMB Number: 1545–0094. Date Filed: May 18, 2005. Estimated Number of Respondents: 1. Due Date for Answers, Conforming Form Number: IRS Form 1041–A. Type of Review: Extension. Estimated Burden Hours Respondent: Applications, or Motion to Modify Title: U.S. Information Return-Trust 1 hour. Scope: June 8, 2005. Accumulation of Charitable Amounts. Frequency of response: Annually. Description: Application of Platinum Description: Form 1041–A is used to Estimated Total Reporting Burden: 1 Airlines, Inc., requesting a certificate of report the information required in 26 hour. public convenience and necessity U.S.C. 6034 concerning accumulation OMB Number: 1545–1641. authorizing it to engage in interstate and distribution of charitable amounts. Revenue Procedure Number: Revenue charter air transportation of persons, The data is used to verify that amounts Procedure 99–17. property and mail. for which a charitable deduction was Type of Review: Extension. Docket Number: OST–2005–21287. allowed are used for charitable Title: Mark to Market Election for Date Filed: May 18, 2005. purposes. Commodities Dealers and Securities and Due Date for Answers, Conforming Respondents: Business or other for- Commodities Traders. Applications, or Motion to Modify profit, Individuals or households. Description: The revenue procedure Scope: June 8, 2005. Estimated Number of Respondents/ prescribes the time and manner for Description: Application of Platinum Recordkeepers: 18,000. dealers in commodities and traders in Airlines, Inc., requesting a certificate of Estimated Burden Hours Respondent/ securities or commodities to elect to use public convenience and necessity Recordkeeper: the mark-to-market method of authorizing it to engage in foreign Recordkeeping—24 hr., 9 min. accounting under § 475(e) or (f) of the charter air transportation of persons, Learning about the law or the form—3 Internal Revenue Code. The collections property and mail. hr., 25 min. of information in sections 5 and 6 of this
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revenue procedure are required by the Preparing, copying, and sending the Description: The document provides IRS in order to facilitate monitoring form to the IRS—24 min. guidance under new section 965 taxpayers changing accounting methods Frequency of response: Quarterly. enacted by the American Jobs Creation resulting from making the elections Estimated Total Reporting/ Act of 2004 (P. L. 108–357). In general, under § 475(e) or (f). Recordkeeping Burden: 152,460 hours. and subject to limitations and Respondents: Business or other for- OMB Number: 1545–1763. conditions, section 965(a) provides that profit. Form Numbers: IRS Form 8302. a corporation that is a U.S. shareholder Estimated Number of Respondents/ Type of Review: Extension. of a controlled foreign corporation (CFC) Recordkeepers: 1,000. Title: Direct Deposit of Refund of $1 may elect, for one taxable year, an 85 Estimated Burden Hours Respondent/ Million or More. percent dividend received deduction Recordkeeper: 30 minutes. Description: This form is used to (DRD) with respect to certain cash request a deposit of a tax refund of $1 Frequency of response: Other (one dividends it receives from its CFCs. time). million or more directly into an account Section 965(f) provides that taxpayers Estimated Total Reporting/ at any U.S. bank or other financial may elect the application of section 965 Recordkeeping Burden: 500 hours. institution. OMB Number: 1545–1643. Respondents: Business or other for- for either the taxpayer’s last taxable year Regulation Project Number: REG– profit, Individuals or households. which begins before October 22, 2004, 209484–87 Final. Estimated Number of Respondents/ or the taxpayer’s first taxable year which Type of Review: Extension. Recordkeepers: 400. begins during the one-year period Title: Federal Insurance Contributions Estimated Burden Hours Respondent/ beginning on October 22, 2004. In Act (FCA) Taxation of Amounts Under Recordkeeper: general, a taxpayer elects to apply Employee Benefit Plans. Recordkeeping—1 hr., 40 min. section 965 to a taxable year by filing Description: This regulation provides Learning about the law or the form—30 Form 8895 with its timely-filed tax guidance as to when amounts deferred min. return (including extensions) for such under or paid from a nonqualified Preparing, copying, assembling, and tax year. If, however, a taxpayer files its deferred compensation plan are taken sending the form to the IRS—33 min. tax return for the taxable year to which into account as wages for purposes of Frequency of response: On occasion, the taxpayer intends to election section the employment taxes imposed by the Annually. 965 to apply prior to the issuance of Federal Insurance Contributions Act Estimated Total Reporting/ Form 8895, the election must be made (FICA). Section 31.3121(v)(2)–1(a)(2) Recordkeeping Burden: 988 hours. on a statement that is attached to its requires that the material terms of a plan OMB Number: 1545–1776. timely-filed tax return (including be set forth in writing. Form Numbers: IRS Form 1041–N. extensions) for such taxable year. In Respondents: Business or other for- Type of Review: Extension. addition, because the taxpayer must profit, Not-for-profit institutions. Title: U.S. Income Tax Return for establish to the satisfaction of the Estimated Number of Respondents/ Electing Alaska Native Settlement Commissioner that it has satisfied the Recordkeepers: 2,500. Trusts. conditions to take the DRD, the taxpayer Estimated Burden Hours Respondent/ Description: An Alaska Native is required under this guidance to report Recordkeeper: 5 hours. Settlement Trust (ANST) may elect specified information and provide Frequency of response: On occasion, under section 646 to have the special specified documentation. Other (once). income tax treatment of that section Estimated Total Reporting/ apply to the trust and its beneficiaries. Respondents: Business or other for- Recordkeeping Burden: 12,500 hours. This one-time election is made by filing profit. OMB Number: 1545–1759. Form 1041–N and the form is used by Estimated Number of Respondents/ Form Number: IRS Form 720X. the ANST to report its income, etc., and Recordkeepers: 25,000. Type of Review: Extension. to compute and pay any income tax. Estimated Burden Hours Respondent/ Title: Amended Quarterly Federal Form 1041–N is also used for the special Recordkeeper: 150 hours. Excise Tax Return. information reporting requirements that Description: Representatives of the apply to ANSTs. Frequency of response: Annually. motor fuel industry, statement Respondents: Business or other for- Estimated Total Reporting/ governments, and the Federal profit. Recordkeeping Burden: 3,750,000 hours. government are working to ensure Estimated Number of Respondents/ Clearance Officer: Glenn P. Kirkland, compliance with excise taxes on motor Recordkeepers: 20. fuels. This joint effort has resulted in a Estimated Burden Hours Respondent/ (202) 622–3428, Internal Revenue system to track the movement of all Recordkeeper: Service, Room 6516, 1111 Constitution Avenue, NW., Washington, DC 20224. products to and from terminals. Form Recordkeeping—22 hr., 43 min. 720–TO is an information return that Learning about the law or the form—2 OMB Reviewer: Alexander T. Hunt, will be used by terminal operators to hr., 3 min. (202) 395–7316, Office of Management report their monthly receipts and Preparing the form—3 hr., 27 min. and Budget, Room 10235, New disbursements of products. Copying, assembling, and sending the Executive Office Building, Washington, Respondents: Business or other for- form to the IRS—16 min. DC 20503. profit. Frequency of response: Annually. Lois K. Holland, Estimated Number of Respondents/ Estimated Total Reporting/ Recordkeepers: 5,500. Recordkeeping Burden: 680 hours. Treasury PRA Clearance Officer. Estimated Burden Hours Respondent/ OMB Number: 1545–1926. [FR Doc. 05–11277 Filed 6–6–05; 8:45 am] Recordkeeper: Notice Number: Notice 102132–05. BILLING CODE 4830–01–P Recordkeeping—6 hr., 13 min. Type of Review: Extension. Learning about the law or the form—18 Title: Domestic Reinvestment Plans min. and Other Guidance under Section 965.
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DEPARTMENT OF THE TREASURY establishing or governing the Frequency of response: On occasion. organization. Estimated Total Reporting Burden: Submission for OMB Review; Respondents: Business or other for- 6,203 hours. Comment Request profit. Clearance Officer: Glenn P. Kirkland, Estimated Number of Respondents: Internal Revenue Service, Room 6516, June 1, 2005. 50. 1111 Constitution Avenue, NW., The Department of Treasury has Estimated Burden Hours Respondent: Washington, DC 20224. (202) 622–3428. submitted the following public 3 hours. OMB Reviewer: Alexander T. Hunt, information collection requirement(s) to Frequency of response: On occasion. Office of Management and Budget, OMB for review and clearance under the Estimated Total Reporting Burden: Room 10235, New Executive Office Paperwork Reduction Act of 1995, 150 hours. Building, Washington, DC 20503. (202) Public Law 104–13. Copies of the OMB Number: 1545–1768. 395–7316. submission(s) may be obtained by Revenue Procedure Number: Revenue calling the Treasury Bureau Clearance Procedure 2002–16. Lois K. Holland, Officer listed. Comments regarding this Type of Review: Extension. Treasury PRA Clearance Officer. information collection should be Title: Optional Election to Make [FR Doc. 05–11278 Filed 6–6–05; 8:45 am] addressed to the OMB reviewer listed Monthly § 706 Allocations. BILLING CODE 4830–01–P and to the Treasury Department Description: This revenue procedure Clearance Officer, Department of the allows certain partnerships with money Treasury, Room 11000, 1750 market fund partners to make an DEPARTMENT OF THE TREASURY Pennsylvania Avenue, NW., optional election to close the Washington, DC 20220. partnership’s books on a monthly basis Internal Revenue Service DATES: Written comments should be with respect to the money market fund Open Meeting of the Area 7 Taxpayer received on or before July 7, 2005, to be partners. Advocacy Panel (Including the States assured of consideration. Respondents: Business or other for- of Alaska, California, Hawaii, and profit. Nevada) Internal Revenue Service (IRS) Estimated Number of Respondents/ OMB Number: 1545–0879. Recordkeepers: 1,000. AGENCY: Internal Revenue Service (IRS), Regulation Project Number: IA–195– Estimated Burden Hours Respondent/ Treasury. 78 Final. Recordkeeper: 30 minutes. ACTION: Notice. Type of Review: Extension. Frequency of response: Monthly, Title: Certain Returned Magazines, Other. SUMMARY: An open meeting of the Area Paperbacks or Records. Estimated Total Reporting/ 7 committee of the Taxpayer Advocacy Description: The regulations provide Recordkeeping Burden: 500 hours. Panel will be conducted in San rules relating to an exclusion from gross OMB Number: 1545–1918. Francisco, CA. The Taxpayer Advocacy income for certain returned Form Number: IRS Form 12885. Panel (TAP) is soliciting public merchandise. The regulations provide Type of Review: Extension. comments, ideas, and suggestions on that in addition to physical return of the Title: Supplement to OF–612, improving customer service at the merchandise, a written statement listing Optional Application for Federal Internal Revenue Service. The TAP will certain information may constitute Employment. use citizen input to make evidence of the return. Taxpayers who Description: Form 12885 is used as a recommendations to the Internal receive physical evidence of the return supplement to the OF–612 to provide Revenue Service. may, in lieu of retaining physical additional space for capturing work DATES: The meeting will be held evidence, retain documentary evidence history. Thursday, June 30, 2005, and Friday, of the return. Taxpayers in the trade or Respondents: Individuals or July 1, 2005. business of selling magazines, households, Federal Government. FOR FURTHER INFORMATION CONTACT: paperbacks, or records, who elect to use Estimated Number of Respondents: a certain methods of accounting are 24,823. Mary Peterson O’Brien at 1–888–912– affected. Estimated Burden Hours Respondent: 1227, or 206–220–6096. Respondents: Business or other for- 30 minutes. SUPPLEMENTARY INFORMATION: Notice is profit. Frequency of response: On occasion. hereby given pursuant to Section Estimated Number of Recordkeepers: Estimated Total Reporting Burden: 10(a)(2) of the Federal Advisory 19,500. 12,406 hours. Committee Act, 5 U.S.C. App. (1988) Estimated Burden Hours OMB Number: 1545–1921. that an open meeting of the Area 7 Recordkeeper: 25 minutes. Form Number: IRS Form 12114. Taxpayer Advocacy Panel will be held Estimated Total Reporting/ Type of Review: Extension. Thursday, June 30, 2005 from 8 am to Recordkeeping Burden: 8,125 hours. Title: Continuation Sheet for Item #16 4:30 pm Pacific Time and Friday, July OMB Number: 1545–1269. (Additional Information) OF–306, 1, 2005 from 8 am to noon Pacific Time Regulation Project Number: PS–7–90 Declaration for Federal Employment at 333 O’Farrell Street, San Francisco, Final. Description: Form 12114 is used as a CA 94102. The public is invited to make Type of Review: Extension. continuation to the OF–306 to provide oral comments. Individual comments Title: Nuclear Decommissioning Fund additional space for capturing will be limited to 5 minutes. If you Qualification Requirements. additional information. would like to have the TAP consider a Description: If a taxpayer requests, in Respondents: Individuals or written statement, please call 1–888– connection with a request for a schedule households, Federal Government. 912–1227 or 206–220–6096, or write to of ruling amounts, a ruling as to the Estimated Number of Respondents: Mary Peterson O’Brien, TAP Office, 915 classification of certain unincorporated 24,813. 2nd Avenue, MS W–406, Seattle, WA organizations, the taxpayer is required Estimated Burden Hours Respondent: 98174 or you can contact us at to submit a copy of the documents 15 minutes. www.improveirs.org. Due to limited
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space, notification of intent to Dated: June 1, 2005. requests and applications for United participate must be made with Mary Martha Curry, States Mint intellectual property Peterson O’Brien. Ms. O’Brien can be Acting Director, Taxpayer Advocacy Panel. licenses. reached at 1–888–912–1227 or 206– [FR Doc. E5–2910 Filed 6–6–05; 8:45 am] Type of Review: Extension of a 220–6096. BILLING CODE 4830–01–P currently approved collection. Affected Public: Individuals or The agenda will include the households and businesses or other-for- following: Various IRS issues. DEPARTMENT OF THE TREASURY profit. Dated: June 1, 2005. Estimated Number of Respondents: Martha Curry, United States Mint The estimated annual number of Acting Director, Taxpayer Advocacy Panel. respondents is 120 respondents. Proposed Collection; Comment Estimated Total Burden Hours: The [FR Doc. E5–2909 Filed 6–6–05; 8:45 am] Request for Application for estimated number of annual burden BILLING CODE 4830–01–P Commercial Product License and hours is 131 hours. Application for Intellectual Property Requests for Comments: Comments Use Forms submitted in response to this notice will DEPARTMENT OF THE TREASURY be summarized and/or included in the AGENCY: United States Mint (Mint). request for OMB approval. All Internal Revenue Service ACTION: Notice and request for comments will become a matter of comments. Open Meeting of the Area 3 Taxpayer public record. Comments are invited on: Advocacy Panel (Including the States SUMMARY: The Department of the (a) Whether the collection of of Florida, Georgia, Alabama, Treasury invites the general public and information is necessary for the proper Mississippi, Louisiana, Arkansas, and other Federal agencies to take this performance of the functions of the Puerto Rico) opportunity to comment on two agency, including whether the information collections, as required by information shall have practical utility; AGENCY: Internal Revenue Service (IRS), the Paperwork Reduction Act of 1995, (b) the accuracy of the agency’s estimate Treasury. Public Law 104–13 (44 U.S.C. of the burden of the collection of 3506(c)(2)(A)). Currently, the United information; (c) ways to enhance the ACTION: Notice. States Mint, a bureau of the Department quality, utility, and clarity of the of the Treasury, is soliciting comments information to be collected; (d) ways to SUMMARY: An open meeting of the Area on the United States Mint Application minimize the burden of the collection of 3 Taxpayer Advocacy Panel will be for Commercial Product License and information on respondents, including conducted (via teleconference). Application for Intellectual Property through the use of automated collection The Taxpayer Advocacy Panel is Use forms. techniques or other forms of information technology; and (e) estimates of capital soliciting public comments, ideas, and DATES: Written comments should be or start-up costs and costs of operation, suggestions on improving customer received on or before August 8, 2005 to maintenance, and purchase of services service at the Internal Revenue Service. be assured of consideration. to provide information. ADDRESSES: Direct all written comments DATES: The meeting will be held Dated: June 2, 2005. Tuesday, July 5, 2005 from 11 a.m. to 12 to Cathy Laperle, Senior Licensing Yvonne Pollard, p.m. ET. Specialist, Office of Sales and Marketing, United States Mint, 801 9th Chief, Records Management Division, United FOR FURTHER INFORMATION CONTACT: Street, NW., 5th Floor, Washington, DC States Mint. Sallie Chavez at 1–888–912–1227, or 20220; (202) 354–7519 (this is not a toll [FR Doc. 05–11269 Filed 6–6–05; 8:45 am] 954–423–7979. free number); BILLING CODE 4810–37–P SUPPLEMENTARY INFORMATION: Notice is [email protected]. hereby given pursuant to section 10(a) FOR FURTHER INFORMATION CONTACT: (2) of the Federal Advisory Committee Requests for additional information or DEPARTMENT OF VETERANS Act, 5 U.S.C. App. (1988) that an open copies of the information collection AFFAIRS meeting of the Area 3 Taxpayer package should be directed to Brenda [OMB Control No. 2900–0216] Advocacy Panel will be held Tuesday, Butler, Program Analyst, Records July 5, 2005, from 11 a.m. to 12 p.m. ET Management, United States Mint, 799 Agency Information Collection via a telephone conference call. If you 9th Street, NW., 4th Floor, Washington, Activities Under OMB Review would like to have the TAP consider a DC 20220; (202) 772–7413 (this is not a AGENCY: Veterans Benefits written statement, please call 1–888– toll-free number); Administration, Department of Veterans 912–1227 or 954–423–7979, or write [email protected]. Affairs. Sallie Chavez, TAP Office, 1000 South SUPPLEMENTARY INFORMATION: ACTION: Notice. Pine Island Rd., Suite 340, Plantation, Titles: Application for Commercial FL 33324. Due to limited conference Product License and Application for SUMMARY: In compliance with the lines, notification of intent to participate Intellectual Property Use. Paperwork Reduction Act (PRA) of 1995 in the telephone conference call meeting OMB Number: 1525–0013. (44 U.S.C. 3501–3521), this notice must be made with Sallie Chavez. Ms. Abstract: The two application forms announces that the Veterans Benefits Chavez can be reached at 1–888–912– allow individuals and entities to apply Administration (VBA), Department of 1227 or 954–423–7979, or post for permissions and licenses to use Veterans Affairs, has submitted the comments to the Web site: http:// United States Mint owned or controlled collection of information abstracted www.improveirs.org. intellectual property. below to the Office of Management and The agenda will include: Various IRS Current Actions: The United States Budget (OMB) for review and comment. issues. Mint reviews and assesses permission The PRA submission describes the
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nature of the information collection and By direction of the Secretary. An agency may not conduct or its expected cost and burden; it includes Loise Russell, sponsor, and a person is not required to the actual data collection instrument. Director, Records Management Service. respond to a collection of information unless it displays a currently valid OMB DATES: Comments must be submitted on [FR Doc. E5–2901 Filed 6–6–05; 8:45 am] control number. The Federal Register or before July 7, 2005. BILLING CODE 8320–01–P Notice with a 60-day comment period For Further Information or a Copy of soliciting comments on this collection the Submission Contact: Denise DEPARTMENT OF VETERANS of information was published on March McLamb, Records Management Service AFFAIRS 2, 2005, at pages 10168–10169. (005E3), Department of Veterans Affairs, Affected Public: Individuals or 810 Vermont Avenue, NW., [OMB Control No. 2900–New] households. Washington, DC 20420, (202) 273–8030, Estimated Annual Burden: 1,680 FAX (202) 273–5981 or e-mail: Agency Information Collection Activities Under OMB Review hours. [email protected]. Please Estimated Average Burden Per refer to ‘‘OMB Control No. 2900–0216.’’ AGENCY: Veterans Benefits Respondent: 60 minutes. Send comments and Administration, Department of Veterans Frequency of Response: One time. recommendations concerning any Affairs. Estimated Number of Respondents: 1,680. aspect of the information collection to ACTION: Notice. VA’s OMB Desk Officer, OMB Human Dated: May 26, 2005. Resources and Housing Branch, New SUMMARY: In compliance with the By direction of the Secretary: Executive Office Building, Room 10235, Paperwork Reduction Act (PRA) of 1995 Loise Russell, (44 U.S.C. 3501—3521), this notice Washington, DC 20503, (202) 395–7316. Director, Records Management Service. Please refer to ‘‘OMB Control No. 2900– announces that the Veterans Benefits [FR Doc. E5–2902 Filed 6–6–05; 8:45 am] 0216’’ in any correspondence. Administration (VBA), Department of Veterans Affairs, has submitted the BILLING CODE 8320–01–P SUPPLEMENTARY INFORMATION: collection of information abstracted Title: Application for Accrued below to the Office of Management and DEPARTMENT OF VETERANS Amounts Due a Deceased Beneficiary, Budget (OMB) for review and comment. AFFAIRS VA Form 21–601. The PRA submission describes the OMB Control Number: 2900–0216. nature of the information collection and [OMB Control No. 2900–0055] Type of Review: Revision of a its expected cost and burden; it includes the actual data collection instrument. Agency Information Collection currently approved collection. Activities Under OMB Review DATES: Abstract: The information collected Comments must be submitted on on VA Form 21–601 is used to or before July 7, 2005. AGENCY: Veterans Benefits determine claimant’s entitlement to FOR FURTHER INFORMATION OR A COPY OF Administration, Department of Veterans accrued benefits due a veteran but not THE SUBMISSION CONTACT: Denise Affairs. paid prior to the veteran’s death. Each McLamb, Records Management Service ACTION: Notice. survivor claiming a share of the accrued (005E3), Department of Veterans Affairs, SUMMARY: In compliance with the benefits must complete a separate VA 810 Vermont Avenue, NW., Paperwork Reduction Act (PRA) of 1995 Form 21–601; however, if there are no Washington, DC 20420, (202) 273–8030, (44 U.S.C. 3501–3521), this notice living survivors who are entitled on the FAX (202) 273–5981 or e-mail: announces that the Veterans Benefits basis of relationship, accrued benefits [email protected]. Please Administration (VBA), Department of may be payable as reimbursement to the refer to ‘‘OMB Control No. 2900–New.’’ Veterans Affairs, has submitted the person or persons who bore the Send comments and collection of information abstracted expenses of the veteran’s last illness and recommendations concerning any below to the Office of Management and burial expenses. aspect of the information collection to VA’s OMB Desk Officer, OMB Human Budget (OMB) for review and comment. An agency may not conduct or Resources and Housing Branch, New The PRA submission describes the sponsor, and a person is not required to Executive Office Building, Room 10235, nature of the information collection and respond to a collection of information Washington, DC 20503 (202) 395–7316. its expected cost and burden; it includes unless it displays a currently valid OMB Please refer to ‘‘OMB Control No. 2900– the actual data collection instrument. control number. The Federal Register New’’ in any correspondence. DATES: Comments must be submitted on Notice with a 60-day comment period or before July 7, 2005. soliciting comments on this collection SUPPLEMENTARY INFORMATION: FOR FURTHER INFORMATION OR A COPY OF of information was published on Title: Statement of Radiation THE SUBMISSION CONTACT: February 4, 2005, at page 6078. Exposure during Military Service, VA Denise Form 21–0783. McLamb, Records Management Service Affected Public: Individuals or OMB Control Number: 2900–New. (005E3), Department of Veterans Affairs, households and Business or other for- Type of Review: New collection. 810 Vermont Avenue, NW., profit. Abstract: VA will use the information Washington, DC 20420, (202) 273–8030 Estimated Annual Burden: 2,300 collected on VA Form 21–0783 to assist or FAX (202) 273–5981. Please refer to hours. claimants in obtaining supporting ‘‘OMB Control No. 2900–0055.’’ Send Estimated Average Burden Per documentation to substantiate their comments and recommendations Respondent: 30 minutes. claim of radiation exposure during concerning any aspect of the Frequency of Response: One time. military service and, when applicable, a information collection to VA’s Desk radiation dose assessment. The Officer, OMB Human Resources and Estimated Number of Respondents: information collected will be used to Housing Branch, New Executive Office 4,600. establish claimants’ eligibility for Building, Room 10235, Washington, DC Dated: May 26, 2005. disability benefit. 20503 (202) 395–7316. Please refer to
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‘‘OMB Control No. 2900–0055’’ in any publish notice in the Federal Register resulted from injury or a disease that correspondence. concerning each proposed collection of was incurred or aggravated during SUPPLEMENTARY INFORMATION: Title: information, including each proposed active military service: (1) Loss or Request for Determination of Loan extension of a currently approved permanent loss of use of one or both Guaranty Eligibility—Unmarried collection for which approval has feet, or hands; (2) permanent Surviving Spouses, VA Form 26–1817. expired and allow 60 days for public impairment of vision in both eyes with OMB Control Number: 2900–0055. comment in response to the notice. This a central visual acuity of 20/200 or less Type of Review: Extension of a notice solicits comments on the in the better eye with corrective glasses, currently approved collection. information needed to determine a or central visual acuity of more than 20/ Abstract: VA Form 26–1817 is claimant’s eligibility for automobile 200 if there is a field defect in which the completed by unmarried surviving allowance and adaptive equipment. peripheral field had contracted to such spouse of veterans as a formal request DATES: Written comments and an extent that the widest diameter of for a certificate of eligibility for home recommendations on the proposed visual field has an angular distance no loan benefits. An unmarried surviving collection of information should be greater than 20 degrees in the better eye. spouse may be entitled to home loan received on or before August 8, 2005. VA uses the information to determine benefits if the veteran’s death occurred ADDRESSES: Submit written comments the claimant’s eligibility for such while serving on active duty or was a on the collection of information to benefits. direct result of service-connected Nancy J. Kessinger, Veterans Benefits Affected Public: Individuals and disabilities. VA uses the data collected Administration (20M35), Department of households. to verify the veteran’s service-connected Veterans Affairs, 810 Vermont Avenue, Estimated Annual Burden: 388. death and status of the applicant as NW., Washington, DC 20420 or e-mail: Estimated Average Burden Per unmarried surviving spouse. [email protected]. Please Respondent: 15 minutes. Frequency of Response: One-time. An agency may not conduct or refer to ‘‘OMB Control No. 2900–0067’’ Estimated Number of Respondents: sponsor, and a person is not required to in any correspondence. 1,552. respond to a collection of information FOR FURTHER INFORMATION CONTACT: unless it displays a currently valid OMB Nancy J. Kessinger at (202) 273–7079 or Dated: May 26, 2005. control number. The Federal Register FAX (202) 275–5947. By direction of the Secretary. Notice with a 60-day comment period SUPPLEMENTARY INFORMATION: Under the Loise Russell, soliciting comments on this collection PRA of 1995 (Public Law 104–13; 44 Director, Records Management Service. of information was published on U.S.C. 3501—3521), Federal agencies [FR Doc. E5–2904 Filed 6–6–05; 8:45 am] January 25, 2005, at pages 3581–3582. must obtain approval from the Office of BILLING CODE 8320–01–P Affected Public: Individuals or Management and Budget (OMB) for each households. collection of information they conduct Estimated Annual Burden: 250 hours. or sponsor. This request for comment is DEPARTMENT OF VETERANS Estimated Average Burden Per being made pursuant to Section AFFAIRS Respondent: 15 minutes. Frequency of Response: On occasion. 3506(c)(2)(A) of the PRA. [OMB Control No. 2900–0458] With respect to the following Estimated Number of Respondents: collection of information, VBA invites 1,000. Proposed Information Collection comments on: (1) Whether the proposed Activity: Proposed Collection; Dated: May 26, 2005. collection of information is necessary Comment Request By direction of the Secretary. for the proper performance of VBA’s Loise Russell, functions, including whether the AGENCY: Veterans Benefits Director, Records Management Service. information will have practical utility; Administration, Department of Veterans Affairs. [FR Doc. E5–2903 Filed 6–6–05; 8:45 am] (2) the accuracy of VBA’s estimate of the ACTION: BILLING CODE 8320–01–P burden of the proposed collection of Notice. information; (3) ways to enhance the SUMMARY: quality, utility, and clarity of the The Veterans Benefits Administration (VBA), Department of DEPARTMENT OF VETERANS information to be collected; and (4) Veterans Affairs (VA), is announcing an AFFAIRS ways to minimize the burden of the collection of information on opportunity for public comment on the [OMB Control No. 2900–0067] respondents, including through the use proposed collection of certain information by the agency. Under the Proposed Information Collection of automated collection techniques or the use of other forms of information Paperwork Reduction Act (PRA) of Activity: Proposed Collection; 1995, Federal agencies are required to Comment Request technology. Title: Application for Automobile or publish notice in the Federal Register AGENCY: Veterans Benefits other Conveyance and Adaptive concerning each proposed collection of Administration, Department of Veterans Equipment (under 38 U.S.C. 3901– information, including each proposed Affairs. 3904), VA Form 21–4502. extension of a currently approved collection and allow 60 days for public ACTION: Notice. OMB Control Number: 2900–0067. Type of Review: Extension of a comment in response to the notice. This SUMMARY: The Veterans Benefits currently approved collection. notice solicits comments on the Administration (VBA), Department of Abstract: Veterans and servicepersons information needed to determine a Veterans Affairs (VA), is announcing an complete VA Form 21–4502 to apply for veteran’s child between the ages of 18 opportunity for public comment on the automobile or other conveyance and 23 years old is attending school. proposed collection of certain allowance, and reimbursement for the DATES: Written comments and information by the agency. Under the cost and installation of adaptive recommendations on the proposed Paperwork Reduction Act (PRA) of equipment. The claimants must possess collection of information should be 1995, Federal agencies are required to one of the following disabilities that received on or before August 8, 2005.
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ADDRESSES: Submit written comments By direction of the Secretary. functions, including whether the on the collection of information to Loise Russell, information will have practical utility; Nancy J. Kessinger, Veterans Benefits Director, Records Management Service. (2) the accuracy of VBA’s estimate of the Administration (20M35), Department of [FR Doc. E5–2905 Filed 6–6–05; 8:45 am] burden of the proposed collection of Veterans Affairs, 810 Vermont Avenue, BILLING CODE 8320–01–P information; (3) ways to enhance the NW., Washington, DC 20420 or e-mail: quality, utility, and clarity of the [email protected]. Please refer to information to be collected; and (4) ‘‘OMB Control No. 2900–0458’’ in any DEPARTMENT OF VETERANS ways to minimize the burden of the correspondence. AFFAIRS collection of information on respondents, including through the use [OMB Control No. 2900–0613] FOR FURTHER INFORMATION CONTACT: of automated collection techniques or Nancy J. Kessinger at (202) 273–7079 or the use of other forms of information FAX (202) 275–5947. Proposed Information Collection Activity: Proposed Collection; technology. SUPPLEMENTARY INFORMATION: Under the Comment Request Title: Recordkeeping at Flight Schools PRA of 1995 (Public Law 104–13; 44 (38 U.S.C. 21.4263 (h)(3). U.S.C. 3501—3521), Federal agencies AGENCY: Veterans Benefits OMB Control Number: 2900–0613. must obtain approval from the Office of Administration, Department of Veterans Type of Review: Extension of a Management and Budget (OMB) for each Affairs. previously approved collection. collection of information they conduct ACTION: Notice. Abstract: Flight schools are required or sponsor. This request for comment is to maintain records on students to SUMMARY: The Veterans Benefits support continued approval of their being made pursuant to Section Administration (VBA), Department of 3506(c)(2)(A) of the PRA. courses. VA uses the data collected to Veterans Affairs (VA), is announcing an determine whether the courses and With respect to the following opportunity for public comment on the students meet the requirement for flight collection of information, VBA invites proposed collection of certain training benefits and to properly pay the comments on: (1) Whether the proposed information by the agency. Under the students. collection of information is necessary Paperwork Reduction Act (PRA) of Affected Public: Business or other for- for the proper performance of VBA’s 1995, Federal agencies are required to profit, Not-for-profit institutions, and functions, including whether the publish notice in the Federal Register Federal Government. information will have practical utility; concerning each proposed collection of Estimated Annual Burden: 8600 (2) the accuracy of VBA’s estimate of the information, including each proposed hours. burden of the proposed collection of extension of a currently approved Estimated Average Burden Per information; (3) ways to enhance the collection, and allow 60 days for public Respondent: 20 minutes. quality, utility, and clarity of the comment in response to this notice. Frequency of Response: On occasion. information to be collected; and (4) This notice solicits comments on the Estimated Number of Respondents: ways to minimize the burden of the information needed to determine if 250. collection of information on courses offered by a flight school should Estimated Annual Responses: 1,800. respondents, including through the use be approved. Dated: May 26, 2005. of automated collection techniques or DATES: Written comments and By direction of the Secretary. the use of other forms of information recommendations on the proposed technology. collection of information should be Loise Russell, Title: Certification of School received on or before August 8, 2005. Director, Records Management Service. Attendance or Termination, VA Forms ADDRESSES: Submit written comments [FR Doc. E5–2906 Filed 6–6–05; 8:45 am] 21–8960 and 21–8960–1. on the collection of information to BILLING CODE 8320–01–P OMB Control Number: 2900–0458. Nancy J. Kessinger, Veterans Benefits Administration (20M35), Department of Type of Review: Extension of a DEPARTMENT OF VETERANS currently approved collection. Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420 or e-mail: AFFAIRS Abstract: Claimants complete VA [email protected]. Please refer to [OMB Control No. 2900–0061] Form 21–8960 and VA Form 21–8960– ‘‘OMB Control No. 2900–0613’’ in any 1 to certify that a child between the ages correspondence. Proposed Information Collection of 18 and 23 years old is attending Activity: Proposed Collection; FOR FURTHER INFORMATION CONTACT: school. VA uses the information Comment Request collected to determine the child’s Nancy J. Kessinger at (202) 273–7079 or continued entitlement to benefits. FAX (202) 275–5947. AGENCY: Veterans Benefits Benefits are discontinued if the child SUPPLEMENTARY INFORMATION: Under the Administration, Department of Veterans marries, or no longer attending school. PRA of 1995 (Public Law 104–13; 44 Affairs. U.S.C. 3501—3521), Federal agencies Affected Public: Individuals or ACTION: Notice. must obtain approval from the Office of households. Management and Budget (OMB) for each SUMMARY: The Veterans Benefits Estimated Annual Burden: 11,667 collection of information they conduct Administration (VBA), Department of hours. or sponsor. This request for comment is Veterans Affairs (VA), is announcing an Estimated Average Burden Per being made pursuant to Section opportunity for public comment on the Respondent: 10 minutes. 3506(c)(2)(A) of the PRA. proposed collection of certain Frequency of Response: Annually. With respect to the following information by the agency. Under the collection of information, VBA invites Paperwork Reduction Act (PRA) of Estimated Number of Respondents: comments on: (1) Whether the proposed 1995, Federal agencies are required to 70,000. collection of information is necessary publish notice in the Federal Register Dated: May 26, 2005. for the proper performance of VBA’s concerning each proposed collection of
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information, including each proposed the supplies for his or her program and [email protected]. Please refer to extension of a currently approved that the veteran does not have the ‘‘OMB Control No. 2900–0107’’ in any collection and allow 60 days for public requested item in his or her possession. correspondence. comment in response to this notice. The veteran also certifies that he or she FOR FURTHER INFORMATION CONTACT: This notice solicits comments for is not in possession of any of the Nancy J. Kessinger at (202) 273–7079 or information needed to determine supplies listed on the form. FAX (202) 275–5947. whether supplies requested for a Affected Public: Not-for-profit veteran’s rehabilitation program are institutions, individuals or households, SUPPLEMENTARY INFORMATION: Under the necessary. business or other for-profit, and farms. PRA of 1995 (Public Law 104–13; 44 Estimated Annual Burden: 1,000 U.S.C. 3501—3521), Federal agencies DATES: Written comments and must obtain approval from the Office of recommendations on the proposed hours. Estimated Average Burden Per Management and Budget (OMB) for each collection of information should be collection of information they conduct received on or before August 8, 2005. Respondent: 60 minutes. Frequency of Response: On occasion. or sponsor. This request for comment is ADDRESSES: Submit written comments Estimated Number of Respondents: being made pursuant to Section on the collection of information to 1,000. 3506(c)(2)(A) of the PRA. Nancy J. Kessinger, Veterans Benefits With respect to the following Administration (20M35), Department of Dated: May 26, 2005. collection of information, VBA invites Veterans Affairs, 810 Vermont Avenue, By direction of the Secretary: comments on: (1) Whether the proposed NW., Washington, DC 20420 or e-mail: Loise Russell, collection of information is necessary [email protected]. Please Director, Records Management Service. for the proper performance of VBA’s refer to ‘‘OMB Control No. 2900–0061’’ [FR Doc. E5–2907 Filed 6–6–05; 8:45 am] functions, including whether the in any correspondence. BILLING CODE 8320–01–P information will have practical utility; FOR FURTHER INFORMATION CONTACT: (2) the accuracy of VBA’s estimate of the Nancy J. Kessinger at (202) 273–7079 or burden of the proposed collection of FAX (202) 275–5947. DEPARTMENT OF VETERANS information; (3) ways to enhance the AFFAIRS SUPPLEMENTARY INFORMATION: Under the quality, utility, and clarity of the PRA of 1995 (Public Law 104–13; 44 [OMB Control No. 2900–0107] information to be collected; and (4) U.S.C. 3501–3521), Federal agencies ways to minimize the burden of the must obtain approval from the Office of Proposed Information Collection collection of information on Management and Budget (OMB) for each Activity: Proposed Collection; respondents, including through the use collection of information they conduct Comment Request of automated collection techniques or or sponsor. This request for comment is the use of other forms of information AGENCY: Veterans Benefits being made pursuant to Section technology. Administration, Department of Veterans 3506(c)(2)(A) of the PRA. Title: Certificate as to Assets, VA Affairs. With respect to the following Form 21–4709. collection of information, VBA invites ACTION: Notice. OMB Control Number: 2900–0107. comments on: (1) Whether the proposed Type of Review: Extension of a SUMMARY: The Veterans Benefits collection of information is necessary currently approved collection. Administration (VBA), Department of Abstract: Fiduciaries are required to for the proper performance of VBA’s Veterans Affairs (VA), is announcing an functions, including whether the complete VA Form 21–4709 to report opportunity for public comment on the investment in savings, bonds and other information will have practical utility; proposed collection of certain (2) the accuracy of VBA’s estimate of the securities that he or she received on information by the agency. Under the behalf of beneficiaries who are burden of the proposed collection of Paperwork Reduction Act (PRA) of information; (3) ways to enhance the incompetent or under legal disability. 1995, Federal agencies are required to Estate analysts employed by VA use the quality, utility, and clarity of the publish notice in the Federal Register information to be collected; and (4) data collected to verify the fiduciaries concerning each proposed collection of accounting of the beneficiary’s estate. ways to minimize the burden of the information, including each proposed Affected Public: Individuals or collection of information on extension of a currently approved households, Business or other for-profit, respondents, including through the use collection and allow 60 days for public Not-for-profit institutions, State, Local of automated collection techniques or comment in response to this notice. or Tribal Government. the use of other forms of information This notice solicits comments on the Estimated Annual Burden: 863 hours. technology. information needed to audit accountings Titles: Request for Supplies (Chapter Estimated Average Burden Per of fiduciaries. 31–Vocational Rehabilitation), VA Form Respondent: 12 minutes. 28–1905m. DATES: Written comments and Frequency of Response: Annually. OMB Control Number: 2900–0061. recommendations on the proposed Estimated Number of Respondents: Type of Review: Extension of a collection of information should be 4,316. currently approved collection. received on or before August 8, 2005. Dated: May 26, 2005. Abstract: VA Form 28–1905m is used ADDRESSES: Submit written comments to request supplies for veterans in on the collection of information to By direction of the Secretary: rehabilitation programs. The official at Nancy J. Kessinger, Veterans Benefits Loise Russell, the facility providing rehabilitation Administration (20M35), Department of Director, Records Management Service. services to the veteran completes the Veterans Affairs, 810 Vermont Avenue, [FR Doc. E5–2908 Filed 6–6–05; 8:45 am] form and certifies that the veteran needs NW., Washington, DC 20420 or e-mail: BILLING CODE 8320–01–P
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Part II
Department of Agriculture Animal Plant and Health Inspection Service
7 CFR Parts 300, 301, 305, et al. Phytosanitary Treatments; Location of Treatment Schedules and Other Requirements; Final Rule
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DEPARTMENT OF AGRICULTURE this document, we are amending 7 CFR the Office of the Federal Register for part 300, ‘‘Incorporation by Reference,’’ incorporation by reference. While Animal and Plant Health Inspection to remove the PPQ Treatment Manual incorporation by reference can save time Service from the list of materials incorporated. and space in the CFR by allowing an We are adding the portions of the PPQ agency to refer to an already published 7 CFR Parts 300, 301, 305, 318, and 319 Treatment Manual that prescribe the document rather than duplicating that treatment schedules, instructions for [Docket No. 02–019–1] material in the CFR, the process is administering the treatments, and inefficient when the document that is Phytosanitary Treatments; Location of requirements for certification of incorporated by reference is frequently Treatment Schedules and Other facilities that administer the treatments updated, as occurs with the PPQ Requirements to 7 CFR part 305, ‘‘Phytosanitary Treatment Manual. Treatments.’’ The purpose of part 305 is For example, on October 1, 2002, we AGENCY: Animal and Plant Health to provide treatment schedules and published a proposed rule in the Inspection Service, USDA. other requirements related to approved Federal Register to amend 7 CFR part ACTION: Final rule. treatments; it does not indicate whether 319 allow the importation of various treatment is required for a particular fruits and vegetables into the United SUMMARY: This final rule amends the article to be imported or moved States under specified conditions plant health regulations by adding to 7 interstate. Whether treatment is required (Docket No. 02–026–1, 67 FR 61547– CFR part 305 treatment schedules and for a commodity will continue to be 61564). In some cases, the specified related requirements that now appear in indicated in the regulations in 7 CFR conditions included treatments, which the Plant Protection and Quarantine part 301, the domestic quarantine needed to be added to the PPQ Treatment Manual and by removing the notices; part 318, the Hawaiian and Treatment Manual. Therefore, before the Plant Protection and Quarantine territorial quarantine notices; part 319, final rule could be published, the Treatment Manual from the list of the foreign quarantine notices; on a changes to the PPQ Treatment Manual material that is incorporated by permit; or by an inspector. had to be reviewed and approved by the reference into the regulations. We are One of the reasons that we are adding Office of the Federal Register, and the taking this action to simplify the process the treatment schedules and other final rule, in addition to amending part for amending treatment schedules and requirements to part 305 is to 319, also amended part 300 to show that related requirements and to more clearly distinguish the treatment schedules and revisions to the PPQ Treatment Manual distinguish between treatment-related other treatment-related requirements had been approved for incorporation by requirements and nonbinding from administrative information in the reference (Docket No. 02–026–4, 68 FR administrative information, which the PPQ Treatment Manual that has no 37904–37923, published and effective Plant Protection and Quarantine regulatory purpose. In addition to the on June 25, 2003). Including the Treatment Manual also contains. treatment provisions, the PPQ treatment provisions directly in the EFFECTIVE DATE: June 7, 2005. Treatment Manual contains useful regulations rather than incorporating information such as operational them by reference will eliminate the FOR FURTHER INFORMATION CONTACT: Ms. procedures for port inspectors, separate approval process required for Meredith C. Jones, Regulatory conversion tables, instructions for using material incorporated by reference and Coordination Specialist, PPQ, APHIS, treatment and safety equipment, and a could make new and amended 4700 River Road Unit 141, Riverdale, reference guide to commercial suppliers treatment provisions available to the MD 20737–1236; (301) 734–7467. of treatment and safety equipment. It public sooner. SUPPLEMENTARY INFORMATION: also contains copies of U.S. Coast Guard In conjunction with adding treatment Background regulations related to shipboard schedules and other requirements to fumigation, as well as other technical part 305, we are amending the The regulations in 7 CFR parts 300 to information. We believe that placing the regulations in parts 301, 318, and 319 by 399 (referred to below as the treatment schedules and other removing references to the PPQ regulations) are intended, among other requirements related to treatments in Treatment Manual and adding things, to prevent the introduction or part 305 will clearly distinguish those references to part 305. Except as spread of plant pests and noxious weeds requirements that APHIS intends to discussed below, we have not moved into or within the United States. Under enforce from other, nonbinding treatment schedules that are already in the regulations, certain plants, fruits, information. the CFR in parts 301, 318, and 319 to vegetables, and other articles must be Another reason for placing the part 305. We intend to move those treated before they may be moved into treatment schedules and other treatment schedules to part 305 in the United States or interstate. Most of requirements in part 305 is to simplify future rulemakings. the phytosanitary treatments authorized and improve the efficiency of our by the Animal and Plant Health rulemaking process for rules involving Treatment Schedules Moved to Part 305 Inspection Service (APHIS) are phytosanitary treatments. Materials that From Other Parts contained in the Plant Protection and have been incorporated by reference Sections 318.13–4a and 318.58–4a of Quarantine (PPQ) Treatment Manual. into the CFR have the same force and part 318 and § 319.56–2c of part 319 Among other things, the PPQ Treatment effect as the regulations themselves, authorize the use of quick freeze Manual contains approximately 400 without taking up what may be a large treatment for certain fruits and treatment schedules, detailed number of pages in the CFR. The Office vegetables. We have moved the instructions for administering the of the Federal Register must approve the provisions of these sections that pertain treatments, and requirements for incorporation by reference in directly to treatment to part 305. certification of facilities that administer accordance with 5 U.S.C. 552(a) and 1 Specifically, we have included in the treatments. CFR part 51. If that material is later § 305.1 a definition of the term quick Prior to this rule, the PPQ Treatment revised, and the agency wishes to have freeze that is derived from paragraph (a) Manual was incorporated by reference the revision incorporated by reference, of those sections. This definition reads: into the regulations at 7 CFR 300.1. In the revision must also be approved by ‘‘A commercially acceptable method of
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quick freezing at subzero temperatures schedules and the errors contained in (f)(3)(i) remain. We have replaced with subsequent storage and § 319.75–4. references to the PPQ Treatment Manual transportation at not higher than 20 °F. with references to part 305. Duplication of Some Treatment Methods that accomplish this are Schedules Correction of Some Treatment known as quick freezing, sharp freezing, Schedules cold pack, or frozen pack, but may be In a few cases, we are adding any equivalent commercially acceptable treatment schedules now located in We have also corrected errors freezing method.’’ We have also moved parts 301 and 318 to part 305, without, contained in treatment schedules in the to part 305 provisions from those at this time, removing the treatment PPQ Treatment Manual. Specifically, in sections regarding inspection of the schedules from parts 301 and 318. In a treatment for corn seed (treatment fruits and vegetables upon arrival. These these cases, the fruits and vegetables schedule T510–2), the temperature for provisions state that the fruits or may be moved interstate from areas steam is shown as 40 °F in the PPQ vegetables may not be removed from the within the United States that are under Treatment Manual. The correct vessel or vehicle transporting them until Federal quarantine if they are treated temperature of at least 240 °F is now an inspector has determined that they either according to treatment schedules given in part 305. A methyl bromide are in a satisfactory frozen state upon found in the PPQ Treatment Manual or treatment schedule for khapra beetle arrival (i.e., at 20 °F or below). They according to different treatment (T301–b–1–2) incorrectly stated that the further state that if the temperature of schedules found in parts 301 and 318. treatment is to be conducted at normal the fruits or vegetables in any part of a To ensure that persons referring to part atmospheric pressure. We have shipment is found to be above 20 °F at 305 find all approved treatments for corrected that treatment schedule in the time of inspection upon arrival, the these fruits and vegetables will be able part 305 to specify that the treatment is entire shipment must remain on board to find all applicable treatment to be conducted in vacuum fumigation the vessel or vehicle under such schedules in one place in the CFR, we chambers. A treatment for citrus seeds safeguards as may be prescribed by the have duplicated in part 305 the from countries where citrus canker inspector until the temperature of the treatment schedules for these fruits and exists (T511–1) specified a 0.525 shipment is below 20 °F, or the vegetables that had only been found in percent concentration of sodium shipment is transported outside the parts 301 and 318. We are leaving the hypochlorite for a chemical dip United States or its territorial waters, or treatment schedules in parts 301 and treatment, while the regulations at is otherwise disposed of to the 318 temporarily to ensure that readers § 319.37–6(e) specified a concentration satisfaction of the inspector. know they are still valid. The format of of 200 parts per million. The regulations Since the definition of quick freeze these treatment schedules in part 305 are correct, and part 305 contains the and the requirements for maintaining has, in some cases, been altered to be corrected treatment schedule. Both the this frozen state have been moved from consistent with the other schedules we regulations at § 319.56–2ii(b) and the §§ 318.13–4a, 318.58–4a, and 319.56–2c are adding to part 305. PPQ Treatment Manual stated that a to part 305, we have amended all three We are not duplicating in part 305 vapor heat treatment for mangoes from sections to state that quick freezing is any of the treatment schedules found in the Philippines (T106–d– 1) was authorized in accordance with part 305. part 319. We intend to move all the approved for all Bactrocera spp. fruit Because the Agency’s liability for treatment schedules in part 319 to part flies; in fact, it is only approved for treatment is discussed in § 305.2, we 305 in a separate rulemaking. Bactrocera occipitalis and B. have removed the paragraphs from each Removal of Some Treatment Schedules philippinensis. Part 305 contains the corrected treatment schedule. Finally, in section that pertain to treatment From the CFR liability. In addition, we have made a cold treatment schedule for pecans minor, nonsubstantive changes to those In § 319.40–7 of part 319, paragraph and hickory nuts (T107–g), the PPQ sections, such as changing ‘‘Deputy (f) set out requirements for fumigation Treatment Manual lists the temperature Administrator’’ to ‘‘Administrator’’ and with methyl bromide of logs, lumber, range within which the treatment is to redesignating paragraphs, and replacing and other unmanufactured wood be conducted as 32 °F or below; the a reference to the Caroline Islands with products. Paragraph (f) referred to correct temperature range is 0 °F or references to Palau and the Federated specific treatment schedules in the PPQ below, and part 305 contains the States of Micronesia. Treatment Manual and set out other corrected treatment schedule. Section 319.75–4 of part 319 schedules that could be used in lieu of Except to correct the errors just contained treatment schedules for the PPQ Treatment Manual schedules. discussed, part 305 retains the khapra beetle. These schedules had In lieu of treatment schedule T–404 in descriptions of treated articles, typographical errors and inconsistencies the PPQ Treatment Manual, paragraphs treatment schedules, and instructions with the treatment schedules for khapra (f)(1)(ii), (f)(2), and (f)(3)(ii) provided for for administering treatments that had beetle in the PPQ Treatment Manual. fumigation to be conducted with an been contained in the PPQ Treatment For example, a treatment schedule at initial methyl bromide concentration of Manual. In some cases, this has meant § 319.74(a)(3)(iii) indicated that methyl at least 120 grams per cubic meter with retaining schedules and administration bromide could be applied at exposure and concentration levels instructions that appear to be temperatures below 40 °F—a adequate to provide a concentration- substantively identical; the three hot temperature range that is not authorized time product of at least 1920 gram-hours water immersion treatment schedules in by the U.S. Environmental Protection calculated on the initial methyl bromide § 305.22, for example, differ only in Agency (EPA) and that would not concentration. However, this standard is wording. In other cases, we have effectively neutralize the pest. The impossible to achieve given normal retained language that may be correct schedules from the PPQ decreases in fumigant concentration and ambiguous; in vapor heat treatment Treatment Manual are now included in is therefore never used. We have, schedule T106–e, the treatment part 305, and we have removed the therefore, removed this alternative instructions state that fruit must be held treatment schedules from § 319.75–4 schedule from § 319.40–7(f)(1)(ii), (f)(2), at 114.8 °F or above for 20 minutes, and added a reference to part 305. This and (f)(3)(ii). The alternative treatment without stating whether 20 minutes is a eliminates duplication of the treatment schedules in § 319.40–7(f)(1)(i) and minimum time or the exact time for
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which that temperature must be held. and we have redesignated the section irradiation, various treatments for We are currently reviewing the concerning irradiation of imported fruits garbage, and miscellaneous. Most listed provisions of the PPQ Treatment and vegetables as § 305.31. Section treatments are identified by a Manual that we have moved into part 305.2 now lists the commodities for combination of capital letters and a ‘‘T’’ 305 in this final rule, and we may which approved treatments are (treatment) number (e.g., MB T104–a–1). amend part 305 in the future to address available. The capital letters indicate the type of issues such as those described above. If The listed commodities are alpha treatment (e.g., MB refers to methyl we undertake such amendments, we grass and handicrafts; bags, bagging bromide fumigation), and the ‘‘T’’ will do so through notice-and-comment materials, and covers; broomcorn and number (e.g., T104–a–1) refers to a rulemaking. broomcorn articles; cotton and cotton specific treatment schedule. Listed In the course of transferring the products; cut flowers and greenery; treatments that duplicate schedules in requirements for treatment facilities to equipment; fruits and vegetables; part 301 have acronymic identifiers; for part 305 from the Treatment Manual, we garbage; hay, baled; materials or example, a treatment schedule to edited the requirements to make them products that could be infested by neutralize Oriental fruit fly in fruits and more performance based, clear, and khapra beetle; miscellaneous nonfood, vegetables using fumigation with methyl concise, and to eliminate redundancy. nonfeed commodities; plants, bulbs, bromide is identified as MBOFF. (It was However, these requirements were not corms, tubers, rhizomes, and roots; not necessary to introduce acronymic changed in any substantive way. railroad cars (empty); rice straw and identifiers for listed treatments that The amended content of part 305 is hulls; seeds; ships, containers, and duplicate schedules in part 318; discussed below in general terms; surrounding area; skins (goatskins, irradiation is the only treatment for specific requirements for phytosanitary lambskins, and sheepskins); soil; which a schedule was duplicated from treatments are contained in the rule sugarcane; and wood products. The part 318, and it is identified by the portion of this document. commodities, except for fruits and generic abbreviation IR.) vegetables, are primarily arranged Amended Part 305 alphabetically by the type of Chemical Treatments Definitions commodity, followed by pests of The first section (§ 305.5) within the concern and approved treatment We are amending § 305.1 by adding subpart for chemical treatments schedules. contains requirements for facility several definitions for types of The list of fruits and vegetables is certification, treatment monitoring, and treatments and terms related to arranged first by the area of origin of the treatment procedures. One of the administering treatments. Specifically, fruit or vegetable, including specific requirements is that all chemical we are adding definitions for the foreign countries and quarantined areas applications must be administered in following terms: Autoclaving, cold in the United States. Currently, accordance with an EPA-approved treatment, forced hot air, fumigant, treatment is authorized for fruits and pesticide label and the APHIS-approved fumigation, hitchhiker pest, hot water vegetables from specific regions in 7 treatment schedule. It is possible that immersion dip, irradiation, methyl CFR parts 301, 318, and 319 or in EPA may cancel the approval for use of bromide, phosphine, quick freeze, departmental permits issued in Section 18 of Federal Insecticide, accordance with 7 CFR part 319. a pesticide on a commodity before Fungicide, and Rodenticide Act Although the origin of fruits and APHIS has had the opportunity to (FIFRA), sulfuryl fluoride, steam heat, vegetables is seldom identified in the remove the associated treatment vacuum fumigation, and vapor heat. PPQ Treatment Manual, we have schedule for that commodity. If EPA The definitions for each of these terms included this information in the list of cancels the approval for use of a are located below in the rule portion of approved treatments for fruits and pesticide on a commodity, the schedule the document, along with the terms and vegetables, when possible, to assist is no longer authorized. If the definitions that were already included importers, individuals who administer commodity is not listed on the label or in part 305, prior to this rule. the treatments, and others in does not have a section 18 exemption We are also amending the definition determining whether a treatment is under the Federal Insecticide, of inspector, which had previously been available for admissible fruits or Fungicide, and Rodenticide Act defined as ‘‘Any employee of the vegetables from a specific country or (FIFRA), then no chemical treatment is Animal and Plant Health Inspection quarantined area within the United available. Service or other person authorized by States. In cases where a treatment is The next five sections provide the the Administrator to inspect and certify approved for a commodity but not treatment schedules for administering the plant health status of plants and associated with a specific country or methyl bromide (§ 305.6); phosphine products under this part,’’ to reflect the other area of origin, the commodity is (§ 305.7); sulfuryl fluoride (§ 305.8); fact that some inspection listed under ‘‘All.’’ Beside each area of aerosol spray for aircraft (§ 305.9); responsibilities have been transferred to origin, we list specific fruits and combination treatments (§ 305.10), the Department of Homeland Security’s vegetables from those areas for which a which combine chemical treatments Bureau of Customs and Border treatment is authorized. Alongside the with nonchemical treatments, such as Protection. specific commodity for which treatment fumigation with methyl bromide and is authorized, the list shows the pest of cold treatment; and miscellaneous Approved Treatments concern followed by the treatment chemical treatments (§ 305.11). The Prior to this rule, § 305.2 contained schedule that may be used to treat the treatment schedules set out provisions for the irradiation treatment commodity for that pest. requirements that are within the limits of imported fruits and vegetables for Some treatment schedules are set out authorized by EPA. However, to ensure certain fruit flies and a mango seed in § 305.2, but in most cases, the that an actionable pest is neutralized weevil. Since irradiation treatment of treatment schedules identified are with minimal effect on the quality of the imported fruits and vegetables will now located in a subsequent subpart commodity, the schedules may be more be one of a number of treatments located according to the type of treatment— specific than what is stated on the in part 305, we are reorganizing the part, chemical, cold, quick freeze, heat, pesticide label.
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Nonchemical Treatments to this final rule, has been moved to exempt from the provisions of Executive Nonchemical treatments are organized § 305.31. This new section includes all Orders 12866 and 12988. Moreover, into six subparts: Cold treatment, quick the provisions previously in § 305.2, pursuant to 5 U.S.C. 553, notice of freeze, heat treatment, irradiation, plus two requirements from the PPQ proposed rulemaking and opportunity various treatment for garbage, and Treatment Manual: (1) All containers or for comment are not required for this miscellaneous treatments. vans that will transport treated rule, and it may be made effective less The subpart for cold treatment commodities must be free of pests prior than 30 days after publication in the contains treatment requirements to loading the treated commodities and Federal Register. In addition, under 5 (§ 305.15) and treatment schedules (2) each shipment of fruits and U.S.C. 804, this rule is not subject to (§ 305.16). The treatment requirements vegetables treated outside the United congressional review under the in § 305.15 cover facility and carrier States must be accompanied into the Congressional Review Act of 1996, Pub. approval, treatment enclosures, United States by a phytosanitary L. 104–121. Finally, this action is not a treatment monitoring, compliance certificate. All of these requirements are rule as defined by 5 U.S.C. 601 et seq., agreements for cold treatment facilities now in § 305.31. The subpart for the Regulatory Flexibility Act, and thus located in the United States, work plans irradiation also includes three sections, is exempt from the provisions of that for cold treatment facilities located §§ 305.32 through 305.34, that duplicate Act. the irradiation treatments in § 301.64– outside the United States, and treatment Paperwork Reduction Act procedures. 10(g), for regulated articles moved The subpart for quick freeze treatment interstate from areas under Federal This rule contains no information lists commodities for which quick freeze quarantine for Mexican fruit fly; in collection or recordkeeping is authorized and prohibited in § 305.17 § 301.78–10(c), for regulated articles requirements under the Paperwork and sets out treatment schedule T110 in moved interstate from areas under Reduction Act of 1995 (44 U.S.C. 3501 § 305.18. Federal quarantine for Mediterranean et seq.). [Must be confirmed.] The subpart for heat treatments fruit fly; and in § 318.13–4f, for certain List of Subjects includes treatment requirements commodities moved interstate from (§ 305.20) and treatment schedules for Hawaii. 7 CFR Part 300 hot water dip (§ 305.21), hot water The subpart for garbage treatments immersion (§ 305.22), steam sterilization contains treatment schedules and Incorporation by reference, Plant (§ 305.23), vapor heat (§ 305.24), dry requirements for caterers conducting the diseases and pests, Quarantine. treatments under compliance heat (§ 305.25), heat treatment for 7 CFR Part 301 materials or products that could be agreements (§ 305.40). The subpart lists infested by khapra beetle (§ 305.26), three treatment schedules for Agricultural commodities, Plant forced hot air (§ 305.27), and kiln neutralizing insect pests and pathogens: diseases and pests, Quarantine, sterilization (§ 305.28). The treatment Incineration, dry heat, and grinding and Reporting and recordkeeping requirements in § 305.20 cover facility discharge into a sewer system. requirements, Transportation. The miscellaneous treatments subpart certification, treatment monitoring, contains treatment schedules for soapy 7 CFR Part 305 compliance agreements for heat water and wax for certain fruits; warm treatment facilities located in the United Agricultural commodities, Chemical soapy water and brushing for durian States, work plans for facilities located treatment, Cold treatment, Garbage and other large fruits, such as breadfruit; outside the United States, and treatment treatment, Heat treatment, Imports, and alternative treatments for plant procedures. Irradiation, Phytosanitary treatment, material not tolerant to fumigation Plant diseases and pests, Quarantine, (Note: APHIS certification of facilities that (§ 305.42). administer approved phytosanitary Quick freeze, Reporting and treatments always involves the preparation of Miscellaneous recordkeeping requirements, Transportation. a compliance agreement for facilities within We have made minor, nonsubstantive the United States, or the preparation of a work plan for facilities outside the United changes to parts 301, 318, and 319. In 7 CFR Part 318 § 319.56–2k, we have replaced a States. The compliance agreement or work Cotton, Cottonseed, Fruits, Guam, reference to the Union of Soviet plan sets out the procedures the facilities will Hawaii, Plant diseases and pests, Puerto follow and is signed by officials from APHIS Socialist Republics with a reference to Rico, Quarantine, Transportation, and the facility (in the case of a compliance Armenia, Azerbaijan, Belarus, Estonia, Vegetables, Virgin Islands. agreement) or by officials from APHIS, the Georgia, Latvia, Lithuania, Kazakhstan, facility, and the national plant protection Kyrgyzstan, Republic of Moldova, 7 CFR Part 319 organization of the country of export (in the case of a work plan). The PPQ Treatment Russian Federation, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan. Bees, Coffee, Cotton, Fruits, Honey, Manual specifically mentions the need for a Imports, Logs, Nursery stock, Plant work plan in sections pertaining to In parts 301, 318, and 319, we have certification of facilities for some types of changed references to ‘‘he’’ or ‘‘him’’ to diseases and pests, Quarantine, heat treatment, but not all, and does not terms that are more inclusive (e.g., ‘‘he Reporting and recordkeeping mention compliance agreements. For clarity or she’’ or ‘‘the inspector’’). Because the requirements, Rice, Vegetables. and transparency, we are referencing both Oxford Plant Protection Center has Accordingly, we are amending 7 CFR types of documents in part 305 under each moved to the Center for Plant Health chapter III as follows: type of heat treatment.) Science and Technology, we have The subpart for irradiation includes amended the address in the regulations. PART 300—INCORPORATION BY four sections authorizing irradiation We have also corrected typographical REFERENCE treatment for commodities from errors in the regulations. different areas and for different pests. I 1. The authority citation for part 300 Irradiation treatment for imported fruits Internal Agency Management continues to read as follows: and vegetables, which was the only This rule relates to internal agency Authority: 7 U.S.C. 7701–7772; 7 CFR 2.22, treatment provided for in part 305 prior management. Therefore, this rule is 2.80, and 371.3.
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§ 300.1 [Removed and reserved] § 301.52–4 [Amended] § 301.78–10 [Amended]
I 2. Section 300.1 is removed and I 12. Section 301.52–4 is amended as I 16. Section 301.78–10 is amended as reserved. follows: follows: I a. In paragraph (a)(3), by removing the I a. In the introductory text, by removing PART 301—DOMESTIC QUARANTINE words ‘‘the treatment manual’’ and the words ‘‘the Plant Protection and NOTICES adding the words ‘‘part 305 of this Quarantine Treatment Manual’’ and chapter’’ in their place. adding the words ‘‘part 305 of this I b. In paragraph (b), by removing the I 3. The authority citation for part 301 chapter’’ in their place; and by removing words ‘‘the treatment manual’’ and continues to read as follows: the second sentence. adding the words ‘‘part 305 of this I b. In footnote 10 and in paragraph Authority: 7 U.S.C. 7701–7772; 7 CFR 2.22, chapter’’ in their place; and by removing (c)(7), by removing the address ‘‘Oxford 2.80, and 371.3. the word ‘‘he’’ and adding the words Plant Protection Center, 901 Hillsboro Section 301.75–15 also issued under Sec. ‘‘the inspector’’ in its place. St., Oxford, NC 27565’’ and adding the 204, Title II, Pub. L. 106–113, 113 Stat. I c. In paragraph (f), by removing the address ‘‘Center for Plant Health Science 1501A–293; sections 301.75–15 and 301.75– word ‘‘he’’ and adding the words ‘‘the and Technology, 1017 Main Campus 16 also issued under Sec. 203, Title II, Pub. inspector’’ in its place. Drive, suite 2500, Raleigh, NC 27606’’ in L. 106–224, 114 Stat. 400 (7 U.S.C. 1421 its place. note). § 301.52–5 [Amended] § 301.81–4 [Amended] § 301.45–1 [Amended] I 13. In § 301.52–5, paragraph (b) is amended by removing the word ‘‘he’’ I 17. In § 301.81–4, paragraph (b) is I 4. In § 301.45–1, the definition of and adding the words ‘‘the inspector’’ in amended by removing the words ‘‘the treatment manual is amended by its place. Plant Protection and Quarantine removing the words ‘‘and the Plant I 14. Section 301.64–10 is amended as Treatment Manual, which is Protection and Quarantine Treatment follows: incorporated by reference at § 300.1’’ and Manual’’ and by removing footnote 3. I a. In paragraph (a), by removing the adding the words ‘‘part 305’’ in their place. § 301.45–4 [Amended] words ‘‘the PPQ Treatment Manual, which is incorporated by reference at § 301.85–1 [Amended] I 5. Section 301.45–4 is amended by § 300.1’’ and adding the words ‘‘part redesignating footnote 4 as footnote 3. 305’’ in their place; and by removing the I 18. Section 301.85–1 is amended by second sentence. removing the definition of treatment § 301.45–5 [Amended] I b. In paragraphs (d) and (e), by manual. removing the words ‘‘the PPQ Treatment I 6. In § 301.45–5, paragraph (a)(3) is § 301.85–2 [Amended] Manual’’ and adding the words ‘‘part 305 amended by adding the words ‘‘and part of this chapter’’ in their place. I 19. Section 301.85–2, paragraph (d) is 305 of this chapter’’ immediately after I c. By revising paragraph (f) to read as amended by adding the words ‘‘or she’’ the words ‘‘treatment manual’’. set forth below. immediately after the word ‘‘he’’, both I § 301.45–6 [Amended] d. In footnote 10 and in paragraph times it occurs. (g)(7), by removing the address ‘‘Oxford § 301.85–4 [Amended] I 7. In § 301.45–6, paragraph (a) is Plant Protection Center, 901 Hillsboro amended by adding the words ‘‘and part St., Oxford, NC 27565’’ and adding the I 20. Section 301.85–4 is amended as 305 of this chapter’’ immediately after address ‘‘Center for Plant Health Science follows: the words ‘‘treatment manual’’. and Technology, 1017 Main Campus I a. In paragraph (a), by removing the Drive, suite 2500, Raleigh, NC 27606’’ in word ‘‘he’’ and adding the words ‘‘the § 301.48–1 [Amended] its place. inspector’’ in its place. I b. In paragraphs (a)(2), (b), and (e), I 8. Section 301.48–1 is amended by § 301.64–10 Treatments. second sentence, by removing the words removing the definition of Treatment * * * * * ‘‘the treatment manual’’ and adding the Manual. (f) Citrons, litchis, longans, words ‘‘part 305 of this chapter’’ in their persimmons, and white sapotes. Cold § 301.48–4 [Amended] place. treatment in accordance with the I c. In paragraph (f), by adding the words I 9. In § 301.48–4, paragraph (d)(4) is following schedule, which is also found ‘‘or she’’ after the word ‘‘he’’ and by amended by removing the words ‘‘with in part 305 of this chapter: adding the words ‘‘or her’’ after the word the Treatment Manual’’ and adding the ‘‘his’’. Exposure words ‘‘with part 305 of this chapter’’ in Treatment (°F) period § 301.85–5 [Amended] their place; and by removing the words (days) ‘‘the Treatment Manual’’ and adding the I 21. In § 301.85–5, paragraph (c), first words ‘‘part 305 of this chapter’’ in their 33 or below ...... 18 sentence, is amended by removing the place. 34 or below ...... 20 word ‘‘he’’ and adding the words ‘‘the 35 or below ...... 22 inspector’’ in its place. § 301.52–1 [Amended] * * * * * §§ 301.93–10, 301.97–10 [Amended] I 10. Section 301.52–1 is amended by I 22. The introductory text of §§ 301.93– removing the definition of treatment § 301.75–4 [Amended] 10, 301.97–10, is amended by removing manual and footnote 2. I 15. In § 301.75–4, paragraph (d)(2) is the words ‘‘the Plant Protection and § 301.52–3 [Amended] amended by removing the word Quarantine Treatment Manual’’ and ‘‘guarantined’’ and adding the word adding the words ‘‘part 305 of this I 11. Section 301.52–3 is amended by ‘‘quarantined’’ in its place, both times it chapter’’ in their place; and by removing redesignating footnote 3 as footnote 2. occurs. the second sentence.
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§ 301.98–10 [Amended] 305.23 Steam sterilization treatment Dosimetry system. A system used for I 23. Section 301.98–10 is amended as schedules. determining absorbed dose, consisting follows: 305.24 Vapor heat treatment schedules. of dosimeters, measurement instruments I a. In the introductory text, by removing 305.25 Dry heat treatment schedules. 305.26 Khapra beetle treatment schedule for and their associated reference standards, the words ‘‘the Plant Protection and feeds and milled products. and procedures for the system’s use. Quarantine Treatment Manual’’ and 305.27 Forced hot air treatment schedules. Forced hot air. Hot air blown adding the words ‘‘part 305 of this 305.28 Kiln sterilization treatment uniformly across commodities in a chapter’’ in their place; and by removing schedule. shipment until the pulp of each unit in the second sentence. 305.29–305.30 [Reserved] the shipment of the commodity reaches I b. In paragraph (b), by removing the Subpart—Irradiation Treatments a specified temperature. words ‘‘the Plant Protection and Fumigant. A gaseous chemical that 305.31 Irradiation treatment of imported Quarantine Treatment Manual’’ and fruits and vegetables for certain fruit flies easily diffuses and disperses in air and adding the words ‘‘part 305 of this and mango seed weevils. is toxic to the target organism. chapter’’ in their place. 305.32 Irradiation treatment of regulated Fumigation. Releasing and dispersing fruit to be moved interstate from areas a toxic chemical in the air so that it § 301.99–10 [Amended] quarantined for Mexican fruit fly. reaches the target organism in a gaseous I 24. Section 301.99–10 is amended as 305.33 Irradiation treatment of regulated state. follows: articles to be moved interstate from areas Hitchhiker pest. A pest that is carried I quarantined for Mediterranean fruit fly. by a commodity or a conveyance and, in a. In the introductory text, by removing 305.34 Administrative instructions the words ‘‘the Plant Protection and prescribing methods for irradiation the case of plants and plant products, Quarantine Treatment Manual’’ and treatment of certain fruits and vegetables does not infest those plants or plant adding the words ‘‘part 305 of this from Hawaii. products. chapter’’ in their place; and by removing 305.35–305.39 [Reserved] Hot water immersion dip. Complete immersion of a commodity in heated the second and third sentences. Subpart—Treatments for Garbage I b. In paragraph (b), first sentence, by water to raise the temperature of the removing the words ‘‘as an alternative to 305.40 Garbage treatment schedules for commodity to a specific temperature for insect pests and pathogens. a specified time. This treatment is treating the fruits as provided in the 305.41 [Reserved] Plant Protection and Quarantine usually used to kill fruit flies. Treatment Manual’’. Subpart—Miscellaneous Treatments Inspector. Any individual authorized I c. In paragraph (c), first sentence, by 305.42 Miscellaneous treatment schedules. by the Administrator of APHIS or the Commissioner of Customs and Border removing the words ‘‘the Plant Authority: 7 U.S.C. 7701–7772; 21 U.S.C. Protection and Quarantine Treatment 136 and 136a; 7 CFR 2.22, 2.80, and 371.3. Protection, Department of Homeland Manual’’ and adding the words ‘‘part 305 Security, to enforce the regulations in of this chapter’’ in their place. § 305.1 Definitions. this part. I 25. Part 305 is revised to read as The following definitions apply for Irradiation. The use of irradiated follows: the purposes of this part: energy to kill or devitalize organisms. Administrator. The Administrator, Methyl bromide. A colorless, odorless PART 305—PHYTOSANITARY Animal and Plant Health Inspection biocide used to fumigate a wide range TREATMENTS Service, United States Department of of commodities. Agriculture, or any person delegated to Phosphine. Flammable gas generated Sec. act for the Administrator in matters from either aluminum phosphide or 305.1 Definitions. magnesium phosphide and used to treat 305.2 Approved treatments. affecting this part. 305.3–305–4 [Reserved] APHIS. The Animal and Plant Health stored product commodities. Inspection Service, United States Quick freeze. A commercially Subpart—Chemical Treatments Department of Agriculture. acceptable method of quick freezing at 305.5 Treatment requirements. Autoclaving. The introduction of subzero temperatures with subsequent 305.6 Methyl bromide fumigation treatment steam at 212 °F into a pressurized storage and transportation at not higher schedules. enclosure containing a commodity to than 20 °F. Methods that accomplish 305.7 Phosphine treatment schedules. kill spores and other treatment-resistant this are known as quick freezing, sharp 305.8 Sulfuryl fluoride treatment schedules. 305.9 Aerosol spray for aircraft treatment pests. freezing, cold pack, or frozen pack, but schedules. Cold treatment. Exposure of a may be any equivalent commercially 305.10 Treatment schedules for commodity to a specified cold acceptable freezing method. combination treatments. temperature that is sustained for a Section 18 of Federal Insecticide, 305.11 Miscellaneous chemical treatments. specific time period to kill targeted Fungicide, and Rodenticide Act 305.12–14 [Reserved] pests, especially fruit flies. (FIFRA). An emergency exemption Subpart—Cold Treatments Dose mapping. Measurement of granted by the U.S. Environmental absorbed dose within a process load Protection Agency to Federal or State 305.15 Treatment requirements. 305.16 Cold treatment schedules. using dosimeters placed at specified agencies authorizing an unregistered use locations to produce a one-, two-, or of a pesticide for a limited time. Subpart—Quick Freeze Treatments three-dimensional distribution of Sulfuryl fluoride. An odorless, 305.17 Authorized treatments; exceptions. absorbed dose, thus rendering a map of colorless, and nonflammable 305.18 Quick freeze treatment schedule. absorbed-dose values. compressed fumigant that is used 305.19 [Reserved] Dosimeter. A device that, when primarily to kill pests of wood. Subpart—Heat Treatments irradiated, exhibits a quantifiable Steam heat. The introduction of steam change in some property of the device ° 305.20 Treatment requirements. at 212 F or higher into an enclosure 305.21 Hot water dip treatment schedule for that can be related to absorbed dose in containing a commodity to kill targeted mangoes. a given material using appropriate organisms. 305.22 Hot water immersion treatment analytical instrumentation and Vacuum fumigation. Fumigation schedules. techniques. performed in a gas-tight enclosure. Most
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air in the enclosure is removed and (1) Treatment schedules provided in and recommends that a sample be replaced with a small amount of this part must be followed to neutralize treated first before deciding whether to fumigant. The reduction in pressure pests. treat the entire shipment. reduces the required duration of the (2) More information about treatment (b) Alpha grass and handicrafts (Stipa treatment. schedules is contained in the Plant tenacissima, Ampelodesmos Protection and Quarantine (PPQ) Vapor heat. Heated air saturated with mauritanicus). For treatment schedules, Treatment Manual, which is available water vapor and used to raise the see § 305.6 for methyl bromide (MB) on the Internet at http://www.aphis. temperature of a commodity to a fumigation. usda.gov/ppq/manuals/online_ required point for a specific period. manuals.html or by contacting the Pest Treatment § 305.2 Approved treatments. Animal and Plant Health Inspection Service, Plant Protection and Harmolita spp...... MB T304–a or MB (a) Certain commodities or articles Quarantine, Manuals Unit, 69 Thomas T304–b. require treatment, or are subject to Johnson Drive, Suite 100, Frederick, MD treatment, prior to the interstate 21702. (c) Bags, bagging materials, and movement within the United States or (3) Treatment requirements provided covers (used). The treatment schedules importation or entry into the United in this part must be followed to for which administration instructions States. Treatment is required as adequately administer treatment are not provided are in § 305.6 for indicated in parts 301, 318, and 319 of schedules. methyl bromide (MB) fumigation, this chapter, on a permit, or by an (4) APHIS is not responsible for losses § 305.23 for steam sterilization (SS), and inspector. or damages incurred during treatment § 305.25 for dry heat (DH).
Used material Pest Treatment
Bags and bagging material or covers used to Globodera rostochiensis ...... MB T306–a. contain root crops. Bags and bagging used for commodities grown Potato cyst nematode ...... MB T502–1. in soil. Bags and bagging material or covers used for Pectinophora spp...... MB T306–b. cotton only. Bags and bagging used for small grains ...... Downy mildews and Physoderma diseases of T503–1–2: Soak in water slightly below boiling maize. (212 °F) for 1 hour; or SS T503–1–3; or DH T503–1–4. Flag smut ...... DH T504–1–1 or SS T504–1–2. Bags and bagging material or covers ...... Trogoderma granarium ...... MB T306–c–1 or MB T306–c–2. Bagging from unroasted coffee beans ...... Various ...... MB T306–d–1 or MB T306–d–2. Covers used for commodities grown in soil ...... Potato cyst nematode ...... MB T502–2. Covers used for small grains ...... Downy mildews and Physoderma diseases of T503–2–2: Soak in water slightly below boiling maize. (212 °F) for 1 hour; or SS T503–2–3; or DH T503–2–4. Covers used for wheat ...... Flag smut ...... DH T504–2–1 or SS T504–2–2.
(d) Broomcorn and broomcorn Pest Treatment (e) Cotton and cotton products. The articles. The treatment schedules for treatment schedules for which which administration instructions are Corn-related T566–1 (broomcorn) and administration instructions are not not provided are in § 305.6 for methyl diseases T566–2 (broomcorn arti- provided are in § 305.6 for methyl (pre- cles): Completely sub- bromide (MB) fumigation and § 305.23 cautionary merge in hot water at 102 bromide (MB) fumigation and § 305.7 for steam sterilization (SS). treatment). °F. for phosphine (PH). Ostrinia MB T309–a or MB T309–b– nubilalis, 1or MB T309–b–2 or SS ticks, and T309–c. saw flies.
Material Pest Treatment
Baled lint or linters ...... Pectinophora spp ...... MB T301–a–3. Baled lint, linters, waste, piece goods, gin Trogoderma granarium ...... MB T301–b–1–1 or MB T301–b–1–2. trash. Cottonseed (samples and bulk) ...... Pectinophora spp ...... T301–a–7: (1) Delint the cottonseed by apply- ing sufficient heat (145 °F) or acid or both; or (2) raise the temperature of the delinted seed during the subsequent drying process to 145 °F for no less than 45 seconds or at least 140 °F for no less than 8 minutes. Cottonseed, cottonseed products, or sam- T. granarium ...... MB T301–b–2. ples. Cottonseed meal ...... T. granarium ...... MB T301–b–3. Cotton and cotton products ...... Globodera rostochiensis ...... MB T301–c. Cotton and cotton products ...... Anthonomus grandis ...... MB T301–d–1–1 or PH T301–d–1–2.
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Material Pest Treatment
Lint, linters, cottonseed, cottonseed hulls, gin Pectinophora spp ...... MB T301–a–1–1 or MB T301–a–1–2. trash, waste, cottonseed meal, or other baled or bulk commodities (except sam- ples). Lint, linters, and cottonseed (bulk, sacked, or Pectinophora spp ...... PH T301–a–6. packaged cottonseed, lint or linters, cot- tonseed hulls, gin trash, and all other baled or bulk cotton commodities). Lint (except baled lint or linters), cottonseed Pectinophora spp ...... MB T301–a–2. (except packaged cottonseed), cottonseed hulls, gin trash, waste, cottonseed meal, or other baled or bulk commodities (ex- cluding samples). Packaged cottonseed ...... Pectinophora spp ...... MB T301–a–4. Samples of cotton and cotton products ...... Pectinophora spp ...... MB T301–a–5–1 or MB T301–a–5–2.
(f) Cut flowers and greenery. The Pest Treatment (g) Equipment. The treatment treatment schedules for which schedules for which administration administration instructions are not External feeders, leafminers, instructions are not provided are in provided are in § 305.6 for methyl hitchhikers (except for § 305.6 for methyl bromide (MB) snails and slugs), surface bromide (MB) fumigation. pests ...... MB T305–a. fumigation, § 305.9 for aerosol, and Borers or soft scales ...... MB T305–b. § 305.23 for steam sterilization (SS). Mealybugs ...... MB T305–c.
Article Pest Treatment
Aircraft ...... Trogoderma granarium ...... T409–a: Contact PPQ Regional Director for specific instructions. Hitchhiker pests (other than T. granarium, fruit Aerosol T409–b. flies, and soft-bodied insects). Fruit flies and soft-bodied insects ...... Aerosol T409–c–1 or Aerosol T409–c–3. Automobiles ...... Globodera rostochiensis ...... T406-c, steam cleaning: Steam at high pres- sure until all soil is removed. Treated sur- faces must be thoroughly wet and heated. Construction equipment with cabs ...... G. rostochiensis ...... MB T406–b. Construction equipment without cabs ...... G. rostochiensis ...... SS T406–d. Containers ...... G. rostochiensis ...... MB T406–b. Containers ...... Potato cyst nematode ...... MB T506–1. Field and processing equipment (Saccharum).. Xanthomonas albilineans and X. vasculorum .. T514–4: Remove all debris and soil from equipment with water at high pressure (300 pounds per square inch minimum) or with steam. Mechanical cotton pickers and other cotton Pectinophora gossypiella ...... MB T407. equipment. Used farm equipment with cabs ...... G. rostochiensis ...... T406–c, steam cleaning: Steam at high pres- sure until all soil is removed. Treated sur- faces must be thoroughly wet and heated. Used farm equipment with cabs ...... G. rostochiensis ...... MB T406–b. Used farm equipment without cabs ...... G. rostochiensis ...... SS T406–d. Used containers ...... G. rostochiensis ...... SS T406–d.
(h) Fruits and vegetables. (1) cucurbitae, B. dorsalis, B. tryoni, B. miscellaneous chemical treatments Treatment of fruits and vegetables from jarvisi, B. latifrons, and Ceratitis (CMisc.), § 305.16 for cold treatment foreign localities by irradiation in capitata. (CT), § 305.18 for quick freeze, § 305.21 accordance with § 305.31 may be (2) The treatment schedules for which for hot water dip (HWD), § 305.22 for substituted for other approved administration instructions are not hot water immersion (HWI), § 305.24 for treatments for the mango seed weevil provided are in § 305.6 for methyl vapor heat (VH), § 305.27 for forced hot Sternochetus mangiferae (Fabricus) or bromide (MB) fumigation, § 305.10(a) air (FHA), §§ 305.31 through 305.34 for for one or more of the following 11 for methyl bromide fumigation and cold irradiation (IR), and § 305.42 for species of fruit flies: Anastrepha treatment (MB&CT), § 305.10(b) for cold miscellaneous (Misc.). fraterculus, A. ludens, A. obliqua, A. treatment and methyl bromide (i) Treatment for shipments from serpentina, A. suspensa, Bactrocera fumigation (CT&MB), § 305.11 for foreign localities.
Location Commodity Pest Treatment schedule 1
All ...... All imported fruits and vegetables Hitchhiker pests or surface pests, MB T104–a–1. except mealybugs.
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Location Commodity Pest Treatment schedule 1
Mealybugs ...... MB T104–a–2. Most ...... Quick freeze T110. Acorns, chestnuts (see § 319.56– Cydia splendana and Curculio MB T101–t–1 or MB T101–u–1. 2b of this chapter). spp.. Banana ...... External feeders such as MB T101–d–1. Noctuidae spp., Thrips spp., Copitarsia spp.. Beet ...... Internal feeders ...... MB T101–g–1. Beet ...... External feeders ...... MB T101–g–1–1. Blackberry ...... External feeders such as MB T101–h–1. Noctuidae spp., Thrips spp., Copitarsia spp., Pentatomidae spp., and Tarsonemus spp.. Broccoli (includes Chinese and External feeders and leafminers .. MB T101–n–2. rapini). Brussel sprouts ...... External feeders and leafminers .. MB T101–n–2. Cabbage (European and Chinese) External feeders ...... MB T101–j–1. Cabbage (bok choy, napa, Chi- External feeders and leafminers .. MB T101–n–2. nese mustard). Cantaloupe ...... External feeders ...... MB T101–k–1. Carrot ...... External feeders ...... MB T101–l–1. Carrot ...... Internal feeders ...... MB T101–m–1. Cauliflower ...... External feeders and leafminers .. MB T101–n–2. Celeriac (celery root) ...... External feeders ...... MB T101–n–1. Celery (above ground parts) ...... External feeders ...... MB T101–o–1. Chayote (fruit only) ...... External feeders ...... MB T101–p–1. Cherry ...... Insects other than fruit flies ...... MB T101–r–1. Cherry ...... Rhagoletis indifferens and Cydia MB T101–s–1. pomonella. Chicory (above ground parts) ...... External feeders ...... MB T101–v–1. Chicory root ...... External feeders ...... MB T101–n–1. Copra ...... External feeders ...... MB T101–x–1. Corn-on-the-cob ...... Ostrinia nubilalis ...... MB T101–x–1–1. Cucumber ...... External feeders ...... MB T101–y–1. Dasheen ...... External feeders ...... MB T101–z–1. Dasheen ...... Internal feeders ...... MB T101–a–2. Durian and other large fruits such External feeders ...... Misc. T102–c. as breadfruit. Endive ...... External feeders ...... MB T101–b–2. Fava bean (dried) ...... Bruchidae ...... MB T101–c–2. MB T101–d–2. Garlic ...... Brachycerus spp. and Dyspessa MB T101–e–2. ulula. Ginger (rhizome) ...... Internal feeders ...... MB T101–f–2. Ginger (rhizome) ...... External feeders ...... MB T101–g–2. Grapefruit and other citrus ...... Aleurocanthus woglumi ...... MB T101–j–2. Herbs and spices (dried) ...... Various stored product pests, ex- MB T101–n–2–1–1. cept khapra beetle. Herbs, fresh (includes all fresh External feeders and leafminers.. plant parts except seeds). Kiwi ...... External feeders, Nysius huttoni .. MB T101–m–2. Leeks ...... Internal feeders ...... MB T101–q–2. Lentils (dried) ...... Bruchidae ...... MB T101–e–1. Litchi ...... Mealybugs (Pseudococcidae) ...... MB T101–b–1–1. Lime ...... Mealybugs and other surface HWI T102–e. pests. Melon (including honeydew, External feeders such as MB T101–o–2. muskmelon, and watermelon). Noctuidae spp., Thrips spp., Copitarsia spp.. Onion ...... Internal feeders and leafminers .... MB T101–q–2. Papaya ...... Cercospora mamaonis and T561: Dip in hot water at 120.2 °F Phomopis carica-papayae. for 20 minutes. Parsnip ...... Internal feeders ...... MB T101–g–1. Peas (dried) ...... Bruchidae ...... MB T101–e–1. Pecans and hickory nuts ...... Curculio caryae ...... CT T107–g. Peppers ...... Internal pests (except fruit flies) MB T101–a–3. and external pests (except mealybugs). Pineapple ...... Internal feeders ...... MB T101–r–2 Plantain ...... External feeders such as MB T101–t–2. Noctuidae spp., Thrips spp., Copitarsia spp.. Potato (white or Irish) ...... Graphognathus spp...... MB T101–u–2.
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Location Commodity Pest Treatment schedule 1
Potato (white or Irish) ...... Ostrinia nubilalis, Phthorimaea MB T101–v–2. operculella. Pulses (dried) ...... Bruchidae ...... MB T101–e–1. Pumpkin (includes calabaza vari- External feeders ...... MB T101–w–2. eties). Radish ...... Internal feeders ...... MB T101–g–1. Raspberry ...... External feeders such as MB T101–x–2. Noctuidae spp., Thrips spp., Copitarsia spp.. Shallots ...... Internal feeders including MB T101–q–2. leafminers. Squash (winter, summer, and External feeders ...... MB T101–y–2. chayote). Sweet potato ...... External and internal feeders ...... MB T101–b–3–1. Strawberry ...... External feeders ...... MB T101–z–2. Tuna and other cactus fruit ...... External feeders and leafminers .. MB T101–e–3. Turnip ...... Internal feeders ...... MB T101–g–1. Yam (see § 319.56–21 of this Internal and external feeders ...... MB T101–f–3. chapter). Zucchini ...... Ceratitis capitata, Bactrocera VH T106–b–8. cucurbitae, B. dorsalis. Zucchini ...... External feeders ...... MB T101–h–3. Albania ...... Horseradish ...... Baris lepidii ...... MB T101–l–2. Algeria ...... Grape ...... Lobesia botrana ...... MB T101–h–2. Ceratitis capitata ...... CT T107–a or MB T101–h–2–1. Ceratitis capitata, Lobesia botrana MB T101–h–2–1. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Grapefruit, tangerine ...... Ceratitis capitata ...... CT T107–a. Pear, plum, ethrog ...... Ceratitis capitata ...... CT T107–a. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Antigua and Barbuda ...... Bean (pod), pigeon pea (pod) ...... Cydia fabivora, Epinotia aporema, MB T101–k–2. Maruca testulalis, and leafminers. Okra (pod) ...... Pectinophora gossypiella ...... MB T101–p–2. Argentina ...... Apple, apricot, cherry, kiwi, Species of Anastrepha (other than CT T107–a–1. peach, pear, plum, nectarine, Anastrepha ludens), Ceratitis quince, pomegranate. capitata. Blueberry ...... Ceratitis capitata ...... MB T101–i–1–1. Grape ...... Species of Anastrepha (other than CT T107–a–1. Anastrepha ludens), Ceratitis capitata. Insects other than Ceratitis MB T101–i–2. capitata and Lobesia botrana. Armenia ...... Grape ...... Lobesia botrana ...... MB T101–h–2. Ceratitis capitata ...... CT T107–a MB T101–h–2–1. Ceratitis capitata, Lobesia botrana MB T101–h–2–1. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Horseradish ...... Baris lepidii ...... MB T101–1–2. Australia ...... Apple ...... Austrotortrix spp. and Epiphyas CT&MB T109–d–1. spp., Bactrocera tryoni, Ceratitis capitata, and other fruit flies. Bactrocera tryoni ...... CT T107–d. Tortricidae ...... MB T101–a–1. External feeders, apple moth ...... MB T101–a–1. Asparagus ...... External feeders such as MB T101–b–1. Noctuidae spp., Thrips spp. (ex- cept Scirtothrips dorsalis from Thailand), Copitarsia spp.. Halotydeus destructor ...... T101–b–1–1. Citrus—oranges, grapefruits, Bactrocera tryoni ...... CT T107–d. limes, lemons, mandarins, satsumas, tangors, tangerines, and other fruits grown from this species or its hybrids (C. reticulata).
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Location Commodity Pest Treatment schedule 1
Citrus—oranges, grapefruits, Ceratitis capitata ...... CT T107–a. limes lemons, mandarins, satsumas, tangors, tangerines, and other fruits grown from this species or its hybrids (C. reticulata). Grape ...... Austrotortrix spp. and Epiphyas MB&CT T108–b or CT&MB spp., Bactrocera tryoni, Ceratitis T109–d–1. capitata, and other fruit flies. Kiwi ...... Bactrocera tryoni ...... CT T107–d. Pear ...... Austrotortrix spp., Epiphyas spp., CT&MB and T109–d–1. Bactrocera tryoni, Ceratitis capitata, and other fruit flies. Bactrocera tryoni ...... CT T107–d. Tortricidae ...... MB T101–a–1. Austria ...... Grape ...... Lobesia botrana ...... MB T101–h–2. Ceratitis capitata ...... CT T107–a or MB T101–h–2–1. Ceratitis capitata, Lobesia botrana MB T101–h–2–1. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Horseradish ...... Baris lepidii ...... MB T101–1–2. Aruba ...... Bean, garden (pod or shelled) ..... Cydia fabivora, Epinotia aporema, MB T101–k–2 or MB T101–k–2– Maruca testulalis, and 1. leafminers. Green bean ...... Cydia fabivora, Epinotia aporema, MB T101–k–2. Maruca testulalis, and leafminers. Azerbaijan ...... Grape ...... Lobesia botrana ...... MB T101–h–2. Ceratitis capitata ...... CT T107–a or MB T101–h–2–1. Ceratitis capitata, Lobesia botrana MB T101–h–2–1. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Horseradish (to Hawaii) ...... Baris lepidii ...... MB T101–1–2. Bahamas ...... Bean (pod) ...... Cydia fabivora, Epinotia aporema, MB T101–k–2. Maruca testulalis, and leafminers. Okra (pod) ...... Pectinophora gossypiella ...... MB T101–p–2. Pigeon pea (pod) ...... Cydia fabivora, Epinotia aporema, MB T101–k–2. Maruca testulalis, and leafminers. Barbados ...... Bean (pod or shelled), pigeon pea Cydia fabivora, Epinotia aporema, MB T101–k–2. (pod). Maruca testulalis, and leafminers. Okra (pod) ...... Pectinophora gossypiella ...... MB T101–p–2. Belarus ...... Grape ...... Lobesia botrana ...... MB T101–h–2. Ceratitis capitata ...... CT T107–a or MB T101–h–2–1. Ceratitis capitata, Lobesia botrana MB T101–h–2–1. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Horseradish ...... Baris lepidii ...... MB T101–1–2. Belgium ...... Bean, garden (pod or shelled), Cydia fabivora, Epinotia aporema, MB T101–k–2. pea (pod or shelled). Maruca testulalis, and leafminers. Horseradish (to Hawaii) ...... Baris lepidii ...... MB T101–1–2. Belize ...... Bean (pod or shelled), pigeon pea Cydia fabivora, Epinotia aporema, MB T101–k–2. (pod or shelled). Maruca testulalis, and leafminers. Carambola ...... Species of Anastrepha (other than CT T107–c. Anastrepha ludens). Ethrog ...... Ceratitis capitata ...... CT T107–a. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Grapefruit, orange, tangerine ...... Anastrepha ludens ...... CT T107–b. Papaya ...... Ceratitis capitata, Bactrocera FHA T103–d–2 (see § 319.56–2(j) cucurbitae, B. dorsalis. of this part). Bolivia ...... Blueberry ...... Ceratitis capitata ...... MB T101–i–1–1.
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Location Commodity Pest Treatment schedule 1
Bosnia ...... Ethrog ...... Ceratitis capitata ...... CT T107–a. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Horseradish ...... Baris lepidii ...... MB T101–1–2. Brazil ...... Apple, grape (prohibited into Cali- Species of Anastrepha (other than CT T107–a–1. fornia). Anastrepha ludens), Ceratitis capitata. Mango ...... Ceratitis capitata, Anastrepha HWD T102–a. spp., Anastrepha ludens. Okra ...... Pectinophora gossypiella ...... MB T101–p–2. Bulgaria ...... Grape ...... Lobesia botrana ...... MB T101–h–2. Ceratitis capitata ...... CT T107–a or MB T101–h–2–1. Ceratitis capitata, Lobesia botrana MB T101–h–2–1. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Horseradish ...... Baris lepidii ...... MB T101–1–2. Cayman Islands ...... Bean (pod or shelled), pigeon pea Cydia fabivora, Epinotia aporema, MB T101–k–2. (pod). Maruca testulalis, and leafminers. Okra (pod) ...... Pectinophora gossypiella ...... MB T101–p–2. Chile (all provinces except prov- Apricot, nectarine, peach, plum, External feeders ...... MB T101–a–3. inces of Region 1 or Chanaral plumcot. Township of Region 3). Cherimoya ...... Brevipalpus chilensis ...... Misc. T102–b (see § 319.56–2z of this chapter for additional treat- ment information) Grape ...... External feeders ...... MB T101–i–2–1. Horseradish (to Hawaii) ...... Baris lepidii ...... MB T101–1–2. Lemon (smooth skin) ...... External feeders, Brevipalpus MB T101–n–2–1. chilensis. Lime ...... Brevipalpus chilensis ...... Misc. T102–b–1. External feeders, Brevipalpus MB T101–n–2–1. chilensis. Passion fruit ...... Brevipalpus chilensis ...... Misc. T102–b–2. Tomato ...... External feeders ...... MB T101–a–3. Chile (all provinces of Region 1 or Apple, cherry, pear, quince ...... Ceratitis capitata ...... CT T107–a. Chanaral Township of Region 3). Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Apricot ...... Ceratitis capitata and external CT T107–a and MB T101–a–3. feeders. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Avocado ...... Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Babaco (fruit) ...... Ceratitis capitata, Bactrocera VH T106–b–3. cucurbitae, B. dorsalis. External feeders ...... MB T103–d–1. Blueberry ...... Ceratitis capitata ...... MB T101–i–1–1. Grape ...... Ceratitis capitata ...... CT T107–a. External feeders ...... MB T101–i–2–1. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Horseradish (to Hawaii) ...... Baris lepidii ...... MB T101–1–2. Kiwi ...... Ceratitis capitata ...... CT T107–a. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Lemon (smooth skinned) ...... External feeders, Brevipalpus MB T101–n–2–1. chilensis. Lime ...... Brevipalpus chilensis ...... Misc. T102–b–2.
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Location Commodity Pest Treatment schedule 1
External feeders, Brevipalpus MB T101–n–2–1. chilensis. Loquat ...... Ceratitis capitata ...... CT T107–a. Mango ...... Anastrepha spp., Anastrepha HWD T102–a. ludens, Ceratitis capitata. Mountain papaya ...... Bactrocera cucurbitae, B. dorsalis, VH T106–b–3 or FHA T103–d–1. Ceratitis capitata. Nectarine ...... Ceratitis capitata ...... CT T107–a. External feeders ...... MB T101–a–3. Papaya ...... Bactrocera cucurbitae, B. dorsalis, VH T106–b–4 or FHA T103–d–2. Ceratitis capitata. Peach ...... Ceratitis capitata ...... CT T107–a. External feeders ...... MB T101–a–3. Persimmon, sand pear ...... Ceratitis capitata ...... CT T107–a. Plum, plumcot ...... Ceratitis capitata ...... CT T107–a. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. External feeders ...... MB T101–a–3. Opuntia spp...... Ceratitis capitata ...... MB T101–d–3. Tomato ...... Scrobipalpula absoluta, MB T101–c–3–1. Rhagoletis tomatis. China ...... Litchi ...... Bactrocera cucurbitae, B. dorsalis, CT T107–h. Conopomorpha sinensis. Longan ...... Bactrocera dorsalis and B. CT T107–j. curcubitae. Pear (Ya variety), Shandong Bactrocera cucurbitae, B. dorsalis, CT T107–f. Province only. Eutetranychus orientalis. Sand pear ...... Bactrocera cucurbitae, B. dorsalis, CT T107–f. Eutetranychus orientalis. Colombia ...... Bean, garden ...... Cydia fabivora, Epinotia aporema, MB T101–k–2 or MB T101–k–2– Maruca testulalis, and 1. leafminers. Cape gooseberry ...... Ceratitis capitata ...... CT T107–a. Grape ...... Species of Anastrepha (other than CT T107–c. Anastrepha ludens). Grapefruit, orange, plum, tan- Anastrepha ludens ...... CT T107–b. gerine, pomegranate. Okra ...... Pectinophora gossypiella ...... MB T101–p–2. Tuna ...... Ceratitis capitata ...... MB T101–d–3. Yellow pitaya ...... Ceratitis capitata and Anastrepha VH T106–e. fraterculus. Costa Rica ...... Bean, garden ...... Cydia fabivora, Epinotia aporema, MB T101–k–2 or MB T101–k–2– Maruca testulalis, and 1. leafminers. Bean, lima (pod or shelled), pi- Cydia fabivora, Epinotia aporema, MB T101–k–2. geon pea (pod or shelled). Maruca testulalis, and leaf min- ers. Ethrog ...... Ceratitis capitata ...... CT T107–a. Bactrocera MB&CT cucurbitae, B. T108–a–1 or T108–a–2 or T108– dorsalis, B. tryoni, Brevipalpus a–3. chilensis, Ceratitis capitata, Lobesia botrana. Grapefruit, orange, tangerine ...... Anastrepha ludens ...... CT T107–b. Mango ...... Ceratitis capitata, Anastrepha HWD T102–a. spp., Anastrepha ludens. Croatia ...... Ethrog ...... Ceratitis capitata ...... CT T107–a. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Horseradish ...... Baris lepidii ...... MB T101–1–2. Cyprus ...... Ethrog ...... Ceratitis capitata ...... CT T107–a. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Grape ...... Lobesia botrana ...... MB T101–h–2. Ceratitis capitata ...... CT T107–a or MB T101–h–2–1. Ceratitis capitata, Lobesia botrana MB T101–h–2–1.
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Location Commodity Pest Treatment schedule 1
Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Grapefruit, orange, tangerine ...... Ceratitis capitata ...... CT T107–a. Czech Republic ...... Horseradish ...... Baris lepidii ...... MB T101–1–2. Denmark ...... Horseradish (to Hawaii) ...... Baris lepidii ...... MB T101–1–2. Dominica ...... Bean (pod), pigeon pea (pod) ...... Cydia fabivora, Epinotia aporema, MB T101–k–2. Maruca testulalis, and leafminers. Okra (pod) ...... Pectinophora gossypiella ...... MB T101–p–2. Dominican Republic ...... Bean (pod) ...... Cydia fabivora, Epinotia aporema, MB T101–k–2. Maruca testulalis, and leafminers. Goa bean (pod or shelled) ...... Cydia fabivora, Epinotia aporema, MB T101–k–2. Maruca testulalis, and leaf min- ers. Grape ...... Species of Anastrepha (other than CT T107–c. Anastrepha ludens). Hyacinth bean ...... Cydia fabivora, Epinotia aporema, MB T101–k–2–1. Maruca testulalis, and leaf min- ers. Pigeon pea (pod or shelled) ...... Cydia fabivora, Epinotia aporema, MB T101–k–2 or MB T101–k–2– Maruca testulalis, 1. Melanagromyza obtusa and leaf miners. Okra (pod) ...... Pectinophora gossypiella ...... MB T101–p–2. Yard long bean (pod) ...... Cydia fabivora, Epinotia aporema, MB T101–k–2. Maruca testulalis, and leafminers. Ecuador ...... Apple ...... Species of Anastrepha (other than CT T107–a–1. Anastrepha ludens), Ceratitis capitata. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Bean (pod or shelled), pigeon pea Cydia fabivora, Epinotia aporema, MB T101–k–2. (pod or shelled). Maruca testulalis, and leafminers. Blueberry ...... Ceratitis capitata ...... MB T101–i–1–1. Ethrog ...... Ceratitis capitata ...... CT T107–a. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Grapefruit, orange, tangerine ...... Species of Anastrepha (other than CT T107–a–1. Anastrepha ludens), Ceratitis capitata. Mango ...... Ceratitis capitata, Anastrepha HWD T102–a. spp., Anastrepha ludens. Okra ...... Pectinophora gossypiella ...... MB T101–p–2. Pea (pod) ...... Cydia fabivora, Epinotia aporema, MB T101–k–2 or MB T101–k–2– Maruca testulalis, and 1. leafminers. Egypt ...... Grape ...... Lobesia botrana ...... MB T101–h–2. Ceratitis capitata ...... CT T107–a or MB T101–h–2–1. Ceratitis capitata, Lobesia botrana MB T101–h–2–1. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Orange ...... Ceratitis capitata ...... CT T107–a. Pea (pod or shelled) ...... Cydia fabivora, Epinotia aporema, MB T101–k–2 or MB T101–k–2– Maruca testulalis, and 1. leafminers. Pear ...... Ceratitis capitata ...... CT T107–a. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. El Salvador ...... Bean, garden and lima ...... Cydia fabivora, Epinotia aporema, MB T101–k–2 or MB T101–k–2– Maruca testulalis, and 1. leafminers.
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Location Commodity Pest Treatment schedule 1
Ethrog ...... Ceratitis capitata ...... CT T107–a. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Grapefruit, orange, tangerine ...... Anastrepha ludens ...... CT T107–b. Pigeon pea (pod or shelled) ...... Cydia fabivora, Epinotia aporema, MB T101–k–2. Maruca testulalis, and leafminers. Estonia ...... Grape ...... Lobesia botrana ...... MB T101–h–2. Ceratitis capitata ...... CT T107–a or MB T101–h–2–1. Ceratitis capitata, Lobesia botrana MB T101–h–2–1. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Horseradish ...... Baris lepidii ...... MB T101–1–2. Finland ...... Horseradish (to Hawaii) ...... Baris lepidii ...... MB T101–1–2. France ...... Apple, pear ...... Ceratitis capitata ...... CT T107–a. Ethrog, kiwi ...... Ceratitis capitata ...... CT T107–a. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Grape ...... Lobesia botrana ...... MB T101–h–2. Ceratitis capitata ...... CT T107–a or MB T101–h–2–1. Ceratitis capitata, Lobesia botrana MB T101–h–2–1. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Horseradish (to Hawaii) ...... Baris lepidii ...... MB T101–1–2. Georgia, Republic of ...... Grape ...... Lobesia botrana ...... MB T101–h–2. Ceratitis capitata ...... CT T107–a or MB T101–h–2–1. Ceratitis capitata, Lobesia botrana MB T101–h–2–1. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Horseradish ...... Baris lepidii ...... MB T101–1–2. Germany ...... Grape ...... Lobesia botrana ...... MB T101–h–2. Ceratitis capitata ...... CT T107–a or MB T101–h–2–1. Ceratitis capitata, Lobesia botrana MB T101–h–2–1. Bactrocera cucurbitae, E B. dor- MB&CT T108–a–1 or T108–a–2 salis, B. tryoni, Brevipalpus or T108–a–3. chilensis, Ceratitis capitata, Lobesia botrana. Horseradish ...... Baris lepidii ...... MB T101–1–2. Greece (includes Rhodes) ...... Grape ...... Lobesia botrana ...... MB T101–h–2. Ceratitis capitata ...... CT T107–a or MB T101–h–2–1. Ceratitis capitata, Lobesia botrana MB T101–h–2–1. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Horseradish ...... Baris lepidii ...... MB T101–1–2. Kiwi, tangerine, ethrog ...... Ceratitis capitata ...... CT T107–a. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Orange, pomegranate ...... Ceratitis capitata ...... CT T107–a. Grenada ...... Bean (pod) ...... Cydia fabivora, Epinotia aporema, MB T101–k–2. Maruca testulais, and leafminers. Okra ...... Pectinophora gossypiella ...... MB T101–p–2. Pigeon pea (pod or shelled) ...... Cydia fabivora, Epinotia aporema, MB T101–k–2. Maruca testulalis, and leafminrs. Guadeloupe, Dept of (FR) and St. Okra (pod) ...... Pectinophors gossypiella ...... MB T101–p–2. Barthelemy. Pigeon pea (pod or shelled), bean Cydia fabivora, Epinotia aporema, MB T101–k–2. (pod). Maruca testulalis, and leafminers. Guatemala ...... Ethrog ...... Ceratitis capitata ...... CT T107–a.
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Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Grapefruit, orange, plum, tan- Anastrepha ludens ...... CT T107–b. gerine. Mango ...... Ceratitis capitata, Anastrepha HWD T102–a. spp., Anastrepha ludens. Okra (pod) ...... Pectinophora gossypiella ...... MB T101–p–2. Pigeon pea (pod or shelled) ...... Cydia fabivora, Epinotia aporema, MB T101–k–2. Maruca testulalis, and leafminers. Tuna ...... Ceratitis capitata ...... MB T101–d–3. Guyana ...... Apple, orange ...... Species of Anastrepha (other than CT T107–c. Anastrepha ludens). Bean (pod or shelled) ...... Cydia fabivora, Epinotia aporema, MB T101–k–2. Maruca testulalis, and leafminers. Okra (pod) ...... Pectinophora gossypiella ...... MB T101–p–2. Haiti ...... Apricot, pomegranate ...... Species of Anastrepha (other than CT T107–c. Anastrepha ludens). Mango ...... Ceratitis capitata, Anastrepha HWD T102–a. spp., Anastrepha ludens. Bean (pod), pigeon pea (pod or Cydia fabivora, Epinotia aporema, MB T101–k–2. shelled). Maruca testulalis, and leafminers. Okra (pod) ...... Pectinophora gossypiella ...... MB T101–p–2. Hungary ...... Grape ...... Lobesia botrana ...... MB T101–h–2. Ceratitis capitata ...... CT T107–a or MB T101–h–2–1. Ceratitis capitata, Lobesia botrana MB T101–h–2–1. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Horseradish ...... Baris lepidii ...... MB T101–1–2. India ...... Litchi (fruit) ...... Bactrocera cucurbitae, B. dorsalis CT T107–f. Eutetranychus orientalis. Israel (includes Gaza) ...... Apple, apricot, nectarine, peach, Ceratitis capitata ...... CT T107–a. pear, plum. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Avocado ...... Bactrocera cucurbitae, B. dorsalis, MB T101–c–1. Ceratitis capitata. Brassica oleracea ...... External feeders and leafminers .. MB T101–n–2. Ethrog ...... Ceratitis capitata ...... CT T107–a. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Grape ...... Lobesia botrana ...... MB T101–h–2. Ceratitis capitata ...... CT T107–a or MB T101–h–2–1. Ceratitis capitata, Lobesia botrana MB T101–h–2–1. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Grapefruit, litchi, loquat, orange, Ceratitis capitata ...... CT T107–a. persimmon, pomegranate, pummelo, tangerine. Horseradish root (to Hawaii) ...... Baris lepidii ...... MB T101–1–2. Lettuce (leaf), field grown ...... External feeders and leafminers .. MB T101–n–2. Pea (pod or shelled) ...... Cydia fabivora, Epinotia aporema, MB T101–k–2. Maruca testulalis, and leafminers. Tuna (fruit) ...... Ceratitis capitata ...... MB T101–d–3. Italy ...... Ethrog (North Atlantic ports only) Ceratitis capitata ...... CT T107–a. Grape ...... Lobesia botrana ...... MB T101–h–2. Ceratitis capitata ...... CT T107–a or MB T101–h–2–1. Ceratitis capitata, Lobesia botrana MB T101–h–2–1.
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Location Commodity Pest Treatment schedule 1
Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Grapefruit, orange, persimmon, Ceratitis capitata ...... CT T107–a. tangerine. Horseradish ...... Baris lepidii ...... MB T101–1–2. Kiwi (fruit) ...... Ceratitis capitata ...... CT T107–a. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Pea (pod or shelled) ...... Cydia fabivora, Epinotia aporema, MB T101–k–2. Maruca testulalis, and leafminers. Tuna (fruit) ...... Ceratitis capitata ...... MB T101–d–3. Jamaica ...... Bean (pod), pigeon pea (pod) ...... Cydia fabivora, Epinotia aporema, MB T101–k–2. Maruca testulalis, and leafminers. Ivy gourd (fruit) ...... Cydia, fabivora, Epinotia MB T101–k–2. aporema, Maruca testullis, and leafminers. Okra (pod) ...... Pectinophora gossypiella ...... MB T101–p–2. Thyme ...... External feeders and leafminers .. MB T101–n–2. Japan (includes Bonian Island, Apple (Fuji only) ...... Carposina niponensis, CT&MB T109–a–1 or T109–a–2. Ryukyu, Island Ryukyu Island, Conogethes punctiferalis, Tokara Island, Volcano Islands). Tetranychus viennensis, T. kanzawai. Cabbage (to Hawaii) ...... External feeders and leafminers .. MB T101–n–2. Horseradish (to Hawaii) ...... Baris lepidii ...... MB T101–1–2. Jordan ...... Apple, persimmon ...... Ceratitis capitata ...... CT T107–a. Grape ...... Lobesia botrana ...... MB T101–h–2. Ceratitis capitata, ...... CT T107–a or MB T1011–h–2–l. Ceratitis capitata, Lobesia botrana MB T101–h–2–1. Kazakhstan ...... Grape ...... Lobesia botrana ...... MB T101–h–2. Ceratitis capitata ...... CT T107–a or MB T101–h–2–1. Ceratitis capitata, Lobesia botrana MB T101–h–2–1. Bactrocera cucurbitae, B. dorsalis, MB&CT T108a–1 or T108–a–2 or B. tryoni, Brevipalpus chilensis, T108–a–3. Ceratitis capitata, Lobesia botrana. Horseradish ...... Baris lepidii ...... MB T101–1–2. Korea, Republic of (South) ...... Apple (Fuji only) ...... Carposina niponensis, CT&MB T109–a–1 or T109–a–2. Conogethes punctiferalis, Tetranychus viennensis, T. kanzawai. Kyrgyzstan ...... Grape ...... Lobesia botrana ...... MB T101–h–2. Ceratitis capitata ...... CT T107–a or MB T101–h–2–1. Ceratitis capitata, Lobesia botrana MB T101–h–2–1. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Horseradish ...... Baris lepidii ...... MB T101–1–2. Latvia ...... Grape ...... Lobesia botrana ...... MB T101–h–2. Ceratitis capitata ...... CT T107–a or MB T101–h–2–1. Ceratitis capitata, Lobesia botrana MB T101–h–2–1. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tyroni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Horseradish ...... Baris lepidii ...... MB T101–1–2. Lebanon ...... Apple ...... Ceratitis capitata ...... CT T107–a. Libya ...... Grape ...... Lobesia botrana ...... MB T101–h–2. Ceratitis capitata ...... CT T107–a or MB T101–h–2–1. Ceratitis capitata, Lobesia botrana MB T101–h–2–1. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Lithuania ...... Grape ...... Lobesia botrana ...... MB T101–h–2. Ceratitis capitata ...... CT T107–a or MB T101–h–2–1. Ceratitis capitata, Lobesia botrana MB T101–h–2–1.
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Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Horseradish ...... Baris lepidii ...... MB T101–1–2. Luxembourg ...... Grape ...... Lobesia botrana ...... MB T101–h–2. Ceratitis capitata ...... CT T107–a or MB T101–h–2–1. Ceratitis capitata, Lobesia botrana MB T101–h–2–1. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Macedonia ...... Ethrog ...... Ceratitis capitata ...... CT T107–a. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Horseradish ...... Baris lepidii ...... MB T101–1–2. Martinique, Dept. of (FR) ...... Ethrog ...... Ceratitis capitata ...... CT T107–a. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Horseradish ...... Baris lepidii ...... MB T101–1–2. Mexico ...... Apple, cherry, peach, plum, tan- Anastrepha ludens ...... CT T107–b. gerine. Brassica spp., Chenopodium spp., External feeders such as MB T101–b–1. cilantro. Noctuidae spp., Thrips spp. (ex- cept Scirtothrips dorsalis from Thailand), Copitarsia spp.. Carambola ...... Species of Anastrepha (other than CT T107–c. Anastrepha ludens). Grapefruit ...... Anastrepha ludens ...... CT T107–b. Anastrepha spp...... MB T101–j–2–1 or FHA T103–a– 1 or VH T106–a–2. Horseradish ...... Baris lepidii ...... MB T101–1–2. Mango ...... Anastrepha ludens ...... VH T106–a–3. Ceratitis capitata, Anastrepha HWD T102–a. spp., Anastrepha ludens. Anastrepha ludens, Anastrepha FHA T103–c–1. obliqua, Anastrepha serpentina. Okra ...... Pectinophora gossypiella ...... MB T101–p–2. Orange ...... Anastrepha ludens ...... CT T107–b. Anastrepha spp...... MB T101–j–2–1 or FHA T103–a– 1. Anastrepha spp. (includes VH T106–a–4. Anastrepha ludens). Pigeon pea (pod or shelled), bean Cydia fabivora, Epinotia aporema, MB T101–k–2. (pod or shelled). Maruca testulalis. Tangerine ...... Anastrepha spp...... MB T101–j–2–1 or FHA T103–a– 1 or VH T106–a–1 or VH T106– a–1–1. Moldova ...... Grape ...... Lobesia botrana ...... MB T101–h–2. Ceratitis capitata ...... CT T107–a or MB T101–h–2–1. Ceratitis capitata, Lobesia botrana MB T101–h–2–1. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Horseradish ...... Baris lepidii ...... MB T101–1–2. Montserrat ...... Bean (pod), pigeon pea (pod) ...... Cydia fabivora, Epinotia aporema, MB T101–k–2. Maruca testulalis, and leafminers. Okra ...... Pectinophora gossypiella ...... MB T101–p–2. Morocco ...... Apricot, peach, pear, plum ...... Ceratitis capitata ...... CT T107–a. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Cipollino (bulb/wild onion) ...... Exosoma lusitanica ...... MB T101–w–1. Ethrog ...... Ceratitis capitata ...... CT T107–a.
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Location Commodity Pest Treatment schedule 1
Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Grape ...... Lobesia botrana ...... MB T101–h–2. Ceratitis capitata ...... CT T107–a or MB T101–h–2–1. Ceratitis capitata, Lobesia botrana MB T101–h–2–1. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Grapefruit, orange, tangerine ...... Ceratitis capitata ...... CT T107–a. Netherlands, Kingdom of ...... Bean, garden ...... Cydia fabivora, Epinotia aporema, MB T101–k–2. Maruca testulalis, and leafminers. Horseradish (to Hawaii) ...... Baris lepidii ...... MB T101–1–2. Netherlands Antilles (includes Bo- Bean (pod or shelled), pigeon pea Cydia fabivora, Epinotia aporema, MB T101–k–2. naire, Curacao, Saba, St. (pod or shelled). Maruca testulalis, and Eustatius). leafminers. New Zealand ...... Apple ...... Tortricidae ...... MB T101–a–1. Asparagus ...... Halotydeus destructor ...... MB T101–b–1–1. Pear ...... Tortricidae ...... MB T101–a–1. Nicaragua ...... Faba bean (pod), green bean Cydia fabivora, Epinotia aporema, MB T101–k–2 or MB T101–k–2– (pod), mung bean (pod), pea Maruca testulalis, and 1. (pod). leafminers. Mango ...... Ceratitis capitata, Anastrepha HWD T102–a. spp., A. ludens. Yard-long-bean (pod) ...... Cydia fabivora, Epinotia aporema, MB T101–k–2 or MB T101–k–2– and Maruca testulalis. 1. Norway ...... Horseradish (to Hawaii) ...... Baris lepidii ...... MB T101–1–2. Panama and canal zone ...... Bean (garden) and lima (pod) ...... Cydia fabivora, Epinotia aporema, MB T101–k–2 or MB T101–k–2– Maruca testulalis, and 1. leafminers. Ethrog ...... Ceratitis capitata ...... CT T107–a. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Grapefruit, orange, tangerine ...... Anastrepha ludens ...... CT T107–b. Pigeon pea (pod or shelled) ...... Cydia fabivora, Epinotia aporema, MB T101–k–2. Maruca testulalis, and leafminers. Peru ...... Asparagus ...... External feeders ...... MB T101–b–1. Bean (pod or shelled) ...... Cydia fabivora, Epinotia aporema, MB T101–k–2. Maruca testulalis, and leafminers. Blueberry ...... Ceratitis capitata ...... MB T101–i–1–1. Grape ...... Species of Anastrepha (other than CT T107–a–1. Anastrepha ludens), Ceratitis capitata. Mango ...... Ceratitis capitata, Anastrepha HWD T102–a. spp., Anastrepha ludens. Okra (pod) ...... Pectinophora gossypiella ...... MB T101–p–2. Philippines ...... Avocado ...... Bactrocera cucurbitae, B. dorsalis, MB T101–c–1. Ceratitis capitata. Mango ...... Bactrocera occipitalis and B. VH T106–d–1. philippinensis. Poland ...... Horseradish ...... Baris lepidii ...... MB T101–1–2. Portugal (includes Azores) ...... Bean, faba (pod or shelled) ...... Cydia fabivora, Epinotia aporema, MB T101–k–2. Maruca testulalis, and leafminers. Ethrog ...... Ceratitis capitata ...... CT T107–a. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Grape ...... Lobesia botrana ...... MB T101–h–2. Ceratitis capitata ...... CT T107–a or MB T101–h–2–1. Ceratitis capitata, Lobesia botrana MB T101–h–2–1. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Horseradish (to Hawaii) ...... Baris lepidii ...... MB T101–1–2.
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Location Commodity Pest Treatment schedule 1
Romania ...... Grape ...... Lobesia botrana ...... MB T101–h–2. Ceratitis capitata ...... CT T107–a or MB T101–h–2–1. Ceratitis capitata, Lobesia botrana MB T101–h–2–1. Ceratitis capitata, Eutetranychus CT T107–a. orientalis. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Horseradish ...... Baris lepidii ...... MB T101–1–2. Russian Federation ...... Grape ...... Lobesia botrana ...... MB T101–h–2. Ceratitis capitata ...... CT T107–a or MB T101–h–2–1. Ceratitis capitata, Lobesia botrana MB T101–h–2–1. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Horseradish ...... Baris lepidii ...... MB T101–1–2. Saint Kitts and Nevis ...... Bean (pod), pigeon pea (pod) ...... Cydia fabivora, Epinotia aporema, MB T101–k–2. Maruca testulalis, and leafminers. Okra (pod) ...... Pectinophora gossypiella ...... MB T101–p–2. Saint Lucia ...... Bean (pod), pigeon pea (pod) ...... Cydia fabivora, Epinotia aporema, MB T101–k–2. Maruca testulalis, and leafminers. St. Martin (France and Nether- Okra (pod) ...... Pectinophora gossypiella ...... MB T101–p–2. lands). Saint Vincent and the Grenadines Bean (pod), pigeon pea (pod) ...... Cydia fabivora, Epinotia aporema, MB T101–k–2. Maruca testulalis, and leafminers. Okra (pod) ...... Pectinophora gossypiella ...... MB T101–p–2. Senegal ...... Bean, garden (pod or shelled) ..... Cydia fabivora, Epinotia aporema, MB T101–k–2 or MB T101–k–2– Maruca testulalis, and 1. leafminers. Slovakia ...... Horseradish ...... Baris lepidii ...... MB T101–1–2. Slovenia ...... Ethrog ...... Ceratitis capitata ...... CT T107–a. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Horseradish ...... Baris lepidii ...... MB T101–l–2. South Africa ...... Apple, grape, pear ...... Ceratitis capitata ...... CT T107–a. Nectarine, peach, plum ...... Cryptophlebia leucotreta and CT T107–e. Pterandrus rosa. Citrus (fruit, Western Cape Prov- Cryptophlebia leucotreta and CT T107–e. ince only). Pterandrus rosa. Spain ...... Apple ...... Ceratitis capitata ...... CT T107–a. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Ethrog ...... Ceratitis capitata ...... CT T107–a. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Grape ...... Lobesia botrana ...... MB T101–h–2. Ceratitis capitata ...... CT T107–a or MB T101–h–2–1. Ceratitis capitata, Lobesia botrana MB T101–h–2–1. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Grapefruit, loquat, orange, tan- Ceratitis capitata ...... CT T107–a. gerine. Horseradish ...... Baris lepidii ...... MB T101–l–2. Kiwi ...... Ceratitis capitata ...... CT T107–a. Lettuce (above ground parts) ...... External feeders and leafminers .. MB T101–n–2. Ortanique (fruit) ...... Ceratitis capitata ...... CT T107–a. Persimmon (fruit) ...... Ceratitis capitata ...... CT T107–a. Suriname ...... Bean (pod or shelled) ...... Cydia fabivora, Epinotia aporema, MB T101–k–2. Maruca testulalis, and leafminers. Okra (pod) ...... Pectinophora gossypiella ...... MB T101–p–2.
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Location Commodity Pest Treatment schedule 1
Sweden ...... Horseradish (to Hawaii) ...... Baris lepidii ...... MB T101–l–2. Switzerland ...... Grape ...... Lobesia botrana ...... MB T101–h–2. Ceratitis capitata ...... CT T107–a or MB T101–h–2–1. Ceratitis capitata, Lobesia botrana MB T101–h–2–1. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Horseradish (to Hawaii) ...... Baris lepidii ...... MB T101–l–2. Syrian Arab Republic ...... Ethrog ...... Ceratitis capitata ...... CT T107–a. Bactrocera cucurbitae, B. dorsalis, MB&T T108–a–1 or T108–a–2 or B. tryoni, Brevipalpus chilensis, T108–a–3. Ceratitis capitata, Lobesia botrana. Grape ...... Lobesia botrana ...... MB T101–h–2. Ceratitis capitata ...... CT T107–a or MB T101–h–2–1. Ceratitis capitata, Lobesia botrana MB T101–h–2–1. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Taiwan ...... Carambola ...... Bactrocera cucurbitae, B. dorsalis, CT T107–f. Eutetranychus orientalis. Horseradish (to Hawaii) ...... Baris lepidii ...... MB T101–l–2. Litchi (including clusters of fruit at- Bactrocera dorsalis, B. cucurbitae, CT T107–h. tached to a stem). Conopomorpha sinensis. Mango ...... Bactrocera dorsalis ...... VH T106–d. Tajikistan ...... Horseradish ...... Baris lepidii ...... MB T101–l–2. Grape ...... Lobesia botrana ...... MB T101–h–2. Ceratitis capitata ...... CT T107–a or MB T101–h–2–1. Ceratitis capitata, Lobesia botrana MB T101–h–2–1. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Thailand ...... Asparagus (shoot) ...... Scirtothrips dorsalis ...... MB T101–b–1–1. Trinidad and Tobago...... Bean (shelled), pigeon pea Cydia fabivora, Epinotia aporema, MB T101–k–2. (shelled). Maruca testulalis, and leafminers. Grapefruit, orange, tangerine ...... Species of Anastrepha (other than CT T107–c. Anastrepha ludens). Okra, roselle ...... Pectinophora gossypiella ...... MB T101–p–2. Tunisia ...... Ethrog ...... Ceratitis capitata ...... CT T107–a Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Grape ...... Lobesia botrana ...... MB T101–h–2. Ceratitis capitata ...... CT T107–a or MB T101–h–2–1. Ceratitis capitata, Lobesia botrana MB T101–h–2–1. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Grapefruit, orange, tangerine ...... Ceratitis capitata ...... CT T107–a. Peach, pear, plum ...... Ceratitis capitata ...... CT T107–a. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Turkey ...... Ethrog ...... Ceratitis capitata ...... CT T107–a. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Grape ...... Lobesia botrana ...... MB T101–h–2. Ceratitis capitata ...... CT T107–a or MB T101–h–2–1. Ceratitis capitata, Lobesia botrana MB T101–h–2–1. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Orange ...... Ceratitis capitata ...... CT T107–a. Turkmenistan ...... Grape ...... Lobesia botrana ...... MB T101–h–2.
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Location Commodity Pest Treatment schedule 1
Ceratitis capitata ...... CT T107–a or MB T101–h–2–1. Ceratitis capitata, Lobesia botrana MB T101–h–2–1. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Horseradish ...... Baris lepidii ...... MB T101–1–2. Ukraine ...... Grape ...... Lobesia botrana ...... MB T101–h–2. Ceratitis capitata ...... CT T107–a or MB T101–h–2–1. Ceratitis capitata, Lobesia botrana MB T101–h–2–1. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Horseradish ...... Baris lepidii ...... MB T101–1–2. United Kingdom (includes Channel Horseradish (to Hawaii) ...... Baris lepidii ...... MB T101–1–2. Islands, Shetland Island). Uruguay ...... Apple, nectarine, peach pear, Species of Anastrepha (other than CT T107–a–1. plum. Anastrepha ludens), Ceratitis capitata. Grape ...... Lobesia botrana ...... MB T101–h–2. Ceratitis capitata ...... CT T107–a or MB T101–h–2–1. Ceratitis capitata, Lobesia botrana MB T101–h–2–1. Uzbekistan ...... Grape ...... Lobesia botrana ...... MB T101–h–2. Ceratitis capitata ...... CT T107–a or MB T101–h–2–1. Ceratitis capitata, Lobesia botrana MB T101–h–2–1. Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 B. tryoni, Brevipalpus chilensis, or T108–a–3. Ceratitis capitata, Lobesia botrana. Horseradish ...... Baris lepidii ...... MB T101–1–2. Venezuela ...... Bean (pod or shelled), pigeon pea Cydia fabivora, Epinotia aporema, MB T101–k–2 or MB T101–k–2– (pod or shelled). Maruca testulalis. 1. Grape, grapefruit, orange, tan- Species of Anastrepha (other than CT T107–a–1. gerine. Anastrepha ludens), Ceratitis capitata. Mango ...... Ceratitis capitata, Anastrepha HWD T102–a. spp., Anastrepha ludens. Okra ...... Pectinophora gossypiella ...... MB T101–p–2. Zimbabwe ...... Apple, kiwi, pear ...... Ceratitis capitata ...... CT T107–a. Apricot, nectarine, peach, plum .... Cryptophlebia leucotreta and CT T107–e. Pterandrus rosa. 1 Treatment by irradiation in accordance with § 305.31 may be substituted for other approved treatments for the mango seed weevil Sternochetus mangiferae (Fabricus) or for one or more of the following 11 species of fruit flies: Anastrepha fraterculus, A. ludens, A. obliqua, A. serpentina, A. suspensa, Bactrocera cucurbitae, B. dorsalis, B. tryoni, B. jarvisi, B. latifrons, and Ceratitis capitata.
(ii) Treatment for shipments from U.S. quarantine localities.
Location Commodity Pest Treatment schedule
Areas in the United States under Fruit of the genera Citrus and Xanthomonas axonopodis pv. citri CMisc. CC1 or CMisc. CC2. Federal quarantine for the listed Fortunella and of the species pest. Clausena lansium and Poncirus trifoliata. Any fruit listed in § 301.64–2(a) of Anastrepha ludens ...... IR. this chapter. Any article listed in § 301.78–2(a) Ceratitis capitata ...... IR. of this chapter. Apple ...... Anastrepha ludens ...... CT T107–b. Anastrepha spp. (other than A. CT T107–a–1 or CT T107–c. ludens). Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 Ceratitis capitata. or T108–a–3. Ceratitis capitata ...... CT T107–a or MB&CT T108–b. Apricot ...... Anastrepha ludens ...... CT T107–b. Bactrocera dorsalis, Ceratitis MB&CT T108–a–1 or T108–a–2 capitata. or T108–a–3. Ceratitis capitata ...... CT T107–a. Avocado ...... Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 Ceratitis capitata. or T108–a–3.
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Location Commodity Pest Treatment schedule
Bell pepper ...... Bactrocera cucurbitae, B. dorsalis, VH T106–b–1. Ceratitis capitata. Cherry ...... Bactrocera dorsalis, Ceratitis MB&CT T108–a–1 or T108–a–2 capitata. or T108–a–3. Ceratitis capitata ...... CT T107–a. Citrons ...... Anastrepha ludens ...... CT T107–b. Ceratitis capitata ...... CT T107–a. Citrus ...... Anastrepha ludens ...... FHA T103–a–1. Anastrepha spp. (other than A. CT T107–a–1, CT T107–c. ludens). Bactrocera dorsalis ...... MB&CTOFF or CT&MBOFF. Ceratitis capitata ...... CT T107–a or MB T101–w–1–2. Citrus fruit regulated under Ceratitis capitata ...... MB&CTMedfly or CTMedfly. § 301.78–2(a) of this chapter. Citrus fruit regulated under Anastrepha serpentina ...... MBSFF. § 301.99–2(b) of this chapter. Eggplant ...... Bactrocera cucurbitae, Ceratitis VH T106–b–2. capitata. Grape ...... Bactrocera cucurbitae, B. dorsalis, CT T107–f or MB&CT T108–a–1 Ceratitis capitata. or T108–a–2 or T108–a–3. Bactrocera dorsalis ...... MB&CTOFF or CT&MBOFF. Ceratitis capitata ...... MB T101–h–2–1 or CT T107–a or MB&CT T108–b. Grapefruit ...... Anastrepha ludens ...... CT T107–b or MB T101–j–2–1 or FHA T103–a–1. Ceratitis capitata ...... CT T107–a. Kiwi ...... Ceratitis capitata ...... CT T107–a or MB T101–m–2–1 or MB&CT T108–a–1 or T108– a–2 or T108–a–3. Litchi ...... Anastrepha ludens ...... CT T107–b. Longan ...... Anastrepha ludens ...... CT T107–b. Bactrocera dorsalis ...... CT T107–h. Loquat ...... Ceratitis capitata ...... CT T107–a. Nectarine ...... Bactrocera dorsalis ...... MB&CT T108–a–1or T108–a–2 or T108–a–3. Ceratitis capitata ...... CT T107–a or CT T107–c or MB&CT T108–a–1 or T108–a–2 or T108–a–3. Okra ...... Pectinophora gossypiella ...... MB T101–p–2. Orange ...... Anastrepha ludens ...... CT T107–b MB T101–j–2–1 orFHA T103–a–1. Ceratitis capitata ...... CT T107–a or CT T107–c. Optunia cactus (Optunia spp.) ..... Ceratitis capitata ...... MB T101–d–3. Papaya ...... Bactrocera cucurbitae, B. dorsalis, VH T106–c VH T106–b–4 or. Ceratitis capitata. Peach ...... Anastrepha ludens ...... CT T107–b. Anastrepha spp. (other than A. CT T107–a–1. ludens). Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 Ceratitis capitata. or T108–a–3. Ceratitis capitata ...... CT T107–a or T107–c. Pear ...... Anastrepha ludens ...... CT T107–b. Anastrepha spp. (other than A. CT T107–a–1. ludens). Bactrocera cucurbitae, B. dorsalis, MB&CT T108–a–1 or T108–a–2 Ceratitis capitata. or T108–a–3. Ceratitis capitata ...... CT T107–a or CT T107–c or MB&CT T108–b. Pepper, bell ...... Bactrocera cucurbitae, B. dorsalis, VH T106–b–1. Ceratitis capitata. Persimmons ...... Anastrepha ludens ...... CT T107–b. Pineapple (other than smooth Bactrocera cucurbitae, B. dorsalis, VH T106–b–5. Cayenne). Ceratitis capitata. Plum ...... Anastrepha ludens ...... CT T107–b. Bactrocera dorsalis ...... MB&CT T108–a–1 or T108–a–2 or T108–a–3. Ceratitis capitata ...... CT T107–a or CT T107–c or MB&CT T108–a–1 or T108–a–2 or T108–a–3. Pomegranate ...... Anastrepha ludens ...... CT T107–b. Ceratitis capitata ...... CT T107–a or CT T107–c. Pummelo ...... Ceratitis capitata ...... CT T107–a. Quince ...... Anastrepha ludens ...... CT T107–b.
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Location Commodity Pest Treatment schedule
Anastrepha spp. (other than A. CT T107–a–1. ludens. Bactrocera dorsalis ...... MB&CT T108–a–1 or T108–a–2 or T108–a–3. Ceratitis capitata ...... CT T107–a. Squash ...... Bactrocera cucurbitae, B. dorsalis VH T106–b–6. Tomato ...... Bactrocera cucurbitae, B. dorsalis, VH T106–b–7. Ceratitis capitata. Bactrocera dorsalis ...... MBOFF. Ceratitis capitata ...... MB T101–c–3. White sapote ...... Anastrepha ludens ...... CT T107–b. Hawaii ...... Abiu ...... Bactrocera cucurbitae, B. dorsalis, IR. Ceratitis capitata. Atemoya ...... Bactrocera cucurbitae, B. dorsalis, IR. Ceratitis capitata. Avocado ...... Bactrocera cucurbitae, B. dorsalis, MB T101–c–1. Ceratitis capitata. Ceratitis capitata ...... CT T107–a. Bactrocera cucurbitae, B. dorsalis, CT T108–a–1 or T108–a–2 or B. tryoni, Ceratitis capitata, T108–a–3. Brevipalpus chiliensis, and Lobesia botrana. Bell pepper ...... Bactrocera cucurbitae, B. dorsalis, IR or VH T106–b–1. Ceratitis capitata. Carambola ...... Bactrocera cucurbitae, B. dorsalis, IR. Ceratitis capitata. Citrus ...... Bactrocera cucurbitae, B. dorsalis, FHA T103–b–1. Ceratitis capitata. Eggplant ...... Bactrocera cucurbitae, B. dorsalis, IR or VH T106–b–2. Ceratitis capitata. Litchi ...... Bactrocera or dorsalis, Ceratitis HWI T102–d or VH T106–f. capitata. Bactrocera cucurbitae, B. dorsalis, IR. Ceratitis capitata. Longan ...... Bactrocera dorsalis, Ceratitis HWI T102–d–1. capitata. Bactrocera cucurbitae, B. dorsalis, IR. Ceratitis capitata. Mango ...... Bactrocera cucurbitae, B. dorsalis, IR. Ceratitis capitata. Papaya ...... Bactrocera cucurbitae, B. dorsalis, VH T106–b–4 or VH T106–c or Ceratitis capitata. FHA T103–d–2 or IR. Pineapple (other than smooth Bactrocera cucurbitae, B. dorsalis, IR or VH T106–b–5. Cayenne). Ceratitis capitata. Rambutan ...... Bactrocera dorsalis, Ceratitis FHA T103–e or VH T106–g. capitata. Bactrocera cucurbitae, B. dorsalis, IR. Ceratitis capitata. Sapodilla ...... Bactrocera cucurbitae, B. dorsalis, IR. Ceratitis capitata. Squash, Italian ...... Bactrocera cucurbitae, B. dorsalis, IR or VH T106–b–6. Ceratitis capitata. Sweet potato ...... Euscepes postfasciatus, Omphisa MB T101–b–3–1 or IR. anastomosalis, Elytrotreinus subtruncatus. Tomato ...... Ceratitis capitata ...... VH T106–b–5 or MB T101–c–3. Bactrocera cucurbitae, B. dorsalis, IR or VH T106–b–7. Ceratitis capitata. Puerto Rico ...... Beans (string, lima, faba) and pi- Cydia fabivora, Epinotia aporema, MB T101–k–2 or MB T101–k–2– geon peas (fresh shelled or in Maruca testulalis, 1. the pod). Melanagromyza obtusa, and leafminers. Citrus fruits (orange, grapefruit, Anastrepha obliqua ...... CT T107–c. lemon, citron, and lime). Mango ...... Anastrepha spp., Ceratitis HWD T102–a. capitata. Okra (pod) ...... Pectinophora gossypiella ...... MB T101–p–2. Sweet potato ...... External and internal feeders ...... MB T101–b–3–1. Pigeon pea (pod or shelled) ...... Cydia fabivora, Epinotia aporema, MB T101–k–2. Maruca testulalis, and leafminers. Virgin Islands ...... Beans (string, lima, faba) and pi- Cydia fabivora, Epinotia aporema, MB T101–k–2 or MB T101–k–2– geon peas, in the pod. Maruca testulalis, and 1. leafminers.
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Location Commodity Pest Treatment schedule
Citrus fruits (orange, grapefruit, Anastrepha obliqua ...... CT T107–c. lemon, citron, and lime). Mango ...... Anastrepha spp., Ceratitis HWD T102–a. capitata. Okra (pod) ...... Pectinophora gossypiella ...... MB T101–p–2. Sweet potato ...... External and internal feeders ...... MB T101–b–3–1.
(i) Garbage. For treatment of garbage, for which administration instructions § 305.23 for steam sterilization (SS), and see § 305.33. are not provided are in § 305.6 for § 305.25 for dry heat (DH). (j) Grains and seeds not intended for methyl bromide (MB) fumigation, propagation. The treatment schedules
Plant material Pest Treatment schedule
Acorns ...... Cydia splendana and Curculio spp ...... MB T302–g–1 or MB T302–g–2. Corn seed (commercial lots) ...... Various corn-related diseases ...... SS T510–1. Ear corn ...... Borers ...... MB T302–a–1–1 or DH T302–a–1–2. Grains and seeds (guar ‘‘gum’’) ...... Trogoderma granarium ...... MB T302–c–1 or MB T302–c–3. Grains and seeds ...... Trogoderma granarium ...... MB T302–c–2. Grains and seeds contaminated with cotton Pectinophora spp ...... MB T301–a–1–1 or MB T301–a–1–2. seed. Grains and seeds ...... Insects other than Trogoderma granarium ...... MB T302–e–1 or MB T302–e–2. Grains and seeds excluding Rosmarinus seed Snails ...... T302–f: Remove snails through separation by screening or hand removal. If not feasible, an inspector will deny entry or treat with ap- propriate schedule (See miscellaneous cargo in paragraph (m) of this section.). Shelled corn contaminated with cottonseed. (Do Pectinophora spp ...... MB T302–b–1–2 (See MB T301–a–1–1 or MB not use shelled corn treated with T301 for T301–a–1–2.). food or feed.).
(k) Hay, baled. For treatment of baled beetle, see treatment schedule T307–a in (m) Miscellaneous (nonfood, nonfeed hay for Mayetiola destructor, see the § 305.26. commodities or articles). The treatment phosphine treatment schedule T311 in (2) See treatment schedule T306–c–1 schedules for which administration § 305.7. in § 305.6 for finely ground oily meals instructions are not provided are in (l) Khapra beetle. and flour. § 305.6 for methyl bromide (MB) (1) For the heat treatment of feeds and (3) See also specific articles where the fumigation, § 305.8 for sulfuryl fluoride, milled products that are heated as a part pest is Trogoderma granarium (khapra § 305.16 for cold treatment (CT), and of the processing procedure, or for other beetle). § 305.23 for steam sterilization (SS). commodities that can be subjected to (4) See treatment schedule T302–g–1 heat, and that are infested with khapra in § 305.6 for sorptive materials.
Material Pest Treatment schedule
Brassware from Bombay (Mumbai), India ...... Trogoderma granarium ...... MB T413–a or MB T413–b. Inanimate, nonfood articles ...... Gypsy moth egg masses ...... MB T414. Miscellaneous cargo (nonfood, nonfeed com- Quarantine significant snails of the family MB T402–a–1 or CT T403–a–6–3. modities). Achatinidae, including Achatina, Archachatina, Lignus, Limicolaria. Quarantine significant snails of the family MB T403–a–2–1 or MB T403–a–2–2 or CT Hygromiidae, including the following gen- T403–a–2–3. era: Canidula, Cernuella, Cochlicella, Helicella, Helicopsis, Monacha, Platytheba, Pseudotrichia, Trochoidea, Xerolenta, Xeropicta, Xerosecta, Xerotricha. Quarantine significant slugs of the families MB T403–a–3. Agriolimacidae, Arionidae, Limacidae, Milacidae, Philomycidae, Veronicellidae, in- cluding the following genera: Agriolimax, Arion, Colosius, Deroceras, Diplosolenodes, Leidyula, Limax, Meghimatium, Milax, Pallifera, Pseudoveronicella, Sarasinula, Semperula, Vaginulus, Veronicella. Quarantine significant snails of the family MB T403–a–4–1 or MB T403–a–4–2 or CT Helicidae, including the following genera: T403–a–4–3. Caracollina, Cepaea, Cryptomphalus, Helix, Otala, Theba.
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Material Pest Treatment schedule
Quarantine significant snails of the families MB T403–a–5–1 or MB T403–a–5–2, or CT Bradybaenidae and Succineidae, including T403–a–5–3. the following genera: Bradybaena, Cathaica, Helicostyla, Omaloynyx, Succinea, Trishoplita. Quarantine significant snails sensitive to cold CT T403–a–6–1. treatment. Members of the families Bradybaenidae, Helicidae, Helicellidae, Hygromiidae, and Succineidae, including the following genera: Bradybaena, Candidula, Cepaea, Cathaica, Cernuella, Cochlicella, Helicella, Helicostyla, Theba, Trishoplita, Trochoidea, Xerolenta, Xeropicta, Xerosecta, Xerotricha. Quarantine significant snails sensitive to cold CT T403–a–6–2. treatment, certain members of the family Helicidae, including the genera Helix and Otala. Quarantine significant snails sensitive to cold CT T403–a–6–3. treatment of the family Achatinidae, includ- ing the genera Achatina, Archachatina, Lignus, Limicolaria. Globodera rostochiensis ...... MB T403–c. Trogoderma granarium ...... MB T401–b or MB T402–b–2. Wood borers or termites ...... See treatments for wood products in para- graph (y) of this section. Pieris spp. (all life stages of cabbageworms) MB T403–f. and all other Lepidoptera, hitchhiking in- sects, including other than Lepidoptera. Miscellaneous cargo (nonfood, nonfeed com- Quarantine significant insects not specifically MB T403–e–1–1 or MB T403–e–1–2. modities) that is sorptive or difficult to pene- provided for elsewhere in nonfood or trate. nonfeed commodities. Miscellaneous cargo (nonfood, nonfeed com- Quarantine significant pests other than insects MB T403–e–2. modity) that is not sorptive or difficult to pen- (including snails of the families etrate. Helicarionidae, Streptacidae, Subulinidae, and Zonitidae, as well as other noninsect pests). Nonfood materials ...... Ticks ...... MB T310–a or MB T310–b or sulfuryl fluoride T310–d. Nonplant articles ...... Potato cyst nematode ...... MB T506–2–1 or SS T506–2–3. Nonplant products ...... Ants ...... MB T411.
(n) Plants, bulbs, corms, tubers, instructions are not provided are in (COM), and § 305.42(c) for rhizomes, and roots. The treatment § 305.6 for methyl bromide (MB) miscellaneous (Misc.). schedules for which administration fumigation, § 305.10 for combination
Plant material Pest Treatment schedule
Anchusa, Astilbe, Clematis, Dicentra, Gardenia, Lesion nematodes (Pratylenchus spp.) ...... T553–2: Hot water dip at 118 °F for 30 min- Helleborus, Hibiscus, Kniphofia, Primula. utes. Acalypha ...... Pratylenchus spp ...... T570–1: Hot water dip at 110 °F for 50 min- utes. Aconitum ...... Aphelenchoides fragariae spp ...... T570–2: Hot water dip at 110 °F for 50 min- utes. Allium, Amaryllis, and bulbs ...... Bulb nematodes: Ditylenchus dipsaci, D. de- T552–1: Presoak bulbs in water at 75 °F for 2 structor. hours, then at 110–111 °F for 4 hours. Amaryllis ...... Ditylenchus destructor ...... T565–1: Hot water dip at 110 °F for 4 hours immediately after digging. Aquatic plants...... Snails of the families: Ampullariidae, T201–q: Hot water treatment at 112 °F for 10 Bulinidae, Lymnaeidae, Planorbidae, minutes. (Elodea, Danes, and Cabomba Viviparidae. caroliniana plants not tolerant to this treat- ment.) Armoracea (horseradish roots), bulbs (not spe- Globodera rostochiensis and G. pallida ...... T553–3: Hot water dip at 118 °F for 30 min- cifically provided for). utes. Astilbe, Bletilla hyacinthina, Cimicifuga, Aphelenchoides besseyi ...... T564–1: Presoak in water at 68 °F for 1 hour Epimedium pinnatum, Hosta, Paeonia. followed by hot water soak at 110 °F for 1 hour. Then dip in cold water and let dry. Astilbe roots ...... Brachyrhinus larvae ...... MB T202–b. Azalea ...... Chrysomyxa spp ...... T501–1: Remove infested parts and treat all plants of same species in shipment with 4– 4–50 Bordeaux dip or spray.
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Plant material Pest Treatment schedule
Azalea hybrid ...... Chrysomyxa spp ...... T501–2: Remove infested parts and treat all plants of same species in shipment with 4– 4–50 Bordeaux dip or spray; or T505–1–1: Treat with mancozeb or other approved fun- gicide of equal effectiveness according to the label. Banana roots ...... External feeders ...... T202–c: Pretreatment at 110 °F for 30 min- utes. Then, hot water dip at 120 °F for 60 minutes. Begonia ...... Aphelenchoides fragariae ...... T559–1: Dip in hot water at 118 °F for 5 min- utes. Bletilla hyacinthina ...... Aphelenchoides fragariae ...... T553–4: Dip in hot water at 118 °F for 30 minutes. Bromeliads ...... External feeders ...... MB T201–e–1. Internal feeders such as borers and miners .... MB T201–e–2. Phyllosticta bromeliae Uredo spp ...... T507–1: Remove infested leaves and treat all plants of same species in shipment with Captan following label directions. Cacti and other succulents ...... External feeders (other than soft scales) in- MB T201–f–1. festing collected dormant and nondormant plant material. Borers and soft scales ...... MB T201–f–2. Calla (rhizomes) ...... Meloidogyne spp ...... T556–1: Dip in hot water at 122 °F for 30 minutes. Camellia (light infestation) ...... Cylindrosporium camelliae ...... Light infestation: T509–1–1: Remove infested leaves and dip or spray plant with 4–4–50 Bordeaux. Dry quickly and thoroughly. Heavy infestation: An inspector will refuse entry. Christmas tree ...... Phoma chrysanthemi ...... T501–5: Remove infested parts and treat all plants of same species in shipment with 4– 4–50 Bordeaux dip or spray. Chrysanthemum ...... Phoma chrysanthemi ...... T501–4: Remove infested parts and treat all plants of same species in shipment with 4– 4–50 Bordeaux dip or spray. Chrysanthemum rooted and unrooted cuttings .. Aphids ...... MB T201–g–1. External feeders ...... COM T201–g–2. Leafminers, aphids, mites, etc. T201–g–3: Dip in hot water at 110–111 °F for (Chrysanthemum spp. from Dominican Re- 20 minutes. public and Colombia when infested with Agromyzid leafminers requires no treatment unless destined to Florida.). Chrysanthemum (not including Pyrethrum) ...... Meloidogyne spp. and Pratylenchus spp ...... T557–1: Dip in hot water at 118 °F for 25 minutes. Commodities infested with...... Slugs of the families Agriolimacidae, MB T201–l. Arionidae, Limacidae, Milacidae, Philomycidae, Veronicellidae, including the following genera: Agriolimax, Arion, Colosius, Deroceras, Diplosolenodese, Leidyula, Limax, Meghimatium, Milax, Pallifera, Pseudoveronicella, Sarasinula, Semperula, Vaginulus, Veronicella. Convallaria ...... Globodera rostochiensis and G. pallida ...... T551–1: Keep the pips frozen until time for treatment. Then thaw enough to separate bundles just before treatment begins. With- out preliminary warmup, immerse in hot water at 118 °F for 30 minutes. Crocus ...... Aphelenchoides subtenuis, Ditylenchus de- T565–2: Hot water at 110 °F for 4 hours im- structor. mediately after digging. Cycads (except Dioon edule) ...... External feeders ...... MB T201–h–1. Deciduous woody plants (dormant) ...... External feeders ...... MB T201–a–1. Gypsy moth egg masses ...... MB T313–a or MB T313–b. Mealybugs ...... MB T305–c. Deciduous woody plants (dormant), root Borers, Citrus whitefly hosts ...... MB T201–a–2 or MB T201–k–1. cuttings, scion wood cuttings, and nonfoliated citrus whitefly host: Acer, Berberis, Fraxinus, Philadelphus, Rosa, Spiraea, Syringa. Dioon edule ...... External feeders ...... MB T201–h–2. Dieffenbachia, Dracaena, Philodendron (plants External feeders ...... MB T201–i–1. and cuttings). Internal feeders ...... MB T201–i–2. Evergreens (Azalea, Berberis, Camellia, External feeders ...... MB T201–b–1. Cedrus, Cupressus, Ilex, Juniperus, Photinia, Podocarpus, Thuja, and Taxus).
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Plant material Pest Treatment schedule
Exceptions: Araucaria ...... External feeders ...... MB T201–c–1. Azalea indica ...... External feeders ...... MB T201–c–2. Cycads ...... External feeders ...... MB T201–l. Hosts ...... Dialeurodes citri ...... MB T201–k–1. Daphne ...... External feeders ...... MB T201–c–1. Lavandula ...... External feeders ...... Misc. T201–p–1. Osmanthus americanus ...... External feeders ...... COM T201–p–2. Pinus (Canada to certain States) ...... MB T201–j. Peanuts ...... Gypsy moth egg masses ...... MB T313–a. Foliated host plants of Dialeurodes citri, exclud- Dialeurodes citri ...... MB T201–k–1. ing Osmanthus americanus. Fragaria (strawberry) ...... Aphelenchoides fragariae ...... T569–1: Hot water at 121 °F for 7 minutes. Pratylenchus spp...... T558–1: Dip in hot water at 127 °F for 2 min- utes. Garlic (see § 319.37–6(c)) ...... Brachycerus spp. and Dyspessa ulula ...... MB T202–j. Gentiana ...... Septoria gentianae ...... T507–2: Remove infested leaves and treat all plants of same species in shipment with Captan following label directions. Gladiolus ...... Taeniothrips simplex ...... MB T202–e–1 or MB 202–e–2. Ditylenchus destructor ...... T565–3: Hot water at 110 °F for 4 hours im- mediately after digging. Greenhouse-grown plants, herbaceous plants External feeders, leafminers, thrips ...... MB T201–c–1. and cuttings, greenwood cuttings of woody plants. Borers and soft scales ...... MB T201–c–2. Exceptions: Bromeliads ...... External feeders ...... MB T201–e–3–1. Cacti and other succulents ...... External feeders ...... MB T201–j. Chrysanthemum ...... External feeders ...... MB T201–g–1. Cycads ...... External feeders ...... MB T201–1. Cyclamen ...... Mites ...... MB T201–a–2. Dieffenbachia, Dracaena, and Philoden- External feeders ...... MB T201–i–1. dron. Kalanchoe synsepala ...... Quarantine pests, excluding scale insects ...... Misc. T201–p–1. Lavandula ...... Quarantine pests ...... COM T201–p–2. Orchids ...... Dialeurodes citri ...... MB T201–k–2. Osmanthus americanus ...... Quarantine pests ...... Misc. T201–p–1. Pelargonium ...... Quarantine pests ...... Misc. T201–p–1. Sedum adolphi ...... Quarantine pests ...... Misc. T201–p–1. Plants infested with ...... Succinea horticola ...... T201–o–1: Use a high-pressure water spray on the foliage to flush snails from the plants. The run-off drain must be screened to catch snails before drainage into the sewer system. Plants infested with ...... Veronicella or other slugs ...... MB T201–1. Horseradish roots from the countries of Arme- External feeders ...... MB T202–f. nia, Azerbaijan, Belarus, Bosnia, Herzegovina, Croatia, Czech Republic, Esto- nia, Georgia, Germany, Hungary, Italy, Kazakhstan, Kyrgyzstan, Latvia, Lithuania, Macedonia, Moldova, Poland, Russia, Serbia and Montenegro, Slovakia, Slovenia, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan. Host plants of Aleurocanthus woglumi ...... Aleurocanthus woglumi ...... MB T201–n. Host plants of Omalonyx unguis and Succinea Omalonyx unguis and Succinea spp. (snails) T201–o–1: Use a high-pressure water spray on the foliage to flush snails from the plants. The run-off drain must be screened to catch snails before drainage into the sewer system; or T201–o–2: Dip plants with solution prepared by adding 3 level table- spoons of 25 percent Malathion wettable powder and 6 level teaspoons of 50 percent carbaryl wettable powder per gallon of water with a sticker-spreader formulation. Humulus ...... Heterodera humuli ...... T553–5: Hot water at 118 °F for 30 minutes. Hyacinthus (bulbs), Iris (bulbs and rhizomes), Ditylenchus dipsaci and D. destructor ...... T554–1–1: Presoak in water at 70–80 °F for Tigridia. 2.5 hours followed by hot water immersion at 110–111 °F for 1 hour; or T554–1–2: Hot water immersion at 110–111 °F for 3 hours with no presoaking. Lilium (bulbs) ...... Aphelenchoides fragariae ...... T566–3: Completely submerge in hot water at 102 °F.
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Plant material Pest Treatment schedule
Lily bulbs packed in subsoil ...... Internal feeders ...... MB T202–g. Lycoris ...... Taeniothrips eucharii ...... MB T202–h. Muscari, Ornithogalum, Polianthes (tuberose) ... Ditylenchus dipsaci ...... T567–1: Dip in hot water at 113 °F for 4 hours. Narcissus ...... Steneotarsonemus laticeps ...... MB T202–i–1; or MB T202–i–2; or T202–i–3: Hot water at 110–111 °F for 1 hour after bulbs reach 110 °F pulp temperature. Apply hot water within 1 month after normal har- vest as injury to flower bud may occur. Ditylenchus dipsaci ...... T555–1: Presoak in water at 70–80 °F for 2 hours; then at 110–111 °F until all bulbs reach that temperature and hold for 4 hours. Nonfoliated host plants of Dialeurodes citri, ex- Dialeurodes citri ...... MB T201–k–2. cluding Osmanthus americanus. Orchids ...... Ascochyta spp ...... T513–1: Defoliate if leaf-borne only; inspector will refuse entry if pseudo-bulbs infested. Cercospora spp ...... T501–3: Remove infested parts and treat all plants of same species in shipment with 4– 4–50 Bordeaux dip or spray. Hemileia spp., Leptosphaeria spp., Light infestation: T509–2–1: Remove infested Mycosphaerella spp., Ophiodothella leaves and treat plant with 4–4–50 Bor- orchidearum, Phomopsis orchidophilia, deaux dip or spray. Dry quickly and thor- Phyllachora spp., Phyllosticta spp., oughly. Heavy infestation: An inspector will Sphenospora spp., Sphaerodothis spp., refuse entry. Uredo spp. (except U. scabies). Orchids, plants and cuttings (see MB T305–c External feeders (other than soft scales) ...... MB T201–d–1. for mealybugs). Orchids, plants and cuttings ...... External feeders (other than soft scales) in- MB T201-d-2. festing greenhouse grown plant material. Borers, cattleya fly, Mordellistena spp., soft MB T201–d–3. scales, Vinsonia spp. Cecidomyid galls ...... T201–d–4:Excise all galls. Leaf miner, Eurytoma spp. infesting T201–d–5: Hot water dip at 118 °F for 1⁄2 hour Rhynchostylis. followed by a cool water bath. Orchids to Florida ...... Rusts ...... T508–1: An inspector will refuse entry of all infested plants and all other plants of the same species or variety in the shipment. Other orchid species in the shipment that may have become contaminated must be treated with Captan. Repackage treated or- chids in clean shipping containers. Oryza (paddy rice) ...... Aphelenchoides fragariae ...... T559–2: Dip in hot water at 132.8 °F for 15 minutes. Pineapple slips ...... Various ...... MB T201–e–3–1 or MB T201–e–3–2. Pines (Pinus spp.) from Canada and destined Rhyacionia buoliana ...... MB T201–j. to California, Idaho, Oregon, or Utah. Pre- cautionary treatment for pine trees and twigs and branches of all Pinus spp., except that Christmas trees and other pine decorative materials are exempt from treatment from November 1–December 31. Plant cuttings: Scion wood ...... External feeders ...... MB T201–m–1. Greenwood cuttings of woody plants and External feeders ...... MB T201–m–2. herbaceous plant cuttings. Root cuttings ...... External feeders ...... MB T201–m– or MB T201–m–4. Exceptions to plant cuttings: Avocado ...... External feeders ...... COM T201–p–1. Chrysanthemum ...... External feeders ...... MB T201–g–1. Dieffenbachia ...... External feeders ...... MB T201–i–1. Dracaena ...... External feeders ...... MB T201–i–2. Lavandula ...... External feeders ...... COM T201–p–1. Orchids ...... External feeders ...... MB T201–k–2. Philodendron ...... External feeders ...... MB T201–i–1. Plant material not tolerant to fumigation ...... Actionable pests ...... COM T201–p–1. Rhododendron ...... Chrysomyxa spp...... T501–6: Remove infested parts and treat all plants of same species in shipment with 4– 4–50 Bordeaux dip or spray; or T505–2–1: Treat with mancozeb or other approved fun- gicide of equal effectiveness according to the label instructions. Rosa (except multiflora) ...... Meloidogyne spp...... T560–1: Dip in hot water at 123 °F for 10 minutes.
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Plant material Pest Treatment schedule
Selaginella ...... External feeders ...... MB T202–a–1 or MB T202–a–2. Internal feeders ...... MB T202–a–3. Senecio (Lingularis) ...... Aphelenchoides fragariae ...... T568–1: Treat with hot water at 110 °F for 1 hour. Scilla ...... Ditylenchus dipsaci ...... T565–4: Hot water at 110 °F for 4 hours im- mediately after digging. Solanum (potato tubers) ...... Globodera rostochiensis, G. pallida ...... T565–5: Hot water at 110 °F for 4 hours im- mediately after digging. Various plant commodities ...... Meloidogyne spp...... T553–1: Hot water at 118 °F for 30 minutes. Yams and sweet potatoes ...... MB T202–d.
(o) Railroad cars (empty). The provided are in § 305.6 for methyl treatment schedules for which bromide (MB) fumigation. administration instructions are not
Pest Treatment schedule
Globodera rostochiensis ...... T406–c, steam cleaning: Steam at high pressure until all soil is re- moved. Treated surfaces must be thoroughly wet and heated. Pectinophora gossypiella ...... MB T401–a. Trogoderma granarium ...... MB T401–b. Nematode cysts ...... T401–c, high pressure steam cleaning; or formaldehyde wetting spray (one part 40 percent commercial formalin to 9 parts water).
(p) Rice straw and hulls. The provided are in § 305.25 for dry heat fumigation, and § 305.23 for steam treatment schedules for which (DH), § 305.6 for methyl bromide (MB) sterilization (SS). administration instructions are not
Plant material Pest Treatment schedule
Articles made with rice straw ...... Fungal diseases of rice or internal feeders ..... DH T303–d–1 or SS T303–b–1 or SS T303– d–2. Articles made with rice straw for indoor use Internal feeders ...... MB T303–d–2–2 or MB T303–d–2–3. only. Brooms made of rice straw ...... Various rice-related diseases ...... DH T518–1. Closely packed rice straw and hulls ...... Various rice-related diseases ...... SS T519–1. Loose rice straw and hulls ...... Various rice-related diseases ...... SS T519–2. Novelties made of rice straw ...... Various rice-related-diseases ...... DH T518–2–1 or SS T518–2–2. Rice straw and hulls imported for purposes Fungal diseases of rice ...... SS T303–b–1 or SS T303–b–2. other than approved processing. Rice straw and hulls imported in small lots of Fungal diseases of rice ...... DH T303–c–1. 25 pounds or less.
(q) Seeds. The treatment schedules for combination (COM) treatments, § 305.25 phosphine (PH), and § 305.24 for vapor which numbers are specified and for dry heat (DH), § 305.6 for methyl heat (VH). administration instructions are not bromide (MB) fumigation, § 305.7 for (1) Seeds other than noxious weed provided are in § 305.10 for seeds.
Type of seeds Pest Treatment schedule
Alfalfa (Medicago sativa) from Europe ...... Verticillium albo-atrum ...... T520–1–1: Dust with 75 percent Thiram at the rate of 166 grams per 50 kilograms of seed (3.3g/kg); or T520–1–2: Treat with a slurry of Thiram 75 WP at a rate of 166 grams per 360 milliliters of water per 50 kilograms of seed (3.3 g pesticide/7.2 ml water/kg seed). Avocado (no pulp) ...... Conotrachelus spp., Heilipus lauri, MB T203–m. Caulophilus latinasus, Copturus aguacatae, Stenoma catenifer. Casuarina ...... Bootanomyia spp...... MB T203–o–l. Chestnut and acorn ...... Internal feeders ...... MB T203–e. Citrus (Rutaceae family) ...... Citrus canker ...... COM T203–p; or for seed from regions where citrus canker occurs, COM T511–1. Conifer (species with small seeds, such as External feeders ...... MB T203–i–1. Picea spp., Pinus sylvestris, and Pinus mugo).
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Type of seeds Pest Treatment schedule
Conifer (species with small seeds, such as Internal feeders ...... MB T203–i–2. Picea spp., Pinus sylvestris, and Pinus mugo and nutlike seeds or tightly packed seeds so as to make fumigant penetration question- able). Corn (small lots for propagation but not for Various corn-related diseases ...... T510–2: Treat seeds with a dry application of food, feed, or oil purposes). Mancozeb in combination with Captan. Dis- infect small bags containing corn (bags weighing 60 pounds or less) only with: (1) Dry heat at 212 °F for 1 hour; or (2) steam at 10 pounds pressure at a minimum of 240 °F for 20 minutes. Note: Bags with plastic liners must be opened prior to treatment. Cottonseed (bagged, packaged, or bulk) ...... External feeders ...... MB T203–f–1 or MB T203–f–2 or MB T203–f– 3 or PH T203–f–4. Hevea brasiliensis ...... Seed boring insects ...... MB T203–j. Pods and seeds of kenaf, hibiscus, and okra ... Internal feeders ...... MB T203–g–1 or MB T203–g–2 or PH T203– g–3. Leguminosae=Fabaceae ...... Bruchophagus spp. and Eurytoma spp...... MB T203–o–3. Caryedon spp...... MB T203–c or MB T203–a–2. Caryedon spp. (in or with, etc.) ...... MB T203–o–4–1 or MB T203–o–4–2. Lonicera and other seeds ...... Rhagoletis cerasi pupae (Diptera: Tephritidae) MB T203–o–5. Macadamia nut ...... Cryptophlebia illepida ...... MB T203–k. Rosmarinus ...... Juvenile Helicella spp. (snails) or internal MB T203–h. feeders. Umbelliferae ...... Systole spp...... MB T203–o–2. Vicia spp., excluding seeds of Vicia faba ...... Bruchidae ...... MB T203–d–1. Vicia spp., including seeds of Vicia faba ...... Bruchidae ...... MB T203–d–2. Seeds ...... Trogoderma granarium ...... MB T203–l. Seeds (excluding seeds of Vicia spp.) ...... Bruchidae excluding Caryedon spp. at NAP ... MB T203–b. Seeds not specifically listed ...... External feeders ...... MB T203–a–1. Internal feeders ...... MB T203–a–2. Seeds with infested pulp ...... Fruit flies and other pulp infesting insects ...... T203–n: Place seed in wire basket. Immerse in 118–125 °F water for 25 minutes. Re- move pulp from seed under running tap water.
(2) Noxious weed seeds (devitalization treatment).
Weed seeds Treatment schedule
Asphodelus fistulosus, Digitaria spp., Oryza spp., Paspalum DH T412–a. scrobiculatum, Prosopis spp., Solanum viarum, Striga spp., Urochloa panicoides. Cuscuta spp...... DH T412–b–1 or VH T412–b–2.
(r) Ships, containers, and surrounding provided are in § 305.6 for methyl area. The treatment schedules for which bromide (MB) fumigation. administration instructions are not
Product Pest Treatment schedule
Asphalt surfaces and asphalt-base painted sur- Trogoderma granarium ...... T402–b–3–2: Prepare 3 percent spray by add- faces. ing 1 pound of 25 percent malathion wet- table powder to each gallon of water. Spray at 2 gal/1000 ft 2 or to the point of runoff. Piers and barges ...... Globodera rostochiensis ...... T406–c, steam cleaning: Steam at high pres- sure until all soil is removed. Treated sur- faces must be thoroughly wet and heated. Metal and wood surfaces such as decks, bulk- Trogoderma granarium ...... T402–b–3–1: Prepare 3 percent spray by mix- heads, piers, and other areas not subject to ing 1⁄2 pint emulsifiable concentrate (57 per- fumigations. cent premium grade malathion) per gallon of water. Spray at 2 gal/1000 ft 2 or to the point of runoff. Ship holds and any nonplant cargo material Quarantine significant snails of the family MB T402–a–1. within holds. Achatinidea, including the following genera: Achatina, Archachatina, Lignus, Limicolaria.
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Product Pest Treatment schedule
Ship holds and any nonplant cargo material Quarantine significant snails of the family MB T402–a–2. within holds. Hygromiidae, including the following genera: Canidula, Cernuella, Cochlicella, Helicella, Helicopsis, Monacha, Platytheba, Pseudotrichia, Trochoidea, Xerolenta, Xeropicta, Xerosecta, Xerotricha. Ship holds and any nonplant cargo material Quarantine significant snails of the families MB T402–a–3. within holds. Helicidae and Succineidae, including the following genera: Caracollina, Cepaea, Cryptomphalus, Helix, Omalonyx, Otala, Succinea, Theba. Ship holds and storerooms with loosely packed Trogoderma granarium ...... MB T402–b–1. material. Ship holds and storerooms with tightly packed Trogoderma granarium ...... MB T402–b–2. material.
(s) Skins (goatskins, lambskins, and are not provided are in § 305.6 for sheepskins). The treatment schedules methyl bromide (MB) fumigation. for which administration instructions
Pest Treatment schedule
Trogoderma granarium ...... MB T416–a–1 or MB T416–a–2 or MB T416–a–3.
(t) Soil. The treatment schedules for provided are in § 305.6 for methyl steam sterilization (SS), and § 305.25 for which numbers are specified and bromide (MB) fumigation, § 305.23 for dry heat (DH). administration instructions are not
Product Pest Treatment
Herbarium specimens of mosses and liverworts Precautionary ...... MB T408–e–1. in soil and originating in golden nematode free countries. Herbarium specimens of mosses and liverworts Globodera rostochiensis ...... MB T408–e–2. in soil and originating in golden nematode free countries. Soil ...... Potato cyst nematode ...... MB T502–3. Soil ...... Various pests and pathogens found in soil (in- DH T408–a. cluding Striga). Various pests and pathogens found in soil ..... SS T408–b. Soil (friable and moist, but not wet and not Globodera rostochiensis ...... MB T408–c–2. more than 12 inches in depth). Soil ...... Insects ...... T408–d–1: Screening through 16 mesh screens will remove most larvae and pupae, except smaller types; or T408–d–2: Freez- ing—0 °F for 5 days. Soil (friable and moist, but not wet and not Globodera rostochiensis ...... MB T408–c–1. more than 12 inches in depth) in containers with dimensions that do not exceed 24 inches. Soil on equipment ...... Various pests and pathogens found in soil ..... T408–b–1 (steam cleaning): Steam at high pressure until all soil is removed. Treated surfaces must be thoroughly wet and heat- ed. Soil contaminated equipment (precautionary Soil fungi, nematodes, and certain soil insects T408–f, steam cleaning: Steam at high pres- treatment). sure until all soil is removed. Treated sur- faces must be thoroughly wet and heated. Soil contaminated non-food or non-feed com- Striga ...... MB T408–g–1 or MB T408–g–2. modities (soil must be friable and or moist, but not wet, and must not exceed 12 inches in dimension).
(u) Sugarcane.
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Product Pest Treatment schedule
Saccharum (seed pieces) ...... Xanthomonas albilineans and X. vasculorum .. T514–1: Presoak in water at room tempera- ture for 24 hours. Then immerse in water at 122 °F for 3 hours. Saccharum (true seed fuzz) ...... T514–2: Immerse in 0.525 percent sodium hy- pochlorite solution for 30 minutes followed by at least 8 hours air drying before pack- aging (Dilute 1 part Clorox or similar solu- tion containing 5.25 percent sodium hypo- chlorite; if using ultra strength chlorine bleach, use only 3⁄4 as much bleach). Saccharum (bagasse) ...... T514–3: Dry heat treatment for 2 hours at 158 °F. Sugarcane (baled) ...... Various sugarcane-related diseases ...... T515–1: Introduce live steam into 25″ vacuum until pressure reaches 15 to 20 pounds. Hold until center of bale is 220–230 °F and maintain for 30 minutes. Sugarcane (loose) ...... T515–2–1: Introduce steam into 25″ vacuum (or if with initial vacuum, ‘‘bleed’’ air until steam vapor fills chamber). T515–2–3: Dry heat at 212 °F for 1 hour. T515–2–4: Remove the pulp in water at 190– 205 °F, followed by drying at 212 °F for 1 hour. T515–2–5: Flash heated to 1,000 °F (Arnold dryer).
(v) Wood articles including schedules for which administration fumigation, § 305.8 for sulfuryl fluoride containers, oak logs and lumber, instructions are not provided are in (SF), and § 305.28 for kiln sterilization Christmas trees. The treatment § 305.6 for methyl bromide (MB) (KS).
Material Pest Treatment schedule
Cut conifer Christmas trees ...... Lymantria dispar egg masses ...... MB T313–a. Cut pine Christmas trees and pine logs ...... Tomicus piniperda ...... MB T313–b. Wood surfaces (can be combined with other ...... SF T404–c–2. surfaces such as metal or concrete). Wood surfaces (can be combined with other Borers (wood wasps, cerambycids, and T404–b–5–1: (1) The spray must be applied surfaces such as metal or concrete). Dinoderus). by or under the supervision of pest control operators or other trained personnel re- sponsible for insect control programs; (2) prepare the spray by thoroughly mixing 79 ml (22⁄3 fluid ounces) of Dursban 4E with water for a total of 1 gallon of mixture (equivalent to 2.1 gallons in 100 gallons of water); and (3) apply as a 1 percent chlorpyrifos spray with suitable hand- or power-operated ground spray equipment to the point of runoff. Oak logs ...... Oak wilt disease ...... MB T312–a. Oak lumber ...... Oak wilt disease ...... MB T312–b. Wood products including containers...... Borers (wood wasps, cerambycids, and MB T404–b–1–1 or MB T404–b–1–2 or SF Dinoderus). T404–b–2 or KS T404–b–4. Globodera rostochiensis ...... MB T404–a. Termites ...... MB T404–c–1–1 or MB T404–c–1–2. Borers and Trogoderma granarium ...... MB T404–d.
§§ 305.3–305.4 [Reserved] the facility. In order to be certified, a (3) For vacuum fumigation facilities, fumigation facility must: be constructed to withstand required Subpart—Chemical Treatments (1) Be capable of administering the negative pressure. § 305.5 Treatment requirements. required dosage range for the required (b) Monitoring. Treatment must be duration and at the appropriate monitored by an official authorized by (a) Certified facility. The fumigation temperature. APHIS to ensure proper administration treatment facility must be certified by of the treatment, including that the APHIS. Facilities are required to be (2) Be adequate to contain the correct amount of gas reaches the target inspected and recertified annually, or as fumigant and be constructed from organism and that an adequate number often as APHIS directs, depending upon material that is not reactive to the and placement of blowers, fans, treatments performed, commodities fumigant. sampling tubes, or monitoring lines are handled, and operations conducted at used in the treatment enclosure. An
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official authorized by APHIS approves, to be sorptive or whose sorptive lines must be used in the treatment adjusts, or rejects the treatment. properties are unknown when treatment enclosure. (c) Treatment procedures. (1) To kill is administered in chambers at normal (5) An adequate number of blowers or the pest, all chemical applications must atmospheric pressure. fans must be used inside of the be administered in accordance with an (3) The volume of the commodity treatment enclosure to uniformly Environmental Protection Agency (EPA) stacked inside the treatment enclosure distribute gas throughout the enclosure. approved pesticide label and the The circulation system must be able to must not exceed 2⁄3 of the volume of the APHIS-approved treatment schedule enclosure. Stacking must be approved recirculate the entire volume of gas in prescribed in this part. If EPA cancels by an official authorized by APHIS the enclosure in 3 minutes or less. approval for the use of a pesticide on a before treatment begins. All (6) The exposure period begins after commodity, then the treatment schedule all gas has been introduced. prescribed in this part is no longer commodities undergoing treatment must be listed on the label. (7) For vacuum fumigation: The authorized for that commodity. If the vacuum pump must be able to reduce commodity is not listed on the pesticide (4) Recording and measuring pressure in the treatment enclosure to label and/or a Federal quarantine or equipment must be adequate to 1–2 inches of mercury in 15 minutes or crisis exemption in accordance with accurately monitor the gas less. FIFRA section 18, then no chemical concentration, to ensure the correct treatment is available. amount of gas reaches the pests, and to § 305.6 Methyl bromide fumigation (2) Temperature/concentration detect any leaks in the enclosure. At treatment schedules. readings must be taken for items known least three sampling tubes or monitoring (a) Standard schedules.
Dosage Temperature rate (lb/ Exposure Treatment schedule Pressure ° 1000 period ( F) cubic (hours) feet)
MBOFF ...... NAP1 ...... 70 or above ...... 2 3.5 T101–a–1 ...... NAP ...... 80 or above ...... 1.5 2 70–79 ...... 2 2 60–69 ...... 2.5 2 50–59 ...... 3 2 40–49 ...... 4 2 T101–a–2 ...... 15″ vacuum ...... 90 or above ...... 2 2 80–89 ...... 2.5 2 70–79 ...... 3 2 60–69 ...... 3 2.5 50–59 ...... 3 3 40–49 ...... 3 3.5 T101–a–3 ...... See T101–a–1. T101–b–1 ...... See T101–a–1. T101–b–1–1 ...... NAP ...... 80 or above ...... 2.5 2 70–79 ...... 3 2 60–69 ...... 4 2 T101–b–2 ...... NAP ...... 70 or above ...... 2 2 60–69 ...... 2.5 2 50–59 ...... 3 2 45–49 ...... 3.5 2 40–44 ...... 4 2 T101–b–3–1 ...... NAP ...... 90 or above ...... 2.5 4 80–89 ...... 3 4 70–79 ...... 3.5 4 60–69 ...... 4 4 T101–c–1 ...... NAP ...... 70 or above ...... 2 4 T101–c–2 ...... 26″ vacuum ...... 70 or above ...... 3 3.5 60–69 ...... 3 4 50–59 ...... 3 4.5 40–49 ...... 3 5 T101–c–3 ...... NAP ...... 70 or above ...... 2 3.5 65–69 ...... 2 4 T101–c–3–1 ...... NAP ...... 70 or above ...... 3 2 T101–d–1 ...... See T101–a–1. T101–d–2 ...... NAP ...... 70 or above ...... 3.5 11 60–69 ...... 3.5 12 50–59 ...... 3.5 13 40–49 ...... 3.5 14 T101–d–3 ...... NAP ...... 70 or above ...... 2 3.5 T101–e–1 ...... NAP ...... 70 or above ...... 3 2.5 60–69 ...... 3 3 50–59 ...... 3 3.5 40–49 ...... 3 4 T101–e–2 ...... 15″ vacuum ...... 90 or above ...... 2 1.5 80–89 ...... 2 2 70–79 ...... 2.5 2 60–69 ...... 3 2
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Dosage Temperature rate (lb/ Exposure Treatment schedule Pressure ° 1000 period ( F) cubic (hours) feet)
50–59 ...... 3 3 40–49 ...... 3 4 T101–e–3 ...... See T101–a–1. T101–f–2 ...... 15″ vacuum ...... 90 or above ...... 2 3 80–89 ...... 2.5 3 70–79 ...... 3 3 60–69 ...... 3 3.5 T101–f–3 ...... See T101–b–3–1. T101–g–1 ...... See T101–a–2. T101–g–1–1 ...... NAP ...... 90 or above ...... 2 3 80–89 ...... 2.5 3 70–79 ...... 3 3 60–69 ...... 3 3.5 50–59 ...... 3 4 T101–g–2 ...... NAP ...... 90 or above ...... 2 3 80–89 ...... 2.5 3 70–79 ...... 3 3 60–69 ...... 3 3.5 T101–h–1 ...... See T101–a–1. T101–h–2 ...... See T101–a–1. T101–h–2–1 ...... NAP ...... 70 or above ...... 2 3.5 65–69 ...... 2 4 T101–h–3 ...... NAP ...... 80 or above ...... 1.5 2 70–79 ...... 2 2 60–69 ...... 2.5 2 T101–i–1 ...... NAP ...... 80 or above ...... 1.5 2 70–79 ...... 2 2 T101–i–1–1 ...... NAP ...... 70 or above ...... 2 3.5 T101–i–2 ...... See T101–a–1. T101–i–2–1 ...... See T101–a–1. T101–j–1 ...... See T101–b–2. T101–j–2 ...... NAP ...... 80 or above ...... 1.5 2 70–79 ...... 1.5 2 65–69 ...... 1.75 2 T101–j–2–1 ...... NAP ...... 70–85 ...... 2.5 2 T101–k–1 ...... See T101–a–1. T101–k–2 ...... 15″ vacuum ...... 90 or above ...... 0.5 1.5 80–89 ...... 1 1.5 70–79 ...... 1.5 1.5 60–69 ...... 2 1.5 50–59 ...... 2.5 1.5 40–49 ...... 3 1.5 T101–k–2–1 ...... NAP ...... 80 or above ...... 1.5 2 70–79 ...... 2 2 60–69 ...... 2.5 2 50–59 ...... 3 2 T101–l–1 ...... See 101–g–1–1. T101–l–2 ...... 15″ vacuum ...... 90 or above ...... 2 2 80–89 ...... 2.5 2 70–79 ...... 3 2 T101–m–1 ...... See T101–a–2. T101–m–2 ...... See T101–a–1. T101–m–2–1 ...... NAP ...... 70 or above ...... 2 3.5 65–69 ...... 2 4 T101–n–1 ...... See T101–g–2. T101–n–2 ...... See T101–b–2. T101–n–2–1 ...... See T101–k–2–1. T101–n–2–1–1 ...... NAP ...... 70 or above ...... 2 16 60–69 ...... 2 24 50–59 ...... 3 16 40–49 ...... 3 24 T101–o–1 ...... See T101–a–1. T101–o–2 ...... See T101–a–1. T101–p–1 ...... See T101–a–1. T101–p–2 ...... NAP ...... 90 or above ...... 1 2 80–89 ...... 1.5 2 70–79 ...... 2 2 60–69 ...... 2.5 2 50–59 ...... 3 2 40–49 ...... 3.5 2
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Dosage Temperature rate (lb/ Exposure Treatment schedule Pressure ° 1000 period ( F) cubic (hours) feet)
T101–q–2 ...... NAP ...... 90 or above ...... 2 2 80–89 ...... 2.5 2 70–79 ...... 3 2 60–69 ...... 3 2.5 50–59 ...... 3 3 40–49 ...... 3 3.5 T101–r–1 ...... See T101–a–1. T101–r–2 ...... NAP ...... 70 or above ...... 2 6 T101–s–1 ...... NAP ...... 70 or above ...... 2 2 60–69 ...... 2.5 2 50–59 ...... 3 2 40–49 ...... 4 2 T101–s–2 ...... See T101–a–1. T101–t–1 ...... NAP ...... 90 or above ...... 4 3 80–89 ...... 4 4 70–79 ...... 5 4 60–69 ...... 5 5 50–59 ...... 6 5 40–49 ...... 6 6 T101–t–2 ...... See T101–a–1. T101–u–1 ...... 26″ vacuum ...... 80 or above ...... 3 2 70–79 ...... 4 2 60–69 ...... 4 3 50–59 ...... 4 4 40–49 ...... 4 5 T101–u–2 ...... NAP ...... 80 or above ...... 2.5 2 70–79 ...... 3 2 T101–v–1 ...... See T101–b–2. T101–v–2 ...... NAP ...... 70 or above ...... 2.75 2 T101–w–1 ...... 15″ vacuum ...... 80 or above ...... 2 2 70–79 ...... 3 2 60–69 ...... 4 2 50–59 ...... 4 3 40–49 ...... 4 4 T101–w–1–2 ...... NAP ...... 70 or above ...... 2 2 T101–w–2 ...... See T101–h–3. T101–x–1 ...... See T101–h–3. T101–x–1–1 ...... NAP ...... 70 or above ...... 2.5 2.5 T101–x–2 ...... See T101–a–1. T101–y–1 ...... See T101–k–2–1. T101–y–2 ...... See T101–a–1. T101–z–1 ...... NAP ...... 90 or above ...... 2 3 80–89 ...... 2.5 3 70–79 ...... 3 3 60–69 ...... 3 3.5 50–59 ...... 3 4 40–49 ...... 4 4 T101–z–2 ...... See T101–k–2–1. T104–a–1 ...... See T101–a–1. T104–a–2 ...... See T101–b–1–1. T201–a–1/T201–a–2 (except Brachyrhinus NAP/26″ vacuum ...... 90–96 ...... 2 2 larvae). 80–89 ...... 2.5 2 70–79 ...... 3 2 60–69 ...... 3 2.5 50–59 ...... 3 3 40–49 ...... 3 3.5 T201–a–1/T201–a–2 (Brachyrhinus larvae) ... NAP/26″ vacuum ...... 90–96 ...... 2 2.5 80–89 ...... 2.5 2.5 70–79 ...... 3 2.5 60–69 ...... 3 3 50–59 ...... 3 3.5 40–49 ...... 3 4 T201–b–1 (except Brachyrhinus larvae) ...... NAP ...... 90–96 ...... 1.5 2 80–89 ...... 2 2 70–79 ...... 2.5 2 60–69 ...... 2.5 2.5 50–59 ...... 2.5 3 40–49 ...... 2.5 3.5 T201–b–1 (Brachyrhinus larvae) ...... NAP ...... 90–96 ...... 2 2.5
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Dosage Temperature rate (lb/ Exposure Treatment schedule Pressure ° 1000 period ( F) cubic (hours) feet)
80–89 ...... 2.5 2.5 70–79 ...... 3 2.5 60–69 ...... 3 3 50–59 ...... 3 3.5 40–49 ...... 3 4 T201–c–1 2 ...... NAP ...... 80–90 ...... 1.5 2 70–79 ...... 2 2 60–69 ...... 2.5 2 50–59 ...... 3 2 40–49 ...... 3.5 2 T201–c–2 3 ...... 15″ vacuum ...... 80–90 ...... 2.5 2 70–79 ...... 3 2 60–69 ...... 3 2.5 50–59 ...... 3 3 40–49 ...... 3 3.5 T201–d–1 (except Brachyrhinus larvae) ...... NAP ...... 90–96 ...... 2 2 80–89 ...... 2.5 2 70–79 ...... 3 2 60–69 ...... 3 2.5 50–59 ...... 3 3 40–49 ...... 3 3.5 T201–d–1 (Brachyrhinus larvae) ...... NAP ...... 90–96 ...... 2 2.5 80–89 ...... 2.5 2.5 70–79 ...... 3 2.5 60–69 ...... 3 3 50–59 ...... 3 3.5 40–49 ...... 3 4 T201–d–2 ...... NAP ...... 90–96 ...... 1 2 80–89 ...... 1.5 2 70–79 ...... 2 2 60–69 ...... 2.5 2 50–59 ...... 3 2 40–49 ...... 3.5 2 T201–d–3 ...... 15″ vacuum ...... 90–96 ...... 3 1 80–89 ...... 3 1.5 70–79 ...... 3 2 60–69 ...... 3 2.5 50–59 ...... 3 3 40–49 ...... 3 3.5 T201–e–1/T201–e–2 ...... NAP/15″ vacuum ...... 90–96 ...... 2 1.5 80–89 ...... 2 2 70–79 ...... 3 2 60–69 ...... 3 2.5 50–59 ...... 3 3 T201–e–3–1 ...... NAP ...... 90–96 ...... 1.5 2 80–89 ...... 2 2 70–79 ...... 2.5 2 60–69 ...... 3 2 T201–e–3–2 ...... 26″ vacuum ...... 90–96 ...... 1.5 1.5 80–89 ...... 2 1.5 70–79 ...... 2.5 1.5 60–69 ...... 3 1.5 T201–f–1/T201–f–2 (except Brachyrhinus lar- NAP/15″ vacuum ...... 90–96 ...... 2 2 vae). 80–89 ...... 2.5 2 70–79 ...... 3 2 60–69 ...... 3 2.5 50–59 ...... 3 3 40–49 ...... 3 3.5 T201–f–1/T201–f–2 (Brachyrhinus larvae) ..... NAP/15″ vacuum ...... 90–96 ...... 2 2.5 80–89 ...... 2.5 2.5 70–79 ...... 3 2.5 60–69 ...... 3 3 50–59 ...... 3 3.5 40–49 ...... 3 4 T201–g–1 ...... NAP ...... 70 or above ...... 0.75 2 T201–h–1/T201–h–2 ...... 15″ vacuum/26″ vacuum ...... 90–96 ...... 2 2 80–89 ...... 2.5 2 60–79 ...... 3 2 40–59 ...... 3 2.5
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Dosage Temperature rate (lb/ Exposure Treatment schedule Pressure ° 1000 period ( F) cubic (hours) feet)
T201–i–1/T201–i–2 ...... NAP/26″ vacuum ...... 90–96 ...... 2 1.5 80–89 ...... 2 2 70–79 ...... 3 2 60–69 ...... 3 2.5 50–59 ...... 3 3 T201–j ...... NAP ...... 75 ...... 4 2 74 ...... 4 2 hrs 1 min 73 ...... 4 2 hrs 2 min 72 ...... 4 2 hrs 4 min 71 ...... 4 2 hrs 7 min 70 ...... 4 2 hrs 9 min 69 ...... 4 2 hrs 11min 68 ...... 4 2 hrs 14min 67 ...... 4 2 hrs 16 min 66 ...... 4 2 hrs 19 min 65 ...... 4 2 hrs 22 min 64 ...... 4 2 hrs 25 min 63 ...... 4 2 hrs 28 min 62 ...... 4 2 hrs 31 min 61 ...... 4 2 hrs 35 min 60 ...... 4 2 hrs 38 min 59 ...... 4 2 hrs 41 min 58 ...... 4 2 hrs 43 min 57 ...... 4 2 hrs 46 min 56 ...... 4 2 hrs 49 min 55 ...... 4 2 hrs 52 min 54 ...... 4 2 hrs 55 min 53 ...... 4 2 hrs 58 min 52 ...... 4 3 hrs 1 min 51 ...... 4 3 hrs 5 min 50 ...... 4 3 hrs 8 min 49 ...... 4 3 hrs 12 min 48 ...... 4 3 hrs 15 min 47 ...... 4 3 hrs 19 min 46 ...... 4 3 hrs 24 min 45 ...... 4 3 hrs 28 min T201–k–1 (except Brachyrhinus larvae) ...... NAP ...... 85–96 ...... 1 4 80–84 ...... 2 2.5 70–79 ...... 2 3.5 T201–k–1 (Brachyrhinus larvae) ...... NAP ...... 85–96 ...... 1.5 4 80–84 ...... 2.5 2.5 70–79 ...... 2 3.5 T201–k–2 (except Brachyrhinus larvae) ...... NAP ...... 90–96 ...... 2 2 80–89 ...... 2.5 2 70–79 ...... 3 2 60–69 ...... 3 2.5 50–59 ...... 3 3 40–49 ...... 3 3.5 T201–k–2 (Brachyrhinus larvae) ...... NAP ...... 90–96 ...... 2 2.5 80–89 ...... 2.5 2.5 70–79 ...... 3 2.5 60–69 ...... 3 3 50–59 ...... 3 3.5 40–49 ...... 3 4 T201–l ...... NAP ...... 90–96 ...... 1 2 80–89 ...... 1.25 2 70–79 ...... 1.5 2 60–69 ...... 1.75 2 T201–m–1 (except Brachyrhinus larvae) ...... NAP ...... 90–96 ...... 2 2 80–89 ...... 2.5 2 70–79 ...... 3 2 60–69 ...... 3 2.5 50–59 ...... 3 3 40–49 ...... 3 3.5 T201–m–1 (Brachyrhinus larvae) ...... NAP ...... 90–96 ...... 2 2.5 80–89 ...... 2.5 2.5 70–79 ...... 3 2.5 60–69 ...... 3 3 50–59 ...... 3 3.5 40–49 ...... 3 4
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Dosage Temperature rate (lb/ Exposure Treatment schedule Pressure ° 1000 period ( F) cubic (hours) feet)
T201–m–2 ...... NAP ...... 80–90 ...... 1.5 2 70–79 ...... 2 2 60–69 ...... 2.5 2 50–59 ...... 3 2 40–49 ...... 3.5 2 T201–m–3 (except Brachyrhinus larvae) ...... NAP ...... 90–96 ...... 2 2 80–89 ...... 2.5 2 70–79 ...... 3 2 60–69 ...... 3 2.5 50–59 ...... 3 3 40–49 ...... 3 3.5 T201–m–3 (Brachyrhinus larvae) ...... NAP ...... 90–96 ...... 2 2.5 80–89 ...... 2.5 2.5 70–79 ...... 3 2.5 60–69 ...... 3 3 50–59 ...... 3 3.5 40–49 ...... 3 4 T201–m–4 ...... NAP ...... 90–96 ...... 2 2.5 80–89 ...... 2.5 2.5 70–79 ...... 3 2.5 60–69 ...... 3 3 50–59 ...... 3 3.5 40–49 ...... 3 4 T201–n ...... NAP ...... 85 or above ...... 1 2 80–85 ...... 1.25 2 70–79 ...... 1.5 2 65–69 ...... 1.75 2 T202–a–1 (except Brachyrhinus larvae) ...... NAP ...... 90–96 ...... 2 2 80–89 ...... 2.5 2 70–79 ...... 3 2 60–69 ...... 3 2.5 50–59 ...... 3 3 40–49 ...... 3 3.5 T202–a–1 (Brachyrhinus larvae) ...... NAP ...... 90–96 ...... 2 2.5 80–89 ...... 2.5 2.5 70–79 ...... 3 2.5 60–69 ...... 3 3 50–59 ...... 3 3.5 40–49 ...... 3 4 T202–a–2 ...... NAP ...... 90–96 ...... 2 2.5 80–89 ...... 2.5 2.5 70–79 ...... 3 2.5 60–69 ...... 3 3 50–59 ...... 3 3.5 40–49 ...... 3 4 T202–a–3 (except Brachyrhinus larvae) ...... 26″ vacuum ...... 90–96 ...... 2 2 80–89 ...... 2.5 2 70–79 ...... 3 2 60–69 ...... 3 2.5 50–59 ...... 3 3 40–49 ...... 3 3.5 T202–a–3 (Brachyrhinus larvae) ...... 26″ vacuum ...... 90–96 ...... 2 2.5 80–89 ...... 2.5 2.5 70–79 ...... 3 2.5 60–69 ...... 3 3 50–59 ...... 3 3.5 40–49 ...... 3 4 T202–b ...... 26″ vacuum ...... 70–96 ...... 4 2 60–69 ...... 4 2.5 50–59 ...... 4 3 40–49 ...... 4 4 T202–d ...... NAP ...... 90–96 ...... 2.5 4 80–89 ...... 3 4 70–79 ...... 3.5 4 60–69 ...... 4 4 T202–e–1 ...... NAP ...... 90–96 ...... 2 3 80–89 ...... 2.5 3 70–79 ...... 3 3 60–69 ...... 3 3.5 50–59 ...... 3 4
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Dosage Temperature rate (lb/ Exposure Treatment schedule Pressure ° 1000 period ( F) cubic (hours) feet)
40–49 ...... 3 4.5 T202–e–2 ...... 26″ vacuum ...... 90–96 ...... 2 2 80–89 ...... 2.5 2 70–79 ...... 3 2 60–69 ...... 3 2.5 50–59 ...... 3 3 40–49 ...... 3 3.5 T202–f (except Brachyrhinus larvae) ...... 15″ vacuum ...... 90–96 ...... 2 2
80–89 ...... 2.5 2 70–79 ...... 3 2 60–69 ...... 3 2.5 50–59 ...... 3 3 40–49 ...... 3 3.5 T202–f (Brachyrhinus larvae) ...... 15″ vacuum ...... 90–96 ...... 2 2.5 80–89 ...... 2.5 2.5 70–79 ...... 3 2.5 60–69 ...... 3 3 50–59 ...... 3 3.5 40–49 ...... 3 4 T202–g ...... NAP ...... 90–96 ...... 2 3 80–89 ...... 2.5 3 70–79 ...... 3 3 60–69 ...... 3 3.5 50–59 ...... 3 4 40–49 ...... 3 4.5 T202–h (except Brachyrhinus larvae) ...... 26″ vacuum ...... 90–96 ...... 2 2 80–89 ...... 2.5 2 70–79 ...... 3 2 60–69 ...... 3 2.5 50–59 ...... 3 3 40–49 ...... 3 3.5 T202–h (Brachyrhinus larvae) ...... 26″ vacuum ...... 90–96 ...... 2 2.5 80–89 ...... 2.5 2.5 70–79 ...... 3 2.5 60–69 ...... 3 3 50–59 ...... 3 3.5 40–49 ...... 3 4 T202–i–1 ...... NAP ...... 90–96 ...... 3 2 80–89 ...... 3.5 2 70–79 ...... 4 2 60–69 ...... 4 2.5 50–59 ...... 4 3 40–49 ...... 4 3.5 T202–i–2 ...... NAP ...... 90–96 ...... 2 2 80–89 ...... 2.5 2 70–79 ...... 3 2 60–69 ...... 3 2.5 50–59 ...... 3 3 40–49 ...... 3 3.5 T202–j ...... 15″ vacuum ...... 90–96 ...... 2 1.5 80–89 ...... 2 2 70–79 ...... 2.5 2 60–69 ...... 3 2 50–59 ...... 3 3 40–49 ...... 3 4 T203–a–1 ...... NAP ...... 80–96 ...... 2.5 2.5 70–79 ...... 3 2.5 60–69 ...... 3 3 50–59 ...... 3 3.5 40–49 ...... 3 4 T203–a–2 ...... 26″ vacuum ...... 80–96 ...... 2.5 2.5 70–79 ...... 3 2.5 60–69 ...... 3 3 50–59 ...... 3 3.5 40–49 ...... 3 4 T203–b (except Caryedon spp.) ...... 26″ vacuum ...... 70–96 ...... 3 2.5 60–69 ...... 3 3 50–59 ...... 3 3.5 40–49 ...... 3 4
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Dosage Temperature rate (lb/ Exposure Treatment schedule Pressure ° 1000 period ( F) cubic (hours) feet)
T203–b (Caryedon spp.) ...... 26″ vacuum ...... 40–96 ...... 5 2 T203–c ...... NAP ...... 50 or above ...... 2 24 T203–d–1 ...... NAP ...... 70 or above ...... 3.5 11 60–69 ...... 3.5 12 50–59 ...... 3.5 13 40–49 ...... 3.5 14 T203–d–2 (except Vicia faba) ...... 26″ vacuum ...... 70–96 ...... 3 2.5 60–69 ...... 3 3 50–59 ...... 3 3.5 40–49 ...... 3 4 T203–d–2 (Vicia faba) ...... 26’’ vacuum ...... 70–96 ...... 3 3.5 60–69 ...... 3 4 50–59 ...... 3 4.5 40–49 ...... 3 5 T203–e ...... 26″ vacuum ...... 80–96 ...... 3 2 70–79 ...... 4 2 60–69 ...... 4 3 50–59 ...... 4 4 40–49 ...... 4 5 T203–f–1 ...... NAP ...... 60 or above ...... 6 12 60 or above ...... 3 24 40–59 ...... 7 12 40–59 ...... 4 24 T203–f–2 ...... NAP ...... 60 or above ...... 7 12 60 or above ...... 5 24 40–59 ...... 8 12 40–59 ...... 6 24 T203–f–3 ...... NAP ...... 40 or above ...... 4 2 T203–g–1 ...... NAP ...... 60–96 ...... 2 12 60–96 ...... 1 24 40–59 ...... 3 12 40–59 ...... 2 24 T203–g–2 ...... 26″ vacuum ...... 40 or above ...... 4 2 40 or above. T203–h ...... 26″ vacuum ...... 70 or above ...... 4 4 T203–i–1 ...... NAP ...... 80–96 ...... 2.5 2.5 70–79 ...... 3 2.5 60–69 ...... 3 3 50–59 ...... 3 3.5 40–49 ...... 3 4 T203–i–2 ...... 26″ vacuum ...... 80–96 ...... 2.5 2.5 70–79 ...... 3 2.5 60–69 ...... 3 3 50–59 ...... 3 3.5 40–49 ...... 3 4 T203–j ...... NAP ...... 80–96 ...... 2.5 2 70–79 ...... 3 2 60–69 ...... 3 2.5 T203–k ...... NAP ...... 70 or above ...... 2 2 60–69 ...... 2.5 2 50–59 ...... 3 2 40–49 ...... 3.5 2 T203–l ...... NAP ...... 90 or above ...... 2.5 12 80–89 ...... 3.5 12 T203–m 26″ vacuum ...... 90–96 ...... 2 ...... 2 80–89 ...... 3 2 70–79 ...... 4 2 60–69 ...... 4 3 50–59 ...... 4 4 40–49 ...... 4 5 T203–o–1 ...... 26″ vacuum ...... 70 or above ...... 3.5 6 T203–o–2 ...... 26″ vacuum ...... 80–86 ...... 2.5 3.5 70–79 ...... 3 3.5 60–69 ...... 3 4 50–59 ...... 3 4.5 40–49 ...... 3 5 T203–o–3 ...... 26″ vacuum ...... 70 or above ...... 4 4 T203–o–4–1 ...... 26″ vacuum ...... 50 or above ...... 2 24 T203–o–4–2 ...... 26″ vacuum ...... 70 or above ...... 3.5 3 T203–o–5 ...... NAP ...... 70 or above ...... 4 8
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Dosage Temperature rate (lb/ Exposure Treatment schedule Pressure ° 1000 period ( F) cubic (hours) feet)
T301–a–1–1 (bulk shipments) ...... NAP ...... 60 or above ...... 6 12 60 or above ...... 4 24 40–59 ...... 7 12 40–59 ...... 5 24 T301–a–1–1 (other than bulk shipments) ...... NAP ...... 60 or above ...... 6 12 60 or above ...... 3 24 40–59 ...... 7 12 40–59 ...... 4 24 T301–a–1–2 ...... 26″ vacuum ...... 60 or above ...... 8 3 40–59 ...... 9 3 T301–a–2 ...... NAP ...... 40 or above ...... 7 12 40 or above ...... 5 24 T301–a–3 ...... NAP ...... 40 or above ...... 7 12 40 or above ...... 4 24 T301–a–4 ...... NAP ...... 40 or above ...... 7 12 40 or above ...... 5 24 T301–a–5–1 ...... NAP ...... 40 or above ...... 3 24 T301–a–5–2 ...... 26″ vacuum ...... 40 or above ...... 4 2 T301–b–1–1 ...... NAP ...... 60 or above ...... 8 24 40–59 ...... 11 24 T301–b–1–2 ...... 26″ vacuum ...... 60 or above ...... 8 3 40–59 ...... 9 3 T301–b–2 ...... NAP ...... 90 or above ...... 2.5 12 80–89 ...... 3.5 12 T301–b–3 ...... NAP ...... 90 or above ...... 4 24 80–89 ...... 6 24 70–79 ...... 8 24 T301–c ...... NAP ...... 40 or above ...... 8 16 40 or above ...... 10.5 12 T301–d–1–1 ...... NAP ...... 90 or above ...... 2.5 2 80–89 ...... 3 2 70–79 ...... 4 2 60–69 ...... 4 3 55–59 ...... 5 3 50–54 ...... 5.5 4 40–49 ...... 6 8 T302–a–1–1 ...... NAP ...... 70 or above ...... 2 6 T302–b–1–2 ...... See T301–a–1–1 or T301–a–1–2. T302–c–1 ...... NAP ...... 90 or above ...... 2.5 12 80–89 ...... 3.5 12 70–79 ...... 4.5 12 60–69 ...... 6 12 50–59 ...... 7.5 12 40–49 ...... 9 12 T302–c–2 ...... 26″ vacuum ...... 60 or above ...... 8 3 40–59 ...... 9 3 T302–c–3 ...... 26″ vacuum ...... 90–96 ...... 2.5 12 80–89 ...... 3.5 12 70–79 ...... 4.5 12 60–69 ...... 6 12 50–59 ...... 10 12 40–49 ...... 12 12 T302–e–1 ...... NAP ...... 80–96 ...... 2.5 2.5 70–79 ...... 3 2.5 60–69 ...... 3 3 50–59 ...... 3 3.5 40–49 ...... 3 4 T302–e–2 ...... 26″ vacuum ...... 80–96 ...... 2.5 2.5 70–79 ...... 3 2.5 60–69 ...... 3 3 50–59 ...... 3 3.5 40–49 ...... 3 4 T302–g–1 ...... NAP ...... 90–95 ...... 4 3 80–89 ...... 4 4 70–79 ...... 5 4 60–69 ...... 5 5 50–59 ...... 6 5 40–49 ...... 6 6 T302–g–2 ...... 26″ vacuum ...... 80–96 ...... 3 2 70–79 ...... 4 2
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Dosage Temperature rate (lb/ Exposure Treatment schedule Pressure ° 1000 period ( F) cubic (hours) feet)
60–69 ...... 4 3 50–59 ...... 4 4 40–49 ...... 4 5 T303–d–2–2 ...... 26″ vacuum ...... 60 or above ...... 2.5 2.5 50–59 ...... 3.5 2.5 40–49 ...... 5 2.5 T303–d–2–3 ...... NAP ...... 60 or above ...... 2.5 24 50–59 ...... 3 24 40–49 ...... 4 24 T304–a ...... NAP ...... 60 or above ...... 2.5 32 50–59 ...... 3.5 32 40–49 ...... 4.5 32 T304–b ...... 26″ vacuum ...... 60 or above ...... 2.5 2.5 50–59 ...... 3.5 2.5 40–49 ...... 5 2.5 T305–a ...... NAP ...... 80–89 ...... 1.5 2 70–79 ...... 2 2 60–69 ...... 2.5 2 50–59 ...... 3 2 40–49 ...... 3.5 2 T305–b ...... 15″ vacuum ...... 80–90 ...... 2.5 2 70–79 ...... 3 2 60–69 ...... 3 2.5 50–59 ...... 3 3 40–49 ...... 3 3.5 T305–c ...... NAP ...... 80 or above ...... 2.5 2 70–79 ...... 3 2 60–69 ...... 4 2 T306–a ...... 26″ vacuum ...... 40 or above ...... 8 16 40 or above ...... 10.5 12 40 or above ...... 16 8 T306–b (bulk shipments) ...... NAP ...... 60 or above ...... 6 12 60 or above ...... 4 24 40–59 ...... 7 12 40–59 ...... 5 24 T306–b (other than bulk shipments) ...... NAP ...... 60 or above ...... 6 12 60 or above ...... 3 24 40–59 ...... 7 12 40–59 ...... 4 24 T306–c–1 ...... NAP ...... 90 or above ...... 4 24 80–89 ...... 8 24 70–79 ...... 8 24 60–69 ...... 12 24 50–59 ...... 12 28 40–49 ...... 12 32 T306–c–2 ...... 26″ vacuum ...... 60 or above ...... 8 3 40–59 ...... 9 3 T306–d–1 ...... NAP ...... 90 or above ...... 4 24 80–89 ...... 6 24 70–79 ...... 8 24 60–69 ...... 12 24 50–59 ...... 12 28 40–49 ...... 12 32 T306–d–2 ...... 26″ vacuum ...... 60 or above ...... 8 3 40–59 ...... 9 3 T309–a (except sawflies) ...... 26″ vacuum ...... 60 or above ...... 2.5 2.5 50–59 ...... 3.5 2.5 40–49 ...... 5 2.5 T309–a (sawflies) ...... 26″ vacuum ...... 60 or above ...... 2.5 5 50–59 ...... 3.5 5 40–49 ...... 5 5 T309–b–1 ...... NAP ...... 60 or above ...... 2.5 16 50–59 ...... 3.5 16 40–49 ...... 4.5 16 T309–b–2 ...... NAP ...... 60 or above ...... 3 24 50–59 ...... 5 24 40–49 ...... 7 24 T310–a ...... NAP ...... 90 or above ...... 4 3 80–89 ...... 5 3 70–79 ...... 6 4
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Dosage Temperature rate (lb/ Exposure Treatment schedule Pressure ° 1000 period ( F) cubic (hours) feet)
60–69 ...... 7 5 50–59 ...... 8 7 40–49 ...... 8 16 T310–b ...... 26″ vacuum ...... 80 or above ...... 3 2.5 70–79 ...... 3 3.5 60–69 ...... 4 4 50–59 ...... 5.5 5 T312–a ...... NAP ...... 40 or above ...... 15 72 T312–b ...... NAP ...... 40 or above ...... 15 48 T313–a ...... NAP ...... 75 or above ...... 1.5 2.5 7–74 ...... 2 2.5 60–69 ...... 2.5 3 60–69 ...... 3 2.5 50–59 ...... 3 4 50–59 ...... 4 2.5 40–49 ...... 3.5 4.5 40–49 ...... 5 2.5 T313–b ...... NAP ...... 60 or above ...... 3 4 60 or above ...... 4 3 50–59 ...... 3.5 4 50–59 ...... 4 3.5 40–49 ...... 4 4 T401–a ...... NAP ...... 40 or above ...... 4 12 40 or above ...... 8 3 T401–b ...... NAP ...... 90 or above ...... 2.5 12 80–89 ...... 3.5 12 70–79 ...... 4.5 12 60–69 ...... 6 12 50–59 ...... 7.5 12 40–49 ...... 9 12 T402–a–1 ...... NAP ...... 55 or above ...... 8 24 T402–a–2 ...... NAP ...... 55 or above ...... 8 72 T402–a–3 ...... NAP ...... 80 or above ...... 6 10 55–79 ...... 6 16 40–54 ...... 8 24 T402–b–1 ...... NAP ...... 90 or above ...... 2.5 12 80–89 ...... 3.5 12 70–79 ...... 4.5 12 60–69 ...... 6 12 50–59 ...... 7.5 12 40–49 ...... 9 12 T402–b–2 ...... NAP ...... 90–96 ...... 4 24 80–89 ...... 6 24 70–79 ...... 8 24 T403–a–2–1 ...... NAP ...... 55 or above ...... 8 72 T403–a–2–2 ...... 26″ vacuum ...... 70 or above ...... 8 16 T403–a–3 ...... NAP ...... 90–96 ...... 1 2 80–89 ...... 1.25 2 70–79 ...... 1.5 2 60–69 ...... 1.75 2 T403–a–4–1 ...... NAP ...... 80 or above ...... 6 10 55–79 ...... 6 16 40–54 ...... 8 24 T403–a–4–2 ...... 26″ vacuum ...... 7 or above ...... 6 6 T403–a–5–1 ...... NAP ...... 80 or above ...... 6 10 40–79 ...... 6 16 T403–a–5–2 ...... 26″ vacuum ...... 40 or above ...... 6 6 T403–b ...... Use T401–b or 402–b–2. T403–c ...... 26″ vacuum ...... 40 or above ...... 8 16 40 or above ...... 10.5 12 40 or above ...... 16 8 T403–e–1–1 ...... NAP ...... 90 or above ...... 2.5 12 80–89 ...... 3.5 12 70–79 ...... 4.5 12 60–69 ...... 6 12 50–59 ...... 7.5 12 40–49 ...... 9 12 T403–e–1–2 ...... NAP ...... 90–96 ...... 4 24 80–89 ...... 6 24 70–79 ...... 8 24
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Dosage Temperature rate (lb/ Exposure Treatment schedule Pressure ° 1000 period ( F) cubic (hours) feet)
60–69 ...... 12 24 50–59 ...... 12 28 40–49 ...... 12 32 T403–e–2 ...... NAP ...... 40 or above ...... 10 48 T403–f ...... NAP ...... 70 or above ...... 3 3 60–69 ...... 3.5 3 50–59 ...... 4 3 45–49 ...... 4.5 3 40–44 ...... 5 3 T404–a ...... 26″ vacuum ...... 40 or above ...... 8 16 40 or above ...... 10.5 12 40 or above ...... 16 8 T404–b–1–1 ...... NAP ...... 70 or above ...... 3 16 40–69 ...... 5 16 T404–b–1–2 ...... 26″ vacuum ...... 70 or above ...... 4 4 40–69 ...... 4 5 T404–c–1–1 ...... NAP ...... 40 or above ...... 3 24 T404–c–1–2 ...... 26″ vacuum ...... 70 or above ...... 4 3 40–69 ...... 4 4 T404–d ...... NAP ...... 80 or above ...... 3.5 24 70–79 ...... 4.5 24 60–69 ...... 6 24 50–59 ...... 7.5 24 40–49 ...... 9 24 T406–b ...... NAP ...... 60 or above ...... 15 24 T407 ...... NAP ...... 40 or above ...... 4 12 40 or above ...... 8 3 T408–c–1 ...... See T403–c for loose and friable material only. T408–c–2 ...... NAP ...... 60 or above ...... 15 24 T408–e–1 ...... 26″ vacuum ...... 70 or above ...... 2 3.5 T408–e–2 ...... 26″ vacuum ...... 40 or above ...... 8 16 40 or above ...... 10.5 12 40 or above ...... 16 8 T408–g–1 ...... Chamber ...... 60 or above ...... 10 24 60 or above ...... 20 15.5 T408–g–2 ...... Tarpaulin ...... 60 or above ...... 15 24 T411 ...... NAP ...... 90–96 ...... 2 2.5 80–89 ...... 2.5 2.5 70–79 ...... 3 2.5 60–69 ...... 3 3 50–59 ...... 3 3.5 40–49 ...... 3 4 T413–a ...... NAP ...... 90 or above ...... 2.5 12 80–89 ...... 3.5 12 70–79 ...... 4.5 12 60–69 ...... 6 12 50–59 ...... 7.5 12 40–49 ...... 9 12 T413–b ...... 26″ vacuum ...... 60 or above ...... 8 3 40–59 ...... 9 3 T414 ...... NAP ...... 50 or above ...... 3.5 4 50 or above ...... 2.5 8 50 or above ...... 2 16 40–49 ...... 4.5 4 40–59 ...... 3.25 8 40–49 ...... 2.25 16 T416–a–1 ...... NAP ...... 90 or above ...... 2.5 12 80–89 ...... 3.5 12 70–79 ...... 4.5 12 60–69 ...... 6 12 50–59 ...... 7.5 12 40–49 ...... 9 12 T416–a–2 ...... 26″ vacuum ...... 60 or above ...... 8 3 40–59 ...... 9 3 T416–a–3 ...... 26″ vacuum ...... 90–96 ...... 2.5 12 80–89 ...... 3.5 12 70–79 ...... 4.5 12 60–69 ...... 6 12 50–59 ...... 10 12
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Dosage Temperature rate (lb/ Exposure Treatment schedule Pressure ° 1000 period ( F) cubic (hours) feet)
40–49 ...... 12 12 T502–1, T502–2, T502–3 ...... 26″ vacuum ...... 40 or above ...... 8 16 T506–1, T506–2–1 ...... 26″ vacuum ...... 40 or above ...... 8 16 40 or above ...... 10.5 12 40 or above ...... 16 8 1 Normal atmospheric pressure. 2 See T201–p–3 (§ 305.35(c)) for material not tolerant to fumigation. 3 See footnote 2.
(b) MBSFF, fumigation with methyl chamber. Fruit taken from a cooling adjacent pallet loads; at least 1 foot bromide for sapote fruit fly. Regulated room may have to be prewarmed before between chamber walls and the nearest citrus fruits originating inside an area fumigation is attempted. To determine carton of fruit; and at least 2 feet quarantined for sapote fruit fly that are fruit pulp temperature, stab several fruit between the height of the stack and the to be moved outside the quarantined to the center with a suitable ceiling of the chamber. The compressed area may be treated with methyl thermometer that reads at least in whole liquid methyl bromide inside the bromide fumigation in APHIS-approved degrees (F or C). The lowest temperature cylinder must be put through a chambers. Exposure period for this should be used, not the average. The volatilizer prior to injection into the treatment is 2 hours. To enhance equal methyl bromide dosage is set at a rate chamber. Water temperature in the concentrations of methyl bromide of 2.5 pounds of 100 percent pure, type volatilizer must never fall below 65.6 °C throughout the chamber, a fan should be ‘‘Q’’ (for quarantine use only) methyl (150 °F) at any time during gas injection. placed near the point of gas bromide per 1,000 cubic feet of chamber However, if, prior to treatment, introduction, and allowed to run for at space. Dosage is based upon chamber representative sampling reveals a level least 15 minutes. Fruit pulp temperature volume, not the volume of the fruit of infestation greater than 0.5 percent ° ° must be between 21.1 C and 29.4 C being treated. Fruit should be in cartons for the lot, then the fruit is ineligible for ° ° (70 F and 85 F). This temperature approved for fumigation. Cartons must treatment. requirement refers to fruit pulp only and be placed on pallets. There should be an not to air temperature within the air space of at least 1 foot between § 305.7 Phosphine treatment schedules.
Exposure Treatment Pressure Temperature (°F) Dosage rate period schedule (hours)
T203–f–4 ...... NAP1 ...... 50 or above ...... 2.1 grams/cubic meter ...... 120 T203–g–3 ...... NAP ...... 50 or above ...... 2.1 grams/cubic meter ...... 120 T301–a–6 ...... NAP ...... 50 or above ...... 60 grams/1000 ft3 ...... 120 T301–d–1–2 ...... NAP ...... 50 or above ...... 36 grams/1000 ft3 ...... 72 T311 ...... NAP ...... 50 or above ...... 60 grams/1000 ft3 ...... 168 1 Normal atmospheric pressure.
§ 305.8 Sulfuryl fluoride treatment schedules.
Dosage rate Exposure Treatment schedule Pressure Temperature (°F) (lb/1000 period cubic (hours) feet)
T310–d ...... NAP 1 ...... 70 or above ...... 2 24 50–69 ...... 2.5 24 40–49 ...... 3 24 DT404–b–2 ...... NAP ...... 70 or above ...... 4 16 60–69 ...... 4 24 50–59 ...... 5 24 40–49 ...... 6.5 24 5 32 T404–c–2 ...... NAP ...... 70 or above ...... 1 16 60–69 ...... 1.5 24 50–59 ...... 2.5 24 1 Normal atmospheric pressure.
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§ 305.9 Aerosol spray for aircraft treatment must conform to requirements in the (Army Reg. 40–12; SECNAVINST schedules. latest edition of ‘‘Quarantine 6210.2A; AFR 161–4). (a) Military aircraft. Aerosol Regulations of the Armed Forces’’ (b) Aerosol schedules. disinfection of U.S. military aircraft
Treatment schedule Aerosol Rate
T409–b ...... d–phenothrin (10%) ...... 8g/1,000 ft 3. T409–c–1 ...... Resmethrin (2%) ...... 10g/1,000 ft 3. T409–c–3 ...... Resmethrin (1.2%) ...... 16.66/1,000 ft 3.
§ 305.10 Treatment schedules for for cold treatment in § 305.15 must be (3) In the following table, CT combination treatments. followed. represents cold treatment, and MB (a) Fumigation followed by cold (2) Normal atmospheric pressure must represents methyl bromide fumigation: treatment. (1) Treatment requirements be used for the methyl bromide portion for chemical treatments in § 305.5 and of the treatment.
Dosage ° rate Exposure Treatment schedule Type of treatment Temperature ( F) (lb/1000 period ft 3)
T108–a–1 1 ...... MB ...... 70 or above ...... 2 2 hours. CT ...... 33–37 ...... 4 days. 38–47 ...... 11 days. T108–a–2 2 ...... MB ...... 70 or above ...... 2 2.5 hours. CT ...... 34–40 ...... 4 days. 41–47 ...... 6 days. 48–56 ...... 10 days. T108–a–3 3 ...... MB ...... 70 or above ...... 2 3 hours. CT ...... 43–47 ...... 3 days. 48–56 ...... 6 days. T108–b ...... MB ...... 50 or above ...... 1.5 2 hours. 40–49 ...... 2 2 hours. CT ...... 33 or below ...... 21 days. 48–56 ...... 6 days. MB&CTMedfly ...... MB ...... 70 or above ...... 2 2 hours. CT ...... 33–37 ...... 4 days. 38–47 ...... 11 days. MB ...... 70 or above ...... 2 2.5 hours. CT ...... 34–40 ...... 4 days. 41–47 ...... 6 days. 48–56 ...... 10 days. MB ...... 70 or above ...... 2 3 hours. CT ...... 43–47 ...... 3 days. 48–56 ...... 6 days. MB&CTOFF 4 ...... MB ...... 70 or above ...... 2 2 hours. CT ...... 33–37 ...... 4 days. 38–47 ...... 11 days. MB ...... 70 or above ...... 2 2.5 hours. CT ...... 34–40 ...... 4 days. 41–47 ...... 6 days. 48–56 ...... 10 days. MB ...... 70 or above ...... 2 3 hours. CT ...... 43–47 ...... 3 days. 48–56 ...... 6 days. 1 For Hawaiian-grown avocados only, a single transient heat spike of no greater than 39.6 °F (4.2 °C) and no longer than 2 hours, during or after 6 days of cold treatment, does not affect the efficacy of the treatment. 2 See footnote 1. 3 See footnote 1. 4 Following fumigation, the fruit must be aerated 2 hours before refrigeration (but refrigeration must begin no more than 24 hours after fumiga- tion is completed).
(b) Cold treatment followed by for cold treatment in § 305.15 must be (3) In the following table, CT fumigation. (1) Treatment requirements followed. represents cold treatment, and MB for chemical treatments in § 305.5 and (2) Use normal atmospheric pressure represents methyl bromide fumigation: for the methyl bromide portion of the treatment.
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° 3 Exposure Treatment schedule Type of treatment Temperature ( F) Dosage rate (lb/1000 ft ) period
T109–a–1 ...... CT ...... 34 or below ...... 40 days. MB ...... 50 or above ...... 3 ...... 2 hours. T109–a–2 ...... CT ...... 34 or below ...... 40 days. MB ...... 59 or above ...... 2 pounds 6 ounces ...... 2 hours. T109–d–1 ...... CT ...... 33 or below ...... 21 days. MB ...... 70 or above ...... 2 ...... 2 hours. 60–69 ...... 2.5. 40–59 ...... 3. CT&MBOFF ...... CT ...... 33 ...... 21 days. MB ...... 40–59 ...... 3 ...... 2 hours. 60–69 ...... 2.5 ...... 2 hours. 70–79 ...... 2 ...... 2 hours.
(c) T203–p and T511–1, hot water and for 45 seconds if the solution has (d) Compliance agreements. Facilities chemical dip for citrus (Rutacae) seeds sufficient soap or detergent to cause a located in the United States must for citrus canker. (1) If any visible foaming action or for 1 minute if operate under a compliance agreement mucilaginous material, such as pulp, is the solution does not contain sufficient with APHIS. The compliance agreement adhering to the seed, the seed must be soap to cause a visible foaming action. must be signed by a representative of washed to remove it. the cold treatment facility and APHIS. (2) The seed must be immersed in §§ 305.12–305.14 [Reserved] The compliance agreement must contain ° water heated to 125 F or above for 10 Subpart–Cold Treatments requirements for equipment, minutes. temperature, circulation, and other (3) Then the seed must be immersed § 305.15 Treatment requirements. operational requirements for performing for at least 2 minutes in a solution (a) Approved facilities and carriers. cold treatment to ensure that treatments containing 200 parts per million sodium Cold treatment facilities or carriers must are administered properly. Compliance hypochlorite at a pH of 6.0 to 7.5. be approved by APHIS. Reapproval is agreements must allow officials of (4) Seed from regions where citrus required annually, or as often as APHIS APHIS to inspect the facility to monitor canker occurs must be drained, dried, directs, depending on treatments compliance with the regulations. and repacked near original moisture performed, commodities handled, and (e) Work plans. Facilities located content. operations conducted at the facility. In outside the United States must operate (d) T201–g–2 and T201–p–2, hand order to be approved, facilities and in accordance with a work plan. The removal plus malathion-carbaryl carriers must: work plan must be signed by a chemical dip. (1) Pests must be removed (1) Be capable of keeping treated and representative of the cold treatment by hand from infested parts. untreated fruits, vegetables, or other facility, the national plant protection (2) The solutions must be prepared by articles separate so as to prevent organization of the country of origin adding 3 level tablespoons of 25 percent reinfestation of articles and spread of (NPPO), and APHIS. The work plan malathion wettable powder and 3 level pests; must contain requirements for tablespoons of 50 percent carbaryl (2) Have equipment that is adequate equipment, temperature, circulation, wettable powder to each gallon of water. to effectively perform cold treatment. and other operational requirements for The addition of a sticker-spreader (b) Cold treatment enclosures. All performing cold treatment to ensure that formulation may be required for hard to enclosures in which cold treatment is cold treatments are administered wet plants. Fresh chemicals must be performed, including refrigerated properly. Work plans for facilities used and the dip must be prepared for containers, must: outside the United States may include same day use. (For T201–p–2, when the (1) Be capable of precooling, cooling, trust fund agreement information actionable pests are scale insects or their and holding fruit at temperatures less regarding payment of the salaries and immature crawlers and the label than or equal to 2.2 °C (36 °F). expenses of APHIS employees on site. permits, the solution is prepared as (2) Maintain pulp temperatures Work plans must allow officials of the indicated, except the 25 percent according to treatment schedules with NPPO and APHIS to inspect the facility malathion wettable powder is increased no more than a 0.3 °C (0.54 °F) variation to monitor compliance with APHIS to 4 level tablespoons.) regulations. (3) The entire plant, including the in temperature. (f) Treatment procedures. (1) All roots, must be submerged in the (3) Be structurally sound and material, labor, and equipment for cold chemical dip for 30 seconds. adequate to maintain required temperatures. treatment performed on vessels must be § 305.11 Miscellaneous chemical (c) Monitoring. Treatment must be provided by the vessel or vessel agent. treatments. monitored by an official authorized by An official authorized by APHIS (a) CC1 for citrus canker. The fruit APHIS to ensure proper administration monitors, manages, and advises in order must be thoroughly wetted for at least of the treatment. An official authorized to ensure that the treatment procedures 2 minutes with a solution containing by APHIS must approve the recording are followed. 200 parts per million sodium devices and sensors used to monitor (2) Fruit that may be cold treated must hypochlorite. temperatures and conduct an be safeguarded to prevent cross- (b) CC2 for citrus canker. The fruit operational check of the equipment contamination or mixing with other must be thoroughly wetted with a before each use and ensure sensors are infested fruit. Before loading in cold solution containing sodium o-phenyl calibrated. An official authorized by treatment containers, packages of fruit phenate (SOPP) at a concentration of APHIS approves, adjusts, or rejects the must be precooled to a treatment 1.86 to 2.0 percent of the total solution, treatment. temperature or to a uniform temperature
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not to exceed 4.5 °C (40 °F) or precooled (6) Only the same type of fruit in the shipments of treated commodities may at the terminal to 2.2 °F (36 °F). same type of package may be treated not be discharged until full APHIS (3) Breaks, damage, etc., in the together in a container; no mixture of clearance has been completed, treatment enclosure that preclude fruits in containers will be treated. including review and approval of maintaining correct temperatures must (7) Fruit must be stacked to allow cold treatment record charts. be repaired before use. An official air to be distributed throughout the (9) Pretreatment conditioning (heat authorized by APHIS must approve enclosure, with no pockets of warmer shock or 100.4 °F for 10 to 12 hours) of loading of compartment, number and air, and to allow random sampling of fruits is optional and is the placement of sensors, and initial fruit pulp temperature in any location in responsibility of the shipper. temperature readings before beginning load. Temperatures must be recorded at (10) Cold treatment of fruits in break- the treatment. intervals no longer than 1 hour apart. bulk vessels or containers must be Gaps of longer than 1 hour may (4) At least three temperature sensors initiated by an official authorized by invalidate the treatment or indicate APHIS if there is not a treatment must be used in the treatment treatment failure. compartment during treatment. technician who has been trained to (8) Cold treatment is not completed initiate cold treatments for either break- (5) The time required to complete the until so designated by an official bulk vessels or containers. treatment begins when the temperature authorized by APHIS or the certifying reaches the required temperature. official of the foreign country; § 305.16 Cold treatment schedules.
° Exposure pe- Treatment schedule Temperature ( F) riod
T107–a1 ...... 34 or below ...... 14 days. 35 or below ...... 16 days. 36 or below ...... 18 days. T107–a–1 ...... 34 or below ...... 15 days. 35 or below ...... 17 days. T107–b ...... 33 or below ...... 18 days. 34 or below ...... 20 days. 35 or below ...... 22 days. T107–c ...... 32 or below ...... 11 days. 33 or below ...... 13 days. 34 or below ...... 15 days. 35 or below ...... 17 days. T107–d ...... 32 or below ...... 13 days. 33 or below ...... 14 days. 34 or below ...... 18 days. 35 or below ...... 20 days. 36 or below ...... 22 days. T107–e ...... 31 or below 2 ...... 22 days. T107–f ...... 32 or below ...... 10 days. 33 or below ...... 11 days. 34 or below ...... 12 days. 35 or below ...... 14 days. T107–g ...... 0 or below ...... 7 days. T107–h ...... 33.4 or below ...... 13 days. 33.8 or below ...... 15 days. 34.5 or below ...... 18 days. T107–j ...... 33.8 or below ...... 13 days. 34.5 or below ...... 18 days. CTMedfly ...... 34 or below ...... 14 days. 35 or below ...... 16 days. 36 or below ...... 18 days. T403–a–2–3 (for temperatures below 55 °F) ...... 0 ...... 48 hours. T403–a–4–3, T403–a–5–3, T403–a–6–1 ...... 0 ...... 48 hours. T403–a–6–2 ...... 0 ...... 32 hours. 10 ...... 48 hours. T403–a–6–3 ...... 0 ...... 8 hours. 10 ...... 16 hours. 20 ...... 24 hours. 1 For Hawaiian-grown avocados only, a single transient heat spike of no greater than 39.6 °F (4.2 °C) and no longer than 2 hours, during or after 6 days of cold treatment, does not affect the efficacy of the treatment. 2 Commence when sensors are at 31 °F or below. If the temperature exceeds 31.5 °F, extend the treatment one-third of a day for each day, or part of a day, that the temperature is above 31.5 °F. If the exposure period is extended, the temperature during the extension period must be 34 °F or below. If the temperature exceeds 34 °F at any time, the treatment is nullified. Also, some freeze damage may occur if the pulp tempera- ture drops below approximately 29.5 °F. This varies with the commodity.
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Subpart—Quick Freeze Treatments treatment period, but the temperature APHIS to inspect the facility to monitor must be maintained at 20 °F or below compliance with the regulations. § 305.17 Authorized treatments; prior to release. (d) Work plans. Facilities located exceptions. (4) The fruits and vegetables may not outside the United States must operate (a) Quick freeze is an authorized be removed from the vessel or vehicle in accordance with a work plan. The treatment for all fruits and vegetables transporting them until an inspector has work plan must be signed by a imported into the United States or determined that they are in a representative of the heat treatment moved interstate from Hawaii or Puerto satisfactory frozen state upon arrival. If facilities located outside the United Rico, except for those fruits and the temperature of the fruits or States the national plant protection vegetables listed in paragraph (b) of this vegetables in any part of a shipment is organization of the country of origin section. Quick freeze for fruits and found to be above 20 °F at the time of (NPPO), and APHIS. The work plan vegetables imported into the United inspection upon arrival, the entire must contain requirements for States or moved interstate from Hawaii shipment must remain on board the equipment, temperature, water quality, or Puerto Rico must be conducted in vessel or vehicle under such safeguards circulation, and other measures to accordance with §§ 318.13–4a, 318.58– as may be prescribed by the inspector ensure that heat treatments are 4a, and 319.56–2c, respectively. until the temperature of the shipment is administered properly. Work plans for (b) Quick freeze is not an authorized below 20 °F, or the shipment is facilities outside the United States must treatment for: transported outside the United States or include trust fund agreement (1) Avocados with seeds from South its territorial waters, or is otherwise information regarding payment of the America, Central America, or Mexico. disposed of to the satisfaction of the salaries and expenses of APHIS (2) Citrus with peel from Afghanistan, inspector. employees on site. Work plans must Andaman Islands, Argentina, (b) [Reserved] allow officials of the NPPO and APHIS Bangladesh, Brazil, Cambodia, China to inspect the facility to monitor § 305.19 [Reserved] (People’s Republic of), Comoros, Cote compliance with APHIS regulations. d’Ivoire, Fiji Islands, Home Island in (e) Treatment procedures. (1) Before Cocos (Keeling) Islands, Hong Kong, Subpart—Heat Treatments each treatment can begin, an official India, Indonesia, Japan and adjacent § 305.20 Treatment requirements. authorized by APHIS must approve the islands, Korea, Laos, Madagascar, loading of the commodity in the Malaysia, Maldives, Mauritius, (a) Certified facility. The treatment treatment container. Mozambique, Myanmar, Nepal, Oman, facility must be certified by APHIS. Pakistan, Palau, Papua New Guinea, Recertification is required annually, or (2) Sensor equipment must be Paraguay, Philippines, Reunion Islands, as often as APHIS directs, depending adequate to monitor the treatment, its Rodrigues Islands, Ryukyu Islands, upon treatments performed, type and placement must be approved Saudi Arabia, Seychelles, Sri Lanka, commodities handled, and operations by an official authorized by APHIS, and Taiwan, Thailand, Thursday Island, conducted at the facility. In order to be the equipment must be tested by an United Arab Emirates, Uruguay, certified, a heat treatment facility must: official authorized by APHIS prior to Vietnam, Yemen, and Zaire. (1) Have equipment that is capable of beginning the treatment. Sensor (3) Mangoes with seeds from adequately circulating air or water (as equipment must be locked before each Barbados, Dominica, French Guiana, relevant to the treatment), changing the treatment to prevent tampering. Guadeloupe, Martinique, St. Lucia, and temperature, and maintaining the (3) Fruits, vegetables, or articles of all countries outside of North, Central, changed temperature sufficient to meet substantially different sizes must be and South America and their adjacent the treatment schedule parameters. treated separately; oversized fruit may islands (which include the Caribbean (2) Have equipment used to record, be rejected by an official authorized by Islands and Bermuda). monitor, or sense temperature, APHIS. (4) Corn-on-the-cob from Albania, maintained in proper working order. (4) The treatment period begins when Algeria, Bosnia and Hercegovina, (3) Keep treated and untreated fruits, the temperature specified by the Croatia, Cyprus, Egypt, France, Greece, vegetables, or articles separate so as to treatment schedule has been reached. Israel, Italy, Lebanon, Libya, Malta, prevent reinfestation and spread of An official authorized by APHIS may Macedonia, Morocco, Sardinia, Serbia pests. abort the treatment if the facility and Montenegro, Slovenia, Spain, Syria, (b) Monitoring. Treatment must be requires an unreasonably long time to Tunisia, and Turkey. monitored by an official authorized by achieve the required temperature. (5) Black currants unless authorized APHIS to ensure proper administration of the treatment. An official authorized § 305.21 Hot water dip treatment schedule in an import permit to specified areas. for mangoes. (c) Quick freeze may damage by APHIS approves, adjusts, or rejects commodities and is recommended for the treatment. Mangoes may be treated using thick-skinned fruits and vegetables, (c) Compliance agreements. Facilities schedule T102–a: such as durian and coconut, that will be located in the United States must (a) Fruit must be presorted by weight processed into another form (e.g., for operate under a compliance agreement class. Treatment of mixed loads is not puree, juice, or mashed vegetables). with APHIS. The compliance agreement allowed. must be signed by a representative of (b) The mangoes must be treated in § 305.18 Quick freeze treatment schedule. the heat treatment facilities located in the country of origin at a certified (a) T110. the United States and APHIS. The facility under the monitoring of an (1) Initially, lower the commodity’s compliance agreement must contain official authorized by APHIS. Prior to temperature to 0 °F or below. requirements for equipment, each use, an official authorized by (2) Hold the temperature of the temperature, water quality, circulation, APHIS must test and determine that the commodity at 20 °F or below for at least and other measures for performing heat treatment tank, temperature recording 48 hours. treatments to ensure that treatments are device, and other monitoring equipment (3) The commodity may be administered properly. Compliance of the tank are adequate to conduct the transported during the 48-hour agreements must allow officials of treatment.
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(c) Water in the treatment tank must throughout the treatment with the than 113.7 °F for no more than 10 be treated or changed regularly to following tolerances: minutes under emergency conditions. prevent microbial contamination. (1) During the first 5 minutes of a (3) For treatments lasting 90–110 Chlorinated water must be used. treatment, temperatures below 113.7 °F minutes, temperatures may fall no lower (d) Pulp temperature must be 70 °F or are allowed if the temperature is at least than 113.7 °F for no more than 15 above before starting the treatment. ° (e) Fruit must be submerged at least 115 F at the end of the 5-minute period. minutes under emergency conditions. 4 inches below the water’s surface. (2) For treatments lasting 65–75 (g) Dip time is as follows: (f) Water must circulate constantly minutes, temperatures may fall no lower (1) and be kept at 115 °F or above
2 1 Dip time Origin Shape of mango Weight (grams) (minutes)
Puerto Rico, U.S. Virgin Islands, or West Indies (excluding Aruba, Flat, elongated varieties ...... Up to 400 ...... 65 Bonaire, Curacao, Margarita, Tortuga, or Trinidad and Tobago). 400–570 ...... 75 Rounded varieties ...... Up to 500 ...... 75 500–700 ...... 90 701–900 ...... 110 Central America (north of and including Costa Rica) or Mexico ..... Flat, elongated varieties ...... Up to 375 ...... 65 375–570 ...... 75 Rounded varieties ...... Up to 500 ...... 75 500–700 ...... 90 701–900 ...... 110 Panama, South America, or West Indies islands of Aruba, Bo- Flat, elongated varieties ...... Up to 375 ...... 65 naire, Curacao, Margarita, Tortuga, or Trinidad and Tobago. 375–570 ...... 75 Rounded varieties ...... Up to 425 ...... 75 425–650 ...... 90 1 Flat, elongated varieties include Frances, Carrot, Zill, Ataulfo, Carabao, Irwin, and Manila, and rounded varieties include Tommy Atkins, Kent, Hayden, and Keitt. 2 See paragraph (g)(2) of this section for required dip times if the fruit is hydrocooled within 30 minutes of removal from the hot water immer- sion tank.
(2) Dip times in paragraph (g)(1) of continually and be kept at 120.2 °F or (4) Hydrocooling for 20 minutes at this section are valid if the fruit is not above for the duration of the treatment. 75.2 °F is recommended to prevent hydrocooled within 30 minutes of Temperatures exceeding 121.1 °F can injury to the fruit from the hot water removal from the hot water immersion cause phytotoxic damage. immersion treatment. tank. If hydrocooling starts immediately (4) Hydrocooling for 20 minutes at (c) T102–e. (1) Fruit must be after the hot water immersion treatment, 75.2 °F is recommended to prevent submerged at least 4 inches below the then the original dip time must be injury to the fruit from the hot water water’s surface in a hot water immersion extended for an additional 10 minutes. immersion treatment. treatment tank certified by APHIS. Hydrocooling is optional but may be (b) T102–d–1. (1) Fruit must be at ° (2) Water must circulate continually done only at temperatures of 70 F or ambient temperature before treatment ° above. and be kept at 120.2 F or above for 20 begins. minutes. Treatment time begins when § 305.22 Hot water immersion treatment (2) Fruit must be submerged at least the water temperature reaches at least schedules. 4 inches below the water’s surface in a 120.2 °F in all locations of the tank. (a) T102–d. (1) Fruit must be grown hot water immersion treatment tank Temperatures exceeding 125.6 °F or and treated in Hawaii. certified by APHIS. treatment times significantly exceeding (2) Fruit must be submerged at least (3) The fruit must be submerged for 20 20 minutes can cause phytotoxic 4 inches below the water’s surface in a minutes after the water temperature damage. reaches at least 120.2 °F in all locations hot water immersion treatment tank (3) Cooling and waxing the fruit are of the tank. The water must circulate certified by APHIS. both optional and are the sole (3) The fruit must be submerged for 20 continually and be kept at 120.2 °F or responsibility of the processor. minutes after the water temperature above for the duration of the treatment. reaches at least 120.2 °F in all locations Temperatures exceeding 121.1 °F can § 305.23 Steam sterilization treatment of the tank. The water must circulate cause phytotoxic damage. schedules.
Tempera- Exposure Treatment schedule ture Pressure period Directions (°F) (minutes)
T303–b–1 ...... 10 lbs ...... 20 Use 28″ vacuum. Steam sterilization is not practical for treatment of bales with a density of greater than 30 pounds per cubic foot. T303–b–2 ...... 10 lbs ...... 20 Use 28″ vacuum. If without initial vacuum, bleed air until steam vapor escapes. Steam sterilization is not practical for treatment of bales with a density of greater than 30 pounds per cubic foot. T303–d–2 ...... 260 20 lbs...... 15 250 15 lbs...... 20 T309–c ...... 240 10 psi ...... 20 Use 25&Prime vacuum.
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Tempera- Exposure Treatment schedule ture Pressure period Directions (°F) (minutes)
T406–d ...... 140 NAP 1 ...... 60 Steam at NAP, tarpaulin or tent. For treatment enclosures of 4,000 ft 3 or less, the minimum air temperature must be 40 °F. For treat- ment enclosures greater than 4,000 ft 3 and less than or equal to 6,000 ft 3, the minimum air temperature must be 60 °F. Treatment is not recommended for treatment enclosures greater than 6,000 ft 3. T408–b ...... 250 15 psi ...... 30 Preheat laboratory autoclaves. Restrict soil depth to 2 inches when treating quantities of soil in trays. Restrict each package weight to 5 pounds or less when treating individual packages. Load with adequate spacing. Large commercial steam facilities that operate at pressures up to 60 pounds psi will permit treatment of greater soil depth. T503–1–3 or T503–2–3 (nonbaled) 240 NAP ...... 10 T503–1–3 or T503–2–3 (baled) ..... 240 10 lbs ...... 20 T504–1–2, T504–2–2 ...... 242 10 lbs...... 20 T506–2–3 Loose masses of mate- ...... 20 lbs ...... 10 Introduce live steam into a closed chamber containing the material to rial. 15 lbs ...... 15 be treated until the required temperature and pressure are indi- 10 lbs ...... 20 cated. The temperature/pressure relationship must be maintained at or above this point for the required exposure period. No initial vacuum is needed, but air must be released until steam escapes. T506–2–3 Closely packed material ...... Exhaust the air in the chamber to a high vacuum, and then introduce (such as soil). live steam until the required positive pressure is reached. T510–1 ...... 212 ...... Live steam from jet of nozzle into loose masses of material until all parts reach 212 °F. T518–2–2 ...... 260 20 lbs...... 15 250 15 lbs...... 20 T519–1 ...... 10 lbs ...... 20 Introduce steam into 28″ vacuum. T519–2 ...... 259 20 lbs ...... 10 Introduce steam into 28″ vacuum (or if without initial vacuum, 240 10 lbs ...... 20 ‘‘bleed’’ air until steam vapor escapes).
1 Normal atmospheric pressure.
§ 305.24 Vapor heat treatment schedules. must be maintained at 90 percent or approximate center of the largest fruits (a) T106–a–1, T106–a–2, T106–a–3, greater. at the seed’s surface. T106–a–4. (1) The temperature of the (e) T106–d. (1) The fruit must be sized (2) The temperature of the fruit must fruit pulp must be increased gradually before treatment. Temperature probes be increased to 117 °F. The total runup to 110 °F until the center of the fruit must be placed in the center of the time for all sensors must take at least 60 reaches that temperature in 8 hours. largest fruits. The temperature of the minutes. fruit must be increased using saturated (2) The fruit temperature must be held ° (3) The fruit temperature must be held ° water vapor at 117.5 F until the pulp ° at 110 F for 6 hours. temperature near the seed reaches 115.7 at 117 F or above for 20 minutes. (b) T106–a–1–1. (1) The temperature °F. The pulp temperature must be held During the treatment, the relative of the fruit pulp must be increased to at 115.7 °F or above for 30 minutes; then humidity must be maintained at 90 110 °F until the center of fruit reaches immediately cooled. percent or greater. that temperature in 6 hours. During the (f) T106–d–1. (1) The fruit must be (4) The fruit must be hydrocooled first 2 hours, the temperature must be sized before the treatment. Temperature under a cool water spray until the fruit increased rapidly. The increase over the probes must be placed in the center of sensors reach ambient temperature. next 4 hours must be gradual. the largest fruits. (5) Inspectors will examine the fruit (2) The fruit temperature must be held (2) The temperature of the fruit must for live quarantine pests. If pests are at 110 °F for 4 hours. be increased using saturated water ° found, the inspector will reject the (c) T106–b–1, T106–b–2, T106–b–3, vapor at 117.5 F until the center of the treatment. fruit reaches 114.8 °F in a minimum of T106–b–4, T106–b–5, T106–b–6, T106– (i) T106–g. (1) The internal b–7, T106–b–8. The temperature of the 4 hours. (3) The fruit temperature must be temperature of the fruit must be article must be increased using ° increased using saturated water vapor saturated water vapor at 112 °F until the maintained at 114.8 F for 10 minutes. (g) T106–e. (1) Raise temperature of until the approximate center of fruit approximate center of the fruit reaches the fruit using saturated water vapor at reaches 117 °F in a minimum time of 1 112 °F. The fruit temperature must be 116.6 °F until the approximate center of hour or longer. held at 112 °F for 8.75 hours; then the fruit reaches 114.8 °F within a (2) The fruit temperature must be held immediately cooled. minimum time period of 4 hours. at 117 °F or above for 20 minutes. (d) T106–c (Quick run-up). (1) The (2) Hold fruit temperature at 114.8 °F During the treatment, the relative temperature of the article must be or above for 20 minutes. If post- humidity must be maintained at 90 increased until the approximate center treatment cooling is conducted, wait 30 ° percent or greater. of fruit reaches 117 F in a time period minutes after the treatment to start the of at least 4 hours. (j) T412–b–2. The commodity must be forced cooling process. heated to 212 °F for 15 minutes. (2) During the last hour of treatment, (h) T106–f. (1) The temperature the relative humidity in the chamber probes must be placed in the § 305.25 Dry heat treatment schedules.
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Treatment schedule Temperature (°F) Time Directions
T302–a–1–2 ...... 168 minimum ...... At least 2 hours ...... Spread the ears of corn in single layers on slats or wire shelves. T303–c–1 ...... 212 ...... 1 hour. T303–d–1 ...... 180–200 ...... 2 hours. T408–a ...... 230–249 ...... 16 hours ...... Spread soil in layers 0.5 inches in 250–309 ...... 2 hours. depth to ensure uniform heat 310–397 ...... 30 minutes. penetration. 380–429 ...... 4 minutes. 430–450 ...... 2 minutes. T412–a ...... 248 ...... 15 minutes ...... Start timing when the entire mass reaches 248 °F.1 T412–b–1 ...... 212 ...... 15 minutes. T503–1–4, T503–2–4, T504–1–1, 212 ...... 1 hour ...... Treat small bales only. T504–2–1. T518–1 ...... 170 ...... 4.5 hours ...... May take 2 hours to reach tem- perature. T518–2–1 ...... 180–200 ...... 2 hours. 1 A minimum of two temperature probes must be placed in the heat treating equipment in order to determine that all niger seed being treated reaches the target temperature. The treatment temperature must be recorded accurately, precisely, and regularly during treatment. The moni- toring equipment must be locked before each treatment begins to prevent tampering. Seed processing equipment must have the capability to di- vert for retreatment any nontreated seeds or treated seeds that do not meet treatment standards.
§ 305.26 Khapra beetle treatment schedule locations specified by APHIS during the time required for the fruit to reach 117 for feeds and milled products. chamber certification. °F is counted as part of the 4-hour Feeds and milled products may be (5) Fruit temperature must be minimum treatment time. treated for khapra beetle using schedule increased within specifications: (5) The temperature of the forced air T307–a. The temperature must be 180 °F (i) The fruit center temperature must used to heat the fruit in the chamber in any part of the products, or the be increased to 111.2 °F within 90 may be constant or increased in a series temperature must be at 150 °F for a total minutes or more (minimum approach of two or more steps or ramped over the of 7 minutes. All parts of the commodity time is 90 minutes) for all temperature treatment duration. being moved through or manipulated in probes. (6) The fruit may be cooled by forced the heated area must meet the time and (ii) The fruit center temperature must ° air or hydrocooling. Cooling can be temperature requirements. This be kept at 111.2 F or hotter for 100 initiated immediately after all sensors treatment must be specifically minutes. reach at least 117 °F. (iii) The temperature of the fruit authorized in each case by the Director (c) T103–c–1. (1) Size and weight of center must be recorded every 2 minutes of Plant Health Programs, PPQ, APHIS. fruit: Standard fruit size 8–14; must not for the duration of the treatment. 1 § 305.27 Forced hot air treatment (iv) The total treatment time will vary exceed 1 ⁄2 pounds. schedules. with the time required to reach 111.2 °F. (2) At least three of the largest (a) T103–a–1. (1) The temperature (v) Fruit must be cooled after the mangoes must be probed at the seed’s probes must be placed into the center of treatment is completed. surface. Sensors must be inserted into the largest fruit in the load. The number (b) T103–b–1, T103–d–1, and T103–d– the thickest portion of the fruit’s pulp. and placement of temperature probes 2. Temperature sensors must be inserted (3) The temperature must be recorded must be approved by APHIS’ Center for into the centers of the largest fruits. The at least once every 2 minutes until the Plant Health Science and Technology number of sensors must be approved in treatment is concluded. (CPHST) before APHIS can authorize advance by APHIS. Sensors must be (4) Air heated to 122 °F must be treatment. CPHST grants approval of physically placed in various parts of the introduced in the chamber. treatment equipment and facilities load so that high, middle, and low areas (5) The treatment must be concluded through a chamber certification are all represented. once the temperature at the seed’s procedure. (2) Fruit (placed in open trays, bulk surface reaches 118 °F. (2) APHIS may reject the treatment if bins, or ventilated boxes) must be (d) T103–e. (1) The temperature of the the size of an individual fruit exceeds loaded into the treatment chamber, and fruit must be raised using forced hot air the maximum size authorized by sensors must be attached to the recorder until the fruit center temperature (all APHIS. monitor. sensors) reaches at least 117 °F in a (3) Fruit can be sized before or after (3) The monitor must be set to record minimum time of 1 hour. Heat the fruit the heat treatment. The largest fruit in temperatures from all sensors at least in the chamber. a load can be identified by either sizing once every 5 minutes. (2) The fruit temperature must be held (4) The fruit in the chamber must be all fruit prior to heating and selecting at 117 °F or above for 20 minutes. heated using forced hot air, until the the largest size class in the load or During the treatment, the relative fruit center temperature (all sensors) acquiring fruit of the largest permitted humidity must be maintained at 90 reaches at least 117 °F. Treatment time maximum commercial size class. percent or greater. (4) The fruit containing the may vary, but in every case, it must be temperature probes must be placed at least 4 hours in duration, which § 305.28 Kiln sterilization treatment inside the hot air chamber at chamber includes the lead-up time. The total schedule.
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T404–b–4
Dry bulb temperature Wet bulb depression Percent relative Percent moisture Thickness of lumber Exposure (°F) (°F) humidity content (inches) (hours)
140 7 82 13.8 1 3 25 37 130 16 60 9.4 1 10 2 12 3 14 125 15 61 9.7 1 46 2 48 3 50
§§ 305.29–305.30 [Reserved] California, Florida, Georgia,1 Kentucky, irradiated during their transit from the Louisiana, Mississippi,1 Nevada, New port of first arrival to the irradiation Subpart—Irradiation Treatments Mexico, North Carolina,1 South facility in the United States. § 305.31 Irradiation treatment of imported Carolina, Tennessee, Texas, and (d) Compliance agreement with fruits and vegetables for certain fruit flies Virginia. Prior to treatment, the fruits irradiation facilities outside the United and mango seed weevils. and vegetables to be irradiated may not States. If irradiation is conducted (a) Approved doses. Irradiation at the move into or through any of the States outside the United States, the operator following doses for the specified fruit listed in this paragraph, except that of the irradiation facility must sign a flies and seed weevils, carried out in movement is allowed through Dallas/ compliance agreement with the accordance with the provisions of this Fort Worth, Texas, as an authorized stop Administrator and the plant protection section, is approved as a treatment for for air cargo, or as a transloading service of the country in which the all fruits and vegetables: location for shipments that arrive by air facility is located. In this agreement, the but that are subsequently transloaded facility operator must agree to comply IRRADIATION FOR FRUIT FLIES AND into trucks for overland movement from with the requirements of this section, Dallas/Fort Worth into an authorized SEED WEEVILS IN IMPORTED FRUITS and the plant protection service of the State by the shortest route. country in which the facility is located AND VEGETABLES (c) Compliance agreement with must agree to monitor that compliance importers and facility operators for and to inform the Administrator of any Dose irradiation in the United States. If Scientific name Common name (Gray) noncompliance. irradiation is conducted in the United (e) Certified facility. The irradiation (1) Bactrocera Oriental fruit fly 250 States, both the importer and the treatment facility must be certified by dorsalis. operator of the irradiation facility must the Administrator. Recertification is (2) Ceratitis Mediterranean 225 sign compliance agreements with the required in the event of an increase or capitata. fruit fly. Administrator. In the facility decrease in the amount of radioisotope, (3) Bactrocera Melon fly ...... 210 compliance agreement, the facility a major modification to equipment that cucurbitae. operator must agree to comply with any affects the delivered dose, or a change (4) Anastrepha South American 150 additional requirements found fraterculus. fruit fly. in the owner or managing entity of the (5) Anastrepha Caribbean fruit 150 necessary by the Administrator to facility. Recertification also may be suspensa. fly. prevent the escape, prior to irradiation, required in cases where a significant (6) Anastrepha Mexican fruit fly 150 of any fruit flies that may be associated variance in dose delivery has been ludens. with the articles to be irradiated. In the measured by the dosimetry system. In (7) Anastrepha West Indian fruit 150 importer compliance agreement, the order to be certified, a facility must: obliqua. fly. importer must agree to comply with any (1) Be capable of administering the (8) Anastrepha Sapote fruit fly ... 150 additional requirements found minimum absorbed ionizing radiation serpentina. necessary by the Administrator to (9) Bactrocera Queensland fruit 150 doses specified in paragraph (a) of this ensure the shipment is not diverted to 2 tryoni. fly. section to the fruits and vegetables; (10) Bactrocera (No common 150 a destination other than an approved (2) Be constructed so as to provide jarvisi. name). treatment facility and to prevent escape physically separate locations for treated (11) Bactrocera Malaysian fruit 150 of plant pests from the articles to be and untreated fruits and vegetables, latifrons. fly. except that fruits and vegetables (12) Mango seed 300 1 Irradiation facilities may be located at the traveling by conveyor directly into the Sternochetus weevil. maritime ports of Gulfport, MS, or Wilmington, NC, irradiation chamber may pass through mangiferae or the airport of Atlanta, GA, if the following special conditions are met: The articles to be an area that would otherwise be (Fabricus). irradiated must be imported packaged in separated. The locations must be accordance with paragraph (g)(2)(i)(A) of this separated by a permanent physical (b) Location of facilities. Where section; the irradiation facility and APHIS must certified irradiation facilities are agree in advance on the route by which shipments barrier such as a wall or chain link fence are allowed to move between the vessel on which available, an approved irradiation 6 or more feet high to prevent transfer they arrive and the irradiation facility; untreated of cartons, or some other means treatment may be conducted for any articles may not be removed from their packaging fruit or vegetable either prior to prior to treatment under any circumstances; approved during certification to prevent shipment to the United States or in the blacklight or sticky paper must be used within the reinfestation of articles and spread of irradiation facility, and other trapping methods, pests; United States. Irradiation facilities including Jackson/methyl eugenol and McPhail certified under this section may be traps, must be used within the 4 square miles located in any State on the mainland surrounding the facility; and the facility must have 2 The maximum absorbed ionizing radiation dose contingency plans, approved by APHIS, for safely and the irradiation of food is regulated by the Food United States except Alabama, Arizona, destroying or disposing of fruit. and Drug Administration under 21 CFR part 179.
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(3) If the facility is located in the the facility by APHIS and foreign plant be packaged for shipment in a carton United States, the facility will only be protection inspectors, methods for with nonirradiated fruits and vegetables. certified if the Administrator determines reviewing facility records, and methods (2) For all fruits and vegetables that regulated articles will be safely for verifying that facilities are in irradiated prior to arrival in the United transported to the facility from the port compliance with the requirements for States: of arrival without significant risk that separation of articles, packaging, (i) The fruits and vegetables to be plant pests will escape in transit or labeling, and other requirements of this irradiated must be packaged either: while the regulated articles are at the section. This facility preclearance work (A) In insect-proof cartons that have facility. plan will be reviewed and renewed by no openings that will allow the entry of (f) Monitoring and interagency APHIS and the foreign plant protection fruit flies. The cartons must be sealed agreements. Treatment must be service on an annual basis. with seals that will visually indicate if monitored by an inspector. This (3) Trust fund agreement. Irradiated the cartons have been opened. The monitoring will include inspection of articles may be imported into the United cartons may be constructed of any treatment records and unannounced States in accordance with this section material that prevents the entry of fruit inspections of the facility by an only if the plant protection service of flies and prevents oviposition by fruit inspector, and may include inspection the country in which the irradiation flies into the articles in the carton 3; or of articles prior to or after irradiation. facility is located has entered into a (B) In noninsect-proof cartons that are Facilities that carry out irradiation trust fund agreement with APHIS. That stored immediately after irradiation in a operations must notify the Director of agreement requires the plant protection room completely enclosed by walls or Preclearance, PPQ, APHIS, 4700 River service to pay, in advance of each screening that completely precludes Road Unit 140, Riverdale, MD 20737– shipping season, all costs that APHIS access by fruit flies. If stored in 1236, of scheduled operations at least 30 estimates it will incur in providing noninsect-proof cartons in a room that days before operations commence, inspection and treatment monitoring precludes access by fruit flies, prior to except where otherwise provided in the services at the irradiation facility during leaving the room each pallet of cartons facility preclearance work plan. To that shipping season. Those costs must be completely enclosed in ensure the appropriate level of include administrative expenses and all polyethylene, shrink-wrap, or another monitoring, before articles may be salaries (including overtime and the solid or netting covering that completely imported in accordance with this Federal share of employee benefits), precludes access to the cartons by fruit section, the following agreements must travel expenses (including per diem flies. be signed: expenses), and other incidental (ii) To preserve the identity of treated (1) Irradiation treatment framework expenses incurred by APHIS in lots, each pallet-load of cartons equivalency work plan. The plant performing these services. The containing the fruits and vegetables protection service of a country from agreement will describe the general must be wrapped before leaving the which articles are to be imported into nature and scope of APHIS services irradiation facility in one of the the United States in accordance with provided at irradiation facilities covered following ways: this section must sign a framework by the agreement, such as whether (A) With polyethylene shrink wrap; equivalency work plan with APHIS. In APHIS inspectors will monitor (B) With net wrapping; or this plan, both the foreign plant operations continuously or (C) With strapping so that each carton protection service and APHIS will intermittently, and will generally on an outside row of the pallet load is specify the following items for their describe the extent of inspections constrained by a metal or plastic strap. respective countries: APHIS will perform on articles prior to (iii) Packaging must be labeled with (i) Citations for any requirements that and after irradiation. The agreement treatment lot numbers, packing and apply to the importation of irradiated requires the plant protection service to treatment facility identification and fruits and vegetables; deposit a certified or cashier’s check location, and dates of packing and (ii) The type and amount of with APHIS for the amount of those treatment. Pallets that remain intact as inspection, monitoring, or other costs, as estimated by APHIS. If the one unit until entry into the United activities that will be required in deposit is not sufficient to meet all costs States may have one such label per connection with allowing the incurred by APHIS, the agreement pallet. Pallets that are broken apart into importation of irradiated fruits and further requires the plant protection smaller units prior to or during entry vegetables into that country; and service to deposit with APHIS a into the United States must have the (iii) Any other conditions that must be certified or cashier’s check for the required label information on each met to allow the importation of amount of the remaining costs, as individual carton. irradiated fruits and vegetables into that determined by APHIS, before any more (h) Containers or vans. Containers or country. articles irradiated in that country may vans that will transport treated (2) Facility preclearance work plan. be imported into the United States. commodities must be free of pests prior Prior to commencing importation into After a final audit at the conclusion of to loading the treated commodities. the United States of articles treated at a each shipping season, any overpayment (i) Phytosanitary certificate. For each foreign irradiation facility, APHIS and of funds would be returned to the plant shipment treated in an irradiation the plant protection service of the protection service or held on account facility outside the United States, a country from which articles are to be until needed, at the option of the plant phytosanitary certificate, with the imported must jointly develop a protection service. treatment section completed and issued preclearance work-plan that details the (g) Packaging. Fruits and vegetables by the national plant protection activities that APHIS and the foreign that are irradiated in accordance with plant protection service will carry out in this section must be packaged in cartons 3 If there is a question as to the adequacy of a connection with each irradiation facility in the following manner: carton, send a request for approval of the carton, to verify the facility’s compliance with (1) All fruits and vegetables treated together with a sample carton, to the Animal and Plant Health Inspection Service, Plant Protection the requirements of this section. Typical with irradiation must be shipped in the and Quarantine, Center for Plant Health Inspection activities to be described in this work same cartons in which they are treated. and Technology, 1017 Main Campus Drive, suite plan may include frequency of visits to Irradiated fruits and vegetables may not 2500, Raleigh, NC 27606.
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organization, must accompany the irradiation treatment facility upon must be approved by the Animal and shipment. written request from the irradiation Plant Health Inspection Service. In (j) Dosimetry systems at the processor. order to be approved, a facility must: irradiation facility. (1) Dosimetry (2) The Administrator will deny or (1) Be capable of administering a mapping must indicate the doses withdraw certification of an irradiation minimum absorbed ionizing radiation needed to ensure that all the commodity treatment facility when any provision of dose of 150 Gray (15 krad) to the fruit;5 will receive the minimum dose this section is not met. Before (2) Be constructed so as to provide prescribed. withdrawing or denying certification, physically separate locations for treated (2) Absorbed dose must be measured the Administrator will inform the and untreated fruit, except that fruit using an accurate dosimetry system that irradiation processor in writing of the traveling by conveyor directly into the ensures that the absorbed dose meets or reasons for the proposed action and irradiation chamber may pass through exceeds the absorbed dose required by provide the irradiation processor with an area that would otherwise be paragraph (a) of this section (150, 210, an opportunity to respond. The separated. The locations must be 225, 250, or 300 gray, depending on the Administrator will give the irradiation separated by a permanent physical target species of fruit fly or seed weevil). processor an opportunity for a hearing barrier such as a wall or chain link fence (3) When designing the facility’s regarding any dispute of a material fact, 6 or more feet high to prevent transfer dosimetry system and procedures for its in accordance with rules of practice that of cartons; operation, the facility operator must will be adopted for the proceeding. (3) Complete a compliance agreement address guidance and principles from However, the Administrator will with the Animal and Plant Health American Society for Testing and suspend certification pending final Inspection Service as provided in 4 Materials (ASTM) standards or an determination in the proceeding if he or § 301.64–6 of this chapter; and equivalent standard recognized by the she determines that suspension is (4) Be certified by Plant Protection Administrator. necessary to prevent the spread of any and Quarantine for initial use and (k) Records. An irradiation processor dangerous insect. The suspension will annually for subsequent use. must maintain records of each treated be effective upon oral or written Recertification is required in the event lot for 1 year following the treatment notification, whichever is earlier, to the that an increase or decrease in date and must make these records irradiation processor. In the event of radioisotope or a major modification to available for inspection by an inspector oral notification, written confirmation equipment that affects the delivered during normal business hours (8 a.m. to will be given to the irradiation processor dose. Recertification may be required in 4:30 p.m., Monday through Friday, within 10 days of the oral notification. cases where a significant variance in except holidays). These records must The suspension will continue in effect dose delivery is indicated. include the lot identification, scheduled pending completion of the proceeding (b) Treatment monitoring. Treatment process, evidence of compliance with and any judicial review of the must be carried out under the the scheduled process, ionizing energy proceeding. monitoring of an inspector. This source, source calibration, dosimetry, (n) Department not responsible for monitoring must include inspection of dose distribution in the product, and the damage. This treatment is approved to treatment records and unannounced date of irradiation. assure quarantine security against the inspection visits to the facility by an (l) Request for certification and listed fruit flies. From the literature inspection of facility. Persons requesting inspector. Facilities that carry out available, the fruits and vegetables continual irradiation operations must certification of an irradiation treatment authorized for treatment under this facility must submit the request for notify an inspector at least 24 hours section are believed tolerant to the before the date of operations. Facilities approval in writing to the Animal and treatment; however, the facility operator Plant Health Inspection Service, Plant that carry out periodic irradiation and shipper are responsible for operations must notify an inspector of Protection and Quarantine, Center for determination of tolerance. The Plant Health Inspection and scheduled operations at least 24 hours Department of Agriculture and its 6 Technology, 1017 Main Campus Drive, before scheduled operations. inspectors assume no responsibility for (c) Packaging. Fruits and vegetables suite 2500, Raleigh, NC 27606. The any loss or damage resulting from any initial request must identify the owner, that are treated within a quarantined treatment prescribed or monitored. area must be packaged in the following location, and radiation source of the Additionally, the Nuclear Regulatory facility, and the applicant must supply manner: Commission is responsible for ensuring additional information about the facility (1) The cartons must have no that irradiation facilities are constructed construction, treatment protocols, and openings that will allow the entry of and operated in a safe manner. Further, operations upon request by APHIS if fruit flies and must be sealed with seals the Food and Drug Administration is APHIS requires additional information that will visually indicate if the cartons responsible for ensuring that irradiated to evaluate the request. Before the have been opened. They may be foods are safe and wholesome for Administrator determines whether an constructed of any material that human consumption. irradiation facility is eligible for prevents the entry of fruit flies and certification, an inspector will make a (Approved by the Office of Management and prevents oviposition by fruit flies into personal inspection of the facility to Budget under control number 0579–0155) the fruit in the carton.7 (2) The pallet-load of cartons must be determine whether it complies with the § 305.32 Irradiation treatment of regulated standards of this section. fruit to be moved interstate from areas wrapped before it leaves the irradiation (m) Denial and withdrawal of quarantined for Mexican fruit fly. facility in one of the following ways: certification. (1) The Administrator will Irradiation, carried out in accordance (i) With polyethylene sheet wrap; withdraw the certification of any with the provisions of this paragraph, is (ii) With net wrapping; or
approved as a treatment for any fruit 5 4 Designation ISO/ASTM 51261–2002(E) , listed as a regulated article in § 301.64– See footnote 2 of this subpart. ‘‘Standard Guide for Selection and Calibration of 6 Inspectors are assigned to local offices of the Dosimetry Systems for Radiation Processing,’’ 2(a) of this chapter. Animal and Plant Health Inspection Service, which American Society for Testing and Materials, Annual (a) Approved facility. The irradiation are listed in telephone directories. Book of ASTM Standards. treatment facility and treatment protocol 7 See footnote 3 of this subpart.
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(iii) With strapping so that each irradiation processor requests in writing must be approved by the Animal and carton on an outside row of the pallet the withdrawal of approval. Plant Health Inspection Service. In load is constrained by a metal or plastic (2) The Administrator will deny or order to be approved, a facility must: strap. withdraw approval of an irradiation (1) Be capable of administering a (3) Packaging must be labeled with treatment facility when any provision of minimum absorbed ionizing radiation treatment lot numbers, packing and this section is not met. Before dose of 225 Gray (22.5 krad) to the fruits treatment facility identification and withdrawing or denying approval, the and vegetables; 10 location, and dates of packing and Administrator will inform the (2) Be constructed so as to provide treatment. irradiation processor in writing of the physically separate locations for treated (d) Dosage. The fruits and vegetables reasons for the proposed action and and untreated fruits and vegetables, must receive a minimum absorbed provide the irradiation processor with except that fruits and vegetables ionizing radiation dose of 150 Gray (15 an opportunity to respond. The traveling by conveyor directly into the krad).8 Administrator will give the irradiation irradiation chamber may pass through (e) Dosimetry systems. (1) Dosimetry processor an opportunity for a hearing an area that would otherwise be mapping must indicate the dose needed regarding any dispute of a material fact, separated. The locations must be to ensure the fruit will receive the in accordance with rules of practice that separated by a permanent physical minimum dose prescribed. will be adopted for the proceeding. barrier such as a wall or chain link fence (2) Absorbed dose must be measured However, the Administrator will 6 or more feet high to prevent transfer using an accurate dosimetry system that suspend approval pending final of cartons; ensures that the absorbed dose meets or determination in the proceeding, if he or (3) Complete a compliance agreement exceeds 150 Gray (15 krad). she determines that suspension is with the Animal and Plant Health (3) When designing the facility’s necessary to prevent the spread of any Inspection Service as provided in dosimetry system and procedures for its dangerous insect infestation. The § 301.78–6 of this chapter; and operation, the facility operator must suspension will be effective upon oral (4) Be certified by Plant Protection address guidance and principles from or written notification, whichever is and Quarantine for initial use and American Society for Testing and earlier, to the irradiation processor. In annually for subsequent use. Materials (ASTM) standards.9 the event of oral notification, written Recertification is required in the event confirmation will be given to the (f) Records. Records or invoices for that an increase or decrease in irradiation processor within 10 days of each treated lot must be made available radioisotope or a major modification to the oral notification. The suspension for inspection by an inspector during equipment that affects the delivered will continue in effect pending normal business hours (8 a.m. to 4:30 dose. Recertification may be required in completion of the proceeding and any p.m., Monday through Friday, except cases where a significant variance in judicial review of the proceeding. holidays). An irradiation processor must dose delivery is indicated. (i) Department not responsible for (b) Treatment monitoring. Treatment maintain records as specified in this damage. This treatment is approved to must be carried out under the section for a period of time that exceeds assure quarantine security against monitoring of an inspector. This the shelf life of the irradiated food Mexican fruit fly. From the literature monitoring must include inspection of product by 1 year, and must make these available, the fruits authorized for treatment records and unannounced records available for inspection by an treatment under this section are inspection visits to the facility by an inspector. These records must include believed tolerant to the treatment; inspector. Facilities that carry out the lot identification, scheduled however, the facility operator and continual irradiation operations must process, evidence of compliance with shipper are responsible for notify an inspector at least 24 hours the scheduled process, ionizing energy determination of tolerance. The before the date of operations. Facilities source, source calibration, dosimetry, Department of Agriculture and its that carry out periodic irradiation dose distribution in the product, and the inspectors assume no responsibility for operations must notify an inspector of date of irradiation. any loss or damage resulting from any scheduled operations at least 24 hours (g) Request for approval and treatment prescribed or supervised. before scheduled operations.11 inspection of facility. Persons requesting Additionally, the Nuclear Regulatory (c) Packaging. Fruits and vegetables approval of an irradiation treatment Commission is responsible for ensuring that are treated within a quarantined facility and treatment protocol must that irradiation facilities are constructed area must be packaged in the following submit the request for approval in and operated in a safe manner. Further, manner: writing to the Animal and Plant Health the Food and Drug Administration is (1) The cartons must have no Inspection Service, Plant Protection and responsible for ensuring that irradiated openings that will allow the entry of Quarantine, Oxford Plant Protection foods are safe and wholesome for fruit flies and must be sealed with seals Center, 901 Hillsboro St., Oxford, NC human consumption. that will visually indicate if the cartons 27565. Before the Administrator have been opened. They may be determines whether an irradiation (Approved by the Office of Management and Budget under control number 0579–0215) constructed of any material that facility is eligible for approval, an prevents the entry of fruit flies and inspector will make a personal § 305.33 Irradiation treatment of regulated prevents oviposition by fruit flies into inspection of the facility to determine articles to be moved interstate from areas the fruit in the carton.12 whether it complies with the standards quarantined for Mediterranean fruit fly. (2) The pallet-load of cartons must be of paragraph (a) of this section. Irradiation, carried out in accordance wrapped before it leaves the irradiation (h) Denial and withdrawal of with the provisions of this section, is facility in one of the following ways: approval. (1) The Administrator will approved as a treatment for any berry, (i) With polyethylene sheet wrap; withdraw the approval of any fruit, nut, or vegetable listed as a (ii) With net wrapping; or irradiation treatment facility when the regulated article in § 301.78–2(a) of this chapter. 10 See footnote 2 of this subpart. 8 See footnote 2 of this subpart. (a) Approved facility. The irradiation 11 See footnote 6 of this subpart. 9 See footnote 4 of this subpart. treatment facility and treatment protocol 12 See footnote 3 of this subpart.
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(iii) With strapping so that each irradiation processor requests in writing IRRADIATION FOR PLANT PESTS IN carton on an outside row of the pallet the withdrawal of approval. HAWAIIAN FRUITS AND VEGETABLES load is constrained by a metal or plastic (2) The Administrator will deny or strap. withdraw approval of an irradiation Commodity Dose (3) Packaging must be labeled with treatment facility when any provision of (Gray) treatment lot numbers, packing and this section is not met. Before treatment facility identification and Abiu ...... 250 withdrawing or denying approval, the Atemoya ...... 250 location, and dates of packing and Administrator will inform the Bell pepper ...... 250 treatment. irradiation processor in writing of the Carambola ...... 250 (d) Dosage. The fruits and vegetables reasons for the proposed action and Eggplant ...... 250 must receive a minimum absorbed provide the irradiation processor with Litchi ...... 250 ionizing radiation dose of 225 Gray an opportunity to respond. The Longan ...... 250 13 (22.5 krad). Administrator will give the irradiation Mango ...... 300 (e) Dosimetry systems. (1) Dosimetry Papaya ...... 250 processor an opportunity for a hearing Pineapple (other than smooth must demonstrate that the absorbed regarding any dispute of a material fact, dose, including areas of minimum and Cayenne) ...... 250 in accordance with rules of practice that Rambutan ...... 250 maximum dose, is mapped, controlled, will be adopted for the proceeding. Sapodilla ...... 250 and recorded. However, the Administrator will Italian squash ...... 250 (2) Absorbed dose must be measured suspend approval pending final Sweetpotato ...... 400 using a dosimetry system that can determination in the proceeding, if he or Tomato ...... 250 accurately measure an adsorbed dose of she determines that suspension is 225 Gray (22.5 krad). (b) Conditions of movement. Fruits necessary to prevent the spread of any (3) The utilization of the dosimetry and vegetables from Hawaii may be dangerous insect infestation. The system, including its calibration and the authorized for movement in accordance suspension will be effective upon oral number and placement of dosimeters with this section only if the following or written notification, whichever is used, must be in accordance with the conditions are met: American Society for Testing and earlier, to the irradiation processor. In (1) Location. The irradiation treatment Materials (ASTM) standards.14 the event of oral notification, written must be carried out at an approved (f) Records. Records or invoices for confirmation will be given to the facility in Hawaii or on the mainland each treated lot must be made available irradiation processor within 10 days of United States. Fruits and vegetables for inspection by an inspector during the oral notification. The suspension authorized under this section for normal business hours (8 a.m. to 4:30 will continue in effect pending treatment on the mainland may be p.m., Monday through Friday, except completion of the proceeding and any treated in any State on the mainland holidays). An irradiation processor must judicial review of the proceeding. United States except Alabama, Arizona, maintain records as specified in this (i) Department not responsible for California, Florida, Georgia, Kentucky, section for a period of time that exceeds damage. This treatment is approved to Louisiana, Mississippi, Nevada, New the shelf life of the irradiated food assure quarantine security against Mexico, North Carolina, South Carolina, product by 1 year, and must make these Mediterranean fruit fly. From the Tennessee, Texas, or Virginia. Prior to records available for inspection by an literature available, the fruits and treatment, the fruits and vegetables may inspector. These records must include vegetables authorized for treatment not move into or through Alabama, the lot identification, scheduled under this section are believed tolerant Arizona, California, Florida, Georgia, process, evidence of compliance with to the treatment; however, the facility Kentucky, Louisiana, Mississippi, the scheduled process, ionizing energy operator and shipper are responsible for Nevada, New Mexico, North Carolina, source, source calibration, dosimetry, determination of tolerance. The South Carolina, Tennessee, Texas, or dose distribution in the product, and the Department of Agriculture and its Virginia, except that movement is date of irradiation. inspectors assume no responsibility for allowed through Dallas/Fort Worth, (g) Request for approval and any loss or damage resulting from any Texas, as an authorized stop for air inspection of facility. Persons requesting treatment prescribed or supervised. cargo, or as a transloading location for approval of an irradiation treatment Additionally, the Nuclear Regulatory shipments that arrive by air but that are facility and treatment protocol must Commission is responsible for ensuring subsequently transloaded into trucks for submit the request for approval in that irradiation facilities are constructed overland movement from Dallas/Fort writing to the Animal and Plant Health and operated in a safe manner. Further, Worth into an authorized State by the Inspection Service, Plant Protection and the Food and Drug Administration is shortest route. Quarantine, Oxford Plant Protection responsible for ensuring that irradiated (2) Approved facility. The irradiation Center, 901 Hillsboro St., Oxford, NC foods are safe and wholesome for treatment facility and treatment protocol 27565. Before the Administrator human consumption. must be approved by the Animal and determines whether an irradiation (Approved by the Office of Management and Plant Health Inspection Service. In facility is eligible for approval, an Budget under control number 0579–0088) order to be approved, a facility must: inspector will make a personal (i) Be capable of administering the inspection of the facility to determine § 305.34 Administrative instructions minimum absorbed ionizing radiation whether it complies with the standards prescribing methods for irradiation doses specified in paragraph (a) of this treatment of certain fruits and vegetables section to the fruits and vegetables;15 of paragraph (a) of this section. from Hawaii. (h) Denial and withdrawal of (ii) Be constructed so as to provide approval. (1) The Administrator will (a) Approved irradiation treatment. physically separate locations for treated withdraw the approval of any Irradiation, carried out in accordance and untreated fruits and vegetables, irradiation treatment facility when the with the provisions of this section, is except that fruits and vegetables approved as a treatment for the traveling by conveyor directly into the 13 See footnote 2 of this subpart. following fruits and vegetables at the 14 See footnote 4 of this subpart. specified dose levels: 15 See footnote 2 of this subpart.
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irradiation chamber may pass through (ii) Cartons of untreated fruits and (Dysmicoccus neobrevipes) and the an area that would otherwise be vegetables that are moving to the Kona coffee-root knot nematode separated. The locations must be mainland United States for treatment (Meloidogyne konaensis) by an separated by a permanent physical must be shipped in shipping containers inspector. barrier such as a wall or chain link fence sealed prior to interstate movement with (8) Records. Records or invoices for six or more feet high to prevent transfer seals that will visually indicate if the each treated lot must be made available of cartons. Untreated fruits and shipping containers have been opened. for inspection by an inspector during vegetables shipped to the mainland (iii) Litchi and longan from Hawaii normal business hours (8:00 a.m. to 4:30 United States from Hawaii in may not be moved interstate into p.m., Monday through Friday, except accordance with this section may not be Florida. All cartons in which litchi or holidays). An irradiation processor must packaged for shipment in a carton with longan are packed must be stamped maintain records as specified in this treated fruits and vegetables; ‘‘Not for importation into or distribution section for a period of time that exceeds (iii) Complete a compliance in FL.’’ the shelf life of the irradiated food agreement with the Animal and Plant (5) Dosage. The fruits and vegetables product by 1 year, and must make these Health Inspection Service as provided must receive the minimum absorbed records available for inspection by an in § 318.13–4(d) of this chapter; and ionizing radiation dose specified in inspector. These records must include (iv) Be certified by Plant Protection paragraph (a) of this section.18 the lot identification, scheduled and Quarantine for initial use and (6) Dosimetry systems. (i) Dosimetry process, evidence of compliance with annually for subsequent use. must demonstrate that the absorbed the scheduled process, ionizing energy Recertification is required in the event dose, including areas of minimum and source, source calibration, dosimetry, that an increase or decrease in maximum dose, is mapped, controlled, dose distribution in the product, and the radioisotope or a major modification to and recorded. date of irradiation. equipment that affects the delivered (ii) Absorbed dose must be measured (c) Request for approval and dose. Recertification may be required in using a dosimeter that can accurately inspection of facility. Persons requesting cases where a significant variance in measure the absorbed doses specified in approval of an irradiation treatment dose delivery is indicated. paragraph (a) of this section. facility and treatment protocol must (3) Treatment monitoring. Treatment (iii) The number and placement of submit the request for approval in must be carried out under the dosimeters used must be in accordance writing to the Animal and Plant Health monitoring of an inspector. This with American Society for Testing and Inspection Service, Plant Protection and monitoring must include inspection of Materials (ASTM) standards.19 Quarantine, Center for Plant Health treatment records and unannounced (7)(i) Certification on basis of Science and Technology, 1017 Main inspectional visits to the facility by an treatment. A certificate shall be issued Campus Drive, suite 2500, Raleigh, NC inspector. Facilities that carry out by an inspector for the movement of 27606. Before the Administrator continual irradiation operations must fruits and vegetables from Hawaii that determines whether an irradiation notify an inspector at least 24 hours have been treated and handled in facility is eligible for approval, an before the date of operations. Facilities Hawaii in accordance with this section. inspector will make a personal that carry out periodic irradiation To be certified for interstate movement inspection of the facility to determine operations must notify an inspector of under this section, litchi from Hawaii whether it complies with the standards scheduled operations at least 24 hours must be inspected in Hawaii and found of paragraph (b)(2) of this section. before scheduled operations.16 free of the litchi fruit moth (d) Denial and withdrawal of (4) Packaging. (i) Fruits and (Cryptophlebia spp.) and other plant approval. (1) The Administrator will vegetables that are treated in Hawaii pests by an inspector before undergoing withdraw the approval of any must be packaged in the following irradiation treatment in Hawaii for fruit irradiation treatment facility when the manner: flies, and sweetpotato from Hawaii must irradiation processor requests in writing (A) The cartons must have no be inspected in Hawaii and found free the withdrawal of approval. openings that will allow the entry of of the gray pineapple mealybug (2) The Administrator will deny or fruit flies and must be sealed with seals (Dysmicoccus neobrevipes) and the withdraw approval of an irradiation that will visually indicate if the cartons Kona coffee-root knot nematode treatment facility when any provision of have been opened. They may be (Meloidogyne konaensis) by an this section is not met. Before constructed of any material that inspector before undergoing irradiation withdrawing or denying approval, the prevents the entry of fruit flies and treatment in Hawaii. Administrator will inform the prevents oviposition by fruit flies into (ii) Limited permit. A limited permit irradiation processor in writing of the reasons for the proposed action and the fruit in the carton.17 shall be issued by an inspector for the (B) The pallet-load of cartons must be interstate movement of untreated fruits provide the irradiation processor with wrapped before it leaves the irradiation and vegetables from Hawaii for an opportunity to respond. The facility in one of the following ways: treatment on the mainland United States Administrator will give the irradiation (1) With polyethylene sheet wrap; in accordance with this section. To be processor an opportunity for a hearing (2) With net wrapping; or eligible for a limited permit under this regarding any dispute of a material fact, (3) With strapping so that each carton section, untreated litchi from Hawaii in accordance with rules of practice that on an outside row of the pallet load is must be inspected in Hawaii and found will be adopted for the proceeding. constrained by a metal or plastic strap. free of the litchi fruit moth However, the Administrator will (C) Packaging must be labeled with (Cryptophlebia spp.) and other plant suspend approval pending final treatment lot numbers, packing and pests by an inspector, and untreated determination in the proceeding, if he or treatment facility identification and sweetpotato from Hawaii must be she determines that suspension is location, and dates of packing and inspected in Hawaii and found to be necessary to prevent the spread of any treatment. free of the gray pineapple mealybug dangerous insect infestation. The suspension will be effective upon oral 16 See footnote 6 of this subpart. 18 See footnote 2 of this subpart. or written notification, whichever is 17 See footnote 3 of this subpart. 19 See footnote 4 of this subpart. earlier, to the irradiation processor. In
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the event of oral notification, written agreement must comply with the fumigation. Treatments are based on the confirmation will be given to the following conditions: character of the plant material and the irradiation processor within 10 days of (i) The operator must date and initial type of pests that may be found. the oral notification. The suspension time/temperature records for each batch (1) T201–p–1: For plant pests, except will continue in effect pending of garbage sterilized. The supervisor scale insects, hand removal of pests or completion of the proceeding and any must review and sign each time/ infested parts of plants followed by a judicial review of the proceeding. temperature record. The facility must detailed inspection to ensure plants are (e) Department not responsible for retain records for 6 months for review pest free may be employed; damage. This treatment is approved to by APHIS. (2) See hand removal plus malathion- assure quarantine security against the (ii) The drain in the bottom of the carbaryl chemical dip T201–p–2 Trifly complex and other plant pests. sterilizer must be cleaned between each (§ 305.10(d)) for alternative treatment; or From the literature available, the fruits cycle to ensure proper heat circulation. (3) T201–p–3: Following the hand and vegetables authorized for treatment (4) All reevaluations and adjustments removal of the visible plant pests or under this section are believed tolerant must be observed by APHIS. infested plant parts, the plant material to the treatment; however, the facility (c) T415–c, grinding and discharge must be treated with hot water at 112 °F operator and shipper are responsible for into a sewage system. The sewage for 20 minutes. This treatment is not determination of tolerance. The system must be approved by the effective against mature scale insects. Department of Agriculture and its Administrator upon his/her inspectors assume no responsibility for determination that the system is PART 318—HAWAIIAN AND any loss or damage resulting from any designed and operated in such a way as TERRITORIAL QUARANTINE NOTICES to preclude the discharge of sewage treatment prescribed or supervised. I 26. The authority citation for part 318 effluents onto land surface or into Additionally, the Nuclear Regulatory continues to read as follows: Commission is responsible for ensuring lagoons or other stationary waters and that irradiation facilities are constructed otherwise is adequate to prevent the Authority: 7 U.S.C. 7701–7772; 7 CFR 2.22, and operated in a safe manner. Further, spread of plant pests and livestock or 2.80, and 371.3. the Food and Drug Administration is poultry diseases. I 27. Section 318.13–4a is amended as responsible for ensuring that irradiated § 305.41 [Reserved] follows: foods are safe and wholesome for I a. By removing paragraphs (a) and (e). I human consumption. Subpart—Miscellaneous Treatments b. By redesignating paragraphs (b) (Approved by the Office of Management and through (d) as paragraphs (a) through (c), Budget under control number 0579–0198) § 305.42 Miscellaneous treatment respectively. schedules. I c. By revising newly redesignated §§ 305.35–305.39 [Reserved] (a) T102–b, T102–b–1, T102–b–2, paragraph (a) to read as set forth below. Subpart—Treatments for Garbage soapy water and wax. (1) The fruit must § 318.13–4a Administrative instructions be immersed in a soapy water bath of authorizing the movement from Hawaii of § 305.40 Garbage treatment schedules for one part soap solution (such as frozen fruits and vegetables. insect pests and pathogens. Deterfrut) to 3,000 parts water for 20 (a) The Administrator of the Animal (a) T415–a, heat treatment. Incinerate seconds. and Plant Health Inspection Service, (2) The soapy bath must be followed to ash. Caterers under compliance pursuant to the authority contained in with a pressure shower rinse to remove agreement using an incinerator for §§ 318.13–2(b) and 318.13–4(b), all excess soap. garbage must comply with the following approves the process of quick freezing (3) The fruit must be immersed for 20 conditions: in accordance with part 305 of this (1) Incinerator must be capable of seconds in an undiluted wax coating chapter as a treatment for all fruits and reducing garbage to ash. (such as Johnson’s Wax Primafresh 31 vegetables described in § 318.13, except (2) Incinerator must be maintained Kosher fruit coating). The wax coating as otherwise provided in paragraph (c) adequately to ensure operation. must cover the entire surface of the of this section. Such frozen fruits and (b) T415–b, dry heat or steam. The fruit. garbage must be heated to an internal (b) T102–c, warm, soapy water and vegetables may be certified for temperature of 212 °F for 30 minutes brushing for durian and other large movement from Hawaii into or through followed by burial in a landfill. any other Territory, State, or District of fruits such as breadfruit. (1) Detergent 1 (1) The sterilizer used to perform the (such as Deterfrut) must be added to the United States. treatment must be capable of heating warm water (110–120 °F) at the rate of * * * * * garbage to an internal temperature of one part detergent or soap to 3,000 parts § 318.13–4b [Amended] 212 °F and maintaining it at that water. temperature for a minimum of 30 (2) The fruit must be immersed for at I 28. Section 318.13–4b is amended as minutes. least 1 minute in the warm detergent follows: I (2) The sterilization cycle must be water. a. In paragraph (b), by removing the reevaluated and adjusted twice a year (3) The fruit must be scrubbed with a words ‘‘the Plant Protection and using thermocouple to recalibrate the brush with stiff bristles to remove any Quarantine (PPQ) Treatment Manual, temperature recording device. Adjusting insects. which is incorporated by reference at the sterilization cycle semiannually will (4) The fruit must be rinsed with a § 300.1’’ and adding the words ‘‘part ensure that all garbage processed is pressure shower to rinse the fruit free of 305’’ in their place. heated to a minimum internal residue (detergent and dead insects). I b. In paragraph (f), by removing the temperature of 212 °F for at least 30 (5) An inspector will inspect each words ‘‘the PPQ Treatment Manual’’ and minutes and that the temperature brushed and cleaned fruit. If any insects recording device accurately reflects the remain, the fruit must be retreated or 1 Applications for certificates to move frozen fruits and vegetables from Hawaii under this internal temperature of the sterilizer. destroyed. subpart may be made to Plant Protection and (3) The caterer administering the (c) Three alternative treatments for Quarantine Programs, P.O. Box 9067, Honolulu, HI treatment under a compliance plant material not tolerant to 96820.
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adding the words ‘‘part 305 of this I a. By removing paragraphs (a) and (e). § 319.8–6 [Amended] chapter’’ in their place. I b. By redesignating paragraphs (b) I 40. In § 319.8–6, the third sentence is through (d) as paragraphs (a) and (c), § 318.13–4f [Amended] amended by removing the word ‘‘him’’ respectively. and adding the words ‘‘the inspector’’ in I 29. Section 318.13–4f, paragraph (c), is I c. In newly redesignated paragraph (c), its place. amended by removing the address by removing the words ‘‘Deputy ‘‘Oxford Plant Protection Center, 901 Administrator of the Plant Protection § 319.8–24 [Amended] Hillsboro St., Oxford, NC 27565’’ and and Quarantine Programs’’ and by I 41. In § 319.8–24, paragraphs (a), (b), adding the address ‘‘Center for Plant adding the word ‘‘Administrator’’ in and (c) are amended by adding the words Health Science and Technology, 1017 their place. ‘‘or her’’ immediately after the word Main Campus Drive, suite 2500, Raleigh, ‘‘his’’. NC 27606’’ in its place. § 318.58–4a Administrative instructions authorizing the movement from Puerto Rico § 319.37–4 [Amended] § 318.13–11 [Amended] of frozen fruits and vegetables. I 42. In § 319.37–4, paragraph (b) is (a) The Administrator of the Animal I 30. Section 318.13–11 is amended by amended by removing the words ‘‘the and Plant Health Inspection Service, removing the words ‘‘the Plant Plant Protection and Quarantine pursuant to the authority contained in Protection and Quarantine Treatment Treatment Manual’’ and by adding the §§ 318.58–2 and 318.58–3, approves the Manual’’ and adding the words ‘‘part 305 words ‘‘part 305 of this chapter’’ in their process of quick freezing in accordance of this chapter’’ in their place; and by place, and by removing footnote 6. removing the last sentence. with part 305 of this chapter as a treatment for all fruits and vegetables § 319.37–5 [Amended] § 318.58 [Amended] described in § 318.58–2, except as I 43. In § 319.37–5, paragraph (e) is I 31. In § 318.58, paragraph (b) is otherwise provided in paragraph (c) of amended by redesignating footnote 7 as amended by removing the word this section. Such frozen fruits and footnote 6. ‘‘Deputy’’ and the words ‘‘of the Plant vegetables may be certified for I 44. Section 319.37–6 is amended as Protection and Quarantine Programs’’; movement from Puerto Rico into or follows: and by removing the word ‘‘he’’ and through any other Territory, State, or I a. In paragraph (a), by removing adding the words ‘‘the Administrator’’ in District of the United States in footnote 8. its place, both times it occurs. accordance with § 318.58–3.2 I b. In paragraphs (a), (b), (c), and (f), by * * * * * removing the words ‘‘the Plant § 318.58–2 [Amended] Protection and Quarantine Treatment I 32. Section 318.58–2 is amended as § 318.58–11 [Amended] Manual’’ and adding the words ‘‘part 305 follows: I 35. Section 318.58–11 is amended by of this chapter’’ in their place. I a. In paragraph (b)(1), in the entry for removing the words ‘‘the Plant I c. In paragraph (d)(1), by removing the mangoes, by removing the words ‘‘the Protection and Quarantine Treatment words ‘‘the PPQ Treatment Manual’’ and Plant Protection and Quarantine Manual’’ and adding the words ‘‘part 305 adding the words ‘‘part 305 of this Treatment Manual, which is of this chapter’’ in their place, and by chapter’’ in their place. incorporated by reference at § 300.1’’ and removing the last sentence. I d. In paragraph (d)(2), by redesignating adding the words ‘‘part 305’’ in their footnote 9 as footnote 8, and by revising place; and in footnote 1, by removing the § 318.82 [Amended] newly redesignated footnote 8 to read as words ‘‘the Plant Protection and I 36. In § 318.82, paragraph (b) is follows: Quarantine Treatment Manual’’ and amended by adding the words ‘‘or she’’ § 319.37–6 Specific treatment and other adding the words ‘‘part 305 of this immediately after the word ‘‘he’’, both requirements. chapter’’ in their place. times it occurs. * * * * * I b. In paragraph (b)(2), by removing the PART 319—FOREIGN QUARANTINE (d) * * * word ‘‘him’’ and adding the words ‘‘the (2) * * *3 inspector’’ in its place; and by removing NOTICES * * * * * the word ‘‘he’’ and adding the words I 37. The authority citation for part 319 ‘‘the inspector’’ in its place. § 319.37–7 [Amended] I c. In paragraph (b)(4), by removing the continues to read as follows: I 45. In § 319.37–7, paragraph (e), words ‘‘the Plant Protection and Authority: 7 U.S.C. 450 and 7701–7772; 21 footnote 10 is redesignated as footnote 9. Quarantine Treatment Manual’’ and U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and adding the words ‘‘part 305 of this 371.3. § 319.37–8 [Amended] chapter’’ in their place. § 319.8 [Amended] I 46. In § 319.37–8, paragraph (e), § 318.58–4 [Amended] I 38. In § 319.8(a), the second sentence footnote 11 is redesignated as footnote 10. I 33. Section § 318.58–4 is amended as is amended by adding the words ‘‘or she’’ follows: immediately after the word ‘‘he’’, both § 319.37–13 [Amended] I a. In paragraph (a), by removing the times it occurs. I 47. In § 319.37–13, paragraph (a), word ‘‘he’’ and adding the words ‘‘the § 319.8–3 [Amended] footnote 12 is redesignated as footnote inspector’’ in its place. 11. I b. In paragraph (b), first sentence, by I 39. In § 319.8–3, paragraphs (a) and (b) removing the words ‘‘the Plant are amended by adding the words ‘‘or § 319.40–1 [Amended] Protection and Quarantine Treatment she’’ immediately after the word ‘‘he’’. I 48. Section 319.40–1 is amended by Manual’’ and adding the words ‘‘part 305 2 removing the definition of Treatment of this chapter’’ in their place; and by Further information concerning the movement Manual. removing the second sentence. of frozen fruits and vegetables from Puerto Rico may be obtained from the Plant Protection and I 34. Section § 318.58–4a is amended as Quarantine Programs, Room 4, Post Office Bldg., 3 Criteria for the approval of heat treatment follows: P.O. Box 3386, San Juan, PR 00901. facilities are contained in part 305 of this subpart.
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§ 319.40–5 [Amended] removing the words ‘‘or the Plant adding the words ‘‘part 305’’ in their I 49. Section 319.40–5 is amended as Protection and Quarantine Treatment place. follows: Manual’’. I c. In paragraph (d), by removing the I a. In paragraph (g)(1), by removing the I 54. Section 319.56–2c is revised to words ‘‘the Plant Protection and words ‘‘the Plant Protection and read as follows: Quarantine Treatment Manual’’ and Quarantine Treatment Manual, which is adding the words ‘‘part 305’’ in their incorporated by reference at § 300.1’’ and § 319.56–2c Administrative instructions place. authorizing the importation of frozen fruits by adding the words ‘‘part 305’’ in their and vegetables. § 319.56–2i [Amended] place. I b. In paragraph (g)(2)(i) and paragraph (a) The Administrator, under I 59. Section 319.56–2i is amended as (i), by removing the words ‘‘the Plant authority contained in § 319.56–2, follows: Protection and Quarantine Treatment prescribes quick freezing in accordance I a. In paragraph (a), by removing the Manual,’’ and adding the words ‘‘part with part 305 of this chapter as a words ‘‘the Plant Protection and 305 of this chapter,’’ in their place. satisfactory treatment for all fruits and Quarantine Treatment Manual’’ and vegetables enterable under permit under I 50. Section 319.40–7 is amended as adding the words ‘‘part 305 of this § 319.56. Such frozen fruits and follows: chapter’’ in their place, and by removing I a. In paragraphs (f)(1)(i) and (f)(3)(i), by vegetables may be imported from any the last sentence. country under permit and in removing the words ‘‘the Treatment I b. In paragraph (b), by removing the compliance with §§ 319.56–1 through Manual’’ and adding the words ‘‘part 305 words ‘‘the Plant Protection and 319.56–7 (exclusive of non-related of this chapter’’ in their place. Quarantine Treatment Manual’’ and administrative instructions), at such I b. By revising paragraphs (f)(1)(ii), adding the words ‘‘part 305 of this ports as authorized in the permits. (f)(2), and (f)(3)(ii) to read as set forth chapter’’ in their place. below. (b) The importation from foreign countries of frozen fruits and vegetables § 319.56–2j [Amended] § 319.40–7 Treatments and safeguards. is not authorized when such fruits and I vegetables are subject to attack in the 60. Section 319.56–2j is amended as * * * * * follows: (f) * * * area of origin, by plant pests that may I (1) * * * not, in the judgment of the a. In paragraph (a)(2), by removing the (ii) T–404 schedule. The entire log Administrator, be destroyed by quick words ‘‘the PPQ Treatment Manual, and the ambient air must be at a freezing. which is incorporated by reference in temperature of 5 °C or more above § 300.1 of this chapter’’ and adding the throughout fumigation. The fumigation § 319.56–2d [Amended] words ‘‘part 305 of this chapter’’ in their must be conducted using schedule T– I 55. In § 319.56–2d, paragraph (a) is place. 404 contained in part 305 of this amended by removing the words ‘‘the I b. In paragraph (a)(4), by removing the chapter. Plant Protection and Quarantine (PPQ) words ‘‘the PPQ Treatment Manual’’ the (2) Lumber. The lumber and the Treatment Manual, which is first time they occur and adding the ambient air must be at a temperature of incorporated by reference at § 300.1’’ and words ‘‘part 305 of this chapter must’’ in 5 °C or more above throughout adding the words ‘‘part 305’’ in their their place. fumigation. The fumigation must be place; and by removing the words ‘‘the I c. In paragraph (a)(6), by removing the conducted using schedule T–404 PPQ Treatment Manual’’ and adding the words ‘‘the PPQ Treatment Manual’’ and contained in part 305 of this chapter. words ‘‘part 305 of this chapter’’ in their adding the words ‘‘part 305 of this (3) * * * place. chapter’’ in their place. (ii) If the ambient air and the I 61. In § 319.56–2k, paragraph (a), is regulated articles other than logs or § 319.56–2e [Amended] revised to read as follows: lumber are at a temperature of 4.5–20.5 I 56. In § 319.56–2e, paragraph (b), is ° § 319.56–2k Administrative instructions C throughout fumigation, the amended by removing the words ‘‘assure fumigation must be conducted using prescribing method of fumigation of field- himself of’’ and adding the word grown grapes from specified countries. schedule T–404 contained in part 305 of ‘‘ensure’’ in their place. this chapter. * * * * * (a) Continental countries of southern * * * * * § 319.56–2g [Amended] and middle Europe, North Africa, and I 57. In § 319.56–2g, paragraph (a), is the Near East. As used in this section, § 319.40–8 [Amended] amended by removing the words ‘‘the the term ‘‘continental countries of I 51. In § 319.40–8, paragraph (a) is Plant Protection and Quarantine southern and middle Europe, North amended by removing the words ‘‘the Treatment Manual, which is Africa, and the Near East’’ means Treatment Manual’’ and adding the incorporated by reference at § 300.1’’ and Algeria, Armenia, Austria, Azerbaijan, words ‘‘part 305 of this chapter’’ in their adding the words ‘‘part 305’’ in their Belarus, Bulgaria, Cyprus, Egypt, place. place. Estonia, France, Georgia, Germany, § 319.40–9 [Amended] § 319.56–2h [Amended] Greece, Hungary, Israel, Italy, I 52. In § 319.40–9, paragraph (b)(2) is I 58. Section 319.56–h is amended as Kazakhstan, Kyrgyzstan, Latvia, Libya, amended by removing the words ‘‘the follows: Lithuania, Luxembourg, Portugal, Treatment Manual’’ and adding the I a. In paragraph (a)(2), by removing the Republic of Moldova, Russian words ‘‘part 305 of this chapter’’ in their words ‘‘the Plant Protection and Federation, Spain, Switzerland, Syria, place. Quarantine Treatment Manual’’ and Tajikistan, Turkmenistan, Ukraine, and adding the words ‘‘part 305 of this Uzbekistan. § 319.56–2 [Amended] chapter’’ in their place. * * * * * I 53. In § 319.56–2, paragraph (k) is I b. In paragraph (b), by removing the amended by removing the citation words ‘‘the Plant Protection and § 319.56–2n [Amended] ‘‘§ 305.2(a)’’ and adding the citation Quarantine Treatment Manual, which is I 62. In § 319.56–2n, the introductory ‘‘§ 305.31(a)’’ in its place; and by incorporated by reference at § 300.1’’ and text is amended by removing the citation
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‘‘319.56–2n’’ and adding the citation Quarantine (PPQ) Treatment Manual’’ I a. In paragraph (b), by removing the ‘‘319.56–2m’’ in its place. and ‘‘PPQ Treatment Manual’’ and words ‘‘the Plant Protection and adding the words ‘‘part 305 of this Quarantine (PPQ) Treatment Manual, § 319.56–2p [Amended] chapter’’ in their place; and by removing which is incorporated by reference at I 63. In § 319.56–2p, paragraph (f) is the words ‘‘the PPQ Treatment Manual, § 300.1 of this chapter’’ and adding the amended by removing the words ‘‘the which is incorporated by reference at words ‘‘part 305 of this chapter’’ in their Plant Protection and Quarantine § 300.1’’ and adding the words ‘‘part place. Treatment Manual’’ and adding the 305’’ in their place. I b. In paragraph (d)(4)(ii)(B), by words ‘‘part 305 of this chapter’’ in their § 319.56–2x [Amended] removing the words ‘‘the PPQ Treatment place, and by removing the second and Manual’’ and adding the words ‘‘part third sentences. I 68. In § 319.56–2x, paragraph (a), 305 of this chapter’’ in their place. introductory text, is amended by I c. In paragraph (e), by removing the § 319.56–2q [Amended] ‘‘ removing the words the Plant words ‘‘PPQ Treatment Manual, which I Protection and Quarantine Treatment 64. In § 319.56–2q, paragraph (b) is is incorporated by reference in § 300.1 ‘‘ Manual, which is incorporated by amended by removing the words the of this chapter’’ and adding the words reference at § 300.1’’ and adding the Plant Protection and Quarantine ‘‘part 305 of this chapter’’ in their place. Treatment Manual, which is words ‘‘part 305’’ in their place; and by incorporated by reference at § 300.1’’ removing the last sentence. § 319.56–5 [Amended] and adding the words ‘‘part 305’’ in their §§ 319.56–2cc, 319.2dd, 319.56–2ee, and I 74. In § 319.56–5, paragraphs (a) and place. 319.56–2jj [Amended] (b) are amended by adding the words ‘‘or her’’ immediately after the word ‘‘his’’ § 319.56–2r [Amended] § 319.56–2cc [Amended] I both times it occurs. 65. Section 319.56–2r is amended as I 69. In § 319.56–2cc, paragraph (a) is follows: amended by removing the words ‘‘the § 319.69–4 [Amended] I a. In paragraphs (c)(3)(iii) and (d)(1)(ii) Plant Protection and Quarantine I by removing the words ‘‘the Plant 75. Section 319.69–4 is amended by Treatment Manual, which is removing the word ‘‘he’’ and adding the Protection and Quarantine Treatment incorporated by reference at § 300.1’’ Manual’’ and adding the words ‘‘part words ‘‘the inspector’’ in its place each and adding the words ‘‘part 305’’ in their time it occurs. 305 of this chapter’’ in their place, each place. time they occur. § 319.75–4 [Amended] I b. In paragraph (g)(2), by removing the § 319.56–2dd [Amended] I 76. Section 319.75–4 is amended as words ‘‘the Plant Protection and I 70. In § 319.56–2dd , paragraph (d)(1) follows: Quarantine Treatment Manual, which is is amended by removing the words ‘‘the I incorporated by reference at § 300.1’’ PPQ Treatment Manual, which is a. By removing footnote 6. and adding the words ‘‘part 305’’ in their incorporated by reference at § 300.1’’ I b. In the introductory paragraph, by place. and adding the words ‘‘part 305’’ in their removing the words ‘‘under the supervision of an inspector’’; and by § 319.56–2s [Amended] place. removing the words ‘‘as set forth below’’ I 66. Section 319.56–2s is amended as § 319.56–2ee [Amended] and adding the words ‘‘in accordance follows: I 71. In § 319.56–2ee, paragraph (b) is with part 305 of this chapter’’ in their I a. In paragraph (d)(1)(i), by removing amended by removing the words ‘‘the place. the words ‘‘the Plant Protection and Plant Protection and Quarantine I c. By removing paragraphs (a), (b), and Quarantine Treatment Manual’’ and Treatment Manual, which is (c). adding the words ‘‘part 305 of this incorporated by reference at § 300.1’’ chapter’’ in their place each time they and adding the words ‘‘part 305’’ in their § 319.77–4 [Amended] occur. place. I 77. In § 319.77–4, paragraphs (a)(2)(i) I b. In paragraph (f)(2), by removing the and (b)(2)(i)(A) are amended by words ‘‘the Plant Protection and § 319.56–2jj [Amended] removing the words ‘‘the Plant Quarantine Treatment Manual, which is I 72. In § 319.56–2jj, paragraph (g) is Protection and Quarantine Treatment incorporated by reference at § 300.1’’ amended by removing the words ‘‘the Manual, which is incorporated by and adding the words ‘‘part 305’’ in their Plant Protection and Quarantine (PPQ) reference at § 300.1’’ and adding the place. Treatment Manual, which is words ‘‘part 305’’ in their place. § 319.56–2v [Amended] incorporated by reference at § 300.1’’ and adding the words ‘‘part 305’’ in their Done in Washington, DC, this day 5th of I May 2005. 67. In § 319.52–2v, paragraph (c) is place. amended by removing the citation Administrator, Animal and Plant Health ‘‘§ 319.56–2d(f)’’ and adding the citation § 319.56–2mm [Amended] Inspection Service. ‘‘§ 319.56–2(f)’’ in its place; by removing I 73. Section 319.56–2mm is amended [FR Doc. 05–9387 Filed 6–6–05; 8:45 am] the words ‘‘the Plant Protection and as follows: BILLING CODE 3410–34–P
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Part III
Department of Labor Office of the Secretary
Delegation of Authority and Assignment of Responsibility to the Ombudsman for the Energy Employees Occupational Illness Compensation Program Act; Notice
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DEPARTMENT OF LABOR EEOICPA resource centers; and filing an specific reasons for preserving the annual report with the Congress, confidentiality of the information. Office of the Secretary assessing complaints and requests for (2) Deliberative Process Privilege (to [Secretary’s Order 1–2005] assistance received by the Ombudsman. withhold information which may Finally, the statute provides for the disclose pre-decisional intra-agency or Delegation of Authority and Office of the Ombudsman to expire on inter-agency deliberations, in cases Assignment of Responsibility to the October 28, 2007. arising under Part E of EEOICPA Ombudsman for the Energy 4. Office of the Ombudsman. The including: the analysis and evaluation Employees Occupational Illness Office of the Ombudsman and the of facts; written summaries of factual Compensation Program Act position of Ombudsman are established evidence; and recommendations, by this Order. The Ombudsman’s opinions, or advice on legal or policy 1. Purpose and Scope. The purpose of specific responsibilities are set forth in matters). To assert this privilege, the this Secretary’s Order is to formally Paragraph 5 of this Order. The Ombudsman must first determine that: create the Office of the Ombudsman Ombudsman will report to the Office of (i) The information is not purely factual under the Energy Employees the Deputy Secretary through an official and does not concern recommendations Occupational Illness Compensation (to be designated by the Deputy that the Department expressly adopted Program Act (EEOICPA) and to delegate Secretary) whose responsibilities are or incorporated by reference in its authorities and assign responsibilities to consistent with the Office of the ultimate decision; (ii) the information the EEOICPA Ombudsman, as required Ombudsman’s independence as was generated prior to and in by Public Law 108–375, the Ronald W. required by EEOICPA. contemplation of a decision by a part of Reagan National Defense Authorization 5. Delegation of Authorities and the Department; and (iii) disclosure of Act for Fiscal Year 2005. the information would have an 2. Authorities and Reference. This Assignment of Responsibilities to the Ombudsman. A. The Ombudsman is inhibiting effect on the Department’s Order is issued under the authority of 5 decision-making processes. U.S.C. 301 (Departmental Regulations); assigned responsibility for fulfilling the role of ombudsman under Section 3686 (3) Informant’s Privilege (to protect 29 U.S.C. 551 (Establishment of from disclosure the identity of any of EEOICPA, including the following Department; Secretary; Seal); person who has provided information to duties: Reorganization Plan No. 6 of 1950 (5 the Ombudsman in cases arising under (1) Providing information about U.S.C. Appendix 1); EEOICPA (Title Part E of EEOICPA). To assert this EEOICPA Part E benefits, requirements XXXVI of the Floyd D. Spence National privilege, the Ombudsman must first and procedures. Defense Authorization Act for Fiscal determine that disclosure of the (2) Making recommendations to the Year 2001, Pub. L. 106–398), as privileged matter may: (A) Interfere with Secretary about the location of EEOICPA amended by Public Law 108–375, the the Ombudsman’s responsibilities under resource centers for the acceptance and Ronald W. Reagan National Defense the authority delegated or assigned in development of claims for benefits Authorization Act for Fiscal Year 2005 this Order; (B) adversely affect persons under EEOICPA Part E and about (FY 2005 Defense Authorization Act). who have provided information to the possible improvements to DOL practices See also Executive Order 13179, Ombudsman; or (C) deter other persons in administering Part E of EEOICPA. Providing Compensation to America’s from reporting violations of the statute (3) Preparing and submitting to Nuclear Weapons Workers (December 7, or other authority. 2000). Congress the annual report required by (4) Prior to filing a formal claim of 3. Background. Section 3161 of the FY Section 3686(e) of EEOICPA. As privilege, the Ombudsman will 2005 Defense Authorization Act required by the statute, the report will personally review the information amended EEOICPA to create a new Part include the number and types of sought to be withheld, including all the E, Contractor Employee Compensation, complaints, grievances, and requests for documents sought to be withheld (or, in which replaces Part D of EEOICPA with assistance received by the Ombudsman, cases where the volume of information a program that provides covered as well as the Ombudsman’s assessment is so large that all of it cannot be employees with a federal payment and of the most common difficulties personally reviewed in a reasonable medical benefits for occupational encountered by claimants and potential time, an adequate and representative illnesses that result from exposure to claimants. sample of such information) and a toxic substances at Department of B. The Ombudsman is delegated description or summary of the matter in Energy (DOE) and certain other authority to undertake outreach to which the disclosure is sought. facilities. Eligible survivors also may advise the public of the existence and (5) The Ombudsman may comply receive federal compensation, if the duties of the Office of the Ombudsman. with any additional requirements employee’s death was caused by, or C. The Ombudsman is delegated imposed by local court rules or contributed to by, the covered authority to invoke all appropriate precedent in asserting a governmental occupational illness. In general, Part E governmental privileges, arising from privilege. is administered by the Department’s the functions of the Ombudsman, (6) In determining whether to assert a Employment Standards Administration following personal consideration of the governmental privilege, the (see Secretary’s Order 4–2001). Part E, matter and in accordance with the Ombudsman will consult with the however, also creates a new following guidelines: Office of the Solicitor (SOL) and may independent Office of the Ombudsman. (1) Generally Applicable Guidelines. ask SOL to prepare and file any See Section 3161 of the FY 2005 The Ombudsman may not re-delegate necessary legal documents. Defense Authorization Act, establishing the authority to invoke a privilege. The D. The Ombudsman will perform any Section 3686 of EEOICPA (42 U.S.C. privilege may be asserted only with additional duties which are assigned to 7385s–15). By statute, the Ombudsman respect to specifically described the Ombudsman by applicable law or is responsible for providing information information and only where the regulation. about Part E benefits, requirements and Ombudsman determines the privilege is 6. Responsibilities of the Solicitor of procedures; making recommendations applicable. In asserting a privilege, the Labor. The Solicitor of Labor is to the Secretary about the location of Ombudsman will articulate in writing delegated authority and assigned
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responsibility for providing legal advice policies of the Department and that Assistant Secretary for Public Affairs and assistance to all officers of the consultation and negotiation, as under Secretary’s Order 6–83. Department relating to the appropriate, with representatives of any C. This Order does not affect the administration and implementation of employees affected by any exchange of authorities or responsibilities of the responsibilities is conducted. this Order. The bringing of legal Office of Inspector General (OIG) under proceedings, the representation of the 8. Responsibilities of Agency Heads. the Inspector General Act of 1978, as Secretary and other officials of the Consistent with their statutory amended, or under Secretary’s Order 2– Department of Labor, and the responsibilities and other applicable determination of whether such Secretary’s Orders and guidelines, all 90. proceedings or representations are DOL agency heads are assigned 10. Redelegations of Authority. Unless appropriate in a given case, are responsibility for cooperating with the provided otherwise in this or another delegated exclusively to the Solicitor. Ombudsman and complying with Secretary’s Order, the authority 7. Responsibilities of the Assistant related regulations, guidance and delegated in this Order may be Secretary for Administration and policies. redelegated, as permitted by law or 9. Directives Affected: Management. The Assistant Secretary regulation. A. This Order clarifies Secretary’s for Administration and Management is Order 4–2001 to provide that the 11. Effective Date and Termination. responsible for: responsibilities of the Ombudsman This Order is effective immediately. A. Providing appropriate under EEOICPA Part E reside in the This Order will terminate upon the administrative and management Office of the Ombudsman, but does not expiration of EEOICPA Section 3686. support, as required, for the efficient otherwise affect the authority or Dated: June 1, 2005. and effective operation of these responsibilities of the Assistant Elaine L. Chao, programs. Secretary for Employment Standards B. Assuring that any transfer of under that Order. Secretary of Labor. resources required to implement this B. This Order does not affect the [FR Doc. 05–11260 Filed 6–6–05; 8:45 am] Order is fully consistent with the budget authorities or responsibilities of the BILLING CODE 4510–23–P
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Part IV
The President Proclamation 7909—National Child’s Day, 2005
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Federal Register Presidential Documents Vol. 70, No. 108
Tuesday, June 7, 2005
Title 3— Proclamation 7909 of June 3, 2005
The President National Child’s Day, 2005
By the President of the United States of America
A Proclamation
Children are the future of our country and America’s next generation of leaders. All of us—parents, families, teachers, mentors, and community mem- bers—have a responsibility to children to honor and pass along the values that sustain a free society. By spending time with a young person, adults can help our Nation’s youth to make the right choices. On National Child’s Day, we underscore our commitment to supporting children and to helping them realize a bright and hopeful future. Family is the most important influence in a child’s life. Parents are teachers, disciplinarians, advisors, and role models. By providing hope and stability, parents help children to understand the consequences of their actions and to recognize that the decisions they make today can affect the rest of their lives. Through initiatives that promote healthy marriages, responsible father- hood, and adoption and foster care programs, my Administration is helping to ensure that more young people have a foundation of love and support. Teachers also make a real difference in children’s lives. America’s educators help our students build character and acquire the skills and knowledge they need to succeed as adults. My Administration is insisting upon account- ability in our public schools. We want every child to have an opportunity to realize the great promise of our country. By mentoring children and helping them to achieve their dreams, Americans can fill their own lives with greater purpose and help make our country a better place. Our children benefit from a sense of community, and each of us has the power to make a difference in a child’s life. I have introduced the Helping America’s Youth initiative, led by First Lady Laura Bush, so that every child can grow up with a caring adult in his or her life— whether that adult is a parent, a teacher, a coach, or a mentor. I encourage all Americans to volunteer their time and talents to benefit our Nation’s youth. NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim June 5, 2005, as National Child’s Day, and I call upon citizens to observe this day with appropriate ceremonies and activities. I also urge all Americans to dedicate their time and talents toward helping our Nation’s young people so that all children may reach as far as their vision and character can take them.
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IN WITNESS WHEREOF, I have hereunto set my hand this third day of June, in the year of our Lord two thousand five, and of the Independence of the United States of America the two hundred and twenty-ninth. W
[FR Doc. 05–11457 Filed 6–6–05; 11:32 am] Billing code 3195–01–P
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Reader Aids Federal Register Vol. 70, No. 108 Tuesday, June 7, 2005
CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING JUNE
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. 32540, 32542, 32544, 32547, 3 CFR Presidential Documents 32738, 33045 Executive orders and proclamations 741–6000 Proclamations: 71...... 32275 The United States Government Manual 741–6000 7907...... 32971 414...... 32192 7908...... 32973 Other Services 7909...... 33333 15 CFR Electronic and on-line services (voice) 741–6020 Executive Orders: 902...... 31323 Privacy Act Compilation 741–6064 13000 (See Public Laws Update Service (numbers, dates, etc.) 741–6043 Memorandum of 16 CFR TTY for the deaf-and-hard-of-hearing 741–6086 June 2, 2005)...... 32975 305...... 32484 Administrative Orders: 17 CFR ELECTRONIC RESEARCH Memorandums: Memorandum of June 1...... 32866 World Wide Web 2, 2005 ...... 32975 19 CFR Full text of the daily Federal Register, CFR and other publications 5 CFR Proposed Rules: is located at: http://www.gpoaccess.gov/nara/index.html 842...... 32709 146...... 33046 Federal Register information and research tools, including Public 1600...... 32206 20 CFR Inspection List, indexes, and links to GPO Access are located at: 1601...... 32206 l http://www.archives.gov/federal register/ 1604...... 32206 Proposed Rules: 404...... 32550 E-mail 1605...... 32206 416...... 32550 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 1606...... 32206 an open e-mail service that provides subscribers with a digital 1620...... 32206 21 CFR 1640...... 32206 form of the Federal Register Table of Contents. The digital form 510...... 32487 of the Federal Register Table of Contents includes HTML and 1645...... 32206 520...... 32488 PDF links to the full text of each document. 1650...... 32206 522...... 32488 1651...... 32206 558...... 32488 To join or leave, go to http://listserv.access.gpo.gov and select 1653...... 32206 Online mailing list archives, FEDREGTOC-L, Join or leave the list 1655...... 32206 26 CFR (or change settings); then follow the instructions. 1690...... 32206 1...... 32489 PENS (Public Law Electronic Notification Service) is an e-mail 7 CFR 301...... 32489 service that notifies subscribers of recently enacted laws. Proposed Rules: 6...... 32219 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 1...... 32552 300...... 33264 and select Join or leave the list (or change settings); then follow 301...... 33264 the instructions. 27 CFR 305...... 33264 9...... 31342 FEDREGTOC-L and PENS are mailing lists only. We cannot 318...... 33264 Proposed Rules: respond to specific inquiries. 319...... 33264 9...... 31396 Reference questions. Send questions and comments about the 958...... 32481 Federal Register system to: [email protected] 1030...... 31321 29 CFR 1738...... 32711 The Federal Register staff cannot interpret specific documents or Proposed Rules: regulations. Proposed Rules: 1926...... 32739 301...... 32733 1405...... 33043 30 CFR FEDERAL REGISTER PAGES AND DATE, JUNE 10 CFR 57...... 32867 31321–32218...... 1 25...... 32224 33 CFR 32219–32480...... 2 72...... 32977 110...... 32231 32481–32708...... 3 95...... 32224 117...... 32233, 32235 32709–32976...... 6 165 ...... 32235, 32239, 32241 12 CFR 32977–33334...... 7 Proposed Rules: 568...... 32228 117...... 32276, 32278 617...... 31322 165...... 33047 14 CFR 36 CFR 23...... 32711 7...... 31345 39 ...... 32483, 32982, 32984, 228...... 32713 32986, 32988, 32990, 32992, 401...... 32490 32996, 32998 402...... 32490 71 ...... 32229, 32231, 32484 403...... 32490 Proposed Rules: 39 ...... 31393, 31395, 32273, 39 CFR 32524, 32527, 32534, 32537, 3001...... 32492
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REMINDERS Classification services to 05; published 4-12-05 [FR Virginia Electric & Power The items in this list were growers; 2004 user fees; 05-07083] Co. et al.; Open for editorially compiled as an aid Open for comments until Contract administration; comments until further to Federal Register users. further notice; published comments due by 6-13- notice; published 10-1-03 Inclusion or exclusion from 5-28-04 [FR 04-12138] 05; published 4-12-05 [FR [FR 03-24818] this list has no legal Irish potatoes grown in— 05-07090] ENVIRONMENTAL significance. Washington; comments due Environment, occupational PROTECTION AGENCY by 6-15-05; published 5- safety, and a drug-free Air pollutants, hazardous; workplace; comments due RULES GOING INTO 16-05 [FR 05-09696] national emission standards: Milk marketing orders: by 6-13-05; published 4- Asphalt processing and EFFECT JUNE 7, 2005 12-05 [FR 05-07093] Pacific Northwest and roofing manufacturing; Governmentwide commercial Arizona-Las Vegas; comments due by 6-16- AGRICULTURE purchase card; use for comments due by 6-13- 05; published 5-17-05 [FR DEPARTMENT actions at or below the 05; published 4-13-05 [FR 05-09594] Animal and Plant Health micro-purchase Inspection Service 05-07295] Miscellaneous coating threshhold; comments due manufacturing; comments Plant protection and Upper Midwest; comments by 6-13-05; published 4- quarantine: due by 6-13-05; published due by 6-13-05; published 12-05 [FR 05-07094] 5-13-05 [FR 05-09485] Phytosanitary treatments; 4-14-05 [FR 05-07462] Pilot Mentor-Protege Pharmaceuticals production; published 6-7-05 AGRICULTURE Program; Open for comments due by 6-13- ENVIRONMENTAL DEPARTMENT comments until further 05; published 5-13-05 [FR PROTECTION AGENCY Animal and Plant Health notice; published 12-15-04 05-09477] Air pollutants, hazardous; Inspection Service [FR 04-27351] Air pollution control: national emission standards: Interstate transportation of Simplified acquisition Electric utility steam animals and animal products procedures; comments Federal and State operating generating units and (quarantine): due by 6-13-05; published permits programs; potentially inadequate removal of coal- and oil- Tuberculosis in cattle and 4-12-05 [FR 05-07095] monitoring requirements fired electric utility steam bison— Socioeconomic programs; and methods to improve generating units from State and area comments due by 6-13- Section 112 (c) list; 05; published 4-12-05 [FR monitoring; comments due classifications; by 6-17-05; published 4- correction; published 6-7- comments due by 6-14- 05-07092] 05 Subcontracting policies and 15-05 [FR 05-07577] 05; published 4-15-05 Air quality implementation Grants and other Federal [FR 05-07553] procedures; comments assistance: due by 6-13-05; published plans; approval and AGRICULTURE Clean Air Act Tribal 4-12-05 [FR 05-07091] promulgation; various DEPARTMENT States: authority— EDUCATION DEPARTMENT Natural Resources Idaho, Oregon, and Grants and cooperative Colorado; comments due by Conservation Service Washington; Indian agreements; availability, etc.: 6-16-05; published 5-17- 05 [FR 05-09724] reservations; Federal Reports and guidance Vocational and adult implementation plans; documents; availability, etc.: education— Louisiana; comments due by published 4-8-05 National Handbook of Smaller Learning 6-13-05; published 5-12- INTERIOR DEPARTMENT Conservation Practices; Communities Program; 05 [FR 05-09481] Fish and Wildlife Service Open for comments until Open for comments Maryland; comments due by Endangered and threatened further notice; published until further notice; 6-16-05; published 5-17- species: 5-9-05 [FR 05-09150] published 2-25-05 [FR 05 [FR 05-09783] Critical habitat COMMERCE DEPARTMENT E5-00767] North Carolina; comments designations— National Oceanic and ENERGY DEPARTMENT due by 6-17-05; published Lane Mountain milk-vetch; Atmospheric Administration Meetings: 5-18-05 [FR 05-09904] published 4-8-05 Fishery conservation and Environmental Management Oklahoma; comments due NUCLEAR REGULATORY management: Site-Specific Advisory by 6-13-05; published 5- 12-05 [FR 05-09483] COMMISSION Northeastern United States Board— Spent nuclear fuel and high- fisheries— Oak Ridge Reservation, Texas; comments due by 6- 13-05; published 5-12-05 level radioactive waste; Atlantic sea scallop; TN; Open for comments [FR 05-09480] independet storage; comments due by 6-17- until further notice; licensing requirements: 05; published 6-2-05 published 11-19-04 [FR Virginia; comments due by Approved spent fuel storage [FR 05-10988] 04-25693] 6-16-05; published 5-17- casks; list; published 6-7- 05 [FR 05-09781] COURT SERVICES AND ENERGY DEPARTMENT 05 West Virginia; comments OFFENDER SUPERVISION Energy Efficiency and TRANSPORTATION due by 6-16-05; published AGENCY FOR THE Renewable Energy Office DEPARTMENT 5-17-05 [FR 05-09785] DISTRICT OF COLUMBIA Commercial and industrial Federal Aviation equipment; energy efficiency Environmental statements; Semi-annual agenda; Open for Administration program: availability, etc.: comments until further Class E airspace; published 3- Coastal nonpoint pollution notice; published 12-22-03 Test procedures and 3-05 control program— [FR 03-25121] efficiency standards— Commercial packaged Minnesota and Texas; COMMENTS DUE NEXT DEFENSE DEPARTMENT boilers; Open for Open for comments WEEK Acquisition Regulation: comments until further until further notice; Uniform contract line item notice; published 10-21- published 10-16-03 [FR AGRICULTURE numbering; comments due 04 [FR 04-17730] 03-26087] DEPARTMENT by 6-13-05; published 4- ENERGY DEPARTMENT Hazardous waste program Agricultural Marketing 12-05 [FR 05-07082] Federal Energy Regulatory authorizations: Service Acquisition regulations: Commission Idaho; comments due by 6- Cotton classing, testing and Administrative matters; Electric rate and corporate 15-05; published 5-16-05 standards: comments due by 6-13- regulation filings: [FR 05-09317]
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Pesticide registration, standards; comments due Beverly Harbor, Beverly, LIBRARY OF CONGRESS cancellation, etc.: by 6-17-05; published 5- MA; comments due by 6- Copyright Office, Library of Pesticide registration; 18-05 [FR 05-09823] 13-05; published 5-13-05 Congress registrant request to FEDERAL TRADE [FR 05-09532] Copyright Arbitration Royalty delete certain uses; COMMISSION Marblehead Harbor, Panel rules and procedures: comments due by 6-14- Federal Deposit Insurance Marblehead, MA; Satellite carrier compulsory 05; published 4-15-05 [FR Corporation Improvement comments due by 6-13- license; rate adjustment; 05-07410] Act; implementation: 05; published 5-13-05 [FR comments due by 6-16- 05-09533] Pesticides; tolerances in food, Depository institutions 05; published 5-17-05 [FR animal feeds, and raw lacking Federal deposit Nahant Bay, Lynn, MA; 05-09804] agricultural commodities: insurance; disclosure comments due by 6-13- NUCLEAR REGULATORY Acetamiprid; comments due requirements; comments 05; published 5-13-05 [FR COMMISSION by 6-13-05; published 4- due by 6-15-05; published 05-09531] Environmental statements; 13-05 [FR 05-07225] 3-16-05 [FR 05-05218] HOUSING AND URBAN availability, etc.: Paecilomyces lilacinus strain GENERAL SERVICES DEVELOPMENT Fort Wayne State 251; comments due by 6- ADMINISTRATION DEPARTMENT Developmental Center; 13-05; published 4-13-05 Public and Indian housing: Open for comments until [FR 05-07226] Acquisition regulations: Public Housing Operating further notice; published Pinene polymers; comments Federal Agency Retail Fund Program; comments 5-10-04 [FR 04-10516] due by 6-13-05; published Pharmacy Program; due by 6-13-05; published PERSONNEL MANAGEMENT 5-13-05 [FR 05-09476] comments due by 6-13- 4-14-05 [FR 05-07376] OFFICE Water pollution control: 05; published 4-12-05 [FR 05-07270] INTERIOR DEPARTMENT Prevailing rate systems; National Pollutant Discharge comments due by 6-17-05; HEALTH AND HUMAN Fish and Wildlife Service Elimination System— published 5-18-05 [FR 05- SERVICES DEPARTMENT Concentrated animal Endangered and threatened 09894] feeding operations in Food and Drug species permit applications Administration SMALL BUSINESS New Mexico and Recovery plans— ADMINISTRATION Oklahoma; general Reports and guidance Paiute cutthroat trout; Disaster loan areas: permit for discharges; documents; availability, etc.: Open for comments Maine; Open for comments Open for comments Evaluating safety of until further notice; until further notice; until further notice; antimicrobial new animal published 9-10-04 [FR published 2-17-04 [FR 04- published 12-7-04 [FR drugs with regard to their 04-20517] 03374] 04-26817] microbiological effects on Endangered and threatened SOCIAL SECURITY Water pollution; effluent bacteria of human health species: guidelines for point source concern; Open for ADMINISTRATION Critical habitat Social security benefits and categories: comments until further designations— Meat and poultry products notice; published 10-27-03 supplemental security Arkansas River shiner; processing facilities; Open [FR 03-27113] income: comments due by 6-17- for comments until further Federal old age, survivors, Medical devices— 05; published 4-28-05 notice; published 9-8-04 and disability insurance, Dental noble metal alloys [FR 05-08489] [FR 04-12017] and base metal alloys; and aged, blind, and INTERIOR DEPARTMENT disabled— FEDERAL Class II special COMMUNICATIONS controls; Open for National Park Service Hearing impairments and COMMISSION comments until further National Register of Historic disturbance of labyrinthine-vestibular Committees; establishment, notice; published 8-23- Places: function; medical criteria renewal, termination, etc.: 04 [FR 04-19179] Pending nominations; for evaluation; comments due by 6-16- Technological Advisory HEALTH AND HUMAN comments due by 6-13- 05; published 6-1-05 [FR Council; Open for SERVICES DEPARTMENT 05; published 4-13-05 05-10788] comments until further Health insurance reform: [FR 05-07355] notice; published 3-18-05 Civil money penalties; JUSTICE DEPARTMENT Federal old age, survivors, [FR 05-05403] investigations policies and Drug Enforcement and disability insurance, Common carrier services: procedures, penalties Administration and aged, blind, and Interconnection— imposition, and hearings; Schedules of controlled disabled— Incumbent local exchange comments due by 6-17- substances: Language and speech carriers unbounding 05; published 4-18-05 [FR Pregabalin; placement into disorders; medical obligations; local 05-07512] Schedule V; comments criteria for evaluation; competition provisions; HOMELAND SECURITY due by 6-13-05; published comments due by 6-13- wireline services DEPARTMENT 5-13-05 [FR 05-09634] 05; published 4-13-05 offering advanced Coast Guard JUSTICE DEPARTMENT [FR 05-07356] telecommunications Neurological impairments; Anchorage regulations: Parole Commission capability; Open for medical criteria for Maryland; Open for comments until further Federal prisoners; paroling evaluation; comments comments until further notice; published 12-29- and releasing, etc.: due by 6-13-05; notice; published 1-14-04 04 [FR 04-28531] United States and District of published 4-13-05 [FR [FR 04-00749] Price cap local exchange Columbia Codes; 05-07357] carriers; special access Drawbridge operations: prisoners serving Parties representation; rates; comments due by Maryland; comments due by sentences— recognition, 6-13-05; published 4-13- 6-13-05; published 4-27- Parole release hearings disqualification, and 05 [FR 05-07350] 05 [FR 05-08459] conducted by video reinstatement of Digital television stations; table Ports and waterways safety; conferences; pilot representative; of assignments: regulated navigation areas, project; comments due comments due by 6-13- Satellite-delivered network safety zones, security by 6-13-05; published 05; published 4-13-05 signals; technical zones, etc.: 4-13-05 [FR 05-07389] [FR 05-07353]
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Respiratory system General Electric Co.; TREASURY DEPARTMENT U.S. Government Printing disorders; medical comments due by 6-13- Alcohol and Tobacco Tax Office, Washington, DC 20402 criteria for evaluation; 05; published 4-13-05 [FR and Trade Bureau (phone, 202–512–1808). The comments due by 6-13- 05-07387] Alcohol, tobacco, and other text will also be made 05; published 4-13-05 available on the Internet from TRANSPORTATION excise taxes: [FR 05-07358] GPO Access at http:// DEPARTMENT Tobacco products and www.gpoaccess.gov/plaws/ OFFICE OF UNITED STATES cigarette papers and TRADE REPRESENTATIVE Federal Motor Carrier Safety index.html. Some laws may Administration tubes; removal without tax not yet be available. Trade Representative, Office payment for use in law of United States Motor carrier safety standards: enforcement activities; H.R. 2566/P.L. 109–14 Generalized System of Motor carrier, broker, freight comments due by 6-14- Surface Transportation Preferences: forwarder, and hazardous 05; published 4-15-05 [FR Extension Act of 2005 (May 2003 Annual Product materials proceedings; 05-07582] 31, 2005; 119 Stat. 324) Review, 2002 Annual practice rules; comments Country Practices Review, due by 6-17-05; published Last List May 17, 2005 and previously deferred 5-18-05 [FR 05-09898] LIST OF PUBLIC LAWS product decisions; TRANSPORTATION petitions disposition; Open DEPARTMENT This is a continuing list of Public Laws Electronic for comments until further public bills from the current Notification Service notice; published 7-6-04 Maritime Administration session of Congress which (PENS) [FR 04-15361] Coastwise trade laws; have become Federal laws. It TRANSPORTATION administrative waivers: may be used in conjunction with ‘‘PLUS’’ (Public Laws PENS is a free electronic mail DEPARTMENT Fee increase; comments Update Service) on 202–741– notification service of newly Federal Aviation due by 6-13-05; published 6043. This list is also enacted public laws. To Administration 5-12-05 [FR 05-09433] Airworthiness directives: available online at http:// subscribe, go to http:// TREASURY DEPARTMENT www.archives.gov/ listserv.gsa.gov/archives/ Airbus; comments due by 6- federal register/public laws/ publaws-l.html 13-05; published 5-12-05 Balanced Budget Act of 1997; — — public—laws.html. [FR 05-09472] implementation: Note: This service is strictly Boeing; comments due by District of Columbia The text of laws is not for E-mail notification of new 6-13-05; published 4-27- retirement plans; Federal published in the Federal laws. The text of laws is not 05 [FR 05-08403] benefit payments; Register but may be ordered available through this service. Cessna; comments due by comments due by 6-13- in ‘‘slip law’’ (individual PENS cannot respond to 6-13-05; published 4-14- 05; published 4-13-05 [FR pamphlet) form from the specific inquiries sent to this 05 [FR 05-07379] 05-07291] Superintendent of Documents, address.
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