12–14–05 Wednesday Vol. 70 No. 239 Dec. 14, 2005
Pages 73905–74192
VerDate Aug 31 2005 18:07 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00001 Fmt 4710 Sfmt 4710 E:\FR\FM\14DEWS.LOC 14DEWS
i II Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005
The FEDERAL REGISTER (ISSN 0097–6326) is published daily, SUBSCRIPTIONS AND COPIES Monday through Friday, except official holidays, by the Office PUBLIC of the Federal Register, National Archives and Records Administration, Washington, DC 20408, under the Federal Register Subscriptions: Act (44 U.S.C. Ch. 15) and the regulations of the Administrative Paper or fiche 202–512–1800 Committee of the Federal Register (1 CFR Ch. I). The Assistance with public subscriptions 202–512–1806 Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402 is the exclusive distributor of the official General online information 202–512–1530; 1–888–293–6498 edition. Periodicals postage is paid at Washington, DC. Single copies/back copies: The FEDERAL REGISTER provides a uniform system for making Paper or fiche 202–512–1800 available to the public regulations and legal notices issued by Assistance with public single copies 1–866–512–1800 Federal agencies. These include Presidential proclamations and (Toll-Free) Executive Orders, Federal agency documents having general FEDERAL AGENCIES applicability and legal effect, documents required to be published Subscriptions: by act of Congress, and other Federal agency documents of public interest. Paper or fiche 202–741–6005 Documents are on file for public inspection in the Office of the Assistance with Federal agency subscriptions 202–741–6005 Federal Register the day before they are published, unless the issuing agency requests earlier filing. For a list of documents currently on file for public inspection, see www.archives.gov. FEDERAL REGISTER WORKSHOP The seal of the National Archives and Records Administration authenticates the Federal Register as the official serial publication THE FEDERAL REGISTER: WHAT IT IS AND HOW TO USE IT established under the Federal Register Act. Under 44 U.S.C. 1507, the contents of the Federal Register shall be judicially noticed. FOR: Any person who uses the Federal Register and Code of Federal Regulations. The Federal Register is published in paper and on 24x microfiche. It is also available online at no charge as one of the databases WHO: Sponsored by the Office of the Federal Register. on GPO Access, a service of the U.S. Government Printing Office. WHAT: Free public briefings (approximately 3 hours) to present: The online edition of the Federal Register www.gpoaccess.gov/ nara, available through GPO Access, is issued under the authority 1. The regulatory process, with a focus on the Federal of the Administrative Committee of the Federal Register as the Register system and the public’s role in the development official legal equivalent of the paper and microfiche editions (44 of regulations. U.S.C. 4101 and 1 CFR 5.10). It is updated by 6 a.m. each day the Federal Register is published and includes both text and 2. The relationship between the Federal Register and graphics from Volume 59, Number 1 (January 2, 1994) forward. Code of Federal Regulations. For more information about GPO Access, contact the GPO Access 3. The important elements of typical Federal Register doc- User Support Team, call toll free 1-888-293-6498; DC area 202- uments. 512-1530; fax at 202-512-1262; or via e-mail at [email protected]. 4. An introduction to the finding aids of the FR/CFR sys- The Support Team is available between 7:00 a.m. and 9:00 p.m. tem. Eastern Time, Monday–Friday, except official holidays. The annual subscription price for the Federal Register paper WHY: To provide the public with access to information nec- edition is $749 plus postage, or $808, plus postage, for a combined essary to research Federal agency regulations which di- Federal Register, Federal Register Index and List of CFR Sections rectly affect them. There will be no discussion of specific Affected (LSA) subscription; the microfiche edition of the Federal agency regulations. Register including the Federal Register Index and LSA is $165, llllllllllllllllll plus postage. Six month subscriptions are available for one-half the annual rate. The prevailing postal rates will be applied to WHEN: Wednesday, January 11, 2006 orders according to the delivery method requested. The price of a single copy of the daily Federal Register, including postage, 9:00 a.m.–Noon is based on the number of pages: $11 for an issue containing WHERE: Office of the Federal Register less than 200 pages; $22 for an issue containing 200 to 400 pages; and $33 for an issue containing more than 400 pages. Single issues Conference Room, Suite 700 of the microfiche edition may be purchased for $3 per copy, 800 North Capitol Street, NW. including postage. Remit check or money order, made payable Washington, DC 20002 to the Superintendent of Documents, or charge to your GPO Deposit Account, VISA, MasterCard, American Express, or RESERVATIONS: (202) 741–6008 Discover. Mail to: New Orders, Superintendent of Documents, P.O. Box 371954, Pittsburgh, PA 15250-7954; or call toll free 1-866- 512-1800, DC area 202-512-1800; or go to the U.S. Government Online Bookstore site, see bookstore.gpo.gov. There are no restrictions on the republication of material appearing in the Federal Register. How To Cite This Publication: Use the volume number and the page number. Example: 70 FR 12345. Postmaster: Send address changes to the Superintendent of Documents, Federal Register, U.S. Government Printing Office, Washington DC 20402, along with the entire mailing label from the last issue received.
.
VerDate Aug 31 2005 18:07 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00002 Fmt 4710 Sfmt 4710 E:\FR\FM\14DEWS.LOC 14DEWS III
Contents Federal Register Vol. 70, No. 239
Wednesday, December 14, 2005
Agricultural Marketing Service Federal Aviation Administration PROPOSED RULES RULES Milk marketing orders: Airworthiness directives: Pacific Northwest and Arizona-Las Vegas, 74166–74191 Airbus, 73919–73921, 73925–73933 Mushroom promotion, research, and consumer information Boeing, 73935–73937 order; regulatory review, 73945–73946 Empresa Brasileira de Aeronautica S.A. (EMBRAER), Potato research and promotion plan; regulatory review, 73921–73923, 73933–73935 73945 Sabreliner, 73923–73925 PROPOSED RULES Agriculture Department Class E airspace, 73959–73960 See Agricultural Marketing Service NOTICES See Animal and Plant Health Inspection Service Aeronautical land-use assurance; waivers: See Commodity Credit Corporation Aiken Municipal Airport, SC, 74100–74101 See Rural Utilities Service Airport noise compatibility program: NOTICES Noise exposure maps— Agency information collection activities; proposals, Cincinnati-Municipal Lunken Airport, OH, 74101 submissions, and approvals, 73988 Exemption petitions; summary and disposition, 74101– 74102 Animal and Plant Health Inspection Service RULES Federal Communications Commission Exportation and importation of animals and animal RULES products: Radio stations; table of assignments: Whole cuts of boneless beef from— Louisiana and California, 73940 Japan, 73905–73919 Missouri, 73940–73941 Tennessee, 73942–73943 Arts and Humanities, National Foundation Texas, 73939–73940, 73942 See National Foundation on the Arts and the Humanities Various States, 73941–73942 PROPOSED RULES Centers for Medicare & Medicaid Services Radio stations; table of assignments: NOTICES California, 73972–73973 Agency information collection activities; proposals, Television broadcasting: submissions, and approvals, 74018–74019 Cable Television Consumer Protection and Competition Act— Coast Guard Multichannel video programming distributor RULES marketplace; local franchising process, 73973– Drawbridge operations: 73980 Oregon, 73937–73939 NOTICES Agency information collection activities; proposals, Commerce Department submissions, and approvals, 74005–74011 See International Trade Administration Common carrier services: See National Oceanic and Atmospheric Administration Wireless telecommunications services— Broadband radio service channels; 2150-2160/62 MHz Commodity Credit Corporation band licensees, 74011–74014 NOTICES Declaratory ruling petitions: Agency information collection activities; proposals, Fax Ban Coalition, 74014–74016 submissions, and approvals, 73988–73989 Meetings: 2007 World Radiocommunication Conference Advisory Corporation for National and Community Service Committee, 74016 NOTICES Rulemaking proceedings; petitions filed, granted, denied, Agency information collection activities; proposals, etc., 74016–74017 submissions, and approvals, 73991–73992
Defense Department Federal Election Commission See Navy Department PROPOSED RULES Coordinated and independent expenditures: Energy Department Coordinated communications, 73946–73959 See Federal Energy Regulatory Commission Federal Energy Regulatory Commission Environmental Protection Agency NOTICES NOTICES Electric rate and corporate regulation combined filings, Pesticide, food, and feed additive petitions: 73998–74000 Bayer CropScience, 74003–74005 Hydroelectric applications, 74000
VerDate Aug<31>2005 18:22 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00001 Fmt 4748 Sfmt 4748 E:\FR\FM\14DECN.SGM 14DECN IV Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Contents
Meetings: Homeland Security Department PJM Interconnection, LLC; technical conference, 74000– See Coast Guard 74001 See U.S. Citizenship and Immigration Services Meetings; Sunshine Act, 74001–74003 Applications, hearings, determinations, etc.: Housing and Urban Development Department ANR Storage Co., 73993 PROPOSED RULES Blue Lake Gas Storage Co., 73993 Manufactured home construction and safety standards: Dow Pipeline Co., 73993–73994 Manufactured Housing Consensus Committee; conference Enbridge Pipelines (Midla) L.L.C., 73994 call meeting, 73966–73967 Garden Banks Gas Pipeline, LLC, 73994 Great Lakes Gas Transmission LP, 73995 Indian Health Service Gulf States Transmission Corp., 73995–73996 NOTICES National Fuel Gas Supply Corp., 73996 Grants and cooperative agreements; availability, etc.: Oklahoma Gas & Electric Co., 73996–73997 Tribal Self-Governance Program, 74020–74024 Texas Gas Transmission, LLC, 73997 Transcontinental Gas Pipe Line Corp., 73997–73998 Interior Department See Fish and Wildlife Service Federal Highway Administration See National Park Service NOTICES See Reclamation Bureau Environmental statements; notice of intent: Salt Lake County, UT, 74102 Internal Revenue Service PROPOSED RULES Federal Maritime Commission Income taxes: NOTICES Space and ocean activities and communications; source Agreements filed, etc., 74017 of income; public hearing Public hearing canceled, 73967 Federal Motor Carrier Safety Administration NOTICES International Trade Administration Motor carrier safety standards: NOTICES Driver qualifications; vision requirement exemptions, Antidumping: 74102–74103 Silicon metal from— Russian Federation, 73989–73990 Federal Railroad Administration Applications, hearings, determinations, etc.: NOTICES Georgia Institute of Technology et al., 73990 Agency information collection activities; proposals, Massachusetts Institute of Technology, 73991 submissions, and approvals, 74103–74105 Justice Department Federal Reserve System NOTICES NOTICES Pollution control; consent judgments: Banks and bank holding companies: Summit Equipment & Supplies, Inc., et al., 74032 Formations, acquisitions, and mergers, 74017 Permissible nonbanking activities, 74017–74018 National Archives and Records Administration NOTICES Federal Retirement Thrift Investment Board Agency records schedules; availability, 74032–74034 NOTICES Meetings; Sunshine Act, 74018 National Foundation on the Arts and the Humanities PROPOSED RULES Fish and Wildlife Service Organization, functions, and authority delegations: RULES Institute of Museum and Library Services; new Endangered and threatened species: reauthorization legislation; technical amendments, Critical habitat designations— 73967–73972 California tiger salamander, 74138–74163 Coachella Valley milk-vetch, 74112–74136 National Highway Traffic Safety Administration NOTICES NOTICES Endangered and threatened species: Motor vehicle theft prevention standards; exemption Greenback cutthroat trout; 5-year review, 74030–74031 petitions, etc.: General Motors Corp., 74105–74108 Food and Drug Administration NOTICES National Institutes of Health Reports and guidance documents; availability, etc.: NOTICES Existing label stock use after trans fat labeling effective Meetings: date of January 1, 2006; extension request, 74020 Clinical Research Advisory Board, 74024 National Institute of Allergy and Infectious Diseases, Health and Human Services Department 74024 See Centers for Medicare & Medicaid Services National Institute of Diabetes and Digestive and Kidney See Food and Drug Administration Diseases, 74025 See Indian Health Service National Institute of Mental Health, 74024–74025 See National Institutes of Health National Institute on Drug Abuse, 74025–74026
VerDate Aug<31>2005 18:22 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00002 Fmt 4748 Sfmt 4748 E:\FR\FM\14DECN.SGM 14DECN Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Contents V
Scientific Review Center, 74026 Self-regulatory organizations; proposed rule changes: Reports and guidance documents; availability, etc.: American Stock Exchange LLC, 74062–74067 National Toxicology Program— Chicago Board Options Exchange, Inc., 74067–74070 Di-(2-ethylhexyl)-phthalate exposure; Center for Depository Trust Co. et al., 74070–74071 Evaluation of Risks to Human Reproduction expert International Securities Exchange, Inc., 74071–74074 panel report; update, 74026 National Association of Securities Dealers, Inc., 74074 New York Stock Exchange, Inc., 74074–74076 National Oceanic and Atmospheric Administration Pacific Exchange, Inc., 74076–74082 RULES Philadelphia Stock Exchange, Inc., 74082–74087 International fisheries regulations: Northwest Atlantic Fisheries Organization Regulatory State Department Area; fish quotas and effort allocation, 73943–73944 NOTICES PROPOSED RULES Culturally significant objects imported for exhibition: Fishery conservation and management: Rubens and His Age: Masterpieces from the Hermitage, Atlantic highly migratory species— 74087 Commercial shark management measures, 73980–73987 NOTICES Surface Transportation Board Reports and guidance documents; availability, etc.: NOTICES U.S. Climate Change Science Program Synthesis and Railroad services abandonment: Assessment Product Prospectuses, 73991 BNSF Railway Co., 74108–74109 National Park Service Thrift Supervision Office NOTICES NOTICES National Register of Historic Places: Applications, hearings, determinations, etc.: Pending nominations, 74031 Enfield Federal Savings and Loan Association et al., 74110 Navy Department NOTICES Transportation Department Inventions, Government-owned; availability for licensing, See Federal Aviation Administration 73992 See Federal Highway Administration Meetings: See Federal Motor Carrier Safety Administration Naval Research Advisory Committee, 73992–73993 See Federal Railroad Administration See National Highway Traffic Safety Administration Nuclear Regulatory Commission See Surface Transportation Board NOTICES PROPOSED RULES Environmental statements; availability, etc.: Price advertising, 73960–73966 Aberdeen Proving Ground, MD— NOTICES Army Department Bomb Throwing Device Area, Reports and guidance documents; availability, etc.: 74035–74036 National origin discrimination as it affects limited Army Department Transonic Range Facility, 74036 English proficient persons; prohibition; policy Meetings; Sunshine Act, 74036–74037 guidance to Federal financial assistance recipients, Reports and guidance documents; availability, etc.: 74087–74100 Boiling water reactor plants model safety evaluation, 74037–74055 Treasury Department Applications, hearings, determinations, etc.: See Internal Revenue Service Entergy Nuclear Vermont Yankee, LLC, et al., 74035 See Thrift Supervision Office NOTICES Reclamation Bureau Agency information collection activities; proposals, NOTICES submissions, and approvals, 74109–74110 Environmental statements; notice of intent: Folsom Dam and appurtenant structures, CA; safety U.S. Citizenship and Immigration Services modifications; meetings, 74032 NOTICES Agency information collection activities; proposals, Rural Utilities Service submissions, and approvals, 74026–74030 NOTICES Agency information collection activities; proposals, submissions, and approvals, 73989 Separate Parts In This Issue
Securities and Exchange Commission Part II NOTICES Interior Department, Fish and Wildlife Service, 74112– Investment Company Act of 1940: 74136 Integrity Funds et al., 74055–74056 Rydex ETF Trust et al., 74056–74059 Part III Joint industry plan: Interior Department, Fish and Wildlife Service, 74138– Pacific Exchange, Inc., et al., 74059–74061 74163 Options Price Reporting Authority: Consolidated Options Last Sale Reports and Quotation Part IV Information; Reporting Plan; amendments, 74061– Agriculture Department, Agricultural Marketing Service, 74062 74166–74191
VerDate Aug<31>2005 18:22 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00003 Fmt 4748 Sfmt 4748 E:\FR\FM\14DECN.SGM 14DECN VI Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Contents
To subscribe to the Federal Register Table of Contents Reader Aids LISTSERV electronic mailing list, go to http:// Consult the Reader Aids section at the end of this issue for listserv.access.gpo.gov and select Online mailing list phone numbers, online resources, finding aids, reminders, archives, FEDREGTOC-L, Join or leave the list (or change and notice of recently enacted public laws. settings); then follow the instructions.
VerDate Aug<31>2005 18:22 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00004 Fmt 4748 Sfmt 4748 E:\FR\FM\14DECN.SGM 14DECN Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Contents VII
CFR PARTS AFFECTED IN THIS ISSUE
A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.
7 CFR Proposed Rules: 1124...... 74166 1131...... 74166 1207...... 73945 1209...... 73945 9 CFR 94...... 73905 11 CFR Proposed Rules: 109...... 73946 14 CFR 39 (7 documents) ...... 73919, 73921, 73923, 73925, 73930, 73933, 73935 Proposed Rules: 71...... 73959 399...... 73960 24 CFR Proposed Rules: 3282...... 73966 26 CFR Proposed Rules: 1...... 73967 33 CFR 117...... 73937 45 CFR Proposed Rules: 1180...... 73967 47 CFR 73 (6 documents) ...... 73939, 73940, 73941, 73942 Proposed Rules: 73...... 73972 76...... 73973 50 CFR 17 (2 documents) ...... 74112, 74138 300...... 73943 Proposed Rules: 635...... 73980
VerDate Aug 31 2005 18:11 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00001 Fmt 4711 Sfmt 4711 E:\FR\FM\14DELS.LOC 14DELS 73905
Rules and Regulations Federal Register Vol. 70, No. 239
Wednesday, December 14, 2005
This section of the FEDERAL REGISTER the regulations) govern the importation of foreign governments, and private contains regulatory documents having general of certain animals, birds, poultry, meat, citizens. applicability and legal effect, most of which other animal products and byproducts, A number of commenters supported are keyed to and codified in the Code of hay, and straw into the United States in the rule in general but recommended Federal Regulations, which is published under order to prevent the introduction of certain changes to the proposed 50 titles pursuant to 44 U.S.C. 1510. various animal diseases, including provisions. Others comments consisted The Code of Federal Regulations is sold by bovine spongiform encephalopathy only of recommended changes, the Superintendent of Documents. Prices of (BSE), a chronic degenerative disease objections to the rule in general or to new books are listed in the first FEDERAL affecting the central nervous system of specific provisions, or requests for REGISTER issue of each week. cattle. clarification. In general, the comments On August 18, 2005, we published in we received on the proposed rule can be the Federal Register (70 FR 48494– categorized as follows: DEPARTMENT OF AGRICULTURE 48500, Docket No. 05–004–1) a • Comments on the risk analysis; proposed rule to amend the regulations • Comments on the economic Animal and Plant Health Inspection governing the importation of meat and analysis; Service other edible animal products by • Comments on the environmental allowing, under certain conditions, the analysis; • 9 CFR Part 94 importation of whole cuts of boneless Comments on the proposed [Docket No. 05–004–2] beef from Japan. In that document, we standards for the importation of whole explained that the proposed rule was cuts of boneless beef from Japan; and RIN 0579–AB93 • developed in response to a request from Comments on miscellaneous issues the Government of Japan and after related to the proposed rule. Importation of Whole Cuts of Boneless We discuss these comments by topic Beef From Japan conducting an analysis of the risk that indicated that whole cuts of boneless below. AGENCY: Animal and Plant Health beef that are derived from cattle born, Risk Analysis for the Rulemaking Inspection Service, USDA. raised, and slaughtered in Japan, could ACTION: Final rule. be imported into the United States, Incubation Period and Distribution of provided that the following conditions BSE in Cattle SUMMARY: We are amending the have been met: Issue: One commenter stated that the regulations governing the importation of • The beef is prepared in an APHIS risk analysis relied on outdated meat and other edible animal products establishment that is eligible to have its and incomplete scientific evidence to by allowing, under certain conditions, products imported into the United conclude that BSE infectivity is the importation of whole cuts of States under the Federal Meat confined only to certain tissues and that boneless beef from Japan. We are taking Inspection Act (FMIA) (21 U.S.C. 601 et infectivity in such tissues does not this action in response to a request from seq.) and the regulations in 9 CFR 327.2 occur until cattle reach the age of 32 the Government of Japan and after and the beef meets all other applicable months. The commenter requested that, conducting a risk analysis and requirements of the FMIA and before APHIS proceeds with this considering public comments. This regulations thereunder (9 CFR chapter rulemaking, the Agency explain: (1) action will allow the importation of beef III), including the requirements for Why cattle under 30 months of age do from Japan while continuing to protect removal of specified risk materials not present a risk of BSE, (2) why it is against the introduction of bovine (SRMs) and the prohibition on the use appropriate to base risk management spongiform encephalopathy into the of air-injection stunning devices prior to strategies on equivocal science, (3) why United States. slaughter on cattle from which the beef additional risk mitigation measures are EFFECTIVE DATE: December 12, 2005, is derived. not needed to address the equivocal 11:30 a.m. • The beef is derived from cattle that nature of the science, and (4) why FOR FURTHER INFORMATION CONTACT: Dr. were not subjected to a pithing process APHIS is not imposing additional Gary Colgrove, Director, National Center at slaughter. measures to address the potential risk of for Import and Export, VS, APHIS, 4700 • An authorized veterinary official of BSE infectivity in tissues that have not River Road Unit 38, Riverdale, MD the Government of Japan certifies on an been designated by the USDA’s Food 20737–1231; (301) 734–4356. original certificate that the above Safety and Inspection Service (FSIS) as SUPPLEMENTARY INFORMATION: conditions have been met. SRMs. In our August 2005 proposed rule we Response: We consider the BSE Background explained that these conditions would research upon which we based the The Animal and Plant Health continue to protect against the proposed rule and this final rule to be Inspection Service (APHIS) of the introduction of BSE into the United substantial and current, and consider United States Department of Agriculture States. the mitigation measures in this rule to (USDA or the Department) regulates the We solicited comments concerning be appropriate based on the research. importation of animals and animal the proposed rule and supporting risk We discussed the research upon which products into the United States to guard analysis for 30 days ending September we based this rulemaking in the risk against the introduction of animal 19, 2005. We received 28 comments by document we made available with our diseases. The regulations in 9 CFR parts that date. They were from cattlemen’s August 2005 proposed rule. The key 93, 94, 95, and 96 (referred to below as associations, producers, representatives points are as follows:
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00001 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 73906 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
The scope of this rulemaking is Peripheral Nerves not directly applicable to cattle limited to whole cuts of boneless beef Issue: Two commenters stated that the naturally infected with BSE. Therefore, derived from cattle born, raised, and underlying assumption of the proposed we do not consider it necessary to make slaughtered in Japan. BSE infectivity has rule, that whole cuts of boneless beef any adjustments to the risk analysis for never been demonstrated in the muscle from Japan will not contain tissues that this rulemaking or to extend the tissue of cattle experimentally or may carry the BSE agent, is no longer comment period to solicit additional naturally infected with BSE at any stage valid because researchers have found public comment on this issue. of the disease. In tissues that have peripheral nervous system tissues, Blood demonstrated BSE infectivity, including facial and sciatic nerves, that Issue: Two commenters expressed pathogenesis studies have illustrated contain BSE infectivity.2 One of these concern that there has been a limited that levels of infectious BSE agent in commenters requested APHIS to explain amount of research conducted on BSE certain tissues vary with the age of an whether and what additional mitigation measures are needed to reduce the risks infectivity in blood. One of these animal. Infectivity was not detected in commenters cited a report that most tissues in cattle until at least 32 that these tissues may be present in Japanese beef. This commenter further discussed, among other things, the months post-exposure. The exception to detection of infectivity in sheep this is the distal ileum (a part of the requested an additional comment period to obtain public comment regarding the experimentally infected with BSE via intestines), where infectivity was 4 manner by which APHIS intends to treat blood transfusions. This commenter confirmed in experimentally infected this new scientific finding. also stated that the agent that causes cattle as early as 6 months post- Response: APHIS is familiar with the Creutzfeldt-Jakob disease (CJD), a exposure, and the tonsils, where results of the study mentioned by the chronic and fatal neurodegenerative infectivity was confirmed at 10 months commenters in which mice, genetically disease of humans, was detected in post-exposure. Consistent with engineered to be highly susceptible to blood, and questioned whether the BSE requirements established by FSIS and BSE and to overexpress the bovine prion agent could be detected in blood as contained in 9 CFR part 310, we protein, were inoculated with tissues well. The other commenter cited a study proposed to require the removal of from a BSE-infected cow. This study that detected infectivity in hamsters tissues that have demonstrated BSE demonstrated low levels of infectivity in experimentally infected with scrapie.5 infectivity. (FSIS is the public health the mouse assay in the facial and sciatic This commenter requested that APHIS agency within USDA responsible for nerves of the peripheral nervous system. ban the use of blood in cattle feed. ensuring the food safety of beef.) These APHIS has evaluated these findings in Response: As stated in our risk tissues (referred to as specified risk the context of the potential occurrence analysis, the pathogenesis studies of materials or SRMs) are the brain, skull, of infectivity in the peripheral nerves of naturally and experimentally infected eyes, trigeminal ganglia, spinal cord, cattle and the corresponding risks of the cattle have not detected BSE infectivity in blood. vertebral column (excluding the presence of infectivity in such tissues The first study mentioned by the vertebrae of the tail, the transverse resulting in cattle or human exposure to the BSE agent. The results from these commenter above demonstrated process of the thoracic and lumbar transmission of disease from sheep vertebrae, and the wings of the sacrum), experiments in genetically engineered mice should be interpreted with experimentally infected with BSE to and dorsal root ganglia of cattle 30 caution, as the findings may be another sheep via blood transfusions. months of age and older, and the tonsils influenced by the overexpression of We note that there are widely and distal ileum of the small intestine prion proteins and may not accurately acknowledged differences between the of all cattle. In addition to requiring the predict the natural distribution of BSE distribution of BSE infectivity in the removal of SRMs, we proposed infectivity in cattle. Further, the tissues of cattle and sheep. In addition, mitigation measures to address the overexpression of prion proteins in there is a significant difference in potential risk of cross-contamination of transgenic mice may not accurately susceptibility to infection based on the the beef with SRMs. These requirements mimic the natural disease process route of transmission. Infection via oral are based on currently available science because the transgenic overexpressing consumption may be 10,000 times less and are consistent with the international mice have been shown to develop efficient than infection via intravenous guidelines on BSE established by the spontaneous lethal neurological disease injection, such as a blood transfusion. World Organization for Animal Health involving spongiform changes in the Both the United Kingdom’s (formerly known as the Office brain and muscle degeneration.3 In Department for Environment, Food and International des Epizooties (OIE)), addition, the route of administration to Rural Affairs’ Spongiform which is recognized by the World Trade the mice was both intraperitoneal and Encephalopathy Advisory Committee Organization (WTO) as the international intracerebral, which are two very (SEAC) and the European Commission’s organization responsible for the efficient routes of infection as compared Scientific Steering Committee (SSC), development of standards, guidelines, to oral consumption. Given these which are scientific advisory and recommendations with respect to factors, APHIS has determined that the committees, evaluated the findings of animal health and zoonoses (diseases finding of BSE infectivity in facial and transmission of infectivity via blood that are transmissible from animals to sciatic nerves of the transgenic mice is transfusions in sheep experimentally humans).1 For these reasons, we are not infected with BSE and concluded that making any changes to the rule based on 2 Bushmann, A., and Gruschup, M.; Highly Bovine Spongiform Encephalopathy-Sensitive 4 Pattison, J., et al.; UK Strategy for Research and this comment. Transgenic Mice Confirm the Essential Restriction Development on Human and Animal Health of Infectivity to the Nervous System in Clinically Aspects of Transmissible Spongiform 1 The OIE guidelines for trade in terrestrial Diseased Cattle. The Journal of Infectious Diseases, Encephalopathies, 2005–2008. Available at http:// animals (mammals, birds, and bees) are detailed in 192: 934–42, September 1, 2005. www.mrc.ac.uk/pdf-about- the Terrestrial Animal Health Code (available on 3 Westaway, D., et al.; (1994) Degeneration of tse_uk_strategy_june2005.pdf. the Internet at http://www.oie.int). The guidelines Skeletal Muscle, Peripheral Nerves, and the Central 5 Castilla, J., et al.; Detection of Prions in Blood. on BSE are contained in Chapter 2.3.13 of the Code Nervous System in Transgenic Mice Overexpressing Nature Medicine, doi: 10.1038/nm1286, August 28, and supplemented by Appendix 3.8.4 of the Code. Wild-type Prion Proteins. Cell 76, 117–129. 2005, at 3.
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00002 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 73907
these findings did not indicate that disease agent that causes BSE may be Response: APHIS reviewed the study additional mitigation measures were reached through the accumulation of referred to by the commenter. The study necessary to protect public health.6 subinfectious doses over time.7 The authors present results that show that Therefore, based on currently available commenter expressed concern that this chronic lymphocytic inflammation information, APHIS considers it finding undercuts the risk analysis enabled prion accumulation in certain unlikely that the experimental prepared for this rulemaking, which, otherwise prion-free organs. The study observations in sheep reflect a according to the commenter, discussed authors postulate that chronic biologically significant event for cattle evidence that BSE infectivity is caused inflammatory condition may act to or affect the safety of whole cuts of by the consumption of a single dose of modify natural and iatrogenic prion boneless beef derived from cattle born, infected tissue and that a low dose transmission by expanding tissue raised, and slaughtered in Japan. exposure has a longer incubation distribution of prions. According to the The study on scrapie-infected period. This commenter requested authors, in the inflammatory conditions hamsters noted by the commenter APHIS to explain the impact of these studied, expression in two specific describes a process by which the findings on its assessment of the risk types of lymphotoxins and a secondary abnormal prion protein can be amplified posed by the importation of boneless lymphoid organ chemokine in certain and detected using current testing beef from Japan. tissues was enough to establish methods, such as a Western blot. In this Response: Our risk analysis does not ‘‘unexpected’’ prion reservoirs. APHIS study, blood from hamsters state, as stated by the commenter, that reviewed the findings from this study, experimentally infected with a scrapie ‘‘BSE infectivity is caused by the which used transgenic mice, in the strain was collected when the animals consumption of a single dose of infected context of the potential occurrence in demonstrated clinical signs of disease. tissue.’’ Our risk analysis states that cattle. We do not believe that the study These blood samples were incubated results can be extrapolated to cattle ‘‘the incubation period [of the BSE with excess normal prion protein from naturally infected with BSE. First, the agent] is inversely related to dose (i.e., brain tissue for multiple cycles. If study used several transgenic and low dose exposures have a long abnormal protein is present in blood, it spontaneous mouse models of chronic incubation period before clinical signs will convert the normal brain prion to inflammation that were inoculated with of disease become apparent).’’ This abnormal prion, yielding an increased scrapie infectivity rather than BSE statement is based on research amount of abnormal prion that can be infectivity. The pathogenesis and conducted on BSE and is not meant to more easily detected. In this manner, infectivity distribution of the scrapie make a statement about the number of the presence of abnormal prion protein agent in mice is different from the BSE doses necessary for cattle to become in the initial blood samples, which was agent in cattle. Second, the mice in this present in levels too low to detect using affected by the BSE agent. Further, the study were injected with scrapie prions routine test methods, was demonstrated. findings noted by the commenter would through intraperitoneal and/or While this finding has many not affect the critical evaluation of risk intracerebral routes of inoculation, possibilities related to the development on which our mitigation measures are which are much more efficient routes of diagnostic tests, it does not based. This rule will allow the than oral consumption of a disease demonstrate BSE infectivity in blood. importation of whole cuts of boneless agent, the natural route for exposure of We also note that the international beef derived from cattle. Regardless of cattle to the BSE agent. Finally, the community largely considers that the infective dose or period of study authors themselves did not claim studies using transmissible spongiform incubation, BSE infectivity has never that the mouse models and results encephalopathies (TSEs) other than BSE been demonstrated in the muscle tissue obtained in the study represent a model in non-bovine animals cannot be of cattle experimentally or naturally for the pathogenesis of BSE in cattle. directly extrapolated to BSE in cattle infected with BSE at any stage of the They stated that direct evidence from because of the significant interactions disease. Therefore, we are not making similar studies using the BSE agent in between the host species and the prion any changes to the rule based on this cattle are needed prior to concluding strain involved. comment. that chronic inflammatory conditions in Feed regulations in the United States Findings Related to Tissue cattle can alter the distribution of the are under the authority of the Food and Inflammation BSE agent. Therefore, we are making no Drug Administration (FDA), not APHIS. changes in the rule in response to this Therefore, the commenter’s request that Issue: One commenter requested that comment. APHIS ban the use of blood in cattle APHIS discuss the implications of a feed falls outside the scope of this recent study 8 indicating that TSE Working Group rulemaking. For these reasons, we are inflammation may act as a modifier of Issue: One commenter stated that the not making any changes to the rule natural and iatrogenic (experimental) proposed rule and supporting risk based on these comments. prion transmission to other organs and analysis should be evaluated by APHIS’ TSE Working Group. The commenter Low Dose Exposure tissues not presently listed as SRMs and whether those findings necessitate the further requested that APHIS make Issue: One commenter cited new implementation of additional risk available to the public a report of the research indicating that infection by the mitigation measures to reduce the risk TSE Working Group’s evaluation of the of introducing BSE into the United risk of BSE arising from the proposed 6 Spongiform Encephalopathy Advisory States from Japan. rule along with the Group’s Committee, Oct. 19, 2000, Summary of SEAC recommendations regarding the actions Committee Meeting 29 September 2000. Available at http://www.defra.gov.uk/news/seac/seac500.htm. 7 Jacquemot, C., et al.; High Incidence of Scrapie that should be taken in response to European Commission Scientific Steering Induced by Repeated Injections of Subinfectious these risks. Committee; The Implications of the Recent Papers Prion Doses. Journal of Virology, July 2005, p. Response: APHIS has proceeded in a on Transmission of BSE by Blood Transfusion in 8904–8908. thorough and deliberative manner, in Sheep (Houston et al., 2000; Hunter et al., 2002), 8 Heikenwalder, M., et al.; Chronic Lymphocytic Adopted by the SSC at its Meeting of 12–13 Inflammation Specifies the Organ Tropism of cooperation with FSIS and FDA, to September. Available at http://europa.eu.int/comm/ Prions. Science, Vol. 37, February 18, 2005, 1107– define the steps necessary to protect food/fs/sc/ssc/out280_en.pdf. 1110. animal and public health. The APHIS
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00003 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 73908 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
TSE Working Group consists of APHIS Issue: One commenter expressed meat will introduce BSE into the United employees with expertise in veterinary concern about the Harvard-Tuskegee States. The Harvard-Tuskegee Study is science, epidemiology, import/export Study. In our risk analysis, we refer to referenced in the risk analysis only to issue management, pathobiology, the Harvard-Tuskegee Study in our address this already remote risk. veterinary biologics, and TSE program discussion of the risks associated with APHIS considers the assumptions management. The group has met in the plate waste. The commenter disagreed underpinning the study to be valid and past to assist and make with the study’s conclusion that the risk based on currently available science. As recommendations to the Deputy of BSE becoming established in the mentioned above, the USDA Administrator for APHIS’ Veterinary United States is ‘‘extremely unlikely.’’ commissioned the HCRA and the Center Services, as well as other managers, Specifically, this commenter noted that, for Computational Epidemiology at regarding animal health programs. The with respect to the United States’ Tuskegee University to conduct what TSE Working Group is not solely potential exposure to BSE before the we now refer to as the Harvard- responsible for evaluating information 1989 import ban and 1997 feed ban, the Tuskegee Study in 1998. The objective and data regarding BSE/TSE import Harvard-Tuskegee Study stated that, of the Harvard-Tuskegee Study was to regulations. That said, members of the ‘‘Exposure to infectivity among U.S. analyze and evaluate the measures TSE Working Group who have special cattle could not have been substantial implemented by the U.S. Government to expertise in BSE participated in the because in the years prior to the 1997 prevent the spread of BSE in the United development of the risk analysis, either FDA feed ban, such exposure would States and to reduce the potential as contributing writers or reviewers of have eventually resulted in a substantial exposure of Americans to the BSE agent. the document. Their input was, number of clinical cases, a prediction The Harvard-Tuskegee Study reviewed therefore, considered by the Agency that is inconsistent with the fact that available scientific information related during development of the proposed BSE has not been identified in the to BSE and other TSEs, assessed rule. Under these circumstances, we do United States to date. There is therefore, pathways by which BSE could not believe it would be appropriate for a small chance that BSE could have potentially spread in the United States, the TSE Working Group to take on the been introduced into the U.S. and and identified measures that could be role suggested by the commenter. remained undetected.’’ The commenter taken to protect human and animal stated that the detection of a 12-year-old health in the United States. The Harvard-Tuskegee Investigation of BSE Harvard-Tuskegee Study concluded Risk in the United States BSE-positive cow native to the United States in June 2005 proves that the that, if introduced, BSE is extremely In April 1998, USDA contracted with Harvard-Tuskegee Study’s assumption unlikely to become established in the the Harvard Center for Risk Analysis was in error, and that the chance that United States. The Harvard-Tuskegee (HCRA) at Harvard University and the BSE could have been introduced into Study also concluded that, should BSE Center for Computational Epidemiology the United States was not small. The enter the United States, only a small at Tuskegee University to conduct a commenter also stated that, until and amount of potentially infective tissues comprehensive investigation of BSE risk unless the Secretary revises the would likely reach the human food in the United States. The report,9 widely Harvard-Tuskegee Study to correct the supply and be available for human referred to as the Harvard Risk known, erroneous assumptions consumption. The HCRA recently Assessment or the Harvard Study, is underpinning the study, the Harvard- revised its model using updated referred to in this document as the estimates for some of the model Tuskegee Study is an inappropriate tool Harvard-Tuskegee Study. It was parameters, based on new data about for accurately ascertaining the degree of completed in 2001 and released by the compliance with feed restrictions. The increased risk the United States would USDA. Following a peer review of the results are even lower estimates of risk be subject to under the proposed rule. Harvard-Tuskegee Study in 2002, the than previously predicted. authors responded to the peer review Response: We disagree with this comments and released a revised risk commenter’s interpretation of the Risk of BSE in General assessment in 2003.10 Harvard-Tuskegee Study’s conclusion Issue: Several commenters expressed regarding the risk of BSE establishment concern regarding the risk posed by 9 Harvard Center for Risk Analysis, Harvard in the United States. First, the text boneless beef imported into the United School of Public Health, and Center for extracted from the Harvard-Tuskegee States from Japan. One commenter Computational Epidemiology, College of Veterinary Study and quoted by the commenter asked why the U.S. Government would Medicine, Tuskegee University; Evaluation of the Potential for Bovine Spongiform Encephalopathy in states that ‘‘ * * * such exposure propose to allow the importation of the United States. Available at http:// would have eventually resulted in a boneless beef from Japan if there is any www.aphis.usda.gov/lpa/issues/bse/ substantial number of clinical _ risk that it could introduce BSE into the risk assessment/mainreporttext.pdf, 2001. cases***.’’ We do not consider one United States. One commenter stated 10 Research Triangle Institute; Review of the Evaluation of the Potential for Bovine Spongiform native case of BSE to constitute a that APHIS failed to provide a basis for Encephalopathy in the United States. Accessed substantial number. In addition, the its conclusion that this increased risk is online at http://www.aphis.usda.gov/lpa/issues/bse/ model used by the Harvard-Tuskegee acceptable. BSE_Peer_Review.pdf, 2002. Study did not rely on a zero probability Response: Zero risk is virtually, if not Harvard Center for Risk Analysis, Harvard School of Public Health; Evaluation of the Potential for of BSE incidence in the United States. absolutely, impossible to achieve. If we Bovine Spongiform Encephalopathy in the United The detection of BSE in a 12-year-old were to make trade dependent on zero States: Response to Reviewer Comments Submitted cow does not invalidate the conclusions risk, foreign, as well as interstate, trade by Research Triangle Institute. Available at http:// of the study nor our conclusions about in animals and animal products would www.aphis.usda.gov/lpa/issues/bse/ ResponsetoComments.pdf, 2003. the level of risk posed by the cease. Consistent with international Harvard Center for Risk Analysis, Harvard School importation of beef from Japan under trade agreements, such as the WTO’s of Public Health, and Center for Computational the proposed conditions. Furthermore, ‘‘Agreement on the Application of Epidemiology, College of Veterinary Medicine, because this rule applies only to whole Sanitary and Phytosanitary Measures’’ Tuskegee University; Evaluation of the Potential for Bovine Spongiform Encephalopathy in the United cuts of boneless beef, and muscle tissue (WTO–SPS Agreement) and the North States. Available at http://www.aphis.usda.gov/lpa/ of cattle has never demonstrated BSE American Free Trade Agreement, APHIS issues/bse/madcow.pdf, 2003. infectivity, it is highly unlikely that this agrees that measures to protect human,
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 73909
animal, and plant health should be no never been demonstrated in muscle the livestock in the United States from more trade restrictive than necessary to tissue in cattle. In fact, we clearly stated the introduction of BSE, the FDA must achieve an appropriate level of that the primary barriers limiting the first modify the U.S. feed ban to prevent protection. Under these agreements, likelihood that whole cuts of boneless the possible recycling of any BSE participating nations, including the beef imported from Japan would expose infectivity imported from Japan. United States and U.S. trading partners, the U.S. cattle population to BSE are the According to the commenter, the U.S. have agreed to base their measures, such inherently low risk of the product, the feed ban includes exceptions for the as conditions for importation, on mitigation measures included in this feeding of blood, poultry litter, and science-based risk assessments and rule to prevent contamination, and the plate waste, the feeding of SRMs to international standards. fact that the product is unlikely to be farmed animals, and does not require As discussed in our risk analysis, BSE fed to cattle. We further stated that segregated facilities in the infectivity has never been demonstrated although the product is not intended for manufacturing of animal feed. This in the muscle tissue of cattle animal consumption, we evaluated commenter stated that these elements of experimentally or naturally infected pathways by which some small fraction the feed ban must be eliminated before with BSE at any stage of the disease. or amount of the product might APHIS begins accepting beef or cattle Therefore, if BSE is present in a inadvertently be fed to cattle. from any country where BSE is known country’s cattle population, as it is in The amount of boneless beef that to exist, including Japan. Japan, the most significant risk would be imported from Japan is mitigation measure for ensuring the relatively small and the amount of Response: The model used by the safety of whole cuts of boneless beef is material likely to be disposed of is even Harvard-Tuskegee Study included the prevention of cross-contamination of smaller, given that household and assumptions about the types of the beef with SRMs during stunning and restaurant food waste are rarely, if ever, rendering processes used in the United slaughter of cattle. The proposed rule fed to cattle or rendered. These types of States, and the amount of material and this final rule include mitigation waste become municipal garbage and subjected to these processes. There are measures that address such risks and are are disposed of in landfills. Further, only a limited number of rendering consistent with the international because the FDA requires that plate processes in use, and research has guidelines on BSE established by the waste be further heat processed before it demonstrated that, with one exception, OIE. can be incorporated into ruminant feed, these processes inactivate significant any potential plate waste derived from levels of the BSE agent. The one type of U.S. Feed Ban boneless beef from Japan would most rendering system that does not Issue: One commenter stated that the likely be subject to rendering processes inactivate significant levels of the BSE level of risk posed by beef imported that would inactivate significant levels agent, the low-temperature vacuum from Japan is unacceptable because the of the BSE agent, thereby further system, is not widely used in the United U.S. feed ban could potentially result in reducing the level of infectivity in the States, if at all. In fact, the Harvard- the recycling of BSE in the United feed. Therefore, our risk analysis Tuskegee Study assumed that only 5 States. This commenter requested that concluded that it is extremely unlikely percent of cattle carcasses rendered in APHIS define ‘‘small fraction’’ and that imported material containing an the United States may be subject to this ‘‘highly diluted’’ in our statements in infectious level of the BSE agent will process. APHIS does not rely solely on the risk analysis about the amount of enter the ruminant feed chain. Because this inactivation, however, in the imported beef that might, we do not consider these pathways to be analysis. A series of barriers, of which hypothetically, be fed to cattle, and the epidemiologically significant for inactivation at rendering is only one, potential concentration of any BSE exposure of the U.S. cattle population to must each be crossed in sequence for agent, if present, that might be available. BSE infectivity in products imported transmission of BSE to occur. In fact, The commenter further questioned under this rule, we do not believe it is inactivation by rendering would only be whether these terms describe an necessary to quantify a level of relevant if BSE-contaminated beef infectious level below 0.001 gram, infectious material that is theoretically entered the United States and entered which is the amount of infected tissue possible, but highly unlikely, to be the ruminant feed supply. Our analysis research has shown to cause BSE present. For these reasons, we are shows that neither event is likely. infectivity. In addition, the commenter making no changes to the rule in asked how many doses may be expected response to this comment. With regard to the commenter’s to enter the animal food chain, if the With regard to the commenter’s statement that the FDA must modify dose is greater than 0.001 gram. request for APHIS to define ‘‘small and broaden the U.S. feed ban to Response: We disagree that the fraction’’ and ‘‘highly diluted,’’ in our prevent the possible recycling of any current feed regulations could result in statements in the risk analysis about the BSE infectivity imported from Japan, the the recycling of BSE if introduced into amount of imported beef that might, Harvard-Tuskegee Study demonstrates the United States by whole cuts of hypothetically, be fed to cattle, these that with the existing feed ban, even boneless beef from Japan. In our risk terms were used to describe a small with incomplete compliance, the level analysis, we considered possible direct amount of material and a small amount of transmission of BSE from infected and indirect pathways by which whole of material that is not concentrated, animals is minimal, if it occurs at all. cuts of boneless beef imported from respectively. This rule only allows the importation of Japan might expose U.S. cattle to BSE if Issue: One commenter stated that whole cuts of boneless beef, a product the product contained the BSE agent. APHIS’ reliance upon heat-processed that presents a very low risk of BSE We discussed these pathways in the rendering to inactivate BSE infectivity is infectivity. Even if beef were imported context of barriers that exist to prevent misplaced because the Harvard- with infectivity, all of the sequential these types of exposures. Our discussion Tuskegee Study makes no definitive barriers to transmission-of which the of these barriers was specifically finding that the rendering processes feed ban is only one-must be crossed in prefaced by the fact that whole cuts of used in the United States will inactivate order for transmission to occur. boneless beef are an inherently low risk the BSE agent. This commenter stated Therefore, we are making no changes to commodity because BSE infectivity has that, in order to meet its duty to protect the rule in response to this comment.
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 73910 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
Cross-Contamination slaughter mitigations applied in both prohibited under this rule). This Issue: One commenter expressed systems would work similarly to reduce commenter cited a report by the concern that the current FSIS the potential for contamination of whole European Commission’s TSE BSE Ad regulations and policies do not fully cuts of boneless beef. For example, the Hoc Group that noted a theoretical risk address the possibility of cross- Japanese establishments, like U.S. that, when a healthy animal that contamination between SRMs and establishments, remove the vertebral nevertheless has infectivity in the brain edible product in plants that column as a unit to reduce the is stunned using a penetrative method, predominately slaughter cattle over 30 likelihood of potentially infective there is the possibility that the bolt of months of age. This commenter stated tissues contaminating the beef. The the gun could be contaminated and establishments also remove spinal cord that, although the current policies could introduce that infectivity into one dura matter and wash the dressed address the use of separate equipment or more sequentially stunned animals, if carcasses after splitting, and inspectors 11 in cattle under 30 months versus those stunned with the same gun. The confirm that the carcasses are free of all that are over this age, they do not commenter requested APHIS to visually detectable evidence of specifically address the issue of specifically address what measures it contamination by spinal cord fragments. dedicated equipment for the removal will put in place to address this risk. Some establishments in Japan carry out and trim of SRMs in plants slaughtering Response: We acknowledge the suction removal of spinal cords prior to over-30-month-old cattle. The theoretical possibility that infectivity in carcass splitting, which further reduces commenter urged the USDA to include the brain of a BSE-infected bovine could the risk of contamination. Finally, it more specific requirements in its potentially be transferred from the head should be noted that the whole cuts of of one animal to the head of another regulations to prevent cross boneless beef that will be imported into contamination between SRMs and animal through the use of penetrating the United States from Japan are stunning methods. However, there is edible products. The commenter stated trimmed further, which again reduces that these should include, but not be currently no evidence that such any potential for contamination. contamination occurs during the limited to, requiring the use of separate Issue: One commenter stated that the equipment, such as knives and blades, slaughter process. Further, as discussed proposed rule is arbitrary and in the background section of our August and utilizing effective TSE disinfection capricious because APHIS has not procedures for equipment used to 2005 proposed rule, we use the term, quantified the number of infectious ‘‘whole cuts of boneless beef,’’ to refer handle SRMs. doses of BSE-infected material that can Response: The FSIS regulations to meat derived from the skeletal muscle be expected to contaminate boneless of a bovine carcass, excluding all parts contained in 9 CFR part 310 require that beef based on the scientifically known establishments that slaughter/process of the animal’s head and diaphragm. occurrence of contamination resulting These restrictions ensure that cattle develop, implement, and maintain from carcass splitting. This commenter written procedures for the removal, penetrative stunning methods not stated that APHIS provides no basis for prohibited under this rule are not a risk segregation, and disposition of SRMs. its conclusion that the increased risk These procedures address appropriately factor for whole cuts of boneless beef associated with importing meat from from Japan. potential cross-contamination of edible Japan that may be contaminated with product with SRMs. FSIS inspectors are high risk tissues is acceptable. BSE Incidence in Japan responsible for verifying the Response: We disagree with the Issue: One commenter stated that the effectiveness of the establishment’s comment. Our proposed rule and the proposed rule did not take into procedures. If FSIS personnel determine risk analysis are scientifically sound. consideration the present and future that an establishment’s procedures are Many regulatory decisions do not BSE incidence rate in Japan. This not effective in preventing cross- depend on numerical calculations or commenter stated that the rule should contamination, the inspectors will take quantifications. What is important is a require that Japan demonstrate that the appropriate action. careful, comprehensive characterization incidence of BSE is declining and that Issue: One commenter expressed and evaluation of the risk involved. no new cases are discovered in animals concern that infective tissue could Such an evaluation has been born after the implementation of the potentially contaminate additional accomplished by APHIS and is feed ban. The commenter stated that carcasses via the use of saws in carcass consistent with the methodology used sufficient time has not yet lapsed since splitting. This commenter stated that in the risk analysis for this rulemaking. Japan implemented its feed ban and this risk is too great for consumers and With respect to the commenter’s other risk mitigation measures to the U.S. cattle industry. Another specific concern, i.e., the quantification determine whether such measures have commenter requested that APHIS of infectious doses of BSE-infected effectively arrested the spread of BSE. explain the risk of introducing BSE into material that can be expected to Another commenter stated that Japanese the United States that may result from contaminate whole cuts of boneless beef is not safe based on the incidence the potential for boneless beef to be beef, there currently is no reliable of BSE in Japan. Finally, one commenter contaminated with BSE-infected tissues information to support a precise stated that Japan should be proven to be during the carcass-splitting process. quantification of a human infectious free from BSE for 7 years before the Response: As discussed in our risk dose. However, there is a wide body of United States should consider importing analysis, cross-contamination events independently verifiable scientific from Japan. represent potential pathways to evidence regarding BSE, including how Response: We concur that at present contaminate whole cuts of boneless to control and eliminate the disease. it is not possible to know with certainty beef. One potential event for such beef This rule requires mitigation measures whether any additional animals in Japan is cross-contamination of carcasses with consistent with that information. are infected with BSE. However, as Issue: One commenter expressed spinal cord during carcass splitting, as documented in our risk analysis, we the saw cuts the carcass in half. concern that the proposal did not FSIS has determined that the Japanese address the risk of acceptable methods 11 Scientific Report on Stunning Methods and meat inspection system is equivalent to of stunning (other than air-injection BSE Risks, TSE BSE Ad Hoc Group, European that of the United States, and that the stunning and pithing, which are Commission, December 13, 2001, at 41.
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 73911
analyzed the likelihood that whole cuts impact on that segment of the beef the beef imported under the conditions of boneless beef imported from Japan industry. described in the rule will pose no would: (1) Contain infectious levels of Response: Our assessment of the greater level of risk as products the BSE agent; and (2) present a risk of rule’s potential impact on U.S. produced for human consumption in exposing U.S. consumers or cattle to producers of Wagyu beef was as the United States. Matters relating to BSE, if the imported beef product was thorough as possible given the available country of origin labeling are beyond contaminated with BSE. Based on the data. In the proposed rule, we stated the scope of this rule. potential pathways, we then determined that we did not have all of the data Environmental Assessment appropriate mitigation measures to necessary for a comprehensive analysis, address the risks associated with whole and invited the public to provide Issue: One commenter stated that cuts of boneless beef imported from information that would enable us to APHIS should prepare an Japan. BSE infectivity has never been better assess the rule’s potential impact, environmental impact statement (EIS) demonstrated in the muscle tissue of including information on the number of that shows the effects of a range of cattle infected with BSE at any stage of domestic Wagyu producers and their potential risks including low risk, the disease. Therefore, the most production. None of the comments moderate risk, and high risk. significant risk management strategy for received from the public in response to Response: APHIS prepared an ensuring the safety of whole cuts of the proposed rule included that environmental assessment in order to boneless beef is the prevention of cross- information. determine whether or not there could be contamination of the beef with SRMs Issue: One commenter stated that significant environmental impacts during stunning and slaughter of the domestic producers will lose associated with allowing the animal. Mitigation measures that economically from this rule because the importation of whole cuts of boneless prevent contamination of such beef initial regulatory flexibility analysis beef from Japan based upon conditions involve procedures for the removal of noted that consumers may benefit if the specified in the rulemaking. The SRMs and carcass splitting and price of domestic Wagyu beef goes purpose of an environmental assessment prohibitions on air-injection stunning down due to the resumption of trade in is to provide sufficient information and and pithing. This rule requires such Japanese boneless beef. analysis to agency decisionmakers to mitigation measures. While our risk Response: The economic impact of allow them to determine whether a analysis considered the incidence of the rule on domestic Wagyu producers proposed agency action will have a BSE in Japan in its discussion of the OIE is unclear. This is because the extent to significant effect on the human recommendations on BSE, it did not which Wagyu beef imports from Japan environment, including public health play a central role in our evaluation of and domestically produced Kobe-style and safety. The decisionmaker reviews the risk posed by whole cuts of boneless beef compete for the same group of the environmental assessment and any beef. Our evaluation was based on the buyers is not known. It is conceivable associated public comments and then nature of the commodity and the that demand for, and prices of, domestic makes a determination on whether there potential pathways for exposure. Kobe-style beef could decline if will be adverse impacts significantly consumers switched to Wagyu beef from affecting the human environment. This Economic Analysis Japan once that product becomes determination is based on the Issue: One commenter asked what available in the U.S. market. On the consequences of associated risks and on assurances there are in the rule that other hand, it is possible that the safeguards that are designed to prevent Wagyu beef will be the only beef importation of Wagyu beef from Japan those risks from occurring and causing exported, since Japan also produces could stimulate additional interest in, significant adverse impacts on the Holstein beef, which appears to be and demand for, high-end beef in human environment. If a determination where Japan is experiencing the highest general, thereby benefitting U.S. is made that a proposed action would rate of BSE. producers of Kobe-style beef. That have a significant effect on the human Response: This rule allows the domestic Kobe-style beef will likely sell environment, the agency is obligated to importation of whole cuts of boneless at a lower average price than Wagyu prepare an EIS. If a determination is beef from all cattle breeds, including beef from Japan suggests that the two made that the action will not have a Holstein, provided that certain commodities are not perfect substitutes. significant effect on the human conditions are met. These conditions, Issue: One commenter expressed environment, a finding of no significant which include removal of SRMs and concern that the most serious economic impact is issued in connection with any prohibitions on the use of air-injection impact of the rule has not been final rule and an environmental impact stunning and pithing, will continue to addressed, that is, the possibility of an statement is unnecessary. That is the protect against the introduction of BSE American consumer contracting variant case with this rulemaking. into the United States, regardless of the CJD (vCJD), which has been linked via Issue: The same commenter stated breed of cattle from which the beef is scientific and epidemiological studies to that the proposed rule should be derived. As a practical matter, the exposure to the BSE agent. The afforded even greater scrutiny from an export of Holstein beef to the United commenter stated that this rule would environmental perspective than APHIS States is unlikely, since it is unlikely unfairly reduce demand for beef from afforded the minimal risk region rule that Japan will try to compete in the American cattle producers because because of the cumulative effects of the U.S. import market for lower-grade beef country of origin labeling has not yet two rules. from culled dairy cattle against such been enforced and consumers will not Response: The minimal-risk region established suppliers as Australia and be able to differentiate Japanese beef rule (see 70 FR 360–553, Docket No. 03– New Zealand. We expect only Wagyu from American beef. 080–3, January 4, 2005) allows the beef to be imported under the rule. Response: The possibility of an importation of live bovines less than 30 Issue: One commenter stated that the American consumer contracting vCJD months of age when imported and when impact of the rule on the domestic from infected meat imported from Japan slaughtered, sheep and goats less than Wagyu beef industry should be is extremely unlikely. FSIS, which 12 months of age when imported and thoroughly analyzed because this rule assessed the human health risks when slaughtered, and certain bovine has the potential to have the most associated with the rule, concluded that meat, meat byproducts, and meat food
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 73912 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
products, from regions recognized as the proposal for APHIS’ departure from than in Africa and some countries on minimal-risk for BSE, provided that previous policies to deny the the Arabian Peninsula. Also, in contrast certain conditions are met. The importation of commodities from BSE- to infectious diseases that can be environmental assessment for the affected regions. diagnosed relatively quickly, BSE has an minimal-risk region rule and a review of Response: With regard to trade from extremely long incubation period. the issues raised by public comment BSE-affected regions, § 94.18(a)(1) lists Therefore, our regulations for BSE are provided the basis for a finding of no regions where BSE is known to exist. designed to protect against the significant impact on the quality of the Paragraph (a)(2) of § 94.18 lists regions introduction of BSE from regions where human environment, i.e., public health that present an undue risk of BSE BSE exists or that present an undue risk and safety (see 70 FR 18252–18262, because their import requirements are of introducing BSE. Docket No. 03–080–7, April 8, 2005). less restrictive than those that would be An alternative approach to assigning The rule for Japanese beef will only acceptable for import into the United status to a region is to follow a allow whole cuts of boneless beef, States and/or because the regions have commodity-based approach in which which have not demonstrated BSE inadequate surveillance for BSE. mitigations are defined that are infectivity at any stage of the disease. Additionally, § 94.18(a)(3) lists regions appropriate to the commodity (and the The conditions contained in this rule for that present a minimal risk of region, if relevant). Existing examples of whole cuts of boneless beef, such as the introducing BSE into the United States. this include the regulations in § 94.18(b) appropriate removal of SRMs from the APHIS prohibits the importation of live that allow for the importation of gelatin carcass, address the potential risk for ruminants and certain ruminant and milk under certain conditions from BSE contamination. Thus, it is highly products and byproducts both from any region listed in § 94.18(a). Similarly, unlikely that the importation of such regions where BSE is known to exist this rule will allow the importation of beef from Japan would result in the (and that are not considered BSE whole cuts of boneless beef from Japan, introduction of BSE into the United minimal-risk regions) and from regions under the conditions contained in this States. Therefore, from an of undue risk, even though BSE has not rule, while continuing to protect against environmental perspective, an been diagnosed in a native animal in the the introduction of BSE into the United environmental assessment is the latter regions. The minimal-risk regions States. appropriate level of environmental rule provided the basis for allowing the The import request submitted to documentation. importation of various commodities APHIS by the Government of Japan lent from regions in which BSE has been itself to a commodity-based approach Proposed Regulations detected but that have been evaluated as because it was limited in scope to BSE Regulations (General Approach) minimal-risk regions for BSE. boneless beef from Japanese cattle. With respect to the issue about Japan Because Japan was not requesting the Issue: Several commenters expressed meeting the requirements for a minimal- importation of live animals, we only concern that APHIS’ import policy with risk region as defined in § 94.0, as considered the risk associated with the regard to BSE and, more specifically, mentioned previously, the situation in importation of that commodity, rather BSE-related restrictions for the Japan represents conditions consistent than the risk associated with the importation of whole cuts of boneless with a controlled-risk region as outlined importation of live animals and other beef from Japan, seems to differ from its in the OIE guidelines. We did not commodities from Japan. Because whole regionalization approach found in the evaluate Japan as a minimal-risk region. cuts of boneless beef present a low risk current BSE regulations and the general This rule is commodity-based. The of BSE, we determined that it was not policy with regard to recognition of requirements for importing that necessary to evaluate the country in regions for other foreign animal commodity-whole cuts of boneless beef- light of the minimal-risk region criteria. diseases. One commenter stated that, protect against the introduction of BSE. OIE Recommendations on BSE with most diseases, APHIS does not Other provisions in APHIS’ regulations allow importation until adequate address risks associated with other Issue: Several commenters expressed surveillance has been done to prove diseases. For example, if Japan were to concern that the proposed conditions freedom of a region from the disease. experience an outbreak of foot-and- for whole cuts of boneless beef from However, with regard to BSE, stated the mouth disease, the requirements of Japan are less restrictive than the commenter, APHIS allows imports from § 94.4, which require cooking or curing, recommended export conditions a region until a case of BSE is identified would apply. contained in Article 2.3.13.1 of the in that region. The commenter stated With respect to the approach to BSE OIE’s 2005 Terrestrial Animal Health that APHIS should define standards for differing from the approach to other Code for deboned skeletal muscle meat all levels of trade with various countries diseases, when it was newly discovered, from anywhere. These commenters concerning BSE. The commenter BSE was limited in its geographic pointed out that the proposal did not suggested that APHIS conduct or peer distribution to the United Kingdom and require that the beef be derived from review the proper risk evaluations to certain other countries in Europe. There cattle that are less than 30 months of age determine a country’s BSE risk category was no evidence to suggest the disease and that the cattle be subject to ante- based upon OIE guidance and to classify existed elsewhere in the world. and post-mortem inspections and were all countries that have not been Designating regions as affected could be not suspect or confirmed BSE cases. The evaluated as undetermined risk regions. done quickly by interim rule as cases commenters stated that these conditions Similarly, another commenter were detected. Evaluation of countries are contained in the OIE expressed concern that APHIS does not for lower risk status (e.g., minimal risk recommendations for the export of have a standard for protecting the or unaffected), usually involves a risk deboned skeletal muscle meat from any United States against the introduction analysis as well as a rulemaking. The region. One commenter requested that and spread of BSE, and potentially other BSE approach (i.e., designation as these additional restrictions be added to communicable diseases, because Japan affected) is consistent with our the rule. Finally, one commenter also does not meet the criteria for a minimal- approach to other diseases, such as noted that the proposed rule would risk region. Finally, one commenter African horsesickness, which has never allow for the importation of boneless stated that no reason was provided in been shown to exist in countries other beef from cattle over 30 months of age,
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 73913
which is not allowed from minimal-risk Japanese authorities had conducted an the risks associated with whole cuts of regions. appropriate risk assessment to identify boneless beef from Japan. We did not Response: We appreciate the the historical and existing BSE risk attempt to classify Japan as a minimal- commenter’s question regarding factors; the country’s surveillance risk region, nor did we include live consistency with the current OIE program was consistent with Type A animals or other meat and meat recommendations on BSE. As discussed surveillance as defined by OIE in products. Rather, we limited our in the proposed rule and the risk Appendix 3.8.4 of the Code; and the analysis to the BSE risk associated with analysis, the conditions for the BSE conditions for controlled-risk whole cuts of boneless beef. Scientific importation of whole cuts of boneless regions relative to BSE cases, a feed ban, data show that BSE infectivity in the beef from Japan are consistent with the importation of meat-and-bone meal or muscle tissue of cattle examined in recommendations for the export of meat greaves, epidemiological tracing, and either the mouse bioassay or the cattle and meat products from controlled-risk disposition of affected and contact assays have not been demonstrated to regions, which are contained in Article animals were met. date, regardless of the age of the animal. 2.3.13.10 of the OIE’s 2005 Terrestrial It is important to note that, while we For these reasons, we consider whole Animal Health Code, not those considered the OIE recommendations cuts of boneless beef to be inherently recommendations for the export of on BSE in the development of the risk low-risk for BSE and determined that it deboned beef from any region. Unlike analysis, we based our mitigation can be safely traded provided that the OIE recommendations for the free measures on a careful analysis of the measures are taken to prevent cross- trade of deboned beef from any region, risk posed by the importation of whole contamination during processing. Such the OIE recommendations for cuts of boneless beef from Japan. BSE measures are contained in this rule and commodities exported from controlled- infectivity has never been demonstrated an age restriction is not necessary. risk regions do not contain a 30-month- in the muscle tissue of cattle infected age restriction. with BSE at any stage of the disease. County of Origin Labeling The OIE recommendations, as noted Therefore, the most significant risk Issue: A number of commenters by the commenter, include conditions management strategy for ensuring the recommended that country of origin that the commodity be derived from safety of whole cuts of boneless beef is labeling be required in the United States cattle that were subject to ante- and the prevention of cross-contamination of so that beef imported from Japan would post-mortem inspections and were not the beef with SRMs during stunning and be so labeled. Some commenters suspect or confirmed BSE cases. These slaughter of the animal. Mitigation suggested APHIS postpone requirements are consistent with FSIS measures that prevent contamination of implementation of this rule until such requirements under the Federal Meat such beef involve procedures for the labeling is in place in this country. Inspection Act (FMIA). In 9 CFR parts removal of SRMs and carcass splitting Several commenters raised concerns 309 and 310, for example, FSIS requires and prohibitions on air-injection about how the United States would be that all livestock offered for slaughter stunning and pithing. This rule requires able to verify the requirement that the must receive (and pass) ante- and post- such mitigation measures. beef be derived from cattle born, raised, mortem inspections. As part of FSIS’ Age Restriction and slaughtered in Japan without a equivalence determination process, country of origin labeling requirement. Issue: One commenter expressed countries that export commodities to the Finally, one commenter expressed concern that the proposal did not United States must have meat concern that, because the proposal did contain an age limitation on whole cuts inspection systems that provide the not contain a country-of-origin of boneless beef from Japan and stated same level of protection as that requirement, any stigma associated with that there should be such a restriction, provided by systems in the United imported Japanese beef would be States. Because the OIE especially since Japan’s control transferred to the entire U.S. beef supply recommendations noted by the measures for BSE have not been in place if the BSE or vCJD incidence in Japan commenter are already established for a long period of time. Other increases. requirements under FSIS’ regulations, commenters stated that the lack of a 30- Response: Under the Farm Security and are, moreover, requirements that month age restriction on cattle from and Rural Investment Act of 2002 and pertain to all livestock regardless of the which the beef is derived for export the 2002 Supplemental Appropriations BSE risk status of a region, it was not from Japan is inconsistent with APHIS’ Act, USDA is required to implement a necessary to include those same rulemakings, specifically, the age restriction for cattle and cattle products mandatory country of origin labeling requirements in our regulations. 12 Issue: One commenter asked for contained in the minimal-risk rule. program (COOL). USDA’s Agricultural clarification on how APHIS determined Some of these commenters stated that Marketing Service (AMS) published a that Japan could be considered as APHIS provided no justification for proposed rule on the COOL program on having controlled-risk status under the allowing imports of beef from animals October 30, 2003 (68 FR 61944–61985, OIE guidelines. over 30 months of age from Japan or any Docket No. LS–03–04). Under the Response: APHIS personnel requested other country where BSE is known to proposal, retailers would be required to written documentation on the BSE exist. notify their customers of the country of status of and conditions in Japan and Response: Prior to developing the origin of all beef (including veal), lamb, conducted a site visit to verify the proposed rule for this action, we pork, fish, and selected other perishable information and gather additional data. analyzed the likelihood that boneless commodities being marketed in their We then evaluated the country-specific beef imported from Japan would: (1) stores. In addition, the AMS proposal information in the context of the OIE Contain infectious levels of the BSE identified criteria that these recommendations on BSE and found agent; and (2) present a risk of exposing commodities must meet to be that the BSE conditions in Japan are U.S. consumers or cattle to BSE, if the considered of U.S. origin. In November consistent with those conditions for a imported beef was contaminated with 12 AMS USDA; Country of Origin Labeling— controlled-risk region contained in BSE. Based on the potential pathways, Current Status of Country of Origin Labeling. Article 2.3.13.4 of the 2005 Terrestrial APHIS then determined what mitigation Available at http://www.ams.usda.gov/cool/ Animal Health Code. For example, measures should be imposed to address status.htm.
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 73914 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
2005, President Bush signed Public Law for this disease—the time between of boneless beef from Japan. These 109–197, which includes a provision to initial infection and the manifestation of commenters stated that the export extend a previous delay of clinical signs—is generally very long, on conditions for beef between the two implementation of mandatory COOL for the average of about 5 years. nations should be the same. all covered commodities except wild Accordingly, we know there is a long In addition, one commenter noted and farm-raised fish and shellfish until period during which, using the current that the proposed rule did not address September 2008. The COOL program, methodology, testing an infected animal potential impacts the rule could have on when implemented, will address the that has not demonstrated clinical signs the United States’ ability to restore the labeling concerns raised by commenters of the disease or is not at the end of the export markets that remain closed to the with regard to APHIS’ proposed rule. incubation period would, incorrectly, U.S. cattle and beef industries. This APHIS does not consider it necessary to produce negative results. If, however, commenter asked if APHIS has delay implementation of this rule until the infected animal is already exhibiting consulted with South Korea and other those labeling provisions are some type of clinical signs that could be importing nations that continue to ban implemented. In its October 30, 2004, consistent with BSE, then the test is not U.S. beef and cattle to determine proposal, AMS noted, in discussing likely to produce false negative results. whether the rule would enhance or Section 10816 of Public Law 107–171 (7 BSE infectivity has never been impede the reopening of these markets. U.S.C. 1638–1638d) regarding COOL demonstrated in the muscle tissue of This commenter expressed concern that that the ‘‘intent of the law is to provide cattle experimentally or naturally the rule would be viewed by other consumers with additional information infected with BSE at any stage of the nations as exposing the United States to on which to base their purchasing disease. Therefore, if BSE is present in an unacceptable risk. This commenter decisions. It is not a food safety or a country’s cattle population, the most requested that APHIS provide the public animal health measure. COOL is a retail significant risk mitigation measure for with a list of nations that currently labeling program and as such does not ensuring the safety of whole cuts of allow the importation of Japanese beef address food safety or animal health boneless beef is the prevention of cross- and stated that APHIS should not concerns.’’ contamination of the beef with SRMs proceed with the rule until and unless With respect to the concern expressed during stunning and slaughter of the a firm commitment is obtained from all about verifying that the beef is derived animal. This rule includes such risk countries that formerly accepted U.S. from cattle born, raised, and slaughtered mitigation measures. For example, this beef exports that they will-in a timely in Japan, this rule will require that an rule requires the removal of SRMs and fashion-reopen their borders to U.S. authorized veterinary official of the prohibits the use of air-injection beef, even if the U.S. resumes imports Government of Japan certify on an stunning devices and pithing processes of Japanese beef. original certificate that the conditions on cattle from which the beef is derived. Response: APHIS does not have contained in this rule have been met. For these reasons, we do not consider authority to restrict trade based on its potential market access effects. Under BSE Testing the testing of bovines at slaughter to be scientifically justified or meaningful in its statutory authority, APHIS may Issue: One commenter requested that, the context of either human or animal prohibit or restrict the importation or before proceeding with this rule, APHIS health. Making this a criterion for the entry of any animal or article when the explain why the rule does not require importation of beef from Japan would agency determines it is necessary to BSE testing of cattle slaughtered in not contribute to human or animal prevent the introduction or Japan in the rule. This commenter stated health protection. A statistically and dissemination of a pest or disease of that the use of rapid tests could assist epidemiologically valid surveillance livestock. However, APHIS is actively in eliminating from the food chain plan is crucial to monitoring the success negotiating with trading partners to clinically healthy cattle with PrPsc of risk mitigation measures, such as a reestablish our export markets. (abnormal prion protein) in the central feed ban, but surveillance is not a nervous system. The commenter stated Trade With Other BSE-Affected Regions mitigation measure. that such a mandatory testing Issue: One commenter suggested that requirement must be included in any Miscellaneous Comments APHIS make explicit in its final rule rule to resume imports from BSE- that, based on the logic and reference to affected countries or else the United Harmonized Two-Way Trade the new OIE guidelines in the proposal, States would have no means of ensuring Issue: Many commenters requested the United States is now ready to accept the continuation of current mitigation that APHIS not finalize the proposed safe products from countries that have measures currently practiced in rule until two-way, harmonized trade experienced BSE but have stringent risk countries like Japan. can be resumed between the United mitigation measures in place, following Response: We understand the interest States and Japan. These commenters separate risk analyses to be carried out expressed by some commenters in expressed concern that Japan has not by APHIS. This commenter stated that testing certain cattle for slaughter. provided adequate assurances that U.S. it expects APHIS is now prepared to use However, no live animal tests exist for producers will be allowed to export beef the same approach when evaluating a BSE and the currently available to Japan. Further, several of these specific request to authorize the import postmortem tests, although useful for commenters were concerned that U.S. of whole cuts of boneless beef from the disease surveillance (i.e., in determining producers would be subject to more European Union, in particular. In the rate of disease in the cattle stringent export conditions than those contrast, another commenter expressed population), are not appropriate as food faced by exporters of boneless beef from concern that the rule would establish a safety indicators. Studies have Japan. For example, some commenters precedent for allowing the importation demonstrated that the earliest point at expressed concern that U.S. producers of commodities from other BSE-affected which current testing methods can will only be allowed to export beef to regions that pose a greater risk of detect a positive case of BSE is 2 to 3 Japan if the beef is derived from cattle introducing BSE into the United States months before the animal begins to less than 20 months of age. No such age than does boneless beef from Japan. demonstrate clinical signs. Research restriction was contained in the Response: As mentioned above, under also indicates that the incubation period proposed rule regarding the importation its statutory authority, APHIS may
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 73915
prohibit or restrict the importation or Commission. These assessments were estimated that the incidence of deaths entry of any animal or article when the initially begun in the late 1990’s, under from vCJD reached a peak in mid-2000, agency determines it is necessary to the auspices of the European with 28 deaths that year. For prevent the introduction or Commission’s Scientific Steering comparison, the Centers for Disease dissemination of a pest or disease of Committee (SSC). Since the functions of Control (CDC) estimates that foodborne livestock. When we receive a request the former SSC have now been taken up diseases cause approximately 76 million from a country to allow the importation by the European Food Safety Authority illnesses, 350,000 hospitalizations, and of commodities, we carefully and (EFSA), the GBR assessments are done 5,000 deaths in the United States alone thoroughly consider the risk associated under the EFSA. This assessment each year. Of these, known pathogens with the commodity and the country. In process is not a process supervised by account for an estimated 14 million addition, APHIS is currently the USDA or APHIS, and we cannot illnesses, 60,000 hospitalizations, and considering developing a change any assessments previously 1,800 deaths annually. These estimates comprehensive set of regulations done by the European Commission. It is are not attributed to specific food consistent with the OIE not clear what the commenter means by products implicated in each outbreak, recommendations on BSE. requesting that the United States adhere but rather to the specific pathogens. The to the BSE GBRs, as these are Importation of Commodities From variation in number of reported vCJD documents created internally by the Minimal-Risk Regions and/or Canada cases cited in our minimal-risk regions European Union for its purposes. APHIS final rule and the proposed rule for this Issue: One commenter stated that the conducts its own risk assessments as rulemaking and noted by the commenter risk analysis and the OIE guidelines necessary for specific rulemaking is attributable to an update in figures used in support of the proposed rule efforts, incorporating all available obtained by APHIS and not a spike in would also allow the importation of information. Such information may refer the number of vCJD cases reported cattle over 30 months of age and beef to an assessment conducted by the worldwide. from those cattle from any minimal-risk country requesting a regulatory change, Issue: Two commenters raised region. This commenter stated that, as a but it generally would not depend on result, there is no justified reason to questions regarding the origin of CJD in third party assessments. humans. One commenter noted that allow the importation of beef from Japan The United States considers all there are different strains of TSEs being to enter the United States and not animal TSEs in developing regulations discovered in ruminants, and that new provide the same treatment for related to BSE. However, it should be Canadian cattle and beef. The noted that the various animal TSEs are atypical strains of TSE in cattle look commenter stated that Canada and other generally caused by different agents similar to sporadic CJD in humans. minimal-risk regions should be afforded (i.e., scrapie in sheep is different from Another commenter asked if APHIS has treatment consistent with Japan and that chronic wasting disease (CWD) in considered whether sporadic CJD in Canadian cattle over 30 months of age cervids, which is different from BSE in humans might be caused by atypical and beef derived from those cattle cattle) with different routes of cases of TSEs that have been found in should be allowed to be imported by transmission and unique characteristics. animals. This commenter further APHIS. Sometimes these processes may be questioned whether blood and other Response: APHIS recognizes that the similar, but one cannot automatically tissues may carry BSE infectivity in OIE guidelines address the importation assume, for example, that if a country cattle infected with atypical strains of of live cattle over 30 months of age and has identified scrapie in sheep that they the BSE agent or other TSE agents. beef from such cattle from regions of are therefore at significant risk for other Response: Sporadic CJD is the most different status. However, the scope of animal TSEs such as CWD or BSE. common form of CJD. It has been found this rulemaking is limited to whole cuts in every country in the world where it of boneless beef derived from cattle CJD and Domestic Compliance With has been looked for including countries born, raised, and slaughtered in Japan. FSIS’ BSE-Related Regulations that are generally considered by the Therefore, the issue of imports of live Issue: One commenter noted that the international scientific community to be cattle over 30 months of age and beef number of probable and confirmed cases free of BSE and other TSEs (for example, from those cattle from minimal-risk of vCJD cited in the proposed rule was Australia and New Zealand). In general, regions, including Canada, falls outside greater than the number of cases cited it affects about one person per million. the scope of this rulemaking. in the minimal-risk regions final rule No association between sporadic CJD Nevertheless, as noted in the minimal- and raised questions regarding the and consumption of animal products in risk region rule, APHIS is committed to significance of this increase in cases general and/or infected or contaminated dealing with the issue of imports of live over a several month period. This bovine products has ever been bovines 30 months of age and over from commenter requested that APHIS documented. It is currently believed Canada in further rulemaking. provide a comparison between the that sporadic CJD arises through the Issue: One commenter stated that the number of deaths attributable to the spontaneous conversion of PrPC (normal BSE minimal-risk regions rule should be consumption of beef contaminated with cellular prion protein) to PrPSC in an withdrawn, and that the U.S. BSE and the number of deaths individual.13 In contrast, atypical cases geographical BSE risk assessment (GBR) attributable to the consumption of beef of BSE in cattle are rare and have been should immediately be raised to BSE contaminated with other food-borne reported in only few countries that GBR IV. This commenter further contaminates such as Escherichia coli experience BSE, such as Italy, Belgium, requested that the United States adhere (E. coli) in order to place this increase Japan, and France. It has been to the BSE GBR and that USDA work to in vCJD cases in context for the beef and speculated that the spontaneous or enhance those assessments to include cattle industries. sporadic form of BSE could exist in all animal TSEs. Response: To date, there have been a cattle, as well as humans.14 Response: Consideration of changes to total of approximately 170 cases of vCJD the minimal-risk rule are outside the reported worldwide since 1996. Most of 13 Stahl, N. and Prusiner, S.B.; (1991) FASEB–J. scope of this rulemaking. The BSE GBRs these cases have been in the United 5: 2799–807. are conducted by the European Kingdom. In the United Kingdom, it is 14 Biacabe; 2004 EMBO reports, Vol. 5, No. 1.
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 73916 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
APHIS agrees with the commenter analyses conducted using the best what risk mitigation measures have that reports indicate that some of the scientific information available. These been imposed. Neither USDA nor the atypical BSE cases, in particular the are made available for public comment OIE have strictly defined an ‘‘effectively bovine amyloidotic spongiform in association with regulations enforced ban.’’ The OIE has indicated encephalopathy (BASE), and sporadic implementing these controls. The BSE that it may consider developing such a CJD have similar PrPSC patterns. APHIS surveillance program in the United definition, but this process may take evaluated the findings in the context of States was developed by technical some time. USDA considers effective risk of exposure to cattle and humans. experts to help determine whether BSE enforcement of the feed ban as an Currently, the relevance of the atypical is present in the U.S. cattle population, important measure to control BSE in a cases is unknown, but at this time there and if so, to help estimate at what level. specific region. In previous rulemaking, is no indication that any control The USDA’s OIG is conducting an we noted that determining whether a measures—such as feed bans or SRM ongoing audit of the BSE surveillance feed ban had been effectively enforced requirements—should be modified program. involved a review by APHIS of a based on these cases. Additionally, number of interrelated factors, Other Comments although atypical cases of BSE and including: The existence of a program to sporadic CJD share similarities at this Issue: One commenter stated that gather compliance information and point, there is no evidence that they are there was no background or supporting statistics; whether appropriate linked. information provided along with the regulations are in place in the region; Issue: One commenter expressed proposed rule. the adequacy of enforcement activities concern over the number of citations Response: The background (e.g., whether sufficient resources and issued for various SRM violations information in support of the proposal commitment are dedicated to enforcing during the June 2004 enhanced BSE was provided in our risk analysis and compliance); a high level of facility surveillance program in the United other supporting analyses that were inspections and compliance; States. This commenter questioned made available to the public concurrent accountability of both inspectors and whether these incidents of with the proposal. These documents inspected facilities; and adequate noncompliance may have led to remain available at http:// recordkeeping. infective materials entering the human www.regulations.gov. Therefore, for the reasons given in the or animal food chains. This commenter Issue: Several commenters raised proposed rule and in this document, we cited the case of BSE detected in a 12- issues that fall outside the scope of this are adopting the proposed rule as a final year-old cow in Texas as evidence that rulemaking, including the impact of rule, without change. infective materials may have entered the eating meat on the health of American food chain. The commenter suggested consumers, the relative quality of beef Effective Date that noncompliance reports should be produced in Japan and the United This is a substantive rule that relieves made more easily available to the public States, and the necessity and market restrictions and, pursuant to the in the future. effects of importing beef from Japan provisions of 5 U.S.C. 553, may be made Response: FSIS inspectors are when the United States produces beef effective less than 30 days after responsible for verifying the domestically. publication in the Federal Register. The effectiveness of an establishment’s Response: APHIS does not have Administrator of the Animal and Plant procedures. If FSIS personnel determine authority to restrict trade based on these Health Inspection Service has that an establishment’s procedures are considerations. Under its statutory determined that immediate ineffective in preventing cross- authority, APHIS may prohibit or implementation of this rule is warranted contamination, the inspectors will take restrict the importation or entry of any to relieve certain restrictions on the appropriate action. We note that none of animal or article when the Secretary importation of whole cuts of boneless the meat from the 12-year-old BSE- determines it is necessary to prevent the beef from Japan that are no longer infected cow in Texas mentioned by the introduction or dissemination of a pest necessary. commenter entered the human food or or disease of livestock. While the United animal feed chains. States does not have direct control over Executive Order 12866 and Regulatory Issue: One commenter stated that the the quality of products produced in Flexibility Act domestic BSE mitigation measures, other countries, FSIS requires that the This rule has been reviewed under including the U.S. ruminant feed ban, food it regulates be produced under Executive Order 12866. The rule has border controls, and BSE surveillance conditions that will provide at least an been determined to be significant for the program, must be strengthened in order equivalent level of safety as that purposes of Executive Order 12866 and, to protect public health. The commenter produced in the United States. therefore, has been reviewed by the further requested that USDA’s Office of Therefore, we are not making any Office of Management and Budget. the Inspector General (OIG) hold an changes to the rule based on this Under the Animal Health Protection inquiry into the effectiveness of the BSE comment. Act of 2002 (7 U.S.C. 8301 et seq.), the surveillance program. Issue: One commenter stated that it Secretary of Agriculture is authorized to Response: APHIS considers the would be helpful if the OIE or USDA promulgate regulations that are measures in place to be adequate and would define ‘‘controlled BSE-risk necessary to prevent the introduction or based on the best available science. country’’ and ‘‘effectively enforced dissemination of any pest or disease of First, available evidence suggests that ban.’’ livestock into the United States. the feed ban which FDA implements is Response: Article 2.3.13.4 of the OIE’s This final rule will amend the a critical safeguard against the spread of 2005 Terrestrial Animal Health Code regulations governing the importation of BSE in the United States. FDA has lists recommended conditions that a meat and other edible animal products recently issued a proposed rule to country, zone, or compartment should by allowing, under certain conditions, further strengthen the feed ban (70 FR meet to be considered as controlled BSE the importation of whole cuts of 58570–58601, October 6, 2005). risk. These conditions include a boneless beef derived from cattle born, Domestic BSE mitigation measures for consideration of whether a country has raised, and slaughtered in Japan. This border controls are based on risk identified indigenous cases of BSE and action is taken in response to a request
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 73917
from the Government of Japan and after imports. This impact would be further exceeded 27.0 metric tons in any one conducting an analysis of the risk that reduced if Japan’s share of the U.S. total year. indicates that such beef can be imported beef supply (domestic production plus Finally, Japan’s boneless beef exports from Japan under the conditions imports minus exports, disregarding to countries other than the United States described in this final rule. These carryover stocks) were considered. have also been minor. Over the 4-year conditions will continue to protect Based on the unit price of beef period 1997–2000, Japan’s exports of against the introduction of BSE into the imported into the United States from boneless beef to the world—both fresh/ United States. Japan prior to the 2001 ban on the chilled and frozen—averaged only 81 In accordance with 5 U.S.C. 604, we importation of ruminants and most metric tons per year, and the largest have performed a final regulatory ruminant products from Japan, it is export volume in any one of those years flexibility analysis, which is assumed that all of the boneless beef was 95 metric tons (in 1999). For fresh/ summarized below, regarding the imported from Japan prior to the ban chilled boneless beef alone, the 4-year impact of this rule on small entities.15 was Wagyu beef. (The term ‘‘Wagyu,’’ annual average was 37 metric tons, with This analysis also serves as our cost- which literally translates to Japanese no one year exceeding 47 metric tons.19 benefit analysis under Executive Order cattle, refers to purebred Japanese Black Because we expect that Japan will 12866. or Japanese Brown breeds of cattle. export only Wagyu beef under this final We expect that this rule will have Wagyu beef is a high-priced specialty rule, this action has the potential to little or no economic impact on the meat widely acclaimed for its flavor and affect farmers and ranchers in the majority of consumers and beef tenderness. ‘‘Kobe beef’’ refers to Wagyu United States who raise Wagyu and producers in the United States because beef that is produced in the Kobe area Wagyu hybrid cattle for the high-end the volume of beef imported from Japan of Japan.) Japan also produces Holstein domestic beef market. However, the is likely to be small and have only a breed dairy cattle, but it is unlikely that impact, if any, on these so-called ‘‘Kobe- minor impact on the overall domestic Japan would try to compete in the U.S. style’’ beef producers is unclear, beef market. import market for lower-grade beef from without an approximation of the In 2001, APHIS placed a ban on the culled dairy cattle. Accordingly, we quantity of Kobe-style beef sold in the importation of ruminants and most expect only Wagyu beef to be imported United States and information on the ruminant products from Japan following under the final rule. extent to which the two products would the confirmation of one case of BSE in We expect that Japan will continue to directly compete. The number of these a native-born animal in that country. be a minor supplier of beef to the United producers is unknown, but it is believed Prior to that ban, U.S. imports of States after this final rule becomes to be very small. boneless beef from Japan were negligible effective. We estimate that the volume when compared to total imports of that of imports is likely to range between Cost-Benefit Analysis commodity. Over a 4-year period, 1997– about 8 metric tons and 15 metric tons Given the high price and small 2000, for example, the volume of U.S. per year, a quantity aligned with import quantity of Wagyu beef expected to be imports of boneless beef from Japan— levels in the years immediately prior to imported, this final rule is likely to have reported to be entirely fresh/chilled, as the ban. There are three reasons for the little impact for most U.S. consumers. A opposed to frozen—averaged a little less small import volume. First, the demand relatively small segment of beef than 9 metric tons per year. This for Japanese Wagyu beef in the United consumers will benefit because they amount was less than 0.005 percent of States will likely be small, because the would be allowed, once again, to buy average annual U.S. imports of fresh/ beef is expensive. In October 2004, for this product in the United States. chilled boneless beef worldwide for the example, the average actual selling price Importers, brokers and others in the same period (202,540 metric tons).16 of Wagyu sirloin in Japanese United States who will participate in The average annual value of U.S. supermarkets was just under $50 per the importation of Wagyu beef from imports of boneless beef from Japan over pound.17 The price of Japanese Wagyu Japan also stand to benefit, due to the this 4-year period was $808,000, less beef would be higher in the United increased business activity. than 0.2 percent of the 4-year average States because of transportation and U.S. beef producers, in general, will annual value of U.S. imports of fresh/ other costs associated with the not be affected by this final rule; chilled boneless beef from all regions importation of the beef from Japan. demand is expected to remain low ($600 million). Including frozen Second, Japanese agricultural officials reflecting pre-ban consumption boneless beef in the comparison over have indicated to APHIS staff that they patterns, with a minor impact on less the same 4-year period diminishes expect the volume of Wagyu exports to expensive domestically produced beef. Japan’s annual average percentage share the United States to be approximately Any producer impact of the rule will all the more, to about 0.001 percent of 10 metric tons per year. This quantity the quantity and about 0.05 percent of likely fall upon producers of Kobe-style aligns with historic import levels, as the value of all U.S. boneless beef beef, and then only to the extent that the described above, and would be well commodities will be competing for the below the annual tariff rate quota for 15 A copy of the full economic analysis is same niche market. 18 available for review on the Regulations.gov Web Japan of 200 metric tons. Over the 10- In general, trade of a commodity site. Go to http://www.regulations.gov, click on the year period from 1991 to 2000, U.S. increases social welfare. To the extent ‘‘Advanced Search’’ tab and select ‘‘Docket Search.’’ imports of boneless beef—both fresh/ that consumer choice is broadened and In the Docket ID field, enter APHIS–2005–0073 then click on ‘‘Submit.’’ The economic analysis will chilled and frozen—from Japan never the increased supply of the imported appear near the end of the resulting list of commodity leads to a price decline, documents. 17 Source: ‘‘Monthly Statistics,’’ January 2005, gains in consumer surplus will 16 Trade statistics, unless otherwise indicated, are Agricultural & Livestock Industries Corporation. outweigh losses in domestic producer taken from the World Trade Atlas or the Global The selling price was calculated using an exchange 20 Trade Atlas (Global Trade Information Services), rate of 105 yen per U.S. dollar, and it is the price surplus. Although the rule’s impact on which report data from the Department of for Wagyu sirloin from all regions in Japan, Commerce, U.S. Bureau of the Census. The including Kobe. 19 Foreign Agricultural Service, USDA. Harmonized Tariff Schedule (HTS) 6-digit code for 18 Harmonized Tariff Schedule of the United 20 Consumer surplus is the difference between the fresh/chilled boneless beef cuts is 020130; the HTS States (2005), Chapter 2, Meat and Edible Meat amount a consumer is willing to pay for a good and code for frozen boneless beef is 020230. Offal. Continued
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 73918 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
the relatively small number of U.S. significant impact on the quality of the PART 94—RINDERPEST, FOOT-AND- producers of Kobe-style beef is human environment. Based on the MOUTH DISEASE, FOWL PEST (FOWL uncertain, it is expected to provide finding of no significant impact, the PLAGUE), EXOTIC NEWCASTLE benefits to consumers (domestic Administrator of the Animal and Plant DISEASE, AFRICAN SWINE FEVER, importers, wholesalers, retailers, as well Health Inspection Service has CLASSICAL SWINE FEVER, AND as final consumers) that will exceed any determined that an environmental BOVINE SPONGIFORM potential losses to domestic producers. impact statement need not be prepared. ENCEPHALOPATHY: PROHIBITED The net welfare effect for the United AND RESTRICTED IMPORTATIONS States of reestablished Wagyu beef The environmental assessment and imports from Japan will be positive. finding of no significant impact were I 1. The authority citation for part 94 prepared in accordance with: (1) The continues to read as follows: Effects on Small Entities National Environmental Policy Act of We do not expect that this final rule 1969 (NEPA), as amended (42 U.S.C. Authority: 7 U.S.C. 450, 7701–7772, 7781– will have significant economic impact 7786, and 8301–8317; 21 U.S.C. 136 and 4321 et seq.), (2) regulations of the 136a; 31 U.S.C. 9701; 7 CFR 2.22, 2.80, and on a substantial number of small Council on Environmental Quality for 371.4. entities. As discussed above, this rule implementing the procedural provisions has the potential to primarily affect of NEPA (40 CFR parts 1500–1508), (3) I 2. In § 94.18, paragraph (b) is revised farmers and ranchers in the United USDA regulations implementing NEPA to read as follows: States who produce Kobe-style beef. The (7 CFR part 1b), and (4) APHIS’ NEPA § 94.18 Restrictions on importation of number of these producers is unknown, Implementing Procedures (7 CFR part meat and edible products from ruminants but it is believed to be very small. The 372). due to bovine spongiform encephalopathy. American Wagyu Association, a Wagyu breeder group, lists approximately 75 The environmental assessment and * * * * * members in the United States.21 finding of no significant impact may be (b) Except as provided in paragraph The size distribution of Kobe-style viewed on the Internet at http:// (d) of this section or in §§ 94.19 or beef producers in the United States is www.regulations.gov. Go to http:// 94.27, the importation of meat, meat also unknown, but it is reasonable to www.regulations.gov, click on the products, and edible products other assume that most are small, under the ‘‘Advanced Search’’ tab and select than meat (except for gelatin as U.S. Small Business Administration’s ‘‘Docket Search.’’ In the Docket ID field, provided in paragraph (c) of this (SBA) standards. This assumption is enter APHIS–2005–0073 then click on section, milk, and milk products) from based on composite data for all beef ‘‘Submit.’’ The environmental ruminants that have been in any of the producers in the United States. In 2002, assessment and finding of no significant regions listed in paragraph (a) of this there were 664,431 U.S. farms in North impact will appear near the end of the section is prohibited. American Industry Classification resulting list of documents. Copies of * * * * * System (NAICS) 112111, a classification the environmental assessment and I 3. A new § 94.27 is added to read as comprised of establishments primarily finding of no significant impact are also engaged in raising cattle. Of the 664,431 follows: available for public inspection at USDA, farms, 659,009 (or 99 percent) had room 1141, South Building, 14th Street § 94.27 Importation of whole cuts of annual receipts that year of less than boneless beef from Japan. $500,000.22 The SBA’s small entity and Independence Avenue SW., threshold for farms in NAICS 112111 is Washington, DC, between 8 a.m. and Notwithstanding any other provisions annual receipts of $750,000. 4:30 p.m., Monday through Friday, of this part, whole cuts of boneless beef except holidays. Persons wishing to derived from cattle that were born, Executive Order 12988 inspect copies are requested to call raised, and slaughtered in Japan may be This final rule has been reviewed ahead on (202) 690–2817 to facilitate imported into the United States under under Executive Order 12988, Civil entry into the reading room. In addition, the following conditions: Justice Reform. This rule: (1) Preempts copies may be obtained by writing to the (a) The beef is prepared in an all State and local laws and regulations individual listed under FOR FURTHER establishment that is eligible to have its that are inconsistent with this rule; (2) INFORMATION CONTACT. products imported into the United has no retroactive effect; and (3) does Paperwork Reduction Act States under the Federal Meat not require administrative proceedings Inspection Act (21 U.S.C. 601 et seq.) before parties may file suit in court This final rule contains no new and the regulations in 9 CFR 327.2 and challenging this rule. information collection or recordkeeping the beef meets all other applicable National Environmental Policy Act requirements under the Paperwork requirements of the Federal Meat Inspection Act and regulations An environmental assessment and Reduction Act of 1995 (44 U.S.C. 3501 thereunder (9 CFR chapter III), finding of no significant impact have et seq.). including the requirements for removal been prepared for this final rule. The List of Subjects in 9 CFR Part 94 of SRMs and the prohibition on the use environmental assessment provides a of air-injection stunning devices prior to basis for the conclusion that the Animal diseases, Imports, Livestock, slaughter on cattle from which the beef importation of whole cuts of boneless Meat and meat products, Milk, Poultry is derived. beef from Japan under the conditions and poultry products, Reporting and specified in this rule will not have a recordkeeping requirements. (b) The beef is derived from cattle that were not subjected to a pithing process the amount actually paid. Producer surplus is the I Accordingly, we are amending 9 CFR at slaughter. amount a seller is paid for the good minus the part 94 as follows: seller’s cost. (c) An authorized veterinary official of 21 Source: American Wagyu Association Web site. the Government of Japan certifies on an 22 2002 Census of Agriculture, National original certificate that the above Agricultural Statistics Service. conditions have been met.
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 73919
Done in Washington, DC, this 12th day of and follow the instructions for sending The service bulletin refers to Rolls- December 2005. your comments electronically. Royce Service Bulletin RB.211–78– Charles D. Lambert, • Mail: Docket Management Facility; C899, Revision 3, dated May 7, 2004, as Acting Under Secretary for Marketing and U.S. Department of Transportation, 400 an additional source of service Regulatory Programs. Seventh Street, SW., Nassif Building, information for modifying the cowl [FR Doc. 05–24057 Filed 12–12–05; 11:30 room PL–401, Washington, DC 20590. assemblies of the left- and right-hand am] • Fax: (202) 493–2251. • thrust reversers. The modification BILLING CODE 3410–34–P Hand Delivery: Room PL–401 on includes related investigative actions, the plaza level of the Nassif Building, and repair if necessary. The related 400 Seventh Street, SW., Washington, investigative actions include certain DEPARTMENT OF TRANSPORTATION DC, between 9 a.m. and 5 p.m., Monday inspections for discrepancies of the through Friday, except Federal holidays. bores, bushings, plug holes, and cavity Contact Airbus, 1 Rond Point Maurice Federal Aviation Administration webs of the thrust reversers. Bellonte, 31707 Blagnac Cedex, France, 14 CFR Part 39 for the service information identified in FAA’s Determination and Requirements this AD. of This AD [Docket No. FAA–2005–23252; Directorate FOR FURTHER INFORMATION CONTACT: Tim Identifier 2004–NM–146–AD; Amendment These airplane models are 39–14414; AD 2005–25–21] Backman, Aerospace Engineer, International Branch, ANM–116, FAA, manufactured in France and are type RIN 2120–AA64 Transport Airplane Directorate, 1601 certificated for operation in the United Lind Avenue, SW., Renton, Washington States under the provisions of section Airworthiness Directives; Airbus Model 98055–4056; telephone (425) 227–2797; 21.29 of the Federal Aviation A330–243, –341, –342, and –343 fax (425) 227–1149. Regulations (14 CFR 21.29) and the Airplanes Equipped with Rolls-Royce SUPPLEMENTARY INFORMATION: applicable bilateral airworthiness RB211 TRENT 700 Engines agreement. Pursuant to this bilateral Discussion airworthiness agreement, the DGAC has AGENCY: Federal Aviation ´ ´ Administration (FAA), Department of The Direction Generale de l’Aviation kept the FAA informed of the situation Transportation (DOT). Civile (DGAC), which is the described above. We have examined the airworthiness authority for France, DGAC’s findings, evaluated all pertinent ACTION: Final rule; request for notified us that an unsafe condition may information, and determined that we comments. exist on certain Airbus Model A330– need to issue an AD for products of this SUMMARY: The FAA is adopting a new 243, –341, –342, and –343 airplanes type design that are certificated for airworthiness directive (AD) for certain equipped with Rolls-Royce RB211 operation in the United States. Airbus Model A330–243, –341, –342, TRENT 700 engines. The DGAC advises Therefore, we are issuing this AD to and –343 airplanes equipped with Rolls- that a review of certification tests of the prevent fatigue cracking of the hinges Royce RB211 TRENT 700 engines. This thrust reverser revealed that certain integrated into the 12 o’clock beam of AD requires modifying the cowl structural components within the C- the thrust reversers, which could result duct need strengthening to meet high assemblies of the left- and right-hand in separation of a thrust reverser from fatigue loads and maintain structural thrust reversers. This AD results from a the airplane, and consequent reduced integrity. Unexpected high loads were review of certification tests of the thrust controllability of the airplane. This AD measured on the hinges integrated into reverser, which revealed that certain requires accomplishing the actions the 12 o’clock beam of the thrust structural components within the C- specified in the Airbus service reverser; the 12 o’clock beam forms the duct need strengthening to meet high information described previously except upper edge of the C-duct of the thrust fatigue loads and maintain structural as discussed under ‘‘Difference Among reverser on Rolls-Royce engines. This integrity. We are issuing this AD to the AD, French Airworthiness Directive, condition, if not corrected, could result prevent fatigue cracking of the hinges and Airbus Service Information.’’ in fatigue cracking of the hinges integrated into the 12 o’clock beam of integrated into the 12 o’clock beam of the thrust reversers, which could result Difference Among the AD, French the thrust reversers, separation of a in separation of a thrust reverser from Airworthiness Directive, and Airbus thrust reverser from the airplane, and the airplane, and consequent reduced Service Information consequent reduced controllability of controllability of the airplane. the airplane. The French airworthiness directive DATES: This AD becomes effective and the service information specify a December 29, 2005. Relevant Service Information modification that involves replacement The Director of the Federal Register Airbus has issued Service Bulletin of certain thrust reverser C-ducts with approved the incorporation by reference A330–78–3010, Revision 03, dated April new ducts at or before specific total of a certain publication listed in the AD 28, 2004. The service bulletin describes flight cycle thresholds. This AD requires as of December 29, 2005. procedures for modifying the cowl you to replace the affected parts before We must receive comments on this assemblies of the left- and right-hand the accumulation of those thresholds or AD by February 13, 2006. thrust reversers. Accomplishing the within 6 months after the effective date ADDRESSES: Use one of the following actions specified in the service of the AD, whichever is later. A table addresses to submit comments on this information is intended to adequately containing those flight cycle thresholds AD. address the unsafe condition. The is specified in paragraph (f) of this AD. • DOT Docket Web site: Go to DGAC mandated the service information We have included a 6-month grace http://dms.dot.gov and follow the and issued French airworthiness period to ensure that any airplane that instructions for sending your comments directive F–2001–528 R2, dated June 23, is close to or has passed its applicable electronically. 2004, to ensure the continued threshold (if imported and placed on the • Government-wide rulemaking Web airworthiness of these airplanes in U.S. Register) is not grounded as of the site: Go to http://www.regulations.gov France. effective date of the AD.
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 73920 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
Costs of Compliance (65 FR 19477–78), or you may visit this AD and placed it in the AD docket. http://dms.dot.gov. See the ADDRESSES section for a location None of the airplanes affected by this to examine the regulatory evaluation. action are on the U.S. Register. All Examining the Docket airplanes affected by this AD are You may examine the AD docket on List of Subjects in 14 CFR Part 39 currently operated by non-U.S. the Internet at http://dms.dot.gov, or in Air transportation, Aircraft, Aviation operators under foreign registry; person at the Docket Management safety, Incorporation by reference, therefore, they are not directly affected Facility office between 9 a.m. and 5 Safety. by this AD action. However, we p.m., Monday through Friday, except consider this AD necessary to ensure Federal holidays. The Docket Adoption of the Amendment that the unsafe condition is addressed if Management Facility office (telephone I Accordingly, under the authority any affected airplane is imported and (800) 647–5227) is located on the plaza delegated to me by the Administrator, placed on the U.S. Register in the future. level of the Nassif Building at the DOT the FAA amends 14 CFR part 39 as If an affected airplane is imported and street address stated in the ADDRESSES follows: placed on the U.S. Register in the future, section. Comments will be available in the required modification would take the AD docket shortly after the Docket PART 39—AIRWORTHINESS about 1 work hour per airplane, at an Management System receives them. DIRECTIVES average labor rate of $65 per work hour. I Based on these figures, the estimated Authority for This Rulemaking 1. The authority citation for part 39 cost of the modification would be $65 Title 49 of the United States Code continues to read as follows: per airplane. specifies the FAA’s authority to issue Authority: 49 U.S.C. 106(g), 40113, 44701. rules on aviation safety. Subtitle I, FAA’s Determination of the Effective Section 106, describes the authority of § 39.13 [Amended] Date the FAA Administrator. Subtitle VII, I 2. The Federal Aviation No airplane affected by this AD is Aviation Programs, describes in more Administration (FAA) amends § 39.13 currently on the U.S. Register. detail the scope of the Agency’s by adding the following new Therefore, providing notice and authority. airworthiness directive (AD): We are issuing this rulemaking under opportunity for public comment is 2005–25–21 Airbus: Amendment 39–14414. unnecessary before this AD is issued, the authority described in Subtitle VII, Docket No. FAA–2005–23252; and this AD may be made effective in Part A, Subpart III, Section 44701, Directorate Identifier 2004–NM–146–AD. ‘‘General requirements.’’ Under that less than 30 days after it is published in Effective Date the Federal Register. section, Congress charges the FAA with promoting safe flight of civil aircraft in (a) This AD becomes effective December Comments Invited air commerce by prescribing regulations 29, 2005. This AD is a final rule that involves for practices, methods, and procedures Affected ADs requirements that affect flight safety and the Administrator finds necessary for (b) None. safety in air commerce. This regulation was not preceded by notice and an Applicability opportunity for public comment; is within the scope of that authority however, we invite you to submit any because it addresses an unsafe condition (c) This AD applies to Airbus Model A330– 243, –341, –342, and –343 airplanes, relevant written data, views, or that is likely to exist or develop on products identified in this rulemaking certificated in any category; equipped with arguments regarding this AD. Send your Rolls-Royce RB211 TRENT 700 engines. comments to an address listed in the action. ADDRESSES section. Include ‘‘Docket No. Regulatory Findings Unsafe Condition FAA–2005–23252; Directorate Identifier (d) This AD results from a review of We have determined that this AD will 2004–NM–146–AD’’ at the beginning of certification tests of the thrust reverser, not have federalism implications under your comments. We specifically invite which revealed that certain structural Executive Order 13132. This AD will comments on the overall regulatory, components within the C-duct need not have a substantial direct effect on strengthening to meet high fatigue loads and economic, environmental, and energy the States, on the relationship between maintain structural integrity. The FAA is aspects of the AD that might suggest a the national government and the States, issuing this AD to prevent fatigue cracking of need to modify it. or on the distribution of power and the hinges integrated into the 12 o’clock We will post all comments we responsibilities among the various beam of the thrust reversers, which could result in separation of a thrust reverser from receive, without change, to http:// levels of government. dms.dot.gov, including any personal the airplane, and consequent reduced For the reasons discussed above, I controllability of the airplane. information you provide. We will also certify that the regulation: post a report summarizing each 1. Is not a ‘‘significant regulatory Compliance substantive verbal contact with FAA action’’ under Executive Order 12866; (e) You are responsible for having the personnel concerning this AD. Using the 2. Is not a ‘‘significant rule’’ under the actions required by this AD performed within search function of that Web site, anyone DOT Regulatory Policies and Procedures the compliance times specified, unless the can find and read the comments in any (44 FR 11034, February 26, 1979); and actions have already been done. of our dockets, including the name of 3. Will not have a significant Modification the individual who sent the comment economic impact, positive or negative, (f) At the applicable compliance time (or signed the comment on behalf of an on a substantial number of small entities specified in Table 1 of this AD: Modify the association, business, labor union, etc.). under the criteria of the Regulatory cowl assemblies of the left- and right-hand You may review the DOT’s complete Flexibility Act. thrust reversers in accordance with Airbus Privacy Act Statement in the Federal We prepared a regulatory evaluation Service Bulletin A330–78–3010, Revision 03, Register published on April 11, 2000 of the estimated costs to comply with dated April 28, 2004.
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 73921
TABLE 1.—MODIFICATION (PART REPLACEMENT) THRESHOLDS
Replace part number— At the later of the times specified—
(1) 3410L, 3410R, 3411L, 3411R, (i) Before the accumulation of 10,000 total flight cycles since the C- (ii) Within 6 months after the effec- 3412R, 3413R. duct was new. tive date of this AD. (2) 3414L, 3416R, 3417R ...... (i) For airplanes modified according to Airbus Service Bulletin A330– (iii) Within 6 months after the ef- 78–3010 with more than 7,200 total flight cycles since the C-duct fective date of this AD. was new: Before the accumulation of 10,000 total flight cycles since the C-duct was new. (ii) For airplanes modified according to Airbus Service Bulletin A330– 78–3010 with less than or equal to 7,200 total flight cycles since the C-duct was new: Before the accumulation of 25,000 total flight cycles since the C-duct was new. (3) 3414L, 3416R, 3417R ...... (i) For airplanes modified in production by Airbus Modification 47316: (ii) Within 6 months after the effec- Before the accumulation of 25,000 total flight cycles since the C- tive date of this AD. duct was new. (4) 3412L, 3414R ...... (i) For airplanes modified in production by Airbus Modification 46879: (ii) Within 6 months after the effec- Before the accumulation of 25,000 total flight cycles since the C- tive date of this AD. duct was new. (5) 3413L, 3415R ...... (i) Before the accumulation of 40,000 total flight cycles since the C- (ii) Within 6 months after the effec- duct was new. tive date of this AD.
Note 1: Airbus Service Bulletin A330–78– code_of_federal_regulations/ withstand a hard landing or rejected 3010, Revision 03, dated April 28, 2004, ibr_locations.html. takeoff and possible injury to refers to Rolls-Royce Service Bulletin Issued in Renton, Washington, on passengers. RB.211–78–C899, Revision 3, dated May 7, December 2, 2005. 2004, as an additional source of service DATES: This AD becomes effective information for modifying the cowl Kalene C. Yanamura, assemblies of the left- and right-hand thrust Acting Manager, Transport Airplane January 18, 2006. reversers. Directorate, Aircraft Certification Service. The Director of the Federal Register [FR Doc. 05–23902 Filed 12–13–05; 8:45 am] approved the incorporation by reference Parts Installation BILLING CODE 4910–13–P of a certain publication listed in the AD (g) As of the effective date of this AD, no as of January 18, 2006. person may install, on any airplane, a cowl assembly of the left- or right-hand thrust DEPARTMENT OF TRANSPORTATION ADDRESSES: You may examine the AD reverser if the airplane has exceeded the docket on the Internet at http:// applicable flight cycle threshold specified in dms.dot.gov or in person at the Docket Table 1 of this AD. Federal Aviation Administration Management Facility, U.S. Department Alternative Methods of Compliance 14 CFR Part 39 of Transportation, 400 Seventh Street (AMOCs) SW., Nassif Building, room PL–401, (h) The Manager, International Branch, [Docket No. FAA–2005–22561; Directorate Washington, DC. ANM–116, Transport Airplane Directorate, Identifier 2005–NM–136–AD; Amendment FAA, has the authority to approve AMOCs 39–14409; AD 2005–25–16] Contact Empresa Brasileira de Aeronautica S.A. (EMBRAER), P.O. Box for this AD, if requested in accordance with RIN 2120–AA64 the procedures found in 14 CFR 39.19. 343—CEP 12.225, Sao Jose dos Related Information Airworthiness Directives; Empresa Campos—SP, Brazil, for service information identified in this AD. (i) French airworthiness directive F–2001– Brasileira de Aeronautica S.A. 528 R2, dated June 23, 2004, also addresses (EMBRAER) Model ERJ 170 Airplanes FOR FURTHER INFORMATION CONTACT: the subject of this AD. AGENCY: Federal Aviation Todd Thompson, Aerospace Engineer, Material Incorporated by Reference Administration (FAA), Department of International Branch, ANM–116, (j) You must use Airbus Service Bulletin Transportation (DOT). Transport Airplane Directorate, FAA, A330–78–3010, Revision 03, dated April 28, ACTION: Final rule. 1601 Lind Avenue, SW., Renton, 2004, to perform the actions that are required Washington 98055–4056; telephone by this AD, unless the AD specifies SUMMARY: The FAA is adopting a new (425) 227–1175; fax (425) 227–1149. otherwise. The Director of the Federal airworthiness directive (AD) for certain SUPPLEMENTARY INFORMATION: Register approved the incorporation by EMBRAER Model ERJ 170 airplanes. reference of this document in accordance This AD requires doing a general visual with 5 U.S.C. 552(a) and 1 CFR part 51. Examining the Docket Contact Airbus, 1 Rond Point Maurice inspection of the passenger seat track Bellonte, 31707 Blagnac Cedex, France, for a attachments to determine if the You may examine the airworthiness copy of this service information. You may attachment rod is installed and to check directive (AD) docket on the Internet at review copies at the Docket Management the torque value of the attachment bolts, http://dms.dot.gov or in person at the Facility, U.S. Department of Transportation, and doing any corrective actions if Docket Management Facility office 400 Seventh Street SW., room PL–401, Nassif necessary. This AD results from the between 9 a.m. and 5 p.m., Monday Building, Washington, DC; on the Internet at finding of missing rods, which attach through Friday, except Federal holidays. http://dms.dot.gov; or at the National the passenger seat tracks to the airplane The Docket Management Facility office Archives and Records Administration (NARA). For information on the availability structure to absorb loads. We are issuing (telephone (800) 647–5227) is located on of this material at the NARA, call (202) 741– this AD to detect and correct missing the plaza level of the Nassif Building at 6030, or go to attachment rods, which could result in the street address stated in the http://www.archives.gov/federal_register/ reducing the ability of the seat to ADDRESSES section.
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 73922 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
Discussion Regulatory Findings 17000016, and 17000018 through 17000043 inclusive. The FAA issued a notice of proposed We have determined that this AD will rulemaking (NPRM) to amend 14 CFR not have federalism implications under Unsafe Condition part 39 to include an AD that would Executive Order 13132. This AD will (d) This AD results from the finding of apply to certain EMBRAER Model ERJ not have a substantial direct effect on missing rods, which attach the passenger seat 170 airplanes. That NPRM was the States, on the relationship between tracks to the airplane structure to absorb published in the Federal Register on the national government and the States, loads. We are issuing this AD to detect and September 19, 2005 (70 FR 57215). That or on the distribution of power and correct missing attachment rods, which could NPRM proposed to require doing a result in reducing the ability of the seat to responsibilities among the various withstand a hard landing or rejected takeoff general visual inspection of the levels of government. and possible injury to passengers. passenger seat track attachments to For the reasons discussed above, I determine if the attachment rod is certify that this AD: Compliance installed and to check the torque value (1) Is not a ‘‘significant regulatory (e) You are responsible for having the of the attachment bolts, and doing any action’’ under Executive Order 12866; actions required by this AD performed within corrective actions if necessary. (2) Is not a ‘‘significant rule’’ under the compliance times specified, unless the DOT Regulatory Policies and Procedures actions have already been done. Comments (44 FR 11034, February 26, 1979); and Inspection and Modification if Necessary We provided the public the (3) Will not have a significant (f) Within 700 flight hours after the opportunity to participate in the economic impact, positive or negative, effective date of this AD, do a general visual development of this AD. We received no on a substantial number of small entities inspection of the passenger seat track comments on the NPRM or on the under the criteria of the Regulatory attachments to determine if the attachment determination of the cost to the public. Flexibility Act. rod is installed and to check the torque value Conclusion We prepared a regulatory evaluation of the attachment bolts, and do any of the estimated costs to comply with applicable corrective actions, by We have carefully reviewed the this AD and placed it in the AD docket. accomplishing all of the applicable actions specified in the Accomplishment available data and determined that air See the ADDRESSES section for a location Instructions of EMBRAER Service Bulletin safety and the public interest require to examine the regulatory evaluation. adopting the AD as proposed. 170–53–0010, dated January 12, 2005. Do any List of Subjects in 14 CFR Part 39 applicable corrective actions before further Costs of Compliance flight. Air transportation, Aircraft, Aviation This AD affects about 43 airplanes of Note 1: For the purposes of this AD, a safety, Incorporation by reference, general visual inspection is: ‘‘A visual U.S. registry. The inspection takes about Safety. 1 work hour per airplane, at an average examination of an interior or exterior area, labor rate of $65 per work hour. Based Adoption of the Amendment installation, or assembly to detect obvious damage, failure, or irregularity. This level of on these figures, the estimated cost of I Accordingly, under the authority inspection is made from within touching the AD for U.S. operators is $2,795, or delegated to me by the Administrator, distance unless otherwise specified. A mirror $65 per airplane. the FAA amends 14 CFR part 39 as may be necessary to ensure visual access to The modification, if necessary, takes follows: all surfaces in the inspection area. This level about 2 work hours per airplane, at an of inspection is made under normally average labor rate of $65 per work hour. PART 39—AIRWORTHINESS available lighting conditions such as Required parts are about $860 per DIRECTIVES daylight, hangar lighting, flashlight, or airplane. Based on these figures, the droplight and may require removal or estimated cost of the modification is I 1. The authority citation for part 39 opening of access panels or doors. Stands, continues to read as follows: ladders, or platforms may be required to gain $990 per airplane, if necessary. proximity to the area being checked.’’ Authority for This Rulemaking Authority: 49 U.S.C. 106(g), 40113, 44701. Alternative Methods of Compliance Title 49 of the United States Code § 39.13 [Amended] (AMOCs) specifies the FAA’s authority to issue I 2. The Federal Aviation (g)(1) The Manager, International Branch, rules on aviation safety. Subtitle I, ANM–116, Transport Airplane Directorate, section 106, describes the authority of Administration (FAA) amends § 39.13 FAA, has the authority to approve AMOCs the FAA Administrator. Subtitle VII, by adding the following new for this AD, if requested in accordance with Aviation Programs, describes in more airworthiness directive (AD): the procedures found in 14 CFR 39.19. detail the scope of the Agency’s 2005–25–16 Empresa Brasileira de (2) Before using any AMOC approved in authority. Aeronautica S.A. (EMBRAER): accordance with 14 CFR 39.19 on any We are issuing this rulemaking under Amendment 39–14409. Docket No. airplane to which the AMOC applies, notify the authority described in subtitle VII, FAA–2005–22561; Directorate Identifier the appropriate principal inspector in the 2005–NM–136–AD. FAA Flight Standards Certificate Holding part A, subpart III, section 44701, District Office. ‘‘General requirements.’’ Under that Effective Date Material Incorporated by Reference section, Congress charges the FAA with (a) This AD becomes effective January 18, promoting safe flight of civil aircraft in 2006. (h) You must use EMBRAER Service air commerce by prescribing regulations Bulletin 170–53–0010, dated January 12, for practices, methods, and procedures Affected ADs 2005, to perform the actions that are required the Administrator finds necessary for (b) None. by this AD, unless the AD specifies safety in air commerce. This regulation otherwise. The Director of the Federal Applicability Register approved the incorporation by is within the scope of that authority (c) This AD applies to EMBRAER Model reference of this document in accordance because it addresses an unsafe condition ERJ 170–100 LR, –100 STD, –100 SE, and with 5 U.S.C. 552(a) and 1 CFR part 51. that is likely to exist or develop on –100 SU airplanes, certificated in any Contact Empresa Brasileira de Aeronautica products identified in this rulemaking category; having serial numbers 17000007 S.A. (EMBRAER), P.O. Box 343—CEP 12.225, action. through 17000013 inclusive, 17000015, Sao Jose dos Campos—SP, Brazil, for a copy
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 73923
of this service information. You may review issuing this AD to detect and correct rib. That NPRM also proposed to require copies at the Docket Management Facility, cracking or other discrepancies in these related investigative and corrective U.S. Department of Transportation, 400 areas, which could result in structural actions, if necessary. Seventh Street SW., room PL–401, Nassif failure of the wing. Building, Washington, DC; on the Internet at Comments http://dms.dot.gov; or at the National DATES: This AD becomes effective Archives and Records Administration January 18, 2006. We provided the public the (NARA). For information on the availability The Director of the Federal Register opportunity to participate in the of this material at the NARA, call (202) 741– approved the incorporation by reference development of this AD. No comments 6030, or go to have been received on the NPRM or on _ of certain publications listed in the AD http://www.archives.gov/federal register/ as of January 18, 2006. the determination of the cost to the code_of_federal_regulations/ public. ibr_locations.html. ADDRESSES: You may examine the AD docket on the Internet at http:// Issued in Renton, Washington, on Clarification of Alternative Method of December 2, 2005. dms.dot.gov or in person at the Docket Compliance (AMOC) Paragraph Management Facility, U.S. Department Kalene C. Yanamura, We have revised this action to clarify of Transportation, 400 Seventh Street the appropriate procedure for notifying Acting Manager, Transport Airplane SW., Nassif Building, room PL–401, Directorate, Aircraft Certification Service. the principal inspector before using any Washington, DC. approved AMOC on any airplane to [FR Doc. 05–23903 Filed 12–13–05; 8:45 am] Contact Sabreliner Corporation, 18118 which the AMOC applies. BILLING CODE 4910–13–P Chesterfield Airport Road, Chesterfield, Missouri 63005–1121, for service Conclusion DEPARTMENT OF TRANSPORTATION information identified in this AD. We have carefully reviewed the FOR FURTHER INFORMATION CONTACT: T.N. available data and determined that air Federal Aviation Administration Baktha, Aerospace Engineer, Airframe safety and the public interest require Branch, ACE–118W, FAA, Wichita adopting the AD with the change 14 CFR Part 39 Aircraft Certification Office, 1801 described previously. We have Airport Road, room 100, Mid-Continent [Docket No. FAA–2005–22402; Directorate determined that this change will neither Identifier 2005–NM–133–AD; Amendment Airport, Wichita, Kansas 67209; increase the economic burden on any 39–14411; AD 2005–25–18] telephone (316) 946–4155; fax (316) operator nor increase the scope of the 946–4407. AD. RIN 2120–AA64 SUPPLEMENTARY INFORMATION: Costs of Compliance Airworthiness Directives; Sabreliner Examining the Docket There are about 77 airplanes of the Model NA–265, NA–265–20, NA–265– You may examine the airworthiness affected design in the worldwide fleet. 30, NA–265–40, NA–265–50, NA–265– directive (AD) docket on the Internet at This AD affects about 43 airplanes of 60, NA–265–65, NA–265–70, and NA– http://dms.dot.gov or in person at the U.S. registry. 265–80 Series Airplanes Docket Management Facility office The inspection specified in this AD AGENCY: Federal Aviation between 9 a.m. and 5 p.m., Monday takes about 12 work hours per airplane, Administration (FAA), Department of through Friday, except Federal holidays. per inspection cycle, at an average labor Transportation (DOT). The Docket Management Facility office rate of $65 per work hour. Based on ACTION: Final rule. (telephone (800) 647–5227) is located on these figures, the estimated cost of the the plaza level of the Nassif Building at actions specified in this AD for U.S. SUMMARY: The FAA is superseding an the street address stated in the operators is $33,540, or $780 per existing airworthiness directive (AD), ADDRESSES section. airplane, per inspection cycle. which applies to certain Sabreliner Model NA–265–40, NA–265–50, NA– Discussion Authority for This Rulemaking 265–60, NA–265–70, and NA–265–80 The FAA issued a notice of proposed Title 49 of the United States Code series airplanes. That AD currently rulemaking (NPRM) to amend 14 CFR specifies the FAA’s authority to issue requires repetitive inspections for part 39 to include an AD that rules on aviation safety. Subtitle I, discrepancies in the front and rear spars supersedes AD 73–18–03, amendment section 106, describes the authority of of the wing in the area of the wing 39–3201 (43 FR 19208, May 4, 1978). the FAA Administrator. Subtitle VII, center section, and in the lugs on the The existing AD applies to certain Aviation Programs, describes in more rear spar and wing trailing edge panel Rockwell International Model NA–265– detail the scope of the Agency’s rib, and corrective actions if necessary. 40, NA–265–50, NA–265–60, NA–265– authority. This new AD expands the applicability 70, and NA–265–80 series airplanes. We are issuing this rulemaking under of the existing AD and requires new That NPRM was published in the the authority described in subtitle VII, repetitive inspections for fuel leaks of Federal Register on September 14, 2005 part A, subpart III, section 44701, the front and rear spars of the wing, and (70 FR 54318). (A correction of that ‘‘General requirements.’’ Under that for discrepancies in the front and rear NPRM was published in the Federal section, Congress charges the FAA with spars of the wing in the area of the wing Register on September 30, 2005 (70 FR promoting safe flight of civil aircraft in center section, and in the lugs on the 57222).) That NPRM proposed to air commerce by prescribing regulations rear spar and wing trailing edge panel expand the applicability of the existing for practices, methods, and procedures rib. This AD also requires related AD and require new repetitive the Administrator finds necessary for investigative and corrective actions, if inspections for fuel leaks of the front safety in air commerce. This regulation necessary. This AD results from reports and rear spars of the wing, and for is within the scope of that authority of cracking in the upper and lower discrepancies in the front and rear spars because it addresses an unsafe condition flanges of the front and rear spars of the of the wing in the area of the wing that is likely to exist or develop on wing near the wing center section, and center section, and in the lugs on the products identified in this rulemaking in the lugs on the rear spar. We are rear spar and wing trailing edge panel action.
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 73924 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
Regulatory Findings airplanes; certificated in any category; as New Requirements of This AD identified in Sabreliner NA–265 Service We have determined that this AD will Bulletin 83–2, revised January 31, 2005. Inspections/Repairs Accomplished not have federalism implications under Previously Executive Order 13132. This AD will Unsafe Condition (i) Inspections and repairs accomplished not have a substantial direct effect on (d) This AD results from reports of cracking before the effective date of this AD in the States, on the relationship between in the upper and lower flanges of the front accordance with a method approved by the the national government and the States, and rear spars of the wing near the wing Chief, Aircraft Engineering Division, FAA or on the distribution of power and center section, and in the lugs on the rear Western Region, are acceptable for spar. The FAA is issuing this AD to detect compliance with paragraphs (f), (g), and (h) responsibilities among the various and correct cracking or other discrepancies in of this AD, as applicable. levels of government. these areas, which could result in structural For the reasons discussed above, I failure of the wing. New Repetitive Inspections certify that this AD: (j) Within 90 days after the effective date (1) Is not a ‘‘significant regulatory Compliance of this AD, except as provided by paragraph action’’ under Executive Order 12866; (e) You are responsible for having the (j)(1) of this AD: Perform a general visual (2) Is not a ‘‘significant rule’’ under actions required by this AD performed within inspection for fuel leaks; an inspection using DOT Regulatory Policies and Procedures the compliance times specified, unless the a borescope to detect any break in the surface (44 FR 11034, February 26, 1979); and actions have already been done. finish, corrosion, or cracking of the upper (3) Will not have a significant and lower flanges on the front and rear spars Requirements of AD 73–18–03 of the wing in the area of the wing center economic impact, positive or negative, Repetitive Inspections section; a general visual inspection to detect on a substantial number of small entities cracking of the lugs on the rear spar and wing (f) For the airplanes listed in Table 1 of this under the criteria of the Regulatory trailing edge panel rib; and related AD: On or before June 18, 1974, unless Flexibility Act. investigative actions, as applicable; by doing previously accomplished within 1 year, and all applicable actions in accordance with the We prepared a regulatory evaluation at intervals not to exceed 2 years thereafter instructions of Sabreliner NA–265 Service of the estimated costs to comply with until the first inspection in accordance with Bulletin 83–2, revised January 31, 2005. this AD and placed it in the AD docket. paragraph (j) of this AD has been done, Repeat the inspection thereafter at intervals See the ADDRESSES section for a location inspect the upper and lower flanges of the not to exceed 24 months. to examine the regulatory evaluation. front and rear spars in the area of the wing (1) If the inspection required by paragraph center section, and the lugs on the rear spar (j) of this AD has been accomplished within List of Subjects in 14 CFR Part 39 and wing trailing edge panel rib, per the 12 months before the effective date of this instructions of Sabreliner NA–265 Service Air transportation, Aircraft, Aviation AD, the inspection required by paragraph (j) Bulletin 73–11, revised June 1, 1978; or an safety, Incorporation by reference, of this AD is not required until 24 months Safety. equivalent inspection approved by the Manager, Wichita Aircraft Certification Office after the most recent inspection in accordance with the requirements of Adoption of the Amendment (ACO), FAA. Inspections done before the effective date of this AD in accordance with paragraph (j) of this AD. I Accordingly, under the authority Sabreliner NA–265 Service Bulletin 73–11, (2) For airplanes subject to paragraph (f) of delegated to me by the Administrator, dated June 15, 1973, are acceptable for this AD: Accomplishing of the initial the FAA amends 14 CFR part 39 as compliance with this paragraph. inspection required by paragraph (j) of this AD terminates the requirements of paragraph follows: (f) of this AD. TABLE 1.—AIRPLANES SUBJECT TO Note 1: For the purposes of this AD, a PART 39—AIRWORTHINESS PARAGRAPHS (f), (g), AND (h) OF DIRECTIVES general visual inspection is: ‘‘A visual THIS AD examination of an interior or exterior area, I 1. The authority citation for part 39 installation, or assembly to detect obvious continues to read as follows: Model Affected serial numbers damage, failure, or irregularity. This level of inspection is made from within touching Authority: 49 U.S.C. 106(g), 40113, 44701. NA–265–40 .. 282–1 and subsequent. distance unless otherwise specified. A mirror NA–265–50 .. 287–1. may be necessary to ensure visual access to § 39.13 [Amended] NA–265–60 .. 306–1 through 306–139 inclu- all surfaces in the inspection area. This level sive. I 2. The Federal Aviation of inspection is made under normally NA–265–70 .. 370–1 through 370–9 inclu- available lighting conditions such as Administration (FAA) amends § 39.13 sive. daylight, hangar lighting, flashlight, or by removing amendment 39–3201 (43 NA–265–80 .. 380–1 through 380–61 inclu- droplight and may require removal or FR 19208, May 4, 1978) and by adding sive. opening of access panels or doors. Stands, the following new airworthiness ladders, or platforms may be required to gain directive (AD): Corrective Actions proximity to the area being checked.’’ (g) For the airplanes listed in Table 1 of 2005–25–18 Sabreliner Corporation: Corrective Actions Amendment 39–14411. Docket No. this AD: Prior to further flight, if cracks, FAA–2005–22402; Directorate Identifier corrosion, or breaks in the surface finish are (k) If any fuel leak, break in the surface 2005–NM–133–AD. found, during any inspection in accordance finish, corrosion, or cracking is found during with paragraph (f) of this AD, in the front or any inspection required by paragraph (j) of Effective Date rear spars in the area of the wing center this AD: Before further flight, replace the (a) This AD becomes effective January 18, section, replace with like serviceable parts, or subject part with a new or serviceable part, 2006. repair in a manner approved by the Manager, or repair the subject part in accordance with Wichita ACO. a method approved by the Manager, Wichita Affected ADs (h) For the airplanes listed in Table 1 of ACO. Where Sabreliner NA–265 Service (b) This AD supersedes AD 73–18–03. this AD: Prior to further flight, if cracks are Bulletin 83–2, revised January 31, 2005, found, during any inspection in accordance specifies contacting Sabreliner for an Applicability with paragraph (f) of this AD, in the lugs on engineering analysis: Before further flight, (c) This AD applies to Sabreliner Model the rear spar and wing trailing edge rib, repair in accordance with a method approved NA–265, NA–265–20, NA–265–30, NA–265– replace the cracked parts with like by the Manager, Wichita ACO. For a repair 40, NA–265–50, NA–265–60, NA–265–65, serviceable parts, or repair in a manner method to be approved by the Manager, NA–265–70, and NA–265–80 series approved by the Manager, Wichita ACO. Wichita ACO, as required by this paragraph,
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 73925
the Manager’s approval letter must DEPARTMENT OF TRANSPORTATION • Mail: Docket Management Facility; specifically refer to this AD. U.S. Department of Transportation, 400 Actions Accomplished Previously Federal Aviation Administration Seventh Street, SW., Nassif Building, (l) Inspections and corrective actions room PL–401, Washington, DC 20590. 14 CFR Part 39 • Fax: (202) 493–2251. accomplished before the effective date of this • AD in accordance with the original issue of [Docket No. FAA–2005–23251; Directorate Hand Delivery: Room PL–401 on Sabreliner NA–265 Service Bulletin 83–2, Identifier 2002–NM–20–AD; Amendment 39– the plaza level of the Nassif Building, dated March 4, 1983; or Sabreliner NA–265 14413; AD 2005–25–20] 400 Seventh Street, SW., Washington, Service Bulletin 83–2, revised February 29, DC, between 9 a.m. and 5 p.m., Monday 1996; are acceptable for compliance with the RIN 2120–AA64 through Friday, except Federal holidays. corresponding actions required by For service information identified in paragraphs (j) and (k) of this AD. Airworthiness Directives; Airbus Model A330–300, A340–200, and A340–300 this AD, contact Airbus, 1 Rond Point No Reporting Requirement Series Airplanes Maurice Bellonte, 31707 Blagnac Cedex, (m) Although the service bulletins France. You can examine this referenced in this AD specify to submit AGENCY: Federal Aviation information at the National Archives certain information to the manufacturer, this Administration (FAA), Department of and Records Administration (NARA). AD does not include that requirement. Transportation (DOT). For information on the availability of Alternative Methods of Compliance ACTION: Final rule; request for this material at NARA, call (202) 741– (AMOCs) comments. 6030, or go to http://www.archives.gov/ (n)(1) The Manager, Wichita ACO, has the _ authority to approve AMOCs for this AD, if SUMMARY: The FAA is superseding an federal register/ requested in accordance with the procedures existing airworthiness directive (AD), code_of_federal_regulations/ found in 14 CFR 39.19. which applies to certain Airbus Model ibr_locations.html. (2) Before using any AMOC approved in A330–300, A340–200, and 340–300 You can examine the contents of this accordance with 14 CFR 39.19 on any series airplanes. The existing AD AD docket on the Internet at http:// airplane to which the AMOC applies, notify requires repetitive inspections to detect dms.dot.gov, or in person at the Docket the appropriate principal inspector in the cracking of the fuselage skin in the area Management Facility, U.S. Department FAA Flight Standards Certificate Holding of the VHF2 antenna, and repair if of Transportation, 400 Seventh Street, District Office. necessary. The existing AD also SW., room PL–401, on the plaza level of Material Incorporated by Reference provides for optional terminating action the Nassif Building, Washington, DC. (o) You must use Sabreliner NA–265 for the repetitive inspections. This new This docket number is FAA–2005– Service Bulletin 73–11, revised June 1, 1978; AD requires accomplishment of the 23251; the directorate identifier for this or Sabreliner NA–265 Service Bulletin 83–2, previously optional terminating action, docket is 2002–NM–20–AD. revised January 31, 2005; to perform the and revises the applicability by actions that are required by this AD, unless removing certain airplanes. This AD is Examining the Docket the AD specifies otherwise. Sabreliner NA– prompted by the need to change the You can examine the AD docket on 265 Service Bulletin 73–11, revised June 1, the Internet at http://dms.dot.gov, or in 1978, contains the following effective pages: applicability of the existing AD and to mandate the formerly optional person at the Docket Management Date shown on terminating action. We are issuing this Facility office between 9 a.m. and 5 Page No. page AD to prevent cracking of the fuselage p.m., Monday through Friday, except skin in the area of the VHF2 antenna, Federal holidays. The Docket 1 ...... June 1, 1978. which could result in depressurization Management Facility office (telephone 2–14 ...... June 15, 1973. of the airplane. (800) 647–5227) is located on the plaza DATES: level of the Nassif Building at the DOT The Director of the Federal Register Effective December 29, 2005. The incorporation by reference of street address stated in the ADDRESSES approved the incorporation by reference of section. Comments will be available in these documents in accordance with 5 U.S.C. certain publications listed in the 552(a) and 1 CFR part 51. Contact Sabreliner regulations is approved by the Director the AD docket shortly after the DMS Corporation, 18118 Chesterfield Airport of the Federal Register as of December receives them. Road, Chesterfield, Missouri 63005–1121, for 29, 2005. FOR FURTHER INFORMATION CONTACT: Tim a copy of this service information. You may The incorporation by reference of Backman, Aerospace Engineer, review copies at the Docket Management certain other publications, as listed in International Branch, ANM–116, FAA, Facility, U.S. Department of Transportation, the regulations, was approved Transport Airplane Directorate, 1601 400 Seventh Street SW., Room PL–401, Lind Avenue, SW., Renton, Washington Nassif Building, Washington, DC; on the previously by the Director of the Federal Internet at http://dms.dot.gov; or at the Register as of April 12, 2000 (65 FR 98055–4056; telephone (425) 227–2797; National Archives and Records 12075, March 8, 2000). fax (425) 227–1149. Administration (NARA). For information on We must receive comments on this SUPPLEMENTARY INFORMATION: On the availability of this material at the NARA, AD by February 13, 2006. February 29, 2000, the FAA issued AD call (202) 741–6030, or go to ADDRESSES: Use one of the following 2000–05–04, amendment 39–11613 (65 http://www.archives.gov/federal_register/ _ _ _ addresses to submit comments on this FR 12075, March 8, 2000). That AD code of federal regulations/ AD. applies to certain Airbus Model A330 ibr_locations.html. • DOT Docket Web site: Go to and A340 series airplanes and requires Issued in Renton, Washington, on http://dms.dot.gov and follow the repetitive inspections to detect cracking December 2, 2005. instructions for sending your comments of the fuselage skin in the area of the Kalene C. Yanamura, electronically. VHF2 antenna, and repair if necessary. Acting Manager, Transport Airplane • Government-wide rulemaking Web That AD also provides for optional Directorate, Aircraft Certification Service. site: Go to http://www.regulations.gov terminating action for the repetitive [FR Doc. 05–23904 Filed 12–13–05; 8:45 am] and follow the instructions for sending inspections. That action was prompted BILLING CODE 4910–13–P your comments electronically. by issuance of mandatory continuing
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 73926 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
airworthiness information by the French Actions Since Issuance of Previous Rule modified by Airbus Modification 46025, civil aviation authority. We issued that 46849, or 46900; and to mandate the AD to detect and correct such cracking, Since we issued AD 2000–05–04, the previously optional terminating action. Direction Ge´ne´rale de l’Aviation Civile which could result in depressurization Explanation of Relevant New Service of the airplane. (DGAC), which is the airworthiness authority for France, has revised the Information parallel French airworthiness directives Airbus has issued the following to exclude airplanes that have been service bulletins:
SERVICE INFORMATION
Describes procedures for Which could be eliminated by the modification specified in— Airbus Service Bulletin— repetitive detailed inspec- Airbus Service Bul- tions of— letin— Revision— Dated—
A330–53–3094, Revision 03, dated February 22, Model A330–300 series A330–53–3097 02 November 21, 2000. 2001; and Revision 04, dated July 23, 2001. airplanes. A340–53–4105, Revision 03, dated February 22, Model A340 series air- A340–53–4108 02 December 6, 2000. 2001, and Revision 04, dated July 23, 2001. planes.
The revised service bulletins for the airworthiness agreement, the DGAC has calculations from $60 per work hour to terminating modification are essentially kept the FAA informed of the situation $65 per work hour. The cost impact the same: They remove certain life described above. We have examined the information, below, reflects this limits, but add no new procedures. The DGAC’s findings, evaluated all pertinent increase in the specified hourly labor DGAC classified Service Bulletins information, and determined that we rate. A330–53–3097 and A340–53–4108 as need to issue an AD for products of this 4. Since we issued AD 2000–05–04, mandatory and issued French type design that are certificated for the type certificate data sheet for airworthiness directives 2001–041(B) operation in the United States. affected airplanes has been updated. We and 2001–040(B), both dated January 24, For this reason, we are issuing this have revised the applicability of this AD 2001, to ensure the continued AD to supersede AD 2000–05–04. This accordingly. airworthiness of these airplanes in AD retains the requirements of the Differences Between AD and Service France. existing AD, requires accomplishment Bulletins Airbus has also issued Service of the previously optional terminating Bulletins A330–53–3112 and A340–53– action, and adds an alternative The revised service bulletins provide 4124, both dated February 15, 2001, terminating action. This AD removes repair procedures for cracks up to 14.17 which describe procedures for certain airplanes from the applicability inches. However, no data have been relocating the VHF2 antenna between of the existing AD. The actions are presented that would justify the stringer 51 and stringer 52, away from required to be done in accordance with acceptability of the increased crack the outlet air flow of the air the service bulletins described length. This AD requires that operators conditioning packs. These service previously, except as described below. contact the FAA or DGAC for repair bulletins provide for alternative instructions of cracks exceeding 9.45 Additional Changes to AD procedures to those specified in Service inches. Bulletins A330–53–3097 and A340–53– We have made the following Costs of Compliance 4108 to eliminate the need for the additional changes to the AD: repetitive inspections. The DGAC has 1. We revised the applicability in this None of the airplanes affected by this approved Service Bulletins A330–53– AD by updating the service bulletin action are on the U.S. Register. All 3112 and A340–53–4124 and considers references to match the applicability of airplanes affected by this AD are them optional terminating action for the the corresponding French airworthiness currently operated by non-U.S. repetitive inspections. directives. operators under foreign registry; 2. The FAA has changed all references therefore, they are not directly affected FAA’s Determination and Requirements to a ‘‘detailed visual inspection’’ in the by this AD action. However, we of This AD existing AD to ‘‘detailed inspection’’ in consider this AD necessary to ensure These airplane models are this new AD. Note 1 in this AD defines that the unsafe condition is addressed if manufactured in France and are type that inspection. any affected airplane is imported and certificated for operation in the United 3. We have reviewed the figures we placed on the U.S. Register in the future. States under the provisions of section have used over the past several years to The following table provides the 21.29 of the Federal Aviation calculate AD costs to operators. To estimated costs to comply with this AD Regulations (14 CFR 21.29) and the account for various inflationary costs in for any affected airplane that might be applicable bilateral airworthiness the airline industry, we find it necessary imported and placed on the U.S. agreement. According to this bilateral to increase the labor rate used in these Register in the future.
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 73927
ESTIMATED COSTS
Hourly labor Action Applicable Airbus Service Bulletin Work hours rate Parts cost Cost per airplane (dollars) (dollars) (dollars)
Inspection ...... A330–53–3094 or A340–53–4105 ...... 6 65 None required 390, per inspection cycle. Fuselage skin rein- A330–53–3097 or A340–53–4108 ...... 107 65 0 6,955. forcement. Antenna relocation ...... A330–53–3112 or A340–53–4124 ...... 109 65 2,850 9,935.
FAA’s Determination of the Effective 2000 (65 FR 19477–78), or you can visit on a substantial number of small entities Date http://dms.dot.gov. under the criteria of the Regulatory Flexibility Act. Authority for This Rulemaking No airplane affected by this AD is We prepared a regulatory evaluation currently on the U.S. Register. Title 49 of the United States Code of the estimated costs to comply with Therefore, providing notice and specifies the FAA’s authority to issue this AD. See the ADDRESSES section for opportunity for public comment is rules on aviation safety. Subtitle I, a location to examine the regulatory unnecessary before this AD is issued, Section 106, describes the authority of evaluation. and this AD may be made effective in the FAA Administrator. Subtitle VII, less than 30 days after it is published in Aviation Programs, describes in more List of Subjects in 14 CFR Part 39 the Federal Register. detail the scope of the Agency’s Air transportation, Aircraft, Aviation authority. Comments Invited safety, Incorporation by reference, We are issuing this rulemaking under Safety. the authority described in Subtitle VII, Although this is a final rule that was Adoption of the Amendment not preceded by notice and an Part A, Subpart III, Section 44701, opportunity for public comment, we ‘‘General requirements.’’ Under that I Accordingly, under the authority invite you to submit any relevant section, Congress charges the FAA with delegated to me by the Administrator, written data, views, or arguments promoting safe flight of civil aircraft in the FAA amends 14 CFR part 39 as regarding this AD. Send your comments air commerce by prescribing regulations follows: to an address listed under ADDRESSES. for practices, methods, and procedures Include ‘‘Docket No. FAA–2005–23251; the Administrator finds necessary for PART 39—AIRWORTHINESS Directorate Identifier 2002–NM–20–AD’’ safety in air commerce. This regulation DIRECTIVES at the beginning of your comments. We is within the scope of that authority because it addresses an unsafe condition I 1. The authority citation for part 39 specifically invite comments on the continues to read as follows: overall regulatory, economic, that is likely to exist or develop on environmental, and energy aspects of products identified in this rulemaking Authority: 49 U.S.C. 106(g), 40113, 44701. action. the AD. We will consider all comments § 39.13 [Amended] received by the closing date and may Regulatory Findings amend the AD in light of those I 2. The FAA amends § 39.13 by comments. We have determined that this AD will removing amendment 39–11613 (65 FR not have federalism implications under 12075, March 8, 2000) and adding the We will post all comments we Executive Order 13132. This AD will following new airworthiness directive receive, without change, to http:// not have a substantial direct effect on (AD): dms.dot.gov, including any personal the States, on the relationship between 2005–25–20 Airbus: Amendment 39–14413. information you provide. We will also the national Government and the States, post a report summarizing each Docket No. FAA–2005–23251; or on the distribution of power and Directorate Identifier 2002–NM–20–AD. substantive verbal contact with FAA responsibilities among the various personnel concerning this AD. Using the levels of government. Effective Date search function of our docket web site, For the reasons discussed above, I (a) This airworthiness directive (AD) anyone can find and read the comments certify that the regulation: becomes effective December 29, 2005. in any of our dockets, including the 1. Is not a ‘‘significant regulatory Affected ADs name of the individual who sent the action’’ under Executive Order 12866; comment (or signed the comment on 2. Is not a ‘‘significant rule’’ under the (b) This AD supersedes AD 2000–05–04. behalf of an association, business, labor DOT Regulatory Policies and Procedures Applicability union, etc.). You can review the DOT’s (44 FR 11034, February 26, 1979); and (c) This AD applies to the airplanes, complete Privacy Act Statement in the 3. Will not have a significant certificated in any category, listed in Table 1 Federal Register published on April 11, economic impact, positive or negative, of this AD.
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 73928 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
TABLE 1.—APPLICABILITY
Except those modified in accordance with any applicable service information listed below:
Model— Airbus Service Bulletin— Or Airbus production modification—
Airbus Model A330–301, –321, –322, A330–53–3097, Revision 02, dated A330–53–3112, dated February 15, 46900. –323, –341, –342, and –343 air- November 21, 2000 (Airbus Modi- 2001 (Airbus Modification 46849). planes. fication 46025). Airbus Model A340–211, –212, and A340–53–4108, Revision 02, dated A340–53–4124, dated February 15, 46900. –213 airplanes, and Airbus Model December 6, 2000 (Airbus Modifica- 2001 (Airbus Modification 46849). A340–311, –312, and –313 air- tion 46025). planes.
Unsafe Condition examination of a specific item, installation, dated May 28, 1998, Revision 03, dated (d) This AD was prompted by the need to or assembly to detect damage, failure, or February 22, 2001, or Revision 04, dated July change the applicability of the existing AD irregularity. Available lighting is normally 23, 2001; or Service Bulletin A340–53–4105, and to mandate the formerly optional supplemented with a direct source of good Revision 02, dated May 25, 1998, Revision terminating action. We are issuing this AD to lighting at an intensity deemed appropriate. 03, dated February 22, 2001, or Revision 04, prevent cracking of the fuselage skin in the Inspection aids such as mirror, magnifying dated July 23, 2001; has not been area of the VHF2 antenna, which could result lenses, etc., may be necessary. Surface accomplished before April 12, 2000: in depressurization of the airplane. cleaning and elaborate procedures may be Accomplish the actions specified by required.’’ paragraphs (h)(1)(i) and (h)(1)(ii) of this AD. Compliance (i) Repeat the HFEC inspection specified by (e) You are responsible for having the High Frequency Eddy Current Inspection paragraph (g) at intervals not to exceed 500 actions required by this AD performed within (g) Perform an HFEC inspection to detect flight hours. the compliance times specified, unless the cracks of the fuselage skin aft of frame 54, (ii) Within 300 flight hours after each actions have already been done. between the airplane centerline and stringer HFEC inspection required by this AD: 56R in the area of the VHF2 antenna, in Perform a detailed inspection (without Restatement of Requirements of AD 2000– accordance with Airbus Service Bulletin removal of the VHF2 antenna) of the fuselage 05–04 A330–53–3094, Revision 02, dated May 28, skin aft of frame 54, between the airplane Detailed Inspection 1998, Revision 03, dated February 22, 2001, centerline and stringer 56R in the area of the VHF2 antenna to detect cracks, in accordance or Revision 04, dated July 23, 2001; or (f) At the latest of the times specified in with the applicable service bulletin. Service Bulletin A340–53–4105, Revision 02, paragraphs (f)(1), (f)(2), (f)(3), and (f)(4) of Thereafter, if no cracks are detected, repeat dated May 25, 1998, Revision 03, dated this AD, as applicable: Perform a detailed the detailed inspection at intervals not to February 22, 2001, or Revision 04, dated July inspection (without removal of the VHF2 exceed 36 flight hours until accomplishment antenna) of the fuselage skin aft of frame 54, 23, 2001; at the applicable time specified by of the next HFEC inspection required by between the airplane centerline and stringer paragraph (g)(1) or (g)(2) of this AD. paragraph (h)(1)(i) of this AD. 56R in the area of the VHF2 antenna to detect Accomplishment of this inspection (2) For airplanes on which the interim cracks, in accordance with Airbus Service terminates the requirements of paragraph (f) repair specified by paragraph C.(4) of the Bulletin A330–53–3094, Revision 02, dated of this AD. Accomplishment Instructions of the May 28, 1998, Revision 03, dated February (1) For airplanes on which the interim applicable service bulletin has been 22, 2001, or Revision 04, dated July 23, 2001 repair specified by paragraph C.(4) of the accomplished before April 12, 2000: Repeat (for Model A330 series airplanes); or Airbus Accomplishment Instructions of the the HFEC inspection specified by paragraph Service Bulletin A340–53–4105, Revision 02, applicable service bulletin has not been (g) of this AD at intervals not to exceed 1,250 dated May 25, 1998, Revision 03, dated accomplished before April 12, 2000: Prior to flight hours. February 22, 2001, or Revision 04, dated July the accumulation of 900 total flight hours on 23, 2001 (for Model A340 series airplanes). the airplane, or within 500 flight hours after Corrective Actions Thereafter, if no cracks are detected, repeat April 12, 2000, whichever occurs later. (i) If any crack is detected during any the detailed inspection every 36 flight hours Thereafter, accomplish the follow-on actions inspection required by paragraph (k), (l), or until accomplishment of the high frequency of paragraph (h) or (i) of this AD, as (m) of this AD, and the interim repair eddy current (HFEC) inspection required by applicable. specified by paragraph C.(4) of the paragraph (g) of this AD. (2) For airplanes on which the interim Accomplishment Instructions of Airbus (1) Prior to the accumulation of 900 total repair specified by paragraph C.(4) of the Service Bulletin A330–53–3094, Revision 02, flight hours. Accomplishment Instructions of the dated May 28, 1998, Revision 03, dated (2) Within 1,250 flight hours since applicable service bulletin has been February 22, 2001, or Revision 04, dated July accomplishment of the interim repair accomplished before April 12, 2000: Within 23, 2001; or Service Bulletin A340–53–4105, specified by paragraph C.(4) of the 1,250 flight hours after accomplishment of Revision 02, dated May 25, 1998, Revision Accomplishment Instructions of the the interim repair, or within 500 flight hours 03, dated February 22, 2001, or Revision 04, applicable service bulletin, if the interim after April 12, 2000, whichever occurs later. dated July 23, 2001; has not been repair has been accomplished prior to April accomplished: Prior to further flight, Repetitive Inspections 12, 2000 (the effective date of AD 2000–05– accomplish the actions specified by 04). (h) If no crack is detected during the HFEC paragraph (i)(1) or (i)(2) of this AD, as (3) Within 300 flight hours since the most inspection required by paragraph (g) of this applicable. recent HFEC inspection accomplished in AD, accomplish the repetitive inspections (1) If only one crack is detected and that accordance with the applicable service required by paragraph (h)(1) or (h)(2) of this crack is 9.45 inches or less, and is within the bulletin, if the most recent HFEC inspection AD, as applicable, until the terminating limits specified by the applicable service has been accomplished prior to April 12, action required by paragraph (k) of this AD bulletin: Install the interim repair specified 2000. has been done. in paragraph C.(4) of the Accomplishment (4) Within 36 flight hours after April 12, (1) For airplanes on which the interim Instructions of the applicable service 2000. repair specified by paragraph C.(4) of the bulletin. Thereafter, repeat the HFEC Note 1: For the purposes of this AD, a Accomplishment Instructions of Airbus inspection specified by paragraph (g) of this detailed inspection is: ‘‘An intensive Service Bulletin A330–53–3094, Revision 02, AD at intervals not to exceed 1,250 flight
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 73929
hours, until the terminating action required than one crack is detected: Repair in either paragraph (k)(1) or (k)(2). by paragraph (k) of this AD has been done. accordance with a method approved by the Accomplishment of either action terminates Note 2: The interim repair referenced by Manager, International Branch, ANM–116, the repetitive inspections required by this AD consists of cutting out the cracked Transport Airplane Directorate, FAA; or the paragraphs (f), (g), (h) and (i)(1) of this AD. ´ ´ portion of the fuselage skin, and installing a Direction Generale de l’Aviation Civile (1) Reinforce the fuselage skin between (DGAC) (or its delegated agent). filler plate in the skin cutout, two doublers, FR54 and FR55 in the area of the VHF2 and shims, as described in paragraph C.(4) of (j) If any crack is detected during any inspection required by paragraph (f), (g), or antenna, in accordance with the the Accomplishment Instructions of Airbus Accomplishment Instructions of Airbus Service Bulletin A330–53–3094, Revision 02, (h) of this AD, and the interim repair Service Bulletin A330–53–3097, Revision 02, dated May 28, 1998, Revision 03, dated specified by paragraph C.(4) of the Accomplishment Instructions of Airbus February 22, 2001, or Revision 04, dated July dated November 21, 2000 (for Model A330 Service Bulletin A330–53–3094, Revision 02, 23, 2001 (for Model A330 series airplanes); series airplanes); or A340–53–4108, Revision dated May 28, 1998, Revision 03, dated or Airbus Service Bulletin A340–53–4105, 02, dated December 6, 2000 (for Model A340 February 22, 2001, or Revision 04, dated July Revision 02, dated May 25, 1998, Revision series airplanes); as applicable. 23, 2001; or Airbus Service Bulletin A340– 03, dated February 22, 2001, or Revision 04, (2) Relocate the VHF2 antenna between 53–4105, Revision 02, dated May 25, 1998, dated July 23, 2001 (for Model A340 series stringer 51 and stringer 52, in accordance Revision 03, dated February 22, 2001, or airplanes). Revision 04, dated July 23, 2001; has been with Airbus Service Bulletin A330–53–3112 Note 3: Accomplishment of the interim accomplished: Prior to further flight, repair (for Model A330 series airplanes) or A340– repair in accordance with paragraph 4.3 of in accordance with a method approved by 53–4124 (for Model A340 series airplanes), Airbus Industrie All Operator Telex (AOT) the Manager, International Branch, ANM– both dated February 15, 2001; as applicable. 53–10, dated September 24, 1997, is 116; or the DGAC (or its delegated agent). (l) Work done before the effective date of acceptable for compliance with the this AD in accordance with an applicable New Requirements of This AD requirements of paragraph (i)(1) of this AD. source listed in Table 2 of this AD is (2) If any crack is detected that is longer Terminating Action acceptable for compliance with the than 9.45 inches, or is outside the limits (k) Within 18 months after the effective corresponding requirements of paragraph (k) specified by the service bulletin, or if more date of this AD: Do the actions specified in of this AD.
TABLE 2.—CREDIT FOR PRIOR MODIFICATION
Model Service information Revision Date
A330–300 ...... Airbus Service Bulletin A330–53–3097 ...... Original ...... July 29, 1998. A330–300, A340 ...... Airbus production Modification 46025 ...... (done in production) A340 ...... Airbus Service Bulletin A340–53–4108 ...... Original ...... July 31, 1998.
Alternative Methods of Compliance airplane to which the AMOC applies, notify and 2001–041(B), both dated January 24, (m)(1) In accordance with 14 CFR 39.19, the appropriate principal inspector in the 2001. FAA Flight Standards Certificate Holding the Manager, International Branch, ANM– District Office. Material Incorporated by Reference 116, is authorized to approve alternative (o) Unless otherwise specified in this AD, methods of compliance for this AD. Related Information the actions must be done in accordance with (2) Before using any AMOC approved in (n) The subject of this AD is addressed in the service information listed in Table 3 of accordance with 14 CFR 39.19 on any French airworthiness directives 2001–040(B) this AD, as applicable.
TABLE 3.—MATERIAL INCORPORATED BY REFERENCE
Airbus Service Bulletin Revision level Date
A330–53–3094 ...... 02 ...... May 28, 1998. A330–53–3094 ...... 03 ...... February 22, 2001. A330–53–3094 ...... 04 ...... July 23, 2001. A330–53–3097 ...... 02 ...... November 21, 2000. A330–53–3112 ...... Original ...... February 15, 2001. A340–53–4105 ...... 02 ...... May 25, 1998. A340–53–4105 ...... 03 ...... February 22, 2001. A340–53–4105 ...... 04 ...... July 23, 2001. A340–53–4108 ...... 02 ...... December 6, 2000. A340–53–4124 ...... Original ...... February 15, 2001.
(1) The incorporation by reference of the Register in accordance with 5 U.S.C. 552(a) service information listed in Table 4 of this and 1 CFR part 51. AD is approved by the Director of the Federal
TABLE 4.—MATERIAL NEWLY INCORPORATED BY REFERENCE
Airbus Service Bulletin Revision level Date
A330–53–3094 ...... 03 ...... February 22, 2001. A330–53–3094 ...... 04 ...... July 23, 2001. A330–53–3097 ...... 02 ...... November 21, 2000. A330–53–3112 ...... Original ...... February 15, 2001.
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 73930 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
TABLE 4.—MATERIAL NEWLY INCORPORATED BY REFERENCE—Continued
Airbus Service Bulletin Revision level Date
A340–53–4105 ...... 03 ...... February 22, 2001. A340–53–4105 ...... 04 ...... July 23, 2001. A340–53–4108 ...... 02 ...... December 6, 2000. A340–53–4124 ...... Original ...... February 15, 2001.
(2) The incorporation by reference of the of the Federal Register as of April 12, 2000 service information listed in Table 5 of this (65 FR 12075, March 8, 2000). AD was approved previously by the Director
TABLE 5.—MATERIAL PREVIOUSLY INCORPORATED BY REFERENCE
Revision Airbus Service Bulletin level Date
A330–53–3094 ...... 02 May 28, 1998. A340–53–4105 ...... 02 May 25, 1998.
(3) Copies may be obtained from Airbus, 1 Airbus transport category airplanes. 98055–4056; telephone (425) 227–2125; Rond Point Maurice Bellonte, 31707 Blagnac This AD requires repetitive eddy current fax (425) 227–1149. Cedex, France. Copies may be inspected at inspections for cracks of the stiffener SUPPLEMENTARY INFORMATION: the FAA, Transport Airplane Directorate, fittings of the fuselage at frame (FR) 1601 Lind Avenue, SW., Renton, Washington; or at the National Archives and 12A, and corrective actions if necessary. Examining the Docket This AD also provides a terminating Records Administration (NARA). For You may examine the airworthiness action for the inspections. This AD information on the availability of this directive (AD) docket on the Internet at material at NARA, call (202) 741–6030, or go results from reports of cracks on the http://dms.dot.gov or in person at the to http://www.archives.gov/federal_register/ upper attachment fitting of the stiffener Docket Management Facility office code_of_federal_regulations/ fitting at FR12A. We are issuing this AD _ between 9 a.m. and 5 p.m., Monday ibr locations.html. to prevent failure of the stiffener fittings, through Friday, except Federal holidays. Issued in Renton, Washington, on which could result in the reduced The Docket Management Facility office December 2, 2005. structural integrity of the floor and rods (telephone (800) 647–5227) is located on Kalene C. Yanamura, around FR 12A. the plaza level of the Nassif Building at Acting Manager, Transport Airplane DATES: This AD becomes effective Directorate, Aircraft Certification Service. the street address stated in the January 18, 2006. ADDRESSES section. [FR Doc. 05–23901 Filed 12–13–05; 8:45 am] The Director of the Federal Register BILLING CODE 4910–13–P approved the incorporation by reference Discussion of certain publications listed in the AD The FAA issued a notice of proposed as of January 18, 2006. DEPARTMENT OF TRANSPORTATION rulemaking (NPRM) to amend 14 CFR ADDRESSES: You may examine the AD part 39 to include an AD that would docket on the Internet at http:// Federal Aviation Administration apply to certain Airbus transport dms.dot.gov or in person at the Docket category airplanes. That NPRM was Management Facility, U.S. Department 14 CFR Part 39 published in the Federal Register on of Transportation, 400 Seventh Street, September 12, 2005 (70 FR 53739). That [Docket No. FAA–2005–22384; Directorate SW., Nassif Building, room PL–401, NPRM proposed to require repetitive Identifier 2005–NM–131–AD; Amendment Washington, DC. 39–14412; AD 2005–25–19] eddy current inspections for cracks of Contact Jacques Leborgne, Airbus the stiffener fittings of the fuselage at RIN 2120–AA64 Customer Service Directorate, 1 Rond frame (FR) 12A, and corrective actions Point Maurice Bellonte, 31707 Blagnac if necessary. The NPRM also provided a Airworthiness Directives; Airbus Model Cedex, France, fax (+33) 5 61 93 36 14, terminating action for the inspections. A300 B2 Series Airplanes, Model A300 for service information identified in this B4 Series Airplanes, Model A310–200 AD for Model A300 B2 series airplanes Comments Series Airplanes, Model A310–300 and Model A300 B4 series airplanes. We provided the public the Series Airplanes; and Model A300 B4– Contact Airbus, 1 Rond Point Maurice opportunity to participate in the 600, B4–600R, and F4–600R Series Bellonte, 31707 Blagnac Cedex, France, development of this AD. We received no Airplanes, and Model C4–605R Variant for service information identified in this comments on the NPRM or on the F Airplanes (Collectively Called A300– AD for Model A310–200 series determination of the cost to the public. 600 Series Airplanes) airplanes, Model A310–300 series airplanes, and Model A300–600 series Clarification of Alternative Method of AGENCY: Federal Aviation airplanes. Compliance (AMOC) Paragraph Administration (FAA), Department of Transportation (DOT). FOR FURTHER INFORMATION CONTACT: Dan We have revised this action to clarify ACTION: Final rule. Rodina, Aerospace Engineer, the appropriate procedure for notifying International Branch, ANM–116, FAA, the principal inspector before using any SUMMARY: The FAA is adopting a new Transport Airplane Directorate, 1601 approved AMOC on any airplane to airworthiness directive (AD) for certain Lind Avenue, SW., Renton, Washington which the AMOC applies.
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 73931
Conclusion the national government and the States, Applicability We have carefully reviewed the or on the distribution of power and (c) This AD applies to Airbus Model A300 available data and determined that air responsibilities among the various B2–1A, B2–1C, B2K–3C, and B2–203 safety and the public interest require levels of government. airplanes; Model A300 B4–2C, B4–103, and adopting the AD with the change For the reasons discussed above, I B4–203 airplanes; Model A300 B4–601, B4– 603, B4–620, and B4–622 airplanes; Model described previously. We have certify that this AD: (1) Is not a ‘‘significant regulatory A300 B4–605R and B4–622R airplanes; determined that this change will neither Model A300 F4–605R and F4–622R increase the economic burden on any action’’ under Executive Order 12866; (2) Is not a ‘‘significant rule’’ under airplanes; Model A300 C4–605R Variant F operator nor increase the scope of the airplanes; Model A310–203, –204, –221, and DOT Regulatory Policies and Procedures AD. –222 airplanes; and Model A310–304, –322, (44 FR 11034, February 26, 1979); and –324, and –325 airplanes; certificated in any Costs of Compliance (3) Will not have a significant category; except for airplanes on which This AD will affect about 202 economic impact, positive or negative, Airbus Modification 12662 has been done in airplanes of U.S. registry. The on a substantial number of small entities production. under the criteria of the Regulatory inspection will take between 57 and 64 Unsafe Condition work hours per airplane, at an average Flexibility Act. We prepared a regulatory evaluation (d) This AD results from reports of cracks labor rate of $65 per work hour. Based on the upper attachment fitting of the on these figures, the estimated cost of of the estimated costs to comply with this AD and placed it in the AD docket. stiffener fitting at frame (FR) 12A. We are the inspection for U.S. operators is issuing this AD to prevent failure of the between $748,410 and $840,320, or See the ADDRESSES section for a location stiffener fittings, which could result in the between $3,705 and $4,160 per airplane, to examine the regulatory evaluation. reduced structural integrity of the floor and per inspection cycle. List of Subjects in 14 CFR Part 39 rods around FR12A. Authority for This Rulemaking Air transportation, Aircraft, Aviation Compliance Title 49 of the United States Code safety, Incorporation by reference, (e) You are responsible for having the specifies the FAA’s authority to issue Safety. actions required by this AD performed within rules on aviation safety. Subtitle I, the compliance times specified, unless the Adoption of the Amendment actions have already been done. Section 106, describes the authority of the FAA Administrator. Subtitle VII, I Accordingly, under the authority Inspections Aviation Programs, describes in more delegated to me by the Administrator, (f) At the applicable initial inspection detail the scope of the Agency’s the FAA amends 14 CFR part 39 as threshold specified in Table 1 of this AD or authority. follows: within the applicable grace period specified We are issuing this rulemaking under in Table 2 of this AD, whichever occurs later: the authority described in Subtitle VII, PART 39—AIRWORTHINESS Do an eddy current inspection for cracks of Part A, Subpart III, Section 44701, DIRECTIVES the stiffener fittings of the fuselage at FR 12A, in accordance with the Accomplishment ‘‘General requirements.’’ Under that I 1. The authority citation for part 39 section, Congress charges the FAA with Instructions of Airbus Service Bulletin A300– continues to read as follows: 53–0365, Revision 01 (for Model A300 B2– promoting safe flight of civil aircraft in Authority: 49 U.S.C. 106(g), 40113, 44701. 1A, B2–1C, B2K–3C, and B2–203 airplanes, air commerce by prescribing regulations and Model A300 B4–2C, B4–103, and B4–203 for practices, methods, and procedures § 39.13 [Amended] airplanes); Airbus Service Bulletin A300–53– the Administrator finds necessary for I 6138, Revision 01 (for Model A300 B4–601, safety in air commerce. This regulation 2. The Federal Aviation B4–603, B4–620, and B4–622 airplanes, is within the scope of that authority Administration (FAA) amends § 39.13 Model A300 B4–605R and B4–622R because it addresses an unsafe condition by adding the following new airplanes, Model A300 F4–605R and F4– that is likely to exist or develop on airworthiness directive (AD): 622R airplanes, and Model A300 C4–605R products identified in this rulemaking 2005–25–19 Airbus: Amendment 39–14412. Variant F airplanes); or Airbus Service action. Docket No. FAA–2005–22384; Bulletin A310–53–2117, Revision 01 (for Directorate Identifier 2005–NM–131–AD. Model A310–203, –204, –221, and –222 Regulatory Findings airplanes, and Model A310–304, –322, –324, Effective Date and –325 airplanes); all dated April 4, 2005; We have determined that this AD will (a) This AD becomes effective January 18, as applicable. Repeat the inspection not have federalism implications under 2006. thereafter at intervals not to exceed the Executive Order 13132. This AD will applicable compliance time specified in not have a substantial direct effect on Affected ADs Table 1 of this AD until the actions specified the States, on the relationship between (b) None. in paragraph (h) of this AD are done.
TABLE 1.—COMPLIANCE TIMES FOR INITIAL AND REPETITIVE INSPECTIONS
And repeat at intervals For airplanes identified as— Do the initial inspection prior to the accumulation of— not to exceed—
Configuration 01 in Airbus Service Bulletin A300–53– 19,300 total flight cycles ...... 11,450 flight cycles. 0365, Revision 01, dated April 4, 2005. Configuration 02 in Airbus Service Bulletin A300–53– 15,500 total flight cycles ...... 9,200 flight cycles. 0365, Revision 01, dated April 4, 2005. Configuration 01 in Airbus Service Bulletin A300–53– 19,300 total flight cycles ...... 11,450 flight cycles. 6138, Revision 01, dated April 4, 2005. Configuration 02 in Airbus Service Bulletin A300–53– 17,600 total flight cycles ...... 11,450 flight cycles. 6138, Revision 01, dated April 4, 2005. Configuration 03 in Airbus Service Bulletin A300–53– 12,700 total flight cycles ...... 8,000 flight cycles. 6138, Revision 01, dated April 4, 2005.
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 73932 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
TABLE 1.—COMPLIANCE TIMES FOR INITIAL AND REPETITIVE INSPECTIONS—Continued
And repeat at intervals For airplanes identified as— Do the initial inspection prior to the accumulation of— not to exceed—
Configuration 04 in Airbus Service Bulletin A300–53– 10,200 total flight cycles ...... 6,400 flight cycles. 6138, Revision 01, dated April 4, 2005. Configuration 01 in Airbus Service Bulletin A310–53– 19,300 total flight cycles ...... 11,450 flight cycles. 2117, Revision 01, dated April 4, 2005. Configuration 02 in Airbus Service Bulletin A310–53– 17,600 total flight cycles ...... 11,450 flight cycles. 2117, Revision 01, dated April 4, 2005. Configuration 03 in Airbus Service Bulletin A310–53– 12,700 total flight cycles ...... 8,000 flight cycles. 2117, Revision 01, dated April 4, 2005.
TABLE 2.—GRACE PERIOD FOR THE INITIAL INSPECTION
For Airbus Model— Grace period is—
A300 B2–1A, B2–1C, B2K–3C, and B2–203 airplanes...... Within 2,500 flight cycles after the effective date of this AD. A300 B4–2C, B4–103, and B4–203 airplanes; A300 B4–601, B4–603, B4–620, and B4–622 Within 2,000 flight cycles after the effective airplanes; A300 B4–605R and B4–622R airplanes; A300 F4–605R and F4–622R airplanes; date of this AD. A300 C4–605R Variant F airplanes; A310–203, –204, –221, and –222 airplanes; and A310– 304, –322, –324, and –325 airplanes.
Corrective Action airplanes); Airbus Service Bulletin A300–53– information, before further flight, do the (g) If any cracking is found during any 6137, Revision 03, dated April 4, 2005 (for terminating action according to a method inspection required by paragraph (f) of this Model A300 B4–601, B4–603, B4–620, and approved by either the Manager, B4–622 airplanes, Model A300 B4–605R and AD, before further flight, do the replacement International Branch, ANM–116, Transport B4–622R airplanes, Model A300 F4–605R Airplane Directorate, FAA; or the DGAC (or and installation specified in paragraph (h) of and F4–622R airplanes, and Model A300 C4– this AD. 605R Variant F airplanes); or Airbus Service its delegated agent). Terminating Action Bulletin A310–53–2116, Revision 02, dated Actions Accomplished According to September 24, 2004 (for Model A310–203, Previous Issue of Service Bulletin (h) Replacing the existing fitting on FR12A –204, –221, and –222 airplanes, and Model with a FR12A crossbeam and installing a new A310–304, –322, –324, and –325 airplanes); (j) Actions accomplished before the web between FR12A and FR13 at stringer 26 as applicable; and except as required by effective date of this AD according to the in accordance with Airbus Service Bulletin paragraph (i) of this AD; constitutes Airbus service bulletins specified in Table 3 A300–53–0364, Revision 02, dated terminating action for the requirements of of this AD are considered acceptable for September 24, 2004 (for Model A300 B2–1A, this AD. compliance with the corresponding actions B2–1C, B2K–3C, and B2–203 airplanes, and (i) Where the service bulletins specify to specified in this AD. Model A300 B4–2C, B4–103, and B4–203 contact the manufacturer for certain
TABLE 3.—PREVIOUS ISSUES OF SERVICE BULLETINS
Airbus Service Bulletin Revision level Date
A300–53–0364 ...... Original ...... December 1, 2003. A300–53–0364 ...... 01 ...... May 5, 2004. A300–53–0365 ...... Original ...... December 1, 2003. A300–53–6137 ...... Original ...... December 1, 2003. A300–53–6137 ...... 01 ...... May 5, 2004. A300–53–6137 ...... 02 ...... September 24, 2004. A300–53–6138 ...... Original ...... December 1, 2003. A310–53–2116 ...... Original ...... December 1, 2003. A310–53–2116 ...... 01 ...... May 5, 2004. A310–53–2117 ...... Original ...... December 1, 2003.
No Reporting Required (2) Before using any AMOC approved in Material Incorporated by Reference (k) Although the service bulletins accordance with § 39.19 on any airplane to (n) You must use the service information referenced in this AD specify to submit which the AMOC applies, notify the listed in Table 4 of this AD to perform the certain information to the manufacturer, this appropriate principal inspector in the FAA actions that are required by this AD, unless AD does not include that requirement. Flight Standards Certificate Holding District the AD specifies otherwise. The Director of Office. the Federal Register approved the Alternative Methods of Compliance incorporation by reference of these (AMOCs) Related Information documents in accordance with 5 U.S.C. (l)(1) The Manager, International Branch, (m) French airworthiness directive F– 552(a) and 1 CFR part 51. Contact Jacques ANM–116, Transport Airplane Directorate, 2005–084, dated May 25, 2005, also Leborgne, Airbus Customer Service FAA, has the authority to approve AMOCs addresses the subject of this AD. Directorate, 1 Rond Point Maurice Bellonte, for this AD, if requested in accordance with 31707 Blagnac Cedex, France, fax (+33) 5 61 the procedures found in 14 CFR 39.19. 93 36 14, for service information identified
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 73933
in this AD for Airbus Model A300 B2–1A, airplanes; Airbus Model A300 F4–605R and Washington, DC; on the Internet at http:// B2–1C, B2K–3C, and B2–203 airplanes; and F4–622R airplanes; Airbus Model A300 C4– dms.dot.gov; or at the National Archives and Airbus Model A300 B4–2C, B4–103, and B4– 605R Variant F airplanes; Model A310–203, Records Administration (NARA). For 203 airplanes. Contact Airbus, 1 Rond Point –204, –221, and –222 airplanes; and Airbus information on the availability of this Maurice Bellonte, 31707 Blagnac Cedex, Model A310–304, –322, –324, and –325 material at the NARA, call (202) 741–6030, France, for service information identified in airplanes. You may review copies at the or go to http://www.archives.gov/ this AD for Airbus Model A300 B4–601, B4– Docket Management Facility, U.S. _ _ _ _ 603, B4–620, and B4–622 airplanes; Airbus Department of Transportation, 400 Seventh federal register/code of federal regulations/ _ Model A300 B4–605R and B4–622R Street, SW., room PL–401, Nassif Building, ibr locations.html.
TABLE 4.—MATERIAL INCORPORATED BY REFERENCE
Revision Airbus Service Bulletin level Date
A300–53–0364 ...... 02 September 24, 2004. A300–53–0365, excluding Appendix 01 ...... 01 April 4, 2005. A300–53–6137 ...... 03 April 4, 2005. A300–53–6138, excluding Appendix 01 ...... 01 April 4, 2005. A310–53–2116 ...... 02 September 24, 2004. A310–53–2117, excluding Appendix 01 ...... 01 April 4, 2005.
Issued in Renton, Washington, on ignition source, could result in a fire or EMB–135BJ, –135ER, –135KE, –135KL, December 2, 2005. explosion. and –135LR airplanes; and Model EMB– Kalene C. Yanamura, DATES: This AD becomes effective 145, –145ER, –145MR, –145LR, –145XR, Acting Manager, Transport Airplane January 18, 2006. –145MP, and –145EP airplanes. That Directorate, Aircraft Certification Service. The Director of the Federal Register NPRM was published in the Federal [FR Doc. 05–23900 Filed 12–13–05; 8:45 am] approved the incorporation by reference Register on September 29, 2005 (70 FR BILLING CODE 4910–13–P of certain publications listed in the AD 56858). That NPRM proposed to require as of January 18, 2006. modifying the drain system of the ADDRESSES: You may examine the AD auxiliary power unit (APU) by installing DEPARTMENT OF TRANSPORTATION docket on the Internet at http:// a scavenge pump and, for certain airplanes, replacing the APU exhaust Federal Aviation Administration dms.dot.gov or in person at the Docket Management Facility, U.S. Department assembly. 14 CFR Part 39 of Transportation, 400 Seventh Street, Comments SW., Nassif Building, room PL–401, We provided the public the [Docket No. FAA–2005–22525; Directorate Washington, DC. Identifier 2005–NM–149–AD; Amendment For service information identified in opportunity to participate in the 39–14410; AD 2005–25–17] this AD, contact Empresa Brasileira de development of this AD. We received no RIN 2120–AA64 Aeronautica S.A. (EMBRAER), P.O. Box comments on the NPRM or on the 343—CEP 12.225, Sao Jose dos determination of the cost to the public. Airworthiness Directives; Empresa Campos—SP, Brazil. Changes to Proposed AD Brasileira de Aeronautica S.A. FOR FURTHER INFORMATION CONTACT: (EMBRAER) Model EMB–135BJ, Since we issued the proposed AD, Todd Thompson, Aerospace Engineer, EMBRAER has revised Service Bulletin –135ER, –135KE, –135KL, and –135LR International Branch, ANM–116, Airplanes; and Model EMB–145, 145–49–0029, which was cited in the Transport Airplane Directorate, FAA, proposed AD as the appropriate source 145ER, –145MR, –145LR, –145XR, 1601 Lind Avenue, SW., Renton, –145MP, and –145EP Airplanes of service information for the Washington 98055–4056; telephone modification on all but Model EMB– AGENCY: Federal Aviation (425) 227–1175; fax (425) 227–1149. 135BJ airplanes. The procedures in Administration (FAA), Department of SUPPLEMENTARY INFORMATION: Revision 02, dated October 14, 2005, are Transportation (DOT). Examining the Docket essentially the same as those described ACTION: Final rule. in the original version. We have revised You may examine the airworthiness paragraph (f) in this AD accordingly. SUMMARY: The FAA is adopting a new directive (AD) docket on the Internet at airworthiness directive (AD) for certain http://dms.dot.gov or in person at the Conclusion EMBRAER airplanes listed above. This Docket Management Facility office We have carefully reviewed the AD requires modifying the drain system between 9 a.m. and 5 p.m., Monday available data and determined that air of the auxiliary power unit (APU) by through Friday, except Federal holidays. safety and the public interest require installing a scavenge pump and, for The Docket Management Facility office adopting the AD with the changes certain airplanes, replacing the APU (telephone (800) 647–5227) is located on described previously. exhaust assembly. This AD results from the plaza level of the Nassif Building at Costs of Compliance a report of fuel leaking from the APU the street address stated in the feeding line and accumulating inside ADDRESSES section. This AD affects about 800 airplanes of the APU compartment because the drain U.S. registry. The pump installation system is inadequate when the APU is Discussion takes about 15 work hours per airplane, running. We are issuing this AD to The FAA issued a notice of proposed at an average labor rate of $65 per work prevent fuel accumulation and rulemaking (NPRM) to amend 14 CFR hour. Required parts cost about $1,768 subsequent flammable fuel vapors in the part 39 to include an AD that would or $1,967 per airplane. Based on these APU cowling, which, combined with an apply to certain EMBRAER Model figures, the estimated cost of this action
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 73934 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
for U.S. operators is $2,194,400– List of Subjects in 14 CFR Part 39 145LEG–49–0006 (for Model EMB–135BJ airplanes), dated April 20, 2005; or 145–49– $2,353,600, or $2,743 or $2,942 per Air transportation, Aircraft, Aviation airplane. 0029 (for all remaining airplanes), Revision safety, Incorporation by reference, 02, dated October 14, 2005. A modification The number of airplanes subject to the Safety. APU exhaust assembly replacement is before the effective date of this AD in unknown. If accomplished, this action Adoption of the Amendment accordance with EMBRAER Service Bulletin would take about 6–7 work hours per 145–49–0029, dated April 20, 2005; or I Accordingly, under the authority airplane, at an average labor rate of $65 Revision 01, dated July 13, 2005, is also delegated to me by the Administrator, per work hour. Required parts would acceptable for compliance with the the FAA amends 14 CFR part 39 as requirements of this paragraph, as applicable. cost about $9,828 or $12,844 per follows: airplane. Based on these figures, the Concurrent Requirements estimated cost of this action for U.S. PART 39—AIRWORTHINESS (g) For airplanes with an APU cowling part operators is $10,218–$13,299 per DIRECTIVES number 145–52979–401 or 145–52979–403: airplane. Before or concurrently with the pump drain I 1. The authority citation for part 39 Authority for This Rulemaking installation required by paragraph (f) of this continues to read as follows: AD, replace the APU exhaust assembly by Title 49 of the United States Code Authority: 49 U.S.C. 106(g), 40113, 44701. doing all actions specified in the specifies the FAA’s authority to issue Accomplishment Instructions of EMBRAER rules on aviation safety. Subtitle I, § 39.13 [Amended] Service Bulletin 145–49–0023, Revision 01, section 106, describes the authority of I 2. The Federal Aviation dated April 25, 2005. Replacement before the the FAA Administrator. Subtitle VII, Administration (FAA) amends § 39.13 effective date of this AD in accordance with Aviation Programs, describes in more by adding the following new EMBRAER Service Bulletin 145–49–0023, dated November 23, 2004, is also acceptable detail the scope of the Agency’s airworthiness directive (AD): authority. for compliance with the requirements of this We are issuing this rulemaking under 2005–25–17 Empresa Brasileira de paragraph. the authority described in subtitle VII, Aeronautica S.A. (EMBRAER): Amendment 39–14410. Docket No. Alternative Methods of Compliance part A, subpart III, section 44701, FAA–2005–22525; Directorate Identifier (AMOCs) ‘‘General requirements.’’ Under that 2005–NM–149–AD. (h)(1) The Manager, International Branch, section, Congress charges the FAA with ANM–116, Transport Airplane Directorate, Effective Date promoting safe flight of civil aircraft in FAA, has the authority to approve AMOCs air commerce by prescribing regulations (a) This AD becomes effective January 18, for this AD, if requested in accordance with for practices, methods, and procedures 2006. the procedures found in 14 CFR 39.19. the Administrator finds necessary for Affected ADs (2) Before using any AMOC approved in accordance with § 39.19 on any airplane to safety in air commerce. This regulation (b) None. is within the scope of that authority which the AMOC applies, notify the because it addresses an unsafe condition Applicability appropriate principal inspector in the FAA that is likely to exist or develop on (c) This AD applies to EMBRAER Model Flight Standards Certificate Holding District products identified in this rulemaking EMB–135BJ, –135ER, –135KE, –135KL, and Office. action. –135LR airplanes; and Model EMB–145, Related Information –145ER, –145MR, –145LR, –145XR, –145MP, Regulatory Findings and –145EP airplanes; certificated in any (i) Brazilian airworthiness directive 2005– 08–05, effective September 6, 2005, also We have determined that this AD will category; equipped with Model C–14 addresses the subject of this AD. not have federalism implications under auxiliary power units (APUs); except those airplanes with serial numbers 14500927 and Material Incorporated by Reference Executive Order 13132. This AD will subsequent. not have a substantial direct effect on (j) To perform the actions that are required the States, on the relationship between Unsafe Condition by this AD, unless the AD specifies the national government and the States, (d) This AD results from a report of fuel otherwise, you must use the service bulletins or on the distribution of power and leaking from the APU feeding line and identified in Table 1 of this AD, as responsibilities among the various accumulating inside the APU compartment applicable. The Director of the Federal levels of government. because the drain system is inadequate when Register approved the incorporation by For the reasons discussed above, I the APU is running. We are issuing this AD reference of these documents in accordance certify that this AD: to prevent fuel accumulation and subsequent with 5 U.S.C. 552(a) and 1 CFR part 51. For (1) Is not a ‘‘significant regulatory flammable fuel vapors in the APU cowling, a copy of this service information, contact which, combined with an ignition source, Empresa Brasileira de Aeronautica S.A. action’’ under Executive Order 12866; could result in a fire or explosion. (2) Is not a ‘‘significant rule’’ under (EMBRAER), P.O. Box 343—CEP 12.225, Sao DOT Regulatory Policies and Procedures Compliance Jose dos Campos—SP, Brazil. You may review copies at the Docket Management (44 FR 11034, February 26, 1979); and (e) You are responsible for having the (3) Will not have a significant actions required by this AD performed within Facility, U.S. Department of Transportation, economic impact, positive or negative, the compliance times specified, unless the 400 Seventh Street, SW., room PL–401, actions have already been done. Nassif Building, Washington, DC; on the on a substantial number of small entities internet at http://dms.dot.gov; or at the under the criteria of the Regulatory Installation of Scavenge Pump Drain National Archives and Records Flexibility Act. (f) Within 5,000 flight hours after the Administration (NARA). For information on We prepared a regulatory evaluation effective date of this AD, modify the APU the availability of this material at the NARA, of the estimated costs to comply with compartment drain system by installing a call (202) 741–6030, or go to http:// this AD and placed it in the AD docket. scavenge pump on it by doing all actions www.archives.gov/federal_register/ See the ADDRESSES section for a location specified in the Accomplishment code_of_federal_regulations/ to examine the regulatory evaluation. Instructions of EMBRAER Service Bulletin ibr_locations.html.
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 73935
TABLE 1.—MATERIAL INCORPORATED BY REFERENCE
Service bulletin Revision level Date
EMBRAER Service Bulletin 14LEG–49–0006 ...... Original ...... April 20, 2005. EMBRAER Service Bulletin 145–49–0029 ...... 02 ...... October 14, 2005. EMBRAER Service Bulletin 145–49–0023 ...... 01 ...... April 25, 2005.
Issued in Renton, Washington, on The Director of the Federal Register Supportive Comment December 2, 2005. approved the incorporation by reference One commenter concurs with the Kalene C. Yanamura, of certain publications listed in the AD content of the NPRM. Acting Manager, Transport Airplane as of January 18, 2006. Requests To Extend Compliance Time Directorate, Aircraft Certification Service. ADDRESSES: You may examine the AD [FR Doc. 05–23899 Filed 12–13–05; 8:45 am] docket on the Internet at http:// Several commenters ask that the BILLING CODE 4910–13–P dms.dot.gov or in person at the Docket compliance time for the actions Management Facility, U.S. Department specified in paragraph (f) of the NPRM of Transportation, 400 Seventh Street, be extended to 36 months. The DEPARTMENT OF TRANSPORTATION SW., Nassif Building, room PL–401, commenters make their requests to extend the compliance time for several Federal Aviation Administration Washington, DC. Contact Boeing Commercial reasons, including: • To align the proposed actions with 14 CFR Part 39 Airplanes, P.O. Box 3707, Seattle, Washington 98124–2207, for service existing maintenance schedules for [Docket No. FAA–2005–21715; Directorate information identified in this AD. corresponding levels of maintenance on Identifier 2004–NM–277–AD; Amendment escape slide systems and increased FOR FURTHER INFORMATION CONTACT: Sue 39–14416; AD 2005–25–23] efficiency and management of spare Rosanske, Aerospace Engineer, Cabin RIN 2120–AA64 parts stocks of escape slides. Safety and Environmental Systems • To correspond with the compliance Branch, ANM–150S, FAA, Seattle Airworthiness Directives; Boeing time specified in the Goodrich service Aircraft Certification Office, 1601 Lind Model 767–200 and –300 Series information (referenced in the NPRM) of Avenue, SW., Renton, Washington Airplanes accomplishing the actions at the next 98055–4056; telephone (425) 917–6448; scheduled maintenance visit. AGENCY: Federal Aviation fax (425) 917–6590. • To be consistent with slide Administration (FAA), Department of SUPPLEMENTARY INFORMATION: restoration intervals that allow the Transportation (DOT). modifications of the inflation cylinder Examining the Docket ACTION: Final rule. to be accomplished in a controlled shop You may examine the airworthiness environment. In addition, SUMMARY: The FAA is adopting a new directive (AD) docket on the Internet at accomplishing the actions within 18 airworthiness directive (AD) for certain http://dms.dot.gov or in person at the months would require operators to Boeing Model 767–200 and –300 series Docket Management Facility office significantly increase spare parts stock airplanes. This AD requires measuring between 9 a.m. and 5 p.m., Monday for escape slides, which would cause an the turnbuckle gap of the inflation through Friday, except Federal holidays. undue burden and substantial cost cylinder of the off-wing emergency The Docket Management Facility office increase. escape slide; corrective action if (telephone (800) 647–5227) is located on • To be consistent with the removal necessary; and installing a safety device the plaza level of the Nassif Building at of the off-wing escape slide cylinders on the inflation cylinder of the off-wing the street address stated in the from the airplane for cylinder emergency escape slide. This AD results ADDRESSES section. hydrostatic testing and overhaul, which from a report indicating that the eliminates the need for multiple inflation trigger cable may inadvertently Discussion removals. Additional removals would disconnect from the inflation turnbuckle The FAA issued a notice of proposed increase the potential for injuries to of the inflation cylinder of the off-wing rulemaking (NPRM) to amend 14 CFR maintenance personnel and damage to emergency escape slide, due to incorrect part 39 to include an AD that would parts. spacing of the cable insertion gap; and apply to certain Boeing Model 767–200 We agree that the compliance time additional reports indicating that the and –300 series airplanes. That NPRM may be extended. We have reconsidered pull force increase mechanism on the was published in the Federal Register the urgency of the unsafe condition and off-wing charged cylinder assemblies of on July 6, 2005 (70 FR 38821). That the amount of work related to the the escape slide may be inadvertently NPRM proposed to require measuring required actions, in addition to the fact disengaged. We are issuing this AD to the turnbuckle gap of the inflation that our intent was to require the actions prevent failed deployment of the cylinder of the off-wing emergency be accomplished during regular emergency escape slide during an escape slide; corrective action if maintenance visits. We find that emergency, which could impede an necessary; and installing a safety device extending the compliance time from 18 evacuation and result in injury to on the inflation cylinder of the off-wing to 36 months will not adversely affect passengers or airplane crewmembers, or emergency escape slide. safety, and, for the majority of affected inadvertent inflation and loss of an operators, will allow the required emergency escape slide during flight, Comments actions to be performed during regularly which could result in possible structural We provided the public the scheduled maintenance at a base where damage to the airplane. opportunity to participate in the special equipment and trained DATES: This AD becomes effective development of this AD. We have maintenance personnel will be available January 18, 2006. considered the comments received. if necessary. We have changed the
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 73936 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
compliance time for accomplishing the Costs of Compliance this AD and placed it in the AD docket. actions required by paragraph (f) of this There are about 696 airplanes of the See the ADDRESSES section for a location AD accordingly. affected design in the worldwide fleet. to examine the regulatory evaluation. Request To Revise Goodrich Service This AD will affect about 297 airplanes List of Subjects in 14 CFR Part 39 Bulletin of U.S. registry. Air transportation, Aircraft, Aviation Two commenters ask that Goodrich The inspection takes about 1 work safety, Incorporation by reference, Service Bulletin 130104–25–328, hour per airplane, at an average labor Safety. Revision 1, dated July 23, 2003, rate of $65 per work hour. Based on Adoption of the Amendment referenced in the NPRM as an additional these figures, the estimated cost of the source of service information for inspection for U.S. operators is $19,305, I Accordingly, under the authority accomplishing the actions, be revised to or $65 per airplane. delegated to me by the Administrator, include a change to the part numbers for The safety device installation takes the FAA amends 14 CFR part 39 as modified off-wing cylinder assemblies. about 3 work hours per airplane, at an follows: One commenter states that this should average labor rate of $65 per work hour. be done in order to track compliance Required parts cost is minimal. Based PART 39—AIRWORTHINESS with the AD. on these figures, the estimated cost of DIRECTIVES We disagree with the commenters’ the installation for U.S. operators is $57,915, or $195 per airplane. I 1. The authority citation for part 39 request. Revision 1 of the service continues to read as follows: bulletin already specifies a change to Authority for This Rulemaking the part numbers for the off-wing Authority: 49 U.S.C. 106(g), 40113, 44701. Title 49 of the United States Code cylinder assemblies and the regulator specifies the FAA’s authority to issue § 39.13 [Amended] valve to account for the modification. rules on aviation safety. Subtitle I, I 2. The Federal Aviation The parts are identified in Table 6 of the section 106, describes the authority of Administration (FAA) amends § 39.13 Accomplishment Instructions of the the FAA Administrator. Subtitle VII, by adding the following new service bulletin. We have made no Aviation Programs, describes in more airworthiness directive (AD): change to the AD in this regard. detail the scope of the Agency’s 2005–25–23 Boeing: Amendment 39–14416. Request To Increase Work Hours authority. Docket No. FAA–2005–21715; One commenter asks that we increase We are issuing this rulemaking under Directorate Identifier 2004–NM–277–AD. the amount of time needed to complete the authority described in subtitle VII, Effective Date part A, subpart III, section 44701, the proposed actions to 6 work hours (a) This AD becomes effective January 18, per airplane. ‘‘General requirements.’’ Under that 2006. We do not agree that it is necessary section, Congress charges the FAA with to revise the work hour estimates of the promoting safe flight of civil aircraft in Affected ADs NPRM, which reflect only the actual air commerce by prescribing regulations (b) None. time needed for accomplishing the for practices, methods, and procedures Applicability the Administrator finds necessary for actions based on the best data available (c) This AD applies to Boeing Model 767– from the manufacturer. The work hours safety in air commerce. This regulation 200 and –300 series airplanes; certificated in do not include the time for planning, is within the scope of that authority any category; equipped with off-wing access and close, and associated because it addresses an unsafe condition emergency escape slides; as identified in administrative actions. The compliance that is likely to exist or develop on Boeing Special Attention Service Bulletin times in this AD should allow ample products identified in this rulemaking 767–25–0358, dated September 18, 2003; and time for operators to do the required action. Boeing Special Attention Service Bulletin 767–25–0317, dated June 27, 2002. actions at the same time as scheduled Regulatory Findings major airplane inspection and Unsafe Condition We have determined that this AD will maintenance activities, which would (d) This AD was prompted by a report reduce the additional time associated not have federalism implications under indicating that the inflation trigger cable may with special scheduling. We have made Executive Order 13132. This AD will inadvertently disconnect from the inflation no change to the AD in this regard. not have a substantial direct effect on turnbuckle of the inflation cylinder of the off- the States, on the relationship between wing emergency escape slide, due to Clarification of Alternative Method of the national government and the States, incorrect spacing of the cable insertion gap; Compliance (AMOC) Paragraph or on the distribution of power and and additional reports indicating that the We have changed this AD to clarify responsibilities among the various pull force increase mechanism (PFIM) on the the appropriate procedure for notifying levels of government. off-wing charged cylinder assemblies of the For the reasons discussed above, I escape slide may be inadvertently the principal inspector before using any disengaged. We are issuing this AD to approved AMOC on any airplane to certify that this AD: prevent failed deployment of the emergency which the AMOC applies. (1) Is not a ‘‘significant regulatory escape slide during an emergency, which action’’ under Executive Order 12866; Conclusion could impede an evacuation and result in (2) Is not a ‘‘significant rule’’ under injury to passengers or airplane We have carefully reviewed the DOT Regulatory Policies and Procedures crewmembers, or inadvertent inflation and available data, including the comments (44 FR 11034, February 26, 1979); and loss of an emergency escape slide during received, and determined that air safety (3) Will not have a significant flight, which could result in possible and the public interest require adopting economic impact, positive or negative, structural damage to the airplane. the AD with the changes described on a substantial number of small entities Compliance previously. We have determined that under the criteria of the Regulatory (e) You are responsible for having the these changes will neither increase the Flexibility Act. actions required by this AD performed within economic burden on any operator nor We prepared a regulatory evaluation the compliance times specified, unless the increase the scope of the AD. of the estimated costs to comply with actions have already been done.
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 73937
Measurement/Corrective Action federal_register/code_of_federal_regulations/ Regulatory Information _ (f) Within 36 months after the effective ibr locations.html. date of this AD: Accomplish the actions Issued in Renton, Washington, on Under 5 U.S.C. 553(d)(3), the Coast specified in paragraphs (f)(1) and (f)(2) of this December 6, 2005. Guard finds that good cause exists for AD. Kevin M. Mullin, making this rule effective less than 30 (1) Measure the turnbuckle gap of the Acting Manager, Transport Airplane days after publication in the Federal inflation cylinder of the off-wing emergency Directorate, Aircraft Certification Service. Register. Preliminary analysis indicates escape slides to ensure it meets the [FR Doc. 05–23957 Filed 12–13–05; 8:45 am] that most vessel operators will not be maximum allowable spacing limit and do inconvenienced by the special applicable corrective actions by doing all the BILLING CODE 4910–13–P actions specified in the Accomplishment operations. Large oceangoing vessels do Instructions of Boeing Special Attention not normally travel this far upstream on Service Bulletin 767–25–0358, dated DEPARTMENT OF HOMELAND the Willamette and the majority of September 18, 2003. Accomplish any SECURITY recreational vessels can pass the corrective action before further flight in drawbridge without an opening. Tugs accordance with the service bulletin. Coast Guard and tows are the most common vessels (2) Install a safety device on the PFIM of that would have to proceed with extra the inflation cylinder of the off-wing emergency escape slides, and part-mark the 33 CFR Part 117 caution. There is a single frequent user of the drawspan, who agreed to the plan inflation cylinder as applicable, by doing all [CGD13–05–023] the actions specified in the Accomplishment prior to publication of the NPRM. The Instructions of Boeing Special Attention RIN 1625–AA09 Burnside Bridge is part of a heavily Service Bulletin 767–25–0317, dated June 27, traveled commuter arterial that serves 2002. Drawbridge Operation Regulations; downtown Portland. Note 1: Goodrich Service Bulletins Willamette River, Portland, OR 130104–25–342, dated July 23, 2003; and Background and Purpose 130104–25–328, Revision 1, dated July 23, AGENCY: Coast Guard, DHS. 2003; may be used as additional sources of ACTION: Final rule. The operating regulations currently in service information for accomplishing the effect for the drawbridges on the actions. SUMMARY: The Coast Guard is revising Willamette River are at 33 CFR 117.897. the drawbridge operation regulations for The regulations as they are currently Parts Installation bridges on the Willamette River, written are confusing as to which (g) As of the effective date of this AD, no Oregon. The modification will exceptions apply to which bridge. The person may install an inflation cylinder of reorganize the text into a more reorganization of the text will enhance the off-wing emergency escape slides on any understandable format with minor airplane, unless it has been modified and facilitate comprehension of the editing of the regulations and change regulations’ meaning. according to paragraph (f) of this AD. the operating regulations for the draw of Alternative Methods of Compliance the Burnside Bridge across the The rule will enable Multnomah (AMOCs) Willamette River, mile 12.4, at Portland, County, the owner of the Burnside Bridge, to rehabilitate the structure. The (h)(1) The Manager, Seattle Aircraft Oregon. The change will enable the Certification Office, FAA, has the authority to bridge owner to provide single-leaf work includes repairing the drawbridge approve AMOCs for this AD, if requested in operation of the Burnside Bridge, except mechanism, replacing the concrete deck accordance with the procedures found in 14 during the Rose Festival, to facilitate and repairing corroded steel. One side CFR 39.19. major structural and mechanical will be disabled throughout the period. (2) Before using any AMOC approved in rehabilitation of the bridge. The operable side will be indicated via accordance with 14 CFR 39.19 on any Local Notice to Mariners. airplane to which the AMOC applies, notify DATES: This rule is effective January 2, the appropriate principal inspector in the 2006. The Burnside Bridge in the closed FAA Flight Standards Certificate Holding ADDRESSES: Comments and materials position provides 65.5 feet of vertical District Office. received from the public, as well as clearance above 0.0 datum Corps of Engineers at the center of the bascule Material Incorporated by Reference documents indicated in this preamble as being available in the docket, are part of and 205 feet of horizontal clearance. (i) You must use Boeing Special Attention Drawbridge openings are provided on Service Bulletin 767–25–0358, dated docket [CG13–05–023] and are available September 18, 2003; and Boeing Special for inspection or copying at the average 40 times monthly for Attention Service Bulletin 767–25–0317, Waterways Management Branch recreational vessels, tugs and tows, and dated June 27, 2002; as applicable, to perform between 7:30 a.m. and 4 p.m., Monday floating construction equipment. This the actions that are required by this AD, through Friday, except Federal holidays. averages less than twice a day for unless the AD specifies otherwise. The FOR FURTHER INFORMATION CONTACT: opening frequency. Director of the Federal Register approved the The current regulation provides that incorporation by reference of these Austin Pratt, Chief, Bridge Section, documents in accordance with 5 U.S.C. (206) 220–7282. the spans need not open for the passage 552(a) and 1 CFR part 51. Contact Boeing SUPPLEMENTARY INFORMATION: of vessels from 7 a.m. to 9 a.m. and from Commercial Airplanes, P.O. Box 3707, 4 p.m. to 6 p.m. Monday through Seattle, Washington 98124–2207, for a copy Regulatory History Friday, except New Years Day, of this service information. You may review On August 22, 2005, we published a Memorial Day, Fourth of July, Labor copies at the Docket Management Facility, notice of proposed rulemaking (NPRM) Day, Thanksgiving Day, and Christmas U.S. Department of Transportation, 400 entitled ‘‘Drawbridge Operation Day. From 8 a.m. to 5 p.m., Monday Seventh Street, SW., room PL–401, Nassif Regulations; Willamette River, Portland, through Friday, one hour’s notice is Building, Washington, DC; on the Internet at http://dms.dot.gov; or at the National Oregon’’ in the Federal Register (70 FR required for all openings and two hours Archives and Records Administration 48929). We received no letters notice at all other times. The draw (NARA). For information on the availability commenting on the proposed rule. No operates on signal during Rose Festival of this material at the NARA, call (202) 741– public meeting was requested, and none Week and whenever the river level 6030, or go to http://www.archives.gov/ was held. reaches and remains above +12 feet.
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 73938 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
Reorganization of Text and benefits under section 6(a)(3) of that would either preempt State law or This rule will permanently reorganize Order. The Office of Management and impose a substantial direct cost of the text of 33 CFR 117.897. This Budget has not reviewed it under that compliance on them. We have analyzed reorganization would not significantly Order. It is not ‘‘significant’’ under the this rule under that Order and have alter the substantive regulations therein. regulatory policies and procedures of determined that it does not have Currently, the regulation is confusing as the Department of Homeland Security. implications for federalism. The Coast Guard expects minimal to which exceptions to normal bridge Unfunded Mandates Reform Act operations apply to which bridges. This impact from this rule because most permanent change will enhance and vessels will be able to safely pass The Unfunded Mandates Reform Act facilitate comprehension of the through a single-leaf opening without of 1995 (2 U.S.C. 1531–1538) requires regulation. The bridge-specific sound tug assistance. Federal agencies to assess the effects of their discretionary regulatory actions. In signals will be deleted because they Small Entities have not been used by mariners for particular, the Act addresses actions years. Therefore, the signal shall default Under the Regulatory Flexibility Act that may result in the expenditure by a to the general sound signal of one (5 U.S.C. 601–612), we have considered State, local, or tribal government, in the prolonged blast followed by one short whether this rule would have a aggregate, or by the private sector of blast found in 33 CFR 117.15. significant economic impact on a $100,000,000 or more in any one year. The regulations covering the Union substantial number of small entities. Though this rule will not result in such Pacific railroad bridge, mile 84.3, at The term ‘‘small entities’’ comprises an expenditure, we do discuss the Salem will be removed because under a small businesses, not-for-profit effects of this rule elsewhere in this bridge permit amendment the bridge has organizations that are independently preamble. owned and operated and are not been converted to a fixed span and is Taking of Private Property therefore no longer an operating dominant in their fields, and drawbridge. governmental jurisdictions with This rule would not affect a taking of populations of less than 50,000. private property or otherwise have Change of Burnside Bridge Operating The Coast Guard certifies under 5 taking implications under Executive Regulation U.S.C. 605(b) that this rule would not Order 12630, Governmental Actions and This rule will provide Multnomah have a significant economic impact on Interference with Constitutionally County the opportunity to provide a substantial number of small entities. If Protected Property Rights. you think that your business, much needed maintenance by allowing Civil Justice Reform it to operate only one leaf instead of organization, or governmental two. During Rose Festival double-leaf jurisdiction qualifies as a small entity This rule meets applicable standards openings will be provided. Recreational and that this rule would have a in sections 3(a) and 3(b)(2) of Executive vessels should be able to easily pass significant economic impact on it, Order 12988, Civil Justice Reform, to safely through a single-leaf opening. please submit a comment (see minimize litigation, eliminate Most recreational vessels do not require ADDRESSES) explaining why you think it ambiguity, and reduce burden. an opening of the draw. Tugs and tows qualifies and how and to what degree Protection of Children may experience greater difficulty this rule would economically affect it. because of winds, currents, loading, etc. We have analyzed this rule under Assistance for Small Entities The bridge owner is offering an assist Executive Order 13045, Protection of tug for such vessels if 4-hour notice is Under section 213(a) of the Small Children from Environmental Health given for this assistance. This offer is Business Regulatory Enforcement Risks and Safety Risks. This rule is not not embodied in this rule. Fairness Act of 1996 (Pub. L. 104–121), an economically significant rule and Preliminary analysis indicates that we want to assist small entities in would not create an environmental risk most vessel operators will not be understanding this proposed rule so that to health or risk to safety that might inconvenienced by the special they can better evaluate its effects on disproportionately affect children. operations. Large oceangoing vessels do them and participate in the rulemaking. Indian Tribal Governments not normally travel this far upstream on If the rule would affect your small the Willamette and the majority of business, organization, or governmental This rule does not have tribal recreational vessels can pass the jurisdiction and you have questions implications under Executive Order drawbridge without an opening. Tugs concerning its provisions or options for 13175, Consultation and Coordination and tows are the most common vessels compliance, please contact Austin Pratt, with Indian Tribal Governments, that would have to proceed with extra Chief, Bridge Section, at (206) 220– because it would not have a substantial caution. There is a single frequent user 7282. The Coast Guard will not retaliate direct effect on one or more Indian of the drawspan. The Burnside Bridge is against small entities that question or tribes, on the relationship between the part of a heavily traveled commuter complain about this rule or any policy Federal Government and Indian tribes, arterial that serves downtown Portland. or action of the Coast Guard. or on the distribution of power and responsibilities between the Federal Discussion of Comments and Changes Collection of Information Government and Indian tribes. This rule would call for no new No comments or letters were received Energy Effects in response to the NPRM. No changes to collection of information under the the proposed regulation were made. Paperwork Reduction Act of 1995 (44 We have analyzed this rule under U.S.C. 3501–3520). Executive Order 13211, Actions Regulatory Evaluation Concerning Regulations That This rule is not a ‘‘significant Federalism Significantly Affect Energy Supply, regulatory action’’ under section 3(f) of A rule has implications for federalism Distribution, or Use. We have Executive Order 12866, Regulatory under Executive Order 13132, determined that it is not a ‘‘significant Planning and Review, and does not Federalism, if it has a substantial direct energy action’’ under that order because require an assessment of potential costs effect on State or local governments and it is not a ‘‘significant regulatory action’’
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 73939
under Executive Order 12866 and is not the authority of Pub. L. 102–587, 106 Stat. Dated: December 5, 2005. likely to have a significant adverse effect 5039. R.R. Houck, on the supply, distribution, or use of I 2. Revise section 117.897 to read as Rear Admiral, U.S. Coast Guard, Commander, energy. The Administrator of follows: Thirteenth Coast Guard District. Information and Regulatory Affairs has [FR Doc. 05–24003 Filed 12–13–05; 8:45 am] not designated this as a significant § 117.897 Willamette River. BILLING CODE 4910–15–P energy action. Therefore, it does not (a) The draws of the Union Pacific require a Statement of Energy Effects railroad bridge, mile 119.6 at Albany; under Executive Order 13211. and mile 164.3 near Harrisburg, need FEDERAL COMMUNICATIONS Technical Standards not open for the passage of vessels. COMMISSION However the draws shall be returned to The National Technology Transfer operable condition within six months 47 CFR Part 73 and Advancement Act (NTTAA) (15 after notification by the District U.S.C. 272 note) directs agencies to use [DA 05–3028, MB Docket No. 05–34, RM– Commander to do so. 10761] voluntary consensus standards in their (b) The draw of the Oregon State regulatory activities unless the agency highway bridge, mile 132.1 at Corvallis, Radio Broadcasting Services; Mt. provides Congress, through the Office of shall open on signal if at least seven Enterprise, TX Management and Budget, with an days notice is given. However, the draw AGENCY: explanation of why using these need not be opened on Saturdays, Federal Communications standards would be inconsistent with Sundays, and Federal Holidays. Commission. applicable law or otherwise impractical. (c) The draws of the bridges listed in ACTION: Final rule. Voluntary consensus standards are paragraph (c)(3) of this section shall technical standards (e.g., specifications SUMMARY: This document denies a open on signal if appropriate advance petition filed by Charles Crawford and of materials, performance, design, or notice is given subject to the following operation; test methods; sampling grants a counterproposal filed by E- requirements and exceptions: String Wireless, Ltd., by allotting procedures; and related management (1) The draws need not open for the systems practices) that are developed or Channel 231A at Mt. Enterprise, Texas passage of vessels from 7 a.m. to 9 a.m. with a site restriction of 12.5 kilometers adopted by voluntary consensus and 4 p.m. to 6 p.m. every Monday standards bodies. (7.8 miles) north at reference through Friday; except that on New coordinates 32–01–48 NL and 94–39–38 This rule does not use technical Year’s Day, Memorial Day, Fourth of standards. Therefore, we did not WL. See 70 FR 8559, published July, Labor Day, Thanksgiving Day, and February 22, 2005. Additionally, the consider the use of voluntary consensus Christmas Day, the draws shall open in standards. application for New FM Station, accordance with the notice Channel 230A at Lufkin, File No. Environment requirements of paragraph (c)(3) below. BMPH–20050329AAA, will be referred (2) During Rose Festival Week or We have analyzed this rule under to the Technical Processing Group when the water elevation reaches and Commandant Instruction M16475.lD, located in the Audio Division for remains above +12 feet, no advance which guides the Coast Guard in processing. notice is required to request opening, complying with the National except during the normal closed periods DATES: Effective January 9, 2006. Environmental Policy Act of 1969 in (c)(1) above. ADDRESSES: Federal Communications (NEPA)(42 U.S.C. 4321–4370f), and (3)(i) Broadway Bridge, Portland, mile Commission, 445 Twelfth Street, SW., have concluded that there are no factors 11.7. No advance notice required, Washington, DC 20554. in this case that would limit the use of however any periods where the draws FOR FURTHER INFORMATION CONTACT: a categorical exclusion under section are not required to be opened do not Rolanda F. Smith, Media Bureau, (202) 2.B.2 of the Instruction. Therefore, this apply to oceangoing vessels of 750 gross 418–2180. rule is categorically excluded, under tons or over. SUPPLEMENTARY INFORMATION: This is a figure 2–1, paragraph (32)(e) of the (ii) Steel Bridge (upper deck only), summary of the Commission’s Report Instruction, from further environmental Portland, mile 12.1. From 8 a.m. to 5 and Order, MB Docket No. 05–34, documentation. There are no expected p.m. Monday through Friday, one hour’s adopted November 23, 2005, and environmental consequences of the notice shall be given for draw openings. released November 25, 2005. The full action that would require further At all other times, two hours notice is text of this Commission decision is analysis and documentation. required. available for inspection and copying List of Subjects in 33 CFR Part 117 (iii) Burnside Bridge, Portland, mile during normal business hours in the Bridges. 12.4. Only single-leaf openings will be Commission’s Reference Center, 445 provided, except that double-leaf 12th Street, SW., Washington, DC Regulations openings will be provided during Rose 20554. The complete text of this Festival. From 9 a.m. to 4 p.m. Monday decision may also be purchased from I For the reasons discussed in the through Friday notice at least one hour the Commission’s duplicating preamble, the Coast Guard amends 33 in advance shall be given for draw contractor, Best Copy and Printing, Inc., CFR part 117 as follows: openings. At all other times, notice at 445 12th Street, SW., Room CY–B402, PART 117—DRAWBRIDGE least two hours in advance is required. Washington, DC 20054, telephone 1– OPERATION REGULATIONS (iv) Morrison Bridge, Portland, mile 800–378–3160 or http:// 12.8, from 8 a.m. to 5 p.m. Monday www.BCPIWEB.com. The Commission I 1. The authority citation for part 117 through Friday, one hour’s notice shall will send a copy of this Report and continues to read as follows: be given for draw openings. At all other Order in a report to be sent to Congress Authority: 33 U.S.C. 499; 33 CFR 1.05–1(g); times, two hours notice is required. and the Government Accountability Department of Homeland Security Delegation (v) Hawthorne Bridge, Portland, mile Office pursuant to the Congressional No. 0170.1; section 117.255 also issued under 13.1, no advance notice required. Review Act, see 5 U.S.C. 801(a)(1)(A).
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 73940 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
List of Subjects in 47 CFR Part 73 purchased from the Commission’s PART 73—RADIO BROADCAST Radio, Radio broadcasting. duplicating contractor, Best Copy and SERVICES Printing, Inc., 445 12th Street, SW., I 1. The authority citation for part 73 Room CY–B402, Washington, DC 20554, PART 73—RADIO BROADCAST continues to read as follows: SERVICES (800) 378–3160, or via the company’s Web site, http://www.bcpiweb.com. The Authority: 47 U.S.C. 154, 303, 334 and 336. I 1. The authority citation for part 73 Commission will send a copy of this § 73.202 [Amended] continues to read as follows: Report and Order in a report to be sent I 2. Section 73.202(b), the Table of FM Authority: 47 U.S.C. 154, 303, 334 and 336. to Congress and the Government Allotments under California, is Accountability Office pursuant to the amended by adding Channel 255A at § 73.202 [Amended] Congressional Review Act, see U.S.C. Mojave, by removing Channel 255A and I 2. Section 73.202(b), the Table of FM 801(a)(1)(A). by adding Channel 247A at Trona. Allotments under Texas, is amended by The Audio Division further, at the Federal Communications Commission. adding Mt. Enterprise, Channel 231A. request of Dana J. Puopolo, allots John A. Karousos, Federal Communications Commission. Channel 255A at Mojave, California, as Assistant Chief, Audio Division, Media John A. Karousos, the community’s third local FM service. Bureau. Assistant Chief, Audio Division, Media Channel 255A can be allotted to Mojave, [FR Doc. 05–24032 Filed 12–13–05; 8:45 am] Bureau. California, in compliance with the BILLING CODE 6712–01–P [FR Doc. 05–23979 Filed 12–13–05; 8:45 am] Commission’s minimum distance BILLING CODE 6712–01–P separation requirements with a site restriction of 10.3 km (6.4 miles) FEDERAL COMMUNICATIONS northeast of Mojave. The coordinates for COMMISSION FEDERAL COMMUNICATIONS Channel 255A at Mojave, California, are COMMISSION 35–06–07 North Latitude and 118–04– 47 CFR Part 73 41 West Longitude. Concurrence in the [DA 05–3011; MM Docket No. 01–151; RM– 47 CFR Part 73 allotment by the Government of Mexico 10167, RM–10567] [DA 05–3013; MB Docket No. 05–46, RM– is required because the proposed 11156; MB Docket No. 05–109, RM–11192] allotment is located within 320 Radio Broadcasting Services; kilometers (199 miles) of the U.S.- Eminence, Lebanon, Linn, Potosi and Radio Broadcasting Services; Mexican border. Although Mexican Rolla, MO Hornbeck, LA; and Mojave and Trona, concurrence has been requested, AGENCY: Federal Communications CA notification has not yet been received. If Commission. AGENCY: Federal Communications a construction permit for Channel 255A ACTION: Final rule. Commission. at Mojave, California, is granted prior to receipt of formal concurrence by the SUMMARY: This document grants a ACTION: Final rule. Mexican government, the authorization Counterproposal filed by Four Him SUMMARY: The Audio Division, at the will include the following condition: Enterprises, LLC in response to the request of Charles Crawford, allots ‘‘Operation with the facilities specified Notice of Proposed Rule Making in this Channel 269A at Hornbeck, Louisiana, herein for Mojave, California, is subject proceeding. See 66 FR 38410, July 24, as the community’s first local FM to modification, suspension, or 2001. Specifically, the license of Station service. Channel 269A can be allotted to termination without right to hearing, if KHZR, Channel 249C3, Potosi, Missouri, Hornbeck, Louisiana, in compliance found by the Commission to be is modified to specify operation on with the Commission’s minimum necessary I order to conform to the Channel 249C2.To accommodate this upgrade, this document makes four distance separation requirements with a Mexico-United States FM Broadcast related channel substitutions. Channel site restriction of 7.2 km (4.5 miles) west Agreement, or if specifically objected to 248A is substituted for vacant Channel of Hornbeck. The coordinates for by the Government of Mexico.’’ In order 276A at Linn, Missouri. The license of Channel 269A at Hornbeck, Louisiana, to accommodate that allotment, the are 31–18–42 North Latitude and 93– Station KDAA, Channel 248A, Rolla, Audio Division further, at the request of Missouri, is modified to specify 28–12 West Longitude. See Dana J. Puopolo, substitutes Channel SUPPLEMENTARY INFORMATION infra. operation on Channel 276A. The license 247A for vacant Channel 255A at Trona, of Station KJEL, Channel 279C, DATES: Effective January 9, 2006. California. Channel 247A can be allotted Lebanon, Missouri, is modified to FOR FURTHER INFORMATION CONTACT: to Trona, California, in compliance with specify operation on Channel 279C0. Deborah Dupont, Media Bureau, (202) the Commission’s minimum distance This document allots Channel 281A to 418–2180. separation requirements at city Eminence, Missouri, to provide a first SUPPLEMENTARY INFORMATION: This is a reference coordinates, without site local service. The reference coordinates synopsis of the Commission’s Report restriction. The coordinates for Channel for the Channel 249C2 allotment at and Order, MB Docket Nos. 05–46 and 247A at Trona, California, are 35–45–46 Potosi, Missouri, are 37–58–30 NL and 05–109, adopted November 23, 2005, North Latitude and 117–22–19 West 90–48–30 WL. The reference and released November 25, 2005. The Longitude. coordinates for the Channel 276A full text of this Commission decision is allotment at Rolla, Missouri, are 37–57– List of Subjects in 47 CFR Part 73 available for inspection and copying 50 NL and 91–45–54 WL. The reference during normal business hours in the Radio, Radio broadcasting. coordinates for the Channel 281A FCC Information Center, Portals II, 445 allotment at Eminence, Missouri, are 12th Street, SW., Room CY–A257, I Part 73 of title 47 of the Code of 37–14–30 NL and 91–26–00 WL. The Washington, DC 20554. The complete Federal Regulations is amended as reference coordinates for the Channel text of this decision also may be follows: 248A allotment at Linn, Missouri, are
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 73941
38–29–06 NL and 91–51–06 WL. The FEDERAL COMMUNICATIONS Order in a report to be sent to Congress reference coordinates for the Channel COMMISSION and the Government Accountability 279C0 allotment at Lebanon, Missouri, Office pursuant to the Congressional are 37–41–06 NL and 92–41–40 WL. 47 CFR Part 73 Review Act, see 5 U.S.C. 801(a)(1)(A). This document also dismisses BPH– [DA 05–3027; MB Docket No. 05–17, RM– Channel 262A can be allotted to 20030401ABZ and a separate Petition 11113, RM–11114] Norwood provided there is a site for Reconsideration filed by Four Him restriction of 9.4 kilometers (5.8 miles) Enterprises, LLC. With this action, the Radio Broadcasting Services; southwest at coordinates 39–07–19 NL proceeding is terminated. Connersville, IN, Erlanger, KY, and 84–32–52 WL. Channel 266A can be Lebanon, KY, Lebanon Junction, KY, DATES: Effective January 9, 2006. allotted to Erlanger at Station’s WIZF Madison, IN, New Haven, KY, Norwood, current license site at coordinates 39– FOR FURTHER INFORMATION CONTACT: OH, Richmond, IN, and Springfield, KY 06–18 NL and 84–33–24 WL. Channel Robert Hayne, Media Bureau, (202) 418– 265A can be allotted to Madison at its 2177. AGENCY: Federal Communications Commission. current reference site at coordinates 38– 49–15 NL and 85–18–46 WL. Channel SUPPLEMENTARY INFORMATION: This is a ACTION: Final rule. synopsis of the Report and Order in MM 267B1 can be allotted to Richmond Docket No. 01–151 adopted November SUMMARY: This document grants a provided there is a site restriction of 23, 2005, and released November 25, petition filed by Rodgers Broadcasting 11.6 kilometers (7.2 miles) northwest at 2005. The full text of this decision is seeking the substitution of Channel coordinates 39–55–09 NL and 84–57–47 available for inspection and copying 262A for Channel 262B at Connersville, WL. Channel 265A can be allotted to during normal business hours in the Indiana, reallotment of Channel 262A Lebanon provided there is a site FCC Reference Information Center at from Connersville, Indiana to Norwood, restriction 9.6 kilometers (6.0 miles) Portals II, CY–A257, 445 12th Street, Ohio, as its first local service and northeast at coordinates 37–38–50 NL SW., Washington, DC. The complete modification of Station WIFE(FM) and 85–11–50 WL. text of this decision may also be license accordingly. See 70 FR 7219, This document also dismissed the purchased from the Commission’s copy published February 11, 2005. The petition jointly filed by Washington contractor, Best Copy and Printing, Inc., document also grants the substitution of County CBC, Inc., licensee of Station 445 12th Street, SW., Room CY–B402, Channel *265A for vacant Channel WAKY–FM, Channel 274A, Springfield, Washington, DC 20554, telephone 1– *266A at Madison, Indiana; the Kentucky, Elizabethtown CBC, Inc., 800–378–3160 or http:// substitution of Channel 267B1 for licensee of Station WTHX, Channel www.BCPIWEB.com. The Commission Channel 267B at Richmond, Indiana and 297A, Lebanon Junction, Kentucky and will send a copy of this Report and modification of the FM Station WFMG CBC of Marion County, Inc., licensee of Order in a report to be sent to Congress license accordingly; the substitution of Station WLSK, Channel 265C3, and the Government Accountability Channel 266A for Channel 265A at Lebanon, Kentucky, requesting the Office pursuant to the Congressional Erlanger, Kentucky, and modification of reallotment of Channel 297A from Review Act, see 5 U.S.C. 801(a)(1)(A). the FM Station WIZF license Lebanon Junction to New Haven, accordingly; and the substitution of Kentucky, as its first local service and List of Subjects in 47 CFR Part 73 Channel 265A for Channel 265C3 at modification of the Station WTHX(FM) Radio, Radio Broadcasting. Lebanon, Kentucky, and modification of license and the Amended Proposal the WLSK(FM) license accordingly. See jointly filed by Washington County I Part 73 of the Code of Federal SUPPLEMENTARY INFORMATION. CBC, Inc., Elizabethtown CBC, Inc., CBC Regulations is amended as follows: DATES: Effective January 9, 2006. of Marion County, Inc., Newberry Broadcasting, Inc., licensee of Station ADDRESSES: Federal Communications PART 73—RADIO BROADCAST WHHT(FM), Channel 294A, Horse Cave, Commission, 445 Twelfth Street, SW., SERVICES Kentucky, and Cumulus Licensing LLC, Washington, DC 20554. licensee of Stations WNFN(FM), I 1. The authority citation for part 73 FOR FURTHER INFORMATION CONTACT: Channel 294A, Belle Meade, Tennessee, continues to read as follows: Rolanda F. Smith, Media Bureau, (202) WRQQ(FM), Channel 246C2, Authority: 47 U.S.C. 154, 303, 334 and 336. 418–2180. Goodlettsville, Tennessee, WQQK(FM), SUPPLEMENTARY INFORMATION: This is a Channel 221A, Hendersville, Tennessee, § 73.202 [Amended] summary of the Commission’s Report and WWTN(FM), Channel 259C, I 2. Section 73.202(b), the table of FM and Order, MB Docket No. 05–17, Manchester, Tennessee. Allotments under Missouri, is amended adopted November 23, 2005, and Additionally, the document dismisses by adding Eminence, Channel 281A, released November 25, 2005. The full the counterproposal filed by Indiana removing Channel 279C and adding text of this Commission decision is Community Radio, licensee of Channel 279C0 at Lebanon, removing available for inspection and copying noncommercial educational Station Channel 276A and adding Channel during normal business hours in the WJCF, Channel 201A, Morristown, 248A at Linn, removing Channel 249C3 Commission’s Reference Center, 445 Indiana and a proposal filed by Hoosier and adding Channel 249C2 at Potosi and Twelfth Street, SW., Washington, DC Public Radio Corporation, licensee of by removing Channel 248A and adding 20554. The complete text of this noncommercial educational Station Channel 276A at Rolla. decision may also be purchased from WFCI, Channel 208A, Franklin, Indiana. the Commission’s duplicating Federal Communications Commission. contractor, Best Copy and Printing, Inc., List of Subjects in 47 CFR Part 73 John A. Karousos, 445 12th Street, SW., Room CY–B402, Radio, Radio broadcasting. Assistant Chief, Audio Division, Media Washington, DC 20054, telephone 1– Bureau. 800–378–3160 or http:// I Part 73 of title 47 of the Code of [FR Doc. 05–24033 Filed 12–13–05; 8:45 am] www.BCPIWEB.com. The Commission Federal Regulations is amended as BILLING CODE 6712–01–P will send a copy of this Report and follows:
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 73942 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
PART 73—RADIO BROADCAST and Order, MM Docket No. 02–253, denies a mutually exclusive proposal to SERVICES adopted November 23, 2005, and allot Channel 244A to Lake City, TN. released November 25, 2005. The full Although each proposal would result in I 1. The authority citation for part 73 text of this Commission decision is a first local service, a first local service continues to read as follows: available for inspection and copying at Halls Crossroads is preferred because Authority: 47 U.S.C. 154, 303, 334 and 336. during normal business hours in the it has a larger population than Lake FCC Information Center, Portals II, 445 City. See 68 FR 33669, June 5, 2003. See § 73.202 [Amended] 12th Street, SW., Room CY–A257, also SUPPLEMENTARY INFORMATION. I 2. Section 73.202(b), the Table of FM Washington, DC 20554. The complete DATES: Effective January 9, 2006. Allotments under Indiana, is amended text of this decision also may be by removing Connersville, Channel purchased from the Commission’s FOR FURTHER INFORMATION CONTACT: 262B, by removing Channel *266A and duplicating contractor, Best Copy and Andrew J. Rhodes, Media Bureau, (202) adding Channel *265A at Madison, by Printing, Inc., 445 12th Street, SW., 418–2180. removing Channel 267B and by adding Room CY–B402, Washington, DC 20554, SUPPLEMENTARY INFORMATION: Channel 267B1 at Richmond. (800) 378–3160, or via the company’s This is a I 3. Section 73.202(b), the Table of FM Web site, http://www.bcpiweb.com. The synopsis of the Commission’s Report Allotments under Kentucky, is amended Commission will send a copy of this and Order, MB Docket 03–120, adopted by removing Channel 265A and adding Report and Order in a report to be sent November 23, 2005, and released Channel 266A at Erlanger, by removing to Congress and the Government November 25, 2005. The full text of this Channel 265C3 and adding Channel Accountability Office pursuant to the decision is available for inspection and 265A at Lebanon. Congressional Review Act, see U.S.C. copying during normal business hours in the FCC’s Reference Information I 801(a)(1)(A). 4. Section 73.202(b), the Table of FM Center at Portals II, CY–A257, 445 12th Allotments under Ohio, is amended by List of Subjects in 47 CFR Part 73 Street, SW., Washington, DC. The adding Norwood, Channel 262A. Radio, Radio broadcasting. complete text of this decision may also Federal Communications Commission. be purchased from the Commission’s I Part 73 of title 47 of the Code of John A. Karousos, duplicating contractor, Best Copy and Federal Regulations is amended as Assistant Chief, Audio Division, Media Printing, Inc., 445 12th Street, SW., follows: Bureau. Room CY–B402, Washington, DC 20554, [FR Doc. 05–24034 Filed 12–13–05; 8:45 am] PART 73—RADIO BROADCAST telephone 1–800–378–3160 or http:// BILLING CODE 6712–01–P SERVICES www.BCPIWEB.com. The Commission will send a copy of the Report and I 1. The authority citation for part 73 Order in this proceeding in a report to FEDERAL COMMUNICATIONS continues to read as follows: be sent to Congress and the Government COMMISSION Authority: 47 U.S.C. 154, 303, 334 and 336. Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 47 CFR Part 73 § 73.202 [Amended] 801(a)(1)(A). [DA 05–3012; MM Docket No. 02–253; RM– I 2. Section 73.202(b), the Table of FM The reference coordinates for Channel 10317 and 10872] Allotments under Texas, is amended by 244A at Halls Crossroads, TN, are 36– adding Channel 274C1 at Sanderson. 09–43 NL and 83–58–33 WL. The Radio Broadcasting Services; Federal Communications Commission. document also downgrades Station Sanderson, Texas John A. Karousos, WDOD–FM, Chattanooga, TN, from AGENCY: Federal Communications Assistant Chief, Audio Division, Media Channel 243C to Channel 243C0 at Commission. Bureau. reference coordinates 35–09–39 NL and ACTION: Final rule. [FR Doc. 05–24035 Filed 12–13–05; 8:45 am] 85–19–11 WL. BILLING CODE 6712–01–P List of Subjects in 47 CFR Part 73 SUMMARY: The Audio Division, at the request of Big Bend Broadcasting, allots Radio, Radio broadcasting. Channel 274C1 at Sanderson, Texas, as FEDERAL COMMUNICATIONS the community’s second local FM COMMISSION I Part 73 of Title 47 of the Code of service. Channel 274C1 can be allotted Federal Regulations is amended as to Sanderson, Texas, in compliance 47 CFR Part 73 follows: with the Commission’s minimum [DA 05–3059, MB Docket No. 03–120, RM– PART 73—RADIO BROADCAST distance separation requirements with a 10591, RM–10839] site restriction of 17.6 km (11.0 miles) SERVICES south of Sanderson. The coordinates for Radio Broadcasting Services; Channel 274C1 at Sanderson, Texas, are Chattanooga, Halls Crossroads, I 1. The authority citation for part 73 29–59–17 North Latitude and 102–26– Harrogate, and Lake City, TN continues to read as follows: 32 West Longitude. The Government of Authority: 47 U.S.C. 154, 303, 334 and 336. Mexico has concurred in this allotment, AGENCY: Federal Communications which is located within 320 kilometers Commission. § 73.202 [Amended] ACTION: Final rule. (199 miles) of the U.S.-Mexican border. I 2. Section 73.202(b), the Table of FM DATES: Effective January 9, 2006. SUMMARY: This document grants a Allotments under Tennessee, is FOR FURTHER INFORMATION CONTACT: counterproposal to reallot and change amended by removing Channel 243C Deborah Dupont, Media Bureau, (202) the community of license for Station and adding Channel 243C0 at 418–2180. WXJB(FM) from Channel 243A at Chattanooga, adding Channel 244A, SUPPLEMENTARY INFORMATION: This is a Harrogate, TN, to Channel 244A at Halls Halls Crossroads, and removing Channel synopsis of the Commission’s Report Crossroads, TN. The document also 243A at Harrogate.
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 73943
Federal Communications Commission. SUPPLEMENTARY INFORMATION: and dates of fishing operations should John A. Karousos, be included. To ensure equitable access Background Assistant Chief, Audio Division, Media by U.S. vessel owners, NMFS may Bureau. NAFO has established and maintains promulgate regulations designed to [FR Doc. 05–24036 Filed 12–13–05; 8:45 am] conservation measures in its Regulatory choose one or more U.S. applicants from Area that include one effort limitation BILLING CODE 6712–01–P among expressions of interest. fishery as well as fisheries with total Note that vessels issued valid HSFC allowable catches (TACs) and member permits under 50 CFR 300 are exempt nation quota allocations. The principal DEPARTMENT OF COMMERCE from multispecies permit, mesh size, species managed are cod, flounder, effort-control, and possession limit National Oceanic and Atmospheric redfish, American plaice, halibut, restrictions, specified in 50 CFR 648.4, Administration capelin, shrimp, and squid. At the 2005 648.80, 648.82 and 648.86, respectively, NAFO Annual Meeting, the United while transiting the U.S. exclusive 50 CFR Part 300 States received fish quota allocations for economic zone (EEZ) with multispecies three NAFO stocks and an effort on board the vessel, or landing [I.D. 120505A] allocation for one NAFO stock to be multispecies in U.S. ports that were fished during 2006. The species, caught while fishing in the NAFO Notification of U.S. Fish Quotas and an location, and allocation (in metric tons Effort Allocation in the Northwest Regulatory Area, provided: or effort) of these U.S. fishing (1) The vessel operator has a letter of Atlantic Fisheries Organization (NAFO) opportunities, as found in Annexes I.A, Regulatory Area authorization issued by the Regional I.B, and I.C of the 2006 NAFO Administrator on board the vessel; AGENCY: National Marine Fisheries Conservation and Enforcement (2) For the duration of the trip, the Service (NMFS), National Oceanic and Measures, are as follows: vessel fishes, except for transiting Atmospheric Administration (NOAA), purposes, exclusively in the NAFO Commerce. (1) Redfish NAFO Division 69 mt. Regulatory Area and does not harvest 3M. fish in, or possess fish harvested in, or ACTION: Final rule; notification of U.S. (2) Squid fish quotas and an effort allocation. from, the U.S. EEZ; (Illex) NAFO 453 mt. (3) When transiting the U.S. EEZ, all Subareas 3 & SUMMARY: NMFS announces that fish 4. gear is properly stowed in accordance quotas and an effort allocation are (3) Shrimp NAFO Division 245 mt. with one of the applicable methods available for harvest by U.S. fishermen 3L. specified in 50 CFR 648.23(b); and in the Northwest Atlantic Fisheries (4) Shrimp NAFO Division 1 vessel/100 (4) The vessel operator complies with Organization (NAFO) Regulatory Area. 3M. days. the HSFC permit and all NAFO This action is necessary to make conservation and enforcement measures available to U.S. fishermen a fishing Additionally, U.S. vessels may be while fishing in the NAFO Regulatory privilege on an equitable basis. authorized to fish any available portion Area. of the 627 mt allocation of oceanic DATES: All fish quotas and the effort U.S. 3M Effort Allocation allocation are effective January 1, 2006, redfish in NAFO Subarea 2 and through December 31, 2006. Expressions Divisions 1F and 3K allocated to NAFO Expressions of interest in harvesting of interest regarding U.S. fish quota members that are not also members of the U.S. portion of the 2006 NAFO 3M allocations for all species except 3L the Northeast Atlantic Fisheries shrimp effort allocation (1 vessel/100 shrimp will be accepted throughout Commission. Fishing opportunities may days) will be considered from owners of 2006. Expressions of interest regarding also be authorized for U.S. fishermen in U.S. vessels in possession of a valid the U.S. 3L shrimp quota allocation and the ‘‘Others’’ category for: Division HSFC permit. All expressions of interest the 3M shrimp effort allocation will be 3LNO yellowtail flounder (76 mt); should be directed in writing to Patrick accepted through December 29, 2005. Division 3NO white hake (500 mt); E. Moran (see ADDRESSES). Division 3LNO skates (500 mt); and Letters of interest from U.S. vessel ADDRESSES: Expressions of interest Division 3O redfish (100 mt). owners should include the name, regarding the U.S. effort allocation and Procedures for obtaining NMFS registration and home port of the quota allocations should be made in authorization are specified here. applicant vessel as required by NAFO in writing to Patrick E. Moran in the NMFS advance of fishing operations. In the U.S. Fish Quota Allocations Office of Sustainable Fisheries, at 1315 event that multiple expressions of East-West Highway, Silver Spring, MD Expressions of interest to fish for any interest are made by U.S. vessel owners, 20910 (phone: 301–713–2276, fax: 301– or all of the U.S. fish quota allocations NMFS may promulgate regulations 713–2313, e-mail: and ‘‘Others’’ category allocations in designed to choose one U.S. applicant [email protected]). NAFO will be considered from U.S. from among expressions of interest. Information relating to NAFO fish vessels in possession of a valid High quotas, NAFO Conservation and Seas Fishing Compliance (HSFC) NAFO Conservation and Management Enforcement Measures, and the High permit, which is available from the Measures Seas Fishing Compliance Act (HSFC) NMFS Northeast Regional Office (see Relevant NAFO Conservation and Permit is available from Sarah ADDRESSES). All expressions of interest Enforcement Measures include, but are McLaughlin, at the NMFS Northeast should be directed in writing to Patrick not limited to, maintenance of a fishing Regional Office at One Blackburn Drive, E. Moran (see ADDRESSES). Letters of logbook with NAFO-designated entries; Gloucester, Massachusetts 01930 interest from U.S. vessel owners should adherence to NAFO hail system (phone: 978–281–9279) and from NAFO include the name, registration, and requirements; presence of an on-board on the World Wide Web at http:// home port of the applicant vessel as observer; deployment of a functioning, www.nafo.ca. required by NAFO in advance of fishing autonomous vessel monitoring system; FOR FURTHER INFORMATION CONTACT: operations. In addition, any available and adherence to all relevant minimum Patrick E. Moran, 301–713–2276. information on intended target species size, gear, bycatch, and other
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00039 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 73944 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
requirements. Further details regarding taken from Division 3L; provisional documentation of the physical these requirements are available from monthly fishing days in Division 3M characteristics and economics of the the NMFS Northeast Regional Office, within 30 days following the calendar fishery for future use by the U.S. fishing and can also be found in the current month in which the catches were made; industry. NAFO Conservation and Enforcement observer reports within 30 days In the event that multiple expressions Measures on the Internet (see following the completion of a fishing of interest are made by U.S. fishing ADDRESSES). trip; and an annual statement of actions interests proposing the use of chartering taken in order to comply with the NAFO Chartering Arrangements operations, the information submitted Convention. Furthermore, the United regarding benefits to the United States In the event that no adequate States may also consider a Contracting will be used in making a selection. In expressions of interest in harvesting the Party’s previous compliance with the the event that applications by U.S. U.S. portion of the 2006 NAFO 3L NAFO incidental catch limits, as fishing interests proposing the use of shrimp quota allocation and/or 3M outlined in the NAFO Conservation and chartering operations are considered, all shrimp effort allocation are made on Enforcement Measures, before entering applicants will be made aware of the behalf of U.S. vessels, expressions of into a chartering arrangement. allocation decision as soon as possible. interest will be considered from U.S. Expressions of interest from U.S. Once the allocation has been awarded fishing interests intending to make use fishing interests intending to make use for use in a chartering operation, NMFS of vessels of other NAFO Parties under of vessels from another NAFO will immediately take appropriate steps chartering arrangements to fish the 2006 Contracting Party under chartering to notify NAFO and transfer the U.S. 3L U.S. quota allocation for 3L shrimp and/ arrangements should include shrimp quota allocation and/or the 3M or the effort allocation for 3M shrimp. information required by NAFO shrimp effort allocation to the Under NAFO rules in effect through regarding the proposed chartering appropriate Contracting Party. 2006, a vessel registered to another operation, including: the name, After reviewing all requests for NAFO Contracting Party may be registration and flag of the intended allocations submitted, NMFS may chartered to fish the U.S. effort vessel; a copy of the charter; the fishing decide not to grant any allocations if it allocation provided that written consent opportunities granted; a letter of consent is determined that no requests meet the for the charter is obtained from the from the vessel’s flag state; the date from criteria described in this notice. All vessel’s flag state and the U.S. allocation which the vessel is authorized to individuals/companies submitting is transferred to that flag state. NAFO commence fishing on these expressions of interest to NMFS will be Parties must be notified of such a opportunities; and the duration of the contacted if an allocation has been chartering operation through a mail charter (not to exceed six months). More awarded. Please note that if the U.S. notification process. details on NAFO requirements for portion of the 2006 NAFO 3L shrimp A NAFO Contracting Party wishing to chartering operations are available from quota allocation and/or 3M shrimp enter into a chartering arrangement with NMFS (see ADDRESSES). In addition, effort allocation is awarded to a U.S. the United States must be in full current expressions of interest for chartering vessel or a specified chartering compliance with the requirements operations should be accompanied by a operation, it may not be transferred outlined in the NAFO Convention and detailed description of anticipated without the express, written consent of Conservation and Enforcement benefits to the United States. Such NMFS. Measures including, but not limited to, benefits might include, but are not submission of the following reports to limited to, the use of U.S. processing Dated: December 8, 2005. the NAFO Executive Secretary: facilities/personnel; the use of U.S. John H. Dunnigan, provisional monthly catches within 30 fishing personnel; other specific Director, Office of Sustainable Fisheries, days following the calendar month in positive effects on U.S. employment; National Marine Fisheries Service. which the catches were made; evidence that fishing by the chartered [FR Doc. 05–24026 Filed 12–13–05; 8:45 am] provisional daily catches of shrimp vessel actually would take place; and BILLING CODE 3510–22–S
VerDate Aug<31>2005 15:23 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 73945
Proposed Rules Federal Register Vol. 70, No. 239
Wednesday, December 14, 2005
This section of the FEDERAL REGISTER fax: (202) 205–2800; or e-mail: certain regulations which, although they contains notices to the public of the proposed [email protected]. may not meet the threshold requirement issuance of rules and regulations. The under section 610 of the RFA, warrant purpose of these notices is to give interested SUPPLEMENTARY INFORMATION: The Potato Research and Promotion Act of 1971, as review. Accordingly, this notice and persons an opportunity to participate in the request for comments is made for the rule making prior to the adoption of the final amended, (7 U.S.C. 2611 et seq.) rules. authorized the Potato Research and Potato Research and Promotion Plan. Promotion Plan which is industry The purpose of the review is to operated and funded, with oversight by determine whether the Potato Research DEPARTMENT OF AGRICULTURE USDA. The Potato Research and and Promotion Plan should be Promotion Plan objective is to carry out continued without change, amended, or Agricultural Marketing Service an effective and continuous coordinated rescinded (consistent with the program of research, development, objectives of the Potato Research and 7 CFR Part 1207 advertising, and promotion designed to Promotion Act of 1971) to minimize the [Docket No. FV–05–711] strengthen potatoes’ competitive impacts on small entities. AMS will position, and to maintain and expand consider the continued need for the Potato Research and Promotion Plan; domestic and foreign markets for Potato Research and Promotion Plan; Section 610 Review potatoes and potato products. the nature of complaints or comments The Potato Research and Promotion received from the public concerning the AGENCY: Agricultural Marketing Service. Plan (7 CFR part 1207) became effective Potato Research and Promotion Plan; ACTION: Notice of regulatory review and on March 9, 1972 and was implemented the complexity of the Potato Research request for comments. on September 15, 1972 when and Promotion Plan; the extent to which the Potato Research and Promotion Plan SUMMARY: This document announces the assessments began. The plan was Agricultural Marketing Service’s (AMS) amended in May 1984, to increase the overlaps, duplicates, or conflicts with review of the Potato Research and maximum assessment rate from 1 cent other Federal rules, and, to the extent Promotion Plan (conducted under the per hundredweight to 0.5 percent of the feasible, with State and local Potato Research and Promotion Act), previous 10-year average price received regulations; and the length of time since under the criteria contained in Section by growers. the Potato Research and Promotion Plan 610 of the Regulatory Flexibility Act Assessments under this program are has been evaluated or the degree to (RFA). used to fund promotional campaigns which technology, economic conditions, and to conduct research in the areas of or other factors have changed in the area DATES: Written comments on this U.S. marketing, and international affected by the Potato Research and document must be received by February marketing and to enable it to exercise its Promotion Plan. 13, 2006. duties in accordance with the Plan. Written comments, views, opinions, ADDRESSES: Interested persons are The Potato Research and Promotion and other information regarding the invited to submit written comments Plan is administered by the National Potato Research and Promotion Plan’s concerning this notice of review to the Potato Promotion Board (Board), which impact on small businesses are invited. Docket Clerk, Research and Promotion is composed of producer members, Dated: December 8, 2005. Branch, Fruit and Vegetable Programs importer members, and one public (FV), Agricultural Marketing Service Lloyd C. Day, member appointed by the Secretary of Administrator, Agricultural Marketing (AMS), USDA, Stop 0244, Room 2535– Agriculture from nominations submitted S, 1400 Independence Avenue, SW., Service. by eligible groups. Producer [FR Doc. E5–7332 Filed 12–13–05; 8:45 am] Washington, DC 20250–0244. membership on the Board is based upon Comments should be submitted in potato production within each State. BILLING CODE 3410–02–P triplicate and will be made available for Importer members, limited to five, are public inspection at the above address based upon the amount of potatoes, DEPARTMENT OF AGRICULTURE during regular business hours. potato products, and seed potatoes Comments may also be submitted imported into the U.S. All members Agricultural Marketing Service electronically to: serve terms of three years. [email protected] or Internet: AMS published in the Federal 7 CFR Part 1209 http://www.regulations.gov. All Register (63 FR 8014; February 18, comments should reference the docket 1999) its plan to review certain [Docket No. FV–05–710] number and the date and page number regulations, including the Potato Mushroom Promotion, Research, and of this issue of the Federal Register. A Research and Promotion Plan, copy of this notice may be found at: Consumer Information Order; Section (conducted under the Potato Research 610 Review http://www.ams.usda.gov/fv/ and Promotion Act), under criteria rpdocketlist.htm. contained in Section 610 of the AGENCY: Agricultural Marketing Service. FOR FURTHER INFORMATION CONTACT: Regulatory Flexibility Act (RFA; 5 ACTION: Notice of regulatory review and Daniel Rafael Manzoni, Research and U.S.C. 601–612). The plan was updated request for comments. Promotion Branch, FV, AMS, USDA, in the Federal Register on August 14, Stop 0244, 1400 Independence Avenue, 2003 (68 FR 48574). Because many AMS SUMMARY: This document announces the SW., Room 2535–S, Washington, DC regulations impact small entities, AMS Agricultural Marketing Service’s (AMS) 20250–0244; telephone: (888) 720–9915; decided, as a matter of policy, to review review of the Mushroom Promotion,
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 73946 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules
Research, and Consumer Information 0.0045 cents per pound. The current Written comments, views, opinions, Order (conducted under the Mushroom rate is 0.0024 cents per pound. and other information regarding the Promotion, Research, and Consumer Assessments under this program are Order’s impact on small businesses are Information Act), under the criteria used to fund retail category invited. contained in Section 610 of the management, research concerning Dated: December 8, 2005. nutritional attributes of mushrooms, Regulatory Flexibility Act (RFA). Lloyd C. Day, DATES: Written comments on this foodservice training, and industry information and to enable it to exercise Administrator, Agricultural Marketing document must be received by February Service. 13, 2006. its duties in accordance with the Order. The program is administered by the [FR Doc. E5–7336 Filed 12–13–05; 8:45 am] ADDRESSES: Interested persons are Mushroom Council (Council) which is BILLING CODE 3410–02–P invited to submit written comments composed of producers and may concerning this notice of review to the include importers, appointed by the Docket Clerk, Research and Promotion Secretary of Agriculture from FEDERAL ELECTION COMMISSION Branch, Fruit and Vegetable Programs nominations submitted by eligible (FV), Agricultural Marketing Service producers or importers. Producer 11 CFR Part 109 (AMS), USDA, Stop 0244, Room 2535– membership on the Board is based upon [Notice 2005–28] S, 1400 Independence Avenue, SW., mushroom production within each of Washington, DC 20250–0244. four predestinated geographic regions Coordinated Communications Comments should be submitted in within the U.S. and a fifth region AGENCY: Federal Election Commission. triplicate and will be made available for representing importers, when imports, public inspection at the above address on average, equal or exceed 35,000,000 ACTION: Notice of proposed rulemaking. during regular business hours. pounds of mushrooms annually. All SUMMARY: Comments may also be submitted The Federal Election members serve terms of three years. Commission requests comment on electronically to: AMS published in the Federal [email protected] or Internet: proposed revisions to its regulations Register (63 FR 8014; February 18, regarding communications that have http://www.regulations.gov. All 1999) its plan to review certain comments should reference the docket been coordinated with Federal regulations, including the Mushroom candidates and political party number and the date and page number Promotion, Research, and Consumer committees. The Commission’s current of this issue of the Federal Register. A Information Order, (conducted under rules set out a three-prong test for copy of this notice may be found at: the Mushroom Promotion, Research, determining whether a communication http://www.ams.usda.gov/fv/ and Consumer Information Act), under is ‘‘coordinated’’ with, and therefore an rpdocketlist.htm. criteria contained in Section 610 of the in-kind contribution to, a Federal Regulatory Flexibility Act (RFA; 5 FOR FURTHER INFORMATION CONTACT: candidate or a political party committee. U.S.C. 601–612). The plan was updated Debbie Simmons, Research and In Shays v. FEC, the Court of Appeals in the Federal Register on August 14, Promotion Branch, FV, AMS, USDA, invalidated one aspect of the so-called 2003 (68 FR 48574). Because many AMS Stop 0244, 1400 Independence Avenue, content prong of the coordinated regulations impact small entities, AMS SW., Room 2535–S, Washington, DC communications test, because the court 20250–0244; telephone: (888) 720–9915 decided, as a matter of policy, to review certain regulations which, although they believed that the Commission had not fax: (202) 205–2800; or e-mail: provided adequate explanation and [email protected]. may not meet the threshold requirement under section 610 of the RFA, warrant justification for the current rules under SUPPLEMENTARY INFORMATION: The review. Accordingly, this notice and the Administrative Procedure Act. To Mushroom Promotion, Research, and request for comments is made for the comply with the decision of the Court Consumer Information Act of 1990, (7 Mushroom Promotion, Research, and of Appeals, and to address other issues U.S.C. 6101 et seq.) authorized the Consumer Information Order. involving the coordinated Mushroom Promotion, Research, and The purpose of the review is to communication rules, the Commission Consumer Information Program which determine whether the Mushroom is issuing this Notice of Proposed is industry operated and funded, with Promotion, Research, and Consumer Rulemaking. No final decision has been oversight by USDA. The program’s Information Order should be continued made by the Commission on the issues objective is to carry out an effective, without change, amended, or rescinded presented in this rulemaking. Further continuous, and coordinated program of (consistent with the objectives of the information is provided in the promotion, research, consumer Mushroom Promotion, Research, and supplementary information that follows. information, and industry information Consumer Information Act of 1990) to DATES: Comments must be received on designed to strengthen the mushroom minimize the impacts on small entities. or before January 13, 2006. The industry’s position in the marketplace, AMS will consider the continued need Commission will hold a hearing on the maintain and expand existing markets for the Order; the nature of complaints proposed rules on January 25 or 26, and uses for mushrooms, develop new or comments received from the public 2006, or both at 9:30 a.m. Anyone markets and uses for mushrooms, and to concerning the Order; the complexity of wishing to testify at the hearing must carry out programs, plans, and projects the Order; the extent to which the Order file written comments by the due date designed to provide maximum benefits overlaps, duplicates, or conflicts with and must include a request to testify in to the mushroom industry. other Federal rules, and, to the extent the written comments. The program became effective on feasible, with State and local ADDRESSES: All comments must be in January 8, 1993, when the Mushroom regulations; and the length of time since writing, must be addressed to Mr. Brad Promotion, Research, and Consumer the Order has been evaluated or the C. Deutsch, Assistant General Counsel, Information Order (7 CFR part 1209) degree to which technology, economic and must be submitted in either e-mail, was issued. Assessments began in 1993 conditions, or other factors have facsimile, or paper copy form. at the rate of 0.0025 cents per pound changed in the area affected by the Commenters are strongly encouraged to and have fluctuated from 0.0010 to Order. submit comments by e-mail or fax to
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules 73947
ensure timely receipt and consideration. prohibitions, and reporting I. The Content Prong E-mail comments must be sent to either requirements of the Act. 2 U.S.C. This rulemaking is being initiated in [email protected] or submitted 441a(a)(7)(B)(i) and (ii). An response to court decisions that through the Federal eRegulations Portal ‘‘expenditure’’ is any payment ‘‘made by invalidated one aspect of the ‘‘content at www.regulations.gov. If e-mail any person for the purpose of prong’’ of the coordinated comments include an attachment, the influencing any election for Federal communication test. See Shays v. FEC, attachment must be in either Adobe office.’’ 1 2 U.S.C. 431(9)(A)(i). 337 F. Supp. 2d 28 (D.D.C. 2004) Acrobat (.pdf) or Microsoft Word (.doc) Thus, under the Act, a payment for a (‘‘Shays District’’), aff’d, Shays v. FEC, format. Faxed comments must be sent to 414 F.3d 76 (D.C. Cir. 2005) (‘‘Shays (202) 219–3923, with paper copy follow- communication constitutes an in-kind contribution if two conditions are Appeal’’) (pet. for reh’g en banc denied up. Paper comments and paper copy Oct. 21, 2005) (No. 04–5352). As satisfied. First, the payment must follow-up of faxed comments must be described more fully below, the District qualify as an ‘‘expenditure’’; that is, it sent to the Federal Election Court held the content prong as a whole Commission, 999 E Street, NW., must be made for the purpose of to be invalid, while the Court of Washington, DC 20463. All comments influencing a Federal election. Second, Appeals held the Commission’s must include the full name and postal the payment must be made ‘‘in justification for one aspect of the service address of the commenter or cooperation, consultation, or concert, content prong (specifically, the 120-day they will not be considered. The with, or at the request or suggestion of’’ time frame in the fourth content Commission will post comments on its a candidate or political party committee standard) to be inadequate. website after the comment period ends. or agents thereof. In addition, the Act The purpose of the content prong is The hearing will be held in the provides that any disbursement for an to ‘‘ensure that the coordination Commission’s ninth-floor meeting room, ‘‘electioneering communication’’ 2 that regulations do not inadvertently 999 E Street, NW., Washington, DC. is coordinated with a candidate, a encompass communications that are not FOR FURTHER INFORMATION CONTACT: Mr. candidate’s authorized committee, a made for the purpose of influencing a Brad C. Deutsch, Assistant General political party committee, or agents Federal election.’’ 2002 Coordination Counsel, Ms. Amy Rothstein, or Mr. Ron thereof, is an in-kind contribution to the Final Rules at 426. Accordingly, each of B. Katwan, Attorneys, 999 E Street, candidate or political party supported the four content standards that comprise NW., Washington, DC 20463, (202) 694– by the communication. 2 U.S.C. the ‘‘content prong’’ identifies a 1650 or (800) 424–9530. 441a(a)(7)(C). category of communications that satisfies the content prong because its SUPPLEMENTARY INFORMATION: The To implement these provisions of the ‘‘subject matter is reasonably related to Bipartisan Campaign Reform Act of Act, 11 CFR 109.21 sets forth a three- 2002, Pub. L. 107–155, 116 Stat. 81 an election.’’ Id. at 427. prong test for determining whether a The first content standard is satisfied (2002) (‘‘BCRA’’), amended the Federal communication is a coordinated Election Campaign Act of 1971, as if the communication is an communication, and therefore an in- electioneering communication. See 11 amended, 2 U.S.C. 431 et seq. (the kind contribution to, a candidate, a ‘‘Act’’), in a number of respects. In the CFR 109.21(c)(1). This content standard candidate’s authorized committee, or a portion of BCRA relevant to this implements the statutory directive, political party committee. See 11 CFR proceeding, Congress repealed the described above, that disbursements for 109.21(a). First, the communication Commission’s pre-BCRA regulations coordinated electioneering must be paid for by someone other than regarding ‘‘coordinated general public communications be treated as in-kind political communications’’ and directed a candidate, a candidate’s authorized contributions to the candidate or the Commission to promulgate new committee, a political party committee, political party supported by the regulations on ‘‘coordinated or their agents (the ‘‘payment prong’’). communication. See 11 CFR 109.21(a)(1). Second, the The second content standard is communications’’ in their place. Pub. L. 3 107–155, sec. 214(b), (c) (2002). On communication must meet one of four satisfied by a public communication December 17, 2002, the Commission content standards (the ‘‘content prong’’). made at any time that disseminates, adopted regulations at 11 CFR 109.21 to See 11 CFR 109.21(a)(2) and (c). Third, distributes, or republishes campaign implement BCRA’s provisions regarding the communication must meet one of materials prepared by the candidate, the payments for communications that are five conduct standards (the ‘‘conduct prong’’). See 11 CFR 109.21(a)(3) and 3 11 CFR 100.26 defines ‘‘public communication’’ coordinated with a candidate, a as ‘‘a communication by means of any broadcast, candidate’s authorized committee, or a (d). A communication must satisfy all cable or satellite communication, newspaper, political party committee. See Final three prongs to be a ‘‘coordinated magazine, outdoor advertising facility, mass mailing Rules and Explanation and Justification communication.’’ or telephone bank to the general public, or any other form of general public political advertising. on Coordinated and Independent The term public communication shall not include Expenditures, 68 FR 421 (Jan. 3, 2003) 1 In addition, the Act specifically provides that communications over the Internet.’’ The District (‘‘2002 Coordination Final Rules’’). the financing of the republication of campaign Court rejected the definition of ‘‘public Under the Act, as amended by BCRA, materials prepared by the candidate, the candidate’s communication’’ in the Commission’s regulations authorized committee, or agents thereof, is an because the definition categorically excludes all an expenditure ‘‘made by any person in expenditure. 2 U.S.C. 441a(a)(7)(B)(iii). Internet communications. Shays District at 70. To cooperation, consultation, or concert, 2 The Act and Commission regulations define an comply with the Shays District decision, the with, or at the request or suggestion of’’ electioneering communication as any broadcast, Commission issued a Notice of Proposed a Federal candidate, a candidate’s cable, or satellite communication that (1) refers to Rulemaking that proposes to include certain a clearly identified candidate for Federal office; (2) Internet communications in the definition of authorized committee, the national, is publicly distributed within 60 days before a ‘‘public communication.’’ See Notice of Proposed State, or local committee of a political general election or 30 days before a primary Rulemaking on Internet Communications, 70 FR party, or agents of any of the foregoing, election for the office sought by the candidate 16967 (April 4, 2005). The proposed revision to the is an in-kind contribution to the referenced in the communication; and (3) can be definition of ‘‘public communication’’ would have received by 50,000 or more persons within the the effect of including certain Internet candidate or political party committee geographic area that the candidate referenced in the communications in the definition of ‘‘coordinated with which it has been coordinated, and communication seeks to represent. See 2 U.S.C. communication,’’ as well. The Commission has not is thus subject to the limitations, 434(f)(3)(C); 11 CFR 100.29. yet issued final rules in this rulemaking.
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 73948 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules
candidate’s authorized committee, or voter registration activity ‘‘during the content-based standards under Chevron agents thereof. See 11 CFR 109.21(c)(2). period that begins on the date that is Step One.’’ Id. As the Court of Appeals This content standard implements the 120 days’’ before a Federal election. The emphasized, ‘‘time, place, and content Congressional mandate that the Commission reasoned that, in doing so, may be critical indicia of Commission’s rules on coordinated Congress ‘‘deem[ed] that period of time communicative purpose. While communications address the before an election to be reasonably election-related intent is obvious, for ‘‘republication of campaign materials.’’ related to that election.’’ Id. (citing 2 example, in statements urging voters to See Pub. L. 107–155, sec. 214(c)(1) U.S.C. 431(20)(A)(i)). ‘elect’ or ‘defeat’ a specified candidate (2002). II. Overview of Court Decisions in or party, the same may not be true of The third content standard is satisfied Shays v. FEC [other types of] ads [.]’’ Id. Instead, the if a public communication made at any Court of Appeals found that ‘‘the time expressly advocates the election or In Shays District, the District Court challenged regulation’s fatal defect is defeat of a clearly identified candidate held that the Commission’s coordinated not that the [Commission] drew for Federal office. See 11 CFR communication regulations did not distinctions based on content, time, and 109.21(c)(3); see also 11 CFR 100.22. survive the second step of Chevron place, but rather that, contrary to the 5 The Commission concluded that express review. Shays District at 61–62. [Administrative Procedure Act], the advocacy communications, no matter Specifically, the court concluded that Commission offered no persuasive when such communications are made, limiting the coordinated communication justification for * * * the 120-day time- can be reasonably construed only as for definition to communications that frame and the weak restraints applying the purpose of influencing an election. satisfy the content standards at 11 CFR outside of it.’’ Id. at 100. Specifically, The fourth content standard is 109.21(c)(1) through (4) would the Court of Appeals concluded that, by satisfied if a public communication (1) ‘‘undercut[] [the Act’s] statutory limiting ‘‘coordinated communications’’ refers to a political party or a clearly purpose of regulating campaign finance made outside of the 120-day window to identified Federal candidate; (2) is and preventing circumvention of the communications containing express publicly distributed or publicly campaign finance rules.’’ Id. at 63. The advocacy or the republication of disseminated 120 days or fewer before District Court reasoned that campaign materials, ‘‘the [Commission] an election; 4 and (3) is directed to communications that have been has in effect allowed a coordinated voters in the jurisdiction of the clearly coordinated with a candidate, a communication free-for-all for much of identified Federal candidate or to voters candidate’s authorized committee, or a each election cycle.’’ Id. in a jurisdiction in which one or more political party committee have value for, The Court of Appeals found that the candidates of the political party appear and therefore are in-kind contributions Commission had not adequately on the ballot. See 11 CFR 109.21(c)(4). to, that candidate or committee, explained why ‘‘120 days reasonably In adopting the 120-day time frame regardless of the content, timing, or defines the period before an election for public communications for the geographic reach of the when non-express advocacy likely fourth content standard, the communications. See Shays District at relates to purposes other than Commission sought to create a bright- 63–64. ‘influencing’ a Federal election.’’ Id. at line rule for public communications that The Court of Appeals, however, 101. Regarding the Commission’s fall short of express advocacy and do disagreed ‘‘with the district court’s reliance on Congress’s use of a 120-day not republish campaign materials. The suggestion that any standard looking time frame in BCRA’s definition of FEA 120-day time frame ‘‘focuses the beyond collaboration to content would as voter registration activity, the Court regulation on activity reasonably close necessarily ‘create an immense observed that the Commission had to an election, but not so distant from loophole,’ thus exceeding the range of provided no evidence that voter the election as to implicate political permissible readings under Chevron registration activity occurs on cycles discussion at other times.’’ 2002 step two.’’ Shays Appeal at 99–100. The similar to ‘‘coordinated Coordination Final Rules at 430. The Court of Appeals noted that ‘‘we can communications.’’ Id. at 100. Commission noted that its intent was hardly fault the [Commission’s] effort to ‘‘to require as little characterization of develop an objective, bright-line test For these reasons, the Court of the meaning or the content of the [that] does not unduly compromise the Appeals concluded that the Commission communication, or inquiry into the Act’s purposes.’’ Shays Appeal at 99 had not provided adequate explanation subjective effect of the communication (internal quotations omitted). Moreover, under the Administrative Procedure Act on the reader, viewer, or listener as the Court of Appeals expressly (‘‘APA’’) for the Commission’s decision possible.’’ 2002 Coordination Final ‘‘reject[ed] Shays and Meehan’s to exclude communications distributed Rules at 430 (citing Buckley v. Valeo, argument that [the Act] precludes more than 120 days before an election, 424 U.S. 1, 42–44 (1976)). The unless a communication contains Commission emphasized that the 5 The District Court described the first step of the express advocacy or republishes Chevron analysis, which courts use to review an campaign materials. Therefore, the regulation ‘‘is applied by asking if agency’s regulations: ‘‘a court first asks ‘whether certain things are true or false about the Congress has directly spoken to the precise question Court of Appeals affirmed the District face of the public communication or at issue. If the intent of Congress is clear, that is Court’s invalidation of the with limited reference to external facts the end of the matter; for the court, as well as the Commission’s coordinated agency, must give effect to the unambiguously communication rules. Id. at 101. on the public record.’’ Id. expressed intent of Congress.’’’ See Shays District, In adopting this time frame, the at 51 (quoting Chevron, U.S.A., Inc. v. Natural Res. III. Alternative Proposals for Revising Commission relied on the fact that, in Def. Council, 467 U.S. 837, 842–43 (1984)). the Content Prong in 11 CFR 109.21(c) BCRA, Congress defined ‘‘Federal According to the District Court, in the second step of the Chevron analysis, the court determines if the election activity’’ (‘‘FEA’’), in part, as agency’s interpretation is a permissible construction The Commission is considering the of the statute that does not ‘‘unduly compromise’’ seven alternatives described below to 4 The term ‘‘election’’ includes general elections, [the Act’s] purposes by ‘‘creat[ing] the potential for comply with the Court of Appeals primary elections, runoff elections, caucuses or gross abuse.’’ See Shays District at 91, citing Orloski conventions, and special elections. See 11 CFR v. FEC, 795 F.2d 156, 164–65 (D.C. Cir. 1986) decision in Shays Appeal. The 100.2. (internal citations omitted). regulatory text for each alternative,
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules 73949
except one,6 is set forth at the end of Alternative 1—Retain Current 11 CFR longer or shorter than 120 days before this NPRM. The Commission seeks 109.21(c)(4) but Revise the Explanation a Federal election? In 2004, was there comment on each alternative, including and Justification any evidence that spending shifted responses to the following questions: Is Alternative 1 would retain the current outside the 120-day period to avoid the the alternative too broad or too narrow? coordinated communication test at 11 rules’ restrictions? Id. Would the alternative potentially CFR 109.21, including the 120-day time The Commission specifically invites include public communications that are frame in the fourth content standard at comments in the form of empirical data not made for the purpose of influencing 11 CFR 109.21(c)(4)(ii), but would revise that show the time periods before an a Federal election and that therefore the Explanation and Justification for 11 election in which electoral should not be restricted and treated as CFR 109.21(c)(4)(ii) by providing further communications generally occur. Do in-kind contributions? Conversely, explanation supporting the 120-day outside persons make electoral would the alternative potentially time frame.7 communications during time frames exclude public communications that are The Court of Appeals emphasized that that differ from candidates or parties? made for the purpose of influencing a justifying the 120-day time frame, or Do early electoral communications, for Federal election and therefore should be another time frame, requires the example, that occur more than 120 days treated as an in-kind contribution, Commission to undertake a factual before an election, have an effect on provided that the payment and conduct inquiry to determine whether the election results? prongs are also satisfied? The temporal line that it draws ‘‘reasonably On its website, the Commission posts Commission invites commenters to defines the period before an election reports filed pursuant to the Act and provide examples of communications when non-express advocacy likely Commission regulations. Some of these from previous election cycles relates to purposes other than reports include information on demonstrating that an alternative may ‘influencing’ a Federal election’’ or independent expenditures by political be either underinclusive or whether it ‘‘will permit exactly what committees filed under 11 CFR 104.4 overinclusive. Would the alternative BCRA aims to prevent: evasion of and by persons other than political address the Court of Appeals’ concerns campaign finance restrictions through committees under 11 CFR 109.10. regarding the potential for unregulated collaboration.’’ Shays Additionally, all political committees circumvention of the Act and for Appeal at 101–02. Accordingly, the must report coordinated expenditures corruption or the appearance of Commission seeks comment on the along with all other in-kind corruption? Would the alternative following questions raised by the Court contributions under 11 CFR properly effectuate congressional intent? of Appeals in Shays Appeal regarding 109.21(b)(3), while political party Would the alternative provide sufficient the 120-day time frame: committees must report their guidance to individuals and (1) Are a significant number of coordinated party expenditures organizations seeking to be actively communications outside the 120-day separately under 11 CFR 109.37. See involved in politics and to comply with period made for the purpose of Form 3X, line 25 (summarizing entries the Commission’s coordination rules? influencing Federal elections, or are from Schedule F). For the convenience The Commission notes that the communications to influence Federal of commenters, the Commission has alternatives presented in this NPRM are elections predominantly made within extracted these data from the reports not limited to the exact terms of the 120 days of an election? Are there and posted them on its website.8 Do the regulatory language set forth for each specific examples from the 2004 data provide an empirical basis for alternative at the end of the NPRM. election cycle of communications that retaining the 120-day time frame or Instead, as the narrative describing each the current coordination rules should establishing another time frame? For alternative makes clear, the final rules have reached but did not or, conversely, example, the data appear to indicate may be a variation of one of the examples of communications that the that, during the 2004 election cycle, (1) alternatives or even a combination of current rules should not have reached coordinated party expenditures made in components from different alternatives. but did? Id. at 102. connection with the general election The Commission specifically invites (2) Do communications made for the were made mostly after September 1, comment on whether a combination of purpose of influencing House, Senate, 2004—roughly within 60 days of the components from several different and Presidential races—all covered by general election, and (2) independent alternatives would be appropriate. The this rule—occur during approximately expenditures were made mostly after Commission also seeks comment on the same periods in relation to the July 27, 2004—roughly within 90 days whether it should adopt a content general election or the primary election, of the general election.9 The standard that is not presented as one of or should different time frames apply to Commission invites statistical analyses the alternatives in this NPRM. of these data. Specifically, to what In addition, given that the content each? Id. (3) If the Commission were to retain extent is it possible to extrapolate from prong and the conduct prong of the the 120-day time frame, would persons any identified patterns in party coordinated communication test were aiming to influence elections shift committee coordinated expenditures to intended to work together, the Commission seeks comment on whether spending outside of that period to avoid 8 These data are available at http://www.fec.gov/ adopting a given alternative with the rules’ restrictions? Would the same phenomenon potentially take place if press/coordruledata.shtml. respect to the content prong would 9 the Commission adopted a time frame A political party committee authorized to make necessitate changing the conduct prong coordinated expenditures may make such in 11 CFR 109.21(d) to ensure that only expenditures in connection with the general 7 Although this first alternative proposal to election before or after its candidate has been communications made for the purpose implement the appellate court’s decision in Shays nominated. See 2 U.S.C. 441a(d), 11 CFR 109.34. of influencing a Federal election are Appeal would not change 11 CFR 109.21(c)(4), the See also 11 CFR 109.32(a). Generally, it is less likely covered. If so, what amendments to the regulatory text of Alternative 1 as set forth at the that such expenditures would be made much before conduct prong should the Commission end of this NPRM reflects proposed changes to 11 a candidate has been nominated. The Commission CFR 109.21(c)(4)(ii), to address situations in which also notes that expenditures reported by political consider making? multiple candidates for Federal office appear in a party committees as ‘‘coordinated expenditures’’ given public communication. See Section IV–3 include not only expenditures for communications 6 See note 11 below. below. but also all other coordinated expenditures.
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 73950 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules
expenditures for coordinated communication that refers to a clearly would remove the requirement that a communications by outside groups? Do identified candidate and is distributed public communication be publicly the data support the conclusion that within the 120-day period preceding a distributed or otherwise publicly communications made for the purpose primary election would satisfy the disseminated 120 days or fewer before of influencing an election are almost content standard at 11 CFR 109.21(c)(4), an election. See 11 CFR 109.21(c)(4)(ii). always made, or are generally made, but the same public communication Alternative 3 would, however, retain the within the last 60 to 90 days before an distributed shortly after the primary but requirements that (1) the public election? still more than 120 days before the communication refer to a political party The Commission also seeks comment subsequent general election would not or clearly identified candidate and (2) on whether other existing analyses satisfy that standard. Accordingly, be directed to voters in the jurisdiction provide a basis for choosing a particular rather than retain the current rule of the clearly identified candidate or to time frame. See, e.g., Michael M. Franz covering communications made within voters in the jurisdiction in which one et al., The Election after Reform: Money, the 120-day period before an election, or more candidates of the political party Politics and the Bipartisan Campaign whether primary or general, should the appear on the ballot. See 11 CFR Reform Act ch. 7 (Michael J. Malbin ed., Commission adopt a time frame that 109.21(c)(4)(i) and (iii). Thus, under this Rowman and Littlefield, forthcoming covers an uninterrupted period of time alternative, any public communication Mar. 2006), available at http:// starting 120 days (or some other time that refers to a clearly identified www.cfinst.org/studies/ period) before the primary election up candidate or political party and is ElectionAfterReform/chapters.html; Ken to and including the day of the general directed to voters in the relevant Goldstein & Joel Rivlin, Political election? jurisdiction would satisfy the content Advertising in the 2002 Elections ch. 3 The Commission also invites prong of the coordinated (forthcoming), available at http:// comment on whether to adopt a time communication test, regardless of when polisci.wisc.edu/tvadvertising; Craig B. frame covering the period from January it is distributed. Holman, Buying Time 2000: Television 1 of each election year through the day The Commission seeks comment on Advertising in the 2000 Federal of the general election. Would such an whether the fourth content standard Elections 52–59 (2001), available at ‘‘election year’’ time frame begin too late without a time frame would still be http://www.brennancenter.org/ for States that hold primaries early in effective in distinguishing programs/buyingtime2000.html; the year? Conversely, would an communications made for the purpose Jonathan Krasno & Kenneth Goldstein, ‘‘election year’’ time frame begin too of influencing a Federal election from The Facts About Television Advertising early for States that hold primaries in communications made for other and the McCain-Feingold Bill, 35(2) PS: September? Would such a time frame be purposes, such as communications Political Science and Politics 207 appropriate for Presidential elections? made for the purpose of lobbying for or (2002), draft available at http:// In addition, the Commission seeks against certain legislation. The Court of www.cfinst.org/studies/papers/ comment on whether to adopt a tiered Appeals noted that ‘‘to qualify as goldstein&krasno.pdf; Donald F. approach, under which the range of ‘expenditure’ in the first place, spending McGahn, Remarks at Campaign Finance communications that satisfy the fourth must be undertaken ‘for the purpose of Reform Forum, Campaign Finance content standard would depend on the influencing’ a federal election * * * Institute (Jan. 14, 2005),10 available at communication’s proximity to an [T]ime, place, and content may be www.cfinst.org/transcripts/pdf/1–14– election. For example, for critical indicia of communicative 05_Transcript_PanelThree.pdf.; see also communications made within 120 days purpose. While election-related intent is data compiled by the University of before an election, the fourth content obvious, for example, in statements Wisconsin Advertising Project, standard could be modified to capture urging voters to ‘elect’ or ‘defeat’ a available at http://polisci.wisc.edu/ any public communication that refers to specified candidate or party, the same tvadvertising. a political party or clearly identified may not be true of ads identifying a Federal candidate and is directed to the federal politician but focusing on Alternative 2—Adopt a Different Time voters in the relevant geographical Frame pending legislation[.]’’ Shays Appeal at areas. For communications made 99. Does the fact that a communication The Commission seeks comment on between 120 and 240 days before an refers to a clearly identified candidate or whether a time frame other than 120 election, the fourth content standard a political party and is directed to voters days would be more appropriate in could capture only public in the relevant geographical area by bringing public communications that communications that promote, attack, itself provide strong evidence that the are made for the purpose of influencing support, or oppose (‘‘PASO’’) a political communication is made for the purpose a Federal election within the party or a clearly identified Federal 12 of influencing a Federal election, even coordination regulations, while filtering candidate. The Commission invites if the communication is made a year or out public communications that are not commenters to provide examples of more before that election? Does the 11 made for this purpose. Does empirical communications from previous election Commission have the statutory evidence support the adoption of a cycles to show whether a given time authority to regulate ‘‘other categories of different time frame? Some States hold frame would be either underinclusive or non-electioneering speech—non-express primary elections early in the election overinclusive. advocacy, for example—outside the 120 year. Under the current rule, a public Alternative 3—Eliminate the Time days’’? Id. at 101. How should the Restriction From 11 CFR 109.21(c)(4) Commission separate communications 10 ‘‘The hotspot of the campaign didn’t start until late September. * * * This cycle was very Alternative 3 would revise 11 CFR made for the purpose of influencing a compressed when it came to the heavy spending. 109.21(c)(4) by eliminating any time Federal election from those without It eventually had in essence a four-week sprint as restriction from the fourth content such purpose? opposed to the eight- to ten-week sprint that we The Commission also invites used to pay for.’’ standard. Specifically, Alternative 3 11 Because Alternative 2 does not propose a commenters to provide examples of specific time frame, this NPRM does not set forth 12 See Alternative 4 below for a more detailed communications from previous election regulatory text for Alternative 2. discussion of the PASO standard. cycles to show whether Alternative 3
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules 73951
would be either underinclusive or pending legislative or executive branch the jurisdiction of the clearly identified overinclusive. matters. candidate or to voters in a jurisdiction • The communication does not refer in which one or more of the candidates Alternative 4—Replace the Content to the political party affiliation or the of the political party appear on the Standard in 11 CFR 109.21(c)(4) With a political ideology (e.g., ‘‘liberal,’’ ballot, then that public communication ‘‘PASO’’ Test ‘‘conservative,’’ etc.) of a clearly would be deemed as a matter of law to Alternative 4 would replace the identified Federal candidate. have been made for the purpose of content standard in 11 CFR 109.21(c)(4) • The communication does not refer influencing a Federal election. Such a with a new standard providing that a to a clearly identified Federal public communication, when paid for public communication would satisfy the candidate’s record or position on any by a political committee, would be content prong of the coordinated issue. deemed to have been made for the communication test if it refers to a • The communication does not refer purpose of influencing a Federal political party or a clearly identified to a clearly identified Federal election regardless of when it is Federal candidate, is directed to voters candidate’s character, qualifications, or distributed, because a political in the jurisdiction of the clearly fitness for office. committee is an organization whose • identified Federal candidate or to voters The communication does not refer major purpose is to influence in a jurisdiction in which one or more to an election, voters or the voting elections.14 Alternatively, should the Federal candidates of a political party public, or anyone’s candidacy. time frame be eliminated only for public are on the ballot, and the If this criteria-based approach is communications that are paid for by communication PASOs the political adopted, should any of the criteria be registered political committees or party or the clearly identified Federal eliminated from, or added to, the list? If organizations that are required to candidate.13 Would such a standard adopted, should the regulation provide register as political committees if the have the potential to be that a communication must meet all of communication PASOs a political party unconstitutionally vague in practical the criteria on the list to qualify for the or a clearly identified Federal application? Or, conversely, would such safe harbor exemption or should the candidate? a standard ‘‘ ‘provide explicit standards regulation follow a more flexible Under Alternative 5, if the person for those who apply them ’ and ‘give the approach and provide that a paying for the public communication is person of ordinary intelligence a communication may meet some but not not a registered political committee or reasonable opportunity to know what is necessarily all of the criteria on the list an organization that is required to prohibited’’’? McConnell v. FEC, 540 and still qualify for the exemption? register as a political committee, then U.S. 93, 170 n.64 (2003) (quoting Should satisfaction of one or more the public communication would satisfy Grayned v. City of Rockford, 408 U.S. specific criteria on the list, by itself, be the content standard at 11 CFR 104, 108–109 (1972)). sufficient to qualify for the exemption? 109.21(c)(4) only if it occurs 120 days or Alternatively, the Commission invites By contrast, should any one or more fewer before an election or during comment on whether Alternative 4, criteria be critical to the analysis such whatever other time frame might be instead of using a PASO standard, that failure to meet these criteria would adopted. Are there data to justify the should create a safe harbor exemption prohibit an organization from taking 120-day window? Do the data support from the coordinated communication advantage of the safe harbor? another time frame? rules for certain kinds of The Commission seeks comment as to The Commission seeks comment on communications. A communication that whether Alternative 4 should how such a bifurcated test would apply satisfies these criteria would, as a matter incorporate a time period limitation, to other entities, such as non-Federal of law, not be treated as a coordinated such as a specific number of days before candidates and their campaign communication. For example, such an election. If so, should this time organizations. The Commission further criteria could include the following: period be 120 days before an election or seeks comment on how such a • The communication is devoted should a different time frame be bifurcated test should apply to entities exclusively to a particular pending adopted? The Commission invites organized under section 527 of the legislative or executive branch matter. commenters to submit supporting Internal Revenue Code that are not • The communication’s reference to a empirical data. The Commission also registered with the Commission as clearly identified Federal candidate is invites commenters to provide examples political committees. The Commission limited to urging the public to contact of communications from previous also seeks comment on the effect that that candidate to persuade the candidate election cycles to show whether this alternative approach would have on to take a particular position on the Alternative 4 would be either a candidate who has contacts that meet underinclusive or overinclusive. the conduct standard with an 13 The PASO standard is found in BCRA and organization that is not registered as a applies primarily to candidates and political party Alternative 5—Eliminate the Time political committee. If that organization committees with respect to FEA. See 2 U.S.C. Restriction From 11 CFR 109.21(c)(4) for 431(20)(A)(iii). But Congress also applied the PASO standard to the activity of certain tax-exempt Political Committees Only 14 The Act defines a ‘‘political committee’’ as any organizations. For example, BCRA prohibits party Alternative 5 would adopt a committee, club, association, or other group of committees from soliciting funds for, or making or bifurcated test under which application persons that receives ‘‘contributions’’ or makes directing donations to, certain tax-exempt ‘‘expenditures’’ aggregating in excess of $1,000 organizations that make expenditures or of the 120-day time frame would during a calendar year. 2 U.S.C. 431(4)(A). See also disbursements for FEA, which includes public depend on the identity of the person 11 CFR 100.5. In Buckley v. Valeo, 424 U.S. 1 communications that PASO a Federal candidate. paying for the public communication. If (1976), the Supreme Court, in order to avoid See 2 U.S.C. 431(20)(A)(iii) and 441i(d)(1). BCRA vagueness, narrowed the Act’s references to also directed the Commission not to exempt any a registered political committee, or an ‘‘political committee’’ to prevent their ‘‘reach [to] communications that PASO a clearly identified organization that is required to register groups engaged purely in issue discussion.’’ 424 Federal candidate from the electioneering as a political committee, pays for a U.S. at 79. The Court concluded that ‘‘[t]o fulfill the communication provisions. See 2 U.S.C. public communication that refers to a purposes of the Act [the words ‘political 434(f)(3)(B)(iv). The Commission provided committee’] need only encompass organizations examples of communications that PASO and political party or a clearly identified that are under the control of a candidate or the communications that do not PASO in Advisory Federal candidate and the public major purpose of which is the nomination or Opinion 2003–25. communication is directed to voters in election of a candidate.’’ Id.
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 73952 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules
is subsequently found to have defined in the Commission’s regardless of when or to whom the inappropriately failed to register as a regulations. The Commission seeks communication is distributed. political committee based on activity comment on whether such a case-by- The Commission notes that, even that was not known to the candidate, case approach is appropriate and though Alternative 7 would eliminate should the Commission provide in the whether it would provide sufficient the entire content prong, it would regulation that the candidate would not guidance to candidates, their authorized nonetheless comply with the statutory be deemed to have accepted an in-kind committees, political party committees, requirement that disbursements for contribution from the organization? and outside organizations. Would such In addition, the Commission invites a standard have the potential to be coordinated electioneering commenters to provide examples of unconstitutionally vague in practical communications be in-kind communications from previous election application? Or, conversely, would such contributions to the candidate cycles to show whether Alternative 5 a standard ‘‘ ‘provide explicit standards supported by them and with the would be either underinclusive or for those who apply them’ and ‘give the congressional mandate that the overinclusive. person of ordinary intelligence a Commission’s coordination rules address the ‘‘republication of campaign Alternative 6—Replace the Fourth reasonable opportunity to know what is Content Standard in 11 CFR 109.21(c)(4) prohibited’’’? McConnell, 540 U.S. at materials.’’ Specifically, under With a Standard Covering Public 170 n.64 (quoting Grayned, 408 U.S. at Alternative 7, all public Communications Made for the Purpose 108–109); compare Buckley v. Valeo, communications (including of Influencing a Federal Election 424 U.S. 1, 24, n. 24, 46–47, n. 53, 78 electioneering communications and (Payments for media advertisements communications that republish Alternative 6 would replace the fourth ‘‘controlled by or coordinated with the campaign materials) would be content standard in 11 CFR 109.21(c)(4) candidate’’ are treated as contributions, coordinated communications as long as with a new standard that would closely and ‘‘for the purpose of influencing’’ track the statute and simply require a they satisfy the conduct prong. phrase ‘‘presents fewer problems in communication to be a public The Commission seeks comment on connection with the definition of a communication made for the purpose of whether the conduct prong by itself, contribution because of the limiting influencing a Federal election. The without any content prong, would be connotation created by the general effect of adopting Alternative 6 would understanding of what constitutes a effective in distinguishing between be to restrict some public political contribution.’’). The public communications made for the communications that are not covered by Commission also invites commenters to purpose of influencing a Federal current 11 CFR 109.21(c)(4), i.e., provide examples of communications election and public communications communications that are made for the from previous election cycles to show made for other purposes, such as public purpose of influencing a Federal communications made for the purpose election but that are either: (1) Made whether Alternative 6 would be either underinclusive or overinclusive. of lobbying for or against certain more than 120 days before an election, legislation, or for supporting charitable or (2) made at any time and do not refer Alternative 7—Eliminate the Content or other non-political causes. Assuming to a political party or a clearly identified Prong in 11 CFR 109.21(c) and Replace that it is true that a candidate or Federal candidate. In addition, It With the Requirement That the political party would not coordinate Alternative 6 would exclude from Communication Be a Public with an outside organization or regulation some communications that Communication as Defined in 11 CFR individual if the resulting are covered by current 11 CFR 100.26 109.21(c)(4), i.e., communications that communication did not have value for are made within 120 days of an election Alternative 7 would eliminate the the candidate or political party, does and that do refer to a political party or entire content prong in 11 CFR such value necessarily consist of a clearly identified Federal candidate 109.21(c), and would replace it with the influencing the candidate’s election or but that are not made for the purpose of requirement that the communication be the election of a political party’s influencing a Federal election. a public communication as defined in candidates? Would the conduct prong Whether a given public 11 CFR 100.26.15 Alternative 7 would by itself, without any content prong, communication is for the purpose of also make some conforming have the potential to be influencing a Federal election would amendments. Alternative 7 would be unconstitutionally vague in practical depend on the facts and would be based on the assumption that if an application? Or, conversely, would such decided on a case-by-case basis. This is organization or individual works with a a regulation ‘‘ ‘provide explicit the approach some Commissioners used candidate or a political party in making standards for those who apply them’ a public communication, then the before 2002 when the Commission and ‘give the person of ordinary communication inherently has value to adopted a content prong for its intelligence a reasonable opportunity to the political entity it is coordinated coordinated communication regulations. know what is prohibited’’’? McConnell, Under such a case-by-case approach, with, regardless of timing or content. 540 U.S. at 170 n.64 (quoting Grayned, some public communications would be Accordingly, in Alternative 7, any 408 U.S. at 108–109). The Commission treated as having been made for the public communication that satisfies the also invites commenters to provide purpose of influencing a Federal conduct prong of the coordinated election, even though no Federal communication test at 11 CFR 109.21(d) examples of communications from candidate or political party is referenced would be deemed to have been made for previous election cycles to show in the communication, and regardless of the purpose of influencing a Federal whether Alternative 7 would be either how far in advance of an election such election and thus be a ‘‘coordinated underinclusive or overinclusive. a communication is made. This communication,’’ regardless of whether IV. Other Issues Regarding the Content approach would result in some public it refers to a clearly identified Federal Prong communications being restricted as candidate or political party and coordinated communications without The Commission also seeks comment having to meet a content standard 15 See note 3 above. on the following related issues.
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules 73953
1. The ‘‘Directed to Voters’’ the express advocacy standards) do not endorse, or solicit funds for, other Requirement in 11 CFR 109.21(c)(4)(iii) contain a ‘‘directed to voters’’ Federal and non-Federal candidates or In the event that the Commission requirement. Are communications that State ballot initiatives. In Advisory decides to retain a content prong, the satisfy these standards so clearly made Opinion 2004–01, the Commission Commission seeks comment on for the purpose of influencing a Federal considered a television advertisement modifying the requirement in the fourth election that a ‘‘directed to voters’’ that featured President Bush endorsing content standard that a public requirement is unnecessary? In the a congressional candidate. The communication must be directed to alternative, should such a requirement advertisement was publicly distributed voters in the jurisdiction of the clearly be added to these two content standards within 120 days of the Presidential identified candidate or to voters in a as well? primary in the State in which the The Commission also seeks comment jurisdiction in which one or more advertisement aired. The Commission on whether to exempt from the candidates of the political party appear concluded that the ‘‘material coordination regulations involvement’’ conduct standard in 11 on the ballot. See 11 CFR communications that are distributed in CFR 109.21(d)(2) was satisfied because 109.21(c)(4)(iii). While the Act and the jurisdiction of a clearly identified the President’s agents ‘‘review[ed] the Commission regulations defining congressional candidate when such final script in advance of the President’s ‘‘electioneering communications’’ distribution is part of, and incidental to, appearance in the advertisements for require that 50,000 or more persons be a larger advertising campaign. For legal compliance, factual accuracy, able to receive the communication in example, an advertisement distributed quality, consistency with the President’s the relevant geographic area, the fourth nationally on cable television that refers position and any content that distracts content standard does not specify how to a U.S. Representative seeking from or distorts the ‘endorsement’ many persons must be able to receive a reelection as one of several sponsors of message that the President wishes to communication for it to be classified as a piece of legislation will presumably convey.’’ 16 Advisory Opinion 2004–01. a coordinated communication. See 2 reach voters in the U.S. Representative’s Similarly, in Advisory Opinion 2003– U.S.C. 434(f)(3)(C); 11 CFR district. In such a case, the voters in the 25, the Commission considered an 100.29(b)(3)(ii)(A) and (b)(5). Should U.S. Representative’s district would be advertisement featuring a U.S. Senator’s 109.21(c)(4)(iii) be deemed satisfied if reached only incidentally as part of the endorsement of a candidate for mayor. any person in the relevant geographic larger lobbying campaign. Would an In that opinion, the Commission area can receive the communication? exemption for communications that determined that it was highly Should 11 CFR 109.21(c)(4)(iii) be reach voters in the jurisdiction of the implausible that a Federal candidate changed to specify a minimum number clearly identified congressional would appear in a communication of persons that must be able to receive candidate only incidentally provide a endorsing a local candidate without the communication? If so, what should reliable way of distinguishing being materially involved in one or the required minimum number of communications that are made for the more of the decisions listed in the persons be? Has the current regulation purpose of influencing a Federal ‘‘material involvement’’ conduct without a required minimum number election from lobbying or issue standard. presented any difficulties to, or created advocacy communications? Would such The Commission seeks comment on any confusion for, those seeking to a standard be sufficiently clear to whether to exempt from the coordinated comply with it? provide persons with prior notice of the communication rules a Federal The Commission notes that the fourth types of communications that are candidate’s appearance or use of a content standard applies to ‘‘public affected? For such a standard to provide candidate’s name in a communication to communications,’’ and thus to effective prior notice, must the endorse other Federal or non-Federal communications made by means of Commission specify how many viewers candidates. Do such endorsements newspapers, magazines, periodicals, are ‘‘incidental’’? In the alternative, benefit the endorsing candidate? The billboards, mass mailing, and telephone should the Commission define Commission also invites comment on banks. See 11 CFR 100.26. Is it ‘‘incidental’’ in terms of a certain ratio whether any such exemption should be appropriate to set a minimum for the between the number of persons who can limited to communications that do not ‘‘directed to voters’’ requirement that receive the communication in the State PASO the endorsing candidate. Does the would exclude small and medium sized or district of the clearly identified fact that the endorsing candidate publications? If so, should the minimum Senate or House candidate and the appears in the communication number be based on the number of number of persons who can receive the inevitably promote the endorsing copies distributed or on estimates of the communication outside that State or candidate? number of readers reached by the district? Should such an exemption be Similarly, the Commission seeks publications? Similarly, the definition limited to public communications that comment on whether to exempt from of ‘‘public communication’’ includes are distributed nationwide? The the coordinated communication rules a limited communications, such as 501 Commission also invites comment on Federal candidate’s appearance in a pieces of mail or 501 telephone calls of whether the regulations should provide communication that solicits funds for an identical or substantially similar that such an exemption would apply nature. See 2 U.S.C. 431(23) and (24); 11 only if a communication does not PASO 16 The Commission further determined that, for CFR 100.26, 100.27, 100.29. Would it be the clearly identified candidate. advertisements distributed within 120 days of the appropriate to exclude such limited Presidential primary in the State in which the mass mailings or telephone banks from 2. Federal Candidate Endorsements of, advertisement aired, the advertisements’ production the ‘‘directed to voters’’ requirement as and Solicitations of Funds for, Other and distribution costs paid for by the congressional Federal or Non-Federal Candidates or candidate’s committee but attributable to the de minimis even though they come President’s authorized committee were within the Commission’s definition of State Ballot Initiatives contributions to the President’s committee by the ‘‘public communication’’? The Commission invites comment congressional candidate’s committee, but that no contribution would result if the President’s Under the current rules, the second regarding the application of the committee reimbursed the congressional and third content standards (i.e., the coordinated communication test to candidate’s committee for its attributable share of republication of campaign material and situations in which Federal candidates the costs.
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 73954 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules
other Federal or non-Federal candidates, For example, a Senator whose 2. The ‘‘Common Vendor’’ and ‘‘Former party committees, political action reelection is not until 2008 appears in Employee’’ Conduct Standards in 11 committees, or other political an advertisement with a 2006 House CFR 109.21(d)(4) and (5) committees. Do such solicitations candidate. The advertisement is aired benefit the candidate who makes them? within 120 days of the House The fourth standard of the conduct The Commission also invites comment candidate’s election, is paid for by the prong of the coordinated communication rules involves common on whether any such exemption should House candidate’s campaign committee, vendors, and the fifth standard involves be limited to communications that do and is aired in the State where the former employees. See 11 CFR not PASO the soliciting candidate, or, in Senator will seek reelection in 2008. the alternative, do not expressly 109.21(d)(4) and (5). The Commission This advertisement would not be an in- intended these standards to implement advocate the election or defeat of the kind contribution to the Senator because soliciting candidate. Congress’s requirement in BCRA that the advertisement was not aired within the Commission address ‘‘the use of a The Commission also seeks comment 120 days of the Senator’s 2008 election. on whether a similar exemption from common vendor’’ and ‘‘persons who the coordinated communication rules The Commission seeks comment on previously served as an employee of a should also apply to a Federal whether the proposed language properly candidate or a political party candidate’s appearance in effectuates this clarification. committee’’ in the context of coordination. BCRA, Pub. L. No. 107– communications that endorse, or solicit V. Issues Regarding the Conduct Prong funds for, State ballot initiatives. 55, sec. 214(c)(2) and (3) (2002). 3. Proposed Clarification of Application The conduct prong of the The ‘‘common vendor’’ conduct of 120-day Time Frame Requirement in Commission’s coordinated standard is satisfied if (1) the person 11 CFR 109.21(c)(4)(ii) communication regulations was not paying for the communication contracts challenged in Shays v. FEC. with, or employs, a ‘‘commercial Advisory Opinion 2004–01, discussed Nonetheless, the Commission is taking vendor’’ to create, produce, or distribute above, concerned President Bush’s this opportunity to evaluate how certain the communication, (2) the commercial appearance in a television aspects of the conduct prong work in vendor has a previous or current advertisement paid for by a practice. relationship with the political party congressional candidate where committee or the clearly identified President Bush endorsed that 1. The ‘‘Request or Suggest’’ Conduct candidate referred to in the congressional candidate. The Standard in 11 CFR 109.21(d)(1) communication that puts the Commission determined that any airing commercial vendor in a position to The first conduct standard of the of the advertisement that occurred more acquire material information about the coordinated communications test is than 120 days before the Presidential plans, projects, activities, or needs of satisfied if a communication is created, primary in the State in which the the candidate or political party advertisement aired was not an in-kind produced or distributed at the request or committee, and (3) the commercial contribution to President Bush because suggestion of a candidate, a candidate’s vendor uses or conveys material it did not satisfy the fourth content authorized committee, or a political information to the person paying for the standard (i.e., 11 CFR 109.21(c)(4)). In party committee, or their agents. See 11 communication about the plans, making this determination, the CFR 109.21(d)(1). The Commission projects, activities, or needs of the Commission looked at whether the invites comment on whether, even if the candidate or political party committee, communication was aired within 120 Commission decides to retain the or material information used by the days before the non-paying candidate’s content prong of the coordinated commercial vendor in serving the (i.e., President Bush’s) election rather communication test, it should provide candidate or political party committee. than whether it was aired within 120 that if the first conduct standard is See 11 CFR 109.21(d)(4). days before the paying congressional satisfied, the communication would The ‘‘former employee’’ conduct candidate’s election. The regulatory text automatically qualify as a coordinated for Alternative 1 reflects the standard is satisfied if (1) the person communication without also having to paying for the communication was, or Commission’s proposal to amend its satisfy any of the standards contained in coordinated communication rules to is, employing a person who was an the content prong. If a public employee of the candidate or the incorporate the approach taken in communication is made at the request Advisory Opinion 2004–01 and to make political party committee clearly or suggestion of a candidate or a clear that the time frame applies only to identified in the communication, and political party, then does that the election of a Federal candidate who (2) the former employee uses or conveys communication presumptively have is clearly identified and who has not material information to the person paid for the communication. value to the political entity that it was paying for the communication about the coordinated with, regardless of timing plans, projects, activities, or needs of This alteration would clarify that no the candidate or political party in-kind contribution is made under the or content? Would such a proposal committee, or material information used coordinated communication regulations capture communications that are not by the former employee in serving the to a candidate for Federal office who is made for the purpose of influencing candidate or political party committee. referred to in a public communication if elections? Are there examples of public See 11 CFR 109.21(d)(5). the referenced candidate will not appear communications, such as lobbying as a Federal candidate on a ballot within communications or communications The first three conduct standards in 120 days of the distribution of the supporting charitable or other non- 11 CFR 109.21(d)(1)–(3) are satisfied communication. See Advisory Opinion political causes, that are made at the only if either the principals themselves 2005–18, Concurring Opinion of ‘‘request or suggestion’’ of a Federal (i.e., candidates, their authorized Chairman Thomas, Vice Chairman candidate but that do not have value for committees, or political party Toner, Commissioners Mason, the candidate’s campaign? committees) or their agents coordinate McDonald, and Weintraub. with the person paying for the
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules 73955
communication.17 However, because standards in 11 CFR 109.21(d)(4) and no material information about the plans, commercial vendors and former (5)? Given that BCRA specifically projects, activities, or needs of a employees might not be agents of a required the Commission to promulgate candidate or political party committee is candidate or a political party committee regulations that addressed payments for used or conveyed to a third party. The at the time they use or convey material the use of common vendors and for Commission considered and rejected information to a person paying for a communications directed or made by proposals to establish rebuttable communication, the ‘‘common vendor’’ persons who previously served as presumptions and safe harbors in the and the ‘‘former employee’’ conduct employees of a candidate or political common vendor conduct standard in standards can be satisfied by persons party, does the Commission have the 2002 Coordination Final Rules. See other than the principals themselves or authority under the Act to eliminate 11 id. More recently, however, the their agents. The Commission seeks CFR 109.21(d)(4) and (5)? Commission recognized in the context comment on whether it should change In the rulemaking proceeding that of the first three conduct standards (11 the coordinated communication resulted in the 2002 Coordination Final CFR 109.21(d)(1)–(3)) that the presence regulations to cover common vendors Rules, the Commission received many of a firewall between staff assigned by and former employees only if these comments on the common vendor a political committee to work directly common vendors and former employees conduct standard. Some of the with a candidate and staff assigned by are agents under the Commission’s comments expressed concern about the the political committee to work on definition of agent in 11 CFR 109.3.18 potential liability that would attach advertisements supporting that Does the Commission have authority under the common vendor standard to candidate was sufficient to refute under the Act to make this change? If candidates and party committees who certain allegations of coordination in a the Commission does make this change, employ the same vendors as other particular case. See Matter Under would such agents then be covered by candidates and party committees Review (‘‘MUR’’) 5506, First General the first three conduct standards in 11 because of the limited number of Counsel’s Report at 5–8 (Commission CFR 109.21(d)(1)–(3) or would the qualified vendors in a given geographic found no reason to believe EMILY’s List ‘‘common vendor’’ and the ‘‘former area. had violated section 441a of the Act employee’’ conduct standards still cover The Commission addressed this and based, in part, on a representation by some activities not captured by the first other concerns in the 2002 Coordination EMILY’s List that it had created a three conduct standards? If the Final Rules by limiting the common firewall whereby employees, volunteers, Commission revises the common vendor vendor conduct standard to commercial and consultants who handle advertising and former employee conduct standards vendors whose usual and normal buys are ‘‘barred, as a matter of policy, to cover only common vendors and business includes the creation, from interacting with federal former employees who are also agents, production, or distribution of candidates, political party committees, would that render these two conduct communications; who have provided or the agents of the foregoing. These standards superfluous? If so, should the certain enumerated services to a employees, volunteers and consultants Commission then eliminate the conduct candidate or party committee that put are also barred from interacting with the vendor in a position to acquire others within EMILY’s List regarding 17 The first conduct standard addresses information about the plans, projects, specified candidates or officeholders.’’). communications produced at the request or activities or needs of the candidate or If the Commission decides to establish suggestion of a candidate, an authorized committee, party committee material to the a political party committee, or an agent of any of a rebuttable presumption or safe harbor the foregoing. See 11 CFR 109.21(d)(1). The second creation, production, or distribution of in the common vendor and former conduct standard addresses communications with the communication; who provide the employee conduct standards, what which a candidate, an authorized committee, a specified services during the current factors should the Commission consider political party committee, or an agent of any of the foregoing has been materially involved. See 11 CFR election cycle; and who use or convey in determining whether an effective 109.21(d)(2). The third conduct standard addresses information about the candidate’s or firewall exists? Is the role of a firewall communications produced after one or more party committee’s campaign plans, best addressed on a case-by-case basis substantial discussions between the person paying projects, activities or needs that is through the enforcement process? Aside for the communication, or that person’s employees or agents, and the candidate clearly identified in the material to the creation, production, or from setting up firewalls, are there other communication, the candidate’s authorized distribution of the communication. See actions by a common vendor, former committee, the candidate’s opponent, or the 68 FR 436–37. The Commission also employee, or the political committees opponent’s authorized committee, or an agent of excluded lobbying activities and that engage them that the Commission any of the foregoing. See 11 CFR 109.21(d)(3). information not related to a campaign 18 The definition of ‘‘agent’’ includes any person should consider a safe harbor? who has actual authority ‘‘to make or authorize a from the scope of the rule. The common vendor conduct communication that meets one or more of the The Commission stated that it did not standard and the former employee content standards set forth in 11 CFR 109.21(c)’’ on anticipate that a person who hired a conduct standard incorporate the behalf of a political party committee or a Federal vendor and followed prudent business 19 candidate or officeholder. See 11 CFR 109.3(a)(2) current election cycle as a temporal and (b)(2). For reasons unrelated to the issues practices would be inconvenienced by limit on their application. See 11 CFR addressed in this rulemaking, the Shays District the common vendor conduct standard. 109.21(d)(4)(ii), (d)(5)(i). In the 2002 court held that the Commission’s definition of agent See id. at 437. The Commission now Coordination Final Rules, the at 11 CFR 109.3 violated APA requirements and invites comments on whether this remanded the regulation to the Commission for Commission explained that ‘‘[t]he action consistent with its decision. Shays District at supposition has proven to be correct. election cycle provides a clearly defined 88. In order to comply with the Shays District The Commission also seeks comment period of time that is reasonably related decision, the Commission has issued an NPRM that on whether it should create a rebuttable to an election.’’ 2002 Coordination Final sought comment on whether the Commission presumption that a common vendor or should retain the current definition of ‘‘agent’’ and Rules at 436. The Commission invites on several alternatives for revising the definition. former employee has not engaged in comments on how this temporal limit See Notice of Proposed Rulemaking on the coordinated conduct under 11 CFR works in practice. Is information about Definition of ‘‘Agent’’ for BCRA Regulations on 109.21(d)(4) and (5), if the common a candidate’s campaign plans, products, Non-Federal Funds or Soft Money and Coordinated vendor or former employee has taken and Independent Expenditures, 70 FR 5382 (Feb. 2, 2005). The Commission has not yet issued final certain specified actions, such as the use 19 The term ‘‘election cycle’’ is defined in 11 CFR rules in this rulemaking. of so-called ‘‘firewalls,’’ to ensure that 100.3(b).
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 73956 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules
activities, or needs of such an which a candidate, authorized other than the candidate, the ephemeral nature that its strategic committee, or political party committee candidate’s authorized committee, or significance dissipates shortly after the has conveyed information publicly, political party committee, pays for only information is communicated, which such as, for example, at a campaign rally part of the costs of the communication. may be long before the end of the or on the candidate’s or party’s Web site Under this proposed amendment, 11 election cycle, or does the information or in a press release, or where such CFR 109.21(a)(1) would be revised to remain relevant throughout the election information is otherwise publicly read, ‘‘Is paid, in whole or in part, by cycle? If the Commission concludes that available, such as having appeared in a person other than that candidate, the strategic value of such information newspaper, television, or other press authorized committee, political party does not necessarily last throughout an reports. Should such a safe harbor also committee, or agent of any of the entire election cycle, should the cover situations in which the person foregoing.’’ Does this amendment best Commission change the common paying for the communication has effectuate the intended clarification of vendor and former employee conduct received the information both from the the payment prong? Would this standards to cover a shorter time frame? candidate, authorized committee, or clarification alter the application of the If so, how long should such a time frame political party committee, in a non- content or conduct prongs of the be? Should the Commission adopt a 60- public context and also from a public coordinated communication rules? day time frame based on the source? How should the rules treat a Would this clarification inadvertently Commission’s determination, situation in which the person paying for capture communications properly underlying its longstanding rule with the communication did, in fact, receive attributed under the time and space respect to polling results, that such the information only from the rules set forth at 11 CFR 106.1(a)(1)? information outside of the 60-day time candidate, authorized committee, or frame is of very little value? 20 political party committee, but could also VII. Party Coordinated Alternatively, does the Commission’s have obtained the same information Communications (11 CFR 109.37) experience with the polling regulations from a public source? The Commission notes that its ‘‘party provide evidence that the Commission The Commission also seeks comment coordinated communication’’ regulation should adopt a 180-day window for its on whether, if it adopts this safe harbor at 11 CFR 109.37 also contains a three- coordination regulations? Alternatively, for the use of publicly available prong test for determining whether a would retention of the election cycle information, the burden of establishing communication is coordinated between time frame in the current rule more whether the information was publicly a candidate and a political party accurately align the rule with existing available should be on the Commission committee. Although not addressed in campaign practices? or on the party seeking to make use of the Shays cases, the ‘‘party coordinated the safe harbor. If that burden were on communication’’ test in 11 CFR 109.37 3. The Use of Publicly Available the Commission, how would the Information in ‘‘Coordinated has a content prong that is substantially Commission be able to establish that the the same as the one for ‘‘coordinated Communications’’—Proposed 11 CFR information was not publicly available 109.21(g) communications’’ in 11 CFR at the relevant time, given that some 109.21(c).21 See 11 CFR 109.37(a)(2). If The Commission seeks comment on information, especially information the Commission decides to revise whether to create a safe harbor that available through the Internet, may be in current 11 CFR 109.21 as described in would make clear as a matter of law that the public domain only for a limited the alternatives set forth above, the (1) the use of publicly available time period? Commission seeks comment on whether information in connection with a public it should make conforming changes to communication by any person paying 4. Relationship Between Conduct and the party coordinated communication for that public communication does not Content Standards regulations in 11 CFR 109.37. satisfy any of the conduct standards, If the Commission broadens or In addressing the conduct of national and (2) a candidate’s or political party eliminates the content standard for party officers under the national party committee’s conveyance of publicly coordinated communications, the soft money ban at 2 U.S.C. 441i(a), the available information to any person Commission seeks comment on whether Supreme Court stated, ‘‘[n]othing on the paying for a public communication does it would be appropriate to narrow or face of [section 441i(a)] prohibits not satisfy any of the conduct standards. otherwise modify any of the conduct national party officers, whether acting This safe harbor in proposed 11 CFR standards. Are the conduct and content in their official or individual capacities, 109.21(g) would cover situations in standards properly understood as from sitting down with state and local dynamic and working in conjunction party committees or candidates to plan 20 The Commission’s regulations on allocation of with each other? polling expenses at 11 CFR 106.4(g) provide that a and advise how to raise and spend soft candidate or political committee that receives poll VI. Issue Regarding the Payment Prong money. As long as the national party results from a third party who commissioned and officer does not personally spend, paid for the poll may report the value of the in-kind The payment prong (11 CFR contribution as an allocated percentage of the 109.21(a)(1)) of the Commission’s receive, direct, or solicit soft money, original cost of the poll, so long as the candidate coordinated communication regulations [section 441i(a)] permits a wide range of or political committee received the poll results was not challenged in Shays v. FEC. joint planning and electioneering more than 15 days after the initial recipient activity.’’ McConnell, 540 U.S. at 160 received such results. Section 106.4(g) of the Nonetheless, the Commission is taking Commission’s rules provides three tiers of this opportunity to seek comment on (citing to Brief for Intervenor- discounted allocation based on how long the gap is whether it should clarify one aspect of between the original receipt of poll results and their 21 11 CFR 109.37(a)(2) differs from 11 CFR receipt by a candidate or political committee—poll the payment prong. Specifically, the 109.21(c) in two ways: first, it does not contain a results received by a candidate or political Commission seeks comment on whether separate content standard for electioneering committee between 16 and 60 days following ‘‘in whole or in part’’ should be added communications and, second, the content standard receipt by the initial recipient may be allocated at to 11 CFR 109.21(a)(1) of the in section 109.37(a)(2)(iii), the equivalent of the 50 percent of the original cost; between 61 and 180 fourth content standard in section 109.21(c)(4), can days the allocation is at 5 percent of original cost; coordinated communication rules. The be satisfied only by reference to a clearly identified beyond 180 days, a candidate or political committee amendment would clarify that the Federal candidate and not, as in section need not allocate any amount. payment prong is satisfied if a person 109.21(c)(4), also by reference to a political party.
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules 73957
Defendants Sen. John McCain et al. in committees and need not be considered PART 109—COORDINATED AND No. 02–1674 et al., p. 22, which stated separately. INDEPENDENT EXPENDITURES (2 that ‘‘BCRA leaves parties and Furthermore, any separate segregated U.S.C. 431(17), 441a(a) AND (d), AND candidates free to coordinate campaign funds that would be affected by these PUB. L. 107–55 SEC. 214(c)) plans and activities, political messages, proposed rules would be not-for-profit and fund raising goals with one 1. The authority citation for Part 109 political committees that do not meet another’’); see also Advisory Opinion would continue to read as follows: the definition of ‘‘small organization’’ 2005–02 (incorporating such Authority: 2 U.S.C. 431(17), 434(c), principles). The Commission seeks because they are financed by a 438(a)(8), 441a, 441d; Sec. 214(c) of Pub. L. comment on the relevance, if any, of combination of individual contributions 107–55, 116 Stat. 81. and financial support for certain this statement to the Commission’s Alternative 1 coordinated communication regulations. expenses from corporations, labor Does McConnell render the application organizations, membership 2. Section 109.21 would be amended of the conduct standards to coordination organizations, or trade associations, and by revising paragraphs (c)(1) and (c)(4) between a candidate and a political therefore are not independently owned to read as follows: party committee at 11 CFR 109.37(a)(3) and operated. § 109.21 What is a ‘‘coordinated obsolete? Does it preclude a finding of Most of the other political committees communication’’? coordination under the material that would be affected by these * * * * * involvement prong at 11 CFR proposed rules would be not-for-profit (c) Content standards. Each of the 109.21(d)(2)? Does the relationship committees that do not meet the types of content described in paragraphs between national party candidates and definition of ‘‘small organization.’’ Most (c)(1) through (c)(4) satisfies the content their parties justify adopting more political committees are not standard of this section. permissive conduct standards for ‘‘party independently owned and operated (1) An electioneering communication coordinated communications’’ in 11 because they are not financed by a small under 11 CFR 100.29. CFR 109.37 than for coordinated identifiable group of individuals. In (2) A public communication that communications in 11 CFR 109.21? If addition, most political committees rely disseminates, distributes, or so, how should the conduct standards on contributions from a large number of republishes, in whole or in part, for ‘‘party coordinated campaign materials prepared by a communications’’ be amended? individuals to fund the committees’ operations and activities. candidate, the candidate’s authorized Certification of No Effect Pursuant to 5 committee, or an agent of any of the To the extent that any State party U.S.C. 605(b) foregoing, unless the dissemination, committees representing minor political distribution, or republication is Regulatory Flexibility Act parties or any other political committees excepted under 11 CFR 109.23(b). For a The Commission certifies that the might be considered ‘‘small communication that satisfies this attached proposed rules, if promulgated, organizations,’’ the number that would content standard, see paragraph (d)(6) of would not have a significant economic be affected by this proposed rule would this section. impact on a substantial number of small not be substantial, particularly the (3) A public communication that entities. The basis for this certification number that would coordinate expressly advocates the election or is that any individuals and not-for-profit expenditures with candidates or defeat of a clearly identified candidate entities that would be affected by these political party committees in connection for Federal office. proposed rules would not be ‘‘small with a Federal election. Accordingly, to (4) A public communication, as entities’’ under 5 U.S.C. 601. The the extent that any other entities may defined in 11 CFR 100.26, and about definition of ‘‘small entity’’ does not fall within the definition of ‘‘small which each of the following statements include individuals, but classifies a not- entities,’’ any economic impact of in paragraphs (c)(4)(i), (ii), and (iii) of for-profit enterprise as a ‘‘small complying with these rules would not this section is true. Payment for a public organization’’ if it is independently be significant. communication that otherwise satisfies owned and operated and not dominant paragraphs (c)(4)(i), (ii), and (iii) of this in its field. 5 U.S.C. 601(4). With respect to commercial vendors section is not an in-kind contribution to Moreover, any State, district, and whose clients include political party a candidate if the public communication local party committees that would be committees or other political is not publicly distributed or otherwise affected by these proposed rules would committees, the proposed rules consider publicly disseminated 120 days or fewer be not-for-profit committees that do not ways to reduce the existing regulatory before that candidate’s own election. meet the definition of ‘‘small restrictions. Thus, rather than adding an (i) The public communication refers organization.’’ State political party economic burden, the proposed rules to a political party or to a clearly committees are not independently would potentially have a beneficial identified candidate for Federal office; owned and operated because they are economic impact on such commercial (ii) The public communication is not financed and controlled by a small vendors. publicly distributed or otherwise identifiable group of individuals, and publicly disseminated 120 days or fewer they are affiliated with the larger List of Subjects in 11 CFR Part 109 before a general, special, or runoff national political party organizations. In Elections, Reporting and election, or 120 days or fewer before a addition, the State political party recordkeeping requirements. primary or preference election, or a committees representing the Democratic convention or caucus of a political party and Republican parties have a major For the reasons set out in the that has authority to nominate a controlling influence within the preamble, the Federal Election candidate; and political arena of their State and are Commission proposes to amend (iii) The public communication is thus dominant in their field. District Subchapter A of Chapter I of Title 11 of directed to voters in the jurisdiction of and local party committees are generally the Code of Federal Regulations as the clearly identified candidate or to considered affiliated with the State follows: voters in a jurisdiction in which one or
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 73958 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules
more candidates of the political party (c) Content standards. Each of the The additions and revisions would appear on the ballot. types of content described in paragraphs read as follows: * * * * * (c)(1) through (c)(5) satisfies the content standard of this section. § 109.21 What is a ‘‘coordinated Alternative 3 communication’’? * * * * * 3. Section 109.21 would be amended (5) A public communication, as * * * * * by revising paragraphs (c)(4) to read as defined in 11 CFR 100.26, and about (a) * * * follows: which each of the following statements (2) Is an electioneering in paragraphs (c)(5)(i), (ii), and (iii) of communication as defined in 11 CFR § 109.21 What is a ‘‘coordinated 100.29 or a public communication as communication’’? this section is true. (i) The public communication is made defined in 11 CFR 100.26; and * * * * * by a political committee, as defined in * * * * * (c) * * * 11 CFR 100.5; (c) [Removed and reserved.]. (4) A public communication, as (ii) The public communication refers (d) * * * defined in 11 CFR 100.26, and about to a political party or to a clearly (6) Dissemination, distribution, or which each of the following statements identified candidate for Federal office; republication of campaign material. A in paragraphs (c)(4)(i) and (ii) of this and communication that disseminates, section is true. (iii) The public communication is distributes, or republishes, in whole or (i) The public communication refers directed to voters in the jurisdiction of in part, campaign materials prepared by to a political party or to a clearly the clearly identified candidate or to a candidate, the candidate’s authorized identified candidate for Federal office; voters in a jurisdiction in which one or committee, or an agent of any of the and more candidates of the political party foregoing, shall satisfy the conduct (ii) The public communication is appear on the ballot. standards of paragraphs (d)(1) through directed to voters in the jurisdiction of * * * * * (d)(3) of this section only on the basis the clearly identified candidate or to of conduct by the candidate, the voters in a jurisdiction in which one or Alternative 6 candidate’s authorized committee, or more candidates of the political party 6. Section 109.21 would be amended the agents of any of the foregoing, that appear on the ballot. by revising paragraph (c)(4) to read as occurs after the original preparation of * * * * * follows: the campaign materials that are disseminated, distributed, or Alternative 4 § 109.21 What is a ‘‘coordinated republished. * * * communication’’? 4. Section 109.21 would be amended * * * * * by revising paragraph (c)(4) to read as * * * * * follows: (c) * * * Proposed Safe Harbor for Use of (4) A public communication, as Publicly Available Information § 109.21 What is a ‘‘coordinated defined in 11 CFR 100.26, that is made communication’’? 9. Section 109.21 would be amended for the purpose of influencing an by adding a new paragraph (g) to read * * * * * election for Federal office. as follows: (c) * * * * * * * * (4) A public communication, as § 109.21 What is a ‘‘coordinated defined in 11 CFR 100.26, and about Alternative 7 communication’’? which each of the following statements 7. Section 109.3 would be amended * * * * * in paragraphs (c)(4)(i), (ii), and (iii) of by revising paragraphs (a)(2) and (b)(2) (g) Safe harbor for use of publicly this section is true. to read as follows: available information. (i) The public communication refers (1) The use of publicly available § 109.3 Definitions. to a political party or to a clearly information by any person paying for a identified candidate for Federal office; * * * * * public communication in connection (ii) The public communication (a) * * * with a public communication does not promotes, supports, attacks, or opposes (2) To make or authorize an satisfy any of the conduct standards in or the political party or clearly electioneering communication as paragraph (d) of this section. identified candidate for Federal office; defined in 11 CFR 100.29 or a public (2) A candidate’s or political party and communication as defined in 11 CFR committee’s conveyance of publicly (iii) The public communication is 100.26. available information to any person directed to voters in the jurisdiction of * * * * * paying for a public communication does the clearly identified candidate or to (b) * * * not satisfy any of the conduct standards voters in a jurisdiction in which one or (2) To make or authorize an in paragraph (d) of this section. more candidates of the political party electioneering communication as appear on the ballot. defined in 11 CFR 100.29 or a public Proposed Clarification of ‘‘Payment Prong’’ * * * * * communication as defined in 11 CFR 100.26. 10. Section 109.21 would be amended Alternative 5 * * * * * by revising paragraph (a)(1) to read as 5. Section 109.21 would be amended 8. Section 109.21 would be amended follows: revising the introductory language for by: paragraph (c) and by adding a new a. Revising paragraph (a)(2); § 109.21 What is a ‘‘coordinated communication’’? paragraph (c)(5) to read as follows: b. Removing and reserving paragraph (c) (a) * * * § 109.21 What is a ‘‘coordinated c. Revising the first sentence of (1) Is paid for, in whole or in part, by communication’’? paragraph (d)(6) to read as set forth a person other than that candidate, * * * * * below. authorized committee, political party
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules 73959
committee, or agent of any of the Administration, Room 550, 1701 notice. Persons interested in being foregoing when the communication: Columbia Avenue, College Park, Georgia placed on a mailing list for future * * * * * 30337. NPRM’s should contact the FAA’s Office of Rulemaking, (202) 267–9677, Dated: December 8, 2005. FOR FURTHER INFORMATION CONTACT: Mark D. Ward, Manager, Airspace and to request a copy of Advisory Circular Scott E. Thomas, No. 11–2A, Notice of Proposed Chairman, Federal Election Commission. Operations Branch, Eastern En Route and Oceanic Service Area, Federal Rulemaking Distribution System, which [FR Doc. E5–7293 Filed 12–13–05; 8:45 am] Aviation Administration, P.O. Box describes the application procedure. BILLING CODE 6715–01–P 20636, Atlanta, Georgia 30320; The Proposal telephone (404) 305–5586. The FAA is considering an SUPPLEMENTARY INFORMATION: DEPARTMENT OF TRANSPORTATION amendment to part 71 of the Federal Comments Invited Aviation Regulations (14 CFR part 71) to Federal Aviation Administration establish Class E airspace at Interested parties are invited to Nicholasville, KY. Class E airspace 14 CFR Part 71 participate in this proposed rulemaking designations for airspace areas by submitting such written data, views extending upward from 700 feet or more [Docket No. FAA–2005–23075; Airspace or arguments as they may desire. Docket 05–ASO–12] above the surface of the earth are Comments that provide the factual basis published in Paragraph 6005 of FAA Proposed Establishment of Class E supporting the views and suggestions Order 7400.9N, dated September 1, Airspace; Nicholasville, KY presented are particularly helpful in 2005, and effective September 16, 2005, developing reasoned regulatory which is incorporated by reference in 14 AGENCY: Federal Aviation decisions on the proposal. Comments CFR 71.1. The Class E airspace Administration (FAA), DOT. are specifically invited on the overall designation listed in this document ACTION: Notice of proposed rulemaking. regulatory, aeronautical, economic, would be published subsequently in the environmental, and energy-related Order. SUMMARY: This notice proposes to aspects of the proposal. The FAA has determined that this establish Class E airspace at Communications should identify both proposed regulation only involves an Nicholasville, KY. Area Navigation docket numbers and be submitted in established body of technical (RNAV) Global Positioning System triplicate to the address listed above. regulations for which frequent and (GPS) Standard Instrument Approach Commenters wishing the FAA to routine amendments are necessary to Procedures (SIAPs) Runway (RWY) 9 acknowledge receipt of their comments keep them operationally current. It, and RWY 27 have been developed for on this notice must submit with those therefore, (1) is not a ‘‘significant Lucas Field Airport. As a result, comments a self-addressed, stamped regulatory action’’ under Executive controlled airspace extending upward postcard on which the following Order 12866; (2) is not a ‘‘significant from 700 feet Above Ground Level statement is made: ‘‘Comments to rule’’ under DOT Regulatory Policies (AGL) is needed to contain the SIAPs Docket No. FAA–2005–23075/Airspace and Procedures (44 FR 11034; February and for Instrument Flight Rules (IFR) Docket No. 05–ASO–12.’’ The postcard 26, 1979); and (3) does not warrant operations at Lucas Field Airport. The will be date/time stamped and returned preparation of a Regulatory Evaluation operating status of the airport will to the commenter. All communications as the anticipated impact is so minimal. change from Visual Flight Rules (VFR) received before the specified closing Since this is a routine matter that will to include IFR operations concurrent date for comments will be considered only affect air traffic procedures and air with the publication of the SIAPs. before taking action on the proposed navigation, it is certified that this rule, DATES: Comments must be received on rule. The proposal contained in this when promulgated, will not have a or before January 13, 2006. notice may be changed in light of the significant economic impact on a ADDRESSES: Send comments on this comments received. A report substantial number of small entities proposal to the Docket Management summarizing each substantive public under the criteria of the Regulatory System, U.S. Department of contact with FAA personnel concerned Flexibility Act. Transportation, Room Plaza 401, 400 with this rulemaking will be filed in the List of Subjects in 14 CFR Part 71 Seventh Street, SW., Washington, DC docket. 20590–0001. You must identify the Airspace, Incorporation by reference, Availability of NPRMs docket number FAA–2005–23075; Navigation (air). Airspace Docket 05–ASO–12, at the An electronic copy of this document The Proposed Amendment beginning of your comments. You may may be downloaded through the also submit comments on the Internet at Internet at http://dms.dot.gov. Recently In consideration of the foregoing, the http://dms.dot.gov. You may review the published rulemaking documents can Federal Aviation Administration public docket containing the proposal, also be accessed through the FAA’s Web proposes to amend 14 CFR part 71 as any comments received, and any final page at http://www.faa.gov or the follows: disposition in person in the Dockets Superintendent of Document’s Web PART 71—DESIGNATION OF CLASS A, Office between 9 a.m. and 5 p.m., page at http://www.access.gpo.gov/nara. CLASS B, CLASS C, CLASS D, AND Monday through Friday, except Federal Additionally, any person may obtain a CLASS E AIRSPACE AREAS; holidays. The Docket office (telephone copy of this notice by submitting a AIRWAYS; ROUTES; AND REPORTING 1–800–647–5527) is on the plaza level request to the Federal Aviation POINTS of the Department of Transportation Administration, Office of Air Traffic NASSIF Building at the above address. Airspace Management, ATA–400, 800 1. The authority citation for Part 71 An informal docket may also be Independence Avenue, SW., continues to read as follows: examined during normal business hours Washington, DC 20591, or by calling Authority: 49 U.S.C. 106(g); 40103, 40113, at the office of the Regional Air Traffic (202) 267–8783. Communications must 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– Division, Federal Aviation identify both docket numbers for this 1963 Comp., p. 389.
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 73960 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules
§ 71.1 [Amended] passenger basis and are not ad valorem Privacy Act heading under Regulatory 2. The incorporation by reference in in nature, and provided further that the Notices. 14 CFR 71.1 of Federal Aviation advertisement clearly indicates the Docket: For access to the docket to Administration Order 7400.9N, existence and amount of these charges read background documents or Airspace Designations and Reporting so that consumers can easily calculate comments received, go to http:// Points, dated September 1, 2005, and the total fare. The Department has dms.dot.gov at any time or to Room PL– effective September 16, 2005, is consistently prohibited sellers of air 401 on the plaza level of the Nassif amended as follows: transportation from breaking out other Building, 400 Seventh Street, SW., cost elements, such as fuel surcharges, Washington, DC, between 9 a.m. and 5 Paragraph 6005 Class E Airspace Areas Extending Upward from 700 feet or More from the advertised fare. Although the p.m., Monday through Friday, except Above the Surface of the Earth. Department has denied a recent request Federal holidays. to allow separate listing of the fuel * * * * * FOR FURTHER INFORMATION CONTACT: surcharges that carriers are adopting in Betsy L. Wolf, Senior Trial Attorney, ASO KY E5 Nicholasville, KY [New] response to soaring fuel costs, the Office of the Assistant General Counsel Lucas Field Airport, KY Department has also decided that the for Aviation Enforcement and (Lat. 37°52′17″ N, long. 84°36′38″ W.) time is ripe after 21 years of marketing Proceedings, U.S. Department of That airspace extending upward from 700 innovations for a reexamination of the Transportation, 400 Seventh St., SW., feet above the surface within a 6.5-radius of fare-advertising rule and its long-time Room 4116, Washington, DC 20590, tel: Lucas Field Airport; excluding that airspace enforcement policy. Therefore, the (202) 366–9342, fax: (202) 366–7152, within the Lexington, KY, Class E airspace Department is asking interested persons e-mail: [email protected]. area. to comment on four alternative options: SUPPLEMENTARY INFORMATION: * * * * * Maintain the current practice either Issued in College Park, Georgia, on with or without codifying all of its Background November 22, 2005. elements in the rule; end the exception The Department of Transportation Mark D. Ward, for government-imposed charges and requires generally that in Acting Area Director, Air Traffic Division, enforce the rule as written; revise the advertisements of air transportation, the Southern Region. rule to eliminate most or all price advertised must be the full price [FR Doc. 05–24000 Filed 12–13–05; 8:45 am] requirements for airfare advertisements that the consumer will pay. Our BILLING CODE 4910–13–M but to require that consumers be Statements of General Policy, codified apprised of the total purchase price in 14 CFR part 399, include a rule on before the purchase is made; or price advertising adopted by our DEPARTMENT OF TRANSPORTATION eliminate the full-fare advertising rule predecessor agency, the Civil in its entirety. Aeronautics Board, in December of Office of the Secretary DATES: Comments must be received by 1984. The rule states that the February 13, 2006. The Department will Department considers any 14 CFR Part 399 consider late-filed comments to the advertisement of passenger air Docket No. OST–2005–23194 extent practicable. transportation, a tour, or a tour ADDRESSES: You may submit comments component that states a price that is not RIN 2105–AD56 [identified by DOT DMS Docket Number the entire price the consumer must pay Price Advertising OST–2005–23194] by any of the to be an unfair or deceptive practice. following methods: Our rules governing public charters, AGENCY: Office of the Secretary (OST), • Web Site: http://dms.dot.gov. codified in 14 CFR part 380, contain an U.S. Department of Transportation Follow the instructions for submitting analogous requirement for charter air (DOT). comments on the DOT electronic docket transportation. ACTION: Notice of proposed rulemaking site. Both rules were adopted pursuant to (NPRM). • Fax: 1–202–493–2251. 49 U.S.C. section 41712 (formerly • Mail: Docket Management Facility, section 411 of the Federal Aviation Act), SUMMARY: The Department is U.S. Department of Transportation, 400 which empowers the Department to considering amending its rule on price Seventh Street, SW., Nassif Building, prohibit unfair and deceptive practices advertising, and it is seeking comment Room PL–401, Washington, DC 20590– and unfair methods of competition in on several options. Under the existing 001. air transportation and its sale. rule, the Department considers any • Hand Delivery: Room PL–401 on Specifically, this provision provides advertisement that states a price for air the plaza level of the Nassif Building, among other things that the Department transportation that is not the total price 400 Seventh Street, SW., Washington, may investigate and decide whether an the consumer will pay to be unfair or DC, between 9 a.m. and 5 p.m., Monday air carrier, foreign air carrier, or ticket deceptive in violation of the statute through Friday, except Federal holidays. agent is or has been engaging in an under which this provision was adopted • Federal eRulemaking Portal: Go to unfair or deceptive practice or an unfair in 1984. Although it has not amended http://www.regulations.gov. Follow the method of competition in air the codified rule, in practice the online instructions for submitting transportation or its sale and that if, Department has long allowed an comments. after notice and an opportunity for a exception to it for certain taxes, fees, Instructions: All submissions must hearing, the Department finds in the and other charges that are imposed by include the agency name and docket affirmative, it may order the offending a government entity. As a matter of number or Regulatory Identification party to stop the conduct at issue. prosecutorial discretion, the Department Number (RIN) for this rulemaking. Note Violations of regulations adopted does not take enforcement action against that all comments received will be pursuant to section 41712 are also any advertisement that omits these posted without change to http:// violations of the statute itself and may charges from the quoted fare, provided dms.dot.gov, including any personal incur civil penalties, see 49 U.S.C. that the charges are collected on a per- information provided. Please see the 46301(a)(7).
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules 73961
Air transportation is unlike other Using the Internet,’’ http:// from § 399.84 and § 380.30 to allow industries in that we have the sole airconsumer.ost.dot.gov/rules/ exclusion of the U.S. international authority to regulate airlines’ fare 20010118.htm (January 18, 2001); Order departure tax from the advertised price, advertisements by prohibiting practices 2001–12–1 (December 3, 2001); Order provided that the amount of this tax was that are unfair or deceptive. (Two other 88–8–2 (August 2, 1988). We originally clearly stated elsewhere in the Federal agencies enforce provisions allowed the separate listing of charges advertisement. To reach this result, we relating to airline fare advertising, but that are approved by a government in balanced the air carriers’ asserted need these regulations do not bear on unfair addition to those that are government- for greater flexibility in advertising or deceptive practices. First, under imposed, but recently the Enforcement against the traveling public’s need to Department of Homeland Security Office eliminated the exception for the know all charges they must pay for air regulations, carriers must specifically former, reasoning as follows: services. Order 85–12–68 (December 24, identify the Transportation Security The ‘‘government approved’’ surcharges 1985). We later broadened this Administration’s $2.50 security service [that we allowed to be listed separately] were exemption to include other per- fee as the ‘‘September 11th Security limited to security surcharges approved in passenger government fees by Order 88– Fee’’ in fare advertisements, 49 CFR the mid-1980’s [sic] that affected foreign air 3–25 (March 10, 1988), once again 1510.7. transportation only and were approved by taking both the needs of the carriers and Second, the Internal Revenue Service both the foreign government involved and the imperative that consumers know the enforces a tax-code provision that the U.S. government. Recently, tariff total cost of air transportation services imposes restrictions on the display of regulation, owing to expanded open-skies into account. We clarified this taxes in fare advertisements, 26 U.S.C. agreements and other factors, has been revised to the extent that there is no longer amendment by Order 88–8–2 (August 2, 7275.) Congress modeled section 41712 1988), where we recognized that on section 5 of the Federal Trade a consistent practice of joint approvals of surcharges, in many instances resulting in consumers can benefit from knowing Commission (FTC) Act, 15 U.S.C.A. the filing of tariffs that may include what portion of their fare is passed on section 45, but by its own terms, that surcharges that are approved by only one to government entities and what portion statute cannot be enforced against ‘‘air government. In addition, the desire of retained by the carrier, as long as they carriers and foreign air carriers,’’ 15 carriers to pass on the higher costs of certain can easily determine what the total fare U.S.C. section 45(a)(2). The States are expenses discretely, such as insurance and will be. Although the U.S. Court of preempted from regulating in this area fuel, has led to such expenses being filed Appeals struck down the latter two separately from the ‘base’ fare in tariffs, a (49 U.S.C. 41713, see Morales v. Trans decisions on procedural grounds in World Airlines, 504 U.S. 374, 112 S.Ct. situation that the Department cannot effectively monitor. [footnote omitted] In Alaska v. Skinner, 868 F2d. 441 (D.C. 2031, 119 L.Ed.2d 157 (1992)). Thus, Cir. 1989), our Enforcement Office has unlike advertising in other industries, view of these developments, the Enforcement Office will no longer allow the separate continued to base its discretionary where either the States or the FTC, or listing of ‘‘government-approved’’ surcharges enforcement policy on their substance. both, can take action against abusive in fare advertising. practices, if we do not exercise our Recently, with fuel costs both rising authority, consumers and competitors Notice of the Assistant General significantly in the past year and have no governmental recourse against Counsel for Aviation Enforcement and surging in the wake of Hurricane advertising that is unfair or deceptive. Proceedings, ‘‘Disclosure of Higher Katrina, the Air Transport Association We do not believe, moreover, that 49 Prices for Airfares Purchased over the of America (ATA) informally requested U.S.C. section 41712 gives rise to a Telephone via Airline Telephone relief from § 399.84 to allow its air- private right of action, see Love v. Delta Reservation Centers or at Airline Ticket carrier members to list fuel surcharges Air Lines, 310 F.3d 1347 (11th Cir. Counters, and Surcharges That May Be separately in the manner of government- 2002), Boswell v. Skywest Airlines, Inc., Listed Separately in Fare imposed charges. Our Enforcement 361 F.3d 1263 (10th Cir. 2004); see also Advertisements,’’ http:// Office has consistently taken the Alexander v. Sandoval 532 U.S. 275, airconsumer.ost.dot.gov/rules/ position, however, that while nothing in 286, 121 S.Ct. 1511, 149 L.Ed.2d 517 index.htm (November 5, 2004). § 41712 or § 399.84 precludes carriers (2001). The history of our enforcement policy from stating in advertisements that fares For many years, as a matter of begins at the end of 1984, when the include a fuel surcharge and specifying enforcement policy, we have allowed Civil Aeronautics Board adopted the amount, fuel surcharges must be limited exceptions to the general rule § 399.84 to address the widespread included in the advertised fare in order that fare advertisements must state the practice of advertising attractive fares to avoid confusing or deceiving entire price of the advertised air and featuring ‘‘add-on’’ costs much less consumers. See, e.g., Notice of the transportation or tour. Specifically, as a prominently. The Board found that this Assistant General Counsel for Aviation matter of prosecutorial discretion, the practice misled and deceived consumers Enforcement and Proceedings, Department does not take enforcement and made price comparison difficult. ‘‘Prohibition on Deceptive Practices in action against any advertisement that See Civil Aeronautics Board, 14 CFR the Marketing of Airfare to the Public omits government-imposed fees, taxes, part 380 [Special Regulations; Using the Internet,’’ http:// and other charges from the quoted fare, Amendment No. 18 to Part 380; Docket airconsumer.ost.dot.gov/rules/ provided that such charges are collected 41184; Regulation SPR–195], Public 20010118.htm (January 18, 2001). (All of on a per-passenger basis and are not ad Charters, Final Rule, 49 FR 49438– the Enforcement Office’s notices and valorem in nature, and provided also 49440 (December 20, 1984), and 14 CFR industry letters may be found at that the advertisement shows the part 399 [Policy Statements; http://airconsumer.ost.dot.gov/rules/ existence and amount of these charges Amendment No. 88 to Part 399; Docket guidance.htm.) Although the Secretary clearly so that consumers can readily 41184-PS–113], Statements of General has denied ATA’s fuel surcharge determine the total fare. See, e.g., Notice Policy, Final Rule, 49 FR 49440 request, with the passage of over twenty of the Assistant General Counsel for (December 20, 1984). Barely one year years since the adoption of § 399.84, and Aviation Enforcement and Proceedings, later, after this Department succeeded to with the extensive and intensive ‘‘Prohibition on Deceptive Practices in the CAB’s jurisdiction in this area, we changes in both marketing and the Marketing of Airfare[s] to the Public granted an industry-wide exemption consumer sophistication that the
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 73962 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules
revolution in electronic and, if so, how. We can issue a Notice the information provided must be easily communications has fostered, we have of Proposed Rulemaking to amend readable. decided that the time has come to § 380.30 if the comments so warrant. • In advertisements where multiple reconsider our full-fare advertising rule The comments we receive on our destinations are listed and not all entail in light of current conditions. proposals for § 399.84 should help us the same government-imposed charges, We are therefore proposing four determine which of them now strikes the advertisement may state a maximum alternative approaches to the regulation the most appropriate balance between fee, a fee for each destination, or a range of airline price advertising and inviting the public interest in preventing of fees. Also, the word ‘‘approximately’’ interested persons to comment on these consumer deception and the public or a range of amounts may be used to proposals and reasonable alternatives. interest in allowing the market to account for minor currency-exchange The first option is to leave current function efficiently. fluctuations. enforcement policy unchanged, either • Advertising ‘‘two-for-one’’ fares is with or without codifying it explicitly in Price-Advertising Proposals deceptive if the fare that must be § 399.84. The second option is to Option I: Amend § 399.84 To Codify the purchased to take advantage of the enforce the rule as written by ending the Enforcement Office’s Long-Standing promotion is higher than the carrier’s other fares in the same market, unless exceptions we have long allowed for Policy or Leave § 399.84 as Written but this fact is prominently and clearly government-imposed fees, taxes, and Continue the Enforcement Policy charges. Thus, any price advertised for disclosed. • air transportation would have to be the This proposal would maintain current Advertisements of each-way fares total fare that the consumer would pay. enforcement practice and Department that are available only when bought for The third option is to amend the policy case precedent regarding full-fare round-trip travel must disclose the statement so as to do away with most of advertising. One approach would be to round-trip purchase requirement clearly our existing requirements for fare amend the rule to incorporate all and conspicuously—i.e., the disclosure advertising and mostly rely on the elements of this practice. Our must be prominent and proximate to the language of 49 U.S.C. 41712. We are advertising enforcement precedents advertised fares. A banner or pop-up proposing two alternative approaches under 49 U.S.C. section 41712 that internet advertisement of an each-way for the third option: one, a rule that relate only tangentially to full-fare fare that is only available with a round- requires only that the total price of any advertising—e.g., the requirement that a trip purchase must disclose this fact in air transportation be disclosed to the the advertisement itself. reasonable number of seats be available • consumer before any purchase is at advertised prices and disclosure In internet fare advertisements, transacted, and two, a rule that requires requirements for ‘‘percentage off’’ including not only web sites but also both this and also that any fare advertisements and for when seats at an banner, pop-up, and e-mail advertisement set forth all elements of advertised fare are limited and/or not advertisements, the per-person the fare so that consumers can add them available on all flights—would not be government charges that may be listed together to determine the total price. incorporated in the amended 14 CFR separately may be noted by a prominent This latter option is consistent with the 399.84. In addition, the amended rule hyperlink, proximate to the listed fare, general approach to advertising taken by would not incorporate our policy of that takes the viewer to a display the FTC—namely, that an advertisement allowing Internet travel agents to list showing the nature and amount of these is deceptive if it contains a their service fees separately from charges. • In advertisements of ‘‘free’’ air representation or omission that is likely advertised airfares under certain limited transportation in conjunction with the to mislead consumers acting reasonably conditions (see Notice of the Assistant purchase of one or more other tickets, in the circumstances and is material to General Counsel for Aviation restrictions, fees, and other conditions the consumer’s decision to buy the Enforcement and Proceedings, ‘‘Revised that apply to the ‘‘free’’ transportation advertised product or service, see FTC Enforcement Policy on Deceptive must be noted prominently and Policy Statement on Deception (October Practices Regarding Service Fees proximate to the offer, at a minimum 14, 1983), http://www.ftc.gov/bcp/ Charged by Travel Agents in the through an asterisk or other symbol policystmt/ad-decept.htm. Under either Marketing and Sale of Airfares to the directing the reader’s attention to the approach of this third option, while we Public via the Internet,’’ http:// information elsewhere in the would no longer routinely take airconsumer.ost.dot.gov/rules/ advertisement. The information must be enforcement action against advertisers 20011219.htm (December 19, 2001) and presented in easily readable print. This that list fuel surcharges and other cost Order 2001–12–7 (December 7, 2001)), elements not imposed by governments requirement applies to advertisements because this exception is very narrow separately from the fare, we would in all media: the internet, billboards, and we are not aware of its being used. retain the power under section 41712 to television, radio, and print media. Thus, the following exceptions and take enforcement action whenever • Advertisements of fares that are clarifications would be added to the advertisements constitute unfair or higher if purchased by telephone or in existing text of the rule: deceptive practices or unfair methods of person than over the Internet must competition. The fourth option is to • Government-imposed taxes and fees prominently disclose that the stated eliminate the full fare advertising rule in that the carrier collects on a per- fares are only available over the its entirety, leaving any fare advertising passenger basis may be excluded from Internet. The advertisements must also enforcement action to be undertaken the advertised fare, provided that they disclose that tickets cost more than the solely under section 41712. are not ad valorem in nature, and advertised price if purchased by We invite interested persons to provided that the advertisement shows telephone or in person, and they may comment on all four proposals. In the existence and amount of these disclose the price increment. If the addition, we invite comments on charges clearly so that consumers can advertisements state a price differential, whether we should amend § 380.30, our easily determine the total fare. An they may not characterize this amount rule on price advertising in charter indication of the existence of the taxes as a ‘‘service fee.’’ solicitation materials, in light of and fees listed separately must be • In any billboard advertisement that developments over the past two decades situated close to the advertised fare, and breaks out taxes and fees, a sum of the
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules 73963
taxes and fees must be legible to drivers at higher prices than necessary. Fifth, rulemaking. Some might argue that this passing the billboard at the posted our disclosure requirements promote approach has a corresponding speed limit. competition in air transportation, both disadvantage in that codifying all • In television advertisements, the by facilitating price comparison by elements of our enforcement policy in sum of any taxes and fees that are consumers and in another respect. We the CFR will make the policy as a whole broken out must be disclosed. It may be are concerned, for example, that a more accessible to sellers and presented on screen in a readable carrier that has succeeded in hedging its consumers of air transportation. Given, manner or disclosed audially. fuel costs might be deprived of the however, both that (1) sellers and • Radio advertisements must include competitive advantage its lower costs lawyers practicing in this area are the sum of any taxes and fees that are should confer if its higher-cost already familiar with the policy and the broken out. competitors list fuel surcharges relevant case precedent and that (2) all We invite comments on whether any separately and thus advertise fares that of this information is readily available of the Department’s other enforcement appear to match or undercut those of on-line at http:// policies on fare advertising should be their lower-cost rival. Sixth, sellers airconsumer.ost.dot.gov/rules/ included in the expanded rule. might prefer the greater certainty of a This first approach would codify the guidance.htm, as noted above, this detailed codified rule to the lesser disadvantage may be marginal at best. Enforcement Office’s long-standing certainty of a discretionary enforcement practice. The Enforcement Office has policy that currently allows exemptions We invite commenters to address both acted aggressively to ensure that airlines to the rule but could easily be changed. whether and to what extent consumers and travel agents comply with 14 CFR Seventh, as noted above, unlike price continue to need the level of protection 399.84 and the refinements set forth advertising in other industries, the that our disclosure requirements afford above. It has, for example, issued States and the FTC are barred from them and how these requirements affect numerous formal and informal warnings regulating airline advertising. competition in air transportation. in response to advertisements that did Curtailment of our traditional role Option II: Change the Long-Standing not comply with the Department’s would thus create a vacuum of advertising requirements. Also, as a Enforcement Policy To Discontinue regulation. Exceptions to the Strict Terms of result of the Enforcement Office’s We can also identify disadvantages in § 399.84 investigations, the Department has continuing and codifying our long- issued 86 cease-and-desist orders standing practice. First, the fast pace of This proposal would change current concerning violations of 14 CFR 399.84, change in the marketing of air practice by requiring that all advertised as enforced, and has assessed a total of transportation due to evolving fares include all price components. No $2.26 million in civil penalties in these technologies has made it increasingly longer could government-imposed per- orders. difficult for us to keep our price- passenger charges be broken out and We can identify a number of advertising requirements current. advantages in continuing this practice listed separately. While we recognize Codification of all elements of our that crafting an advertisement or display and codifying it. First, it enables policy will make future refinements consumers to determine the maximum that includes all government-imposed even more difficult and time- charges in the listed fares may not be fare being advertised with ease: they consuming. Second, even under the need only add the broken-out charges to possible given that the applicability of current practice, some sellers advertise some charges varies with the routing the advertised fare. Second, breaking a full price while others exclude taxes. out government-imposed taxes and fees chosen, we would consider an This variation makes it more difficult advertisement to be in compliance with lets consumers know for the most part for consumers to compare prices. Third, § 399.84 if it either set forth a range of how much of their fares go to we are aware that many sellers of air prices for each city-pair—i.e., the government entities and how much to transportation believe our requirements minimum and maximum—or used the the carrier. (Our enforcement policy to be unnecessary or unduly restrictive word ‘‘from’’ along with the minimum prohibits separate listing of the 7.5 or burdensome, especially given the price. This approach would have the percent Federal excise tax or any other plethora of price information available ad valorem tax due to the potential for on the internet and the ease of using virtue of simplicity, and it would ensure consumer confusion.) Third, our that source to find and compare airfares. uniformity of fare advertisements and practice ensures that consumers are These sellers take the position that thus facilitate price comparison by protected from hidden surcharges, many relaxing or eliminating our full-fare consumers to the greatest extent. of which are entirely under the seller’s advertising requirements will clear the Nevertheless, unless sellers were to control. Fourth, while we recognize that way for better marketing innovations continue to list government-imposed the internet affords consumers an and increases in efficiency that may in charges separately despite being unprecedented level of highly detailed turn mean lower prices for consumers. required to include these charges in the information on prices for air Fourth, our advertising requirements are advertised fare, which we deem transportation, we also recognize both not consistent with requirements unlikely, this approach would deprive that not all consumers have access to applicable to other industries, as is passengers of potentially useful the internet and that those who do not discussed below in connection with the information concerning the composition tend to travel less frequently and be less third option. of airfares. It would also deprive sellers familiar with airline pricing practices An alternate approach to maintaining of flexibility that they have long than those who do. We are concerned our long-standing enforcement practice enjoyed. Some Internet sellers of air that either allowing advertisements with would be to do so without change to the transportation might incur minimal additional per-person or ad valorem language of § 399.84. Since enforcement costs for reprogramming their displays ‘‘add-ons’’ or allowing advertisements is by nature discretionary, this alternate to include government charges, but not that do not include all elements of the approach has the advantage of retaining all of them would: many already display fare could increase the risk of our flexibility to make further total fares. We invite commenters to consumers not being able to determine refinements to our enforcement policy address the advantages and the actual fares or of their buying tickets without the delays associated with disadvantages of this approach.
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 73964 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules
Option III: Amend § 399.84 Either (1) To goods and services on line. Second, this unfair or deceptive within the meaning Require Simply That the Total Price of approach would eliminate the of section 41712. Air Transportation Be Disclosed Before difficulties that we face in keeping our This approach also has disadvantages. the Consumer Makes the Purchase or (2) enforcement policy current in an era of First, we are concerned that if we To Require This and Also That Price constant technological flux. Third, if eliminate all requirements except that Advertisements Set Forth All Elements consumers and competitors alike no the consumer be told the total price of the Fare So That Consumers Can Add longer need the level of protection that before the purchase is transacted, some Them Together To Determine the Total our requirements have provided, then sellers of air transportation will begin Price this approach would clear the way for publishing print advertisements that This proposal would reverse over innovations that could benefit either or highlight absurdly low fares but disclose twenty years of enforcement practice both. The Internet now gives those none of the taxes, fees, or surcharges and eliminate virtually all of our consumers who use it a vast amount of that apply. Not all consumers have easy traditional full-fare advertising information about prices for air access to the Internet (In October of requirements. In their place we would transportation and makes comparing 2003, according to the Department of adopt either (1) a rule requiring that in prices fast and easy. (According to the Commerce, 45.4 percent of U.S. any sale of air transportation the seller U.S. Department of Commerce, as of households did not have Internet must inform the consumer of the total October of 2003, 54.6 percent of U.S. connections. [See A Nation Online: price before the purchase is transacted households had Internet connections Entering the Broadband Age, supra]), or (2) a rule requiring both this and that [See A Nation Online: Entering the and many still rely on print fare advertisements contain all Broadband Age, U.S. Department of advertisements. These consumers would information necessary to enable Commerce, Economics and Statistics have to make telephone calls to learn consumers to calculate total fares. Administration, National the total price and might well be subject Advertisements could not feature Telecommunications and Information to long waits for a live agent. Moreover, airline-imposed security charges under Administration, September 2004]. Also, some might view such advertisements either approach, because the with the proliferation of computers in as examples of ‘‘bait and switch.’’ We Department of Homeland Security public libraries, even those who do not invite commenters to address the prohibits airlines from collecting own computers or have internet likelihood of this type of advertising surcharges for their own security costs, connections at home can gain access to and whether and to what extent it see 49 CFR 1510.9(d). the Internet.) Moreover, on-line would harm consumers. We specifically A rule requiring simply that sellers consumers can now take advantage of invite those sellers that already display inform consumers of the total price so-called ‘‘meta’’ search sites (e.g., or otherwise advertise total fares to before the purchase is made has a sidestep.com and kayak.com) that gather comment on whether and how they number of advantages. First, it would price information by ‘‘scraping’’ other would change their practices if we allow the entire content of fare Web sites and display a greater variation adopt this option. Second, we recognize advertisements to be determined by the in prices than can be found elsewhere. that the positive trends we have competitive marketplace. The FTC, Southwest, Delta, AirTran, and Jet Blue observed in car-rental advertisements on which has authority to prohibit unfair are now making 59 percent, 28 percent, the Internet may reflect government and deceptive practices and unfair 65 percent, and nearly 100 percent of initiatives taken at the State level. As methods of competition in other their sales, respectively, through their noted above, the States are preempted industries, does not have any express own Web sites (Airline Business, June from regulating airline advertising price regulations comparable to our full- 2005 and November 2004), and practices. We encourage commenters to fare advertising requirements. Car-rental consumers also buy air transportation address the extent to which a simple companies, for example, are thus under through on-line travel agencies such as requirement that airlines inform no Federal obligation to inform Expedia, Orbitz, Priceline, and customers of the total fare before selling consumers in advertisements of the total Travelocity. Fourth, this approach the ticket might leave consumers price they will have to pay, but we have would not preclude us from taking uniquely vulnerable. Unlike consumers nevertheless observed a trend among action under section 41712 against in other industries, consumers of air Web sites to give total prices for rental advertisers that engage in unfair or transportation would not be able to cars when giving quotes for dates the deceptive practices or unfair methods of appeal for protection to the States, a consumer has entered. Another feature competition. Advertising practices long circumstance that many believe justifies of Internet commerce in other industries held to be deceptive, such as ‘‘bait and Department requirements that go is that consumers who compare base switch,’’ for example, would still be beyond FTC requirements for prices among various Web sites can see subject to enforcement action. The FTC advertising in other industries. Third, that some sites show low base prices but has regulations for bait advertising (16 enforcement action against abusive actually charge higher total prices when CFR part 238), deceptive pricing (16 advertising practices is likely to be shipping costs are included. This CFR part 233), and use of the word considerably more costly and time- transparency can result in competition ‘‘free’’ and similar representations (16 consuming for all parties than it is now. over shipping rates as well as base CFR part 251) as well as policy Fare advertising is commercial speech, prices, all to consumers’ benefit. When statements on deception (http:// which, the Supreme Court has held, sellers have this level of flexibility, www.ftc.gov/bcp/policystmt/ad- enjoys certain protections under the consumers must take greater care in decept.htm) and unfairness (http:// First Amendment. See Central Hudson comparing prices before hitting the www.ftc.gov/bcp/policystmt/ad- Gas & Electric Corp. v. Public Service ‘‘buy’’ button, but as long as consumers unfair.htm). We anticipate that we Commission of New York, 447 U.S. 557 know the total price of air travel before would look to precedent under these (1980), 100 S.Ct. 2343. The Court said they commit themselves to buying it, regulations and under 15 U.S.C.A. 45 for in that case that ‘‘the government may this approach would merely align the guidance in determining whether ban forms of communication more purchase of air transportation with the advertisements that comply with the likely to deceive the public than to experience of purchasing most other amended § 399.84 may nevertheless be inform it’’ (citation omitted). Id, at 563.
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules 73965
Thus, in reviewing an advertisement for now charge such fees, and if so, whether proposed rules will not significantly compliance with § 41712, we must this will harm consumers. affect the regulatory burdens or benefits consider both the advertisement itself associated with the current rule. Option IV: Remove § 399.84 and its effect on an ordinary consumer Therefore, this proposal is expected to to determine if it is unfair or deceptive. The advantages and disadvantages of have a minimal economic effect, and Country Tweeds, Inc. v. FTC, 326 F.2d removing § 399.84 are similar to those of further regulatory evaluation is not 144, 148 (2nd Cir. 1964), Order 86–8–4. the first approach under Option III necessary. ‘‘The important criterion is the net above, except that without an explicit Executive Order 13132 (Federalism) impression which the advertisement is rule requiring sellers to inform likely to make upon the general consumers of the total price of their This NPRM has been analyzed in populace, Eastern Air Lines, Inc. v. transportation before purchases are accordance with the principles and National Airlines Enforcement consummated, consumers would have criteria contained in Executive Order Proceeding, 33 CAB 436, 464 (1969), less regulatory protection. We invite 13132 (‘‘Federalism’’). The Department quoting Charles of the Ritz Dist. Corp. interested persons to comment on has determined that this proposal would v. FTC, 143 F.2d 676, 679 (2nd Cir. whether an express disclosure not have a substantial direct effect on 1944). The ‘‘likelihood of deception or requirement is necessary in light of (1) the States, on the relationship between the capacity to deceive’’ has been held the potential for enforcement action the national government and the States, to be the standard for judging whether under section 41712 against sellers that or on the distribution of power and an advertisement is deceptive in engage in practices that deceive or responsibilities among the various violation of the law. Montgomery Ward confuse consumers and (2) consumers’ levels of government, that it would not and Co. v. FTC, 379 F.2d 666, 670 (7th ability to bring contract actions against impose substantial direct compliance Cir. 1967), CAB Order 82–7–107. Under sellers that charge them prices to which costs on State and local governments, these formulations of the government’s they have not agreed. We invite and that it would not preempt State law. burden, enforcement of section 41712 comments on any other advantages or Therefore, the consultation and funding against fare advertising would be more disadvantages of this option. requirements of Executive Order 13132 cumbersome without § 399.84 as it is Charter Air Transportation do not apply. currently construed, both because there As noted above, § 399.84 has a Executive Order 13084 would be more elements of proof and counterpart in our charter regulations, This NPRM has been analyzed in because issues would have to be § 380.30. While we are not proposing decided on a case-by-case basis. accordance with the principles and any specific changes to the latter rule criteria contained in Executive Order The first concern stated above will not here, we do invite interested persons to 13084 (‘‘Consultation and Coordination arise if we amend § 399.84 to require comment on whether and how current with Indian Tribal Governments’’). that fare advertisements set forth all conditions may warrant its revision as Because any of the proposed elements of the fare so that consumers well. We can issue a Notice of Proposed amendments, if adopted, would not can add them together to determine the Rulemaking to revise the rule if significantly or uniquely affect the total price. Under this approach, sellers appropriate. Indian tribal communities and would could exclude any fees and surcharges not impose substantial direct from the advertised fares, but the Regulatory Notices compliance costs, the funding and advertisement would still have to Privacy Act consultation requirements of the disclose all excluded price elements as Anyone is able to search the Executive Order do not apply. well as their amounts. This approach electronic form of all comments would most closely approximate the Regulatory Flexibility Act received into any of our dockets by the policy followed by the FTC, as noted name of the individual submitting the The Regulatory Flexibility Act (5 above. It would still leave sellers free, comment (or signing the comment, if U.S.C. 601 et seq.) requires an agency to however, to advertise absurdly low fares submitted on behalf of an association, review regulations to assess their impact in bold, large print and relegate large business, labor union, etc.) You may on small entities unless the agency carrier-imposed surcharges to the fine review DOT’s complete Privacy Act determines that a rule is not expected to print, a practice some might deem Statement in the Federal Register have a significant economic impact on unfair and misleading. published on April 11, 2000 (Volume a substantial number of small entities. I We invite commenters to address each 65, Number 70, Pages 19477–78) or you hereby certify that any of these approach of this third option and to may visit http://dms.dot.gov. proposed amendments, if adopted, point out any other advantages or would not have a significant economic drawbacks that they perceive. Among Executive Order 12866 (Regulatory impact on a substantial number of small Planning and Review) and DOT other things, commenters may want to entities. None of the proposed Regulatory Policies and Procedures address the following: (1) The amendments would increase the implications for both consumers and The Department has determined that regulatory burden on air carriers and competition of there being no any of several of the options proposed ticket agents substantially. The requirement that sellers use a consistent for amending the existing rule, if Department seeks comment on whether approach to advertising fares—i.e., the adopted as a final rule, would be a there are small entity impacts that same base fare with the same cost significant regulatory action under should be considered. elements broken out—across all Executive Order 12866 and under the media—i.e., Web sites, print Department’s Regulatory Policies and Paperwork Reduction Act advertisements, and broadcast Procedures. None of the proposed rules None of the proposed amendments advertisements, and (2) whether carriers would require the disclosure of any contains information collection are likely to break out booking or service information in addition to what is requirements that require approval by fees from the base fare in order to make required under application of the the Office of Management and Budget their offerings appear as attractive as existing rule, and the Department (OMB) under the Paperwork Reduction those of travel agents, many of which expects that adoption of any of the Act (44 U.S.C. 2507 et seq.)
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 73966 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules
Unfunded Mandates Reform Act same government-imposed taxes and Internet, billboards, television, radio, The Department has determined that fees, the advertisement may state a and print media. the requirements of Title II of the maximum sum of these charges, a sum (e) Advertising fares that are higher if Unfunded Mandates Reform Act of 1995 for each destination, or a range of sums. purchased through one or more media do not apply to this rulemaking. Also, the word ‘‘approximately’’ or a (e.g., by telephone or in person) than range of sums may be used to account through another (e.g., over the Internet) Dated: Issued this Day of December 5, for minor currency-exchange is an unfair or deceptive practice unless 2005, at Washington, DC, Under Authority fluctuations. the advertisement prominently discloses Delegated by 49 CFR 1.56a. (ii) In Internet fare advertisements, that the stated fares are only available Michael W. Reynolds, including not only Web sites but also through the one medium and that Acting Assistant Secretary for Aviation and banner, pop-up, and e-mail tickets cost more than the advertised International Affairs. advertisements, the per-person price if purchased through other media. List of Subjects in 14 CFR Part 399 government taxes and fees that may be The advertisement may state a price Administrative practice and listed separately may be noted by a differential but may not characterize procedure, Air carriers, Air rates and prominent hyperlink, proximate to the this amount as a ‘‘service fee.’’ fares, Air taxis, Consumer protection, listed fare, that takes the viewer to a Option II Small businesses. display showing the nature and amount of these charges. 3. Section 399.84 would be revised to For the reasons set forth in the read as follows: preamble, the Department proposes to (iii) In any billboard advertisement amend 14 CFR part 399 as follows: that breaks out taxes and fees, a sum of § 399.84 Price disclosure. these charges must be legible to drivers The Department considers the sale of PART 399—STATEMENTS OF passing the billboard at the posted speed limit. air transportation to be an unfair or GENERAL POLICY deceptive practice unless the total price (iv) In television advertisements, the of the transportation is disclosed to the 1. The authority citation for part 399 sum of any taxes and fees that are consumer before the consumer makes continues to read as follows: 49 U.S.C. broken out must be disclosed. It must the purchase. 40101 et seq. either be presented on screen so that it can be read (i.e., in sufficiently large Option III Subpart G—Policies Relating to print and for a sufficient amount of Enforcement 4. Section 399.84 would be revised to time) or be disclosed audially. read as follows: Option I (v) Radio advertisements must include the sum of any taxes and fees § 399.84 Price disclosure and price 2. Section 399.84 would be revised to that are broken out. advertising. read as follows: (b) Advertising ‘‘two-for-one’’ fares is (a) The Department considers the sale § 399.84 Price Advertising. an unfair or deceptive practice if the of air transportation to be an unfair or (a) Total Price Requirement. (1) fare that must be purchased to take deceptive practice unless the total price Except as specified in paragraph (a)(2) advantage of the promotion is higher of the transportation is disclosed to the of this section, the Department than the carrier’s other fares in the same consumer before the consumer makes considers any advertising or solicitation market, unless this fact is prominently the purchase. by an air carrier, a foreign air carrier, or and clearly disclosed. (b) The Department considers any a ticket agent for passenger air (c) Advertising ‘‘each-way’’ fares that advertising by an air carrier, foreign air transportation, a tour (i.e., a are available only when bought for carrier, or ticket agent that states a price combination of air transportation and round-trip travel is an unfair or for air transportation to be an unfair or ground accommodations), or a tour deceptive practice unless the round-trip deceptive practice unless the component (i.e., a hotel stay) that states purchase requirement is disclosed advertisement sets forth all price a price for such air transportation, tour, clearly and conspicuously. Specifically, components for such air transportation or tour component to be an unfair or the disclosure must be prominent and so that the consumer can determine the deceptive practice, unless the price proximate to the advertised fares. A entire price to be paid. stated is the entire price to be paid by banner or pop-up Internet advertisement Option IV the customer to the air carrier, foreign of an ‘‘each-way’’ fare that is only air carrier, or ticket agent, for such air available with a round-trip purchase 5. Section 399.84 would be removed. transportation, tour, or tour component. must disclose this fact in the [FR Doc. 05–23841 Filed 12–13–05; 8:45 am] (2) Government-imposed taxes and advertisement itself. BILLING CODE 4910–62–P fees that the carrier collects on a per- (d) Advertising ‘‘free’’ air person basis may be excluded from the transportation in conjunction with the advertised airfare, provided that they purchase of one or more other tickets is DEPARTMENT OF HOUSING AND are not ad valorem in nature, and an unfair or deceptive practice unless URBAN DEVELOPMENT provided that the advertising or restrictions, fees, and other conditions solicitation shows the existence and that apply to the ‘‘free’’ transportation 24 CFR Part 3282 amount of these charges clearly so that are disclosed prominently and [Docket No. FR–4665–N–26] consumers can easily determine the proximate to the offer, at a minimum entire price to be paid. An indication of through an asterisk or other symbol Conference Call Meeting of the the existence of the taxes and fees listed directing the reader’s attention to the Manufactured Housing Consensus separately must be situated close to the information elsewhere in the Committee advertised fare, and the information advertisement. The information must be provided must be easily readable. presented in easily readable print or AGENCY: Office of the Assistant (i) If an advertisement lists multiple audially. This requirement applies to Secretary for Housing—Federal Housing destinations that do not all entail the advertisements in all media: the Commissioner, HUD.
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules 73967
ACTION: Notice of upcoming meeting via enforcement regulations, and with DATES: The public hearing originally conference call. developing and recommending scheduled for Thursday, December 15, proposed model installation standards 2005 at 10 a.m., is cancelled. SUMMARY: This notice sets forth the to the Secretary. FOR FURTHER INFORMATION CONTACT: schedule and proposed agenda of an The purpose of this conference call Treena Garrett of the Publications and upcoming meeting of the Manufactured meeting is to permit the Committee, at Regulations Branch, Associate Chief Housing Consensus Committee (the its request, to review and make further Counsel (Procedure and Administration) Committee) to be held via telephone recommendations to the Secretary at (202) 622–7180 (not a toll-free conference. This meeting is open to the regarding proposed changes to 24 CFR number). general public, which may participate 3282.401 through 3282.418 (Subpart I— SUPPLEMENTARY INFORMATION: The notice by following the instructions below. Consumer Complaint Handling and DATES: The conference call meeting will of proposed rulemaking and notice of Remedial Actions), and the proposed public hearing that appeared in the be held on Monday, December 19, 2005, Model Manufactured Home Installation from 11 a.m. to 3 p.m. Eastern Standard Federal Register on Monday, September Standards. The exceptional 19, 2005 (70 FR 54859), announced that Time. circumstances providing less than 15 ADDRESSES: Information concerning the a public hearing was scheduled for calendar days notice of the meeting are Thursday, December 15, 2005, at 10 a.m. conference call can be obtained from the that it is necessary to have this meeting Department’s Consensus Committee in the IRS Auditorium, Internal Revenue on this date, which has been proposed Service Building, 1111 Constitution Administering Organization, the and agreed to by the Committee, to National Fire Protection Association Avenue, NW., Washington, DC. The permit the Committee to continue its subject of the public hearing is proposed (NFPA). Interested parties can log onto consideration and take action regarding NFPA’s Web site for instructions regulations under section 863 of the the foregoing matters in a timely Internal Revenue Code. The public concerning how to participate, and for manner. contact information for the conference comment period for these proposed call: http://www.nfpa.org/ Tentative Agenda regulations expired on Wednesday, November 23, 2005. Outlines of oral categoryList.asp?category A. Roll Call. comments were due on Wednesday, ID=858&URL=Codes%20 B. Welcome and Opening remarks. November 23, 2005. and%20Standards/ C. Full Committee meeting and take The notice of proposed rulemaking Code%20development%20process/ actions on proposed changes to 24 CFR and notice of public hearing, instructed Technical%20Committees/Non- part 3282, subpart I, and the proposed those interested in testifying at the NFPA%20Technical%20Committees/ Model Manufactured Home Installation public hearing to submit outlines of the HUD%20Manufactured%20Housing% Standards. topics to be addressed. As of 20Consensus%20Committee%20 D. Adjournment. (MHCC)&cookie%5Ftest=1. Wednesday, December 7, 2005, no one Dated: December 8, 2005. Alternately, interested parties may has requested to speak. Therefore, the contact Valaree Crawford of NFPA by Brian D. Montomery, public hearing scheduled for Thursday, phone at (617) 984–7507 (this is not a Assistant Secretary for Housing—Federal December 15, 2005, is cancelled. Housing Commissioner. toll-free number) for conference call Cynthia E. Grigsby, [FR Doc. 05–24044 Filed 12–9–05; 4:14 pm] information. Acting Chief, Publications and Regulations BILLING CODE 4210–27–P FOR FURTHER INFORMATION CONTACT: Branch, Legal Processing Division, Associate William W. Matchneer III, Associate Chief Counsel, (Procedure and Deputy Assistant Secretary, Office of Administration). Regulatory Affairs and Manufactured DEPARTMENT OF THE TREASURY [FR Doc. 05–24038 Filed 12–9–05; 2:32 pm] Housing, Department of Housing and BILLING CODE 4830–01–P Urban Development, 451 7th Street, Internal Revenue Service SW., Washington, DC 20410, telephone (202) 708–6409 (this is not a toll-free 26 CFR Part 1 NATIONAL FOUNDATION ON THE number). Persons who have difficulty ARTS AND THE HUMANITIES hearing or speaking may access this [REG–106030–98] number via TTY by calling the toll-free Institute of Museum and Library Federal Information Relay Service at RIN 1545–AW50 Services (800) 877–8339. Source of Income From Certain Space 45 CFR Part 1180 SUPPLEMENTARY INFORMATION: Notice of and Ocean Activities; Source of RIN 3137–AA16 this meeting is provided in accordance Communications Income; Hearing with Sections 10(a) and (b) of the Cancellation Federal Advisory Committee Act (5 Technical Amendments To Reflect the U.S.C. App.2) and 41 CFR 102–3.150. AGENCY: Internal Revenue Service (IRS), New Authorizing Legislation of the The Manufactured Housing Consensus Treasury. Institute of Museum and Library Services Committee was established under ACTION: Cancellation of notice of public Section 604(a)(3) of the National hearing on proposed rulemaking. AGENCY: Institute of Museum and Manufactured Housing Construction Library Services (IMLS), NFAH. and Safety Standards Act of 1974, as SUMMARY: This document provides ACTION: Proposed rule. amended, 42 U.S.C. 5403(a)(3). The notice of cancellation of a public Committee is charged with providing hearing on proposed rulemaking SUMMARY: The Institute of Museum and recommendations to the Secretary to relating to the governing of source of Library Services proposes to amend adopt, revise, and interpret income from certain space and ocean grants regulations by removing outdated manufactured home construction and activities under section 863 of the regulations and making certain safety standards and procedural and Internal Revenue Code. technical amendments to reflect
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 73968 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules
Congress’ reauthorization of the carefully assessed and fully considered such, it does not impose a compliance Institute of Museum and Library prior to implementation of the final burden on the economy genrerally or on Services under The Museum and rule. Any information considered to be any person or entity. Accordingly, this Library Services Act of 2003. The confidential must be so identified and rule is not a ‘‘significant regulatory proposed amendments also reorganize submitted in writing. We will not action’’ from an economic standpoint, certain sections to provide greater consider comments submitted and it does not otherwise create any clarity for agency applicants and anonymously. However, if you wish us inconsistencies or budgetary impacts to grantees. to withhold your name and/or address, any other agency or Federal Program. you must state this prominently at the DATES: Comments are invited and must Regulatory Flexibility Act be received by no later than January 13, beginning of your comment. 2006. The regulatory removal in this Because this proposed rule would proposed rulemaking eliminates remove outdated regulations and make ADDRESSES: Send comments to Nancy E. certain technical amendments, the Weiss, General Counsel, Institute of outdated regulations and makes Institute has determined in Regulatory Museum and Library Services, 1800 M technical amendments to reflect Flexibility Act (5 U.S.C. 601 et seq.) Street, NW., Ninth Floor, Washington, Congress’ reauthorization of the review that this proposed rule will not DC 20036. Submit electronic comments Institute of Museum and Library have a significant economic impact on to [email protected]. Telephone (202) Services under The Museum and a substantial number of small entities 653–4787. Facsimile: (202) 653–4625. Library Services Act of 2003 Public Law 108–81 (September 25, 2003). These because it simply makes technical FOR FURTHER INFORMATION CONTACT: changes will ensure that all regulations amendments and removes outdated Nancy E. Weiss, General Counsel, governing provision of grants made by regulations. Institute of Museum and Library the Institute are consistent with current Paperwork Reduction Act Services, 1800 M Street, NW., Ninth statutory guidance and agency practice. Floor, Washington, DC 20036. E-mail: The proposed amendments also This proposed rule is exempt from the [email protected]: (202) 653– reorganize certain sections in 45 CFR requirements of the Paperwork 4787. Facsimile: (202) 653–4625. Part 1180 to provide greater clarity for Reduction Act, since it removes existing SUPPLEMENTARY INFORMATION: agency applicants and grantees. The outdated regulations and makes only I. Technical Amendments and Removal public is invited to make substantive technical amendments to reflect of the Institute’s Outdated Regulations comment on any of the changes in the Congress’ reauthorization of the proposed rule. Institute of Museum and Library The Institute of Museum and Library Services under The Museum and Services Congress proposes to remove III. Matters of Regulatory Procedure Library Services Act of 2003, Public outdated regulations and make minor Regulatory Planning and Review (E.O. Law 108–81 (September 25, 2003). An technical amendments to reflect 12866) OMB form 83–1 is not required. Congress’ reauthorization of the Institute of Museum and Library Under Executive Order 12866, the Unfunded Mandates Reform Act Services with The Museum and Library Institute must determine whether the For purposes of the Unfunded Services Act of 2003, Public Law 108– regulatory action is ‘‘significant’’ and Mandates Reform Act of 1995 (2 U.S.C. 81 (September 25, 2003). These therefore subject to OMB review and the chapter 25, subchapter II), this proposed revisions are meant to fulfill the requirements of the Executive Order. rule will not significantly or uniquely Institute’s responsibility to its eligible The Order defines a ‘‘significant affect small governments and will not grant applicants by ensuring that all regulatory action’’ as one that is likely result in increased expenditures by regulations, policies, and procedures are to result in a rule that may: (1) Have an State, local, and tribal governments, or up-to-date. The regulations proposed for annual effect on the economy of $100 by the private sector, of 4100 million or removal include regulations relating to million or more or adversely affect in a more as adjusted for inflation) in any programs and requirements no longer in material way the economy, a sector of one year. existence at the Institute as a result of the economy, productivity, competition, both agency practice and The Museum jobs, the environment, public health or Small Business Regulatory Enforcement and Library Services Act of 2003. In the safety, or State, local, or tribal Fairness Act (SBREFA) interests of economy of administration, governments or communities; (2) create This proposed rule is not a major rule and because all of the regulations a serious inconsistency or otherwise under 5 U.S.C. 804(2), the Small proposed to be removed are outdated interface with an action taken or Business Regulatory Enforcement and the technical amendments are planned by another agency; (3) Fairness Act. The proposed rule: minor, they are included in one materially alter the budgetary impact of a. Does not have an annual effect on rulemaking vehicle. entitlements, grants, user fees, or loan the economy of $100 million or more. programs or the rights and obligations of b. Will not cause a major increase in II. Public Comment Procedures recipients thereof; or (4) raise novel costs or prices for consumers, Comments should be submitted in legal or policy issues arising out of legal individual industries, Federal, State, or writing to the address indicated in the mandates, the President’s priorities, or local government agencies, or ADDRESSES section of this document. All the principles set forth in the Executive geographic regions. comments received will be available Order. c. Does not have significant adverse upon request for public inspection at The proposed rule removes a number effects on competition, employment, the Institute of Museum and Library of outdated regulations and makes investment productivity, innovation, or Services, 1800 M Street, NW., Ninth technical amendments to reflect the ability of U.S.-based enterprises to Floor, Washington, DC 20036. All Congress’ reauthorization of the compete with foreign-based enterprises written comments received by the date Institute of Museum and Library included in the DATES section of this Services under The Museum and Takings (E.O. 12630) document and all other relevant Library Services Act of 2003, Public In accordance with Executive Order information in the record will be Law 108–81 (September 25, 2003). As 12630, the proposed rule does not have
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules 73969
significant takings implications. No 1180.3 Other definitions. acquisition, care, or exhibition to the rights, property or compensation has 1180.4 Museum eligibility and burden of public of objects owned or used by the been, or will be, taken. a takings proof—Who may apply. institution. implication assessment is not required. 1180.5 Related institutions. (d)(1) Except as set forth in paragraph 1180.6 Basic materials which an applicant (d)(2) of this section, an institution Federalism (E.O. 13132) must submit to be considered for funding. exhibits objects to the general public for In accordance with Executive Order the purposes of this section if such 13132, this proposed rule does not have Subpart A—Definitions and Eligibility exhibition is a primary purpose of the federalism implications that warrant the institution. preparation of a federalism assessment. § 1180.1 Scope of this part. (2) An institution which does not This part establishes rules for the have as a primary purpose the Civil Justice Reform (E.O. 12988) award of grants from funds appropriated exhibition of objects to the general In accordance with Executive Order under the Museum and Library Services public but which can demonstrate that 12988, the Institute has determined that Act, including rules governing the it exhibits objects to the general public this proposed rule does not unduly eligibility of applicant institutions, the on a regular basis as a significant, burden the judicial system and meets type of assistance which may be separate, distinct, and continuing the requirements of sections 3(a) and provided, requirements which portion of its activities, and that it 3(b)(2) of the Order. applicants must meet and criteria to be otherwise meets the requirements of this Consultation With Indian Tribes (E.O. used in evaluating applications. section, may be determined to be a 13175) museum under this section. In order to § 1180.2 Definition of a museum. establish its eligibility, such as In accordance with Executive Order For the purpose of this part: institution must provide information 13175, the Institute has evaluated this (a) Museum means a public or private regarding the following: proposed rule and determined that it nonprofit institution which is organized (i) The number of staff members has no potential negative effects on on a permanent basis for essentially devoted to museum functions as federally recognized Indian tribes. educational or aesthetic purposes and described in paragraph (a) of this which, using a professional staff: National Environmental Policy Act section. (1) Owns or uses tangible objects, (ii) The period of time that such This proposed rule does not either animate or inanimate; museum functions have been carried constitute a major Federal action (2) Cares for these objects; and out by the institution over the course of significantly affecting the quality of the (3) Exhibits them to the general public the institution’s history. human environment. on a regular basis. (iii) Appropriate financial information List of Subjects in 45 CFR Part 1180 (i) An institution which exhibits for such functions presented separately objects to the general public for at least from the financial information of the Administrative practice and 120 days a year shall be deemed to meet institution as a whole. procedure, Government Contracts, Grant this requirement. (iv) The percentage of the institution’s programs-education, Grant programs- (ii) An institution which exhibits total space devoted to such museum Indians, Cooperative agreements. objects by appointment may meet this functions. Federal aid programs, Grants requirement if it can establish, in light (v) Such other information as the administration, Libraries, Museums, of the facts under all the relevant Director requests. Nonprofit Organizations, Colleges and circumstances, that this method of (3) The Director uses the information universities, Report and recordkeeping exhibition does not unreasonably furnished under paragraph (d)(2) of this requirements, and Sunshine Act. restrict the accessibility of the section in making a determination Dated: December 8, 2005. institution’s exhibits to the general regarding the eligibility of such an Nancy E. Weiss, public. institution under this section. General Counsel, Institute of Museum and (b) Museums include, but are not (e) For the purpose of this section, an Library Services. limited to, the following types of institution exhibits objects to the public For the reasons stated in the preamble institutions, if they otherwise satisfy the if it exhibits the objects through and under the authority of 20 U.S.C. provision of this section: facilities which it owns or operates. (1) Aquariums; 9101 et seq., the Institute of Museum § 1180.3 Other definitions. and Library Services proposes to amend (2) Arboretums; 45 CFR Part 1180 as follows: (3) Botanical gardens; The following other definitions apply (4) Art museums; in this part: PART 1180—GRANTS REGULATIONS (5) Children’s museums; Act means The Museum and Library (6) General museums; Services Act, Pub. L. 104–208 (20 U.S.C. 1. The authority citation for 45 CFR (7) Historic houses and sites; 9101–9176), as amended. Part 1180 is revised to read as follows: (8) History museums; Board means the National Museum Authority: 20 U.S.C. 9101–9176. (9) Nature centers; and Services Board established by The (10) Natural history and anthropology Museum and Library Services Act of Subpart A [Revised] museums; 2003, Pub. L. 108–81 (20 U.S.C. 9105a). (11) Planetariums; Collection includes objects owned, 2. Revise Subpart A of Part 1180 to (12) Science and technology centers; used or loaned by a museum as well as read as follows: (13) Specialized museums; and those literary, archival and documentary PART 1180—GRANTS REGULATIONS (14) Zoological parks. resources specifically required for the (c) For the purposes of this section, an study and interpretation of these Subpart A—Definitions and Eligibility institution uses a professional staff if it objects. Sec. employs at least one staff member, or Director means the Director of the 1180.1 Scope of this part. the fulltime equivalent, whether paid or Institute of Museum and Library 1180.2 Definition of a museum. unpaid primarily engaged in the Services.
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 73970 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules
Foundation means the National information requested. Failure to submit § 1180.44 [Amended] Foundation on the Arts and the information required by the application 9. Amended § 1180.44 as follows: Humanities. at the time of filing can subject an a. Remove reserved paragraph (c); Grantee means the recipient of a grant applicant to rejection of the application b. Redesignate paragraph (d) as under the Act. without consideration on its merits. paragraph (b); and Institute or IMLS means the Institute (b) IRS letter. An applicant applying c. Amend redesignated paragraph (b) of Museum and Library Services as a private, nonprofit institution must by removing the phrase ‘‘of museums’’. established under Section 203 of the submit a copy of the letter from the Act. Internal Revenue Service indicating the § 1180.45 [Removed and Reserved] Museum Services means services applicant’s eligibility for nonprofit 10. Remove and reserve § 1180.45. provided by a museum, primarily status under the applicable provision of 11. Remove undesignated center exhibiting objects to the general public, the Internet Revenue Code of 1954, as heading ‘‘RECORDS’’ from before and including but not limited to amended. § 1180.56 and revise § 1180.56 to read as preserving and maintaining its follows: collections, and providing educational § 1180.30 Publication of application and other programs to the public notices; content of notices. § 1180.56 Allowable costs. through the use of its collections and 3. Amend § 1180.30 as follows: (a) Determination of costs allowable other sources. a. Revise the section heading for under a grant is made in accordance § 1180.30 to read as set forth above. with government-wide cost principles § 1180.4 Museum eligibility and burden of b. Remove the phrase ‘‘in the Federal in applicable OMB circulars. proof—Who may apply. Register’’. (b) No costs shall be allowed for the (a) A museum located in any of the 50 4. Revise § 1180.31 to read as follows: purchase of any object to be included in states of the United States, the District § 1180.31 Information in application the collection of a museum, except of Columbia, the Commonwealth of notices. library, literary, or archival material Puerto Rico, the United States Virgin specifically required for a designated Islands, Guam, American Samoa, the Application notices generally include: (a) How an applicant can get an activity under a grant under the Act. Commonwealth of the Northern Mariana application packet containing detailed 12. Revise § 1180.57 to read as Islands, the Republic of the Marshall information about the program follows: Islands, the Federated States of including an application form; § 1180.57 Use of consultants. Micronesia, and the Republic of Palau (b) Where an applicant must send its may apply for a grant under the Act. application; (a) Subject to Federal statutes and (b) A public or private nonprofit (c) The amount of funds for which an regulations, a grantee shall adhere to its agency which a responsible for the applicant may apply; general policies and practices when it operation of a museum may, if (d) Any priorities established by the hires, uses, and pays a consultant as necessary, apply on behalf of the Institute for that year; and part of the staff. museum. (e) A reference to the applicable (b) The grantee may not use its grant (c) A museum operated by a regulations. to pay a consultant unless: department or agency of the Federated 5. Amend § 1180.32 as follows: (1) There is a need in the project for Government is not eligible to apply. a. Amend paragraph (a) introductory the services of that consultant; and (d) An applicant has the burden of text by removing the phrase ‘‘deadline’’ (2) The grantee cannot meet that need establishing that it is eligible for and adding in its place the phrase ‘‘the through using an employee rather than assistance under these regulations. deadline’’; and a consultant. § 1180.5 Related institutions. b. Add a new paragraph (d) to read as 13. Revise § 1180.58 to read as follows: (a) If two or more institutions are follows: under the common control of one § 1180.32 Deadline date for applications. § 1180.58 Duration of grants. agency or institution or are otherwise * * * * * The grantee may use grant funds organizationally related and apply for (d) The Director of IMLS may publish, during the period specified in the grant assistance under the Act, the Director in applicable application notices and document unless the grant is suspended determines under all the relevant program guidelines, additional ways in or terminated. If the grantee needs circumstances whether they are separate which an application can be submitted additional time to complete the grant, museums for the purposes of to the agency electronically. the grantee may apply for an extension establishing eligibility for assistance of the grant period without additional under these regulations, See § 1180.4. § 1180.34 [Removed and Reserved] funds. The Director or the Director’s (b) IMLS regards the following factors, 6. Remove and reserve § 1180.34. designee may approve this extension at among others, as showing that a related his or her discretion. institution is a separate museum: § 1180.35 [Amended] (1) The institution has its own 7. Amend § 1180.35 as follows: 14. Add undesignated center heading governing body; a. Amend paragraph (a), (b) ‘‘RECORDS’’ before § 1180.59; and (2) The institution has budgetary introductory text, and (e) introductory revise § 1180.59 to read as follows: autonomy; and text by removing the phrase ‘‘museums’’ § 1180.59 Records related to grant funds. (3) The institution has administrative and adding in its place the phrase A grantee shall, in accordance with autonomy. ‘‘applicants’’; and b. Amend paragraph (b)(2) by applicable OMB circulars, keep records § 1180.6 Basic materials which an removing the phrase ‘‘museum’’ and that show accurately and in full: applicant must submit to be considered for adding in its place the phrase (a) The amount of funds awarded funding. ‘‘applicant’’. under the grant; (a) Application. To apply for a grant, (b) The exact uses of the funds; an applicant must submit the designated § 1180.38 [Removed and Reserved] (c) The total amount expended under application form containing all 8. Remove and reserve § 1180.38. the grant;
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules 73971
(d) The amount expended under the housing, exhibition, monitoring, award a conservation grant which grant during the grant period provided reformatting, nurturing and obligates an amount in Federal funds in from non-Federal sources; and transportation of objects; excess of the normal maximum award. (e) Other records necessary to (3) Physical treatment of objects, IMLS may establish a maximum award facilitate an effective audit. specimens and organisms, for the level for exceptional project grants for a 15. Add § 1180.60 to read as follows: purpose of stabilizing, conserving and particular fiscal year through preserving their condition, removal of information made available in § 1180.60 Records related to compliance. inauthentic additions or accretions, and guidelines or other material distributed A grantee shall, in accordance with physical compensation for losses; to all applicants. applicable OMB circulars, keep accurate species survival activities; and (2) IMLS makes conservation grants and full records to show its compliance (4) Research and training in only on a matching basis. This means with specific requirements set forth in conservation. that at least 50 percent of the costs of the regulations and published notices, (d) Applicants. A museum may apply a conservation project must be met from or contained in the grant award for and receive only one conservation non-federal funds. Principles in documents. grant under this program in a fiscal year. applicable OMB circulars regarding 16. Add § 1180.61 to read as follows: (e) Types of conservation projects costs sharing or matching apply. § 1180.61 Records related to performance. funded. IMLS considers applications to (g) Application requirements; carry out conservation projects such as: priorities; survey required in certain (a) A grantee shall keep records (1) Projects to develop improved or cases. (1) Application requirements in demonstrating the progress and results less costly methods of conservation, or § 1180.6(a) and (b) apply. An under the grant and shall provide such to maintain or improve conservation application shall describe when, during records to the Institute upon request. the term of the grant, the applicant (b) The grantee shall use the records with respect to one or more collections, plans to complete each objective or created pursuant to paragraph (a) of this including— (i) Projects involving surveys of phase of the project. Where appropriate, section to: (1) Determine progress in conservation needs and IMLS may require an applicant to (ii) Projects to establish or maintain accomplishing objectives; and submit a dissemination plan. (2) Revise those objectives, if optimum environmental conditions. (2) The Director, by notice published (2) Projects to conduct research in necessary and authorized under the in the Federal Register, may establish conservation (including developmental priorities with respect to all or part of grant. 17. Revise Subpart D to read as and basic research). the funds available to IMLS for follows: (3) Projects to conduct or obtain conservation for a fiscal year among the training in conservation (including types of projects specified in paragraph Subpart D—Museum Conservation training of persons for careers as (c) of this section. Assessment Program professional conservators; training or (3) The Director may, to the extent upgrading of practicing conservators appropriate, require (by instructions in Sec. and conservation technicians in the use the application materials) that an 1180.70 Guidelines and standards for of new materials and techniques; and applicant which proposes a project to museum conservation projects. training of persons to become conserve particular objects must show that, prior to the submission of the Subpart D—Museum Conservation conservation technicians). (4) Projects related to museum application, it has carried out a general Program conservation needs not regularly survey of its conservation needs and § 1180.70 Guidelines and standards for addressed by other Federal funding priorities and that the project in museum conservation projects. agencies. question is consistent with such survey. (a) Scope. The guidelines and (5) Projects to meet the conservation In exceptional circumstances, the standards in this subpart apply to all needs of museums which are unable to Director may adjust this requirement. aspects of the IMLS conservation grant maintain their own individual The Director may also (through such program including the submission of conservation facilities. Because grants instructions) require an applicant for a applications by museums for are made only to museums, conservation project to submit conservation grants, to the award, organizations which operate regional additional information, material, or review and approval of such conservation centers but which are not undertakings to carry out the purposes applications by IMLS, and to the museums are ineligible for a direct of this part. carrying out of conservation grants grant. However, a museum or a group of (h) Procedures for review of awarded by IMLS. museums may use a grant to obtain applications. (1) IMLS uses the (b) Applicability of regulations. services from such a center. procedures stated in this paragraph to Except as otherwise provided in these (6) Projects to conserve particular review applications for conservation guidelines, subparts A–C of this part, as objects in a museums’s collection projects. amended, apply to the IMLS (including plants and animals) or to (2) IMLS evaluates all eligible conservation grant program. meet the conservation needs of a applications for conservation projects in (c) Definition. As used in these particular museum (through such accordance with applicable criteria. (See guidelines, the term conservation activities as the employment of paragraph (i) of this section.) The includes, but is not limited to, the conservators and the procurement of Director expects to use panels of experts following functions, as applied to art, conservation services or equipment). to review at least a portion of the history, natural history, science and (f) Limits for Federal funding. (1) The applications for conservation grants. technology, and living collections: normal amount of a Conservation Depending upon the number of (1) Technical examination of Project Support grant will be established applications received as well as other materials and surveys of environmental in the applicable program guidelines. factors, the Director may also use field and collection conditions; Unless otherwise provided by law, if the reviewers to evaluate applications (2) Provision, insofar as practicable, of Director determines that exceptional before submission of applications to the optimum environmental conditions for circumstances warrant, the Director may panels. In addition, the Director may
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 73972 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules
use technical experts to provide containing applicable cost principles SUMMARY: This document requests technical advice regarding certain which govern Federal grants generally. comments on a petition for rule making applications. (2) In general such costs as filed by KBYN, Inc. (‘‘Petitioner’’), (i) Criteria. This paragraph sets forth compensation for personal services, licensee of Station KBYN(FM) the general criteria which IMLS uses in costs of materials and supplies, rental (‘‘KNYN’’), Channel 240A, Arnold, evaluating and reviewing applications costs, and other administrative costs California. Petitioner requests that the for conservation projects. specifically related to a conservation Commission reallot Channel 240A from (1) The following programmatic project are allowable under a Arnold to City of Angels, California, and criteria apply to the evaluation and conservation grant in accordance with modify Station KBNY’s license review of conservation grants: applicable cost principles. accordingly. The coordinates for (i) What is the importance of the (3) Costs of alterations, repairs and Channel 240A at City of Angels are 38– object or objects to be conserved? What restoration to an existing facility are 05–32 NL and 120–27–22 WL, with a is the significance of the object or allowable when they are related to a site restriction of 8.6 kilometers (5.3 objects to the museum’s collection and/ conservation project under a miles) east of City of Angels. or audience? conservation grant in accordance with DATES: Comments must be filed on or (ii) What is the need for the project, applicable cost principles. before January 17, 2006, and reply including the relationship of the project (4) Costs of equipment are generally comments on or before January 31, to the conservation needs and priorities allowable if related to a conservation 2006. of the applicant museum as reflected in project but do require specific approval ADDRESSES: Secretary, Federal a survey of conservation needs or as indicated in the grant award Communications Commission, 445 12th similar needs assessment? document. (iii) What are the applicant’s plans to Street, SW., Room TW–A325, (5) A grantee may award a stipend to Washington, DC 20554. In addition to use and maintain the anticipated results an individual for training in connection or benefits of the project after the filing comments with the FCC, with a conservation project. interested parties should serve expiration of Federal support? (6) Costs of new construction are (iv) Does the applicant plan to devote Petitioner’s counsel, as follows: Dan J. unallowable. For example, a museum Albert, Esq., The Law Office of Dan J. adequate financial and other resources may not a use a conservation grant to to the project without inhibiting its Albert; 2120 N. 21st Road; Arlington, construct a new building or an addition Virginia 22201. ongoing activities? to an existing building to improve the (2) The following technical criteria FOR FURTHER INFORMATION CONTACT: R. environment in which its collections are Barthen Gorman, Media Bureau, (202) apply to the evaluation and review of housed. applications for conservation grants: 418–2180. (i) What is the nature of the proposed Subpart E [Removed] SUPPLEMENTARY INFORMATION: This is a project with respect to project design synopsis of the Commission’s Notice of and management plan? 18. Remove subpart E—Assistance to Proposed Rule Making, MB Docket No. (ii) To what extent does the Professional Museum Organizations, 05–316, adopted November 23, 2005 application exhibit knowledge of the consisting of §§ 1180.77 through and released November 25, 2005. The technical area to which the conservation 1180.78. full text of this Commission decision is project relates and employ the most available for inspection and copying promising or appropriate methods or Subpart F [Removed] during regular business hours in the FCC’s Reference Information Center at techniques of conservation? To what 19. Remove reserved subpart F. extent is the conservation project likely Portals II, 445 12th Street, SW., CY– to use, develop or demonstrate Subpart G [Removed] A257, Washington, DC 20554. This improved, more efficient, or more document may also be purchased from economic methods of conservation? 20. Remove subpart G—Meetings of the Commission’s duplicating (iii) Does the project have an adequate the National Museum Services Board, contractors, Best Copy and Printing, budget to achieve its purpose? Is the consisting of §§ 1180.80 through Inc., Portals II, 445 12th Street, SW., budget reasonable and adequate in 1180.91. Room CY–B402, Washington, DC 20554, relation to the objectives of the project? Appendix A to Part 1180 [Removed] telephone 1–800–378–3160 or http:// (iv) What are the qualifications of the www.BCPIWEB.com. This document personnel the applicant plans to use on 21. Remove Appendix A to Part 1180. does not contain proposed information the project and the proposed time that [FR Doc. 05–24007 Filed 12–13–05; 8:45 am] collection requirements subject to the each such person is obligated to commit BILLING CODE 7036–01–M Paperwork Reduction Act of 1995, to the project? Public Law 104–13. In addition, (j) Grant condition. An applicant therefore, it does not contain any which has received a grant in a prior FEDERAL COMMUNICATIONS proposed information collection burden fiscal year under the IMLS conservation COMMISSION ‘‘for small business concerns with fewer grant program may not receive a grant than 25 employees,’’ pursuant to the in a subsequent fiscal year under this 47 CFR Part 73 Small Business Paperwork Relief Act of section until required reports have been 2002, Public Law 107–198, see 44 U.S.C. submitted regarding the performance of [DA 05–3010; MB Docket No. 05–316; RM– 3506 (C)(4). The provisions of the the previous grant. 11294] Regulatory Flexibility Act of 1980 do (k) Allowable and unallowable costs. not apply to this proceeding. (1) Section 1180.56 of this chapter, Radio Broadcasting Services; Arnold Members of the public should note which applies to conservation grants, and City of Angels, California that from the time a Notice of Proposed sets forth the rules applicable to AGENCY: Federal Communications Rule Making is issued until the matter determining the allowability of costs Commission. is no longer subject to Commission under IMLS grants and refers applicants consideration or court review, all ex ACTION: Proposed rule. and grantees to the OMB circulars parte contacts are prohibited in
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules 73973
Commission proceedings, such as this impedes the achievement of the Initial Paperwork Reduction Act of one, which involve channel allotments. interrelated federal goals of enhanced 1995 Analysis See 47 CFR 1.1204(b) for rules cable competition and accelerated This NPRM does not contain governing permissible ex parte contacts. broadband deployment and, if so, how proposed information collection(s) For information regarding proper the Commission should act to address subject to the Paperwork Reduction Act filing procedures for comments, See 47 that problem. of 1995 (PRA), Public Law 104–13. In CFR 1.415 and 1.420. DATES: Comments for this proceeding addition, therefore, it does not contain List of Subjects in 47 CFR Part 73 are due on or before February 13, 2006; any new or modified ‘‘information reply comments are due on or before collection burden for small business Radio, Radio broadcasting. March 14, 2006. concerns with fewer than 25 For the reasons discussed in the ADDRESSES: You may submit comments, employees,’’ pursuant to the Small preamble, the Federal Communications identified by MB Docket No. 05–311, by Business Paperwork Relief Act of 2002, Commission proposes to amend 47 CFR any of the following methods: Public Law 107–198, see 44 U.S.C. Part 73 as follows: • Federal eRulemaking Portal: http:// 3506(c)(4). PART 73—RADIO BROADCAST www.regulations.gov. Follow the Summary of the Notice of Proposed SERVICES instructions for submitting comments. Rulemaking • Federal Communications I. Introduction 1. The authority citation for Part 73 Commission’s Web Site: http:// continues to read as follows: www.fcc.gov/cgb/ecfs/. Follow the 1. In this Notice of Proposed Authority: 47 U.S.C. 154, 303, 334, and instructions for submitting comments. Rulemaking (NPRM), the Commission 336. • People with Disabilities: Contact seeks comment on how to implement the FCC to request reasonable section 621(a)(1) of the Communications § 73.202 [Amended] accommodations (accessible format Act of 1934, as amended (the 2. Section 73.202(b), the Table of FM documents, sign language interpreters, Communications Act or the Act). Allotments under California, is CART, etc.) by e-mail: [email protected] Section 621(a)(1) states in relevant part amended by removing Channel 240A at or phone: 202–418–0530 or TTY: 202– that ‘‘a franchising authority * * * may Arnold and by adding City of Angels, 418–0432. not unreasonably refuse to award an Channel 240A. For detailed instructions for additional competitive franchise.’’ Federal Communications Commission. submitting comments and additional While the Commission has found that, ‘‘[t]oday, almost all consumers have the John A. Karousos, information on the rulemaking process, choice between over-the-air broadcast see the SUPPLEMENTARY INFORMATION Assistant Chief, Audio Division, Media television, a cable service, and at least Bureau. section of this document. two DBS providers,’’ greater [FR Doc. 05–23804 Filed 12–13–05; 8:45 am] FOR FURTHER INFORMATION CONTACT: For competition in the market for the BILLING CODE 6712–01–P additional information on this delivery of multichannel video proceeding, contact John Norton, programming is one of the primary goals [email protected] or Natalie of federal communications policy. FEDERAL COMMUNICATIONS Roisman, [email protected] of Increased competition can be expected COMMISSION the Media Bureau, Policy Division, (202) to lead to lower prices and more choices 418–2120. 47 CFR Part 76 for consumers and, as marketplace SUPPLEMENTARY INFORMATION: This is a competition disciplines competitors’ [MB Docket No. 05–311; FCC 05–189] summary of the Commission’s Notice of behavior, all competing cable service Proposed Rulemaking (NPRM), FCC 05– providers could require less federal Implementation of Section 621(a)(1) of 189, adopted on November 3, 2005, and regulation. Moreover, for all competitors the Cable Communications Policy Act released on November 18, 2005. The full in the marketplace, the abilities to offer of 1984 as Amended by the Cable text of this document is available for video to consumers and to deploy Television Consumer Protection and public inspection and copying during broadband networks rapidly are linked Competition Act of 1992 regular business hours in the FCC intrinsically. Specifically, the AGENCY: Federal Communications Reference Center, Federal construction of modern Commission. Communications Commission, 445 12th telecommunications facilities requires ACTION: Proposed rule. Street, SW., CY–A257, Washington, DC substantial capital investment, and such 20554. These documents will also be networks, once completed, are capable SUMMARY: In this document, the available via ECFS (http://www.fcc.gov/ of providing not only voice and data, Commission seeks comment on how to cgb/ecfs/). (Documents will be available but video as well. As a consequence, the implement section 621(a)(1) of the electronically in ASCII, Word 97, and/ ability to offer video offers the promise Communications Act. Because several or Adobe Acrobat.) The complete text of an additional revenue stream from potential competitors seeking to enter may be purchased from the which deployment costs can be the multichannel video programming Commission’s copy contractor, 445 12th recovered. However, potential distributor (MVPD) marketplace have Street, SW., Room CY–B402, competitors seeking to enter the MVPD alleged that in many areas the current Washington, DC 20554. To request this marketplace have alleged that in many operation of the local franchising document in accessible formats areas the current operation of the local process serves as a barrier to entry, the (computer diskettes, large print, audio franchising process serves as a barrier to Commission solicits comment on recording, and Braille), send an e-mail entry. Accordingly, this NPRM is section 621(a)(1)’s directive that local to [email protected] or call the designed to solicit comment on franchising authorities (LFAs) not Commission’s Consumer and implementation of section 621(a)(1)’s unreasonably refuse to award Governmental Affairs Bureau at (202) directive that LFAs not unreasonably competitive franchises, and whether the 418–0530 (voice), (202) 418–0432 refuse to award competitive franchises, franchising process unreasonably (TTY). and whether the franchising process
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 73974 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules
unreasonably impedes the achievement unreasonably denying a franchise to video competitor,’’ thereby ‘‘allow[ing] of the interrelated federal goals of potential competitors who are ready and the incumbent not only to take steps to enhanced cable competition and able to provide service.’’ prolong the franchise process and delay accelerated broadband deployment and, 4. In response, Congress revised the onset of competition, but also to if so, how the Commission should act to section 621(a)(1) through the Cable entrench its position in the market address that problem. Television Consumer Protection and before the new entrant has the Competition Act of 1992 (the 1992 Cable opportunity to compete;’’ (2) it ‘‘simply II. Background Act) to read as follows: ‘‘A franchising takes too long,’’ as a result of ‘‘factors 2. The Communications Act provides authority may award, in accordance such as inertia, arcane or lengthy new entrants four options for entry into with the provisions of this title, 1 or application procedures, bureaucracy or, the MVPD market. They can provide more franchises within its jurisdiction; in some cases, inattentiveness or video programming to subscribers via except that a franchising authority may unresponsiveness at the LFA level;’’ (3) radio communication, a cable system or not grant an exclusive franchise and it triggers so-called ‘‘level playing field’’ an open video system, or they can may not unreasonably refuse to award laws, ‘‘which require the new entrant to provide transmission of video an additional competitive franchise.’’ build-out and serve an entire franchise programming on a common carrier (47 U.S.C. 541(a)(1)). As the legislative area on an expedited basis or to match basis. Any new entrant opting to offer history makes plain, the purpose of this all of the concessions previously ‘‘cable service’’ as a ‘‘cable operator’’ abridgement of local government provided by the incumbent in order for becomes subject to the requirements of authority was to promote greater cable it to gain its original monopoly position Title VI of the Communications Act (See competition: in the local area, despite the vastly 47 U.S.C. 542(6); 47 U.S.C. 542(5)). Based on the evidence in the record taken different competitive situation facing Section 621 of Title VI sets forth general as a whole, it is clear that there are benefits the new entrant;’’ and (4) it involves cable franchise requirements. from competition between two cable systems. ‘‘outrageous demands by some LFAs,’’ Subsection (b)(1) of section 621 Thus, the Committee believes that local which ‘‘are in no way related to video prohibits a cable operator from franchising authorities should be encouraged services or to the rationales for requiring providing cable service in a particular to award second franchises. Accordingly, [the franchises.’’ area without first obtaining a cable 1992 Cable Act,] as reported, prohibits local 6. The efficient operation of the local franchise, and subsection (a)(1) grants to franchising authorities from unreasonably refusing to grant second franchises. franchising process is especially LFAs the authority to award such significant with respect to potential new franchises. Other provisions of section Section 621(a)(1), as revised, established entrants with existing facilities, for a 621 provide that, in awarding a a clear, federal-level limitation on the number of reasons. First, because they franchise, an LFA ‘‘shall assure that authority of LFAs in the franchising seek to provide video programming to access to cable service is not denied to process. In that regard, Congress large portions of the country, they any group of potential residential cable provided that ‘‘[a]ny applicant whose contend that the sheer number of subscribers because of the income of the application for a second franchise has franchises they first must obtain serves residents of the local area in which such been denied by a final decision of the as a competitive roadblock. Verizon, for group resides’’ (47 U.S.C. 541(a)(3)); franchising authority may appeal such example, has stated that it would have ‘‘shall allow [a] cable system a final decision pursuant to the provisions to negotiate with more than 10,000 reasonable period of time to become of section 635. * * *’’ Section 635, in municipalities in order to offer service capable of providing cable service to all turn, states that ‘‘[a]ny cable operator throughout its current service area. households in the franchise area’’ (47 adversely affected by any final Second, because the existing service U.S.C. 541(a)(4)(A)); and ‘‘may require determination made by a franchising areas of potential new entrants with adequate assurance that the cable authority under section 621(a)(1) * * * existing facilities do not always operator will provide adequate public, may commence an action within 120 coincide perfectly with those covered by educational and governmental access days after receiving notice of such incumbent cable operators’ franchises, channel capacity, facilities, or financial determination’’ in federal court or a they argue that build-out requirements support’’ (47 U.S.C. 541(a)(4)(B)). state court of general jurisdiction (47 demanded by LFAs create disincentives 3. The initial purpose of section U.S.C. 555). for them to enter the marketplace. SBC 621(a)(1), which was added to the 5. As potential new entrants seek to has told investors that Project Communications Act by the Cable enter the MVPD marketplace, there have Lightspeed, an ‘‘initiative to expand its Communications Policy Act of 1984 (the been indications that in many areas the fiber-optics network deeper into 1984 Cable Act), was to both affirm and current operation of the local neighborhoods to deliver SBC U- delineate the role of LFAs in the franchising process is serving as an verseSM TV, voice and high-speed franchising process (See, e.g., H.R. Rep. unreasonable barrier to entry. For Internet access services,’’ will be No. 98–934, at 59 (1984)). A few years example, Verizon recently filed deployed to approximately ninety later, however, the Commission comments in the Commission’s annual percent of its ‘‘high-value,’’ seventy prepared a report to Congress on the investigation into the state of video percent of its ‘‘medium-value,’’ and less cable industry pursuant to the competition arguing that ‘‘[t]he single than five percent of its ‘‘low-value’’ requirements of the 1984 Cable Act (See biggest obstacle to widespread customers. generally Competition, Rate competition in the video services 7. According to the National Deregulation and the Commission’s market is the requirement that a Association of Telecommunications Policies Relating to the Provision of provider obtain an individually Officers and Advisors, the National Cable Television Service, 55 FR 32631, negotiated local franchise in each area League of Cities, the United States August 10, 1990) (Report). In that where it intends to provide service.’’ In Conference of Mayors, and the National Report, the Commission concluded that its comments, Verizon contends that the Association of Counties, local in order ‘‘[t]o encourage more robust local franchising process impedes cable governments ‘‘want and welcome real competition in the local video competition in the following ways: (1) It communications competition in video, marketplace, the Congress should * * * ‘‘forces a new entrant to telegraph its telephone and broadband services,’’ and forbid local franchising authorities from deployment plans to the incumbent they ‘‘support a technology-neutral
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules 73975
approach that promotes broadband III. Discussion passage of the 1992 Cable Act, and what deployment and competitive service 11. Potential competitive cable effect have those changes had on the offerings.’’ While acknowledging that providers have alleged that the local process of obtaining a competitive cable consumers ‘‘demand real competition to franchising process serves as a barrier to franchise? Are current procedures or increase their options and improve the entry, and that state and local franchise requirements appropriate for any cable quality of services,’’ local governments requirements serve to unreasonably operator, including existing cable argue that franchising ‘‘need not be a delay competitive entry. Given the operators? What problems have cable complex or time-consuming process.’’ interrelated federal goals of enhanced incumbents encountered with LFAs? They argue that the current framework cable competition and rapid broadband Should cable service requirements vary greatly from jurisdiction to jurisdiction? ‘‘[s]afeguards [a]gainst [a]buse and deployment, below we seek comment [p]rotects [c]ompetition.’’ Furthermore, Are certain cable service requirements on a number of issues relating to the local governments maintain that local no longer needed in light of competition cable franchising process generally, and, franchisors take their fiduciary in the MVPD marketplace? To what in particular, the process by which responsibilities seriously and strive to extent are LFAs demanding concessions competitive cable franchises are ‘‘manage and facilitate in an orderly and that are not relevant to providing cable awarded. timely fashion the use of [local] services? Commenters arguing that such property.’’ A. Potential Competitors’ Current abuses are occurring are asked to 8. Anecdotal evidence suggests that Ability To Obtain Franchises provide specific examples of such new entrants have been able to obtain 12. The Commission requests demands. Parties should submit cable franchises. SNET and Ameritech comment on the current environment in empirical data on the extent to which both obtained cable franchises before which would-be new entrants attempt to LFAs unreasonably refuse to award being acquired by SBC. BellSouth and obtain competitive cable franchises. competitive franchises. The Qwest have obtained franchises, as have Commission seeks record evidence of How many franchising authorities are many cable overbuilders—RCN has both concrete examples and broader there nationally? How many franchises acquired over 100. Verizon has stated information that demonstrate the extent are needed to reach sixty or eighty that it ‘‘has obtained nine local cable to which any problems exist. franchises for FiOS TV from various percent of cable subscribers? In how 14. The Commission also asks local franchising authorities (LFAs) in many of these franchise areas do new commenters to address the impact that California, Florida, Virginia, and Texas’’ entrants provide or intend to provide state laws have on the ability of new and ‘‘is negotiating franchises with more competitive video services? Are cable entrants to obtain competitive than 200 municipalities.’’ According to systems generally equivalent to franchises. Some parties state that so- a survey of 161 National franchise areas? To what extent does the called ‘‘level-playing-field’’ statutes, Telecommunications Cooperative regulatory process involved in obtaining which typically impose upon new Association (NTCA) members, ‘‘[f]orty- franchises—particularly multiple entrants terms and conditions that are two percent of survey respondents offer franchises covering broad territories, neither ‘‘more favorable’’ nor ‘‘less video service to their customers. Ninety- such as those today served by facilities- burdensome’’ that those to which four percent of those offer video under based providers of telephone and/or existing franchises are subject, create a cable franchise, while six percent offer broadband services—impede the unreasonable regulatory barriers to video as an Open Video System (OVS) realization of the Commission’s policy entry. Others state that they create ***.’’ goals? Are potential competitors comparability among all providers. The 9. In addition, there have been recent obtaining from LFAs the authority Commission seeks comment on these efforts at the state level to facilitate needed to offer video programming to issues. The Commission also seeks entry by competitive cable providers. consumers in a timely manner? What is comment on the impact of state laws For example, legislation was passed in the impact of state-wide franchise establishing a multi-step franchising Texas in September 2005 enabling new authority on the ability of the process. Do such laws create entrants in the video programming competitive provider to access the unreasonable delays in the franchising distribution marketplace to provide market? Is there evidence that such process? service pursuant to state-issued state-wide franchises are causing delay? certificates of franchising authority. What impact has state-level legislative B. The Commission’s Authority To Upon the submission of a completed or regulatory activity had on the Adopt Rules Implementing Section affidavit by an applicant, Texas franchising process? Are competitors 621(a)(1) regulators now are required to issue a taking advantage of new opportunities 15. The Commission tentatively certificate of franchising authority provided by state legislatures and concludes that it has authority to within seventeen business days. Similar regulators? How many competitive implement section 621(a)(1)’s directive bills have been introduced in Virginia franchises have been awarded to date? that LFAs not unreasonably refuse to and New Jersey although they are yet to How many competitive franchises have award competitive franchises. As an be enacted. potential new entrants requested to initial matter, the Commission is 10. With this NPRM, the Commission date? How much time, on average, has charged by Congress with the seeks to determine whether, in awarding elapsed between the date of application administration of Title VI, which, as franchises, LFAs are carrying out and the date of grant, and during that courts have held, necessarily includes legitimate policy objectives allowed by time period, how much time, on the authority to interpret and implement the Communications Act or are average, was spent in active section 621. Moreover, the Commission hindering the federal communications negotiations? How many applications believes that the 1992 Cable Act’s policy objectives of increased have been denied? revisions to section 621(a)(1) indicate competition in the delivery of video 13. How many negotiations currently that Congress considered the goal of programming and accelerated are ongoing? Are the terms being greater cable competition to be broadband deployment and, if that is proffered consistent with the sufficiently important to justify the the case, whether and how to remedy requirements of Title VI? How has the Commission’s adoption of rules. Under the problem. cable marketplace changed since the the Supremacy Clause, the enforcement
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 73976 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules
of a state law or regulation may be that the local franchising process does unreasonable delays in the process, or preempted by federal law when it not unreasonably interfere with the (2) imposing unreasonable regulatory stands as an obstacle to the ability of any potential new entrant to roadblocks, such that they effectively accomplishment and execution of the provide video programming to constitute a de facto ‘‘unreasonable full purposes and objectives of consumers. The Commission seeks refusal to award an additional Congress. The Supreme Court has held comment on this tentative conclusion. competitive franchise’’ within the that federal regulations properly 17. Section 621(a)(1) states in relevant meaning of section 621(a)(1). The adopted in accordance with an agency’s part that ‘‘[a]ny applicant whose Commission tentatively finds that this statutory authorization have no less application for a second franchise has interpretation is consistent with the preemptive effect than federal statutes been denied by a final decision of the language in the statute and appropriate and, applying this principle, the Court franchising authority may appeal such because it captures more appropriately has approved the preemptive authority final decision pursuant to the provisions the range of behavior that would that the Commission has asserted over of section 635 for failure to comply with constitute an ‘‘unreasonable refusal to the regulation of cable television this subsection.’’ Section 635, in turn, award an additional competitive systems. In addition, section 636(c) of sets forth the specific procedures for franchise.’’ The Commission seeks the Act states that ‘‘any provision of law such judicial proceedings. Apart from comment on this tentative conclusion. of any State, political subdivision, or those remedies available to aggrieved 20. Further, the Commission agency thereof, or franchising authority cable operators under section 635, the tentatively concludes that it is not or any provision of any franchise Commission tentatively concludes that unreasonable for an LFA, in awarding a granted by such authority, which is section 621(a)(1) authorizes the franchise, to ‘‘assure that access to cable inconsistent with [the Communications] Commission to take actions, consistent service is not denied to any group of Act shall be deemed to be preempted with section 636(a), to ensure that the potential residential cable subscribers and superseded.’’ Thus, the Commission local franchising process does not because of the income of the residents tentatively concludes that, pursuant to undermine the well-established policy of the local area in which such group the authority granted under sections goal of increased MVPD competition resides;’’ ‘‘allow [a] cable system a 621(a) and 636(c) of the Act, and under and, in particular, greater cable reasonable period of time to become the Supremacy Clause, the Commission competition within a given franchise capable of providing cable service to all may deem to be preempted and territory. The Commission seeks households in the franchise area;’’ and superceded any law or regulation of a comment on this tentative conclusion as ‘‘require adequate assurance that the State or LFA that causes an well. How might the Commission best cable operator will provide adequate unreasonable refusal to award a assure that the local franchising process public, educational and governmental competitive franchise in contravention is not inhibiting the ability of access channel capacity, facilities, or of section 621(a). At the same time, incumbent cable operators to invest in financial support.’’ These powers and however, the Commission recognize that broadband services? limitations on franchising authorities 18. Finally, the Commission seeks section 636(a) states that ‘‘[n]othing in promote important public policy goals. comment on possible sources of 21. The Commission solicits comment this title shall be construed to affect any Commission authority, other than on what, if any, specific rules, guidance authority of any State, political section 621(a)(1), to address problems or best practices should be adopted to subdivision, or agency thereof, or caused by the local franchising process. ensure that the local cable franchising franchising authority, regarding matters For example, given the relationship process does not unreasonably impede of public health, safety, and welfare, to between the ability to offer video competitive cable entry. What would the extent consistent with the express programming and the willingness to the appropriate remedy or remedies be provisions of this title.’’ Finally, the invest in broadband facilities identified for violations of such rules, guidance or Commission notes that it is empowered above, could the Commission take best practices? Should the Commission by section 1 of the Act ‘‘to execute and action to address franchise-related establish specific rules to which LFAs enforce the provisions of this Act’’ and concerns pursuant to section 706? must adhere or specific guidelines for by section 4(i) ‘‘to perform any and all LFAs? For example, should the C. Steps the Commission Should Take acts, make such rules and regulations, Commission address maximum To Ensure That the Local Franchising and issue such orders, not inconsistent timeframes for considering an Process Does Not Unreasonably with this Act, as may be necessary in application for a competitive franchise? Interfere With Competitive Cable Entry the execution of its functions.’’ The Are there certain practices that should and Rapid Broadband Deployment Commission seeks input from be found unreasonable through rules or commenters on the tentative conclusion 19. The Commission seeks comment guidelines? If so, what are these that the Commission is authorized to on how to should define what practices? implement section 621(a)(1) as constitutes an unreasonable refusal to 22. In addition, it is not clear how the amended. The Commission also seeks award an additional competitive primary justification for a cable comment on the manner in which the franchise under section 621(a)(1). While franchise—i.e., the locality’s need to Commission should proceed. Do the that section refers to the ‘‘unreasonable regulate and receive compensation for Commission have the authority to adopt refus[al] to award an additional the use of public rights of way—applies rules or is it limited to providing competitive franchise,’’ the Commission to entities that already have franchises guidance? tentatively concludes that section that authorize their use of those rights 16. The first sentence of section 621(a)(1) prohibits not only the ultimate of way. Does section 621(a)(1) provide 621(a)(1) states that a franchising refusal to award a competitive the Commission with the authority to authority may award ‘‘1 or more franchise, but also the establishment of establish different—specifically, franchises’’ and may not unreasonably procedures and other requirements that higher—standards for ‘‘reasonableness’’ refuse to award ‘‘an additional have the effect of unreasonably with respect to such entities? In that competitive franchise.’’ The interfering with the ability of a would- context, the Commission seeks comment Commission tentatively concludes that be competitor to obtain a competitive on whether section 621(a)(1) permits the section 621(a)(1) empowers it to ensure franchise, either by (1) creating imposition of greater restrictions on the
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00032 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules 73977
authority of LFAs with respect to those rules proposed in this NPRM on a c. Description and Estimate of the entities (e.g., facilities-based providers substantial number of small entities. Number of Small Entities to Which the of telephone and/or broadband services) Written public comments are requested Proposed Rules Will Apply that already have permission to access on this IRFA. Comments must be 28. The RFA directs agencies to public rights of way. identified as responses to the IRFA and provide a description of, and where 23. The Commission also seeks must be filed by the deadlines for feasible, an estimate of the number of comment on whether build-out comments on the NPRM provided in small entities that may be affected by requirements are creating unreasonable paragraph 28 of the item. The the proposed rules, if adopted. The RFA barriers to entry for facilities-based Commission will send a copy of the generally defines the term ‘‘small providers of telephone and/or NPRM, including this IRFA, to the Chief entity’’ as having the same meaning as broadband services. The areas served by Counsel for Advocacy of the Small the terms ‘‘small business,’’ ‘‘small such entities frequently do not coincide Business Administration (SBA) (See 5 organization,’’ and ‘‘small governmental perfectly with the areas under the U.S.C. 603(a)). jurisdiction.’’ In addition, the term jurisdiction of the relevant LFAs. ‘‘small business’’ has the same meaning Section 621(a)(4)(A) states that, ‘‘[i]n a. Need for, and Objectives of, the as the term ‘‘small business concern’’ awarding a franchise, the franchising Proposed Rules under the Small Business Act. A ‘‘small authority shall allow the applicant’s 26. The NPRM initiates a process to business concern’’ is one which: (1) Is cable system a reasonable period of time implement section 621(a)(1) of the independently owned and operated; (2) to become capable of providing cable Communications Act in order to further is not dominant in its field of operation; service to all households in the the interrelated goals of enhanced cable and (3) satisfies any additional criteria franchise area.’’ (For purposes of this competition and accelerated broadband established by the Small Business discussion, there is a distinction deployment. Specifically, the NPRM Administration (SBA). between (1) requirements that may solicits comment on how to best ensure 29. Small Businesses. Nationwide, function as barriers to competitive entry that LFAs, which are the governmental there are a total of approximately 22.4 for providers of telephone and/or entities responsible for regulating cable million small businesses, according to broadband services with existing providers at the local level, do not SBA data. facilities, and (2) prohibitions against ‘‘unreasonably refuse to award * * * 30. Small Organizations. Nationwide, discriminatory deployment of cable additional competitive franchise[s].’’ there are approximately 1.6 million services based upon economic The NPRM also seeks comment on the small organizations. considerations.) The Commission seeks specific approach the Commission 31. The Commission has determined comment on the FCC’s authority in this should take in order to implement that the group of small entities possibly area. Given the language of section section 621(a)(1). Specifically, it asks directly affected by the proposed rules 621(a)(4)(A), does the Commission have whether the Commission should herein, if adopted, consists of small authority under section 621(a)(1) to establish (1) specific guidelines and/or governmental entities (which, in some direct LFAs to allow such new entrants model terms for competitive cable cases, may be represented in the local a specific, minimum amount of time to franchises, or (2) general principles that franchising process by not-for-profit expand their networks beyond their are designed to provide LFAs with the enterprises). A description of these current footprints? If so, and in light of guidance necessary to ensure that entities is provided below. In addition the fact that a new entrant generally competitive franchises are awarded in a the Commission voluntarily provides faces competition from at least one timely fashion. descriptions of a number of entities that incumbent cable operator and two direct may be merely indirectly affected by broadcast satellite (‘‘DBS’’) providers, b. Legal Basis any rules that result from the NPRM. what would constitute a reasonable 27. The NPRM tentatively concludes amount of time to do so? that the Commission has authority to 1. Small Governmental Jurisdictions 24. Finally, section 602 of the Act implement section 621(a)(1)’s mandate 32. The term ‘‘small governmental defines ‘‘franchising authority’’ as ‘‘any that LFAs do not ‘‘unreasonably refuse jurisdiction’’ is defined as ‘‘governments governmental entity empowered by to award * * * additional competitive of cities, towns, townships, villages, Federal, State, or local law to grant a franchises.’’ The item notes that the school districts, or special districts, with franchise.’’ In some cases it may be the Commission is empowered by section 1 a population of less than fifty state itself, rather than the LFA, that has of the Communications Act ‘‘to execute thousand.’’ As of 1997, there were taken steps which unreasonably and enforce [its] provisions’’ and by approximately 87,453 governmental interfere with new entrants’ ability to section 4(i) ‘‘to perform any and all acts, jurisdictions in the United States. This obtain a competitive franchise. make such rules and regulations, and number includes 39,044 county Commenters should address whether it issue such orders, not inconsistent with governments, municipalities, and may be appropriate to preempt such this Act, as may be necessary in the townships, of which 37,546 state-level legislation to the extent that execution of its functions.’’ Finally, the (approximately 96.2 percent) have the Commission finds it serves as an NPRM finds that section 636(c) makes populations of fewer than 50,000, and of unreasonable barrier to the grant of plain that ‘‘any provision of law of any which 1,498 have populations of 50,000 competitive franchises. State, political subdivision, or agency or more. Thus, we estimate the number IV. Procedural Matters thereof, or franchising authority or any of small governmental jurisdictions provision of any franchise granted by overall to be 84,098 or fewer. A. Initial Regulatory Flexibility Analysis such authority, which is inconsistent 25. As required by the Regulatory with this Act shall be deemed to be 2. Miscellaneous Entities Flexibility Act of 1980, as amended (the preempted and superceded.’’ The NPRM 33. The entities described in this RFA), the Commission has prepared this is adopted pursuant to sections 1, 4(i), section are affected merely indirectly by Initial Regulatory Flexibility Analysis 621(a)(1), and 636(c) of the the NPRM, and therefore are not (IRFA) of the possible significant Communications Act of 1934, as formally a part of this RFA analysis. economic impact of the policies and amended. They are included, however, to broaden
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 73978 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules
the record in this proceeding and to annual revenues of all its affiliates, do Telecommunications Carriers. Under alert them to the Commission’s tentative not exceed $250 million in the that size standard, such a business is conclusions. aggregate. Based on available data, the small if it has 1,500 or fewer employees. Commission estimates that the number According to Commission data, 1,303 aa. Cable Operators of cable operators serving 677,000 carriers have reported that they are 34. The ‘‘Cable and Other Program subscribers or fewer, totals 1,450. The engaged in the provision of incumbent Distribution’’ census category includes Commission neither requests nor local exchange services. Of these 1,303 cable systems operators, closed circuit collects information on whether cable carriers, an estimated 1,020 have 1,500 television services, direct broadcast system operators are affiliated with or fewer employees and 283 have more satellite services, multipoint entities whose gross annual revenues than 1,500 employees. Consequently, distribution systems, satellite master exceed $250 million, and therefore is the Commission estimates that most antenna systems, and subscription unable, at this time, to estimate more providers of incumbent local exchange television services. The SBA has accurately the number of cable system service are small businesses that may be developed small business size standard operators that would qualify as small affected by our action. In addition, for this census category, which includes cable operators under the size standard limited preliminary census data for all such companies generating $12.5 contained in the Communications Act of 2002 indicate that the total number of million or less in revenue annually. 1934. wired communications carriers According to Census Bureau data for 37. Open Video Services. Open Video increased approximately 34 percent 1997, there were a total of 1,311 firms Service (OVS) systems provide from 1997 to 2002. in this category, total, that had operated subscription services. As noted above, 40. Competitive Local Exchange for the entire year. Of this total, 1,180 the SBA has created a small business Carriers, Competitive Access Providers firms had annual receipts of under $10 size standard for Cable and Other (CAPs), ‘‘Shared-Tenant Service million and an additional 52 firms had Program Distribution. This standard Providers,’’ and ‘‘Other Local Service receipts of $10 million or more but less provides that a small entity is one with Providers.’’ Neither the Commission nor than $25 million. Consequently, the $12.5 million or less in annual receipts. the SBA has developed a small business Commission estimates that the majority The Commission has certified size standard specifically for these of providers in this service category are approximately 25 OVS operators to service providers. The appropriate size small businesses that may be affected by serve 75 areas, and some of these are standard under SBA rules is for the the rules and policies adopted herein. currently providing service. Affiliates of category Wired Telecommunications 35. Cable System Operators (Rate Residential Communications Network, Carriers. Under that size standard, such Regulation Standard). The Commission Inc. (RCN) received approval to operate a business is small if it has 1,500 or has developed its own small-business- OVS systems in New York City, Boston, fewer employees. According to size standard for cable system operators, Washington, DC, and other areas. RCN Commission data, 769 carriers have for purposes of rate regulation. Under has sufficient revenues to assure that reported that they are engaged in the the Commission’s rules, a ‘‘small cable they do not qualify as a small business provision of either competitive access company’’ is one serving fewer than entity. Little financial information is provider services or competitive local 400,000 subscribers nationwide. The available for the other entities that are exchange carrier services. Of these 769 most recent estimates indicate that there authorized to provide OVS and are not carriers, an estimated 676 have 1,500 or were 1,439 cable operators who yet operational. Given that some entities fewer employees and 93 have more than qualified as small cable system authorized to provide OVS service have 1,500 employees. In addition, 12 operators at the end of 1995. Since then, not yet begun to generate revenues, the carriers have reported that they are some of those companies may have Commission concludes that up to 24 ‘‘Shared-Tenant Service Providers,’’ and grown to serve over 400,000 subscribers, OVS operators (those remaining) might all 12 are estimated to have 1,500 or and others may have been involved in qualify as small businesses that may be fewer employees. In addition, 39 transactions that caused them to be affected by the rules and policies carriers have reported that they are combined with other cable operators. adopted herein. ‘‘Other Local Service Providers.’’ Of the Consequently, the Commission 39, an estimated 38 have 1,500 or fewer bb. Telecommunications Service estimates that there are now fewer than employees and one has more than 1,500 Entities 1,439 small entity cable system employees. Consequently, the operators that may be affected by the 38. As noted above, a ‘‘small Commission estimates that most rules and policies adopted herein. business’’ under the RFA is one that, providers of competitive local exchange 36. Cable System Operators (Telecom inter alia, meets the pertinent small service, competitive access providers, Act Standard). The Communications business size standard (e.g., a telephone ‘‘Shared-Tenant Service Providers,’’ and Act of 1934, as amended, also contains communications business having 1,500 ‘‘Other Local Service Providers’’ are a size standard for small cable system or fewer employees), and ‘‘is not small entities that may be affected by operators, which is ‘‘a cable operator dominant in its field of operation.’’ The our action. In addition, limited that, directly or through an affiliate, SBA’s Office of Advocacy contends that, preliminary census data for 2002 serves in the aggregate fewer than 1 for RFA purposes, small incumbent indicate that the total number of wired percent of all subscribers in the United local exchange carriers are not dominant communications carriers increased States and is not affiliated with any in their field of operation because any approximately 34 percent from 1997 to entity or entities whose gross annual such dominance is not ‘‘national’’ in 2002. revenues in the aggregate exceed scope. $250,000,000.’’ The Commission has 39. Incumbent Local Exchange d. Description of Projected Reporting, determined that there are 67,700,000 Carriers (LECs). Neither the Commission Recordkeeping and Other Compliance subscribers in the United States. nor the SBA has developed a small Requirements Therefore, an operator serving fewer business size standard specifically for 41. The Commission anticipates that than 677,000 subscribers shall be incumbent local exchange services. The any rules implementing section deemed a small operator, if its annual appropriate size standard under SBA 621(a)(1) that result from this action revenues, when combined with the total rules is for the category Wired would have at most a de minimis impact
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00034 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules 73979
on small governmental jurisdictions unreasonably refused) would be 48. Electronic Filers: Comments may (e.g., one-time proceedings to amend unacceptable, as it would be flatly be filed electronically using the Internet existing procedures regarding the inconsistent with section 621(a)(1). The by accessing the ECFS: http:// method of granting competitive Commission seeks comment on the www.fcc.gov/cgb/ecfs/ or the Federal franchises). LFAs today must review impact that such rules might have on eRulemaking Portal: http:// and decide upon competitive cable small entities, and on what effect www.regulations.gov. Filers should franchise applications, and will alternative rules would have on those follow the instructions provided on the continue to perform that role upon the entities. The Commission also invites Web site for submitting comments. For conclusion of this proceeding; any rules comment on ways in which the ECFS filers, if multiple docket or that might be adopted pursuant to this Commission might implement section rulemaking numbers appear in the NPRM likely would require at most only 621(a)(1) while at the same time impose caption of this proceeding, filers must modifications to that process. lesser burdens on small entities. transmit one electronic copy of the e. Steps Taken To Minimize Significant f. Federal Rules That May Duplicate, comments for each docket or Economic Impact on Small Entities and Overlap, or Conflict With the Proposed rulemaking number referenced in the Significant Alternatives Considered Rules caption. In completing the transmittal screen, filers should include their full 42. The RFA requires an agency to 44. None. describe any significant, specifically name, U.S. Postal Service mailing small business, alternatives that it has B. Initial Paperwork Reduction Act of address, and the applicable docket or considered in reaching its proposed 1995 Analysis rulemaking number. Parties may also approach, which may include the 45. This document does not contain submit an electronic comment by following four alternatives (among proposed information collection(s) Internet e-mail. To get filing others): ‘‘(1) The establishment of subject to the Paperwork Reduction Act instructions, filers should send an e- differing compliance or reporting of 1995 (PRA), Public Law 104–13. In mail to [email protected], and include the requirements or timetables that take into addition, therefore, it does not contain following words in the body of the account the resources available to small any new or modified ‘‘information message, ‘‘get form.’’ A sample form and entities; (2) the clarification, collection burden for small business directions will be sent in response. consolidation, or simplification of concerns with fewer than 25 compliance and reporting requirements 49. Paper Filers: Parties who choose under the rule for such small entities; employees,’’ pursuant to the Small to file by paper must file an original and (3) the use of performance rather than Business Paperwork Relief Act of 2002, four copies of each filing. If more than design standards; and (4) an exemption Public Law 107–198, see 44 U.S.C. one docket or rulemaking number from coverage of the rule, or any part 3506(c)(4). appears in the caption of this thereof, for such small entities.’’ C. Ex Parte Rules proceeding, filers must submit two 43. As discussed in the NPRM, section additional copies for each additional 621(a)(1) states that LFAs must not 46. Permit-But-Disclose. This docket or rulemaking number. Filings proceeding will be treated as a ‘‘permit- unreasonably refuse to award can be sent by hand or messenger but-disclose’’ proceeding subject to the competitive franchises. Should the delivery, by commercial overnight ‘‘permit-but-disclose’’ requirements Commission conclude ultimately that courier, or by first-class or overnight the procedures by which LFAs currently under § 1.1206(b) of the Commission’s rules. Ex parte presentations are U.S. Postal Service mail (although we award competitive franchises conflict continue to experience delays in with the mandate of section 621(a)(1), it permissible if disclosed in accordance receiving U.S. Postal Service mail). All may adopt rules designed to ensure that with Commission rules, except during filings must be addressed to the the local franchising process does not the Sunshine Agenda period when create unreasonable barriers to presentations, ex parte or otherwise, are Commission’s Secretary, Office of the competitive entry. Such rules may generally prohibited. Persons making Secretary, Federal Communications consist of specific guidelines (e.g., oral ex parte presentations are reminded Commission. maximum timeframes for considering a that a memorandum summarizing a • The Commission’s contractor will competitive franchise application) or presentation must contain a summary of receive hand-delivered or messenger- general principles designed to provide the substance of the presentation and delivered paper filings for the LFAs with the guidance necessary to not merely a listing of the subjects Commission’s Secretary at 236 conform their behavior to the directive discussed. More than a one-or two- Massachusetts Avenue, NE., Suite 110, of section 621(a)(1). As noted above, sentence description of the views and Washington, DC 20002. The filing hours these rules likely would have at most a arguments presented is generally at this location are 8 a.m. to 7 p.m. All required. Additional rules pertaining to de minimis impact on small hand deliveries must be held together oral and written presentations are set governmental jurisdictions. Even if that with rubber bands or fasteners. Any were not the case, however, the forth in § 1.1206(b). envelopes must be disposed of before interrelated, high-priority federal D. Filing Requirements entering the building. communications policy goals of enhanced cable competition and 47. Comments and Replies. Pursuant • Commercial overnight mail (other accelerated broadband deployment to §§ 1.415 and 1.419 of the than U.S. Postal Service Express Mail would necessitate the establishment of Commission’s rules, interested parties and Priority Mail) must be sent to 9300 specific guidelines and/or general may file comments on or before the East Hampton Drive, Capitol Heights, principles for LFAs with respect to the dates indicated on the first page of this MD 20743. process by which they grant competitive document. Comments may be filed • U.S. Postal Service first-class, cable franchises. The alternative (i.e., using: (1) The Commission’s Electronic Express, and Priority mail should be continuing to allow LFAs to follow Comment Filing System (ECFS), (2) the addressed to 445 12th Street, SW., procedures that do not ensure that Federal Government’s eRulemaking Washington, DC 20554. competitive cable franchises are not Portal, or (3) by filing paper copies.
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00035 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 73980 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules
Federal Communications Commission. telephone 301–713–2347. Copies of placed on the prohibited species list Marlene H. Dortch, NMFS’ decision regarding the petition (due to litigation, the dusky shark Secretary. are also available on the internet at prohibition did not go into effect until [FR Doc. 05–24029 Filed 12–13–05; 8:45 am] http://www.nmfs.noaa.gov/sfa/hms. mid–2000). NMFS continues to be BILLING CODE 6712–01–P FOR FURTHER INFORMATION CONTACT: concerned about all life stages for dusky Karyl Brewster-Geisz or Margo Schulze- sharks and is expecting a final dusky Haugen by phone: 301–713–2347 or by shark assessment to be released later fax: 301–713–1917. this year. DEPARTMENT OF COMMERCE Shortly after the 2002 LCS stock SUPPLEMENTARY INFORMATION: National Oceanic and Atmospheric assessment was released, NMFS began Administration Background the process of amending the FMP for In 2002, NMFS conducted an LCS Atlantic Tunas, Swordfish, and Sharks 50 CFR Part 635 stock assessment that was peer- (67 FR 69180, November 17, 2002). reviewed by three independent Consistent with the 1999 FMP and the [Docket No. 051202320–5320–01; I.D. Magnuson-Stevens Fishery 040605D] reviewers (67 FR 64098, October 17, 2002). While the peer reviews indicated Conservation and Management Act (Magnuson-Stevens Act), the objectives areas that could be improved, they Atlantic Highly Migratory Species; of Amendment 1 were, among other concluded that the stock assessment Commercial Shark Management things, to implement management constituted the best available science. Measures measures to rebuild the LCS complex Based on the results of this stock that were based on the best available AGENCY: National Marine Fisheries assessment and the status determination science, to amend the rebuilding Service (NMFS), National Oceanic and criteria in the 1999 Fishery Management timeframe based on the best available Atmospheric Administration (NOAA), Plan (FMP) for Atlantic Tunas, science given that the 1998 stock Commerce. Swordfish, and Sharks, NMFS assessment, on which the previous ACTION determined that the LCS complex was : Petition for rulemaking; rebuilding timeframe was based, was decision. overfished and overfishing was found to be faulty, and to review shark occurring. NMFS also determined that management measures, in general. SUMMARY: NMFS has decided not to sandbar sharks were not overfished and initiate the rulemaking requested by the During the Amendment 1 process, overfishing was occurring, and that NMFS held seven scoping meetings in North Carolina Department of blacktip sharks were fully rebuilt. In Environment and Natural Resources, February and March 2003 (68 FR 3853, addition to providing information January 27, 2003), held six public Division of Marine Fisheries regarding the status of the stocks, the hearings on draft Amendment 1 and the (Petitioner), to amend the current time/ stock assessment noted, among other proposed rule (68 FR 45196, August 1, area closure for Atlantic sharks off the things, that a reduction in catches of 2003, and 68 FR 54885, September 19, Mid-Atlantic region. NMFS does not LCS may be necessary to recover the 2003), held one Advisory Panel meeting have any new information to support complex as a whole to the biomass specific to draft Amendment 1 and the the Petitioner’s proposal of a closure expected to yield maximum sustainable proposed rule (68 FR 51560, August 27, inside of 15 fathoms along the North yield (BMSY); that reductions in catch 2003), attended four Regional Fishery Carolina coast nor the assertion that of species other than sandbar and Management Council meetings (New such a closure would still attain the blacktip sharks appeared to be the most England, Mid-Atlantic, and two for the management goal of protecting juvenile appropriate; that individual species are Gulf of Mexico), and attended one sandbar and prohibited dusky sharks. responding differently to exploitation; ASFMC meeting. In addition to the NMFS will consider new information and that juvenile survival is the vital comments at the public hearings and concerning the impacts of the current rate that most affects overall population Council meetings, NMFS received over time/area closure (which has been in growth rates, thus supporting the need 30 written comments on draft place for one time period from January to protect reproductive females and Amendment 1 and the proposed rule. 1 to July 31, 2005) and the results of juveniles. The final rule published on December upcoming large coastal shark (LCS) and The 2002 LCS stock assessment did 24, 2003 (68 FR 74746). Among other dusky shark stock assessments to not individually assess the status of things, final Amendment 1 and its final determine whether changes to the time/ dusky sharks. However, in the 1999 rule revised the LCS rebuilding area closure are appropriate. In FMP, NMFS noted that dusky sharks are timeframe to 26 years, adjusted the LCS addition, NMFS will monitor any highly susceptible and vulnerable to commercial quota, established trimester changes to shark regulations by coastal overfishing. This vulnerability is due to seasons and regional subquotas, states and will continue to work with several factors including: (1) their age of removed the commercial minimum size, the Atlantic States Marine Fisheries maturity is approximately 19 years changed the recreational bag limit and Commission (ASMFC) in terms of (approximately 12 ft or 3.7 m FL); (2) minimum size, established a time/area development of an interstate shark plan, they have few pups per litter (6 to 14 closure off North Carolina, required line which may warrant a review of existing per litter); (3) they have a long gestation cutters and dipnets on bottom longline Federal regulations and consideration of period (approximately 16 months); and vessels, required vessel monitoring further changes to the time/area closure. (4) approximately 82 percent of those systems (VMS) on gillnet and bottom ADDRESSES: Copies of NMFS’ decision caught in commercial fisheries are longline vessels during part of the year, on the North Carolina Department of brought to the vessel dead, making and established criteria to use to modify Environment and Natural Resources, dusky sharks highly susceptible to the prohibited species list. Major Division of Marine Fisheries’ petition dying on longline gear. This changes from the proposed rule as a are available from Karyl Brewster-Geisz, vulnerability has resulted in this species result of public comment included: Highly Migratory Species Management being listed as a species of concern delaying the effective date for the Division, NMFS, 1315 East-West under the Endangered Species Act implementation of trimester seasons; a Highway, Silver Spring, MD 20910; (ESA) since 1997, and in 1999, being change in the reduction of the LCS
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00036 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules 73981
quota from 40 to 45 percent; a decision closing only waters inshore of 20 and fishing communities in the South to maintain existing regulations for the fathoms, reducing the time period, and Atlantic. gillnet fishery; and a reduction in the considering dusky shark data only after NMFS published a notice of receipt of proposed time/area closure from they became prohibited. NMFS found the petition for rulemaking in the approximately 38,200 to 4,490 nm2. that fishermen caught both dusky sharks Federal Register (May 10, 2005, 70 FR As part of adjusting the commercial and juvenile sandbar sharks at depths of 24494) and invited public comments for LCS quota in Amendment 1, NMFS also up to 50 fathoms and that limiting the 60 days ending on July 11, 2005. NMFS established a procedure to calculate the closure to depths inshore of 20 fathoms received 18 letters, including letters base commercial quota based on would greatly reduce the benefits of a from one Council, the state of North information from the stock assessment. time/area closure. NMFS also found Carolina, commercial fishermen, Under this procedure, NMFS establishes that, of all the sharks observed in the commercial fisheries organizations, and the base commercial quota dependent fishery, the majority of juvenile sandbar other interested individuals. Summaries on estimates of maximum sustainable sharks, all of the neonate sandbar of and responses to comments are yield (MSY) and what is needed to sharks, and the majority of dusky sharks provided under the Public Comments reach MSY, commercial landings (all life stages) were caught in the time/ section below. (including landings from states), dead area closure that was finalized. This Agency Decision discards, and recreational harvest. This time/area closure was first effective base quota is then split between the from January 1, 2005, to July 31, 2005. After carefully considering the three different regions and three petition and all public comments, seasons. Before each season, NMFS The Petition NMFS has decided not to initiate the requested rulemaking. Currently, NMFS adjusts the Federal shark quotas for each On March 7, 2005, NMFS received a does not have any new information to region based on the total landings request from the North Carolina support the request by the Petitioner for reported by Federal dealers. These Department of Environment and Natural a closure inside of 15 fathoms along the dealer reports include landings from Resources, Division of Marine Fisheries coast of North Carolina. The Petitioner both state and Federal waters. (Petitioner), to initiate rulemaking for a The time/area closure was has not submitted analyses to support regulatory amendment to 50 CFR 635.2 their request. NMFS has already implemented to reduce discards of regarding the definition of the ‘‘Mid- prohibited dusky and juvenile sandbar analyzed and rejected a closure out to Atlantic shark closed area.’’ The sharks under the rebuilding plan for 20 fathoms in response to comment Petitioner seeks rulemaking to reduce LCS. The location of the time/area during the Amendment 1 process the current closed area by changing the closure is in an area off North Carolina because many juvenile sandbar sharks boundary from 55 fathoms from January that has also been identified as essential and dusky sharks were caught out to the to July in the middle part of the state to fish habitat (EFH) for both sandbar and 55 fathom line (see response to only include waters out to 15 fathoms dusky sharks and as a habitat area of Comment 7). Without new information, coastwide for North Carolina by January particular concern (HAPC) for sandbar NMFS has no basis to modify the 1, 2006. The Petitioner stated that this sharks. The HAPC serves as important existing time/area closure in the manner action would allow North Carolina nursery and pupping grounds in areas suggested by the Petitioner. adjacent to Hatteras and Ocracoke fishermen access to the larger sharks in There are a number of items that Islands and offshore of those islands. deeper waters from 15 to 55 fathoms could warrant modification of the time/ Other areas identified as HAPCs for and minimize discards of juvenile and area closure within a few years. First, similar reasons, such as the mouth of protected sharks to a reasonable extent. NMFS will be conducting a stock Great Bay, NJ, lower and middle The Petitioner stated that the available assessment for LCS starting this year Delaware Bay, and lower Chesapeake data suggest that juvenile sharks occur (September 15, 2005, 70 FR 54537). The Bay, MD, were not included as time/ predominately near shore. Thus, the results of this stock assessment are area closures because they are Petitioner proposed that closing out to expected to be final in mid–2006. predominantly in state waters and 15 fathoms year-round along the entire Second, NMFS expects a final dusky fishing effort is low in those areas. The North Carolina coastline instead of out shark stock assessment to be released in HAPC off North Carolina is one of only to 55 fathoms for the middle part of early 2006. Third, because the time/area four areas identified as an HAPC and is North Carolina would still attain the closure has now been in effect for one the only area that extends significantly management goal of protecting juvenile time period, NMFS can begin to into Federal waters (the HAPC in the sandbar and prohibited dusky sharks. examine the data and analyze the actual Chesapeake Bay has a slight overlap The Petitioner believes that the offshore impacts of the closure, ecologically and with Federal waters near the mouth of extent of the current closed area economically. Pertinent, complete the Bay). encompasses the primary shark fishing logbook data for the 2005 closure will be During the public comment period for grounds off North Carolina and severely available in the summer of 2006. In draft Amendment 1, commenters stated, restricts access to the shark quota off addition, NMFS will analyze new, among other things, that most nursery North Carolina, particularly during the applicable data as it becomes available. grounds are in nearshore waters, that first trimester. Fourth, NMFS is working with the closing inshore of 20 fathoms should be The Petitioner also asserted that the ASMFC to start work on an interstate enough to protect neonate and juvenile current time/area closure off North coast-wide shark plan. If other states sharks, that only state waters should be Carolina is not justified based on become more consistent with the closed to protect juvenile sharks, that available data and has been Federal regulations, either through a using dusky shark data when fishermen implemented in violation of at least coast-wide plan or on their own targeted them for the area closure was three National Standards (e.g., #4, 8, and initiative, it is possible that the unfair, and that the time period for the 10) of the Magnuson-Stevens Act. The ecological benefits could warrant a closure was too long. As a result of these Petitioner noted that the proposed review of existing Federal regulations, comments, NMFS re-analyzed the data change could address the above including the time/area closure. To in regard to the time/area closure concerns and have positive significant note, the state of Florida is currently including looking at the impacts of economic benefits to fishermen, dealers, reviewing and the Commonwealth of
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00037 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 73982 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules
Virginia has currently modified their with this program for the first few years; catches of dusky sharks in Federal state regulations regarding sharks. Fifth, however, this type of program did not waters only. NMFS recently released a proposed rule necessarily result in coverage that was Comment 2: The observer program that, among other things, would representative of all vessels fishing. By was biased because North Carolina was establish criteria to be considered when the late 1990s, because of changing one of the few states helping with data implementing or modifying time/area management measures based in part on prior to the mandatory observer closures (70 FR 48804, August 19, observer data, the number of vessels program. Therefore, most of the data 2005). This proposed rule should be willing to take an observer declined, were collected from this area, skewing final in 2006. and NMFS had concerns regarding the the data. Given the nature of the issues raised quality of the observer data and how Response: When the observer program by the Petitioner and the lack of representative the data was becoming. first started in 1994, the observers additional information supporting the In January 2002, in order to obtain high- focused on states known to land a lot of petition, NMFS believes that the results quality representative data, NMFS made sharks. These states included North of the first three items above will participation in the observer program Carolina and Florida. Over time, the provide valuable information when mandatory, and vessels which recorded observers included other states; considering a modification to the past landings were selected to carry however, as reflected in landing reports existing time/area closure. Additionally, observers on a random basis. Thus, and permit holders, North Carolina and NMFS will continue to work with the NMFS believes that the quality of Florida continued to be major centers of ASMFC and/or individual states information obtained from the observer shark fishing. Since the observer regarding consistent shark regulations program has improved over time. program became mandatory in 2002, the and management measures. NMFS also In examining the current time/area number of vessels selected from each encourages the Petitioner to work with closure, NMFS did not selectively state has been based on prior year’s NMFS scientists and industry in examine observer data from 2001 to landings. This allows coverage to be pursuing cooperative research on 2002, but rather, examined the entire representative of fishing effort. Comment 3: North Carolina fishermen reducing bycatch of juvenile and sub- observer timeframe through 2002. are forced to float gear for LCS during adult sandbar and dusky sharks. Results During the public comment period for the summer season when 85 to 90 from such studies have been critical to draft Amendment 1, fishermen providing alternate fishing practices in percent of all catches in this season are commented that NMFS should not use adult or, at the very minimum, sub- other areas that maintain target catch dusky shark data before dusky sharks while also reducing bycatch. adults. Juvenile sharks migrate north became a prohibited species in 2000. during the summer; they are not in the Response to Comments Fishermen stated that they used to target time/area closure during the summer. In During the public comment period, dusky sharks and that they should not addition, by making fishermen fish individuals and groups provided be penalized for targeting them before outside of 50 fathoms to 85 fathoms, comments on NMFS’ notice in the they were prohibited. In response to NMFS is forcing them to kill more Federal Register on the receipt of a their comments, NMFS examined the dusky sharks since they are petition for rulemaking by the shorter, as well as the longer, predominately in 50 to 85 fathoms. Petitioner. Comments were sent via timeframes in final Amendment 1. Response: The observer data used in letter, FAX, and E-mail. The comments For sandbar sharks, the final Amendment 1 indicate that dusky and are summarized below, together with Amendment examined only the longer sandbar sharks are caught on bottom NMFS’ responses. The comments and timeframe (1994 to 2002) because longline gear in the time/area closure responses are categorized by major sandbar sharks have been an allowed from January through July. The number subject headings. species since 1994. According to of sharks caught in the closed area after observer data from 1994 to 2002, 12,445 July are relatively low; thus, NMFS did 1. Observer Program sandbar sharks were observed in the not extend the time/area closure past Comment 1: Commenters indicated fishery as a whole and 6,755 were July. During Amendment 1, NMFS did that while the information during the caught in the final time/area closure. Of not examine pelagic longline data since mid and late 1990s provides excellent those caught in the final time/area LCS are generally not caught in large coverage of the fishery, the observer closure, 4,149 (61 percent) were numbers on pelagic longline gear program has operated sporadically since neonates and juveniles. All neonate compared with bottom longline gear. 2000. In addition, commenters noted sandbar sharks and 81 percent of all However, now that the time/area closure that the Federal Register notice stated juvenile sandbar sharks observed for the has been in effect from January through that the time/area closure was based on entire fishery (i.e., all of the Atlantic July 2005, NMFS can examine the observer data. The commenters felt that and Gulf of Mexico) were encompassed impacts of the time/area closure on this statement was misleading, and that by the final time/area closure. fishermen who use bottom longline gear NMFS selectively examined a shorter For dusky sharks, using the shorter as well as on fishermen who use pelagic time period of observer data from 2001 timeframe (2001 to 2002), only 68 longline gear, including their discard to 2002, which is less extensive than the sharks were observed in the final time/ rates of dusky sharks. earlier data in terms of geography and area closure. However, this observed sample size. The commenters felt the catch of dusky sharks remained high (62 2. Stock Assessments Agency would have drawn a different percent) in comparison to the rest of the Comment 4: Commenters stated that conclusion and made more acceptable Atlantic and Gulf of Mexico. Using the the status of the dusky sharks is recommendations if it had used all longer timeframe (1994 to 2002), 1,392 unknown because there has been no available observer data. dusky sharks were observed caught in stock assessment on that species. Response: The observer program the final time/area closure (79 percent), Commenters also noted that the peer- began in 1994, as a voluntary research of which 92 percent were neonates or reviewed stock assessment of the program under which observers went to juveniles. Only 292 were observed sandbar shark population indicated that the docks and went on vessels that were caught in the Atlantic outside the time/ the status has improved and that no willing to take them. Vessels cooperated area closure. These numbers reflect reduction in instantaneous fishing
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00038 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules 73983
mortality (F) appears necessary for that ‘‘inference by subtraction’’ needs to data, possible models, and underlying sandbar sharks to achieve BMSY. be examined and NMFS intends to assumptions. This was summarized and Commenters indicated that, after examine options to address this concern published as the ‘‘Final Meeting Report reviewing the 2002 stock assessment, at the upcoming LCS assessment. While of the 2002 Shark Evaluation they found no definitive evidence that there was concern over this inference, Workshop.’’ The second part was the supports the NMFS’ assertion that the one peer reviewer also noted that actual assessment where the data and LCS complex is overfished or that ‘‘Whether the conclusions from the LCS models were run, titled the ‘‘Stock overfishing is occurring. In addition, complex assessment provide sufficient Assessment of Large Coastal Sharks in commenters noted that peer reviewers information on which to take the U.S. Atlantic and Gulf of Mexico.’’ of the 2002 LCS stock assessment were management action depends on the Pursuant to a settlement agreement in concerned about applying the results to level of risk one is willing to accept. It litigation pending at that time, the the LCS complex as a whole. Given should be noted that many shark species statement of work asked the reviewers these results, commenters stated that have low productivity and are long- to review the SEW report in terms of while taking a precautionary approach lived, so that failure to take action could scientific findings and management in the face of uncertainty is prudent, result in long-term depletion of some recommendations. There were no such NMFS took the precautionary approach species.’’ Another peer reviewer findings or recommendations in the to the extreme. indicated that for the LCS group, 2002 SEW Final meeting report; rather, Response: As noted above, NMFS is reductions in the total allowable catch all findings and recommendations were concerned about the status of dusky for species other than sandbar and in the 2002 stock assessment. Thus, the sharks for a number of reasons, blacktip should be considered, and that peer reviewer was clarifying the including its life history and for sandbar and other sharks, further documents that he was reviewing for the susceptibility to fishing gear. A stock reductions in fishing related mortalities purposes of the peer review. NMFS assessment for dusky sharks is should be achieved through the believes that this particular remark was anticipated for early 2006. decrease of bycatch mortality. This, not a comment on the scientific merits As for sandbar sharks, while the 2002 along with the rest of that review, the of the 2002 stock assessment results. stock assessment indicates that sandbar comments of the other reviewers, the Comment 6: Blacktip and sandbar sharks are no longer overfished, stock assessment itself, and the status sharks are the dominant species taken in overfishing is occurring and, per the determination criteria outlined in the the fishery. Managing by the least 1999 FMP, their status has not yet 1999 FMP, led NMFS to determine that common denominator is problematic. reached a stage where they can be called the LCS complex has been exploited The stock assessment recommends ‘‘rebuilt.’’ With regard to the complex as beyond sustainable rates, with managing on a more species-specific a whole, results of the 2002 LCS stock populations at or below levels required basis. assessment met the overfishing and to sustain MSY. NMFS does not believe Response: As stated in Amendment 1, overfished criteria in the 1999 FMP. the suite of measures in Amendment 1, NMFS does not have the information These results indicate that, while the including the existing time/area closure, necessary yet to manage sharks on a stock status had improved since the are extreme. species-specific basis. Until fishermen 1998 stock assessment, the fishing In order to reduce bycatch of dusky and dealers report on a species-specific mortality level was not sustainable. The and sandbar sharks, NMFS opted to basis more consistently (currently about details and point estimates of the close a specific area to protect a known 20 percent of LCS landings are different models used in the 2002 LCS nursery ground of these species. This is unclassified despite regulations stock assessment are given in Table 3.1 also in accordance with the 2002 stock requiring LCS species-specific and Table 3.2 of the 2002 Emergency assessment which recommends reporting) and until NMFS has reliable Rule to Implement Management protections of reproductive females and scientific evidence that fishermen can Measures in the Atlantic Shark Fisheries juveniles. As noted above, the closure target certain species of sharks without Consistent with the 2002 Stock area should reduce dusky shark catch by substantial bycatch or bycatch mortality Assessments. As described in that 79 percent, and neonate and juvenile of other shark species, NMFS believes document, the majority of the models sandbar shark catch by 61 percent. In that establishing and enforcing species- indicated that the resource (the LCS addition, the area off North Carolina is specific quotas is not feasible. If the complex) is overfished. Even in the the only area where a large portion of fishermen do not identify sharks models where the resource is not a designated HAPC enters Federal correctly (and some fishermen have overfished, the models indicate that the waters. Thus, NMFS believed that commented that they cannot identify all rebuilding target biomass has not been closing an area that included a HAPC to species of sharks), then having species- met. protect juvenile sandbar sharks was specific quotas would not be effective at In addition, the LCS assessment was warranted to reduce fishing mortality preventing overfishing on depleted peer reviewed pursuant to a settlement without increasing bycatch. species while allowing increased fishing agreement in shark litigation pending at Comment 5: Commenters stated that on healthy or rebuilt species. that time. The overall conclusions of one peer reviewer indicated that the Furthermore, if fishermen cannot these reviews were that the stock 2002 shark evaluation workshop (SEW) reliably target sandbar or blacktip sharks assessment was state-of-the-art and a report could not be judged in terms of without catching and discarding a scientifically rigorous body of work that scientific findings and management significant number of other sharks (e.g., used the best scientific information recommendations. dusky sharks), then having species- available. The peer reviewers generally Response: NMFS believes that this specific quotas may still result in fishery agreed that, while management remark was taken out of context; it was closures when one of the quotas is measures taken as of 2002 may have made in regard to the description of the reached. halted the decline in these stocks, way the 2002 stock assessment was current exploitation rates (based on the completed and the statement of work for 3. Amending Time/area Closure to the stock assessment) would not stabilize the review. The 2002 stock assessment 15–fathom Line them at, or allow them to rebuild to, was conducted in two parts. The first Comment 7: Commenters indicated MSY levels. The peer reviewers noted part included a meeting to discuss the that a 1996 observer report concluded
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00039 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 73984 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules
that the area inshore of 15 fathoms boundary of the time/area closure so depth contour, but would not work should be closed to protect juvenile that it extended to 60 to 80 fathoms. during the summer months. The sharks and prohibited dusky sharks that NMFS made this same data available to commenter claimed that blacktip sharks occur in the region. the state of North Carolina to analyze. predominate inside 15 fathoms, yet Response: The 1996 observer report No new interpretations of this data or NMFS insists that fishermen fish referenced is the final report of the analyses by the state of North Carolina outside of it. Marine Fisheries Initiative (MARFIN) have been presented to NMFS to date. Response: The Petitioner requested study (NA57FF0286) published by Based on NMFS’ previous analysis of a changing the current time/area Branstetter, 1997. The commenters also closure out to 20 fathoms, as requested boundary to 15 fathoms, year-round. refer, through the 1996 observer report, by public comment on Amendment 1, However, the current time/area to Musick et al., 1993. The 1996 NMFS believes that a large number of boundary of 55 fathoms was chosen observer report notes that small sandbar juvenile sandbar and dusky sharks because the available data indicate that sharks are less than 120 cm fork length would be caught outside of 15 fathoms. juvenile dusky and sandbar sharks (FL). However, the 1996 observer report Comment 8: One commenter occur in the current time/area closure also notes that male sandbar sharks questions why all dusky shark life during the months of January through reach maturity around 142 cm FL (170 stages were included when selecting the July. Thus, the time/area closure cm total length [TL]) and females at < seaward boundary of the time/area location and timeframe was selected 150 cm FL (180 cm TL). Therefore, the closure. based on the distribution of these age 1996 study’s recommendations relative Response: NMFS is concerned about classes. NMFS may consider changing to 120 cm FL would not have protected all life stages of dusky shark, not just the boundaries and timeframe of the a substantial number of juveniles and juvenile stages, because this species is closure if new information warrants any sub-adults. Many of the figures in the highly susceptible and vulnerable to changes. NMFS did not examine the 1996 observer report (e.g., Figures 9, 10, overfishing because of its life history availability of blacktip sharks within or 11, 12, and 17) indicate that large traits. The dusky shark is currently without the time/area closure since numbers of juvenile sandbar sharks listed as a species of concern under the blacktip sharks are considered rebuilt were caught off North Carolina in ESA. A dusky shark stock assessment is and were not the species of concern. depths greater than 10 fathoms. While currently underway. The area closed off 4. National Standards these figures describe the data in terms North Carolina has most of the observed of less than or equal to 10 fathoms or dusky shark catches for the entire Comment 11: Commenters indicated greater than 10 fathoms, the 1996 bottom longline fishery. that using only the 2001 to 2002 observer report recommends in the text Comment 9: A commenter asked if a observer data constitutes a violation of that 15 fathoms be used rather than 10 quota reduction would have given the National Standard 2. fathoms. This recommendation is due to same result without having to establish Response: National Standard 2 states one year (1996) where numerous small the time/area closure off North Carolina. that conservation and management sandbar sharks (less than 120 cm FL) Response: The 2002 stock assessment measures shall be based upon the best and small dusky sharks (less than 140 indicates that reductions in fishing scientific information available. As cm FL) were caught between 10 and 15 effort and mortality are needed for the described above, in developing fathoms and few sharks were taken biomass to reach MSY. In Amendment Amendment 1, NMFS used all observer inshore of 10 fathoms. 1, NMFS determined that it would need data when examining the time/area The 1996 observer report also notes to reduce the catch by greater than 50 closure. As noted in the response to that dusky sharks comprised about ten percent in order to rebuild LCS. In Comment 1 above, NMFS considered percent of the catch in North Carolina addition, the stock assessment the longer and shorter timeframes for waters, and consisted of two general recommended the protection of dusky sharks in response to comments size classes: young juveniles and sub- reproductive females and juveniles. from fishermen on draft Amendment 1. adults/adults. Figure 17 indicated that However, because Amendment 1 was NMFS believes that using all available many of these dusky sharks are caught implementing a number of regulations data, and taking into consideration in waters greater than 10 fathoms. This that could reduce fishing mortality public comment, is consistent with and the text regarding small dusky including the time/area closure and gear National Standard 2. sharks being caught out to 15 fathoms restrictions, NMFS felt that reducing the Comment 12: Commenters indicated indicate that a 15–fathom boundary catch by 45 percent, and improving that the closure off North Carolina could allow many juveniles and sub- compliance with the regulations discriminates against the fishermen in adults to be caught. Additionally, in the including the recreational regulations North Carolina in violation of National case of dusky sharks, NMFS is trying to would be sufficient to rebuild the stock Standard 4. reduce fishing mortality on all life within the rebuilding timeframe. In Response: National Standard 4 states stages (neonates, juvenile, and adults), addition, because the time/area closure that conservation and management not just juveniles. off North Carolina is an important measures shall not discriminate Furthermore, as a result of public nursery area for dusky and sandbar between residents of different states, comment received on Amendment 1, sharks, protection of these species in and if it becomes necessary to allocate NMFS examined the data to assess the this area would only be accomplished or assign fishing privileges among ecological benefit of a closure out to through a closure rather than an overall fishermen, that such allocation be fair only 20 fathoms. NMFS found that reduction in LCS quota. and equitable to all fishermen, be numerous juvenile sandbar sharks and Comment 10: One commenter stated reasonably calculated to promote dusky sharks were caught outside the 20 that to be excluded inside of 15 fathoms conservation, and be carried out in such fathom line; many were caught at the 55 in the summer serves no purpose other a manner that no particular individual, fathom line. As outlined in the response than to put more pressure on everything corporation, or other entity acquires an to Comment 15 under ‘‘Time/Area but blacktip sharks; a closure out to the excessive share of such privileges. Closure Comments’’ in Amendment 1, 15 fathom line would make sense While the time/area closure may affect NMFS included a buffer of during the winter months when more fishermen differently, as discussed in approximately two miles to the seaward juveniles occur around the 15 fathom Amendment 1, it applies equally to all
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00040 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules 73985
fishermen in any state (and affects without taking preemptive action, Carolina to the extent practicable, fishermen who travel from other states NMFS does not have jurisdiction over consistent with National Standard 8. to fish in waters off North Carolina), and state fishermen who fish exclusively in Finally, in the final rule, NMFS also is needed as a conservation measure to state waters. All fishermen with Federal delayed implementation of the time/ reduce bycatch of juvenile sandbars and shark permits are required to abide by area closure for a year to allow prohibited dusky sharks. Federal regulations, even in state fishermen time to adjust to the new Comment 13: One commenter waters, unless the state has more regulations (December 24, 2003, 68 FR questioned how the time/area closure restrictive regulations. NMFS is working 74746). off North Carolina was consistent with through the ASFMC to initiate an Comment 15: The time/area closure National Standard 6. interstate coast-wide shark plan and has off North Carolina is in violation of Response: National Standard 6 requested states that are not consistent National Standard 10. requires NMFS to take into account and with the Federal regulations to Response: As stated in Amendment 1, allow for variations among, and reconsider their regulations. the time/area closure does not cause contingencies in, fisheries, fishery Consistency with National Standards fishermen to fish in an unsafe manner. resources, and catches. While other 4 and 6 are addressed in the responses NMFS urges fishermen to use caution, states also catch juvenile sharks, as above. National Standard 5 states that but cannot control what individual described above, the waters off North conservation and management measures fishermen do in response to the time/ Carolina are a known pupping and shall, where practicable, consider area closure. VMS also adds safety by nursery ground for several species of efficiency in the utilization of fishery allowing fishermen to traverse the sharks, particularly sandbar and dusky resources; except that no such measure closed area and provide yet another sharks. This is shown in the data with shall have economic allocation as its method of locating a vessel in case of an most of the juvenile sandbar sharks and sole purpose. The time/area closure emergency. prohibited dusky sharks for the entire combined with VMS requirements allow fishery being caught in the existing fishermen to travel through the closed 5. General Comments time/area closure. While different states area and allow the shark fishery to Comment 16: The Federal Register may have different impacts on shark operate at the lowest possible cost (e.g., notice indicated that the ‘‘Advisory stocks and life stages due to different fishing effort, administration, and Panel (AP) members noted that the LCS trip limits and associated landings, enforcement), while furthering stock assessments determined that NMFS accounts for all sources of conservation and management sandbar and dusky sharks have been mortality during the stock assessment objectives and maintaining consistency overfished and are not currently process to develop Federal conservation with National Standard 5. rebuilt.’’ The Petitioner requested that and management measures consistent National Standard 8 states that NMFS re-issue the Federal Register with the Agency’s obligations under the conservation and management measures notice removing the AP reference so that National Standards and other provisions shall, consistent with the conservation it would not solicit negative comments of the Magnuson-Stevens Act. As the requirements of the Magnuson-Stevens on the petition. fishery and stock status changes over Act (including the prevention of Response: NMFS did not re-issue the time, NMFS will consider amending overfishing and rebuilding of overfished Federal Register notice for the petition existing management measures to take stocks), take into account the for rulemaking. The selected reference into account this variability, consistent importance of fishery resources to was an accurate statement made by AP with National Standard 6. Additionally, fishing communities in order to provide members during the AP meeting in in the proposed rule for the draft HMS for the sustained participation of such March of 2005. In addition, it is an FMP (August 19, 2005, 70 FR 48804), communities and, to the extent accurate representation of the stock NMFS is proposing criteria to be practicable, minimize economic impacts assessment for the LCS complex. considered when modifying time/area on such communities. Consistent with Comment 17: The state of North closures. National Standard 8, NMFS considered Carolina has petitioned NMFS to modify Comment 14: NMFS counts landings the impacts of the time/area closure on the closure line from the current 55 of sharks caught in state waters against fishing communities in Amendment 1 fathom contour to the 15 contour. With the appropriate Federal shark quotas. and minimized adverse impacts to the VMS already required on shark vessels, However, different states have widely extent practicable. Amendment 1 this should not present an enforcement varying trip limits. Therefore, states recognized that the time/area closure difficulty. with higher trip limits will have a larger may impact particular communities; Response: The 15–fathom line is a zig- impact (i.e., greater reduction) on the however, the measure was needed in zag line that approaches the existing available Federal shark quota than states order to ensure that overfished LCS are closure line in some places. As such, the with lower trip limits in place to reduce rebuilt and to prevent overfishing on 15–fathom line would open only parts the harvest of juveniles sharks. One LCS, as mandated by National Standard of the existing closure, and despite commenter questioned how these 1. NMFS initially proposed and took VMS, would be difficult to enforce. measures are consistent with National public comment on a much larger time/ Comment 18: NMFS calculates Standards 4, 5 (efficiency in terms of area closure (approximately 32,800 nm2 maturity based on length, but maturity harvesting adult fish), 6 (in terms of from VA to SC) than the current time/ can also be based on size of shark fin adult and juvenile harvest in HAPCs area closure. Based on comments from size or pounds to fin weight. and the Economic Exclusive Zone [EEZ] the public, NMFS conducted additional Response: An accepted and relatively off other states versus no harvest of analyses and adjusted the final rule so easy measure to determine maturity, adult or juveniles from January through that the time/area closure’s seaward based on scientific data, is fish length. July off North Carolina), and 8 (in terms boundary followed the 55 fathom Thus, NMFS uses fish length to assess of providing for sustained participation contour (4,490 nm2). This area was maturity. Shark fin size or pounds to fin of the North Carolina shark fishing selected to include all observed catches weight is not used by the scientific community). of dusky and sandbar sharks while community as a measure of maturity. Response: While NMFS is concerned mitigating social and economic impacts Additionally, such measurements about landings occurring in state waters, on fishing communities in North would likely be more variable or hard to
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00041 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 73986 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules
measure at sea. Thus, in order to ensure from the public, NMFS conducted of species of concern to another similar reliable data collection on stages of additional analyses and implemented a gear type or user group. maturity, NMFS is unlikely to change to much smaller time/area closure. NMFS Response: The current time/area a method that would introduce more also provided, in section 8.5.9 of closure is based on available data on variability in the data and potential Amendment 1, a list of other options for bycatch and bycatch mortality by error in determining maturity. economic relief for fishermen. bottom longline gear in a known Comment 19: Commenters noted that Comment 21: Proper and logical pupping and nursery area including and there has been adoption of careful management dictates that NMFS should surrounding an identified HAPC. handling and release technologies for set aside an adequate incidental quota to Mortality by other gear types (such as bycatch by shark bottom longline reduce or eliminate regulatory discards pelagic longline or handgear) may be fishermen, which should help release by covering the inevitable incidental considered in the future, as appropriate. bycatch alive. In addition, shark bottom catches in the fisheries prior to longline fishermen may be required to allocating directed quotas. Additionally, if finalized, the criteria attend workshops to familiarize Response: NMFS has considered this proposed in the draft HMS FMP would themselves with these techniques type of option and most recently provide a basis on which NMFS could starting in 2006. accepted comments during the scoping consider modifying the existing time/ Response: Dusky sharks have low process for the draft HMS FMP in 2004. area closure to include other gears. survival on longline gear under current NMFS may consider this type of option Comment 24: Commenters requested fishing practices (e.g., only in the future. that NMFS needs to leave the closure in approximately 18 percent of dusky Comment 22: North Carolina has been place for species preservation and stock sharks survive after being caught on a willing and responsible partner with rebuilding. Sharks need to be protected longline gear). Thus, bycatch reduction NMFS with regards to shark since certain species are endangered, methods must include the reduction of conservation. Measures to help conserve and they are all part of the ecological dusky sharks caught with longline gear, sharks were first implemented by North harmony that used to exist before not just handling and releasing Carolina in February 1993, before NMFS commercial fishing. enacted the Shark FMP in April 1993. techniques. This warrants a time/area Response: NMFS agrees that the Those measures remained in effect until closure rather than other management current time/area closure is warranted July 1997 when North Carolina closed measures, such as safe handling and and has decided not to initiate its state waters to shark fishing for releasing techniques or minimum size rulemaking until new data are available species within the pelagic group. North limits. Should alternative fishing from the stock assessments of both Carolina was the only state to act upon practices be developed that improve the dusky and sandbar sharks, the two survival of dusky or other sharks, NMFS a request from NMFS to close their species most affected by the time/area would review the necessity for the time/ waters to shark fishing. These measures closure. Based on the status of those area closure and other management were implemented to protect immature stock assessments, other information measures, as appropriate. As mentioned sharks and as mentioned, have regarding the effectiveness of the above, NMFS encourages the Petitioner remained in effect for nine years. North closure, and actions of other states in an to work with NMFS scientists and Carolina fishermen have fully interstate coast-wide shark management industry in pursuing cooperative cooperated with voluntary Federal plan, NMFS may consider revising the research on reducing bycatch of juvenile observer programs to help managers size, scope, and/or duration of the and sub-adult sandbar and dusky collect accurate information on sharks. closure as well as potentially sharks. Response: NMFS appreciates all the Comment 20: NMFS should consider efforts that the state of North Carolina eliminating the closure, as appropriate. how to develop economic relief for the and its fishermen have taken to protect Comment 25: Shark fishing off North directed shark vessel operators who juvenile sharks. While NMFS has Carolina needs to be completely banned. have been marginalized financially by decided not to initiate rulemaking at The commercial interests have gained Amendment 1 that led to this time/area this time, NMFS is committed to control of our government agencies, closure. The time/area closure reviewing all shark management which now allow excess killing of encompasses the primary fishing measures, including time/area closures, marine life. The time/area closure grounds off North Carolina and severely when new stock assessment and/or new should be enlarged to ban shark fishing restricts access to the shark fishing information becomes available. NMFS along the entire coast of the United quota off North Carolina. would like to work with North Carolina States (and out to its deepest waters) Response: NMFS delayed to review new information as partners with a complete moratorium on shark implementation of the time/area closure in shark management. fishing for a five-year period. Fishermen for a year to allow fishermen time to Comment 23: Any closure considered can find other areas to deplete. Sharks adjust to the new regulations (December for conservation reasons should be are a part of our children’s heritage, and 24, 2003, 68 FR 74746). In addition, imposed on all commercial and NMFS has allowed fishermen, who during the proposed rule stage of recreational gear that interacts with the profit from killing them, to take just Amendment 1, NMFS took comment on species of concern. There is no about every last one of them. There a much larger time/area closure (31,387 justification for NMFS’ continued use of should be fines of $15,000.00 for a first nm2 from VA to SC) than the current closed areas to one gear type to be offense for killing sharks with a fine of time/area closure. Based on comments essentially used to reallocate the catches $100,000.00 for a second offense.
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00042 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules 73987
Response: NMFS disagrees that a recreational and commercial limits and/ Dated: December 8, 2005. complete ban on shark fishing is or quotas, limited access permits, and James W. Balsiger, necessary. NMFS has actively managed enhanced reporting requirements, and Acting Deputy Assistant Administrator for both LCS and small coastal sharks since other conservation and management Regulatory Programs, National Marine the first FMP for sharks in 1993, and measures that are expected to rebuild Fisheries Service. with additional measures thereafter in shark stocks. [FR Doc. 05–24028 Filed 12–13–05; 8:45 am] the 1999 FMP and Amendment 1 in BILLING CODE 3510–22–S 2003. Such measures include Authority: 16 U.S.C. 1801 et seq.
VerDate Aug<31>2005 15:28 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00043 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 73988
Notices Federal Register Vol. 70, No. 239
Wednesday, December 14, 2005
This section of the FEDERAL REGISTER the collection of information unless it Total Burden Hours: 45. contains documents other than rules or displays a currently valid OBM control Ruth Brown, proposed rules that are applicable to the number. public. Notices of hearings and investigations, Departmental Information Collection committee meetings, agency decisions and Cooperative State Research, Education, Clearance Officer. rulings, delegations of authority, filing of and Extension Service [FR Doc. 05–24006 Filed 12–13–05; 8:45 am] petitions and applications and agency BILLING CODE 3410–09–M statements of organization and functions are Title: Application for Authorization to examples of documents appearing in this Use the 4–H Name and/or Emblem. section. OMB Control Number: 0524–0034. DEPARTMENT OF AGRICULTURE Summary of Collection: Use of the 4–H Name and/or Emblem is authorized Commodity Credit Corporation DEPARTMENT OF AGRICULTURE by an Act of Congress, (Pub. L. 772, 80th Congress, 645, 2nd Session). Use of the Information Collection: Bioenergy Submission for OMB Review; Program Comment Request 4–H Club Name and/or Emblem by anyone other than the 4–H Clubs and AGENCY: Commodity Credit Corporation, December 8, 2005. those duly authorized by them, USDA. The Department of Agriculture has representatives of the Department of submitted the following information Agriculture, the Land-Grant colleges ACTION: Notice; request for comments. collection requirement(s) to OMB for and universities, and person authorized SUMMARY: In accordance with the review and clearance under the by the Secretary of Agriculture is Paperwork Reduction Act of 1995, the Paperwork Reduction Act of 1995, prohibited by the provisions of 18 Commodity Credit Corporation (CCC) is Public Law 104–13. Comments U.S.C. 707. The Secretary has delegated seeking comments from all interested regarding (a) whether the collection of authority to the Administrator of the individuals and organizations on the information is necessary for the proper Cooperative State Research, Education, extension of an approved information performance of the functions of the and Extension Service (CSREES) to collection with revision associated with agency, including whether the authorize others to use the 4–H Name the forms used under the Bioenergy information will have practical utility; and Emblem. Therefore, anyone Program. This information collection is (b) the accuracy of the agency’s estimate requesting, authorization from the needed to administer the Bioenergy of burden including the validity of the Administrator to use the 4–H Name and Program. methodology and assumptions used; (c) Emblem is asked to describe the ways to enhance the quality, utility and proposed use in a formal application. DATES: Comments on this notice must be clarity of the information to be CSREES will collect information using received on or before February 13, 2006 collected; (d) ways to minimize the form CSREES–01 ‘‘Application for to be assured consideration. burden of the collection of information Authorization to use the 4–H Club ADDRESSES: Comments should be on those who are to respond, including Name or Emblem.’’ addressed to Farm Service Agency, through the use of appropriate Need and Use of the Information: USDA, Commodity Operations, Attn: automated, electronic, mechanical, or CSREES will collect information on the James Goff, Special Programs Manager, other technological collection name of individual, partnership, STOP–0553, 1400 Independence techniques or other forms of information corporation, or association; Avenue, SW., Washington, DC 20250– technology should be addressed to: Desk organizational address, name of 0553. Comments also may be submitted Officer for Agriculture, Office of authorized representative; telephone by e-mail to: [email protected]. Information and Regulatory Affairs, number; proposed use of the 4–H Name The comments should be also sent to Office of Management and Budget the Desk Officer for Agriculture, Office _ _ _ or Emblem, and plan for sale or (OMB), Pamela Beverly OIRA distribution of product. The information of Information and Regulatory Affairs, [email protected] or fax collected by CSREES will be used to Office of Management and Budget, (202) 593–5806 and to Departmental determine if those applying to use the Washington, DC 20503. Comments Clearance Office, USDA, OCIO, Mail 4–H name and emblem are meeting the should include the OMB number and Stop 7602, Washington, DC 20250– requirements and quality of materials, title of the information collection. 7602. Comment regarding these products and/or services provided to the FOR FURTHER INFORMATION CONTACT: information collections are best assured public. If the information were not James Goff, Special Programs Manager, of having their full effect if received collected, it would not be possible to (202) 720–5396 and within 30 days of this notification. ensure that the products, services, and [email protected]. Copies of the submission(s) may be materials meet the high standards of obtained by calling (202) 720–8681. SUPPLEMENTARY INFORMATION: 4–H, its educational goals and An agency may not conduct or objectives. Description of Information Collection sponsor a collection of information unless the collection of information Description of Respondents: Not-for- Title: Report of Acreage for the displays a currently valid OMB control profit institutions; Individuals or Bioenergy Program. number and the agency informs households; Business or other for-profit. OMB Number: 0560–0207. potential persons who are to respond to Number of Respondents: 60. Expiration Date: May 31, 2006. the collection of information that such Frequency of Responses: Reporting: Type of Request: Extension with persons are not required to respond to Other (every 3 years). revision.
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00001 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 73989
Abstract: USDA collects information SUMMARY: In accordance with the assumption used; (c) ways to enhance from bioenergy producers that request Paperwork Reduction Act of 1995 (44 the quality, utility and clarity of the payments under the Bioenergy Program U.S.C. Chapter 35, as amended), the information to be collected; and (d) as the Secretary may require to ensure Rural Utilities Service (RUS) invites ways to minimize the burden of the the benefits are paid only to eligible comments on this information collection of information on those who bioenergy producers for eligible collection for which RUS intends to are to respond, including through the commodities. Bioenergy producers request approval from the Office of use of appropriate automated, seeking program payments have to meet Management and Budget (OMB). electronic, mechanical, or other minimum requirements by providing DATES: Comments on this notice must be technological collection techniques on information concerning the production received by February 13, 2006. other forms of information technology. of bioenergy. Applicants must certify FOR FURTHER INFORMATION CONTACT: All responses to this notice will be that they will abide by the Bioenergy Richard C. Annan, Program summarized and included in the request Program Agreement’s provisions. Development & Regulatory Analysis, for OMB approval. All comments will Respondents: U.S. bioenergy Rural Utilities Service, USDA, 1400 also become a matter of public record. producers who use eligible agricultural commodities to make bioenergy and Independence Ave., SW., STOP 1522, James M. Andrew, have been accepted to participate in the Room 5818 South Building, Administrator, Rural Utilities Service. Bioenergy Program. Washington, DC 20250–1522. [FR Doc. E5–7331 Filed 12–13–05; 8:45 am] Estimated Annual Number of Telephone: (202) 720–0784. FAX: (202) BILLING CODE 3410–15–P Respondents: 300. 720–4120. Estimated Annual Number of Forms SUPPLEMENTARY INFORMATION: per person: 11. Title: 7 CFR part 1753, DEPARTMENT OF COMMERCE Estimated Average Time to Respond: Telecommunications System 1 hour. Construction Policies and Procedures. International Trade Administration Estimated Total Annual Burden OMB Control Number: 0572–0059. [A–821–817] Hours: 3,300. Type of Request: Extension of a Comments are invited regarding (1) previously approved collection. Notice of Decision of the Court of Whether the collection of information is Abstract: In order to facilitate the International Trade; Silicon Metal From necessary for the proper performance of programmatic interest of the RE Act, the Russian Federation the functions of the agency, including and, in order to assure that loans made whether the information will have or guaranteed by RUS are adequately ACTION: Notice of Decision of the Court practical utility; (2) the accuracy of the secured, RUS, as a secured lender, has of International Trade. agency’s estimate of burden, including established certain forms for materials, the validity of the methodology and equipment and construction of electric AGENCY: Import Administration, assumption used: (3) ways to enhance and telecommunications systems. The International Trade Administration, the quality, utility and clarity of the use of standard forms, construction Department of Commerce. information to be collected; and (4) contracts, and procurement procedures EFFECTIVE DATE: December 14, 2005. ways to minimize the burden of the helps assure RUS that appropriate SUMMARY: On November 28, 2005, the collection of information on those who standards and specifications are United States Court of International are to respond, including through the maintained, RUS’ loan security is not Trade (‘‘CIT’’) issued an order use of appropriate automated, adversely affected; and the loan and sustaining the Department of electronic, mechanical, or other loan guarantee funds are used Commerce’s (‘‘the Department’’) Second technological collection techniques or effectively and for the intended Remand Results. See Final Results of other forms of information technology. purposes. Redetermination Pursuant to Court All comments received in response to Estimate of Burden: Public reporting Remand, Globe Metallurgical, Inc. vs. this notice, including names and burden for this collection of information United States, Consol. Ct. No. 03–00202 addresses when provided, will be a is estimated to average 1 hour per (October 21, 2005) (available at http:// matter of public record. Comments will response. www.ia.ita.doc.gov) (‘‘Second Remand be summarized and included in the Respondents: Business or other for- Results’’); see also, Globe Metallurgical, submission for OMB approval. profit and non-profit institutions. Inc. v. United States, Slip Op. 05–150 Signed in Washington, DC on December 7, Estimated Number of Respondents: (CIT November 28, 2005) (‘‘Globe 2005. 238. Metallurgical III’’). In the First Remand Teresa C. Lasseter, Estimated Number of Responses per Results, the Department recalculated the Executive Vice-President, Commodity Credit Respondent: 1. antidumping margins for Bratsk Corporation. Estimate Total Annual Burden on Aluminum Smelter and Rual Trade [FR Doc. E5–7279 Filed 12–13–05; 8:45 am] Respondents: 3,123 hours. Limited (collectively, ‘‘Bratsk’’) and Copies of this information collection ZAO Kremny and SUAL–Kremny-Ural BILLING CODE 3410–05–P can be obtained from MaryPat Daskal, Ltd. (collectively, ‘‘Kremny’’) to value Program Development and Regulatory the respondents’ usage of recycled DEPARTMENT OF AGRICULTURE Analysis, Rural Utilities Service at (202) silicon metal sized zero to five 720–7852. millimeters. See Final Results of Rural Utilities Service Comments are invited on (a) whether Redetermination Pursuant to Court the collection of information is Remand, Globe Metallurgical, Inc. v. Information Collection Activity; necessary for the proper performance of United States, Consol. Ct. No. 03–00202 Comment Request the functions of the agency, including (January 5, 2005) (available at http:// AGENCY: Rural Utilities Service, USDA. whether the information will have www.ia.ita.doc.gov) (‘‘First Remand practical utility; (b) the accuracy of the Results’’). In the Second Remand ACTION: Notice and request for agency’s estimate of burden including Results, the Department recalculated the comments. the validity of the methodology and adverse facts available (‘‘AFA’’) portion
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00002 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 73990 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
of Kremny’s antidumping duty margin Bratsk’s and Kremny’s margins to value DEPARTMENT OF COMMERCE using the revised antidumping duty the usage of recycled silicon metal sized margin for Bratsk calculated in the First zero to five millimeters. International Trade Administration Remand Results. Consistent with the On July 27, 2005, the CIT issued its Georgia Institute of Technology, et al. decision of the United States Court of opinion on the Department’s First Appeals for the Federal Circuit Notice of Consolidated Decision on Remand Results. See Globe (‘‘Federal Circuit’’) in Timken Co. v. Applications for Duty-Free Entry of Metallurgical, Inc. v. United States, Slip United States, 893 F.2d 337 (Fed. Cir. Electron Microscopes 1990) (‘‘Timken’’), the Department is Op. 05–90 (CIT July 27, 2005) (‘‘Globe This is a decision consolidated notifying the public that the Globe Metallurgical II’’). The CIT affirmed the pursuant to section 6(c) of the Metallurgical III decision is ‘‘not in Department’s determination to include Educational, Scientific, and Cultural harmony’’ with the Department’s final recycled silicon metal fines sized zero to Materials Importation Act of 1966 (Pub. determination. five millimeters in each producer’s factors of production cost analysis and L. 89–651, 80 Stat. 897; 15 CFR part FOR FURTHER INFORMATION CONTACT: affirmed the calculation of Bratsk’s 301). Related records can be viewed Carrie Blozy at (202) 482–5403; AD/CVD antidumping duty margin. However, the between 8:30 a.m. and 5 p.m. in Suite Operations, Office 9, Import Court further remanded the case back to 4100W, Franklin Court Building, U.S. Administration, International Trade Department of Commerce, 1099 14th the Department and ordered the Administration, U.S. Department of Street, NW., Washington, DC. Department to either recalculate the Commerce, 1401 Constitution Avenue Docket Number: 05–041. Applicant: NW, Washington, DC 20230. AFA portion of Kremny’s antidumping duty margin using the revised Georgia Institute of Technology, Atlanta, SUPPLEMENTARY INFORMATION: GA 30332. Instrument: Dual Beam antidumping duty margin for Bratsk Electron Microscope, Model Quanta 200 Background calculated in the Final Remand Results 3D Nanolab. Manufacturer: FEI or explain the use of the Bratsk margin On February 11, 2003, the Department Company, Czech Republic. Intended published its Amended Final from the Amended Final Determination. Use: See notice at 70 FR 67450, Determination, covering the period of The Department recalculated Kremny’s November 7, 2005. Order Date: April 4, investigation (‘‘POI’’) from July 1, 2001, antidumping duty margin using the 2004. through December 31, 2001. See Notice antidumping duty margin for Bratsk of Final Determination of Sales at Less calculated in the First Remand Results. Docket Number: 05–042. Applicant: Than Fair Value: Silicon Metal From the On October 25, 2005, the Department Georgia Institute of Technology, Atlanta, GA 30332. Instrument: Electron Russian Federation, 68 FR 6885 filed its Second Remand Results. On Microscope, Model NOVA 200 3D (February 11, 2003) (‘‘Final November 28, 2005, the CIT sustained Nanolab. Manufacturer: FEI Company, Determination’’), as amended by Notice the Department’s Second Remand of Amended Final Determination of Czech Republic. Intended Use: See Results in all respects. See Globe notice at 70 FR 67451, November 7, Sales at Less Than Fair Value: Silicon Metallurgical III. Metal From the Russian Federation, 68 2005. Order Date: April 4, 2004. FR 12037 (March 13, 2003) (‘‘Amended Timken Notice Docket Number: 05–043. Applicant: Final Determination’’). Petitioners and Massachusetts General Hospital, Boston, Bratsk contested various aspects of the In its decision in Timken, the Federal MA 02114. Instrument: Electron Amended Final Determination. Circuit held that, pursuant to 19 U.S.C. Microscope, Model JEM–1011. The Court remanded to the 1516a(e), the Department must publish Manufacturer: JEOL, Ltd., Japan Department two aspects of its Amended notice of a decision of the CIT which is Intended Use: See notice at 70 FR Final Determination for reconsideration: ‘‘not in harmony’’ with the 67451. Order Date: January 13, 2005. (1) with respect to the Department’s Department’s results. The CIT’s decision Comments: None received. Decision: decision not to use Russian values to in Globe Metallurgical III was not in Approved. No instrument of equivalent value the factors of production and harmony with the Department’s final scientific value to the foreign other expenses, the Court ordered the determination. Therefore, publication of instrument, for such purposes as these Department to either use Russian post– this notice fulfills the obligation. The instruments are intended to be used, non-market economy (‘‘NME’’) values or Department will issue revised cash was being manufactured in the United explain why the market economy deposit instructions effective the date of States at the time the instruments were Russian values are not the best available publication of this notice in the Federal ordered. Reasons: Each foreign information; and (2) with respect to the Register if the CIT’s decision is not instrument is an electron microscope Department’s treatment of silicon metal appealed, or if it is affirmed on appeal. and is intended for research or scientific fines, the Court granted the Dated: December 7, 2005. educational uses requiring an electron Department’s request to explain its microscope. We know of no electron Joseph A. Spetrini, exclusion of recycled silicon metal fines microscope, or any other instrument from the factor of production cost Acting Assistant Secretary for Import suited to these purposes, which was analysis. See Globe Metallurgical, Inc. v. Administration. being manufactured in the United States United States, 350 F.Supp. 2d 1148 (CIT [FR Doc. E5–7343 Filed 12–13–05; 8:45 am] either at the time of order of each September 24, 2004) (‘‘Globe BILLING CODE 3510–DS–S instrument OR at the time of receipt of Metallurgical I’’). Subsequent to the application by U.S. Customs and Border Court’s remand, Bratsk voluntarily Protection. dismissed its challenge of the Department’s rejection of Russian post– Gerald A. Zerdy, NME values. Therefore this issue Program Manager, Statutory Import Programs became moot. Staff. In the Department’s First Remand [FR Doc. E5–7345 Filed 12–13–05; 8:45 am] Results, the Department recalculated BILLING CODE 3510–DS–P
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00003 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 73991
DEPARTMENT OF COMMERCE DEPARTMENT OF COMMERCE FOR FURTHER INFORMATION CONTACT: Richard H. Moss, Ph.D., Director, International Trade Administration National Oceanic and Atmospheric Climate Change Science Program Office, Administration 1717 Pennsylvania Avenue NW., Suite Application for Duty-Free Entry of [I.D. 120605A] 250, Washington, DC 20006, Telephone: Scientific Instrument (202) 419–3476. U.S. Climate Change Science Program SUPPLEMENTARY INFORMATION: The CCSP Pursuant to section 6(c) of the Synthesis and Assessment Product was established by the President in 2002 Educational, Scientific and Cultural Prospectuses to coordinate and integrate scientific Materials Importation Act of 1966 (Pub. research on global change and climate AGENCY: National Oceanic and L. 89–651; 80 Stat. 897; 15 CFR part change sponsored by 13 participating Atmospheric Administration (NOAA), 301), we invite comments on the departments and agencies of the U.S. Department of Commerce. question of whether an instrument of Government. The CCSP is charged with equivalent scientific value, for the ACTION: Notice of availability and preparing information resources that purposes for which the instrument request for public comments. support climate-related discussions and shown below is intended to be used, is SUMMARY: The National Oceanic and decisions, including scientific synthesis being manufactured in the United Atmospheric Administration publishes and assessment analyses that support States. this notice to announce the availability evaluation of important policy issues. Comments must comply with 15 CFR of draft Prospectuses for four of the U.S. The Prospectuses addressed by this 301.5(a)(3) and (4) of the regulations and Climate Change Science Program (CCSP) notice provide a topical overview and be filed within 20 days with the Synthesis and Assessment Products describe plans for scoping, drafting, reviewing, producing, and Statutory Import Programs Staff, U.S. (Products) for public comment. These disseminating three of 21 final synthesis Department of Commerce, Washington, draft Prospectuses address the following and assessment Products that will be DC 20230. Applications may be CCSP Topics: produced by the CCSP. examined between 8:30 a.m. and 5 p.m. Product 1.3 Reanalysis of Historical in Suite 4100W, U.S. Department of Climate Data for Key Atmospheric Dated: December 7, 2005. Commerce, Franklin Court Building, Features: James R. Mahoney, 1099 14th Street, NW., Washington, DC. Implications for Attribution of Causes Assistant Secretary of Commerce for Oceans of Observed Change; andAtmosphere, Director, U.S. Climate Docket Number: 05–046. Applicant: Product 4.1 Coastal Elevation and Change Science Program. Massachusetts Institute of Technology. Sensitivity to Sea-Level Rise; [FR Doc. 05–24027 Filed 12–13–05; 8:45 am] Instrument: High-Resolution Product 5.1 Uses and Limitations of BILLING CODE 3510–KB–S Superconducting Magnet. Manufacturer: Observations, Data, Forecasts, and other Jastec, Japan. Intended Use: The Projections in Decision Support for instrument is intended to be used for a Selected Sectors and Regions; and CORPORATION FOR NATIONAL AND Product 5.3 Decision Support 500 MHz, 200 mm room-temperature COMMUNITY SERVICE bore MRI System to be assembled at Experiments and Evaluations Using MIT. This MRI System will be employed Seasonal to Interannual Forecasts and Proposed Information Collection; to study intact organisms, including Observational Data. Comment Request small animals, various human and After consideration of comments animal tissue samples, as well as other received on the draft Prospectuses, the AGENCY: Corporation for National and biological materials and phenomena final Prospectuses along with the Community Service. including the activity of neural comments received will be published on ACTION: Notice. the CCSP Web site. networks involved in vision and SUMMARY: The Corporation for National functional neuroimaging of the human DATES: Comments must be received by January 30, 2006. and Community Service (hereinafter the brain through detection of changes in ‘‘Corporation’’), has submitted an ADDRESSES: The draft Prospectuses are cerebral blood flow and energy information collection request (ICR) metabolism, vascular potency and tissue posted on the CCSP Program Office Web site. The Web addresses to access the entitled AmeriCorps State and National perfusion in cerebral as well as in Information Collections Related to peripheral and coronary circulation. draft Prospectuses are: Product 1.3 (Reanalysis): Disaster Relief Efforts to the Office of Application accepted by http://www.climatescience.gov/Library/ Management and Budget (OMB) for Commissioner of Customs: November sap/sap1–3/default.htm review and clearance in accordance 28, 2005. Product 4.1 (Sea Level): with the Paperwork Reduction Act of http://www.climatescience.gov/ 1995, (PRA 95) (44 U.S.C. Chapter 35). Gerald A. Zerdy, Library A copy of this ICR, with applicable Program Manager, Statutory Import Programs /sap/sap4–1/default.htm supporting documentation, may be Staff. Product 5.1 (Observations): obtained by contacting the Corporation [FR Doc. E5–7344 Filed 12–13–05; 8:45 am] http://www.climatescience.gov/Library/ for National and Community Service, BILLING CODE 3510–DS–P sap/sap5–1/default.htm AmeriCorps State and National, Amy Product 5.3 (Seasonal): Borgstrom, Associate Director for Policy, http://www.climatescience.gov/Library (202) 606–6930, or by e-mail at /sap/sap5–3/default.htm [email protected]. Individuals who Detailed instructions for making use a telecommunications device for the comments on the draft Prospectuses are deaf (TTY/TDD) may call (202) 606– provided with each Prospectus. 3472 between the hours of 9 a.m. and Comments should be prepared in 4:30 p.m. eastern time, Monday through accordance with these instructions. Friday.
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00004 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 73992 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
Copies of the information collection Title: AmeriCorps State and National ADDRESSES: Requests for copies of the request can be obtained by contacting Award Programs Application patents cited should be directed to the the office listed in the address section Instructions. Space and Naval Warfare Center, San of this notice. OMB Number: 3045–0113. Diego, Office of Research and DATES: Written comments must be Agency Number: None. Technology Applications, Code 2112, submitted to the individual and office Affected Public: States and nonprofit 83570 Silvergate Ave., San Diego, CA listed in the ADDRESSES section by organizations. 92152–5048. February 13, 2006. Total Respondents: 75 for Budget FOR FURTHER INFORMATION CONTACT: Dr. Amendment Requests. ADDRESSES: You may submit comments, Stephen H. Lieberman, Office of Frequency: One-time only for Budget identified by the title of the information Research and Technology Applications, Amendment Requests. collection activity, by any of the Space and Naval Warfare Systems Average Time Per Response: Budget following methods: Center, San Diego, Code 2112, 83570 Amendment Request: 2 hours. (1) By mail sent to: Corporation for Silvergate Ave., Room 2302, San Diego, Estimated Total Burden Hours: 150 National and Community Service, CA 92152–5048. Telephone 619–553– hours for Budget Amendment Requests. AmeriCorps State and National, Amy Total Burden Cost (capital/startup): 2778, E-Mail: Borgstrom, Associate Director for Policy, None. [email protected]. 1201 New York Ave., NW., Washington, Total Burden Cost (operating/ Authority: 35 U.S.C. 207, 37 CFR part 404. DC 20525. maintenance): None. (2) By hand delivery or by courier to Dated: December 5, 2005. the Corporation’s mailroom at Room Dated: December 9, 2005. Eric McDonald, 8100 at the mail address given in Rosie Mauk, Lieutenant Commander, Judge Advocate paragraph (1) above, between 9 a.m. and Director, AmeriCorps. General’s Corps, U.S. Navy, Federal Register Liaison Officer. 4 p.m. Monday through Friday, except [FR Doc. E5–7324 Filed 12–13–05; 8:45 am] [FR Doc. E5–7292 Filed 12–13–05; 8:45 am] Federal holidays. BILLING CODE 6050–$$–P (3) By fax to: (202) 606–3476, BILLING CODE 3810–FF–P Attention Amy Borgstrom, Associate Director for Policy. DEPARTMENT OF DEFENSE (4) Electronically through the DEPARTMENT OF DEFENSE Corporation’s e-mail address system: Department of the Navy [email protected]. Department of the Navy FOR FURTHER INFORMATION CONTACT: Notice of Availability of Government- Meetings of the Naval Research Amy Borgstrom, (202) 606–6930 or e- Owned Inventions; Available for Advisory Committee mail to [email protected]. Licensing AGENCY: Department of the Navy, DoD. SUPPLEMENTARY INFORMATION: The AGENCY: Department of the Navy, DoD. Corporation is particularly interested in ACTION: Notice of closed meetings. ACTION: Notice. comments that: SUMMARY: The Naval Research Advisory • Evaluate whether the proposed SUMMARY: The inventions listed below Committee (NRAC) will meet to hold collection of information is necessary are assigned to the United States briefs of classified information. All for the proper performance of the Government as represented by the sessions of the meetings will be devoted functions of the Corporation, including Secretary of the Navy and are made to briefings, discussions and technical whether the information will have available for licensing by the examination of information related to practical utility; Department of the Navy. • Evaluate the accuracy of the the assessment of the role of Naval U.S. Patent Number 6,546,798, Forces in the Global War on Terror. agency’s estimate of the burden of the entitled ‘‘Micro-Electro-Mechanical DATES: The meetings will be held on proposed collection of information, Systems Resonant Optical Gyroscope,’’ including the validity of the Tuesday, December 6, 2005, from 12:30 issue date April 4, 2003. U.S. Patent p.m. to 5:30 p.m., and Wednesday, methodology and assumptions used; Number 6,550,330, entitled ‘‘Differential • Enhance the quality, utility, and December 7, 2005, from 8:30 a.m. to Amplification for Micro-Electro- 5:30 p.m. clarity of the information to be Mechanical Ultra-Sensitive collected; and ADDRESSES: Accelerometer,’’ issued April 22, 2003. The meetings will be held at • Minimize the burden of the U.S. Patent Number 6,581,465, entitled the Office of Naval Research, One collection of information on those who Liberty Center, 875 North Randolph are expected to respond, including the ‘‘Micro-electro-mechanical systems ultra sensitive accelerometer,’’ issued June Street, Room 1203, Arlington, VA use of appropriate automated, 22203. electronic, mechanical, or other 24, 2003. U.S. Patent Number 6,763,718, FOR FURTHER INFORMATION CONTACT: Dr. technological collection techniques or entitled ‘‘Micro-Electro-Mechanical Sujata Millick, Program Director, Naval other forms of information technology Ultra-Sensitive Accelerometer with Research Advisory Committee, 875 (e.g., permitting electronic submissions Independent Sensitivity Adjustment,’’ North Randolph Street, Arlington, VA of responses). issued July 20, 2004. U.S. Patent Pending, entitled ‘‘Integrated Circuit 22203, 703–696–6769. Current Action Porphyrin-Based Optical Chemical SUPPLEMENTARY INFORMATION: This Description: This submission includes Sensor,’’ Navy Case Number 84715. U.S. notice is provided in accordance with one set of instructions for current Patent Pending, entitled ‘‘Wireless the provisions of the Federal Advisory grantees to submit requests for budget Remote Sensor and Method for Making Committee Act (5 U.S.C. App. 2). All amendment in order to carry out Same,’’ Navy Case Number 84769. U.S. sessions of the meetings will be devoted disaster relief efforts. Patent Pending, entitled ‘‘Micro-Electro- to executive sessions that will include Type of Review: Renewal. Mechanical Systems Magnetic Vibration discussions and technical examination Agency: Corporation for National and Power Generator,’’ Navy Case Number of information related to the role of Community Service. 84774. Naval Forces in the Global War on
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00005 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 73993
Terror. These briefings and discussions or protest must serve a copy of that become a party must file a notice of will contain classified information that document on the Applicant. Anyone intervention or motion to intervene, as is specifically authorized under criteria filing an intervention or protest on or appropriate. Such notices, motions, or established by Executive Order to be before the intervention or protest date protests must be filed in accordance kept secret in the interest of national need not serve motions to intervene or with the provisions of Section 154.210 defense and are in fact properly protests on persons other than the of the Commission’s regulations (18 CFR classified pursuant to such Executive Applicant. 154.210). Anyone filing an intervention Order. Classified and non-classified The Commission encourages or protest must serve a copy of that matters to be discussed are so electronic submission of protests and document on the Applicant. Anyone inextricably intertwined as to preclude interventions in lieu of paper using the filing an intervention or protest on or opening any portions of the meetings. In ‘‘eFiling’’ link at http://www.ferc.gov. before the intervention or protest date accordance with 5 U.S.C. App. 2, Persons unable to file electronically need not serve motions to intervene or section 10(d), the Secretary of the Navy should submit an original and 14 copies protests on persons other than the has determined in writing that the of the protest or intervention to the Applicant. public interest requires that all sessions Federal Energy Regulatory Commission, The Commission encourages of the meetings be closed to the public 888 First Street, NE., Washington, DC electronic submission of protests and because they will be concerned with 20426. interventions in lieu of paper using the matters listed in 5 U.S.C. section This filing is accessible on-line at ‘‘eFiling’’ link at http://www.ferc.gov. 552b(c)(1) and (4). http://www.ferc.gov, using the Persons unable to file electronically Due to unavoidable delay in ‘‘eLibrary’’ link and is available for should submit an original and 14 copies administrative processing, the normal review in the Commission’s Public of the protest or intervention to the 15 days notice could not be provided. Reference Room in Washington, DC. Federal Energy Regulatory Commission, There is an ‘‘eSubscription’’ link on the 888 First Street, NE., Washington, DC Eric McDonald, Web site that enables subscribers to 20426. Lieutenant Commander, Judge Advocate receive e-mail notification when a This filing is accessible on-line at General’s Corps, U.S. Navy, Federal Register http://www.ferc.gov, using the Liaison Officer. document is added to a subscribed docket(s). For assistance with any FERC ‘‘eLibrary’’ link and is available for [FR Doc. E5–7291 Filed 12–13–05; 8:45 am] Online service, please e-mail review in the Commission’s Public BILLING CODE 3810–FF–P [email protected], or call Reference Room in Washington, DC. (866) 208–3676 (toll free). For TTY, call There is an ‘‘eSubscription’’ link on the (202) 502–8659. Web site that enables subscribers to DEPARTMENT OF ENERGY receive email notification when a Magalie R. Salas, document is added to a subscribed Federal Energy Regulatory Secretary. docket(s). For assistance with any FERC Commission [FR Doc. E5–7313 Filed 12–13–05; 8:45 am] Online service, please email [Docket No. RP06–132–000] BILLING CODE 6717–01–P [email protected], or call (866) 208–3676 (toll free). For TTY, call ANR Storage Company; Notice of Tariff (202) 502–8659. Filing DEPARTMENT OF ENERGY Magalie R. Salas, December 8, 2005. Federal Energy Regulatory Secretary. Take notice that on December 2, 2005, Commission [FR Doc. E5–7314 Filed 12–13–05; 8:45 am] ANR Storage Company (ANR Storage) [Docket No. RP06–133–000] BILLING CODE 6717–01–P tendered for filing as part of its FERC Gas Tariff, Original Volume No. 1, Blue Lake Gas Storage Company; Second Revised Sheet No. 142, to Notice of Tariff Filing DEPARTMENT OF ENERGY become effective on January 2, 2006. ANR Storage states that the purpose of December 8, 2005. Federal Energy Regulatory this filing is to change the existing Take notice that on December 2, 2005, Commission billing and payment provisions Blue Lake Gas Storage Company (Blue [Docket No. PR06–6–000] currently reflected in the general terms Lake) tendered for filing as part of its and conditions of its tariff. FERC Gas Tariff, First Revised Volume Dow Pipeline Company; Notice of Any person desiring to intervene or to No. 1, Second Revised Sheet No. 142, to Petition for Rate Approval protest this filing must file in become effective on January 2, 2006. accordance with Rules 211 and 214 of Blue Lake states that the purpose of December 8, 2005. the Commission’s Rules of Practice and this filing is to change the existing Take notice that on November 30, Procedure (18 CFR 385.211 and billing and payment provisions 2005, Dow Pipeline Company (Dow 385.214). Protests will be considered by currently reflected in the general terms Pipeline) filed a petition for rate the Commission in determining the and conditions of its tariff. approval pursuant to section appropriate action to be taken, but will Any person desiring to intervene or to 284.123(b)(2) of the Commission’s not serve to make protestants parties to protest this filing must file in regulations. Dow Pipeline states that it the proceeding. Any person wishing to accordance with Rules 211 and 214 of proposes a new system-wide maximum become a party must file a notice of the Commission’s Rules of Practice and interruptible transportation rate of intervention or motion to intervene, as Procedure (18 CFR 385.211 and $0.0349 per Dth, plus a 0.4 percent in- appropriate. Such notices, motions, or 385.214). Protests will be considered by kind fuel reimbursement. protests must be filed in accordance the Commission in determining the Any person desiring to participate in with the provisions of Section 154.210 appropriate action to be taken, but will this rate proceeding must file a motion of the Commission’s regulations (18 CFR not serve to make protestants parties to to intervene or to protest this filing must 154.210). Anyone filing an intervention the proceeding. Any person wishing to file in accordance with Rules 211 and
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00006 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 73994 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
214 of the Commission’s Rules of the following tariff sheets to become DEPARTMENT OF ENERGY Practice and Procedure (18 CFR 385.211 effective on January 2, 2006: and 385.214). Protests will be Federal Energy Regulatory First Revised Sheet No. 152. Commission considered by the Commission in Original Sheet No. 152A. determining the appropriate action to be taken, but will not serve to make Any person desiring to intervene or to [Docket No. RP06–15–002] protestants parties to the proceeding. protest this filing must file in Any person wishing to become a party accordance with Rules 211 and 214 of Garden Banks Gas Pipeline, LLC; must file a notice of intervention or the Commission’s Rules of Practice and Notice of Compliance Filing motion to intervene, as appropriate. Procedure (18 CFR 385.211 and December 8, 2005. Such notices, motions, or protests must 385.214). Protests will be considered by be filed on or before the date as the Commission in determining the Take notice that on December 5, 2005, indicated below. Anyone filing an appropriate action to be taken, but will Garden Banks Gas Pipeline, LLC intervention or protest must serve a not serve to make protestants parties to (Garden Banks) submitted a compliance copy of that document on the Applicant. the proceeding. Any person wishing to filing pursuant to the Commission’s Anyone filing an intervention or protest November 4, 2005 order, 113 FERC become a party must file a notice of on or before the intervention or protest ¶ 61,132 (2005), issued in this intervention or motion to intervene, as date need not serve motions to intervene proceeding. appropriate. Such notices, motions, or or protests on persons other than the Garden Banks states that copies of its Applicant. protests must be filed in accordance with the provisions of section 154.210 filing have been mailed to all customers, The Commission encourages interested state regulatory commissions, electronic submission of protests and of the Commission’s regulations (18 CFR 154.210). Anyone filing an intervention and any parties on the Commission’s interventions in lieu of paper using the official service list. ‘‘eFiling’’ link at http://www.ferc.gov. or protest must serve a copy of that Persons unable to file electronically document on the Applicant. Anyone Any person desiring to protest this should submit an original and 14 copies filing an intervention or protest on or filing must file in accordance with Rule of the protest or intervention to the before the intervention or protest date 211 of the Commission’s Rules of Federal Energy Regulatory Commission, need not serve motions to intervene or Practice and Procedure (18 CFR 888 First Street, NE., Washington, DC protests on persons other than the 385.211). Protests to this filing will be 20426. Applicant. considered by the Commission in determining the appropriate action to be This filing is accessible on-line at The Commission encourages http://www.ferc.gov, using the taken, but will not serve to make electronic submission of protests and protestants parties to the proceeding. ‘‘eLibrary’’ link and is available for interventions in lieu of paper using the review in the Commission’s Public Such protests must be filed in ‘‘eFiling’’ link at http://www.ferc.gov. Reference Room in Washington, DC. accordance with the provisions of Persons unable to file electronically There is an ‘‘eSubscription’’ link on the section 154.210 of the Commission’s should submit an original and 14 copies Web site that enables subscribers to regulations (18 CFR 154.210). Anyone receive e-mail notification when a of the protest or intervention to the filing a protest must serve a copy of that document is added to a subscribed Federal Energy Regulatory Commission, document on all the parties to the docket(s). For assistance with any FERC 888 First Street, NE., Washington, DC proceeding. Online service, please e-mail 20426. The Commission encourages [email protected], or call This filing is accessible on-line at electronic submission of protests in lieu (866) 208–3676 (toll free). For TTY, call http://www.ferc.gov, using the of paper using the ‘‘eFiling’’ link at (202) 502–8659. ‘‘eLibrary’’ link and is available for http://www.ferc.gov. Persons unable to Comment Date: 5 p.m. eastern time review in the Commission’s Public file electronically should submit an December 30, 2005. Reference Room in Washington, DC. original and 14 copies of the protest to the Federal Energy Regulatory Magalie R. Salas, There is an ‘‘eSubscription’’ link on the Web site that enables subscribers to Commission, 888 First Street, NE., Secretary. Washington, DC 20426. [FR Doc. E5–7312 Filed 12–13–05; 8:45 am] receive e-mail notification when a document is added to a subscribed This filing is accessible on-line at BILLING CODE 6717–01–P docket(s). For assistance with any FERC http://www.ferc.gov, using the Online service, please e-mail ‘‘eLibrary’’ link and is available for DEPARTMENT OF ENERGY [email protected], or call review in the Commission’s Public (866) 208–3676 (toll free). For TTY, call Reference Room in Washington, DC. Federal Energy Regulatory (202) 502–8659. There is an ‘‘eSubscription’’ link on the Commission Web site that enables subscribers to Magalie R. Salas, receive e-mail notification when a [Docket No. RP06–137–000] Secretary. document is added to a subscribed [FR Doc. E5–7318 Filed 12–13–05; 8:45 am] docket(s). For assistance with any FERC Enbridge Pipelines (Midla) L.L.C.; BILLING CODE 6717–01–P Online service, please e-mail Notice of Proposed Changes in FERC [email protected], or call Gas Tariff (866) 208–3676 (toll free). For TTY, call (202) 502–8659. December 8, 2005. Take notice that on December 2, 2005, Magalie R. Salas, Enbridge Pipelines (Midla) L.L.C. Secretary. tendered for filing as part of its FERC [FR Doc. E5–7320 Filed 12–13–05; 8:45 am] Gas Tariff, Fifth Revised Volume No. 1, BILLING CODE 6717–01–P
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00007 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 73995
DEPARTMENT OF ENERGY (866) 208–3676 (toll free). For TTY, call ‘‘eLibrary’’ link and is available for (202) 502–8659. review in the Commission’s Public Federal Energy Regulatory Reference Room in Washington, DC. Magalie R. Salas, Commission There is an ‘‘eSubscription’’ link on the Secretary. [Docket No. RP99–220–021] Web site that enables subscribers to [FR Doc. E5–7308 Filed 12–13–05; 8:45 am] receive e-mail notification when a Great Lakes Gas Transmission Limited BILLING CODE 6717–01–P document is added to a subscribed Partnership; Notice of Negotiated Rate docket(s). For assistance with any FERC Agreement Online service, please e-mail DEPARTMENT OF ENERGY [email protected], or call December 8, 2005. Federal Energy Regulatory (866) 208–3676 (toll free). For TTY, call Take notice that on December 2, 2005, (202) 502–8659. Great Lakes Gas Transmission Limited Commission Partnership (Great Lakes) filed for [Docket No. RP99–220–020] Magalie R. Salas, disclosure, a transportation service Secretary. agreement pursuant to Great Lakes’ Rate Great Lakes Gas Transmission Limited [FR Doc. E5–7321 Filed 12–13–05; 8:45 am] Schedule FT entered into by Great Lakes Partnership; Notice of Negotiated Rate BILLING CODE 6717–01–P and WPS Energy Services, Inc. (WPS) Agreement (FT Service Agreement). Great Lakes states that the FT Service Agreement December 8, 2005. DEPARTMENT OF ENERGY being filed reflects a negotiated rate Take notice that on December 2, 2005, arrangement between Great Lakes and Great Lakes Gas Transmission Limited Federal Energy Regulatory WPS commencing December 1, 2005. Partnership (Great Lakes) filed for Commission disclosure, a transportation service Any person desiring to intervene or to [Docket No. RP06–138–000] protest this filing must file in agreement pursuant to Great Lakes’ Rate accordance with Rules 211 and 214 of Schedule FT entered into by Great Lakes Gulf States Transmission Corporation; the Commission’s Rules of Practice and and NJR Energy Services Company Notice of Proposed Changes in FERC Procedure (18 CFR 385.211 and (NJR) (FT Service Agreement). Great Gas Tariff 385.214). Protests will be considered by Lakes states that the FT Service the Commission in determining the Agreement being filed reflects a December 8, 2005. appropriate action to be taken, but will negotiated rate arrangement between Take notice that on December 6, 2005, not serve to make protestants parties to Great Lakes and NJR commencing Gulf States Transmission Corporation the proceeding. Any person wishing to December 1, 2005. (Gulf States) tendered for filing as part become a party must file a notice of Any person desiring to intervene or to of its FERC Gas Tariff, Original Volume intervention or motion to intervene, as protest this filing must file in No. 1, the tariff Sheets listed on appropriate. Such notices, motions, or accordance with Rules 211 and 214 of Appendix A to the filing, to become protests must be filed in accordance the Commission’s Rules of Practice and effective December 26, 2005. with the provisions of Section 154.210 Procedure (18 CFR 385.211 and Gulf States states that copies of this of the Commission’s regulations (18 CFR 385.214). Protests will be considered by filing are being served on all customers 154.210). Anyone filing an intervention the Commission in determining the of Gulf States and applicable state or protest must serve a copy of that appropriate action to be taken, but will regulatory agencies. document on the Applicant. Anyone not serve to make protestants parties to Any person desiring to intervene or to filing an intervention or protest on or the proceeding. Any person wishing to protest this filing must file in before the intervention or protest date become a party must file a notice of accordance with Rules 211 and 214 of need not serve motions to intervene or intervention or motion to intervene, as the Commission’s Rules of Practice and protests on persons other than the appropriate. Such notices, motions, or Procedure (18 CFR 385.211 and Applicant. protests must be filed in accordance 385.214). Protests will be considered by The Commission encourages with the provisions of section 154.210 the Commission in determining the electronic submission of protests and of the Commission’s regulations (18 CFR appropriate action to be taken, but will interventions in lieu of paper using the 154.210). Anyone filing an intervention not serve to make protestants parties to ‘‘eFiling’’ link at http://www.ferc.gov. or protest must serve a copy of that the proceeding. Any person wishing to Persons unable to file electronically document on the Applicant. Anyone become a party must file a notice of should submit an original and 14 copies filing an intervention or protest on or intervention or motion to intervene, as of the protest or intervention to the before the intervention or protest date appropriate. Such notices, motions, or Federal Energy Regulatory Commission, need not serve motions to intervene or protests must be filed in accordance 888 First Street, NE., Washington, DC protests on persons other than the with the provisions of section 154.210 20426. Applicant. of the Commission’s regulations (18 CFR This filing is accessible on-line at The Commission encourages 154.210). Anyone filing an intervention http://www.ferc.gov, using the electronic submission of protests and or protest must serve a copy of that ‘‘eLibrary’’ link and is available for interventions in lieu of paper using the document on the Applicant. Anyone review in the Commission’s Public ‘‘eFiling’’ link at http://www.ferc.gov. filing an intervention or protest on or Reference Room in Washington, DC. Persons unable to file electronically before the intervention or protest date There is an ‘‘eSubscription’’ link on the should submit an original and 14 copies need not serve motions to intervene or Web site that enables subscribers to of the protest or intervention to the protests on persons other than the receive e-mail notification when a Federal Energy Regulatory Commission, Applicant. document is added to a subscribed 888 First Street, NE., Washington, DC The Commission encourages docket(s). For assistance with any FERC 20426. electronic submission of protests and Online service, please e-mail This filing is accessible on-line at interventions in lieu of paper using the [email protected], or call http://www.ferc.gov, using the ‘‘eFiling’’ link at http://www.ferc.gov.
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00008 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 73996 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
Persons unable to file electronically need not serve motions to intervene or A technical conference in this should submit an original and 14 copies protests on persons other than the proceeding was held on December 1, of the protest or intervention to the Applicant. 2005 at the Commission’s Headquarters, Federal Energy Regulatory Commission, The Commission encourages 888 First Street, NE., Washington, DC 888 First Street, NE., Washington, DC electronic submission of protests and 20426. The technical conference 20426. interventions in lieu of paper using the participants discussed whether the This filing is accessible on-line at ‘‘eFiling’’ link at http://www.ferc.gov. upgrades completed by OG&E resulted http://www.ferc.gov, using the Persons unable to file electronically in an additional 600 MWs of available ‘‘eLibrary’’ link and is available for should submit an original and 14 copies transmission capacity, as required in the review in the Commission’s Public of the protest or intervention to the July 2004 Order. At the conclusion of Reference Room in Washington, DC. Federal Energy Regulatory Commission, the conference, the parties agreed to There is an ‘‘eSubscription’’ link on the 888 First Street, NE., Washington, DC answer the following questions: Web site that enables subscribers to 20426. 1. Is an additional 600 MWs of receive e-mail notification when a This filing is accessible on-line at Available Transfer Capability, achieved document is added to a subscribed http://www.ferc.gov, using the by upgrading the transmission system, docket(s). For assistance with any FERC ‘‘eLibrary’’ link and is available for created when: (a) The McClain Online service, please e-mail review in the Commission’s Public generating units are not running; (b) the [email protected], or call Reference Room in Washington, DC. McClain generating units are running to (866) 208–3676 (toll free). For TTY, call There is an ‘‘eSubscription’’ link on the serve OG&E load; or (c) the McClain (202) 502–8659. Web site that enables subscribers to generating units are running under operating conditions other than those Magalie R. Salas, receive e-mail notification when a document is added to a subscribed described in (a) and (b)? In other words, Secretary. docket(s). For assistance with any FERC should the base case be McClain [FR Doc. E5–7319 Filed 12–13–05; 8:45 am] Online service, please e-mail running with no transmission upgrades BILLING CODE 6717–01–P [email protected], or call or McClain not running with no (866) 208–3676 (toll free). For TTY, call transmission upgrades. Provide (202) 502–8659. complete explanatory rationale and DEPARTMENT OF ENERGY support for how the 600 MWs of Magalie R. Salas, Available Transfer Capability is created. Federal Energy Regulatory Secretary. 2. Explain if there are discrepancies in Commission [FR Doc. E5–7316 Filed 12–13–05; 8:45 am] Available Transfer Capability, as [Docket No. RP06–135–000] BILLING CODE 6717–01–P calculated by OG&E and as calculated by SPP, including whether the National Fuel Gas Supply Corporation; difference (if any) is the result of the use Notice of Proposed Changes in FERC DEPARTMENT OF ENERGY of different models (planning models vs. Gas Tariff operational models) containing different Federal Energy Regulatory generation dispatch pattern, different December 8, 2005. Commission transmission system configuration, Take notice that on December 1, 2005, different firm reservations, and different National Fuel Gas Supply Corporation [Docket Nos. EC03–131–003; EC03–131– generation and transmission outages. (National Fuel) tendered for filing as 004] 3. Were there any firm reservations, part of its FERC Gas Tariff, Fourth posted on the SPP OASIS after the July Revised Volume No. 1, Sixth Revised Oklahoma Gas and Electric Company; 2004 Order and prior to Redbud’s Sheet No. 12 and Eighth Revised Sheet Notice of Request for Comments transmission request in June 2005, by No. 478, to be effective January 1, 2006. Redbud or any other party that would National Fuel states that copies of this December 8, 2005. have reduced the Available Transfer filing were served upon its customers On July 2, 2004, the Commission Capability from Redbud to OG&E’s and interested state commissions. approved Oklahoma Gas and Electric transmission system? Any person desiring to intervene or to Company’s (OG&E) Offer of Settlement 4. In addition to the previously protest this filing must file in in this proceeding subject to certain disclosed non-firm reservation that was accordance with Rules 211 and 214 of modifications. In the Offer of not removed from the SPP study in the Commission’s Rules of Practice and Settlement, OG&E offered a number of response to Redbud’s June 2005 request, Procedure (18 CFR 385.211 and permanent and interim mitigation were there any other non-firm 385.214). Protests will be considered by measures. Among these mitigation reservations which were not removed the Commission in determining the measures was a commitment to from the ATC studies performed by appropriate action to be taken, but will construct a 600 MW Bridge between OG&E and SPP. not serve to make protestants parties to InterGen’s Redbud Energy Project and 5. Assuming the transmission the proceeding. Any person wishing to OG&E’s control area that would create upgrades created an additional 600 become a party must file a notice of an additional 600 MWs of available MWs of Available Transfer Capability, intervention or motion to intervene, as transmission capacity. See Oklahoma explain what happened to the Available appropriate. Such notices, motions, or Gas and Electric and NRG McClain LLC, Transfer Capability from the time OG&E protests must be filed in accordance 105 FERC ¶61,297 (2003), order placed it into service and when SPP with the provisions of section 154.210 approving settlement, 108 FERC made it available for transmission use. of the Commission’s regulations (18 CFR ¶61,004 (2004). On May 31, 2005, OG&E Comments in response to these 154.210). Anyone filing an intervention filed a letter informing the Commission questions are due on or before December or protest must serve a copy of that that, as of May 19, 2005, all of the 16, 2005, and reply comments are due document on the Applicant. Anyone facilities that OG&E committed to on or before January 20, 2006. filing an intervention or protest on or construct under the Offer of Settlement Comments must refer to Docket Nos. before the intervention or protest date were placed into commercial operation. EC03–131–003 and EC03–131–004, and
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00009 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 73997
must include the commenters’ name, of Markets Tariffs and Rates, Federal Comment Date: 5 p.m. eastern time the organization they represent, if Energy Regulatory Commission, 888 December 23, 2005. applicable, and their address. First Street, NE., Washington, DC 20426. Magalie R. Salas, Commenters should limit their answers (202) 502–8148. to the five specific questions identified Secretary. above. Commentors may include any Magalie R. Salas, [FR Doc. E5–7322 Filed 12–13–05; 8:45 am] additional pertinent information that Secretary. BILLING CODE 6717–01–P will aid the Commission in evaluating [FR Doc. E5–7309 Filed 12–13–05; 8:45 am] their responses to these five questions. BILLING CODE 6717–01–P Commentors may not raise any new DEPARTMENT OF ENERGY issues. The commentors should double Federal Energy Regulatory space their comments. DEPARTMENT OF ENERGY Comments may be filed on paper or Commission Federal Energy Regulatory electronically via the eFiling link on the [Docket No. RP06–134–000] Commission’s Web site at http:// Commission www.ferc.gov. The Commission accepts [Docket No. CP05–407–001] Transcontinental Gas Pipe Line most standard word processing formats Corporation; Notice of Proposed and commenters may attach additional Texas Gas Transmission, LLC; Notice Changes in FERC Gas Tariff files with supporting information in of Compliance Filing certain other file formats. Commenters December 8, 2005. filing electronically do not need to make December 8, 2005. Take notice that on December 2, 2005, a paper filing. Commenters that are not Take notice that on November 30, Transcontinental Gas Pipe Line able to file comments electronically 2005, Texas Gas Transmission, LLC Corporation (Transco) tendered for must send an original and 14 copies of (Texas Gas), submitted a compliance filing as part of its FERC Gas Tariff, their comments to: Federal Energy filing pursuant to ‘‘Order Granting Third Revised Volume No. 1, Thirty- Regulatory Commission, Office of the Abandonment and Issuing Certificate’’ Second Revised Sheet No. 28, to become Secretary, 888 First Street, NE., issued November 21, 2005, in Docket effective December 1, 2005. Washington, DC 20426. No. CP05–407–000, et al. Transco states that copies of the filing All comments will be placed in the Texas Gas states that copies of the are being mailed to affected customers Commission’s public files and may be filing were served on parties on the and interested state commissions. viewed, printed, or downloaded official service list in the above- Any person desiring to intervene or to remotely as described below. captioned proceeding. protest this filing must file in Commenters must serve copies of their Any person desiring to protest this accordance with Rules 211 and 214 of comments on the other commenters. filing must file in accordance with Rule the Commission’s Rules of Practice and In addition to publishing the full text 211 of the Commission’s Rules of Procedure (18 CFR 385.211 and of this document in the Federal Practice and Procedure (18 CFR 385.214). Protests will be considered by Register, the Commission provides all 385.211). Protests to this filing will be the Commission in determining the interested persons an opportunity to considered by the Commission in appropriate action to be taken, but will view and/or print the contents of this determining the appropriate action to be not serve to make protestants parties to document via the Internet through the taken, but will not serve to make the proceeding. Any person wishing to Commission’s home page http:// protestants parties to the proceeding. become a party must file a notice of www.ferc.gov and in the Commission’s Such protests must be filed on or before intervention or motion to intervene, as Public Reference Room during normal the date as indicated below. Anyone appropriate. Such notices, motions, or business hours (8:30 a.m. to 5 p.m. filing a protest must serve a copy of that protests must be filed in accordance Eastern time) at 888 First Street, NE., document on all the parties to the with the provisions of Section 154.210 Room 2–A, Washington, DC 20426. proceeding. of the Commission’s regulations (18 CFR From the Commission’s home page on The Commission encourages 154.210). Anyone filing an intervention the Internet, this information is electronic submission of protests in lieu or protest must serve a copy of that available in the Commission’s document of paper using the ‘‘eFiling’’ link at document on the Applicant. Anyone management system, eLibrary. The full http://www.ferc.gov. Persons unable to filing an intervention or protest on or text of this document is available on file electronically should submit an before the intervention or protest date eLibrary in PDF and Microsoft Word original and 14 copies of the protest to need not serve motions to intervene or format for viewing, printing, and/or the Federal Energy Regulatory protests on persons other than the downloading. To access this document Commission, 888 First Street, NE., Applicant. in eLibrary, type the docket number Washington, DC 20426. The Commission encourages (excluding the last three digits) in the This filing is accessible on-line at electronic submission of protests and docket number field. http://www.ferc.gov, using the interventions in lieu of paper using the User assistance is available for ‘‘eLibrary’’ link and is available for ‘‘eFiling’’ link at http://www.ferc.gov. eLibrary and the Commission’s web site review in the Commission’s Public Persons unable to file electronically during normal business hours. For Reference Room in Washington, DC. should submit an original and 14 copies assistance, please contact the There is an ‘‘eSubscription’’ link on the of the protest or intervention to the Commission’s Online Support at 1–866– Web site that enables subscribers to Federal Energy Regulatory Commission, 208–3676 (toll free) or 202–502–6652 (e- receive e-mail notification when a 888 First Street, NE., Washington, DC mail at [email protected]) document is added to a subscribed 20426. or the Public Reference Room at 202– docket(s). For assistance with any FERC This filing is accessible on-line at 502–8371, TTY 202–502–8659, e-mail at Online service, please e-mail http://www.ferc.gov, using the [email protected]. [email protected], or call ‘‘eLibrary’’ link and is available for Questions should be directed to: David (866) 208–3676 (toll free). For TTY, call review in the Commission’s Public Hunger, [email protected], Office (202) 502–8659. Reference Room in Washington, DC.
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00010 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 73998 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
There is an ‘‘eSubscription’’ link on the Persons unable to file electronically Filed Date: 11/30/2005. Web site that enables subscribers to should submit an original and 14 copies Accession Number: 20051202–0066. receive email notification when a of the protest or intervention to the Comment Date: 5 p.m. eastern time on document is added to a subscribed Federal Energy Regulatory Commission, Wednesday, December 21, 2005. docket(s). For assistance with any FERC 888 First Street, NE., Washington, DC Docket Numbers: ER06–30–001. Online service, please email 20426. Applicants: Midwest Independent [email protected], or call This filing is accessible on-line at Transmission System Operator, Inc. (866) 208–3676 (toll free). For TTY, call http://www.ferc.gov, using the Description: Midwest Independent (202) 502–8659. ‘‘eLibrary’’ link and is available for Transmission System Operator, Inc review in the Commission’s Public submits supplemental informational Magalie R. Salas, Reference Room in Washington, DC. filing to its Executed Large Generator Secretary. There is an ‘‘eSubscription’’ link on the Interconnection Agreement with Union [FR Doc. E5–7315 Filed 12–13–05; 8:45 am] Web site that enables subscribers to Electric Co dba AmerenUE. BILLING CODE 6717–01–P receive e-mail notification when a Filed Date: 11/29/2005. document is added to a subscribed Accession Number: 20051206–0192. docket(s). For assistance with any FERC Comment Date: 5 p.m. eastern time on DEPARTMENT OF ENERGY Online service, please e-mail Tuesday, December 20, 2005. Federal Energy Regulatory [email protected], or call Docket Numbers: ER06–63–001. Commission (866) 208–3676 (toll free). For TTY, call Applicants: Take Two, LLC. (202) 502–8659. Description: Take Two, LLC’s petition [Docket No. RP06–136–000] Magalie R. Salas, for acceptance of initial rate schedule (FERC Electric Rate Schedule No.1), Secretary. Transcontinental Gas Pipe Line waivers and blanket authority. Corporation; Notice of Proposed [FR Doc. E5–7317 Filed 12–13–05; 8:45 am] Filed Date: 11/30/2005. Changes in FERC Gas Tariff BILLING CODE 6717–01–P Accession Number: 20051202–0059. December 8, 2005. Comment Date: 5 p.m. eastern time on Wednesday, December 21, 2005. Take notice that on December 2, 2005, DEPARTMENT OF ENERGY Transcontinental Gas Pipe Line Docket Numbers: ER06–253–000. Corporation (Transco) tendered for Federal Energy Regulatory Applicants: American Electric Power filing as part of its FERC Gas Tariff, Commission Service Corporation. Third Revised Volume No. 1, Second Description: American Electric Power Revised Fifty-Ninth Revised Sheet No. Combined Notice of Filings #1 Service Corp, as agent for Ohio Power 50 and Second Substitute Sixtieth Co, submits a Facilities Agreement with December 7, 2005. Revised Sheet No. 50, to become the City of Shelby, Ohio and 11/30/05 effective November 1, 2005 and Take notice that the Commission filing of cover page inadvertently left of November 15, 2005, respectively. received the following electric rate original filing. Transco states that copies of the filing filings: Filed Date: 11/29/2005. are being mailed to each of its FT–NT Docket Numbers: ER03–1003–002. Accession Number: 20051201–0021. customers and interested state Applicants: Michigan Electric Comment Date: 5 p.m. eastern time on commissions. Transmission Company, LLC. Tuesday, December 20, 2005. Any person desiring to intervene or to Description: Michigan Public Power, Docket Numbers: ER06–254–000. protest this filing must file in Michigan South Central Power Agency Applicants: Avista Corporation. accordance with Rules 211 and 214 of and Michigan Electric Transmission Co, Description: Avista Corp submits a the Commission’s Rules of Practice and LLC submit a joint response to address non-conforming Long Term Service Procedure (18 CFR 385.211 and the questions presented by the Agreement designated as FERC Rate 385.214). Protests will be considered by Commission’s 10/20/05 Order. Schedule No. 323 providing for the sale the Commission in determining the Filed Date: 11/21/2005. of Dynamic Capacity and Energy Service appropriate action to be taken, but will Accession Number: 20051128–0511. to NorthWestern Corp. not serve to make protestants parties to Comment Date: 5 p.m. eastern time on Filed Date: 11/29/2005. the proceeding. Any person wishing to Monday, December 12, 2005. Accession Number: 20051201–0020. become a party must file a notice of Docket Numbers: ER05–1285–002. Comment Date: 5 p.m. eastern time on intervention or motion to intervene, as Applicants: Southwest Power Pool, Tuesday, December 20, 2005. appropriate. Such notices, motions, or Inc. Docket Numbers: ER06–255–000. protests must be filed in accordance Description: Southwest Pool Power, Applicants: Midwest Independent with the provisions of section 154.210 Inc submits compliance filing providing Transmission System Operator, Inc. of the Commission’s regulations (18 CFR for revisions & clarifications to its Open Description: Midwest Independent 154.210). Anyone filing an intervention Access Transmission Tariff. Transmission System Operator Inc or protest must serve a copy of that Filed Date: 11/29/2005. submits an unexecuted Large Generator document on the Applicant. Anyone Accession Number: 20051205–0067. Interconnection Agreement among filing an intervention or protest on or Comment Date: 5 p.m. eastern time on FirstEnergy Generation Corp and before the intervention or protest date Tuesday, December 20, 2005. American Transmission System, Inc. need not serve motions to intervene or Docket Numbers: ER05–1523–001. Filed Date: 11/29/2005. protests on persons other than the Applicants: Xcel Energy Services Inc. Accession Number: 20051201–0019. Applicant. Description: Xcel Energy Services Inc, Comment Date: 5 p.m. eastern time on The Commission encourages on behalf of Northern States Power Co, Tuesday, December 20, 2005. electronic submission of protests and submits the Refund Report required by Docket Numbers: ER06–256–000. interventions in lieu of paper using the FERC 11/23/05 Letter Order accepting Applicants: Old Dominion Electric ‘‘eFiling’’ link at http://www.ferc.gov. an executed Interconnection Agreement. Cooperative.
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00011 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 73999
Description: Old Dominion Electric Accession Number: 20051202–0064. Applicants: Solios Asset Management Cooperative submits an application for Comment Date: 5 p.m. eastern time on LLC. providing cost-based Reactive Power Wednesday, December 21, 2005. Description: Solios Asset Management and Voltage Control and Generation Docket Numbers: ER06–263–000. LLC petition Commision for Order Sources Service from its natural gas- Applicants: Cleco Power LLC. Accepting Market-Based Rate Schedule fired generating facility. Description: Cleco Power LLC submits for filing and granting waivers and Filed Date: 11/29/2005. an amendment to Appendix B of the blanket approvals. Accession Number: 20051201–0024. Electric Service Interconnection Filed Date: 11/30/2005. Comment Date: 5 p.m. eastern time on Agreement with the Louisiana Energy Accession Number: 20051202–0082. Tuesday, December 20, 2005. and Power Authority. Comment Date: 5 p.m. eastern time on Docket Numbers: ER06–257–000. Filed Date: 11/30/2005. Wednesday, December 21, 2005. Applicants: Southwest Power Pool, Accession Number: 20051202–0065. Docket Numbers: ER06–271–000; Inc. Comment Date: 5 p.m. eastern time on EL06–21–000. Description: Southwest Power Pool, Wednesday, December 21, 2005. Applicants: Solios Power LLC. Inc submits an unexecuted service Docket Numbers: ER06–265–000. Description: Solios Power LLC agreement for Network Integration Applicants: Doswell Limited submits a petition for issuance of Transmission Service with Associated Partnership. declaratory orders, petition for order Electric Cooperative, Inc. Description: Doswell Limited accepting market-based rate schedule Filed Date: 11/30/2005. Partnership submits Rate Schedule for filing. Accession Number: 20051201–0184. under which its sets forth charges and Filed Date: 11/30/2005. Comment Date: 5 p.m. eastern time on its revenue requirement for providing Accession Number: 20051202–0087. Wednesday, December 21, 2005. cost-based Reactive Support and Comment Date: 5 p.m. eastern time on Docket Numbers: ER06–258–000. Voltage Control from Generation Source Wednesday, December 21, 2005. Applicants: Wisconsin Public Service Services. Docket Numbers: ER06–272–000. Corporation. Filed Date: 11/30/2005. Applicants: Oregon Trail Electric Description: Wisconsin Public Service Accession Number: 20051202–0067. Consumers Cooperative, Inc. Corp submits its Second Revised Service Comment Date: 5 p.m. eastern time on Description: Oregon Trail Electric Agreement No. 11 with the Village of Wednesday, December 21, 2005. Consumers Coop, Inc advise FERC that Stratford Water & Electric Utility Docket Numbers: ER06–266–000. due to amendments of section 201(f) of effective 11/1/05. Applicants: Duke Energy Oakland, the Federal Power Act, it is not longer Filed Date: 11/30/2005. LLC. a public utility. Accession Number: 20051202–0060. Description: Duke Energy Oakland, Filed Date: 11/30/2005. Comment Date: 5 p.m. eastern time on LLC submits revisions to certain Accession Number: 20051205–0066. Wednesday, December 21, 2005. reliability Must-Run Rate Schedules of Comment Date: 5 p.m. eastern time on Docket Numbers: ER06–260–000. its Reliability Must Run Agreement with Wednesday, December 21, 2005. Applicants: Midwest Independent California Independent System Docket Numbers: ER96–1145–016; Transmission System Operator, Inc. Operator Corp for contract year 2006. EL05–111–000. Description: Midwest Independent Filed Date: 11/30/2005. Applicants: Alternate Power Source, Transmission System Operator Inc Accession Number: 20051202–0061. Inc. submits a Revised and Restated Comment Date: 5 p.m. eastern time on Description: Alternate Power Source, Generator Interconnection and Wednesday, December 21, 2005. Inc submits its corrected Market Operating Agreement among Docket Numbers: ER06–268–000. Behavior Rules and the addition of the FirstEnergy Generation Corp and Applicants: Los Esteros Critical change in status reporting requirement American Transmission Systems, Inc. Energy Facility, LLC. for their FERC Electric Tariff Rate Filed Date: 11/30/2005. Description: Los Esteros Critical Schedule 1. Accession Number: 20051202–0062. Energy Facility, LLC submits revisions to Filed Date: 11/29/2005. Comment Date: 5 p.m. eastern time on its tariff and certain Rate Schedules of Accession Number: 20051202–0058. Wednesday, December 21, 2005. its Reliability Must-Run Agreement with Comment Date: 5 p.m. eastern time on Docket Numbers: ER06–261–000. California Independent System Tuesday, December 20, 2005. Applicants: Delta Energy Center, LLC. Operator Corp. Any person desiring to intervene or to Description: Delta Energy Center LLC Filed Date: 11/30/2005. protest in any of the above proceedings submits Appendix A, revisions to Accession Number: 20051202–0055. must file in accordance with Rules 211 certain Rate Schedules of its Reliability Comment Date: 5 p.m. eastern time on and 214 of the Commission’s Rules of Must-Run Agreement with the California Wednesday, December 21, 2005. Practice and Procedure (18 CFR 385.211 Independent System Operator Corp. Docket Numbers: ER06–269–000. and 385.214) on or before 5 p.m. eastern Filed Date: 11/30/2005. Applicants: ISO New England Power time on the specified comment date. It Accession Number: 20051202–0063. Company. is not necessary to separately intervene Comment Date: 5 p.m. eastern time on Description: ISO New England, Inc again in a subdocket related to a Wednesday, December 21, 2005. and New England Power Co submit an compliance filing if you have previously Docket Numbers: ER06–262–000. unexecuted service agreement for a intervened in the same docket. Protests Applicants: Pittsfield Generating large generator interconnection under will be considered by the Commission Company, L.P. Schedule 22 of their Open Access in determining the appropriate action to Description: Pittsfield Generating Co Transmission Tariff. be taken, but will not serve to make LP, submits an unexecuted Reliability Filed Date: 11/30/2005. protestants parties to the proceeding. Must Run Agreement among itself, Accession Number: 20051202–0056. Anyone filing a motion to intervene or Sempra Energy Trading Corp, and ISO Comment Date: 5 p.m. eastern time on protest must serve a copy of that New England. Wednesday, December 21, 2005. document on the Applicant. In reference Filed Date: 11/30/2005. Docket Numbers: ER06–270–000. to filings initiating a new proceeding,
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00012 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74000 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
interventions or protests submitted on f. Location: The project is located on be received on or before the specified or before the comment deadline need the Dorothy Creek, near Juneau, Alaska. comment date for the particular not be served on persons other and the g. Filed Pursuant to: Section 13 of the application. Applicant. Federal Power Act, 16 U.S.C. 806. o. Filing and Service of Responsive The Commission encourages h. Applicant Contact: Corry V. Documents: Any filings must bear in all electronic submission of protests and Hildebrand, Lake Dorothy Hydro Inc., capital letters the title ‘‘COMMENTS’’, interventions in lieu of paper, using the 5601 Tonsgard Court, Juneau, AK ‘‘PROTEST’’, OR ‘‘MOTION TO FERC Online links at http:// 99801–7201. INTERVENE’’, as applicable, and the www.ferc.gov. To facilitate electronic i. FERC Contact: Any questions on Project Number of the particular service, persons with Internet access this notice should be addressed to Mrs. application to which the filing refers. who will eFile a document and/or be Anumzziatta Purchiaroni at (202) 502– All documents (original and eight listed as a contact for an intervenor 6191, or e-mail address: copies) should be filed with: Magalie R. must create and validate an [email protected]. Salas, Secretary, Federal Energy eRegistration account using the j. Deadline for filing comments and or Regulatory Commission, 888 First motions: December 22, 2005. eRegistration link. Select the eFiling Street, NE., Washington DC 20426. A k. Description of Request: The link to log on and submit the copy of any motion to intervene must Applicant is requesting a two year also be served upon each representative intervention or protests. extension of the deadline for of the Applicant specified in the Persons unable to file electronically commencement of construction until particular application. should submit an original and 14 copies December 24, 2007, and that the p. Agency Comments: Federal, State, of the intervention or protest to the deadline for completion of construction and local agencies are invited to file Federal Energy Regulatory Commission, also to be extended to December 24, comments on the described application. 888 First St., NE., Washington, DC 2009. The licensee is requesting A copy of the application may be 20426. additional time to accommodate obtained by agencies directly from the The filings in the above proceedings unanticipated delays that prevented it Applicant. If an agency does not file are accessible in the Commission’s from commencing construction work comments within the time specified for eLibrary system by clicking on the prior to the license deadline. appropriate link in the above list. They l. Locations of the Application: A filing comments, it will be presumed to are also available for review in the copy of the application is available for have no comments. One copy of an Commission’s Public Reference Room in inspection and reproduction at the agency’s comments must also be sent to Washington, DC. There is an Commission’s Public Reference Room, the Applicant’s representatives. eSubscription link on the Web site that located at 888 First Street, NE., Room q. Comments, protests and enables subscribers to receive e-mail 2A, Washington, DC 20426, or by calling interventions may be filed electronically notification when a document is added (202) 502–8371. Information about this via the Internet in lieu of paper. See, 18 to a subscribed dockets(s). For filing may also be viewed on the CFR 385.2001(a)(1)(iii) and the assistance with any FERC Online Commission’s Web site at http:// instructions on the Commission’s Web service, please e-mail www.ferc.gov using the ‘‘eLibrary’’ link. site at http://www.ferc.gov under the ‘‘e- [email protected]. or call Enter the docket number excluding the Filing’’ link. (866) 208–3676 (toll free). For TTY, call last three digits in the docket number Magalie R. Salas, (202) 502–8659. field to access the document. You may Secretary. Magalie R. Salas, also register online at http:// [FR Doc. E5–7311 Filed 12–13–05; 8:45 am] Secretary. www.ferc.gov/docs-filing/ BILLING CODE 6717–01–P esubscription.asp to be notified via e- [FR Doc. E5–7289 Filed 12–13–05; 8:45 am] mail of new filings and issuances BILLING CODE 6717–01–P related to this or other pending projects. DEPARTMENT OF ENERGY For assistance, call 1–866–208–3676 or DEPARTMENT OF ENERGY e-mail [email protected], Federal Energy Regulatory for TTY, call (202) 502–8659. A copy is Commission Federal Energy Regulatory also available for inspection and [Docket Nos. ER05–1410–000 and EL05– Commission reproduction at the address in item (h) 148–000] above. Notice of Application for Amendment m. Individuals desiring to be included PJM Interconnection, LLC; Notice of of License and Soliciting Comments, on the Commission’s mailing list should Commission Technical Conference Motions To Intervene, and Protests so indicate by writing to the Secretary of the Commission. December 8, 2005. December 8, 2005. n. Comments, Protests, or Motions to Take notice that the Commission will Take notice that the following Intervene: Anyone may submit hold a technical conference on February application has been filed with the comments, a protest, or a motion to 3, 2006, from 10 a.m. to 5 p.m. (EST) on Commission and is available for public intervene in accordance with the the matters raised by the Reliability inspection: requirements of Rules of Practice and Pricing Model (RPM) filed on August a. Application Type: Extension of Procedure, 18 CFR 385.210, .211, .214. 31, 2005, by PJM Interconnection, LLC Time to Commence and Complete In determining the appropriate action to (PJM). The technical conference will be Construction. take, the Commission will consider all held in a room to be designated at the b. Project No.: 12379–006. protests or other comments filed, but Federal Energy Regulatory Commission, c. Date Filed: August 25, 2005. only those who file a motion to 888 First Street, NE., Washington, DC d. Applicant: Lake Dorothy Hydro, intervene in accordance with the 20426. Members of the Commission will Inc., Alaska. Commission’s Rules may become a attend and participate in the conference. e. Name of Project: Lake Dorothy party to the proceeding. Any comments, The conference will be open for the Hydroelectric Project. protests, or motions to intervene must public to attend.
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00013 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74001
The conference will consist of panels (800) 336–6646 for a fee. It will be DEPARTMENT OF ENERGY addressing, but not limited to, the available for the public on the following issues of interest to the Commission’s eLibrary system seven Federal Energy Regulatory Commissioners: calendar days after FERC receives the Commission 1. Whether the current capacity transcript. obligation construct within PJM’s A free Webcast of this event is Sunshine Act; Meetings market design provides for just and available through http://www.ferc.gov. reasonable wholesale power prices in Anyone with Internet access who December 8, 2005. the PJM footprint, at levels that provide wishes to view this event may do so by The following notice of meeting is adequate assurance that necessary navigating to http://www.ferc.gov’s published pursuant to section 3(a) of the resources will be provided to assure Calendar of Events and locating this government in the Sunshine Act (Pub. reliability, or whether changes must be event in the Calendar. The event will L. No. 94–409), 5 U.S.C. 552b: made to that capacity obligation contain a link to its Webcast. The construct; Capitol Connection provides technical AGENCY HOLDING MEETING: Federal 2. Whether PJM’s RPM proposal support for the Webcasts. It also offers Energy Regulatory Commission. would provide for just and reasonable access to this event via television in the DATE AND TIME: December 15, 2005, 10 wholesale power prices in the PJM Washington, DC area and via phone a.m. footprint, at levels that provide adequate bridge for a fee. Visit http:// assurance that necessary resources will www.CapitolConnection.org or contact PLACE: Room 2C, 888 First Street, NE., be provided to assure reliability, or Danelle Perkowski or David Reininger at Washington, DC 20426. whether changes must be made to the the Capitol Connection (703) 993–3100 STATUS: proposal to meet those goals; and for information about this service. Open. 3. Whether an alternative approach to FERC conferences are accessible MATTERS TO BE CONSIDERED: Agenda. RPM is necessary to ensure just and under section 508 of the Rehabilitation * Note—Items listed on the agenda reasonable wholesale power prices in Act of 1973. For accessibility the PJM footprint. accommodations please send an e-mail may be deleted without further notice. The technical conference is intended to [email protected] or call toll free FOR FURTHER INFORMATION CONTACT: to provide a forum through which the (866) 208–3372 (voice) or (202) 208– Magalie R. Salas, Secretary, Telephone Commission will obtain information 1659 (TTY), or send a FAX to (202) 208– (202) 502–8400. and develop a record on these topics. 2106 with the required For a recorded listing item stricken The Commission will issue a accommodations. supplemental notice with information For further information on this from or added to the meeting, call (202) identifying panel participants and a conference, contact John McPherson at 502–8627. detailed agenda prior to the conference. [email protected], or Katherine This is a list of matters to be There will be an opportunity for parties Waldbauer at considered by the Commission. It does to file comments following the technical [email protected]. not include a listing of all papers conference. Magalie R. Salas, relevant to the items on the agenda; The conference will be transcribed. A however, all public documents may be Secretary. transcript of the conference will be examined in the Public Reference Room. immediately available from Ace [FR Doc. E5–7310 Filed 12–13–05; 8:45 am] Reporting Company (202) 347–3700 or BILLING CODE 6717–01–P
898TH—MEETING, REGULAR MEETING [December 15, 2005, 10 a.m.]
Item No. Docket No. Company
Administrative Agenda
A–1 ...... AD02–1–000 ...... Agency Administrative Matters A–2 ...... AD02–7–000 ...... Customer Matters, Reliability, Security and Market Operations A–3 ...... AD06–3–000 ...... Market Update
Markets, Tariffs, and Rates—Electric
E–1 ...... RM04–12–000 ...... Accounting and Financial Reporting for Public Utilities including RTOs E–2 ...... OMITTED. E–3 ...... ER05–1236–000 ...... Duke Power E–4 ...... EC05–103–000 ...... Duke Energy Corporation Cinergy Corp. E–5 ...... ER05–1235–000 ...... MidAmerican Energy Company E–6 ...... EC05–110–000 ...... MidAmerican Energy Holdings Company Scottish Power plc PacifiCorp Holdings, Inc. PacifiCorp E–7 ...... ER06–78–000 ...... PJM Interconnection, L.L.C. ER06–78–001 ...... E–8 ...... ER06–43–000 ...... Commonwealth Edison Company and Exelon Generation Company E–9 ...... ER06–58–000 ...... California Independent System Operator Corporation E–10 ...... ER06–61–000 ...... California Independent System Operator Corporation E–11 ...... ER05–1249–000 ...... Granite State Electric Company ...... ER05–1249–001 ...... Massachusetts Electric Company The Narragansett Electric Company
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00014 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74002 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
898TH—MEETING, REGULAR MEETING—Continued [December 15, 2005, 10 a.m.]
Item No. Docket No. Company
Niagara Mohawk Power Corporation New England Power Company E–12 ...... OMITTED. E–13 ...... OMITTED. E–14 ...... ER93–465–034 ...... Florida Power & Light Company ER96–417–003. ER96–1375–004. OA96–39–011. OA97–245–004. E–15 ...... OMITTED. E–16 ...... ER05–1085–001 ...... Midwest Independent Transmission System Operator ER04–458–008. E–17 ...... ER93–465–035 ...... Florida Power & Light Company ER96–417–004. ER96–1375–005. OA96–39–012. OA97–245–005. E–18 ...... ER05–1168–000 ...... Attala Transmission, L.L.C. E–19 ...... ER05–1056–001 ...... Chehalis Power Generating, L.P. E–20 ...... OMITTED. E–21 ...... EC05–43–000 ...... Exelon Corporation and Public Service Enterprise EC05–43–001 ...... Group, Inc. E–22 ...... ER05–666–003 ...... Southwest Power Pool, Inc. E–23 ...... OMITTED. E–24 ...... OMITTED. E–25 ...... OMITTED. E–26 ...... EC05–132–000 ...... Nevada Power Company GenWest LLC
Markets, Tariffs, and Rates—Miscellaneous
M–1 ...... RM05–35–000 ...... Standard of Review for Modifications to Jurisdictional Agreements
Markets, Tariffs, and Rates—Gas
G–1 ...... PR05–19–000 ...... Unocal Keystone Gas Storage, LLC G–2 ...... OR92–8–024 ...... SFPP, L.P. OR93–5–015. OR94–3–014. OR94–4–016. OR95–5–013 ...... Mobil Oil Corporation v. SFPP, L.P. OR95–34–012 ...... Tosco Corporation v. SFPP, L.P. OR96–2–010 ...... ARCO Products Co. a Division of Atlantic Richfield OR96–2–011 ...... Company, Texaco Refining and Marketing Inc., and OR96–10–007 ...... Mobil Oil Corporation v. SFPP, L.P. OR96–10–009. OR98–1–009. OR98–1–011. OR00–4–002. OR96–2–003 ...... Ultramar Diamond Shamrock Corporation and OR96–2–010 ...... Ultramar, Inc. v. SFPP, L.P. OR96–10–008. OR96–10–009. OR96–17–004. OR96–17–006. OR97–2–004. OR97–2–005. OR98–2–005. OR98–2–007. OR00–8–005. OR00–8–007. OR98–13–005 ...... Tosco Corporation v. SFPP, L.P. OR98–13–007. OR00–9–005. OR00–9–007. OR00–7–005 ...... Navajo Refining Corporation v. SFPP, L.P. OR00–7–006. OR00–10–005 ...... Refinery Holding Company OR00–10–006. S98–1–001 ...... SFPP, L.P. IS98–1–002.
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00015 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74003
898TH—MEETING, REGULAR MEETING—Continued [December 15, 2005, 10 a.m.]
Item No. Docket No. Company
IS04–323–002.
Energy Projects—Hydro
H–1 ...... P–9401–064 ...... Mt. Hope Waterpower Project, LLP H–2 ...... P–487–041 ...... PPL Holtwood, LLC H–3 ...... P–12597–001 ...... Birch Power Company P–12598–001. P–12599–001 ...... Wade Jacobsen H–4 ...... P–2064–012 ...... Flambeau Hydro, LLC H–5 ...... P–10395–031 ...... Electric Plant Board of the City of Augusta, Kentucky
Energy Projects—Certificates
C–1 ...... RM05–23–000 ...... Rate Regulation of Certain Underground Storage AD04–11–000 ...... Facilities C–2 ...... CP05–416–000 ...... Tennessee Gas Pipeline Company
Magalie R. Sales, ENVIRONMENTAL PROTECTION I. General Information Secretary. AGENCY A. Does This Action Apply to Me? A free Webcast of this event is You may be potentially affected by [EPA-HQ-OPP–2005–0298; FRL–7747–4] available through http://www.ferc.gov. this action if you are an agricultural Anyone with Internet access who Notice of Filing of a Pesticide Petition producer, food manufacturer, or desires to view this event can do so by for the Establishment of Regulations pesticide manufacturer. Potentially navigating to http://www.ferc.gov’s for Residues of the Insecticide affected entities may include, but are Calendar of Events and locating this not limited to: Clothianidin in or on Food • event in the Calendar. The event will Commodities Crop production (NAICS code 111). contain a link to its Webcast. The • Animal production (NAICS code Capitol Connection provides technical 112). AGENCY: Environmental Protection • support for the free Webcasts. It also Agency (EPA). Food manufacturing (NAICS code offers access to this event via television 311). • in the DC area and via phone bridge for ACTION: Notice. Pesticide manufacturing (NAICS a fee. If you have any questions, visit code 32532). http://www.CapitolConnection.org or SUMMARY: This notice announces the This listing is not intended to be contact Danelle Perkowski or David initial filing of a pesticide petition exhaustive, but rather provides a guide Reininger at 703–993–3100. proposing the establishment of for readers regarding entities likely to be regulations for residues of the affected by this action. Other types of Immediately following the conclusion insecticide clothianidin in or on cotton, entities not listed in this unit could also of the Commission Meeting, a press undelinted seed and cotton, gin be affected. The North American briefing will be held in Hearing Room byproducts. Industrial Classification System 2. Members of the public may view this (NAICS) codes have been provided to briefing in the Commission Meeting DATES: Comments must be received on assist you and others in determining overflow room. This statement is or before January 13, 2006. whether this action might apply to intended to notify the public that the certain entities. If you have any ADDRESSES: Comments, identified by press briefings that follow Commission questions regarding the applicability of docket identification (ID) number EPA- meetings may now be viewed remotely this action to a particular entity, consult HQ-OPP–2005–0298 and pesticide at Commission headquarters, but will the person listed under FOR FURTHER petition (PP) number 5F6908, may be not be telecast through the Capitol INFORMATION CONTACT. submitted electronically, by mail, or Connection service. through hand delivery or courier. B. How Can I Get Copies of This [FR Doc. 05–24048 Filed 12–9–05; 5:23 pm] Follow the detailed instructions as Document and Other Related BILLING CODE 6717–01–P provided in Unit I. of the Information? SUPPLEMENTARY INFORMATION. 1. EPA has established an official FOR FURTHER INFORMATION CONTACT: public docket for this action under Kable Davis, Registration Division docket ID number EPA-HQ-OPP–2005– (7505C), Office of Pesticide Programs, U. 0298. The official public docket consists S. Environmental Protection Agency, of the documents specifically referenced 1200 Pennsylvania Ave., NW, in this action, any public comments Washington, DC 20460–0001; phone received, and other information related to this action. Although a part of the number: 703–306–0415, e-mail address: official docket, the public docket does [email protected]. not include Confidential Business SUPPLEMENTARY INFORMATION: Information (CBI) or other information
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00016 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74004 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
whose disclosure is restricted by statute. For public commenters, it is identifying or contact information The official public docket is the important to note that EPA’s policy is provided in the body of a comment will collection of materials that is available that public comments, whether be included as part of the comment that for public viewing at the Public submitted electronically or in paper, is placed in the official public docket, Information and Records Integrity will be made available for public and made available in EPA’s electronic Branch (PIRIB), Rm. 119, Crystal Mall viewing in EPA’s electronic public public docket. If EPA cannot read your #2, 1801 S. Bell St., Arlington, VA. This docket as EPA receives them and comment due to technical difficulties docket facility is open from 8:30 a.m. to without change, unless the comment and cannot contact you for clarification, 4 p.m., Monday through Friday, contains copyrighted material, CBI, or EPA may not be able to consider your excluding legal holidays. The docket other information whose disclosure is comment. telephone number is (703) 305–5805. restricted by statute. When EPA i. Your use of EPA’s electronic public 2. You may access this document identifies a comment containing docket to submit comments to EPA electronically through the EPA Internet copyrighted material, EPA will provide electronically is EPA’s preferred method under the ‘‘Federal Register’’ listings at a reference to that material in the for receiving comments. Go directly to http://www.epa.gov/fedrgstr/. version of the comment that is placed in EPA Dockets at http://www.epa.gov/ Agency Web site. EDOCKET, EPA’s EPA’s electronic public docket. The edocket/, and follow the online electronic public docket and comment entire printed comment, including the instructions for submitting comments. system was replaced on November 25, copyrighted material, will be available Once in the system, select ‘‘search,’’ and 2005, by an enhanced federal-wide in the public docket. then key in docket ID number EPA-HQ- electronic docket management and Public comments submitted on OPP–2005–0298. The system is an comment system located at http:// computer disks that are mailed or ‘‘anonymous access’’ system, which www.regulations.gov. Follow the online delivered to the docket will be means EPA will not know your identity, instructions. transferred to EPA’s electronic public e-mail address, or other contact An electronic version of the public docket. Public comments that are information unless you provide it in the docket is available through EPA’s mailed or delivered to the docket will be body of your comment. electronic public docket and comment scanned and placed in EPA’s electronic ii. E-mail. Comments may be sent by system, EPA Dockets. You may use EPA public docket. Where practical, physical e-mail to [email protected], Dockets at http://www.epa.gov/edocket/ objects will be photographed, and the Attention: Docket ID Number EPA-HQ- to submit or view public comments, to photograph will be placed in EPA’s OPP–2005–0298. In contrast to EPA’s access the index listing of the contents electronic public docket along with a electronic public docket, EPA’s e-mail of the official public docket, and to brief description written by the docket system is not an ‘‘anonymous access’’ access those documents in the public staff. system. If you send an e-mail comment docket that are available electronically. directly to the docket without going Although not all docket materials may C. How and to Whom Do I Submit through EPA’s electronic public docket, be available electronically, you may still Comments? EPA’s e-mail system automatically access any of the publicly available You may submit comments captures your e-mail address. E-mail docket materials through the docket electronically, by mail, or through hand addresses that are automatically facility identified in Unit I.B.1. Once in delivery/courier. To ensure proper captured by EPA’s e-mail system are the system, select ‘‘search,’’ then key in receipt by EPA, identify the appropriate included as part of the comment that is the appropriate docket ID number. docket ID number in the subject line on placed in the official public docket, and Certain types of information will not the first page of your comment. Please made available in EPA’s electronic be placed in the EPA Dockets. ensure that your comments are public docket. Information claimed as CBI and other submitted within the specified comment iii. Disk or CD ROM. You may submit information whose disclosure is period. Comments received after the comments on a disk or CD ROM that restricted by statute, which is not close of the comment period will be you mail to the mailing address included in the official public docket, marked ‘‘late.’’ EPA is not required to identified in Unit I.C.2. These electronic will not be available for public viewing consider these late comments. If you submissions will be accepted in in EPA’s electronic public docket. EPA’s wish to submit CBI or information that WordPerfect or ASCII file format. Avoid policy is that copyrighted material will is otherwise protected by statute, please the use of special characters and any not be placed in EPA’s electronic public follow the instructions in Unit I.D. Do form of encryption. docket but will be available only in not use EPA Dockets or e-mail to submit 2. By mail. Send your comments to: printed, paper form in the official public CBI or information protected by statute. Public Information and Records docket. To the extent feasible, publicly 1. If you submit an electronic Integrity Branch (PIRIB) (7502C), Office available docket materials will be made comment as prescribed in this unit, EPA of Pesticide Programs (OPP), available in EPA’s electronic public recommends that you include your Environmental Protection Agency, 1200 docket. When a document is selected name, mailing address, and an e-mail Pennsylvania Ave., NW., Washington, from the index list in EPA Dockets, the address or other contact information in DC 20460–0001, Attention: Docket ID system will identify whether the the body of your comment. Also include Number EPA-HQ-OPP–2005–0298. document is available for viewing in this contact information on the outside 3. By hand delivery or courier. Deliver EPA’s electronic public docket. of any disk or CD ROM you submit, and your comments to: Public Information Although not all docket materials may in any cover letter accompanying the and Records Integrity Branch (PIRIB), be available electronically, you may still disk or CD ROM. This ensures that you Office of Pesticide Programs (OPP), access any of the publicly available can be identified as the submitter of the Environmental Protection Agency, Rm. docket materials through the docket comment and allows EPA to contact you 119, Crystal Mall #2, 1801 S. Bell St., facility identified in Unit I.B.1. EPA in case EPA cannot read your comment Arlington, VA, Attention: Docket ID intends to work towards providing due to technical difficulties or needs Number EPA-HQ-OPP–2005–0298. Such electronic access to all of the publicly further information on the substance of deliveries are only accepted during the available docket materials through your comment. EPA’s policy is that EPA docket’s normal hours of operation as EPA’s electronic public docket. will not edit your comment, and any identified in Unit I.B.1.
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00017 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74005
D. How Should I Submit CBI to the section 408 of the Federal Food, Drug, and pests, Reporting and recordkeeping Agency? and Cosmetic Act (FFDCA), 21 U.S.C. requirements. Do not submit information that you 346a, proposing the establishment of regulations in 40 CFR part 180 for Dated: December 1, 2005. consider to be CBI electronically Donald R. Stubbs, through EPA’s electronic public docket residues of the insecticide clothianidin Acting Director, Registration Division, Office or by e-mail. You may claim in or on cotton, undelinted seed and cotton, gin byproducts. EPA has of Pesticide Programs. information that you submit to EPA as [FR Doc. 05–23975 Filed 12–13–05; 8:45 am] CBI by marking any part or all of that determined that this pesticide petition BILLING CODE 6560–50–S information as CBI (if you submit CBI contains data or information regarding on disk or CD ROM, mark the outside the elements set forth in FFDCA section of the disk or CD ROM as CBI and then 408(d)(2); however, EPA has not fully FEDERAL COMMUNICATIONS identify electronically within the disk or evaluated the sufficiency of the COMMISSION CD ROM the specific information that is submitted data at this time or whether CBI). Information so marked will not be the data support granting of the pesticide petition. Additional data may Notice of Public Information disclosed except in accordance with Collection(s) Being Reviewed by the procedures set forth in 40 CFR part 2. be needed before EPA rules on this pesticide petition. Federal Communications Commission In addition to one complete version of for Extension Under Delegated Pursuant to 40 CFR 180.7(f), a the comment that includes any Authority information claimed as CBI, a copy of summary of the petition, prepared by the comment that does not contain the the petitioner along with a description November 29, 2005. information claimed as CBI must be of the analytical methods available for SUMMARY: The Federal Communications submitted for inclusion in the public the detection and measurement of the Commission, as part of its continuing docket and EPA’s electronic public pesticide chemical residues is available effort to reduce paperwork burden docket. If you submit the copy that does on EPA’s Electronic Docket at http:// invites the general public and other not contain CBI on disk or CD ROM, www.epa.gov/edocket. To locate this Federal agencies to take this mark the outside of the disk or CD ROM information, on the home page of EPA’s opportunity to comment on the clearly that it does not contain CBI. Electronic Docket select ‘‘Quick Search’’ following information collection(s), as Information not marked as CBI will be and type the OPP docket ID number for required by the Paperwork Reduction included in the public docket and EPA’s the pesticide petition (as specified in Act of 1995, Public Law 104–13. An electronic public docket without prior Unit I.B.1.) in the search field. Once the agency may not conduct or sponsor a notice. If you have any questions about search has located the docket, clicking collection of information unless it CBI or the procedures for claiming CBI, on the ‘‘Docket ID’’ will bring up a list displays a currently valid control please consult the person listed under of all documents in the docket for the number. No person shall be subject to FOR FURTHER INFORMATION CONTACT. pesticide including the petition any penalty for failing to comply with summary. a collection of information subject to the E. What Should I Consider as I Prepare Paperwork Reduction Act (PRA) that New Tolerance My Comments for EPA? does not display a valid control number. You may find the following PP 5F6908. Bayer CropScience, 2 Comments are requested concerning (a) suggestions helpful for preparing your T.W. Alexander Drive, Research whether the proposed collection of comments: Triangle Park, NC 27709, proposes to information is necessary for the proper 1. Explain your views as clearly as establish a tolerance for residues of the performance of the functions of the possible. insecticide clothianidin in or on raw Commission, including whether the 2. Describe any assumptions that you agricultural commodities cotton, information shall have practical utility; used. undelinted seed at 0.01 parts per (b) the accuracy of the Commission’s 3. Provide copies of any technical million (ppm); and cotton, gin burden estimate; (c) ways to enhance information and/or data you used that byproducts at 0.01 ppm. In plants and the quality, utility, and clarity of the support your views. plant products, the residue of concern, information collected; and (d) ways to 4. If you estimate potential burden or parent clothianidin, can be determined minimize the burden of the collection of costs, explain how you arrived at the using High Performance Liquid information on the respondents, estimate that you provide. Chromatography (HPLC) with including the use of automated 5. Provide specific examples to Electrospray Mass Spectrometry/Mass collection techniques or other forms of illustrate your concerns. Spectrometry Detection (MS/MS information technology. 6. Make sure to submit your detection). In an extraction efficiency DATES: Persons wishing to comment on comments by the deadline in this testing, the plant residues method has this information collection should notice. also demonstrated the ability to extract submit comments February 13, 2006. If 7. To ensure proper receipt by EPA, aged clothianidin residue. Although the you anticipate that you will be be sure to identify the docket ID number plant residues Liquid Chromatography submitting comments, but find it assigned to this action and the pesticide (LC)-MS/MS method is highly suitable difficult to do so within the period of petition number of the summary in the for enforcement method, an LC- time allowed by this notice, you should subject line on the first page of your Ultraviolet (UV) method has also been advise the contact listed below as soon response. It would also be helpful if you developed which is suitable for as possible. provided the name, date, and Federal enforcement (monitoring) purposes in ADDRESSES: You may submit your Register citation related to your all relevant matrices. Paperwork Reduction Act (PRA) comments by e-mail or U.S. postal mail. comment. List of Subjects To submit you comments by e-mail send II. What Action Is the Agency Taking? Environmental protection, them to: [email protected]. To submit your EPA is printing the summary of the Agricultural commodities, Feed comments by U.S. mail, mark it to the pesticide petition received under additives, Food additives, Pesticides attention of Judith B. Herman, Federal
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00018 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74006 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
Communications Commission, 445 12th Needs and Uses: The recordkeeping Number of Respondents: 1,000. Street, SW., Room 1–C804, Washington, requirement contained in § 97.213 Estimated Time Per Response: 2 DC 20554. consists of posting a photocopy of the hours. FOR FURTHER INFORMATION CONTACT: For amateur station license, a label with the Frequency of Response: additional information about the name, address, and telephone number of Recordkeeping requirement. information collection(s) send an e-mail the station licensee, and the name of at Total Annual Burden: 2,000 hours. to [email protected] or contact Judith B. least one authorized control operator. Annual Cost Burden: N/A. Herman at 202–418–0214. This requirement is necessary so that Privacy Act Impact Assessment: N/A. Needs and Uses: The recordkeeping SUPPLEMENTARY INFORMATION: quick resolution of any harmful requirement contained in § 80.413 is OMB Control No.: 3060–0202. interference problems can be identified Title: Section 87.37, Developmental and to ensure that the station is necessary to document the number and License. operating in accordance with the type of transmitters operating under an Form No.: N/A. Communications Act of 1934, as on-board station license. The Type of Review: Extension of a amended. The information is used by information is used by FCC staff during currently approved collection. FCC staff during inspections and inspections and investigations to Respondents: Individuals or investigations to assure that remotely determine what mobile units and households, business or other for-profit, controlled amateur radio stations are repeaters are associated with on-board not-for-profit institutions, and state, licensed in accordance with applicable stations aboard a particular vessel. If local or tribal government. rules, statutes and treaties. In the this information were not collected, no Number of Respondents: 12. absence of this recordkeeping means would be available to determine Estimated Time Per Response: 8 requirement, field inspections and if this type of radio equipment is hours. investigations related to harmful authorized or who is responsible for its Frequency of Response: Annual interference could be severely hampered operation. Enforcement and frequency reporting requirement. and needlessly prolonged due to management programs would be Total Annual Burden: 96 hours. inability to quickly obtain vital negatively affected. Annual Cost Burden: N/A. information about a remotely controlled OMB Control No.: 3060–0297. Privacy Act Impact Assessment: N/A. station. Title: Section 80.503, Cooperative Use Needs and Uses: The requirement in OMB Control No.: 3060–0259. of Facilities. § 87.37 is necessary to enable the Title: Section 90.263, Substitution of Form No.: N/A. Commission to gather data on the Frequencies Below 25 MHz. Type of Review: Extension of a results of developmental programs Form No.: N/A. currently approved collection. conducted in the Aviation Service for Type of Review: Extension of a Respondents: Individuals or which developmental authorizations currently approved collection. households, business or other for profit, have been issued. The data is required Respondents: Business or other for not-for-profit institutions, and state, to determine whether such profit and state, local or tribal local or tribal government. developmental authorizations should be government. Number of Respondents: 100. renewed and/or whether rulemaking Number of Respondents: 60. Estimated Time Per Response: 16 proceeding should be initiated to Estimated Time Per Response: .5 hours. provide generally for such operations in hours. Frequency of Response: the Aviation Service. The information is Frequency of Response: On occasion Recordkeeping requirement. used by Commission staff to determine reporting requirement. Total Annual Burden: 1,600 hours. the merits of the program for which a Total Annual Burden: 30 hours. Annual Cost Burden: N/A. developmental authorization was Annual Cost Burden: N/A. Privacy Act Impact Assessment: N/A. granted. If such information were not Privacy Act Impact Assessment: N/A. Needs and Uses: The recordkeeping collected, the value of developmental Needs and Uses: Section 90.263 requirements contained in § 80.503 are programs in the Aviation Service would requires applicants proposing necessary to ensure licensees which be severely limited. The Commission operations in certain frequency bands share private facilities operate within would have little, if any, information below 25 MHz to submit supplemental the specified scope of service, on a non- available regarding the advantages and information showing such frequencies profit basis, and do not function as disadvantages of the subject are necessary from a safety of life communications common carriers developmental operations. standpoint, and information regarding providing ship-shore public correspondence services. The OMB Control No.: 3060–0222. minimum necessary hours of operation. information is used by FCC staff during Title: Section 97.213, Remote Control This requirement will be used by inspections and investigations to insure of a Station. Commission staff in evaluating the Form No.: N/A. applicant’s need for such frequencies compliance with applicable rules. If this Type of Review: Extension of a and the interference potential to other information was not available, currently approved collection. stations operating on the proposed enforcement efforts could be hindered, Respondents: Individuals or frequencies. frequency congestion in certain bands households and business or other for OMB Control No.: 3060–0264. could increase, and the financial profit. Title: Section 80.413, On-Board viability of some public coast Number of Respondents: 500. Station Equipment Records. radiotelephone stations could be Estimated Time Per Response: .2 Form No.: N/A. threatened. hours (12 minutes). Type of Review: Extension of a OMB Control No.: 3060–0931. Frequency of Response: currently approved collection. Title: Maritime Mobile Service Recordkeeping requirement. Respondents: Individuals or Identity (MMSI). Total Annual Burden: 100 hours. households, business or other for profit, Form No.: N/A. Annual Cost Burden: N/A. not-for-profit institutions, and state, Type of Review: Extension of a Privacy Act Impact Assessment: N/A. local or tribal government. currently approved collection.
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00019 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74007
Respondents: Individuals or Respondents: Business or other for FEDERAL COMMUNICATIONS households, business or other for profit profit, not-for-profit institutions, and COMMISSION and Federal Government. state, local or tribal government. Number of Respondents: 2,000. Number of Respondents: 50 Notice of Public Information Estimated Time Per Response: .5 respondents; 213 responses. Collection(s) Being Reviewed by the hours. Estimated Time Per Response: 5 Federal Communications Commission, Frequency of Response: On occasion hours. Comments Requested reporting requirement and third party Frequency of Response: Quarterly, November 28, 2005. disclosure requirement. semi-annual and one-time reporting SUMMARY: Total Annual Burden: 1,000 hours. requirements, third party disclosure The Federal Communications Annual Cost Burden: N/A. requirement and recordkeeping Commission, as part of its continuing Privacy Act Impact Assessment: N/A. requirement. effort to reduce paperwork burden Needs and Uses: This information invites the general public and other Total Annual Burden: 1,202 hours. collection is necessary to require owners Federal agencies to take this Annual Cost Burden: N/A. of marine VHF radios with Digital opportunity to comment on the Selective Calling (DSC) capability to Privacy Act Impact Assessment: N/A. following information collection(s), as register information such as name, Needs and Uses: The Commission required by the Paperwork Reduction address, type of vessel with a private sought and received emergency OMB Act (PRA) of 1995, Public Law 104–13. entity issuing marine mobile service approval for this collection. However, An agency may not conduct or sponsor identities (MMSI). The information since OMB only grants emergency OMB a collection of information unless it would be used by search and rescue approval for six months, the displays a currently valid control personnel to identify vessels in distress Commission is seeking extension of this number. No person shall be subject to and to select the proper rescue units and information collection (no change in any penalty for failing to comply with search methods. The information is requirements) in order to obtain the full a collection of information subject to the used by the private entities to maintain three year clearance from OMB. Paperwork Reduction Act that does not a database used to provide information The Commission released an order display a valid control number. about the vessel owner in distress using (FCC 05–181) finding that certain Tier Comments are requested concerning (a) marine VHF radios with DSC capability. III carriers did not sufficiently support whether the proposed collection of If the collection were not conducted, the their requests for waiver of the E911 information is necessary for the proper U.S. Coast Guard would not have access rules, but providing the carriers with performance of the functions of the to this information which would additional time, until July 21, 2006, to Commission, including whether the increase the time needed to complete a augment the record to show a clear path information shall have practical utility; search and rescue operation. to full compliance with the E911 (b) the accuracy of the Commission’s OMB Control No.: 3060–0936. requirements. The Commission also burden estimate; (c) ways to enhance Title: Section 95.1215, Disclosure imposed conditions and required Tier the quality, utility, and clarity of the Policies and Section 95.1217, Labeling III carriers to file separate status reports information collected; and (d) ways to Requirements. by November 21, 2005, and minimize the burden of the collection of Form No.: N/A. commencing February 1, 2006, information on the respondents, Type of Review: Extension of a additional status reports on a quarterly including the use of automated currently approved collection. basis, for a two year period. collection techniques or other forms of Respondents: Business or other for In addition, on October 28, 2005 (FCC information technology. profit and not-for-profit institutions. 05–182) and on November 3, 2005 (FCC DATES: Number of Respondents: 20. 05–188), in response to requests for Written Paperwork Reduction Estimated Time Per Response: 1 hour. relief submitted by certain Tier III Act (PRA) comments should be Frequency of Response: On occasion carriers, the Commission released orders submitted on or before February 13, reporting requirement. that granted, in part, limited extensions 2006. If you anticipate that you will be Total Annual Burden: 20 hours. of the December 31, 2005 requirement, submitting comments, but find it Annual Cost Burden: N/A. subject to conditions, and required Tier difficult to do so within the period of Privacy Act Impact Assessment: N/A. III carriers to file status reports on a time allowed by this notice, you should Needs and Uses: The information quarterly basis, for a two year period advise the contact listed below as soon collection requires manufacturers of beginning on February 1, 2006. Further as possible. transmitters for the Medical Implant FCC 05–188 required one Tier III carrier, ADDRESSES: You may submit your Communications Service (MICS) to in addition to the quarterly reporting Paperwork Reduction Act (PRA) include with each transmitting device a requirements, to submit a compliance comments by e-mail or U.S. postal mail. statement regarding harmful plan by November 3, 2006. To submit your comments by e-mail interference and to label the device in The Commission will use the send them to: [email protected]. To submit a conspicuous location on the device. information submitted by Tier III your comments by U.S. mail, mark it to The requirements will allow use of carriers subject to reporting the attention of Judith B. Herman, potential life-saving medical technology requirements to ensure that they comply Federal Communications Commission, without causing interference to other with the Commission’s E911 445 12th Street, SW., Room 1–C804, users of the 402–405 MHz band. requirements and the terms of the Washington, DC 20554. OMB Control No.: 3060–1004. underlying orders addressing their FOR FURTHER INFORMATION CONTACT: For Title: Revision of the Commission’s requests for waiver relief. additional information about the Rules to Ensure Compatibility with Federal Communications Commission. information collection(s) send an e-mail Enhanced 911 Emergency Calling Marlene H. Dortch, to [email protected] or contact Judith B. Systems. Herman at 202–418–0214. Form No.: N/A. Secretary. Type of Review: Extension of a [FR Doc. 05–23858 Filed 12–13–05; 8:45 am] SUPPLEMENTARY INFORMATION: currently approved collection. BILLING CODE 6712–01–P OMB Control No.: 3060–0690.
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00020 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74008 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
Title: Amendment of the FEDERAL COMMUNICATIONS Title: Section 73.1510, Experimental Commission’s Rules Regarding the 37.0– COMMISSION Authorizations. 38.6 GHz and 38.6–40.0 GHz Bands, Form Number: Not applicable. Third Notice of Proposed Rulemaking. Notice of Public Information Type of Review: Extension of a Collection(s) Being Reviewed by the currently approved collection. Form No.: N/A. Federal Communications Commission Respondents: Business or other for- Type of Review: Extension of a for Extension Under Delegated profit entities. currently approved collection. Authority Number of Respondents: 250. Estimated Time per Response: 0.25 Respondents: Business or other for- December 1, 2005. hours. profit, not-for-profit institutions, and SUMMARY: The Federal Communications Frequency of Response: On occasion state, local, or tribal government. Commission, as part of its continuing reporting requirement. Number of Respondents: 700 effort to reduce paperwork burden Total Annual Burden: 1,087 hours. (approximately 4 applicants for each of invites the general public and other Total Annual Cost: $179,000. the 175 license areas). Federal agencies to take this Privacy Impact Assessment: No opportunity to comment on the impact(s). Estimated Time Per Response: 300 Needs and Uses: 47 CFR 73.1510 hours per auction bidder. following information collection(s), as required by the Paperwork Reduction requires that a licensee of an AM, FM, Frequency of Response: Every 10 year Act (PRA) of 1995, Public Law 104–13. and TV broadcast station to file an reporting requirement. An agency may not conduct or sponsor informal application with the FCC to Total Annual Burden: 2,100 hours. a collection of information unless it request an experimental authorization to conduct technical experimentation Total Annual Cost: $315,000. displays a currently valid control number. No person shall be subject to directed toward improvement of the Privacy Act Impact Assessment: N/A. any penalty for failing to comply with technical phases of operation and Needs and Uses: The Commission a collection of information subject to the service. This request shall describe the proposes to issue geographic area Paperwork Reduction Act that does not nature and purpose of experimentation licenses for the 37.0–38.6 GHz band, or display a valid control number. to be conducted, the nature of the experimental signal transmission, and in the alternative, seeks comment on the Comments are requested concerning (a) the proposed hours and duration of the possibility of using a first-come, first- whether the proposed collection of information is necessary for the proper experimentation. The data is used by served link-by-link registration FCC staff to maintain complete approach comparable to the 70/80/90 performance of the functions of the Commission, including whether the technical information about a broadcast GHz Report and Order. In that station and to ensure that such proceeding, the Commission decided to information shall have practical utility; (b) the accuracy of the Commission’s experimentation does not cause issue non-exclusive nationwide licenses interference to other broadcast stations. conditioned upon site and path-specific burden estimate; (c) ways to enhance the quality, utility, and clarity of the Federal Communications Commission. coordination wherein many service information collected; and (d) ways to providers would engineer their systems Marlene H. Dortch, minimize the burden of the collection of Secretary. to operate in close proximity, without information on the respondents, causing mutual interference. In order to [FR Doc. 05–23860 Filed 12–13–05; 8:45 am] including the use of automated BILLING CODE 6712–10–M facilitate such coordination, the collection techniques or other forms of Commission adopted non-interference information technology. requirements and required all licensees DATES: Written Paperwork Reduction FEDERAL COMMUNICATIONS to register their facilities in a database Act (PRA) comments should be COMMISSION accessible to other licensees on a first- submitted on or before February 13, come, first-served basis. Although the 2006. If you anticipate that you will be Notice of Public Information Commission determined not to impose submitting comments, but find it Collection(s) Being Reviewed by the a limit to the number of non-exclusive difficult to do so within the period of Federal Communications Commission, nationwide licenses, licensees would be time allowed by this notice, you should Comments Requested required to construct individual links advise the contact listed below as soon November 30, 2005. within 12 months after registering them. as possible. SUMMARY: Our goal is to establish a flexible The Federal Communications ADDRESSES: You may submit your all Commission, as part of its continuing regulatory framework that would Paperwork Reduction Act (PRA) effort to reduce paperwork burden promote seamless deployment of a host comments by e-mail or U.S. postal mail. invites the general public and other of services and technologies in the 73 To submit your comments by e-mail Federal agencies to take this GHz and 42 GHz bands. We seek to send them to [email protected]. To submit opportunity to comment on the enhance opportunities for deployment your comments by U.S. mail, mark them following information collection(s), as of broadband wireless services, foster to the attention of Cathy Williams, required by the Paperwork Reduction effective competition, promote Federal Communications Commission, Act (PRA) of 1995, Public Law 104–13. innovation and further our efforts for Room 1–C823, 445 122th Street, SW., An agency may not conduct or sponsor consistent rule application regarding Washington, DC 20554. a collection of information unless it broadband wireless services. FOR FURTHER INFORMATION CONTACT: For displays a currently valid control Federal Communications Commission. additional information about the number. No person shall be subject to information collection(s) send an e-mail Marlene H. Dortch, any penalty for failing to comply with to [email protected] or contact Cathy a collection of information subject to the Secretary. Williams at (202) 418–2918. Paperwork Reduction Act that does not [FR Doc. 05–23859 Filed 12–13–05; 8:45 am] SUPPLEMENTARY INFORMATION: display a valid control number. BILLING CODE 6712–01–P OMB Control Number: 3060–0176. Comments are requested concerning (a)
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00021 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74009
whether the proposed collection of costs. Regulated cable operators submit advise the contact listed below as soon information is necessary for the proper this form to local franchising authorities as possible. performance of the functions of the (‘‘LFAs’’). FCC Form 1240 is filed by ADDRESSES: Direct all Paperwork Commission, including whether the cable operators seeking to adjust Reduction Act (PRA) comments to information shall have practical utility; maximum permitted rates for regulated Judith B. Herman, Federal (b) the accuracy of the Commission’s cable services to reflect changes in Communications Commission, Room 1– burden estimate; (c) ways to enhance external costs. Cable operators submit C804, 445 12th Street, SW., DC 20554 or the quality, utility, and clarity of the FCC Form 1240 to their respective local via the Internet to Judith- information collected; and (d) ways to franchising authorities to justify rates [email protected]. If you would like to minimize the burden of the collection of for the basis service tier and related obtain or view a copy of this information on the respondents, equipment or with the Commission (in information collection, you may do so including the use of automated situations where the Commission has by visiting the FCC PRA Web page at: collection techniques or other forms of assumed jurisdiction). http://www.fcc.gov/omd/pra. information technology. Federal Communications Commission. FOR FURTHER INFORMATION CONTACT: For DATES: Written Paperwork Reduction Marlene H. Dortch, additional information or copies of the Act (PRA) comments should be Secretary. information collection(s), contact Judith submitted on or before February 13, [FR Doc. 05–23861 Filed 12–13–05; 8:45 am] B. Herman at 202–418–0214 or via the 2006. If you anticipate that you will be BILLING CODE 6712–10–M Internet at [email protected]. submitting comments, but find it SUPPLEMENTARY INFORMATION: difficult to do so within the period of OMB Control No.: 3060–0686. time allowed by this notice, you should FEDERAL COMMUNICATIONS Title: Streamlining the International advise the contact listed below as soon COMMISSION Section 214 Authorization Process and as possible. Tariff Requirements. ADDRESSES: You may submit your all Notice of Public Information Form No.: N/A. Paperwork Reduction (PRA) comments Collection(s) Being Submitted for Type of Review: Revision of a by e-mail or U.S. postal mail. To submit Review to the Office of Management currently approved collection. your comments by e-mail send them to and Budget Respondents: Business or other for- [email protected]. To submit your comments profit. by U.S. mail, mark them to the attention November 25, 2005. Number of Respondents: 1,650 of Cathy Williams, Federal SUMMARY: The Federal Communications respondents; 3,603 responses. Communications Commission, Room 1– Commission, as part of its continuing Estimated Time Per Response: 1 C823, 445 12th Street, SW., Washington, effort to reduce paperwork burden hour–6,056 hours. DC 20554. invites the general public and other Frequency of Response: On occasion, Federal agencies to take this FOR FURTHER INFORMATION CONTACT: For annual, quarterly reporting opportunity to comment on the additional information about the requirements, third party disclosure following information collection(s), as information collection(s) send an e-mail requirement, and recordkeeping required by the Paperwork Reduction to [email protected] or contact Cathy requirement. Act (PRA) of 1995, Public Law 104–13. Williams at (202) 418–2918. Total Annual Burden: 148,053 hours. An agency may not conduct or sponsor SUPPLEMENTARY INFORMATION: Total Annual Cost: $16,162,000. a collection of information unless it Privacy Act Impact Assessment: N/A. OMB Control Number: 3060–0685. displays a currently valid control Title: Updating Maximum Permitted Needs and Uses: The Commission is number. No person shall be subject to submitting this revised information Rates for Regulated Services and any penalty for failing to comply with Equipment, FCC Form 1210; Annual collection to OMB because we plan to a collection of information subject to the develop four new Section 214 Updating of Maximum Permitted Rates Paperwork Reduction Act (PRA) that for Regulated Cable Services, FCC Form applications. They are: (1) International does not display a valid control number. Telecommunications Certificate (ITC) 1240. Comments are requested concerning (a) Form Number: FCC Form 1210 and Agreement; (2) ITC Modification; (3) ITC whether the proposed collection of FCC Form 1240. Other Filings; and (4) Foreign Carrier information is necessary for the proper Type of Review: Revision of a Notification. The Commission is also performance of the functions of the currently approved collection. requesting continued OMB approval of Respondents: Business or other for- Commission, including whether the the existing information collections profit entities; State, Local or Tribal information shall have practical utility; previously approved by OMB. Government. (b) the accuracy of the Commission’s After the new applications have been Number of Respondents: 3,400. burden estimate; (c) ways to enhance developed, they will be filed in the Estimated Time per Response: 1 hour the quality, utility, and clarity of the International Bureau Filing System to 15 hours. information collected; and (d) ways to (IBFS). We do not know the specific Frequency of Response: Annual minimize the burden of the collection of time frame for the development of each reporting requirements; Quarterly information on the respondents, application. However, we estimate that reporting requirement; Third party including the use of automated the projected completion date for all disclosure requirement. collection techniques or other forms of Section 214 license applications is Total Annual Burden: 44,800 hours. information technology. December 31, 2008. The development of Total Annual Cost: $642,500. DATES: Written Paperwork Reduction the applications is contingent upon the Privacy Impact Assessment: No Act (PRA) comments should be availability of budget funds, human impact(s). submitted on or before January 13, 2006. resources and other factors. The annual Needs and Uses: Cable operators use If you anticipate that you will be burden hours and costs are unknown at FCC Form 1210 to file for adjustments submitting PRA comments, but find it this time because the forms have not in maximum permitted rates for difficult to do so within the period of been developed by the Commission. regulated services to reflect external time allowed by this notice, you should Therefore, this submission to OMB does
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00022 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74010 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
not reflect any changes in estimated FEDERAL COMMUNICATIONS Title: Section 78.33, Special burden to the public. COMMISSION Temporary Authority (Cable Television Relay Stations). OMB Control No.: 3060–0704. Notice of Public Information Form Number: Not applicable. Title: Policy and Rules Concerning the Collection(s) Being Reviewed by the Type of Review: Extension of a Interstate, Interexchange Marketplace; Federal Communications Commission currently approved collection. Implementation of Section 254(g) of the for Extension Under Delegated Respondents: Business or other for- Communications Act of 1934, as Authority profit entities. amended, CC Docket No. 96–61. Number of Respondents: 35. December 5, 2005. Estimated Time per Response: 4 Form No.: N/A. SUMMARY: The Federal Communications hours. Type of Review: Revision of a Commission, as part of its continuing Frequency of Response: On occasion currently approved collection. effort to reduce paperwork burden reporting requirement. invites the general public and other Total Annual Burden: 140 hours. Respondents: Business or other for- Federal agencies to take this Total Annual Cost: $5,250. profit. opportunity to comment on the Privacy Impact Assessment: No Number of Respondents: 519. following information collection(s), as impact(s). Needs and Uses: 47 CFR 78.33 Estimated Time Per Response: .5 required by the Paperwork Reduction permits cable television relay stations hours–120 hours. Act (PRA) of 1995, Public Law 104–13. An agency may not conduct or sponsor (CARS) operators to file informal Frequency of Response: On occasion a collection of information unless it requests for special temporary authority and annual reporting requirements, displays a currently valid control (STA) to install and operate equipment recordkeeping requirement, and third number. No person shall be subject to in a manner different than the way party disclosure requirement. any penalty for failing to comply with normally authorized in the station Total Annual Burden: 84,337 hours. a collection of information subject to the license. The special temporary authority also may be used by cable operators to Total Annual Cost: N/A. Paperwork Reduction Act that does not display a valid control number. conduct field surveys to determine Privacy Act Impact Assessment: N/A. Comments are requested concerning (a) necessary data in connection with a Needs and Uses: The Commission is Whether the proposed collection of formal application for installation of a submitting this information collection to information is necessary for the proper radio system, or to conduct equipment, OMB for revision. The Commission performance of the functions of the program, service, and path tests. revised this collection by eliminating a Commission, including whether the Federal Communications Commission. one-time Tariff Cancellation information shall have practical utility; Marlene H. Dortch, Requirement in which nondominant (b) the accuracy of the Commission’s Secretary. interexchange carriers were forborne burden estimate; (c) ways to enhance [FR Doc. 05–23978 Filed 12–13–05; 8:45 am] from filing tariffs except as stipulated in the quality, utility, and clarity of the BILLING CODE 6712–10–P the Order on Reconsideration. information collected; and (d) ways to Elimination of this one time minimize the burden of the collection of requirement reduced the total annual information on the respondents, FEDERAL COMMUNICATIONS burden by 74,598 hours. including the use of automated COMMISSION collection techniques or other forms of The information collected under the information technology. Notice of Public Information information disclosure requirement and DATES: Written Paperwork Reduction Collection(s) Being Submitted to OMB the Internet posting requirement must Act (PRA) comments should be for Review and Approval be disclosed to the public to ensure that submitted on or before February 13, December 7, 2005. consumers have access to the 2006. If you anticipate that you will be SUMMARY: The Federal Communications information they need to select a submitting comments, but find it Commissions, as part of its continuing telecommunications carrier and bring to difficult to do so within the period of effort to reduce paperwork burden the Commission’s attention any possible time allowed by this notice, you should invites the general public and other violations of the Communications Act advise the contact listed below as soon Federal agencies to take this without a specific public disclosure as possible. requirement. The information collected opportunity to comment on the ADDRESSES: You may submit your all following information collection, as under the recordkeeping and other Paperwork Reduction Act (PRA) required by the Paperwork Reduction requirements will be used by the comments by e-mail or U.S. postal mail. Act of 1995, Public Law 104–13. An Commission to ensure that affected To submit your comments by e-mail agency may not conduct or sponsor a interexchange carrier fulfill their send them to [email protected]. To submit collection of information unless it obligations under the Communications your comments by U.S. mail, mark them displays a currently valid control Act, as amended. to the attention of Cathy Williams, number. No person shall be subject to Federal Communications Commission. Federal Communications Commission, any penalty for failing to comply with Room 1–C823, 445 12th Street, SW., a collection of information subject to the Marlene H. Dortch, Washington, DC 20554. Secretary. Paperwork Reduction Act (PRA) that FOR FURTHER INFORMATION CONTACT: For does not display a valid control number. [FR Doc. 05–23878 Filed 12–13–05; 8:45 am] additional information about the Comments are requested concerning (a) BILLING CODE 6712–01–P information collection(s) send an e-mail whether the proposed collection of to [email protected] or contact Cathy information is necessary for the proper Williams at (202) 418–2918. performance of the functions of the SUPPLEMENTARY INFORMATION: OMB Commission, including whether the Control Number: 3060–0288. information shall have practical utility;
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00023 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74011
(b) the accuracy of the Commission’s competition and those not subject to available for inspection and copying burden estimate; (c) ways to enhance effective competition. The data needed during normal business hours in the the quality, utility, and clarity of the to prepare this report is collected using FCC Reference Center, Room CY–A– information collected; and (d) ways to the Annual Survey of Cable Industry 257, 445 12th Street, SW., Washington, minimize the burden of the collection of Prices. DC 20554. The complete text may also information on the respondents, Federal Communications Commission. be purchased from the Commission’s including the use of automated Marlene H. Dortch, duplicating contractor, Best Copy and collection techniques or other forms of Printing, Inc. (BCP), Portals II, 445 12th Secretary. information technology. Street, SW., Room CY–B402, [FR Doc. 05–24025 Filed 12–13–05; 8:45 am] DATES: Written comments should be Washington, DC. The complete item is BILLING CODE 6712–01–P submitted on or before January 13, 2006. also available on the Commission’s Web If you anticipate that you will be site at http://www.fcc.gov/wtb. submitting comments, but find it Background. The 2150–2160/62 MHz FEDERAL COMMUNICATIONS band is allocated for fixed and mobile difficult to do so within the period of COMMISSION time allowed by this notice, you should services and designated for Advanced 2 advise the contact listed below as soon [DA 05–3126] Wireless Services (AWS). In the BRS/ as possible. EBS R&O and FNPRM, the Commission Licensees of Broadband Radio Service designated spectrum in the new 2.5 GHz ADDRESSES: You may submit your Channels 1 and/or 2/2A; Must File Site BRS band plan for BRS Channels No. 1 comments by email or U.S. mail. To and Technical Data by December 27, and No. 2—2496–2502 MHz for BRS submit your comments by email send 2005 Channel No. 1 and 2618–2624 MHz for them to [email protected]. To submit your BRS Channel No. 2.3 The Commission comments by U.S. mail send them to AGENCY: Federal Communications also stated that the Transition Plan must Cathy Williams, Federal Commission. include plans for relocating the BRS Communications Commission, Room 1– ACTION: Notice. incumbents from spectrum that has C823, 445 12th Street, SW., Washington, SUMMARY: By this document, the Office been redesignated for BRS Channel No. DC 20554 and Kristy L. LaLonde, Office 1 and BRS Channel No. 2.4 Future AWS of Management and Budget (OMB), of Engineering and Technology (OET) and the Wireless Telecommunications licensees will be obligated to relocate Room 10236 NEOB, Washington, DC incumbent BRS operations in the 2150– 20503, (202) 395–3087 or via the Bureau (WTB) set forth the specific data that Broadband Radio Service (BRS) 1 2160/62 MHz band to comparable Internet at facilities, most likely within the newly [email protected]. licensees in the 2150–2160/62 MHz band must file along with the deadline restructured 2495–2690 MHz band. (The FOR FURTHER INFORMATION CONTACT: For date and procedures for filing this data Commission is currently seeking additional information about the on the Commission’s Universal comment on the details of this information collection(s) send an email Licensing System (ULS). The data will relocation process in ET Docket No. 00– 5 to [email protected] or contact Cathy assist in determining future AWS 258. ) Commission Order. Recently, the Williams at (202) 418–2918. If you licensees’ relocation obligations. would like to obtain a copy of this Commission concluded that reliable, DATES: Filing deadline is December 27, revised information collection, you may public data on each incumbent BRS 2005. do so by visiting the FCC PRA Web page system that will be subject to relocation at: http://www.fcc.gov/omd/pra. ADDRESSES: Federal Communications is essential well in advance of the Commission, 445 12th Street, SW., SUPPLMENTARY INFORMATION: planned auction of the 2150–2155 MHz Washington, DC 20554. 6 OMB Control Number: 3060–0647. band next year. The Commission also Title: Annual Survey of Cable FOR FURTHER INFORMATION CONTACT: Industry Prices. Mary Shultz, WTB, at (717) 338–2656 2 See Amendment of Part 2 of the Commission’s (for questions about the data collection) Rules to Allocate Spectrum Below 3 GHz for Mobile Form Number: Not applicable. and Fixed Services to Support the Introduction of Type of Review: Revision of a or Priya Shrinivasan, OET, at (202) 418– New Advanced Wireless Services, Including Third currently approved collection. 7005 (for questions about the underlying Generation Wireless Systems, ET Docket No. 00– Respondents: Business or other for- Commission Order). For additional ULS 258, Second Report and Order, 17 FCC Rcd 23193 information or assistance, go to http:// (2002), Eighth Report and Order and Fifth Notice profit entities; State, Local or Tribal of Proposed Rulemaking and Order, FCC 05–172 Government. esupport.fcc.gov. You may also call the (rel. Sept. 29, 2005) (AWS Allocation Eighth Report Number of Respondents: 758. FCC Support Center at (877) 480–3201 and Order, Fifth NPRM, and Order. See also Service Estimated Time per Response: 7 hours (TTY 202–414–1255) and select Option Rules for Advanced Wireless Services in the 1.7 GHz and 2.1 GHz Bands, WT Docket No. 02–353, per response. #2, Forms or Licensing Assistance. Report and Order, 18 FCC Rcd 25162 (2003) (recon. Frequency of Response: Annual SUPPLEMENTARY INFORMATION: This is a pending), modified by Order on Reconsideration, 20 reporting requirement. summary of the Commission’s Public FCC Rcd 14058 (2005). Total Annual Burden: 5,306 hours. Notice, released November 30, 2005. 3 BRS/EBS R&O and FNPRM, 19 FCC Rcd 14165, Total Annual Cost: None. 14184 paragraph 38. The full text of this Public Notice is 4 Id. at 14203 paragraph 88. Except in this Privacy Impact Assessment: No background paragraph, references to Channels 1 impact(s). 1 The Multipoint Distribution Service (MDS) was and/or 2/2A in this Public Notice refer to channel Needs and Uses: Section 623(k) of the renamed the Broadband Radio Service (BRS) in numbers under the pre-transition frequency Cable Television Consumer Protection 2004. See Amendment of Parts 1, 21, 73, 74 and 101 assignments. See 47 CFR 27.5(i)(1). and Competition Act of 1992 requires of the Commission’s Rules to Facilitate the 5 AWS Allocation Eighth Report and Order, Fifth Provision of Fixed and Mobile Broadband Access, NPRM, and Order, paragraph 13. Comments in the Commission to publish an annual Educational and Other Advanced Services in the response to the Fifth NPRM were due on or before statistical report on average rates for 2150–2162 MHz and 2500–2690 MHz Bands, WT November 25, 2005, and reply comments must be basic cable service, cable programming Docket No. 03–66, Report and Order and Further filed on or before December 12, 2005. See 70 Fed. service, and equipment. The report must Notice of Proposed Rulemaking, 19 FCC Rcd 14165 Reg. 61752 (Oct. 26, 2005). (2004) (‘‘BRS/EBS R&O and FNPRM’’), recon. 6 AWS Allocation Eighth Report and Order, Fifth compare the prices charged by cable pending. Therefore, all former MDS licensees are NPRM, and Order, paragraph 53 (citing 47 U.S.C. operators subject to effective now referred to as BRS licensees. Continued
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00024 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74012 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
concluded that, because the BRS service MHz band must file along with the (ULS) to modify their BRS license(s). is currently licensed on the basis of deadline dates and procedures for filing These applications will be treated as geographic licensing areas, neither the this data electronically on the minor modifications that do not require Commission nor the public has reliable, Commission’s Universal Licensing payment of a fee if the requested up-to-date information on the System (ULS), where it will be available information is submitted without construction status and/or operational to the public. making additional changes to the parameters of each BRS system in the The Commission also noted that the license.11 2150–2160/62 MHz band that will be 60-day and 120-day filing dates will Facilities that require individual subject to relocation.7 Accordingly, the correspond to information collection licenses. Licensees are cautioned that Commission ordered BRS licensees to requirements for the ULS.10 adding a facility that requires an submit information on: Accordingly, the collection of individual license or changing the the locations and operating characteristics of information has two parts: (1) The technical parameters of a facility that is BRS systems (e.g., the location of base or collection of data on FCC Form 601 already individually licensed 12 may fixed stations by coordinates, tower heights, (Main Form and Schedules D & E) and cause the filing to be treated as a major power levels, etc.) in the 2150–2160/62 MHz (2) the collection of supplemental data modification and require payment of a band, on other system characteristics of BRS not currently collected on the FCC Form fee. incumbents (e.g., subscriber numbers and 601 for this service. The first data Licensees should take the following types of equipment used), and on categories of services provided (e.g., one-way or two- collection, on FCC Form 601, must be steps to initiate the electronic filing of way service, point-to-point or point-to- filed on or before December 27, 2005. A a modification application on ULS: multipoint operations, data or analog video second information collection is (1) Access the ULS homepage at service). We also will require BRS licensees proposed and is pending approval from http://wireless.fcc.gov/uls and click on to provide this information even if the the Office of Management and Budget Online Filing. spectrum is leased to third parties. Further, (OMB) under the Paperwork Reduction (2) Enter the FRN and CORES * * * we will require that BRS licensees, as Act of 1995 (see section III below). password of the licensee and click part of the information on system design in the band, provide the number of links Hence, there is currently no deadline for Submit. (including the connection between a base filing the data covered by the proposed (3) If the licensee has saved station and subscriber premises equipment) information collection request awaiting applications, it will be taken to a page within the system for both point-to-point and OMB approval. If OMB approves the titled ‘‘My Applications.’’ From this point-to-multipoint systems. To the extent second information collection, the FCC page it should click on My Licenses. If that a system uses both BRS channels 1 and will release a separate public notice that the licensee does not have any saved 2 as part of the same service (e.g., as a link announces the deadline for filing the applications, it will go directly to ‘‘My to a two-way data service), we will require second data collection. The instant that BRS licensees make special note of this Licenses,’’ a page listing the licensee’s when providing their system information.8 Public Notice nonetheless describes the call signs. second information collection so (4) Select the call sign of the license The Commission noted that the list licensees are aware of it as they gather to be modified. above was not inclusive and that the information for the first data collection. (5) Select Update from the right side information required would ultimately BRS Channel 1 and/or 2/2A licensees of the ‘‘License At a Glance’’ screen. be necessary in the context of relocation are advised that: (6) Select Modify License. negotiations. To assist in determining • Any data or certifications At this point, the licensee begins the scope of the new AWS entrants’ previously filed regarding the entering information onto the relocation obligations, the Commission construction status and/or operational application. ULS will take the licensee ordered BRS licensees in the 2150– parameters of a BRS system in the 2150– through a series of screens that collect 2160/62 MHz band to provide the 2160/62 MHz band is considered out-of- FCC Form 601 information. required data within 60 days and 120 date and is therefore deemed unreliable. On ULS, you must select the newly days of the effective date of its Order.9 • If a licensee has no constructed and created Attachment Type: ‘‘BRS The Commission directed and operational facilities, then no filing is Channel 1, 2, 2A Notification’’ and file authorized OET and WTB to issue required. such an attachment. public notices with the specific data • Failure to timely file data regarding To ensure that ULS correctly that BRS licensees in the 2150–2162 the construction status and/or identifies and processes your operational parameters of a BRS system application(s)—filed to provide the 154(i)). On December 29, 2004, the Commission formally notified the National Telecommunications (to assist in determining future AWS information detailed in the instant and Information Administration (NTIA) of the U.S. licensees’ relocation obligations) risks Public Notice—you must: Department of Commerce that the Commission prejudicing any right to seek relocation • On the Application Information intends to auction licenses for AWS in the 1710– or reimbursement for such constructed 1755 MHz and 2110–2155 MHz bands as early as screen, select ‘‘Yes’’ in response to the June 2006. See FCC to Commence Spectrum and operational facilities. Auction that will Provide American Consumers I. First Data Collection (Mandatory on 11 Licensees may make minor modifications to New Wireless Broadband Services, News Release, station authorizations, as defined in Section 1.929 (rel. Dec. 29, 2004). or Before December 27, 2005) of this part (other than pro forma transfers and 7 AWS Allocation Eighth Report and Order, Fifth A. Report Construction and Operational assignments), as a matter of right without prior NPRM, and Order, paragraph 53. See also 70 Fed. Commission approval. Where other rule parts Reg. 61747 (Oct. 26, 2005). Status of System(s) by Filing License- permit licensees to make permissive changes to 8 AWS Allocation Eighth Report and Order, Fifth Modification Application(s) on ULS technical parameters without notifying the NPRM, and Order, paragraph 53 (notes omitted). Commission (e.g., adding, modifying, or deleting The Commission also noted that the information Licensees operating on channels internal sites), no notification is required. For all submitted need not be signed under oath; however, within the 2150–2160/62 MHz bands other types of minor modifications (e.g., name, willful false statements made therein are are required to submit their information address, point of contact changes), licensees must punishable by fine and imprisonment, and by electronically by filing an application notify the Commission by filing FCC Form 601 appropriate administrative sanctions, including within thirty (30) days of implementing any such revocation of a station’s license. See id. at n.139 on the Universal Licensing System changes. See 47 CFR 1.947 (Modification of (citing 47 CFR 1.917(c)). licenses). 9 Id. 10 Id. 12 See 47 CFR 27.1207(b), 47 CFR 27.1209(b).
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00025 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74013
question ‘‘Is an attachment being filed completed, the licensee will begin polarization, gain and tilt. If an with this application?’’ entering information that is requested omnidirectional antenna is used, the • Upload an attachment at any time on FCC Form 601 Schedules D and E. licensee should enter 360 for the during the filing process following these The first two screens request azimuth and beamwidth. steps: information on Major Economic Area (3) Click Add Frequency. • Click on the Attachment link, and geographic band plan. Licensees (4) Enter information on frequency which is listed at the top of every online should click Continue to go through and power. The frequency should fall filing page. these screens without making any within the 2150–2160/62 MHz band. • Select the newly created changes. These screens will be followed (5) Click Continue. Attachment Type called ‘‘BRS Channel by a screen titled ‘‘Site Specific (6) Enter emission designator 1, 2, 2A Notification’’—and upload an Technical Data Summary.’’ From this information. attachment of this type.13 (7) Click Continue to go to the • screen the licensee has the option to Be sure to select Attachment Type either add technical information for a ‘‘Emission Designator Summary’’ ‘‘BRS Channel 1, 2, 2A Notification’’ new station or modify the technical screen. when attaching the file. Failure to information for any existing stations (8) Click Continue to go back to the include this attachment may result in that were already listed under your ‘‘Site Specific Technical Data the automated rejection of the geographic license. Summary’’ screen. application or a charge of an application Licensees must provide technical data To add a Mobile Station, follow these fee. for their own stations as well as for any steps: B. Form 601 Data constructed and operational stations of (1) Enter the coordinates and location their lessees. information for the station receiving the When entering information into the mobile/portable transmissions, e.g., a online filing system, licensees will find 1. Add Stations to Your License response station hub. that certain fields and questions To add a station(s) that is constructed (2) Enter ‘0’ as the radius. collected on the FCC Form 601 Main and operational in the 2150–2160/62 (3) Select Add Frequency. Form, Schedule D, and Schedule E must band under authority of your geographic (4) Enter frequency and power be completed or ULS edits will not area-wide BRS license, follow these information for the mobile/portable allow the licensee to continue to the steps: transmitters. The frequency should fall next screen. ULS will display a message a. Select Add Location from the ‘‘Site within the 2150–2160/62 MHz band. if a required field is left blank and Specific Technical Data Summary’’ (5) Select Continue. licensees will be given the opportunity screen. (6) Enter emission designator to go back to the screen and complete b. Enter applicable information information. the required fields. When a modification concerning the need for international (7) Click Continue to go to the is filed, license information is carried coordination, National Environmental ‘‘Emission Designator Summary’’ over to the application so it does not Policy Act (NEPA) and quiet zone and screen. have to be reentered, but licensees will click Continue. (8) Click Continue to go to the ‘‘Site have to enter required information that c. If the above issues do not apply to Specific Technical Data Summary’’ is missing from the license or specific to the location, ULS will generate a screen. the application. message indicating that site data is not 2. Ensure That Any Stations That Were Main Form. Initially, the licensee will required. The licensee should click OK enter information that is found on the Already Listed on Your License Are to continue filing site data. Accurate FCC Form 601 Main Form. The d. Select the type of location, Fixed or information consists of applicant and Mobile. If an operational station in the 2150– contact information; general Fixed should be selected if the 2150– 2160/62 MHz band already exists on information; application information; 2160/62 MHz band channel is being your license, you must also verify the alien ownership and basic qualification transmitted from a fixed or base station accuracy of this information before questions; and questions specific to the (downstream). filing the application. Licensees will Broadband Radio Service. Specifically, Mobile should be selected if the follow the steps listed above to initiate Item 55 asks whether the applicant 2150–2160/62 band channel is being the application and enter FCC Form 601 complies with several technical rules transmitted from a subscriber, mobile, information until they get to the ‘‘Site including section 27.55, which provides or portable station (upstream). Specific Technical Data Summary’’ that the predicted or measured median screen. If the information for the field strength at any location on the (Note: You do not have to provide the transmitter coordinates for any subscriber/ location is complete and accurate in geographical border of a licensee’s customer premises equipment. Report ULS, there is no need to enter service area shall not exceed the value upstream subscriber/customer premises information on the individual stations. specified in the rules unless the equipment under Mobile.) The licensee may click Continue and adjacent affected service area licensee(s) e. If Mobile is selected, the licensee proceed with submittal of the agree(s) to a different field strength.14 should select the Area of Operation application as explained in Part I, Schedules D & E. Once the FCC Form section 3, below. If the information for 601 Main Form information is Code of P (KMRA around a centerpoint). the station is missing or incorrect, the f. Click Continue. licensee must update the information 13 The attachment may consist of the before submitting the application. supplemental data collection outlined in Section II, To add a Fixed Location, follow these or if the supplemental information is not being steps: The licensee may click on the filed, a simple statement that the application is filed Enter information on location, location, antenna or frequency from the in response to the instant Public Notice. structure height and Antenna Structure ‘‘Site Specific Technical Summary’’ 14 See FCC Form 601 Item 55 citing 47 CFR 27.50 Registration. screen to update the information. Once (Power and antenna height limits), 47 CFR 27.55 (Signal strength limits), 47 CFR 27.1221 (1) Click Add Antenna. the information on the individual (Interference protection). See also 47 CFR (2) Enter antenna’s make, model, location, antenna or frequency screens 27.55(a)(4). center height, azimuth, beamwidth, is updated, the licensee may click
VerDate Aug<31>2005 16:30 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00026 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74014 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
Continue to return to the summary (3) For each station reported under this collection unless it displays a screen. Entering the location, antenna or the first data collection, the following currently valid OMB control number frequency data may trigger ULS edits receiver information. with this notice. that require entry of certain fields and/ (a) For a fixed point-to-point Æ The first data collection detailed in or Antenna Structure Registration transmitter: the receiver coordinates, this Public Notice has been assigned information. In addition, changing elevation and the receive antenna’s OMB control number 3060–0798, the information to a station that requires make, model, beamwidth, gain, filing deadline is December 27, 2005. Quiet Zone, NEPA or international azimuth, and height to center above Æ Currently, no OMB control number coordination may cause the application ground level. is assigned to the supplemental data to be treated as a major modification (Note: You do not have to provide the collection so you are not required to and require a fee. respond and there is no filing deadline. receiver coordinates for any subscriber/ • customer premises equipment.) The Commission has or will soon 3. Summary Screen; Error Messages; request OMB approval for the Certify and Submit the Application (b) For a mobile or portable supplemental data collection described transmitter: the receiver elevation, When all information for the in this Public Notice. covered service area, and the receive • individual locations is entered, click If OMB approves the supplemental antenna’s make, model, beamwidth, Continue to proceed to the ‘‘Summary’’ collection, we will issue another public gain, and height to center above ground. screen. If the system detects any errors, notice announcing the OMB control (c) For a fixed point-to-multipoint or a message will be displayed that directs number and the deadline for filing the base-to-mobile transmitter: the the licensee to go back to the relevant supplemental data. approximate coverage area and type of section of the application and correct receiving equipment. If separate receive Federal Communications Commission. the errors. When all errors are corrected, antennas are used, include the receive Lauren M. Van Wazer, click Continue to Certify. The licensee antenna’s make, model, beamwidth and Special Counsel. must sign application and click Submit gain. Catherine W. Seidel, Application to complete filing. Upon (4) Operational status of the station, Acting Chief, Wireless Telecommunications successful submittal, the licensee will including whether the station is Bureau. receive a confirmation screen listing the providing service to customers or [FR Doc. 05–23981 Filed 12–13–05; 8:45 am] application file number. students. BILLING CODE 6712–01–P II. Second, Supplemental Data (5) Type of equipment use by Collection (Optional Pending OMB subscribers associated with this station Approval—See Section III Below) (e.g. handheld device, fixed customer FEDERAL COMMUNICATIONS premises equipment). COMMISSION In order to determine the extent and (6) Number of subscribers associated [CG Docket No. 02–278; DA 05–2975] scope of operations in the 2150–2160/62 with the station as of November 1, 2005. MHz band, additional information (7) The type of application being Rules and Regulations Implementing beyond that collected on the FCC Form provided (e.g., video, broadband data, 601 for these services is required. the Telephone Consumer Protection backhaul). Act of 1991 Licensees will be required to submit this (8) For fixed point-to-multipoint information electronically by filing an systems: the number of links associated AGENCY: Federal Communications application on the Universal Licensing with the station. Commission. System (ULS) to modify their BRS • Licensees should also note in their ACTION: Notice; comments requested. license(s). Because this information is attachment if both BRS Channels 1 and not normally collected on ULS, 2 are used as part of the same service SUMMARY: In this document, the licensees will need to submit the (e.g., as a link to a two-way data Commission seeks comment on a information as an attachment to the service). petition for declaratory ruling filed by application. Licensees must enter the the Fax Ban Coalition (the ‘‘Coalition’’) required FCC Form 601 Main Form III. Important Information Concerning concerning the scope of the information even if they are submitting Your Rights Under the Paperwork Commission’s jurisdiction over only the attachment with no other Reduction Act of 1995 interstate communications under the changes. This Public Notice discusses two data Telephone Consumer Protection Act of On ULS, you must select the newly collections: the first is mandatory and 1991 (‘‘TCPA’’). In particular, the created Attachment Type: ‘‘BRS you must file the required data on or Coalition asks the Commission to: Channel 1, 2, 2A Notification’’ and file before December 27, 2005. The second Affirm that, under its general grant of the attachment described below—(see is optional unless and until approved by exclusive authority to regulate interstate pages 3–4 for ULS-filing instructions) the Office of Management and Budget communications, the Commission has The following information must be under the Paperwork Reduction Act of exclusive authority to regulate interstate included on the attachment for each 1995. This Public Notice describes the commercial fax messages; and find that operational station in the 2150–2160/62 supplemental data collection so section 17538.43 of the California MHz band. licensees have the option to gather the Business and Professions Code, and all (1) The ULS location number of the supplemental data along with the other State laws that purport to regulate station transmitting on frequencies in required data to minimize the need to interstate facsimile transmissions, are the 2150–2160/62 MHz band. The review similar records again if filing the preempted by the federal TCPA, 47 location number can be found on the supplemental data becomes mandatory U.S.C. 227. ‘‘Site Specific Technical Summary’’ in the future. DATES: Comments are due on or before screen. • You are not required to respond to January 13, 2006, and reply comments (2) Category of service (e.g., one-way a collection of information sponsored by are due on or before February 2, 2006. or two-way; fixed point-to-point, fixed the Federal government, and the ADDRESSES: You may submit comments, point-to-multipoint, base-to-mobile). government may not conduct or sponsor identified by [docket number and/or
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00027 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74015
rulemaking number], by any of the Street, SW., Room CY–A257, screen, filers should include their full following methods: Washington, DC 20554. Document DA name, U.S. Postal Service mailing • Federal eRulemaking Portal: http:// 05–2975, the Coalition’s submission, address, and the applicable docket or www.regulations.gov. Follow the and copies of subsequently filed rulemaking number. Parties may also instructions for submitting comments. documents in this matter may also be submit an electronic comment by • Federal Communications purchased from the Commission’s Internet e-mail. To get filing Commission’s Web site: http:// contractor at Portals II, 445 12th Street, instructions, filers should send an e- www.fcc.gov/cgb/ecfs/. Follow the SW., Room CY–B402, Washington, DC mail to [email protected], and include the instructions for submitting comments. 20554. Customers may contact the following words in the body of the • Mail: Parties who choose to file by Commission’s contractor at their Web message, ‘‘get form.’’ A sample form and paper should also submit their comment site http://www.bcpiweb.com or call 1– directions will be sent in response. on diskette. These diskettes should be 800–378–3160. A copy of the Coalition’s • Paper Filers: Parties who choose to submitted, along with three paper submission may also be found by file by paper must file an original and copies to Kelli Farmer, Consumer & searching ECFS at http://www.fcc.gov/ four copies of each filing. If more than Governmental Affairs Bureau, Policy cgb/ecfs (insert CG Docket No. 02–278 one docket or rulemaking number Division, 445 12th Street, SW., Room 5– into the proceeding block). appears in the caption of this A866, Washington, DC 20554. Such a To request materials in accessible proceeding, filers must submit two submission should be on a 3.5 inch formats for people with disabilities additional copies for each additional diskette formatted in an IBM compatible (Braille, large print, electronic files, docket or rulemaking number. Filings formatted using Word 97 or compatible audio format), send an e-mail to can be sent by hand or messenger software. The diskette should be [email protected] or call the Consumer & delivery, by commercial overnight accompanied by a cover letter and Governmental Affairs Bureau at 202– courier, or by first-class or overnight should be submitted in ‘‘read only’’ 418–0530 (voice), 202–418–0432 (TTY). U.S. Postal Service mail (although the mode. The diskette should be clearly Document DA 05–2975 can also be Commission continues to experience labeled with the commenter’s name, downloaded in Word or Portable delays in receiving U.S. Postal Service proceeding (including the lead docket Document Format (PDF) at http:// mail). All filings must be addressed to number in this case CG Docket No. 02– www.fcc.gov/cgb/policy. On July 3, the Commission’s Secretary, Office of 278), type of pleading (comment or 2003, the Commission released a Report the Secretary, Federal Communications reply comment), date of submission, and Order (2003 TCPA Order) which Commission. • and the name of the electronic file on published in the Federal Register on The Commission’s contractor will the diskette. The label should also July 25, 2003 (68 FR 44144) revising its receive hand-delivered or messenger- include the following phrase: ‘‘Disk rules under the TCPA. In the 2003 TCPA delivered paper filings for the Copy—Not an Original.’’ Each diskette Order, the Commission determined that Commission’s Secretary at 236 should contain only one party’s it would consider any alleged conflicts Massachusetts Avenue, NE., Suite 110, pleadings, preferably in a single between state and federal requirements Washington, DC 20002. The filing hours electronic file. In addition, commenters and the need for preemption on a case- at this location are 8 a.m. to 7 p.m. All must send diskette copies to the by-case basis. This petition argues that hand deliveries must be held together Commission’s contractor at Portals II, the Commission should assert its with rubber bands or fasteners. Any 445 12th Street, SW., Room CY–B402, exclusive jurisdiction over interstate envelopes must be disposed of before communications, rather than deal with entering the building. Washington, DC 20554. • • People with Disabilities: Contact preemption petitions on a case-by-case Commercial overnight mail (other the FCC to request reasonable basis. Pursuant to §§ 1.415 and 1.419 of than U.S. Postal Service Express Mail accommodations (accessible format the Commission’s rules, 47 CFR 1.415, and Priority Mail) must be sent to 9300 documents, sign language interpreters, 1.419, interested parties may file East Hampton Drive, Capitol Heights, comments and reply comments on or MD 20743. CART, etc.) by e-mail: [email protected] • or phone: 202–418–0530 or TTY: 202– before the dates indicated on the first U.S. Postal Service first-class, 418–0432. page of this document. Comments may Express, and Priority mail should be For detailed instructions for be filed using: (1) The Commission’s addressed to 445 12th Street, SW., submitting comments and additional Electronic Comment Filing System Washington, DC 20554. (ECFS), (2) the Federal Government’s information on the rulemaking process, Synopsis SUPPLEMENTARY INFORMATION eRulemaking Portal, or (3) by filing see the On November 7, 2005, the Coalition section of this document paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, filed with the Commission a joint FOR FURTHER INFORMATION CONTACT: 63 FR 24121 (1998). petition for declaratory ruling. See the Erica McMahon, Consumer Policy • Electronic Filers: Comments may be Coalition’s, Petition for Declaratory Division, Consumer & Governmental filed electronically using the Internet by Ruling, filed November 7, 2005 Affairs Bureau, (202) 418–2512 (voice), accessing the ECFS: http://www.fcc.gov/ (‘‘Petition’’). The Coalition characterizes [email protected]. cgb/ecfs/ or the Federal eRulemaking its membership as a diverse group of SUPPLEMENTARY INFORMATION: This is a Portal: http://www.regulations.gov. small and large businesses and other summary of the Commission’s Filers should follow the instructions organizations active in a variety of document, DA 05–2975, released provided on the website for submitting industries. Coalition members include November 22, 2005. The full text of comments. bankers, health care providers, document DA 05–2975, the Coalition’s • For ECFS filers, if multiple docket magazine publishers, trade show submission, and copies of any or rulemaking numbers appear in the operators, travel agents, attorneys and subsequently filed documents in this caption of this proceeding, filers must insurance agents. matter will be available for public transmit one electronic copy of the The joint petition raises issues inspection and copying during regular comments for each docket or concerning the scope of the business hours at the FCC Reference rulemaking number referenced in the Commission’s jurisdiction over Information Center, Portals II, 445 12th caption. In completing the transmittal interstate communications under the
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00028 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74016 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
Telephone Consumer Protection Act of interstate commercial fax messages and 92–463, as amended, this notice advises 1991 (‘‘TCPA’’). Telephone Consumer all State efforts to do so are preempted. interested persons of the eighth meeting Protection Act of 1991, Public Law 102– Federal Communications Commission. of the WRC–07 Advisory Committee. 243, 105 Statute 2394 (1991), codified at Jay Keithley, The WRC–07 Advisory Committee has 47 U.S.C. 227. In particular, the an open membership. All interested Deputy Bureau Chief, Consumer & Coalition asks the Commission to: (1) Governmental Affairs Bureau. parties are invited to participate in the Affirm that, under its general grant of Advisory Committee and to attend its [FR Doc. 05–23856 Filed 12–13–05; 8:45 am] exclusive authority to regulate interstate meetings. The proposed agenda for the communications, the Commission has BILLING CODE 6712–01–P eighth meeting is as follows: exclusive authority to regulate interstate Agenda commercial fax messages; and (2) find FEDERAL COMMUNICATIONS that section 17538.43 of the California COMMISSION Eighth Meeting of the WRC–07 Advisory Business and Professions Code, and all Committee, Federal Communications other State laws that purport to regulate [DA 05–3140] Commission, 445 12th Street, SW., interstate facsimile transmissions, are Room TW–C305, Washington, DC preempted by the federal TCPA, 47 Rescheduling of the Eighth Meeting of 20554; January 25, 2006; 11 a.m.–12 U.S.C. 227. In this document, the the Advisory Committee for the 2007 Noon World Radiocommunication Commission seeks comment on the 1. Opening Remarks issues raised in the Coalition’s joint Conference (WRC–07 Advisory Committee) 2. Approval of Agenda petition. 3. Approval of the Minutes of the The Coalition asserts that States lack AGENCY: Federal Communications Seventh Meeting jurisdiction to regulate interstate fax Commission. 4. Reports on Recent WRC–07 communications. According to the ACTION: Notice. Preparatory Meetings Coalition, Congress granted exclusive 5. NTIA Draft Preliminary Views and jurisdiction to the Commission over ‘‘all SUMMARY: In accordance with the Proposals interstate and foreign communication’’ Federal Advisory Committee Act, this 6. Informal Working Group Reports and under the Communications Act of 1934. notice advises interested persons that Recommendations The Coalition argues that exclusive the eighth meeting of the WRC–07 7. Future Meetings federal regulation of interstate Advisory Committee originally 8. Other Business commercial fax transmissions is scheduled for December 9, 2005 (FR Federal Communications Commission. consistent with congressional intent, 47 Vol. 70, No. 201, Wednesday, October Don Abelson, U.S.C. 227(e)(1), and with prior 19, 2005, Notices) has been rescheduled Chief, International Bureau. Commission decisions. In addition, the and will now be held on January 25, [FR Doc. 05–23857 Filed 12–13–05; 8:45 am] Coalition contends that individual 2006, at the Federal Communications states’ attempts to regulate interstate Commission. The purpose of the BILLING CODE 6712–01–P communication have resulted in varying meeting is to continue preparations for fax regulation that is not only the 2007 World Radiocommunication FEDERAL COMMUNICATIONS inconsistent with Congressional intent Conference. The Advisory Committee COMMISSION and the optimal goals of the TCPA, but will consider any preliminary views and extremely burdensome to the draft proposals introduced by the [Report No. 2745] individuals, companies and other Advisory Committee’s Informal Working organizations that rely heavily on fax Groups. Petitions for Reconsideration of Action in Rulemaking Proceeding technology to conduct business. DATES: January 25, 2006; 11 a.m.–12 Accordingly, the Coalition maintains noon. December 1, 2005. the Commission should preempt all ADDRESSES: Federal Communications Petitions for Reconsideration have State laws purporting to regulate Commission, 445 12th Street, SW., been filed in the Commission’s interstate fax transmissions and assert Room TW–C305, Washington, DC Rulemaking proceeding listed in this exclusive jurisdiction over such 20554. Public Notice and published pursuant to regulation. 47 CFR 1.429(e). The full text of these FOR FURTHER INFORMATION CONTACT: In addition, the Coalition argues that documents is available for viewing and on October 7, 2005, California enacted Alexander Roytblat, FCC International copying in Room CY–B402, 445 12th a law that conflicts with the fax Bureau, Strategic Analysis and Street, SW., Washington, DC or may be requirements of the TCPA. The Negotiations Division, at (202) 418– purchased from the Commission’s copy Coalition contends that California’s new 7501. contractor, Best Copy and Printing, Inc. law contains the text of section 227 of SUPPLEMENTARY INFORMATION: This is a (BCPI) (1–800–378–3160). Oppositions the Communications Act, without the summary of the Commission’s Public to these petitions must be filed by Junk Fax Prevention Act of 2005 Notice, IB Docket No. 04–286, DA 05– December 29, 2005. See § 1.4(b)(1) of the (‘‘JFPA’’) amendments, and applies that 3140, released December 5, 2005. The Commission’s rules (47 CFR 1.4(b)(1)). language to any person sending faxes Federal Communications Commission Replies to an opposition must be filed into or out of the state. Consequently, (FCC) established the WRC–07 Advisory within 10 days after the time for filing the Coalition maintains that the Committee to provide advice, technical oppositions have expired. California law effectively eliminates the support and recommendations relating Subject: In the Matters of Appropriate established business relationship to the preparation of United States Framework for Broadband Access to the (‘‘EBR’’) exception to the prohibition on proposals and positions for the 2007 Internet over Wireline Facilities (CC unsolicited faxes in the JFPA. World Radiocommunication Conference Docket No. 02–33). The Coalition urges the Commission (WRC–07). Universal Service Obligations of to declare that the Commission has In accordance with the Federal Broadband Providers (CC Docket No. exclusive jurisdiction to regulate Advisory Committee Act, Public Law 02–33).
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00029 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74017
Review of Regulatory Requirements Parties: A.P. Moller-Maersk A/S; P&O standards in section 4 of the BHC Act for Incumbent LEC Broadband Nedlloyd Limited; and Hapag-Lloyd (12 U.S.C. 1843). Unless otherwise Telecommunications Services (CC Container Linie GmbH. noted, nonbanking activities will be Docket No. 01–337). Filing Party: Wayne R. Rohde, Esq.; conducted throughout the United States. Computer III Further Remand Sher & Blackwell; 1850 M Street, NW., Additional information on all bank Proceedings; Bell Operating Company Suite 900; Washington, DC 20036. holding companies may be obtained Provision of Enhanced Services; 1998 Synopsis: The amendment removes from the National Information Center Biennial Regulatory Review—Review of Hapag-Lloyd as a party to the website at www.ffiec.gov/nic/. Computer III and ONA Safeguards and agreement. Unless otherwise noted, comments Requirements (CC Docket Nos. 95–20, Agreement No.: 011637–012. regarding each of these applications 98–10). Title: AMPAC Cooperative Working must be received at the Reserve Bank Conditional Petition of the Verizon Agreement. indicated or the offices of the Board of Telephone Companies for Forbearance Parties: Hamburg-Sd and Compania Governors not later than January 9, under 47 U.S.C. 160(c) with Regard to Chilena de Navegacion Interoceanica, 2006. Broadband Services Provided Via Fiber S.A. to the Premises; Petition of the Verizon Filing Party: Wayne R. Rohde, Esq.; A. Federal Reserve Bank of Chicago Telephone Companies for Declaratory Sher & Blackwell LLP; 1850 M Street (Patrick M. Wilder, Assistant Vice Ruling or, Alternatively, for Interim NW., Suite 900; Washington, DC 20036. President) 230 South LaSalle Street, Waiver with Regard to Broadband Synopsis: The amendment deletes the Chicago, Illinois 60690-1414: Services Provided Via Fiber to the Far East from the geographic scope, 1. FBOP Corporation, Oak Park, Premises (WC Docket No. 04–242). reduces the number and size of vessels Illinois; to acquire 28.26 percent of the Consumer Protection in the deployed under the agreement, voting shares of Community Bank of Broadband Era (WC Docket No. 05–271). establishes a new minimum duration for Lemont, Lemont, Illinois. Number of Petitions Filed: 2. the revised agreement, makes various corresponding and technical changes, Board of Governors of the Federal Reserve System, December 9. 2005. Marlene H. Dortch, and restates the agreement. Secretary. Robert deV. Frierson, By order of the Federal Maritime [FR Doc. 05–23864 Filed 12–13–05; 8:45 am] Deputy Secretary of the Board. Commission. BILLING CODE 6712–01–P [FR Doc. E5–7334 Filed 12–13–05; 8:45 am] Dated: December 9, 2005. BILLING CODE 6210–01–S Bryant L. VanBrakle, Secretary. FEDERAL MARITIME COMMISSION [FR Doc. E5–7340 Filed 12–13–05; 8:45 am] FEDERAL RESERVE SYSTEM BILLING CODE 6730–01–P Notice of Agreements Filed Notice of Proposals to Engage in Permissible Nonbanking Activities or The Commission hereby gives notice FEDERAL RESERVE SYSTEM to Acquire Companies that are of the filing of the following agreements Engaged in Permissible Nonbanking under the Shipping Act of 1984. Formations of, Acquisitions by, and Activities Interested parties may submit comments Mergers of Bank Holding Companies on an agreement to the Secretary, The companies listed in this notice Federal Maritime Commission, The companies listed in this notice have given notice under section 4 of the Washington, DC 20573, within ten days have applied to the Board for approval, Bank Holding Company Act (12 U.S.C. of the date this notice appears in the pursuant to the Bank Holding Company 1843) (BHC Act) and Regulation Y (12 Federal Register. Copies of agreements Act of 1956 (12 U.S.C. 1841 et seq.) CFR Part 225) to engage de novo, or to are available through the Commission’s (BHC Act), Regulation Y (12 CFR Part acquire or control voting securities or Office of Agreements (202–523–5793 or 225), and all other applicable statutes assets of a company, including the [email protected]). and regulations to become a bank companies listed below, that engages Agreement No.: 009857–010. holding company and/or to acquire the either directly or through a subsidiary or Title: Florida-Caribbean Cruise assets or the ownership of, control of, or other company, in a nonbanking activity Association. the power to vote shares of a bank or that is listed in § 225.28 of Regulation Y Parties: Carnival Cruise Lines; bank holding company and all of the (12 CFR 225.28) or that the Board has Celebrity Cruises; Costa Cruise Lines; banks and nonbanking companies determined by Order to be closely Cunard Line; Disney Cruise Line; owned by the bank holding company, related to banking and permissible for Holland America Line; MSC Cruises including the companies listed below. bank holding companies. Unless (USA) Inc.; Norwegian Cruise Line; The applications listed below, as well otherwise noted, these activities will be Princess Cruises; Radisson Seven Seas as other related filings required by the conducted throughout the United States. Cruises; Royal Caribbean International; Board, are available for immediate Each notice is available for inspection and Windstar Cruises. inspection at the Federal Reserve Bank at the Federal Reserve Bank indicated. Filing Party: Matthew Thomas, Esq.; indicated. The application also will be The notice also will be available for Troutman Sanders LLP; 401 9th Street available for inspection at the offices of inspection at the offices of the Board of NW., Suite 1000; Washington, DC the Board of Governors. Interested Governors. Interested persons may 20004–2134. persons may express their views in express their views in writing on the Synopsis: The amendment removes writing on the standards enumerated in question whether the proposal complies Topaz International Cruises as a party to the BHC Act (12 U.S.C. 1842(c)). If the with the standards of section 4 of the the agreement. proposal also involves the acquisition of BHC Act. Additional information on all Agreement No.: 011587–013. a nonbanking company, the review also bank holding companies may be Title: United States South Europe includes whether the acquisition of the obtained from the National Information Conference. nonbanking company complies with the Center website at www.ffiec.gov/nic/.
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00030 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74018 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
Unless otherwise noted, comments DEPARTMENT OF HEALTH AND will take effect beginning with the 2006 regarding the applications must be HUMAN SERVICES contract year. These new features received at the Reserve Bank indicated include authority for new MA regional or the offices of the Board of Governors Centers for Medicare and Medicaid plans to be organized as regional not later than December 29, 2005. Services preferred provider organizations (RPPOs). The MMA also amended the A. Federal Reserve Bank of Atlanta [Document Identifier: CMS–10117–10118– 10119–10135–10136] Social Security Act to introduce a new (Andre Anderson, Vice President) 1000 process for determining beneficiary Peachtree Street, N.E., Atlanta, Georgia Emergency Clearance: Public premiums and benefits for 2006 and 30303: Information Collection Requirements future years. Under the new process MA The Savannah Bancorp, Inc., Submitted to the Office of Management organizations will submit a ‘‘bid’’ Savannah, Georgia; to acquire 100 and Budget (OMB) reflecting their revenue needs for percent of the voting shares of covering the benefits they plan to offer. AGENCY: Center for Medicare and 1. Type of Information Collection Harbourside Community Bank, Hilton Medicaid Services. Head, South Carolina (in organization), Request: Revision of a currently In compliance with the requirement and thereby engage in operating a approved collection; Title of of section 3506(c)(2)(A) of the Information Collection: Qualification— savings association pursuant to section Paperwork Reduction Act of 1995, the 225.28(b)(4)(ii) of Regulation Y. Medicare Advantage Application For Centers for Medicare and Medicaid Coordinated Care, Private Fee-For- Board of Governors of the Federal Reserve Services (CMS), Department of Health Service, Regional Preferred Provider System, December 9, 2005. and Human Services, is publishing the Organization, Service Area Expansion Robert deV. Frierson, following summary of proposed For Coordinated Care and Private Fee- collections for public comment. Deputy Secretary of the Board. For-Service Plans, Medical Savings Interested persons are invited to send [FR Doc. E5–7335 Filed 12–13–05; 8:45 am] Account Plans; Use: An entity seeking a comments to regarding this burden contract as an MA organization must be BILLING CODE 6210–01–S estimate or any other aspect of this able to provide Medicare’s basic benefits collection of information, including any plus meet the organizational of the following subjects: (1) The requirements set out in regulations at 42 necessity and utility of the proposed CFR part 422. An applicant must FEDERAL RETIREMENT THRIFT information collection for the proper demonstrate that is can meet the benefit INVESTMENT BOARD performance of the agency’s functions; and other requirements within the (2) the accuracy of the estimated Sunshine Act; Meeting specific geographic area it is requesting. burden; (3) ways to enhance the quality, The application forms are designed to utility, and clarity of the information to provide the information needed to TIME AND DATE: 9 a.m. (EDT), December be collected; and (4) the use of determine the health plan’s compliance. 19, 2005. automated collection techniques or The regulatory requirements are other forms of information technology to PLACE: 4th Floor Conference Room, incorporated into the MA applications. minimize the information collection 1250 H Street, NW., Washington, DC. The MA application forms will be used burden. to determine if an entity is eligible to STATUS: Parts will be open to the public We are, however, requesting an enter into a contract to provide services and parts closed to the public. emergency review of the information to Medicare beneficiaries; Form collection referenced below. In MATTERS TO BE CONSIDERED: Number: CMS–10117, 10118, 10119, compliance with the requirement of 10135, 10136 (OMB#: 0938–0935); Parts Open to the Public section 3506(c)(2)(A) of the Paperwork Frequency: Reporting: One time Reduction Act of 1995, we have submission; Affected Public: Business or 1. Approval of the minutes of the submitted to the Office of Management other for-profit, Not-for-profit November 29, 2005, Board member and Budget (OMB) the following institutions and State, Local or Tribal meeting. requirements for emergency review. We Government; Number of Respondents: 2. Thrift Savings Plan activity report are requesting an emergency review 65; Total Annual Responses: 90; Total by the Executive Director. because the collection of this Annual Hours: 2770. information is needed before the CMS is requesting OMB review and Parts Closed to the Public expiration of the normal time limits approval of this collection by January under OMB’s regulations at 5 CFR part 20, 2006, with a 180-day approval 3. Agency personnel matters. 1320. This is necessary to ensure period. Written comments and CONTACT PERSON FOR MORE INFORMATION: compliance with an Administration recommendations will be considered Thomas J. Trabucco, Director, Office of Initiative. We cannot reasonably comply from the public if received by the External Affairs, (202) 942–1640. with the normal clearance procedures individuals designated below by because a statutory deadline under the December 28, 2005. Dated: December 12, 2005. Medicare Modernization Act (MMA) To obtain copies of the supporting Elizabeth S. Woodruff, would be missed. statement and any related forms for the Secretary to the Board, Federal Retirement Title II of the Medicare Modernization proposed paperwork collections Thrift Investment Board. Act (MMA) modified and re-named the referenced above, access CMS’ Web site [FR Doc. 05–24087 Filed 12–12–05; 2:22 pm] existing Medicare+Choice (M+C) address at http://www.cms.hhs.gov/ BILLING CODE 6760–01–P program established under Part C of title regulations/pra or E-mail your request, XVIII of the Social Security Act. The including your address, phone number, program is now called the Medicare OMB number, and CMS document Advantage (MA) program. Although identifier, to [email protected], some MMA program changes are or call the Reports Clearance Office on already in effect, several new features (410) 786–1326.
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00031 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74019
Interested persons are invited to send collection referenced below. In plans). Cost Plans that are regulated comments regarding the burden or any compliance with the requirement of under Section 1876 of the Social other aspect of these collections of section 3506(c)(2)(A) of the Paperwork Security Act, Employer Group Waiver information requirements. However, as Reduction Act of 1995, we have Plans (EGWP) and PACE plans may also noted above, comments on these submitted to the Office of Management provide a Part D benefit. Organizations information collection and and Budget (OMB) the following wishing to provide services under the recordkeeping requirements must be requirements for emergency review. We Prescription Drug Benefit Program must mailed and/or faxed to the designees are requesting an emergency review complete an application, negotiate rates, referenced below by December 28, 2005: because the collection of this and receive final approval from CMS. Centers for Medicare and Medicaid information is needed before the Existing Part D Sponsors may also Services, Office of Strategic Operations expiration of the normal time limits expand their contracted service area by and Regulatory Affairs, Room C4–26–05, under OMB’s regulations at 5 CFR part completing the Service Area Expansion 7500 Security Boulevard, Baltimore, MD 1320. This is necessary to ensure (SAE) application; Frequency: 21244–1850, Fax Number: (410) 786– compliance with an initiative of the Reporting—Annually, depending on 5267, Attn: Bonnie L. Harkless; and Administration. We cannot reasonably program area and data required; OMB Human Resources and Housing comply with the normal clearance Affected Public: Business or other for- Branch, Attention: Carolyn Lovett, New procedures because the use of normal profit, Not-for-profit institutions, Executive Office Building, Room 10235, clearance procedures is reasonably Federal Government; Number of Washington, DC 20503. likely to cause a statutory deadline to be Respondents: 101; Total Annual missed. Dated: February 9, 2005 Responses: 101; Total Annual Hours: The Medicare Prescription Drug, 3,828. Michelle Shortt, Improvement, and Modernization Act of Director, Regulations Development Group, 2003 (MMA) established a program to CMS is requesting OMB review and Office of Strategic Operations and Regulatory offer prescription drug benefits to approval of this collection by January Affairs. Medicare enrollees through Prescription 20, 2006, with a 180-day approval [FR Doc. 05–24046 Filed 12–13–05; 8:45 am] Drug Plans, Medicare Advantage period. Written comments and BILLING CODE 4120–01–M Organizations, and Cost Plans, PACE recommendation will be considered Plans and Employer Group Plans. The from the public if received by the Medicare Prescription Drug Benefit individuals designated below by DEPARTMENT OF HEALTH AND program is codified in section 1860D of December 28, 2005. HUMAN SERVICES the Social Security Act (the Act). To obtain copies of the supporting Section 101 of the MMA amended Title statement and any related forms for the Centers for Medicare and Medicaid XVIII of the Social Security Act by proposed paperwork collections Services redesignating Part D as Part E and referenced above, access CMS’s Web site [Document Identifier: CMS–10137] inserting a Part D, which establishes the address at http://www.cms.hhs.gov/ Voluntary Prescription Drug Benefit regulations/pra or E-mail your request, Emergency Clearance: Public Program (hereinafter referred to as ‘‘Part including your address, phone number, Information Collection Requirements D’’). Prior to the 2007 contract year for and CMS document identifier, to Submitted to the Office of Management the Part D program, the industry must [email protected], or call the and Budget (OMB) have an appropriate amount of time to Reports Clearance Office on (410) 786– respond to the solicitation and CMS AGENCY: Center for Medicare and 1326. must have sufficient time to review and Medicaid Services. Interested persons are invited to send approve organizations that qualify for a comments regarding the burden on or In compliance with the requirement Part D contract or service area any other aspect of these collections of of section 3506(c)(2)(A) of the expansion. information requirements. However, as Paperwork Reduction Act of 1995, the 1. Type of Information Collection Centers for Medicare and Medicaid Request: Revision of a currently noted above, comments on these Services (CMS), Department of Health approved collection; Title of information collection and and Human Services, is publishing the Information Collection: Application for recordkeeping requirements must be following summary of proposed Prescription Drug Plans (PDP); mailed and/or faxed to the designees collections for public comment. Application for Medicare Advantage referenced below by December 28, 2005: Interested persons are invited to send Prescription Drug (MA–PD) Plans; Centers for Medicare and Medicaid comments regarding this burden Application for Cost Plans to Offer Services, Office of Strategic Operations estimate or any other aspect of this Qualified Prescription Drug Coverage; and Regulatory Affairs, Room C4–26–05, collection of information, including any Application for PACE Organization to 7500 Security Boulevard, Baltimore, MD of the following subjects: (1) The Offer Qualified Prescription Drug 21244–1850, Fax Number: (410) 786– necessity and utility of the proposed Coverage; Application for Employer 5267, Attn: William N. Parham, III; and information collection for the proper Group Waiver Plans to Offer OMB Human Resources and Housing performance of the agency’s functions; Prescription Drug Coverage; Service Branch, Attention: Carolyn Lovett, New (2) the accuracy of the estimated Area Expansion Application to Offer Executive Office Building, Room 10235, burden; (3) ways to enhance the quality, Prescription Drug Coverage in a New Washington, DC 20503. utility, and clarity of the information to Region; Form Number: CMS–10137 be collected; and (4) the use of (OMB#: 0938–0936); Use: Coverage for Dated: December 9, 2005. automated collection techniques or the prescription drug benefit will be Michelle Shortt, other forms of information technology to provided through contracted Director, Regulations Development Group, minimize the information collection prescription drug plans (PDPs) or Office of Strategic Operations and Regulatory burden. through Medicare Advantage (MA) Affairs. We are, however, requesting an plans that offer integrated prescription [FR Doc. 05–24047 Filed 12–13–05; 8:45 am] emergency review of the information drug and health care coverage (MA–PD BILLING CODE 4120–01–M
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00032 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74020 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
DEPARTMENT OF HEALTH AND I. Background the Paperwork Reduction Act of 1995 HUMAN SERVICES FDA is announcing the availability of (44 U.S.C. 3501–3520). The collection of a guidance document entitled information in this guidance was Food and Drug Administration ‘‘Requesting an Extension to Use approved under OMB control number Existing Label Stock after the Trans Fat 0910–0571. [Docket No. 2005D–0483] Labeling Effective Date of January 1, III. Comments 2006.’’ FDA issued a final rule on July Guidance for Industry and Food and Interested persons may submit to the 11, 2003 (68 FR 41434), to require food Drug Administration; Requesting an Division of Dockets Management (see labels to bear the gram amount of trans Extension to Use Existing Label Stock ADDRESSES) written or electronic fat without a percent Daily Value in the After the Trans Fat Labeling Effective comments regarding this document at Nutrition Facts panel (http:// Date of January 1, 2006; Availability ~ any time. Submit a single copy of www.cfsan.fda.gov/ acrobat/ electronic comments or two paper AGENCY: Food and Drug Administration, fr03711a.pdf). The trans fat final rule copies of any mailed comments, except HHS. becomes effective on January 1, 2006. that individuals may submit one paper This guidance document provides ACTION: Notice. copy. Comments are to be identified guidance to FDA staff and the food with the docket number found in industry about when and how SUMMARY: The Food and Drug brackets in the heading of this Administration (FDA) is announcing the businesses may request the agency to document. The guidance and received availability of a guidance document consider enforcement discretion for the comments may be seen in the Division entitled, ‘‘Requesting an Extension to use, on products introduced into of Dockets Management between 9 a.m. Use Existing Label Stock after the Trans interstate commerce on or after the and 4 p.m., Monday through Friday. January 1, 2006 effective date, of some Fat Labeling Effective Date of January 1, IV. Electronic Access 2006.’’ The trans fat final rule published or all existing label stock that does not in the Federal Register on July 11, 2003. declare trans fat labeling in compliance Persons with access to the Internet This guidance document provides with the final rule. may obtain the guidance document at In compliance with section 212 of the guidance to FDA and the food industry http://www.cfsan.fda.gov/ Small Business Regulatory Enforcement about when and how businesses may guidance.html. Fairness Act (Public Law 104–121), we request the agency to consider Dated: December 5, 2005. are making available this guidance that enforcement discretion for the use, on states in plain language the factors the Jeffrey Shuren, products introduced into interstate agency intends to consider concerning Assistant Commissioner for Policy. commerce on or after the January 1, requests for enforcement discretion by [FR Doc. 05–23987 Filed 12–13–05; 8:45 am] 2006, effective date, of some or all small and other businesses regarding BILLING CODE 4160–01–S existing label stock that does not declare compliance with this regulation. trans fat labeling in compliance with the FDA is issuing this guidance as a level final rule. 1 guidance consistent with FDA’s good DEPARTMENT OF HEALTH AND DATES: This guidance is final upon the guidance practices regulation § 10.115 HUMAN SERVICES date of publication. Submit written or (21 CFR 10.115). Consistent with FDA’s Indian Health Service electronic comments on the guidance at good guidance practices regulation, the any time. agency will accept comment, but is [Funding Opportunity Number: HHS–2006– ADDRESSES: Submit written requests for implementing the guidance document IHS–TSGP–0001; CFDA Number: 93.210] immediately in accordance with single copies of this guidance to the Tribal Self-Governance Program § 10.115(g)(2), because the agency has Office of Nutritional Products, Labeling Planning Cooperative Agreement; New determined that prior public and Dietary Supplements (HFS–800), Funding Cycle for Fiscal Year 2006 Center for Food Safety and Applied participation is not feasible or Nutrition, Food and Drug appropriate. This document affects the Key Dates: Applications Due—January Administration, 5100 Paint Branch trans fat labeling effective date of 20, 2006; Objective Review Committee Pkwy., College Park, MD 20740. Send January 1, 2006, so it is urgent that FDA to Evaluate Applications—March 8–9, one self-addressed adhesive label to explains its new enforcement policy 2006; Anticipated Project Start Date— assist that office in processing your before that date. This guidance April 1 , 2006. requests. Submit written comments on represents the agency’s current thinking I. Funding Opportunity Description the guidance to the Division of Dockets on the subject. It does not create or Management (HFA-305), Food and Drug confer any rights for or on any person The purpose of the program is to Administration, 5630 Fishers Lane, rm. and does not operate to bind FDA or the award cooperative agreements that 1061, Rockville, MD 20852. Submit public. You may use an alternative provide planning resources to Tribes electronic comments to http:// approach if such approach satisfies the interested in participating in the Tribal www.fda.gov/dockets/ecomments. See requirements of the applicable statutes Self-Governance Program (TSGP) as the SUPPLEMENTARY INFORMATION section and regulations. If you want to discuss authorized by Title V, Tribal Self- for electronic access to the guidance an alternative approach, contact the Governance Amendments of 2000 of the document. FDA staff responsible for implementing Indian Self-Determination and this guidance (see FOR FURTHER Education Assistance Act of Public Law FOR FURTHER INFORMATION CONTACT: Julie INFORMATION CONTACT). (Pub. L.) 93–638, as amended. The Moss, Center for Food Safety and TSGP is designed to promote self- Applied Nutrition (HFS–830), Food and II. Paperwork Reduction Act of 1995 determination by allowing Tribes to Drug Administration, 5100 Paint Branch This final guidance contains assume more control of Indian Health Pkwy., College Park, MD 20740–3835, information collection provisions that Service (IHS) programs and services 301–436–2373, FAX: 301–436–2636. are subject to review by the Office of through compacts negotiated with the SUPPLEMENTARY INFORMATION: Management and Budget (OMB) under IHS. The Planning Cooperative
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00033 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74021
Agreement allows a Tribe to gather Alaska Native Village Corporations, who considered. Applicants must include information to determine the current are located within the area served by an the grant tracking number assigned to types and amounts of Programs, Alaska Native regional health entity their electronic submission by Services, Functions, and Activities already participating in compact status, Grants.gov and the date submitted via (PSFAs), and funding available at the are not eligible (Pub. L. 106–260, Title Grants.gov in their cover letter Service Unit, Area, and Headquarters V, section 12(a)(2)). transmitting the required audits for the levels and identify programmatic 2. Cost Sharing or Matching Funds previous three fiscal years. alternatives that will better meet the E. Tribal Resolution—A resolution of needs of Tribal members. The Self-Governance Planning the Indian Tribe served by the project Cooperative Agreement Announcement should accompany the application II. Award Information does not require matching funds or cost submission. An Indian Tribe that is Type of Award: Cooperative sharing to participate in the competitive proposing a project affecting another Agreement. grant process. Indian Tribe must include resolutions Estimated Funds Available: The total 3. Other Requirements from all affected Tribes to be served. amount identified for Fiscal Year (FY) Tribal Consortia applying for a Planning 2006 is $600,000 for approximately The following documentation is Cooperative Agreement, a minimum of twelve (12) Tribes to enter the TSGP required (if applicable): two individual Tribal Council A. This program is described at planning process for compacts Resolutions must be submitted. Draft 93.210 in the Catalog of Federal beginning in Fiscal Year (FY) 2007 or resolutions are acceptable in lieu of an Domestic Assistance. There is limited Calendar Year (CY) 2007. Awards under official resolution. However, an official competition under this announcement this announcement are subject to the signed Tribal resolution must be because the authorizing legislation availability of funds. received by the Division of Grants restricts eligibility to Tribes that meet Anticipated Number of Awards: The Operations (DGO) by the end of the specific criteria. (Refer to Section III, estimated number of awards to be Objective Review (March 9, 2006). If an ELIGIBLE APPLICANTS in this funded is approximately 12. official signed resolution is not Project Period: 12 months. announcement.) B. Request participation in self- submitted by March 9, 2006, the Award Amount: $50,000 per year. governance by resolution by the application will be considered Programmatic Involvement: IHS TSGP governing body of the Indian Tribe. An incomplete and will be returned funds will be awarded as cooperative Indian Tribe that is proposing a without consideration. agreements and will have substantial *It is highly recommended that the cooperative agreement affecting another programmatic involvement to establish Tribal resolution be sent by Federal Indian Tribe must include resolutions a basic understanding of IHS Programs, Express for proof of receipt. from all affected Tribes to be served. Services, Functions and Activities C. Demonstrate, for three fiscal years, IV. Application and Submission (PSFAs) as operations at the Service financial stability and financial Information Unit, Area, and Headquarters levels. management capability, which is The IHS roles and responsibilities defined as no uncorrected significant 1. Application package may be found on will include: and material audit exceptions in the http://Grants.gov • Identification of IHS staff that will required annual audit of the Indian Information regarding the electronic consult with applicants on methods Tribe’s self-determination contracts or application process may be obtained used by the IHS to manage and deliver self-governance funding agreements from either of the following persons: health care. with any Federal agency. Ms. Mary E. Trujillo, Office of Tribal • Provide applicants with a list of D. Grantees are required to submit a Self-Governance, Indian Health laws and regulations that provide current version of the organization’s Service, 801 Thompson Avenue, Suite authority for the various IHS programs. audit report. Audit reports can be 240, Rockville, Maryland 20852. (301) The Grantee roles and responsibilities lengthy, therefore, the applicants may 443–7821. will include: submit them separately via regular mail • Research and analysis of the Ms. Patricia Spotted Horse, Division of by the due date (January 20, 2006). If the Grants Operations, Indian Health complex IHS budget, at the Service grantee determines that audit reports are Unit, Area, and Headquarters levels. Service, 801 Thompson Avenue, TMP • not lengthy, the applicants may scan the 360, Rockville, Maryland 20852. (301) Establishment of a process through documents and attach them to the which Tribes can effectively approach 443–5204. electronic application. Applicants must • the IHS to identify programs and submit two copies of the audits that Web address to obtain application associated funding which could be reflect three previous fiscal years under kit: http://www.ihs.gov/ incorporated into programs. separate cover directly to the Division of NonMedicalPrograms/gogp/ gogp_submission.asp III. Eligibility Information Grants Operations, 801 Thompson Avenue, TMP 360, Rockville, MD 2. Content and Form of Application 1. Eligible Applicants 20852, referencing the Funding Submission To be eligible for a Planning Opportunity Number, HHS–2006–IHS– A. All applications should: Cooperative Agreement under this TSGP–0001, as prescribed by Public • Be single spaced. announcement, an applicant must meet Law 98–502, the Single Audit Act, as • Be typewritten. all of the following criteria: amended (see OMB Circular A–133, • Have consecutively numbered A. Be a Federally-recognized Tribe as revised June 24, 1997, Audits of States, pages. defined in Title V, Public Law 106–260, Local Governments, and Non-Profit • Use black type not smaller than 12 Tribal Self-Governance Amendments of Organizations), for the three previous characters per one inch. 2000, of the Indian Self-Determination fiscal years. If this documentation is not • Be printed on one side only of and Education Assistance Act (the Act), submitted by the due date, the standard size 81⁄2″ × 11″ paper. Public Law 93–638, as amended. application will be considered as • Contain a narrative that does not However, Alaska Native Villages or unresponsive and will not be exceed 7 typed pages that includes the
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00034 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74022 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
sections listed below. (The 7 page 6528 at least ten days prior to the Opportunity Number: HHS–2006–IHS– narrative does not include the work application deadline. To submit an TSGP–0001. plan, standard forms, Tribal application electronically, please use E-mail applications will not be resolution(s), table of contents, budget, the http://www.Grants.gov apply site. accepted under this announcement. budget justifications, narratives, and/or Download a copy of the application DUNS Number: Beginning October 1, other appendix items.) package on the Grants.gov Web site, 2003, applicants were required to have Public Policy Requirements: All complete it offline and then upload and a Dun and Brandstreet (DUNS) Number. Federal-wide public policies apply to submit the application via the The DUNS number is a nine-digit HHS grants with exception of Lobbying Grants.gov site. You may not e-mail an identification number, which uniquely and Discrimination. electronic copy of a grant application to identifies business entities. Obtaining a us. DUNS number is easy and there is no 3. Submission Dates and Times Please note the following: charge. To obtain a DUNS number, Applications must be submitted on- • Under the new IHS requirements, access http:// line by January 20, 2006. Late paper applications are not the preferred www.dunandbradstreet.com or call 1– applications not accepted for processing method. However, if you have technical 866–705–5711. Interested parties may will be returned to the applicant and problems submitting your application wish to obtain their DUNS number by will not be considered for funding. on-line, and you have contacted the phone to expedite the process. Grants Policy Staff and advised them of Applications submitted electronically 4. Intergovernmental Review the difficulties you are having in must also be registered with the Central This funding opportunity is not submitting your application on-line, and Contractor Registry (CCR). A DUNS subject to Executive Order 12372, if it is determined by the Grants Policy number is required before CCR ‘‘Intergovernmental Review of Federal Staff that the technical difficulties registration can be completed. Many Programs.’’ State approval is not cannot be resolved, you may submit a organizations may already have a DUNS required. paper application after you have number. Please use the number listed 5. Funding Restrictions downloaded the application package above to investigate whether or not your from Grants.gov. The paper application organization has a DUNS number. A. Only one planning cooperative may be sent directly to the Division of Registration with the CCR is free of agreement will be awarded per Grants Operations, 801 Thompson charge. applicant. Avenue, TMP 360, Rockville, MD 20852 Applicants may register by calling 1– A. Each planning cooperative by the due date, January 20, 2006. 888–227–2423. Please review and agreement shall not exceed $50,000. The • When you enter the Grants.gov site, complete the CCR ‘‘Registration available funds are inclusive of direct you will find information about Worksheet’’ located in the appendix of and indirect costs. submitting an application electronically the TSGP Planning Cooperative B. Planning awards shall not exceed through the site, as well as the hours of Agreement application kit or on http:// a maximum period of one year. operation. We strongly recommend that www.Grants.gov/CCRRegister. C. Pre-award costs are not allowable. you do not wait until the deadline date More detailed information regarding 6. Other Submission Requirements to begin the application process through these registration processes can be Grants.gov. found at http://www.Grants.gov. The application must comply with the • To use Grants.gov, you, as the V. Application Review Information following: applicant, must have a DUNS Number A. Abstract (one page)—Summarizes and register in the Central Contractor The instructions for preparing the the project. Registry (CCR). You should allow a application narrative also constitute the B. Application for Federal Assistance minimum of 10–15 days to complete evaluation criteria for reviewing and (SF–424, Rev. 09/03). CCR registration. See below on how to scoring the application. Weights C. Narrative (no more than 7 pages) apply. assigned to each section are noted in with time frame chart (one page); pages • You must submit all documents parentheses. numbered consecutively, including electronically, including all information 1. Criteria appendices, and Table of Contents, and typically included on the SF–424 and should include the following: all necessary assurances and Goals And Objectives of the Project (1) Background information on the certifications. (30 points). Are the goals and objectives Tribe. • Your application must comply with measurable; are they consistent with the (1) Objectives and activities that any page limitation requirements purpose of the program and terms of provide a description of what will be described in the program this announcement; and, are they accomplished. announcement. achievable as demonstrated by an (2) A line-item budget and narrative • After you electronically submit implementation schedule? justification. your application, you will receive an Organizational Capabilities And (3) Appendix to include: automatic acknowledgment from Qualifications (25 points). Describe the a. Resumes or position descriptions of Grants.gov that contains a Grants.gov organizational structure of the Tribe/ key staff. tracking number. The Indian Health Tribal organization and the ability of the b. Contractors/Consultants resumes or Service will retrieve your application organization to manage the proposed qualifications. from Grants.gov. project. Include resumes or position c. Proposed Scope of Work. • You may access the electronic descriptions of key staff showing Electronic Transmission—The application for this program on http:// requisite experience and expertise and, preferred method for receipt of www.Grants.gov. where applicable, include resumes of applications is electronic submission • You must search for the consultants that demonstrate experience through http://Grants.gov. However, downloadable application package by and expertise relevant to the project. should any technical problems arise CFDA number. Methodology (20 points). Describe regarding the submission, please contact • To receive an application package, fully and clearly the methodology used our Grants Policy Staff at (301) 443– the applicant must provide the Funding to reflect the needs of Tribal members
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00035 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74023
and if the project can be accomplished and rated on the basis of the evaluation • 45 CFR part 92, ‘‘Department of with expected available resources. criteria listed in Section V.1. The Health and Human Services, Uniform Budget Justification (15 points). criteria are used to evaluate the quality Administrative Requirements for Grants Submit a line-item budget with a brief of a proposed project, determine the and Cooperative Agreements to State narrative justification for all likelihood of success, and assign a and Local Governments Including expenditures. Are costs identified numerical score to each application. Indian Tribes.’’ reasonable and allowable in accordance The scoring of approved applications • Public Health Service Grants Policy with OMB Circulars A–87, ‘‘Cost will assist the IHS in determining which Statement. Principles for State and Local proposals will be funded if the amount • Grants Policy Directives. Governments’’ and A–122, ‘‘Cost of TSGP funding is not sufficient to • Appropriate Cost Principles: OMB Principles for Non-Profit support all approved applications. Circular A–87, ‘‘State and Local Organizations?’’ Applications recommended for Governments.’’ Management Of Health Program(s) approval, having a score of 60 or above • OMB Circular A–133, ‘‘Audits of (10 points). Does the applicant propose by the ORC and scored high enough to States, Local Governments, and Non- an improved approach to managing the be considered for funding, are Profit Organizations.’’ health program(s) and state/demonstrate forwarded by the Division of Grants • Other Applicable OMB Circulars. how the delivery of quality health Operations (DGO) for cost analysis and 3. Reporting services will be maintained under self- further recommendation. The program governance? official forwards the final approval list A. Progress Report. Appendix Items: to the IHS Director for final review and Program progress reports are required • Work plan for proposed objectives. approval. Applications scoring below 60 • semi-annually. These reports will Position descriptions for key staff. points will be disapproved and returned • include a brief comparison of actual Resumes of key staff that reflect to the applicant. current duties. accomplishments to the goals • Consultant proposed scope of work NOTE: In making the final selections, the established for the period, reasons for (if applicable). IHS Director will consider the ranking factor slippage (if applicable), and other • Indirect Cost Agreement. and the status of the applicant’s single audit pertinent information as required. A • Organizational chart (optional). reports. The comments from the ORC will be final report must be submitted within 90 advisory only. The IHS Director will make days of expiration of the budget/project 2. Review and Selection Process the final decision on awards. period. In addition to the above criteria/ 3. Anticipated Award Date B. Financial Status Report requirements, applications are considered according to the following: Earliest Anticipated Award Date: Semi-annual financial status reports A. Application Submission April 1, 2006. must be submitted within 30 days of the (Application Deadline: January 20, end of the half year. Final financial 2006). Applications submitted in VI. Award Administration Information status reports are due within 90 days of advance of or by the deadline and 1. Award Notices expiration of the budget/project period. verified by the tracking number will Standard Form 269 (long form) will be undergo a preliminary review to Division of Grants Operations (DGO) used for financial reporting. determine that: will not award a grant without an Grantees are responsible and (1) The applicant and proposed approved application in conformance accountable for accurate reporting of the project type is eligible in accordance with regulatory and policy requirements Progress Reports and Financial Status with this grant announcement. which describes the purpose and scope Reports which are generally due semi- (2) The application is not a of the project to be funded. When the annually. Financial Status Reports (SF– duplication of a previously funded application is approved for funding, the 269) are due 90 days after each budget project. DGO will prepare a Notice of Award period and the final SF–269 must be (3) The application narrative, forms, (NoA) with special terms and conditions verified from the grantee records on and materials submitted meet the binding upon the award and refer to all how the value was derived. Grantees are requirements of the announcement general terms applicable to the award. allowed a reasonable period of time in allowing the review panel to undertake The NoA will serve as the official which to submit financial and an in-depth evaluation; otherwise, it notification of a grant award and will performance reports. may be returned. state the amount of Federal funds Failure to submit required reports B. Competitive Review of Eligible awarded, the purpose of the grant, the within the time allowed may result in Applications (Objective Review: March terms and conditions of the grant award, suspension or termination of an active 8–9, 2006). Applications meeting the effective date of the award, the grant, withholding of additional awards eligibility requirements that are project period, and the budget period. for the project, or other enforcement complete, responsive, and conform to Any other correspondence announcing actions such as withholding of this program announcement will be to the Project Director that an payments or converting to the reviewed for merit by the Ad Hoc application was selected is not an reimbursement method of payment. Objective Review Committee (ORC) authorization to begin performance. Continued failure to submit required appointed by the IHS to review and 2. Administrative and National Policy reports may result in one or both of the make recommendations on these Requirements following: (1) The imposition of special applications. The review will be award provisions; and (2) the non- conducted in accordance with the IHS Grants are administered in accordance funding or non-award of other eligible Objective Review Guidelines. The with the following documents: projects or activities. This applies technical review process ensures • This grant announcement. whether the delinquency is attributable selection of quality projects in a • Health and Human Services to the failure of the grantee organization national competition for limited regulations governing Public Law 93– or the individual responsible for funding. Applications will be evaluated 638 grants at 42 CFR 36.101 et seq. preparation of the reports.
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00036 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74024 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
VII. Agency Contact(s) Name of Committee: NIH Advisory Board Time: 6 p.m. to 4 p.m. for Clinical Research. Agenda: To review and evaluate 1. Questions on the programmatic and Date: January 30, 2006. cooperative agreement applications. technical issues may be directed to: Open: 10 a.m. to 1:30 p.m. Place: Double Tree Rockville, 1750 Mary E. Trujillo, Program Specialist, To review the Clinical Center operating Rockville Pike, Rockville, MD 20852. Telephone No.: 301–443–7821. Fax No.: plan, ABCR workgroups and Budgetary Contact Person: Quirijn Vos, PhD, 301–443–1050. E-mail: issues. Scientific Review Administrator, Scientific [email protected]. National Institutes of Health, Building 10, Review Program, Division of Extramural 10 Center Drive, 4–2551, CRC Medical Board Activities, NIAID/NIH/DHHS, 6700B 2. Questions on grants management Rockledge Drive, MSC 7616, Bethesda, MD and fiscal matters may be directed to: Room, Bethesda, MD 20892. Closed: 1:30 p.m. to 2 p.m. 20892–7616, (301) 496–2550, Patricia Spotted Horse, Grants Agenda: To review and evaluate for [email protected]. Management Specialist, Telephone No.: discussion of personal qualifications and This notice is being published less than 15 301–443–5204. Fax No.: 301–443–9602. performance the disclosure of which days prior to the meeting due to the timing E-mail: [email protected]. constitute a clearly unwarranted invasion of limitations imposed by the review and privacy. funding cycle. VIII. Other Information Place: National Institutes of Health, (Catalogue of Federal Domestic Assistance The Public Health Service (PHS) Building 10, 10 Center Drive, 4–2551, CRC Program Nos. 93.855, Allergy, Immunology, strongly encourages all grant and Medical Board Room, Bethesda, MD 20892. and Transplantation Research; 93.856, contract recipients to provide a smoke- Contact Person: Maureen E. Gormley, Microbiology and Infectious Diseases Executive Secretary, Mark O. Hatfield Research, National Institutes of Health, HHS) free workplace and promote the non-use Clinical Research Center, National Institutes Dated: December 6, 2005. of all tobacco products. In addition, of Health, Building 10, Room 6–15610, Anna Snouffer, Public Law 103–227, the Pro-Children Bethesda MD 20892, 301/496–2897. Act of 1994, prohibits smoking in Acting Director, Office of Federal Advisory Any interested person may file written Committee Policy. certain facilities (or in some cases, any comments with the committee by forwarding portion of the facility) in which regular the statement to the Contact Person listed on [FR Doc. 05–24009 Filed 12–13–05; 8:45 am] or routine education, library, day care, this notice. The statement should include the BILLING CODE 4140–01–M health care or early childhood name, address, telephone number and when development services are provided to applicable, the business or professional affiliation of the interested person. DEPARTMENT OF HEALTH AND children. This is consistent with the HUMAN SERVICES PHS mission to protect and advance the Dated: December 7, 2005. physical and mental health of the Anna Snouffer, National Institutes of Health American people. Acting Director, Office of Federal Advisory Dated: December 7, 2005. Committee Policy. National Institute of Mental Health; Notice of Closed Meeting Robert G. McSwain, [FR Doc. 05–24015 Filed 12–13–05; 8:45am] Deputy Director, Indian Health Service. BILLING CODE 4140–01–M Pursuant to section 10(d) of the [FR Doc. E5–7280 Filed 12–13–05; 8:45 am] Federal Advisory Committee Act, as BILLING CODE 4160–16–P DEPARTMENT OF HEALTH AND amended (5 U.S.C. Appendix 2), notice HUMAN SERVICES is hereby given of the following meeting. DEPARTMENT OF HEALTH AND National Institutes of Health The meeting will be closed to the HUMAN SERVICES public in accordance with the National Institute of Allergy and provisions set forth in sections National Institutes of Health Infectious Diseases; Notice of Closed 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Meeting as amended. The contract proposals and Clinical Center; Notice of Meeting the discussions could disclose Pursuant to section 10(d) of the confidential trade secrets or commercial Pursuant to section 10(d) of the Federal Advisory Committee Act, as Federal Advisory Committee Act, as property such as patentable material, amended (5 U.S.C. Appendix 2), notice and personal information concerning amended (5 U.S.C. Appendix 2), notice is hereby given of the following is hereby given of a meeting of the NIH individuals associated with the contract meeting. proposals, the disclosure of which Advisory Board for Clinical Research. The meeting will be closed to the The meeting will be open to the would constitute a clearly unwarranted public in accordance with the invasion of personal privacy. public as indicated below, with provisions set forth in sections attendance limited to space available. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Name of Committee: National Institute of Individuals who plan to attend and as amended. The grant applications and Mental Health Special Emphasis Panel, SBIR Phase 1 Contracts Topics 053 and 056. need special assistance, such as sign the discussions could disclose language interpretation or other Date: January 5, 2006. confidential trade secrets or commercial Time: 12 p.m. to 4 p.m. reasonable accommodations, should property such as patentable material, Agenda: To review and evaluate contract notify the Contact Person listed below and personal information concerning proposals. in advance of the meeting. individuals associated with the grant Place: National Institutes of Health, The meeting will be closed to the applications, the disclosure of which Neuroscience Center, 6001 Executive public in accordance with the would constitute a clearly unwarranted Boulevard, Rockville, MD 20852, (Telephone provisions set froth in section invasion of personal privacy. Conference Call). 552b(c)(6), Title 5 U.S.C., as amended Contact Person: Tracy Waldeck, PhD, Name of Committee: National Institute of for discussion of personal qualifications Scientific Review Administrator, Division of Allergy and Infectious Diseases Special Extramural Activities, National Institute of and performance, the disclosure of Emphasis Panel, Genomics of Mental Health, NIH, Neuroscience Center, which would constitute a clearly Transplantation Cooperative Research 6001 Executive Blvd., Room 6132, MSC 9608, unwarranted invasion of personal Program. Bethesda, MD 20852–9609, 301/435–0322, privacy. Date: December 19–21, 2005. [email protected].
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00037 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74025
(Catalogue of Federal Domestic Assistance Place: National Institutes of Health, (Catalogue of Federal Domestic Assistance Program Nos. 93.242, Mental Health Research Neuroscience Center, 6001 Executive Program Nos. 93.847, Diabetes, Grants; 93.281, Scientist Development Boulevard, Rockville, MD 20852, (Telephone Endocrinology and Metabolic Research; Award, Scientist Development Award for Conference Call). 93.848, Digestive Diseases and Nutrition Clinicians, and Research Scientist Award; Contact Person: Serena P. Chu, PhD, Research; 93.849, Kidney Diseases, Urology Scientific Review Administrator, Division of 93.282, Mental Health National Research and Hematology Research, National Institutes Service Awards for Research Training, Extramural Activities, National Institute of of Health, HHS) National Institutes of Health, HHS) Mental Health, NIH, Neuroscience Center, 6001 Executive Blvd., Room 6154, MSC 9609, Dated: December 7, 2005. Dated: December 7, 2005. Rockville, MD 20892–9609, 301–443–0004, Anna Snouffer, Anna Snouffer, [email protected]. Acting Director, Office of Federal Advisory (Catalogue of Federal Domestic Assistance Acting Director, Office of Federal Advisory Committee Policy. Program Nos. 93.242, Mental Health Research Committee Policy. [FR Doc. 05–24010 Filed 12–13–05; 8:45 am] Grants; 93.281, Scientist Development [FR Doc. 05–24013 Filed 12–13–05; 8:45 am] BILLING CODE 4140–01–M Award, Scientist Development Award for BILLING CODE 4140–01–M Clinicians, and Research Scientist Award; 93.282, Mental Health National Research DEPARTMENT OF HEALTH AND Service Awards for Research Training, DEPARTMENT OF HEALTH AND National Institute of Health, HHS) HUMAN SERVICES HUMAN SERVICES Dated: December 7, 2005. National Institutes of Health Anna Snouffer, National Institutes of Health Acting Director, Office of Federal Advisory National Institute of Mental Health; Committee Policy. National Institute on Drug Abuse; Notice of Closed Meetings [FR Doc. 05–24011 Filed 12–13–05; 8:45 am] Notice of Closed Meeting BILLING CODE 4140–01–M Pursuant to section 10(d) of the Pursuant to section 10(d) of the Federal Advisory Committee Act, as Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice DEPARTMENT OF HEALTH AND amended (5 U.S.C. Appendix 2), notice is hereby given of the following HUMAN SERVICES is hereby given of the following meetings. meeting. The meetings will be closed to the National Institutes of Health The meeting will be closed to the public in accordance with the public in accordance with the provisions set forth in sections National Institute of Diabetes and provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Digestive and Kidney Diseases, Notice 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and of Closed Meeting as amended. The grant applications and the discussions could disclose Pursuant to section 10(d) of the the discussions could disclose confidential trade secrets or commercial Federal Advisory Committee Act, as confidential trade secrets or commercial property such as patentable material, amended (5 U.S.C. Appendix 2), notice and personal information concerning property such as patentable material, is hereby given of the following and personal information concerning individuals associated with the grant meeting. applications, the disclosure of which individuals associated with the grant The meeting will be closed to the applications, the disclosure of which would constitute a clearly unwarranted public in accordance with the invasion of personal privacy. would constitute a clearly unwarranted provisions set forth in sections invasion of personal privacy. Name of Committee: National Institute of 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Mental Health Special Emphasis Panel, as amended. The grant applications and Name of Committee: National Institute on Time-Sensitive Research. the discussions could disclose Drug Abuse Special Emphasis Panel NIDA– Date: January 3, 2006. confidential trade secrets or commercial K Teleconference Meeting. Time: 4 p.m. to 5 p.m. property such as patentable material, Date: December 22, 2005. Agenda: To review and evaluate grant and personal information concerning Time: 10 a.m. to 11:30 a.m. applications. Agenda: To review and evaluate grant Place: National Institutes of Health, individuals associated with the grant applications, the disclosure of which applications. Neuroscience Center, 6001 Executive Place: National Institutes of Health, 6101 Boulevard, Rockville, MD 20952, (Telephone would constitute a clearly unwarranted Executive Boulevard, Rockville, MD 20852, Conference Call). invasion of personal privacy. Contact Person: Aileen Schulte, PhD, (Telephone Conference Call). Name of Committee: National Institute of Contact Person: Eliane Lazar-Wesley, PhD, Scientific Review Administrator, Division of Diabetes and Digestive and Kidney Diseases Extramural Activities, National Institute of Health Scientist Administrator, Office of Special Emphasis Panel, Liver Injury and Extramural Affairs, National Institute on Mental Health, NIH, Neuroscience Center, Repopulation by Bone Marrow Stem Cells. Drug Abuse, NIH, DHHS, Room 220, MSC 6001 Executive Blvd., Room 6140, MSC 9608, Date: February 7, 2006. Bethesda, MD 20892–9608, 301–443–1225, Time: 2 p.m. to 3:30 p.m. 8401, 6101 Executive Boulevard, Bethesda, [email protected]. Agenda: To review and evaluate grant MD 20892–8401, 301–451–4530. This notice is being published less than 15 applications. This notice is being published less than 15 days prior to the meeting due to the timing Place: National Institutes of Health, Two days prior to the meeting due to the timing limitations imposed by the review and Democracy Plaza, 6707 Democracy limitations imposed by the review and funding cycle. Boulevard, Bethesda, MD 20892, (Telephone funding cycle. Name of Committee: National Institute of Conference Call). Mental Health Special Emphasis Panel, PTSD Contact Person: D. G. Patel, Ph.D., (Catalogue of Federal Domestic Assistance Rapids. Scientific Review Administrator, Review Program Nos. 93.306, Comparative Medicine; Date: January 12, 2006. Branch, DEA, NIDDK, National Institutes of 93.333, Clinical Research, 93.306, 93.333, Time: 1 p.m. to 3:30 p.m. Health, Room 755, 6707 Democracy 93.337, 93.393–93.396, 93.837–93.844, Agenda: To review and evaluate grant Boulevard, Bethesda, MD 20892–5452, (301) 93.846–93.878, 93.892, 93.893, National applications. 594–7682, [email protected]. Institutes of Health, HHS)
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00038 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74026 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
Dated: December 7, 2005. limitations imposed by the review and SUPPLEMENTARY INFORMATION: Anna Snouffer, funding cycle. Background Information on the CERHR Acting Director, Office of Federal Advisory (Catalogue of Federal Domestic Assistance Committee Policy. Program Nos. 93.306, Comparative Medicine; The NTP established the CERHR in [FR Doc. 05–24014 Filed 12–13–05; 8:45 am] 93.333, Clinical Research, 93.306, 93.333, June 1998 [Federal Register, December 93.337, 93.393–93.396, 93.837–93.844, BILLING CODE 4140–01–M 14, 1998 (Vol. 63, No. 239, pp. 68782)]. 93.846–93.878, 93.892, 93.893, National The CERHR is a publicly accessible Institutes of Health, HHS) resource for information about adverse DEPARTMENT OF HEALTH AND Dated: December 7, 2005. reproductive and/or developmental HUMAN SERVICES Anna Snouffer, health effects associated with exposure Acting Director, Office of Federal Advisory to environmental and/or occupational National Institutes of Health Committee Policy. exposures. Expert panels conduct [FR Doc. 05–24012 Filed 12–13–05; 8:45 am] scientific evaluations of agents selected Center for Scientific Review; Notice of BILLING CODE 4140–01–M by the CERHR in public forums. Closed Meetings The CERHR invites the nomination of Pursuant to section 10(d) of the agents for review or scientists for its Federal Advisory Committee Act, as DEPARTMENT OF HEALTH AND expert registry. Information about amended (5 U.S.C. Appendix 2), notice HUMAN SERVICES CERHR and the nomination process can is hereby given of the following be obtained from its Web site (http:// National Toxicology Program (NTP); meetings. cerhr.niehs.nih.gov) or by contacting Dr. The meetings will be closed to the Center for the Evaluation of Risks to Shelby (see ADDRESSES above). The public in accordance with the Human Reproduction (CERHR); CERHR selects chemicals for evaluation provisions set forth in sections Extension of the Public Comment based upon several factors including 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Period on the Di-(2- production volume, potential for human as amended. The grant applications and Ethylhexyl)Phthalate (DEHP) Update exposure from use and occurrence in the discussions could disclose Expert Panel Report the environment, extent of public concern, and extent of data from confidential trade secrets or commercial AGENCY: National Institute for property such as patentable material, Environmental Health Sciences reproductive and developmental and personal information concerning (NIEHS); National Institutes of Health toxicity studies. The CERHR follows a formal, multi- individuals associated with the grant (NIH). applications, the disclosure of which step process for review and evaluation ACTION: Extension of public comment of selected chemicals. The formal would constitute a clearly unwarranted period. invasion of personal privacy. evaluation process was published in the Federal Register notice July 16, 2001 Name of Committee: Center for Scientific SUMMARY: The CERHR announces a 30- day extension of the public comment (Vol. 66, No. 136, pp. 37047–37048) and Review Special Emphasis Panel, is available on the CERHR Web site Hematopoietic Stem Cells. period on the DEHP update expert panel Date: December 19, 2005. report. The CERHR previously under ‘‘About CERHR’’ or in printed Time: 1:30 p.m. to 3 p.m. announced a public comment period on copy from the CERHR. Agenda: To review and evaluate grant the DEHP update expert panel report in Dated: December 5, 2005. applications. a prior Federal Register Notice Samuel H. Wilson, Place: National Institutes of Health, 6701 [November 16, 2005 (Vol. 70, No. 220, Deputy Director, National Institute of Rockledge Drive, Bethesda, MD 20892, pg. 69567)]. The DEHP update expert Environmental Health Sciences. (Telephone Conference Call). Contact Person: Delia Tang, MD, Scientific panel report was released by CERHR on [FR Doc. E5–7290 Filed 12–13–05; 8:45 am] Review Administrator, Center for Scientific November 21, 2005 and public BILLING CODE 4140–01–P Review, National Institutes of Health, 6701 comments will now be accepted by Rockledge Drive, Room 4126, MSC 7802, CERHR through Friday, February 3, Bethesda, MD 20892, 301–435–2506, 2006 instead of the original deadline of DEPARTMENT OF HOMELAND [email protected]. January 4, 2006. The DEHP update SECURITY This notice is being published less than 15 expert panel report is available from the days prior to the meeting due to the timing CERHR Web site (http:// U.S. Citizenship and Immigration limitations imposed by the review and cerhr.niehs.nih.gov) or in print from the Services funding cycle. CERHR (see ADDRESSES below). Name of Committee: Center for Scientific DATES: The final DEHP update expert Agency Information Collection Review Special Emphasis Panel, Neuro panel report is available for public Activities: Comment Request Genetics. comment. Written public comments on Date: December 20, 2005. ACTION: 60-Day notice of information this report should be received by Time: 2 p.m. to 5 p.m. collection under review: Immigrant February 3, 2006. Agenda: To review and evaluate grant Petition by Alien Entrepreneur, Form I– applications. ADDRESSES: Comments on the expert 526, 1615–0026. Place: National Institutes of Health, 6701 panel report and any other Rockledge Drive, Bethesda, MD 20892, correspondence should be sent to Dr. The Department of Homeland (Telephone Conference Call). Michael D. Shelby, CERHR Director, Security, U.S. Citizenship and Contact Person: Robert C. Elliott, PhD, Scientific Review Administrator, Center for NIEHS, P.O. Box 12233, MD EC–32, Immigration Services (USCIS) has Scientific Review, National Institutes of Research Triangle Park, NC 27709 submitted the following information Health, 6701 Rockledge Drive, Room 3130, (mail), (919) 316–4511 (fax), or collection request to the Office of MSC 7850, Bethesda, MD 20892, 301–435– [email protected] (e-mail). Courier Management and Budget (OMB) for 3009, [email protected]. address: CERHR, 79 T.W. Alexander review and clearance in accordance This notice is being published less than 15 Drive, Building 4401, Room 103, with the Paperwork Reduction Act of days prior to the meeting due to the timing Research Triangle Park, NC 27709. 1995. The information collection is
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00039 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74027
published to obtain comments from the must petition the U.S. Citizenship and [email protected]. When submitting public and affected agencies. Comments Immigration Services. comments by e-mail please make sure to are encouraged and will be accepted for (5) An estimate of the total number of add OMB Control Number 1615–0075 in sixty days until February 13, 2006. respondents and the amount of time the subject box. Written comments and Written comments and/or suggestions estimated for an average respondent to suggestions from the public and affected regarding the item(s) contained in this respond: 1,368 responses at 1 hour and agencies concerning the collection of notice, especially regarding the 15 minutes (1.25 hours) per response. information should address one or more estimated public burden and associated (6) An estimate of the total public of the following four points: response time, should be directed to the burden (in hours) associated with the (1) Evaluate whether the proposed Department of Homeland Security collection: 1,710 annual burden hours. collection of information is necessary (DHS), USCIS, Director, Regulatory If you have additional comments, for the proper performance of the Management Division, Clearance Office, suggestions, or need a copy of the functions of the agency, including 111 Massachusetts Avenue, 3rd Floor, proposed information collection whether the information will have Washington, DC 20529. Comments may instrument with instructions, or practical utility; also be submitted to DHS via facsimile additional information, please visit the (2) Evaluate the accuracy of the to 202–272–8352 or via e-mail at USCIS Web site at: http://uscis.gov/ agencies estimate of the burden of the [email protected]. When submitting graphics/formsfee/forms/pra/index.htm. proposed collection of information, comments by e-mail please make sure to If additional information is required including the validity of the add OMB Control Number 1615–0026 in contact: USCIS, Regulatory Management methodology and assumptions used; the subject box. Written comments and Division, 111 Massachusetts Avenue, (3) Enhance the quality, utility, and suggestions from the public and affected 3rd Floor, Washington, DC 20529, (202) clarity of the information to be agencies concerning the collection of 272–8377. collected; and information should address one or more Dated: December 8, 2005. (4) Minimize the burden of the collection of information on those who of the following four points: Richard A. Sloan, (1) Evaluate whether the collection of are to respond, including through the Director, Regulatory Management Division, use of appropriate automated, information is necessary for the proper U.S. Citizenship and Immigration Services. performance of the functions of the electronic, mechanical, or other [FR Doc. 05–23996 Filed 12–13–05; 8:45 am] agency, including whether the technological collection techniques or information will have practical utility; BILLING CODE 4410–10–M other forms of information technology, (2) Evaluate the accuracy of the e.g., permitting electronic submission of agency’s estimate of the burden of the responses. DEPARTMENT OF HOMELAND Overview of this information collection of information, including the SECURITY validity of the methodology and collection: assumptions used; U.S. Citizenship and Immigration (1) Type of Information Collection: (3) Enhance the quality, utility, and Services Extension of a currently approved clarity of the information to be collection. collected; and Agency Information Collection (2) Title of the Form/Collection: (4) Minimize the burden of the Activities: Comment Request Affidavit of Support under Section collection of information on those who 213A of the Act, and Contract Between are to respond, including through the ACTION: 60-Day notice of information Sponsor and Household Member. use of appropriate automated, collection under review: Affidavit of (3) Agency form number, if any, and electronic, mechanical, or other Support Under Section 213A of the Act the applicable component of the technological collection techniques or and Contract Between Sponsor and Department of Homeland Security other forms of information technology, Household Member, Form I–864, 1615– sponsoring the collection: Form I–864 e.g., permitting electronic submission of 0075. and Form I–864A. U.S. Citizenship and responses. Immigration Services. Overview of this information The Department of Homeland (4) Affected public who will be asked collection: Security, U.S. Citizenship and or required to respond, as well as a brief (1) Type of Information Collection: Immigration Services has submitted the abstract: Primary: Individuals or Extension of a Currently Approved following information collection request Households. The collection of Information Collection. for review and clearance in accordance information is mandated by law for a (2) Title of the Form/Collection: with the Paperwork Reduction Act of petitioning relative to submit an Immigrant Petition by Alien 1995. The information collection is affidavit on their relative’s behalf. The Entrepreneur. published to obtain comments from the executed form creates a contract (3) Agency form number, if any, and public and affected agencies. Comments between the sponsor and any entity that the applicable component of the are encouraged and will be accepted for provides means-tested public benefits. Department of Homeland Security sixty days until February 13, 2006. (5) An estimate of the total number of sponsoring the collection: Form I–526. Written comments and/or suggestions respondents and the amount of time U.S. Citizenship and Immigration regarding the item(s) contained in this estimated for an average respondent to Services. notice, especially regarding the respond: 539,500 principal I–864 (4) Affected public who will be asked estimated public burden and associated responses at 3.8 hours per response and or required to respond, as well as a brief response time, should be directed to the 195,000 dependent I–864 responses at abstract: Primary: Individuals or Department of Homeland Security .08 hours per response; and 215,800 I– Households. This form is used by (DHS), USCIS, Director, Regulatory 864A responses at 1.75 minutes per qualified immigrants seeking to enter Management Division, Clearance Office, response. the United States under section 111 Massachusetts Avenue, 3rd floor, (6) An estimate of the total public 203(b)(5) of the Immigration and Washington, DC 20529. Comments may burden (in hours) associated with the Nationality Act for the purpose of also be submitted to DHS via facsimile collection(s): 2,443,350 annual burden engaging in a commercial enterprise, to 202–272–8352 or via e-mail at hours.
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00040 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74028 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
If you have additional comments, functions of the agency, including Dated: December 8, 2005. suggestions, or need a copy of the whether the information will have Richard A. Sloan, proposed information collection practical utility; Director, Regulatory Management Division, instrument with instructions, or (2) Evaluate the accuracy of the U.S. Citizenship and Immigration Services. additional information, please visit the agencies estimate of the burden of the [FR Doc. 05–23998 Filed 12–13–05; 8:45 am] USCIS Web site at: http://uscis.gov/ proposed collection of information, BILLING CODE 4410–10–M graphics/formsfee/forms/pra/index.htm. including the validity of the If additional information is required methodology and assumptions used; contact: USCIS, Regulatory Management DEPARTMENT OF HOMELAND Division, 111 Massachusetts Avenue, (3) Enhance the quality, utility, and SECURITY 3rd Floor, Washington, DC 20529, (202) clarity of the information to be 272–8377. collected; and U.S. Citizenship and Immigration Services Dated: December 8, 2005. (4) Minimize the burden of the collection of information on those who Richard A. Sloan, Agency Information Collection are to respond, including through the Director, Regulatory Management Division, Activities: Comment Request U.S. Citizenship and Immigration Services, use of appropriate automated, Department of Homeland Security. electronic, mechanical, or other ACTION: 60-Day notice of information [FR Doc. 05–23997 Filed 12–13–05; 8:45 am] technological collection techniques or collection under review: Application to BILLING CODE 4410–10–M other forms of information technology, Replace Alien Registration Card, Form e.g., permitting electronic submission of I–90, 1615–0082. responses. DEPARTMENT OF HOMELAND Overview of this information The Department of Homeland SECURITY collection: Security, U.S. Citizenship and Immigration Services (USCIS) has U.S Citizenship and Immigration (1) Type of Information Collection: submitted the following information Services Extension of a currently approved collection request to the Office of information collection. Management and Budget (OMB) for Agency Information Collection (2) Title of the Form/Collection: review and clearance in accordance Activities: Comment Request Sponsor’s Notice of Change of Address. with the Paperwork Reduction Act of 1995. The information collection is ACTION: 60-Day Notice of information (3) Agency form number, if any, and collection under review: Sponsor’s the applicable component of the published to obtain comments from the Notice of Change of Address, Form I– Department of Homeland Security public and affected agencies. Comments 865, 1615–0076. sponsoring the collection: Form I–865. are encouraged and will be accepted for U.S. Citizenship and Immigration sixty days until February 13, 2006. The Department of Homeland Services (USCIS). Written comments and/or suggestions Security, U.S. Citizenship and regarding the item(s) contained in this (4) Affected public who will be asked Immigration Services has submitted the notice, especially regarding the or required to respond, as well as a brief following information collection request estimated public burden and associated abstract: Primary: Individuals or for review and clearance in accordance response time, should be directed to the Households. This form will be used by with the Paperwork Reduction Act of Department of Homeland Security every sponsor who has filed an Affidavit 1995. The information collection is (DHS), USCIS, Director, Regulatory published to obtain comments from the of Support under Section 213A of the Management Division, Clearance Office, public and affected agencies. Comments Immigration and Nationality Act (INA) 111 Massachusetts Avenue, 3rd floor, are encouraged and will be accepted for to notify the USCIS of a change of Washington, DC 20529. Comments may sixty days until February 13, 2006. address. The data will be used to locate also be submitted to DHS via facsimile Written comments and/or suggestions a sponsor if there is a request for to 202–272–8352 or via e-mail at regarding the item(s) contained in this reimbursement. [email protected]. When submitting notice, especially regarding the (5) An estimate of the total number of comments by e-mail please make sure to estimated public burden and associated respondents and the amount of time add OMB Control Number 1615–0082 in response time, should be directed to the estimated for an average respondent to the subject box. Written comments and Department of Homeland Security respond: 100,000 responses at .233 suggestions from the public and affected (DHS), USCIS, Director, Regulatory hours (14 minutes) per response. agencies concerning the collection of Management Division, Clearance Office, (6) An estimate of the total public information should address one or more 111 Massachusetts Avenue, 3rd floor, burden (in hours) associated with the of the following four points: Washington, DC 20529. Comments may collection: 23,300 annual burden hours. (1) Evaluate whether the proposed also be submitted to DHS via facsimile collection of information is necessary to 202–272–8352 or via e-mail at If you have additional comments, for the proper performance of the [email protected]. When submitting suggestions, or need a copy of the functions of the agency, including comments by e-mail please make sure to proposed information collection whether the information will have add OMB Control Number 1615–0076 in instrument with instructions, or practical utility; the subject box. Written comments and additional information, please visit the (2) Evaluate the accuracy of the suggestions from the public and affected USCIS Web site at: http://uscis.gov/ agencies estimate of the burden of the agencies concerning the collection of graphics/formsfee/forms/pra/index.htm. proposed collection of information, information should address one or more If additional information is required including the validity of the of the following four points: contact: USCIS, Regulatory Management methodology and assumptions used; (1) Evaluate whether the proposed Division, 111 Massachusetts Avenue, (3) Enhance the quality, utility, and collection of information is necessary 3rd Floor, Washington, DC 20529, (202) clarity of the information to be for the proper performance of the 272–8377. collected; and
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00041 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74029
(4) Minimize the burden of the DEPARTMENT OF HOMELAND e.g., permitting electronic submission of collection of information on those who SECURITY responses. are to respond, including through the Overview of this information use of appropriate automated, U.S. Citizenship and Immigration collection: electronic, mechanical, or other Services (1) Type of Information Collection: technological collection techniques or Extension of a currently approved Agency Information Collection information collection. other forms of information technology; Activities: Comment Request e.g., permitting electronic submission of (2) Title of the Form/Collection: responses. Application Requirements for the ACTION: 60-Day notice of information Adjustment of Status under Section 586 Overview of this information collection under review: Application of Public Law 106–249. collection: requirements for the adjustment of (3) Agency form number, if any, and status under section 586 of Public Law (1) Type of Information Collection: the applicable component of the 106–249; OMB–27, 1615–0081. Extension of currently approved Department of Homeland Security collection. The Department of Homeland sponsoring the collection: No Agency Form Number; File No. OMB–27, U.S. (2) Title of the Form/Collection: Security, U.S. Citizenship and Immigration Services (USCIS) has Citizenship and Immigration Services. Application to Replace Alien [1615–0081] Registration Card. submitted the following information collection request to the Office of (4) Affected public who will be asked (3) Agency form number, if any, and Management and Budget (OMB) for or required to respond, as well as a brief the applicable component of the review and clearance in accordance abstract: Primary: Individuals or Department of Homeland Security with the Paperwork Reduction Act of Households. The data is used by the sponsoring the collection: Form I–90. 1995. The information collection is agency to determine an applicant’s U.S. Citizenship and Immigration published to obtain comments from the eligibility for adjustment of status under Services. public and affected agencies. Comments section 586 of Public Law 106–249. (5) An estimate of the total number of (4) Affected public who will be asked are encouraged and will be accepted for sixty days until February 13, 2006. respondents and the amount of time or required to respond, as well as a brief estimated for an average respondent to abstract: Primary: Individuals or Written comments and/or suggestions regarding the item(s) contained in this respond: 5,000 responses at 30 (.05) households. The information collected minutes per response. will be used by USCIS to determine notice, especially regarding the estimated public burden and associated (6) An estimate of the total public eligibility for an initial Alien burden (in hours) associated with the Registration Card, or to replace a response time, should be directed to the Department of Homeland Security collection: 2,500 annual burden hours. previously issued card. If you have additional comments, (DHS), USCIS, Director, Regulatory suggestions, or need a copy of the (5) An estimate of the total number of Management Division, Clearance Office, proposed information collection respondents and the amount of time 111 Massachusetts Avenue, 3rd floor, instrument with instructions, or estimated for an average respondent to Washington, DC 20529. Comments may additional information, please visit the respond: 410,799 responses at 55 also be submitted to DHS via facsimile USCIS Web site at: http://uscis.gov/ minutes (.916) per response. to 202–272–8352 or via e-mail at graphics/formsfee/forms/pra/index.htm. [email protected]. When submitting (6) An estimate of the total public If additional information is required comments by e-mail please make sure to burden (in hours) associated with the contact: USCIS, Regulatory Management add OMB Control Number 1615–0081 in collection: 376,292 annual burden Division, 111 Massachusetts Avenue, the subject box. Written comments and hours. 3rd Floor, Washington, DC 20529, (202) suggestions from the public and affected 272–8377. If you have additional comments, agencies concerning the collection of suggestions, or need a copy of the information should address one or more Dated: December 9, 2005. proposed information collection of the following four points: Richard A. Sloan, instrument with instructions, or (1) Evaluate whether the proposed Director, Regulatory Management Division, additional information, please visit the collection of information is necessary U.S. Citizenship and Immigration Services. USCIS Web site at: http://uscis.gov/ for the proper performance of the FR Doc. 05–24018 Filed 12–13–05; 8:45 am] graphics/formsfee/forms/pra/index.htm. functions of the agency, including BILLING CODE 4410–10–M If additional information is required whether the information will have contact: USCIS, Regulatory Management practical utility; Division, 111 Massachusetts Avenue, (2) Evaluate the accuracy of the DEPARTMENT OF HOMELAND 3rd Floor, Washington, DC 20529, (202) agency’s estimate of the burden of the SECURITY 272–8377. proposed collection of information, including the validity of the U.S. Citizenship and Immigration Dated: December 9, 2005. methodology and assumptions used; Services Richard A. Sloan, (3) Enhance the quality, utility, and Agency Information Collection clarity of the information to be Director, Regulatory Management Division, Activities: Comment Request U.S. Citizenship and Immigration Services. collected; and [FR Doc. 05–24017 Filed 12–13–05; 8:45 am] (4) Minimize the burden of the ACTION: 60-Day notice of information BILLING CODE 4410–10–M collection of information on those who collection under review: Petition for are to respond, including through the Amerasian, Widow(er) or Special use of appropriate automated, Immigrant, Form I–360, 1615–0020. electronic, mechanical, or other technological collection techniques or The Department of Homeland other forms of information technology, Security, U.S. Citizenship and
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00042 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74030 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
Immigration Services has submitted the households. This form is used to your information no later than February following information collection request determine eligibility or to classify an 13, 2006. However, we will continue to for review and clearance in accordance alien as an Amerasian, widow or accept new information about any listed with the Paperwork Reduction Act of widower, battered or abused spouse or species at any time. 1995. The information collection is child and special immigrant, including ADDRESSES: Submit information to published to obtain comments from the religious worker, juvenile court Susan Linner, Field Supervisor, public and affected agencies. Comments dependent and armed forces member. Colorado Field Office, U.S. Fish and are encouraged and will be accepted for (5) An estimate of the total number of Wildlife Service, 755 Parfet Street, Suite sixty days until February 13, 2006. respondents and the amount of time 361, Lakewood, Colorado 80215. Written comments and/or suggestions estimated for an average respondent to Information received in response to this regarding the item(s) contained in this respond: 8,397 responses at (2) hours notice and review, as well as other notice, especially regarding the per response. documentation in our files, will be estimated public burden and associated (6) An estimate of the total public available for public inspection, by response time, should be directed to the burden (in hours) associated with the appointment, during normal business Department of Homeland Security collection: 16,794 annual burden hours. hours, at the above address. If you have additional comments, (DHS), USCIS, Director, Regulatory FOR FURTHER INFORMATION CONTACT: Management Division, Clearance Office, suggestions, or need a copy of the proposed information collection Susan Linner, Field Supervisor, at the 111 Massachusetts Avenue, 3rd floor, above address, or at 303–275–2370. Washington, DC 20529. Comments may instrument with instructions, or additional information, please visit the SUPPLEMENTARY INFORMATION: also be submitted to DHS via facsimile Under the ESA (16 U.S.C. 1531 et to 202–272–8352 or via e-mail at USCIS Web site at: http://uscis.gov/ graphics/formsfee/forms/pra/index.htm. seq.), the Service maintains a list of [email protected]. When submitting endangered and threatened wildlife and comments by e-mail please make sure to If additional information is required contact: USCIS, Regulatory Management plant species at 50 CFR 17.11 (for add OMB Control Number 1615–0020 in animals) and 17.12 (for plants). Section the subject box. Written comments and Division, 111 Massachusetts Avenue, 3rd Floor, Washington, DC 20529, (202) 4(c)(2)(A) of the ESA requires that we suggestions from the public and affected 272–8377. conduct a review of listed species at agencies concerning the collection of Dated: December 9, 2005. least once every 5 years. Based on such information should address one or more reviews, under section 4(c)(2)(B), we Richard A. Sloan, of the following four points: then determine whether or not any (1) Evaluate whether the proposed Director, Regulatory Management Division, species should be removed from the List collection of information is necessary U.S. Citizenship and Immigration Services. (delisted), or reclassified from for the proper performance of the [FR Doc. 05–24019 Filed 12–13–05; 8:45 am] endangered to threatened or from functions of the agency, including BILLING CODE 4410–10–M threatened to endangered. Delisting a whether the information will have species must be supported by the best practical utility; scientific and commercial data available (2) Evaluate the accuracy of the DEPARTMENT OF THE INTERIOR agency’s estimate of the burden of the and is only considered if these data collection of information, including the Fish And Wildlife Service substantiate that the species is neither validity of the methodology and endangered nor threatened for one or assumptions used; Endangered and Threatened Wildlife more of the following reasons—(1) The (3) Enhance the quality, utility, and and Plants; Initiation of a 5-Year species is considered extinct; (2) the clarity of the information to be Review of Greenback Cutthroat Trout species is considered to be recovered; collected; and (Oncorhynchus clarki stomias) and/or (3) the original data available (4) Minimize the burden of the when the species was listed, or the AGENCY: Fish and Wildlife Service, collection of information on those who interpretation of such data, were in Interior. are to respond, including through the error. Any change in Federal use of appropriate automated, ACTION: Notice. classification would require a separate rulemaking process. The regulations in electronic, mechanical, or other SUMMARY: The U.S. Fish and Wildlife 50 CFR 424.21 require that we publish technological collection techniques or Service (Service) announces a 5-year a notice in the Federal Register other forms of information technology, review of greenback cutthroat trout announcing those species currently e.g., permitting electronic submission of (Oncorhynchus clarki stomias) under under active review. This notice responses. the Endangered Species Act of 1973 announces our active review of the Overview of this information (ESA). A 5-year review is a periodic greenback cutthroat trout currently collection: process conducted to ensure that the listed as threatened. We request (1) Type of Information Collection: listing classification of a species is submission of any new information on Extension of currently approved accurate. A 5-year review is based on the greenback cutthroat trout that has collection. the best scientific and commercial data (2) Title of the Form/Collection: become available since since its available at the time of the review; Petition for Amerasian, Widow(er), or reclassification as a threatened species therefore, we are requesting submission Special Immigrant. in 1978 (43 FR 16343, April 18, 1978). (3) Agency form number, if any, and of any such information on greenback the applicable component of the cutthroat trout that has become Public Solicitation of New Information Department of Homeland Security available since its reclassification as a To ensure that the 5-year review is sponsoring the collection: Form I–360. threatened species in 1978. Based on the complete and based on the best U.S. Citizenship and Immigration results of this 5-year review, we will available scientific and commercial Services. make the requisite finding under the information, we are soliciting new (4) Affected public who will be asked ESA. information from the public, concerned or required to respond, as well as a brief DATES: To allow us adequate time to governmental agencies, tribes, the abstract: Primary: Individuals or conduct this review, we must receive scientific community, industry,
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00043 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74031
environmental entities, and any other DEPARTMENT OF THE INTERIOR Lincoln County interested parties concerning the status Nielsen Farm, 1125 E. Pike Dr., Sylvan of the greenback cutthroat trout. National Park Service Grove, 05001513 Shawnee County The 5-year review considers the best National Register of Historic Places; scientific and commercial data and all Notification of Pending Nominations Veale, Tinkham, Building, 909–911 S. Kansas new information that has become and Related Actions Ave., Topeka, 05001511 available since the listing Massachusetts determination. Categories of requested Nominations for the following Suffolk County information include—(A) species properties being considered for listing Stony Brook Reservation Parkways, biology, including but not limited to, or related actions in the National Metropolitan Park System of Great Boston population trends, distribution, Register were received by the National MPS, (Metropolitan Park System of Greater abundance, demographics, and genetics; Park Service before December 3, 2005. Boston MPS) Dedham, Enneking, Turtle (B) habitat conditions, including but not Pursuant to section 60.13 of 36 CFR Part Pond Parkways, Smith Field, Reservation, limited to amount, distribution, and 60 written comments concerning the W. Border Rds., Boston, 05001509 suitability; (C) conservation measures significance of these properties under Worcester County that have been implemented that benefit the National Register criteria for West Main Street Historic District (Boundary the species; (D) threat status and trends; evaluation may be forwarded by United Increase II), Roughly bounded by Charles, and (E) other new information, data, or States Postal Service, to the National Forbes, South and Cross Sts., Westborough, 05001516 corrections, including but not limited to Register of Historic Places, National taxonomic or nomenclatural changes, Park Service, 1849 C St., NW., 2280, North Dakota identification of erroneous information Washington, DC 20240; by all other Walsh County carriers, National Register of Historic contained in the List, and improved 1 Places, National Park Service,1201 Eye Odalen Lutherske Kirke, 6 mi W and ⁄4 mi analytical methods. N of Jct of ND 32 and Cty Rte 9, Edinburg, St., NW., 8th floor, Washington DC 05001517 If you wish to provide information for 20005; or by fax, 202–371–6447. Written this 5-year review, you may submit your or faxed comments should be submitted Ohio comments and materials to the Colorado by December 29, 2005. Clinton County Field Office Supervisor (see ADDRESSES). John W. Roberts, Underwood Farms Rural Historic District, Our practice is to make comments, Vicinity of OH 73 and Brimstone Rd., including names and home addresses of Acting Chief, National Register/National Chester Township, 05001519 Historic Landmarks Program. respondents, available for public review Columbiana County during regular business hours. Arizona McBean, Daniel, Farmstead, 18709 Fife Coal Respondents may request that we Maricopa County Rd., Wellsville, 05001518 withhold a respondent’s identity, as First Methodist Episcopal Church of Oregon allowable by law. If you wish us to Glendale Sanctuary, 7102 N. 58th Dr., Marion County withhold your name or address, you Glendale, 05001502 must state this request prominently at Floralcroft Historic District, Roughly Union Street Railroad Bridge and Trestle, Jct the beginning of your comment. bounded by State St., 59th Ave., Myrtle St., of Union St. NE and Water St. NE, Salem, 05001520 However, we will not consider Grand Ave. and 61st Ave., Glendale, anonymous comments. To the extent 05001505 Vermont Glendale Grammar School One-room Class Orange County consistent with applicable law, we will Building, 7301 N. 58th Dr., Glendale, make all submissions from 05001503 Camp Billings, (Organized Summer Camping organizations or businesses, and from Glendale Tract Historic District, 51st Ave. in Vermont MPS) 1452 VT 244, Thetford, individuals identifying themselves as and Northern Ave., Glendale, 05001506 05001524 representatives or officials of Tinker, C.H., House, 6838 N. 59th Dr., Washington County organizations or businesses, available Glendale, 05001504 Bridge No. 27, Town Hwy 61, Lover’s Ln., for public inspection in their entirety. Colorado Berlin, 05001523 Comments and materials received will Delta County Windsor County be available for public inspection, by First Presbyterian Church of Eckert, 13011 Spaulding Bridge, Mill St., Cavenish, appointment, during normal business and 13025 CO 65, Eckert, 05001507 05001522 hours (see ADDRESSES). Iowa Virginia Authority: This document is published Culpeper County under the authority of the Endangered Montgomery County Fairview Cemetery, VA 522, approx. 1⁄4 mi. Species Act of 1973, as amended (16 U.S.C. Red Oak Firehouse and City Jail, 318 E. W of Main St., Culpeper, 05001521 1531 et seq.). Washington Ave., Red Oak, 05001508 In the interest of preservation of the Dated: November 16, 2005. Kansas resource the comment period for the Richard A. Coleman, Chautauqua County following resource has been shortened to three (3) days: Regional Director, Denver, Colorado. Niotaze Methodist Episcopal Church, 301 N. [FR Doc. E5–7283 Filed 12–13–05; 8:45 am] F St., Niotaze, 05001512 Michigan BILLING CODE 4310–55–P Dickinson County Gratiot County Abilene Historic District #1, 301, 303, 305, Ithaca Downtown Historic District, 100–168 307, 309 N. Buckeye, Abilene, 05001514 and 101–161 E. Center St., Ithaca, Leavenworth County 05001510 First Presbyterian Church, Leavenworth, 407 [FR Doc. E5–7282 Filed 12–13–05; 8:45 am] Walnut St., Leavenworth, 05001515 BILLING CODE 4312–51–P
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00044 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74032 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
DEPARTMENT OF THE INTERIOR DEPARTMENT OF JUSTICE reservations of rights. DLA would pay $1.48 million in reimbursement for past Bureau of Reclamation Notice of Lodging of Consent Decree response costs incurred by EPA, its Under the Comprehensive remaining obligations under the AOC Safety Modifications and Flood Environmental Response, would terminate, and EPA would Damage Reduction Project for Folsom Compensation, and Liability Act assume responsibility for completing Dam and Appurtenant Structures Notice is hereby given that on the remaining clean up of the Site. DLA (Combined Federal Effort)— November 22, 2005, a proposed Consent also would receive contribution Sacramento, El Dorado, and Placer Decree (‘‘Consent Decree’’) in United protection. The Department of Justice will receive Counties, CA States v. Summit Equipment & for a period of thirty (30) days from the Supplies, Inc., et al., Civil Action No. AGENCY: date of this publication comments Bureau of Reclamation, 5:90CV1704, was lodged with the Interior. relating to the Consent Decree. United States District Court for the Comments should be addressed to the ACTION: Notice of additional public Northern District of Ohio, Eastern Assistant Attorney General, scoping meeting. Division. Environment and Natural Resources In this action, the United States Division, P.O. Box 7611, U.S. sought to recover response costs SUMMARY: Pursuant to section 102(2)(c) Department of Justice, Washington, DC incurred by the United States at or in of the National Environmental Policy 20044–7611, and should refer to United connection with the Summit Equipment Act of 1969 (NEPA) and Public States v. Summit Equipment & Resources Code, sections 21000–21177 & Supplies, Inc. Superfund Site (the Supplies, Inc., et al., Civil Action No. of the California Environmental Quality ‘‘Site’’) in Akron, Ohio, against alleged 5:90CV1704, D.J. Ref. 90–11–3–633 and generators of hazardous waste disposed Act (CEQA), the Bureau of Reclamation 90–11–3–633/2. of at the Site, pursuant to Sections 107 (Reclamation), the lead Federal agency; The Consent Decree may be examined and 113 of the Comprehensive the U.S. Army Corps of Engineers, a at the Office of the United States Environmental Response, cooperating Federal agency; and the Attorney, 801 West Superior Avenue, Compensation, and Liability Act California Reclamation Board/ Suite 400, Cleveland, Ohio 44113–1852, (‘‘CERCLA’’), 42 U.S.C. 9607, 9613. The and at U.S. EPA Region 5, 77 West Department of Water Resources, the lead United States sought to recover response State agencies; intend to prepare a joint Jackson Boulevard, 14th Floor, Chicago, costs incurred at or in connection with Illinois. During the public comment Draft Environmental Impact Statement/ the Site on behalf of the Administrator Environmental Impact Report (Draft period, the Consent Decree, may also be of the United States Environmental examined on the following Department EIS/EIR) for the Safety Modifications Protection Agency (‘‘EPA’’) and the and Flood Damage Reduction Project for of Justice Web site, http://www/ United States Defense Logistics Agency usdoj.gov/enrd/open.html. A copy of the Folsom Dam and Appurtenant (‘‘DLA’’), an agency within the United Structures (Combined Federal Effort). Consent Decree may also be obtained by States Department of Defense. Since July mail from the Consent Decree Library, The notice of intent to prepare an 1991, DLA has been performing the P.O. Box 7611, U.S. Department of environmental impact statement (EIS) response action at the Site pursuant to Justice, Washington, DC 20044–7611 for and notice of public scoping meetings an Administrative Order by Consent by faxing or e-mailing a request to Tonia was published in the Federal Register (‘‘AOC’’) with EPA under sections 104 Fleetwood ([email protected]), on October 6, 2005 (70 FR 58469). A and 106 of CERCLA, 42 U.S.C. 9604 and fax no. (202) 514–0097, phone notice of change to public scoping 9606. confirmation number (202) 514–1547. In meeting dates and locations was The Consent Decree would resolve the requesting a copy from the Consent published in the Federal Register on United States’ claims for past and future Decree Library, please enclose a check December 2, 2005 (70 FR 72314). response costs with regard to the Site in the amount of $12.75 (25 cents per Reclamation will have an additional against Settling Defendants through a page reproduction cost) payable to the scoping meeting on December 15, 2005. reimbursement to the Superfund of a U.S. Treasury. portion of the response costs incurred or DATES: The additional meeting will be to be incurred by the United States at or William D. Brighton, on December 15, 2005, from 5 to 7 p.m. in connection with the Site. Settling Assistant Chief, Environmental Enforcement in Sacramento, CA. Defendants would collectively pay a Section, Environment and Natural Resources Division. ADDRESSES: total of $1.36 million in reimbursement The added location is [FR Doc. 05–24037 Filed 12–13–05; 8:45 am] County Administration Center, Board for response costs that EPA has incurred BILLING CODE 4410–15–M Chamber Foyer, 700 H Street, at or in connection with the Site. (Each Sacramento, CA. Settling Defendant’s individual payment is listed in Appendix A to the Consent FOR FURTHER INFORMATION CONTACT: Mr. Decree). As a condition of settlement, NATIONAL ARCHIVES AND RECORDS Shawn Oliver, Bureau of Reclamation, Settling Defendants would relinquish all ADMINISTRATION 7794 Folsom Dam Road, Folsom, claims or causes of action with respect California 95630; telephone number to the Site against the United States, Records Schedules; Availability and (916) 989–7256; e-mail including DLA, and would waive all Request for Comments [email protected]. affirmative CERCLA claims or causes of AGENCY: National Archives and Records action that they may have against any Dated: December 2, 2005. Administration (NARA). person. In return, the Settling Frank Michny, ACTION: Notice of availability of Defendants would receive contribution proposed records schedules; request for Regional Environmental Officer, Mid-Pacific protection and a covenant not to sue comments. Region. from the United States for the work at [FR Doc. E5–7294 Filed 12–13–05; 8:45 am] the Site as well as past and future SUMMARY: The National Archives and BILLING CODE 4310–MN–P response costs, subject to certain Records Administration (NARA)
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00045 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74033
publishes notice at least once monthly schedules for NARA’s approval, using foreign countries and international air of certain Federal agency requests for the Standard Form (SF) 115, Request for carriers. Also included are electronic records disposition authority (records Records Disposition Authority. These copies of records created using schedules). Once approved by NARA, schedules provide for the timely transfer electronic mail and word processing. records schedules provide mandatory into the National Archives of Proposed for permanent retention are instructions on what happens to records historically valuable records and recordkeeping copies of files relating to when no longer needed for current authorize the disposal of all other the advisement and policy coordination Government business. They authorize records after the agency no longer needs of international transportation security the preservation of records of them to conduct its business. Some issues and foreign policy matters, final continuing value in the National schedules are comprehensive and cover agreements and technical analysis, and Archives of the United States and the all the records of an agency or one of its foreign airport assessments resulting in destruction, after a specified period, of major subdivisions. Most schedules, negative actions. records lacking administrative, legal, however, cover records of only one 2. Department of Homeland Security, research, or other value. Notice is office or program or a few series of U.S. Citizenship and Immigration published for records schedules in records. Many of these update Service (N1–566–05–1, 4 items, 4 which agencies propose to destroy previously approved schedules, and temporary items). Inputs, outputs, records not previously authorized for some include records proposed as master files, and documentation disposal or reduce the retention period permanent. associated with an electronic of records already authorized for No Federal records are authorized for information system used to track and disposal. NARA invites public destruction without the approval of the control administrative inquiries, comments on such records schedules, as Archivist of the United States. This criminal referrals, and national security required by 44 U.S.C. 3303a(a). approval is granted only after a cases related to fraudulent immigration DATES: Requests for copies must be thorough consideration of their claims. received in writing on or before January administrative use by the agency of 3. Department of Homeland Security, 30, 2006. Once the appraisal of the origin, the rights of the Government and U.S. Coast Guard (N1–26–05–1, 11 records is completed, NARA will send of private persons directly affected by items, 9 temporary items). Inputs, a copy of the schedule. NARA staff the Government’s activities, and master files, outputs, and system usually prepare appraisal whether or not they have historical or documentation associated with an memorandums that contain additional other value. electronic system used to manage the Besides identifying the Federal information concerning the records training activities of Coast Guard agencies and any subdivisions covered by a proposed schedule. These, personnel, course development, requesting disposition authority, this too, may be requested and will be funding, and instruction. Also included public notice lists the organizational provided once the appraisal is are electronic copies of records created unit(s) accumulating the records or completed. Requesters will be given 30 using electronic mail and word days to submit comments. indicates agency-wide applicability in the case of schedules that cover records processing. Proposed for permanent ADDRESSES: You may request a copy of that may be accumulated throughout an retention are unique or significant any records schedule identified in this agency. This notice provides the control training and course development notice by contacting the Life Cycle number assigned to each schedule, the materials, and related system Management Division (NWML) using total number of schedule items, and the documentation. one of the following means (Note the number of temporary items (the records 4. Department of Homeland Security, new address for requesting schedules proposed for destruction). It also U.S. Coast Guard (N1–26–05–11, 6 using e-mail): includes a brief description of the items, 6 temporary items). Inputs, Mail: NARA (NWML), 8601 Adelphi temporary records. The records master files, outputs, system Road, College Park, MD 20740–6001, schedule itself contains a full documentation, and electronic mail and E-mail: [email protected], word processing copies associated with FAX: 301–837–3698. description of the records at the file unit level as well as their disposition. If an electronic system used to process, Requesters must cite the control screen, and store data relating to ship number, which appears in parentheses NARA staff has prepared an appraisal memorandum for the schedule, it too arrival and departure notifications at after the name of the agency which U.S. seaports. submitted the schedule, and must includes information about the records. Further information about the 5. Department of Homeland Security, provide a mailing address. Those who U.S. Coast Guard (N1–26–05–20, 3 desire appraisal reports should so disposition process is available on request. items, 3 temporary items). Electronic indicate in their request. mail and word processing copies FOR FURTHER INFORMATION CONTACT: Schedules Pending (Note the New associated with routine medical and Laurence Brewer, Director, Life Cycle Address for Requesting Schedules Using dentistry correspondence. This schedule Management Division (NWML), E-Mail) also extends the retention period for National Archives and Records 1. Department of Homeland Security, recordkeeping copies of this Administration, 8601 Adelphi Road, Transportation Security Administration correspondence, which were previously College Park, MD 20740–6001. (N1–560–04–7, 11 items, 7 temporary approved for disposal. Telephone: 301–837–1539. E-mail: items). Records accumulated in the 6. Department of Homeland Security, [email protected]. Office of International Affairs, including U.S. Coast Guard (N1–26–05–23, 5 SUPPLEMENTARY INFORMATION: Each year copies of correspondence relating to items, 5 temporary items). Electronic Federal agencies create billions of international aviation matters, foreign mail and word processing copies records on paper, film, magnetic tape, assistance country files, background associated with laboratory and and other media. To control this materials relating to international immunology tests and logs, and accumulation, agency records managers agreements, routine foreign airport prosthetic case files. This schedule also prepare schedules proposing retention assessments, and related records extends the retention period for periods for records and submit these associated with activities involving recordkeeping copies of these files,
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00046 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74034 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
which were previously approved for proposed for permanent retention in a created using electronic mail or word disposal. separate schedule. Also included are processing. 7. Department of the Interior, Office of electronic copies of records created 16. Department of the Treasury, the Secretary (N1–48–05–4, 11 items, 2 using electronic mail and word Financial Management Service (N1– temporary items). Photographic records, processing. 425–06–1, 4 items, 4 temporary items). including inputs associated with a 11. Department of State, Bureau of Project files relating to terminated, digital imaging system and routine Diplomatic Security (N1–59–06–4, 1 obsolete, or superseded electronic photographs. Proposed for permanent item, 1 temporary item). Hard copies of information systems, and records retention are recordkeeping copies of notification messages relating to travel relating to the planning, preparing, and historically significant photographs, by foreign officials in the United States. conducting of electronic information including a master file of digital images 12. Department of Transportation, system training programs. Also included from historically significant shoots with Bureau of Transportation Statistics (N1– are electronic copies of records created related system documentation and 570–04–21, 4 items, 4 temporary items). using electronic mail or word outputs. Select photographs of senior Records relating to requests from air processing. officials and logbooks of photography carriers for compensation resulting from 17. Department of the Treasury, sessions are also proposed as business losses after the events of Internal Revenue Service (N1–58–05–2, permanent. September 11, 2001. Included are such 58 items, 56 temporary items). Records 8. Department of the Interior, Office of records as applications for the Secretary (N1–48–05–5, 9 items, 9 of the Division of Government Liaison compensation, correspondence, working and Disclosure relating to controlling temporary items). Records associated papers, and other documentation with legal discovery and document access to taxpayer information. Included associated with the calculation of are disclosure accounting forms, production. Included are copies of compensation. Also included are agency documents collected from disclosure certification documents, electronic copies of records created government information exchange bureaus and offices in response to using electronic mail and word congressional committee and agreements, requests for information, processing. This schedule authorizes the subcommittee requests, and court and an electronic tracking system for agency to apply the proposed subpoenas. Also included are guidance disclosure cases. Also included are disposition instructions to any memoranda and coordination plans, electronic copies created using recordkeeping medium. adequacy of search certifications, and electronic mail and word processing 13. Department of Transportation, electronic copies of records created applications. Proposed for permanent using electronic mail and word Bureau of Transportation Statistics (N1– retention are Congressional reports and processing. This schedule authorizes the 570–05–3, 10 items, 10 temporary related background files. This schedule agency to apply the proposed items). Records of the Research and authorizes the agency to apply the disposition instructions to any Innovative Technology Administration proposed disposition instructions to any recordkeeping medium. consisting of patent, trademark, and recordkeeping medium. 9. Department of the Interior, Office of copyright case files. Also included are 18. Environmental Protection Agency, the Secretary (N1–48–05–7, 16 items, 9 electronic copies of records using Office of the Chief Financial Officer temporary items). Records of the Office electronic mail and word processing. (N1–412–05–10, 5 items, 5 temporary of Communications, including drafts The schedule authorizes the agency to items). Inputs, outputs, master files, and clearance files of public information apply the proposed disposition documentation, and software associated releases and speeches of senior officials, instructions to any recordkeeping with an administrative data warehouse Web versions of the employee news medium. consisting of read-only copies of data magazine and magazine planning and 14. Department of Transportation, from various agency financial publication files, press clippings in Federal Motor Carrier Safety management systems. hardcopy format, and electronic copies Administration (N1–557–05–5, 26 19. Environmental Protection Agency, of records created using electronic mail items, 24 temporary items). Records Office of Prevention, Pesticides, and and word processing. Proposed for accumulated by the Office of Toxic Substances (N1–412–05–7, 6 permanent retention are recordkeeping Management Information and Services, items, 4 temporary items). Inputs, copies of public information releases including budget background records, outputs, and software associated with and speeches in hardcopy format and chronological files, directives files, an electronic system used to provide electronic format as posted on the property and supplies files, and statistics on pesticide accidents agency’s Web site. This schedule employee safety program files. Also involving human, animal, and modifies descriptions of these records included are electronic copies of records environmental injuries. Master files and previously approved as permanent. Also created using electronic mail and word supporting documentation are proposed proposed as permanent are processing. Proposed for permanent for permanent retention. recordkeeping copies of the employee retention are recordkeeping copies of 20. District Courts of the United States news magazine in hardcopy and internal directives relating to significant (N1–21–06–1, 3 items, 3 temporary electronic formats, and daily policy issues. This schedule authorizes items). Electronic and paper inputs into compilations of news articles and the agency to apply the proposed the Case Management and Electronic editorials in electronic format. disposition instructions to any Case Filing System. Case files in 10. Department of the Interior, Office recordkeeping medium. electronic and paper form are covered of the Secretary (N1–48–05–8, 3 items, 15. Department of the Treasury, by previously approved schedules. 3 temporary items). Records relating to Bureau of Public Debt (N1–53–06–1, 4 the administration of the agency’s items, 4 temporary items). Activity Dated: December 8, 2005. public web site and electronic analysis records of the Financial Michael J. Kurtz, recordkeeping copies of Web site Management Division consisting of Assistant Archivist for Records Services— content, not including English-language spreadsheets of financial data detailing Washington, DC. versions of speeches and public the costs of Bureau services. Also [FR Doc. E5–7323 Filed 12–13–05; 8:45 am] information releases, which are included are electronic copies of records BILLING CODE 7515–01–P
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00047 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74035
NUCLEAR REGULATORY NUCLEAR REGULATORY review, the staff has determined that COMMISSION COMMISSION there are no additional remediation activities necessary to complete the [Docket No. 040–07354] [Docket No. 50–271; License No. Dpr–28] proposed action. Therefore, the staff considered the impact of the residual Notice of Availability of Environmental radioactivity in the BTD area and Entergy Nuclear Vermont Yankee, LLC Assessment and Finding of No concluded that since the residual and Entergy Nuclear Operations, Inc.; Significant Impact for License radioactivity meets the requirements in Receipt of Request for Action Under 10 Amendment for Department of the Subpart E of 10 CFR Part 20, a Finding CFR 2.206 Army’s Bomb Throwing Device (BTD) of No Significant Impact is appropriate. Area in Aberdeen Proving Ground, MD Notice is hereby given that by petition III. Finding of No Significant Impact dated October 11, 2005, Mr. Jonathan M. AGENCY: Nuclear Regulatory Commission. The staff has prepared the EA Block requested that the Nuclear (summarized above) in support of the ACTION: Regulatory Commission (NRC) take Notice of availability. license amendment to release the BTD action with regard to Vermont Yankee area for unrestricted use. The NRC staff FOR FURTHER INFORMATION CONTACT: Nuclear Power Station (Vermont has evaluated the Department of the Elizabeth Ullrich, Commerical and R&D Yankee). The petitioner requested that Army’s request and the results of the the NRC require a temporary closure or Branch, Division of Nuclear Materials surveys and has concluded that the de-rating of Vermont Yankee. Safety, Region I, 475 Allendale Road, completed action complies with the King of Prussia, Pennsylvania 19406, As a basis for this request, the criteria in Subpart E of 10 CFR Part 20. telephone (610) 337–5040, fax (610) The staff has found that the radiological petitioner stated that evacuations would 337–5269; or by e-mail: [email protected]. be impossible as a result of recent storm environmental impacts from the action SUPPLEMENTARY INFORMATION: are bounded by the impacts evaluated damage to the city of Keene, town of by NUREG–1496, Volumes 1–3, Hinsdale in New Hampshire, and other I. Introduction ‘‘Generic Environmental Impact portions of New Hampshire that are part The Nuclear Regulatory Commission Statement in Support of Rulemaking on of existing evacuation routes for (NRC) is considering issuing a license Radiological Criteria for License Vermont Yankee or within the effluent amendment to the Department of the Termination of NRC-Licensed pathway in an emergency event. Army, U.S. Army Aberdeen Test Center, Facilities’’ (ML042310492, The petition is being treated pursuant for Materials License No. SUB–834, to ML042320379, and ML042330385). to 10 CFR 2.206 of the Commission’s authorize release of its Bomb Throwing Additionally, no non-radiological or regulations. The petition has been Device (BTD) area in Aberdeen Proving cumulative impacts were identified. On referred to the Director of the Office of Ground, Maryland, for unrestricted use. the basis of the EA, the NRC has Nuclear Reactor Regulation. As NRC has prepared an Environmental concluded that the environmental Assessment (EA) in support of this provided by Section 2.206, appropriate impacts from the action are expected to action in accordance with the action will be taken on this petition be insignificant and has determined not requirements of 10 CFR Part 51. Based within a reasonable time. Copies of the to prepare an environmental impact on the EA, the NRC has concluded that statement for the action. petition are available for inspection at a Finding of No Significant Impact the Commission’s Public Document (FONSI) is appropriate. IV. Further Information Room, located at One White Flint North, Documents related to this action, Public File Area O1 F21, 11555 II. EA Summary including the application for the license Rockville Pike (first floor), Rockville, The purpose of the proposed action is amendment and supporting Maryland. Publicly available records to authorize the release of the licensee’s documentation, are available will be accessible from the Agencywide BTD area located at Aberdeen Proving electronically at the NRC’s Electronic Documents Access and Management Ground, Aberdeen, Maryland, for Reading Room at http://www.nrc.gov/ System (ADAMS) Public Electronic unrestricted use. The Department of the reading-rm/adams.html. From this site, Reading Room on the Internet at the Army was authorized by AEC/NRC from you can access the NRC’s Agencywide NRC Web site, http://www.nrc.gov/ June 4, 1965, to use radioactive Document Access and Management reading-rm/adams.html. Persons who materials for munitions testing and System (ADAMS), which provides text do not have access to ADAMS or who research and development purposes in and image files of NRC’s public encounter problems in accessing the the BTD area. On January 13, 2005, the documents. The ADAMS accession documents located in ADAMS, should Department of the Army requested that numbers for the documents related to contact the NRC PDR Reference staff by NRC release the facility for unrestricted this Notice are: ‘‘Environmental telephone at 1–800–397–4209 or 301– use. The Department of the Army has Assessment Related to Issuance of a 415–4737, or by e-mail to [email protected]. conducted surveys of the facility and License Amendment of U.S. Nuclear provided information to the NRC to Regulatory Commission Materials demonstrate that the site meets the License No. SUB–834, Department of Dated at Rockville, Maryland this 7th day license termination criteria in Subpart E the Army, Aberdeen, Maryland’’ of December, 2005. of 10 CFR Part 20 for unrestricted use. [ML053410059], ‘‘Radiological Final For the Nuclear Regulatory Commission. The NRC staff has prepared an EA in Status Survey Report, Bomb Throwing Cornelius F. Holden, support of the license amendment. The Device Site—Soils’’ [ML052770370], Deputy Director, Division of Operating BTD area was remediated and surveyed and Remediation and Final Status Reactor Licensing, Office of Nuclear Reactor prior to the licensee requesting the Survey, Bomb Throwing Device Site— Regulation. license amendment. The NRC staff has Structures’’ [ML052770376]. Persons [FR Doc. E5–7300 Filed 12–13–05; 8:45 am] reviewed the information and final who do not have access to ADAMS or status survey submitted by the who encounter problems in accessing BILLING CODE 7590–01–P Department of the Army. Based on its the documents located in ADAMS,
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00048 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74036 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
should contact the NRC PDR Reference II. EA Summary IV. Further Information staff by telephone at (800) 397–4209 or Documents related to this action, (301) 415–4737, or by e-mail to The purpose of the proposed action is to authorize the release of the licensee’s including the application for the license [email protected]. amendment and supporting Transonic Range located on Aberdeen Documents related to operations documentation, are available Proving Ground, Maryland, for conducted under this license not electronically at the NRC’s Electronic unrestricted use. Department of the specifically referenced in this Notice Reading Room at http://www.nrc.gov/ may not be electronically available and/ Army was authorized by AEC/NRC from reading-rm/adams.html. From this site, or may not be publicly available. April 12, 1961, to use radioactive you can access the NRC’s Agencywide Persons who have an interest in materials for munitions testing and Document Access and Management reviewing these documents should research and development purposes at System (ADAMS), which provides text submit a request to NRC under the the site. On January 13, 2005, the and image files of NRC’s public Freedom of Information Act (FOIA). Department of the Army requested that documents. The ADAMS accession Instructions for submitting a FOIA NRC release the site for unrestricted use. numbers for the documents related to request can be found on the NRC’s Web The Department of the Army has this Notice are: ‘‘Environmental site at http://www.nrc.gov/reading-rm/ conducted surveys of the site and Assessment Related to Issuance of a foia/foia-privacy.html. provided information to the NRC to License Amendment of U.S. Nuclear Dated at King of Prussia, Pennsylvania this demonstrate that the site meets the Regulatory Commission Materials 7th day of December, 2005. license termination criteria in Subpart E License No. SMB–141, Department of For the Nuclear Regulatory Commission. of 10 CFR Part 20 for unrestricted use. the Army, Aberdeen, Maryland’’ James P. Dwyer, The NRC staff has prepared an EA in [ML053410278], ‘‘Remediation and Chief, Commercial and R&D Branch, Division support of the license amendment. The Final Status Survey, Transonic Range of Nuclear Materials Safety, Region I. site was remediated and surveyed prior Depleted Uranium Study Area— [FR Doc. E5–7298 Filed 12–13–05; 8:45 am] to the licensee requesting the license Structures’’ [ML050280349 and BILLING CODE 7590–01–P amendment. The NRC staff has ML050280354], and ‘‘Radiological Final reviewed the information and final Status Survey, Transonic Range-Land status survey submitted by the Areas, Depleted Uranium Study Area’’ NUCLEAR REGULATORY Department of the Army. Based on its [ML050280341]. Persons who do not COMMISSION review, the staff has determined that have access to ADAMS or who there are no additional remediation encounter problems in accessing the [Docket No. 040–06394] activities necessary to complete the documents located in ADAMS, should proposed action. Therefore, the staff contact the NRC PDR Reference staff by Notice of Availability of Environmental considered the impact of the residual telephone at (800) 397–4209 or (301) Assessment and Finding of No radioactivity at the site and concluded 415–4737, or by e-mail to [email protected]. Significant Impact for License that since the residual radioactivity Documents related to operations conducted under this license not Amendment for Department of the meets the requirements in Subpart E of specifically referenced in this Notice Army’s Transonic Range Facility in 10 CFR Part 20, a Finding of No may not be electronically available and/ Aberdeen Proving Ground, MD Significant Impact is appropriate. or may not be publicly available. AGENCY: Nuclear Regulatory III. Finding of No Significant Impact Persons who have an interest in Commission. reviewing these documents should ACTION: Notice of availability. The staff has prepared the EA submit a request to NRC under the (summarized above) in support of the Freedom of Information Act (FOIA). FOR FURTHER INFORMATION CONTACT: license amendment to release the Instructions for submitting a FOIA Elizabeth Ullrich, Commercial and R&D Transonic Range for unrestricted use. request can be found on the NRC’s web Branch, Division of Nuclear Materials The NRC staff has evaluated the site at http://www.nrc.gov/reading-rm/ Safety, Region I, 475 Allendale Road, Department of the Army’s request and foia/foia-privacy.html. the results of the surveys and has King of Prussia, Pennsylvania 19406, Dated at King of Prussia, Pennsylvania this telephone (610) 337–5040, fax (610) concluded that the completed action 7th day of December, 2005. 337–5269; or by e-mail: [email protected]. complies with the criteria in Subpart E For the Nuclear Regulatory Commission. of 10 CFR Part 20. The staff has found SUPPLEMENTARY INFORMATION: James P. Dwyer, that the radiological environmental I. Introduction Chief, Commercial and R&D Branch, Division impacts from the action are bounded by of Nuclear Materials Safety, Region I. the impacts evaluated by NUREG–1496, The Nuclear Regulatory Commission [FR Doc. E5–7297 Filed 12–13–05; 8:45 am] (NRC) is considering issuing a license Volumes 1–3, ‘‘Generic Environmental BILLING CODE 7590–01–P amendment to the Department of the Impact Statement in Support of Army, U.S. Army Research Laboratory, Rulemaking on Radiological Criteria for for Materials License No. SMB–141, to License Termination of NRC-Licensed NUCLEAR REGULATORY authorize release of its Transonic Range Facilities’’ (ML042310492, COMMISSION in Aberdeen Proving Ground, Maryland, ML042320379, and ML042330385). for unrestricted use. NRC has prepared Additionally, no non-radiological or Sunshine Act: Meetings an Environmental Assessment (EA) in cumulative impacts were identified. On support of this action in accordance the basis of the EA, the NRC has DATES: Weeks of December 12, 19, 26, with the requirements of 10 CFR Part concluded that the environmental 2005, January 2, 9, 16, 2006. 51. Based on the EA, the NRC has impacts from the action are expected to PLACE: Commissioners’ Conference concluded that a Finding of No be insignificant and has determined not Room, 11555 Rockville Pike, Rockville, Significant Impact (FONSI) is to prepare an environmental impact Maryland. appropriate. statement for the action. STATUS: Public and closed.
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00049 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74037
MATTERS TO BE CONSIDERED: at: http://www.nrc.gov/what-we-do/ changes to end state requirements for policy-making/schedule.html. required actions in Boiling Water Week of December 12, 2005 * * * * * Reactor (BWR) plants’ technical Monday, December 12, 2005 ADDITIONAL INFORMATION: By a vote of 4– specifications (TS). The NRC staff has also prepared a model no-significant- 8:50 a.m. Affirmation Session (Public 1 on December 7, the Commission hazards-consideration (NSHC) Meeting) (Tentative). a. Exelon determined pursuant to U.S.C. 552b(e) determination relating to this matter. Generation Company, LLC (Early Site and § 9.107(a) of the Commission’s rules The purpose of these models is to Permit for Clinton Site) (Tentative) that ‘‘Discussion of International Issues (closed—ex. 9)’’ be held December 8, permit the NRC to efficiently process 9:00 a.m. Discussion of Security Issues amendments that propose to adopt (closed—ex. 1) and on less than one week’s notice to the public. technical specifications changes, Wednesday, December 14, 2005 designated as TSTF–423, related to * * * * * Topical Report GE NEDC–32988, 2:00 p.m. Discussion of Security Issues The NRC provides reasonable Revision 2, ‘‘Technical Justification to (closed—ex. 1) accommodation to individuals with support Risk Informed Modification to disabilities where appropriate. If you Thursday, December 15, 2005 Selected Required Action End States for need a reasonable accommodation to BWR Plants,’’ which was approved by 1:30 p.m. Briefing on Threat participate in these public meetings, or an NRC SE dated September 27, 2002. Environment Assessment (closed—ex. need this meeting notice or the Licensees of BWR nuclear power 1) transcript or other information from the reactors to which the models apply public meetings in another format (e.g. Week of December 19, 2005—Tentative could then request amendments, braille, large print), please notify the confirming the applicability of the SE There are no meetings scheduled for NRC’s Disability Program Coordinator, and NSHC determination to their the Week of December 19, 2005. August Spector, at 301–415–7080, TDD: reactors. The NRC staff is requesting Week of December 26, 2005—Tentative 301–415–2100, or by e-mail at comment on the model SE and model [email protected]. Determinations on NSHC determination prior to There are no meetings scheduled for requests for reasonable accommodation announcing their availability for the Week of December 26, 2005. will be made on a case-by-case basis. referencing in license amendment Week of January 2, 2006—Tentative * * * * * applications. This notice is distributed by mail to DATES: The comment period expires There are no meetings scheduled for several hundred subscribers; if you no the Week of January 2, 2006. January 13, 2006. Comments received longer wish to receive it, or would like after this date will be considered if it is Week of January 9, 2006—Tentative to be added to the distribution, please practical to do so, but the Commission contact the Office of the Secretary, Tuesday, January 10, 2006 is able to ensure consideration only for Washington, DC 20555 (301–415–1969). comments received on or before this 9:30 a.m. Briefing on International In addition, distribution of this meeting date. Research and Bilateral Agreements. notice over the Internet system is ADDRESSES: Comments may be (Contact: Roman Shaffer, 301–415– available. If you are interested in submitted either electronically or via 7606.) receiving this Commission meeting U.S. mail. Comments may be submitted This meeting will be webcast live at schedule electronically, please send an electronic message to [email protected]. by electronic mail to [email protected]. the Web address http://www.nrc.gov. Submit written comments to Chief, Dated: December 8, 2005 Wednesday, January 11, 2006 Rules and Directives Branch, Division of R. Michelle Schroll, Administrative Services, Office of 9:30 a.m. Meeting with Advisory Office of the Secretary. Administration, Mail Stop: T–6 D59, Committee on Nuclear Waste [FR Doc. 05–24064 Filed 12–12–05; 12:07 U.S. Nuclear Regulatory Commission, (ACNW). (Contact: John Larkins, 301– pm] Washington, DC 20555–0001. Hand 415–7360.) BILLING CODE 7590–01–M deliver comments to: 11545 Rockville This meeting will be webcast live at Pike, Rockville, Maryland, between 7:45 the Web address http://www.nrc.gov. a.m. and 4:15 p.m. on Federal workdays. NUCLEAR REGULATORY Copies of comments received may be Thursday, January 12, 2006 COMMISSION examined at the NRC’s Public Document 9:30 a.m. Discussion of Security Issues Room, 11555 Rockville Pike (Room O– (closed—ex. 1 & 2) Notice of Opportunity To Comment on 1F21), Rockville, Maryland. Model Safety Evaluation on Technical FOR FURTHER INFORMATION CONTACT: T. R. Week of January 16, 2006—Tentative Specification Improvement for Boiling Tjader, Mail Stop: O–12H2, Division of Water Reactor Plants; to Risk-Inform Thursday, January 19, 2006 Inspection and Regional Support, Office Requirements Regarding Selected of Nuclear Reactor Regulation, U.S. 1:30 p.m. Discussion of Security Issues Required Action End States Using the Nuclear Regulatory Commission, (closed—ex. 1) Consolidated Line Item Improvement Washington, DC 20555–0001, telephone Process *The schedule for Commission 301–415–1187. meetings is subject to change on short AGENCY: Nuclear Regulatory SUPPLEMENTARY INFORMATION: notice. To verify the status of meetings Commission. call (recording)—(301) 415–1292. Background ACTION: Request for comment. Contact person for more information: Regulatory Issue Summary 2000–06, Michelle Schroll, (301) 415–1662. SUMMARY: Notice is hereby given that ‘‘Consolidated Line Item Improvement * * * * * the staff of the Nuclear Regulatory Process for Adopting Standard The NRC Commission Meeting Commission (NRC) has prepared a Technical Specification Changes for Schedule can be found on the Internet model safety evaluation (SE) relating to Power Reactors,’’ was issued on March
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00050 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74038 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
20, 2000. The consolidated line item TSTF–423 include Bases for the Proposed Model Plant Specific Safety improvement process (CLIIP) is proposed TS consistent with the Bases Evaluation for Technical Specification intended to improve the efficiency of proposed in TSTF–423. In addition, Task Force (TSTF) Change TSTF–423, NRC licensing processes, by processing licensees that have not adopted Risk Informed Modification to Selected proposed changes to the standard requirements for a Bases control Required Action End States, a technical specifications (STS) in a program by converting to the improved Consolidated Line Item Improvement manner that supports subsequent STS or by other means, are requested to license amendment applications. The include the requirements for a Bases Safety Evaluation by the Office of CLIIP includes an opportunity for the control program consistent with the STS Nuclear Reactor Regulation; Related to ll public to comment on proposed changes in their application for the proposed Amendment No. [ ] to Facility ll to the STS after a preliminary change. The need for a Bases control Operating License NFP–[ ], [Utility ll assessment by the NRC staff and finding program stems from the need for Name], [Plant Name], [Unit ], Docket that the change will likely be offered for adequate regulatory control of some key No.–[ll] adoption by licensees. The CLIIP directs elements of the proposal that are 1.0 Introduction the NRC staff to evaluate any comments contained in the proposed Bases in received for a proposed change to the TSTF–423. The staff is requesting that By letter dated llll, 20 l, STS and to either reconsider the change the Bases be included with the proposed [Utility Name] (the licensee) proposed or announce the availability of the license amendments in this case changes to the technical specifications change for adoption by licensees. because the changes to the TS and the (TS) for [plant name]. The requested Licensees opting to apply for this TS changes to the associated Bases form an changes are the adoption of TSTF–423, change are responsible for reviewing the integral change to a plant’s licensing Revision 0, to the Boiling Water Reactor staff’s evaluation, referencing the bases. To ensure that the overall change, (BWR) Standard Technical applicable technical justifications, and including the Bases, includes Specifications (STS) (NUREG 1433 and providing any necessary plant-specific appropriate regulatory controls, the staff NUREG 1434), which was proposed by information. Each amendment plans to condition the issuance of each the Nuclear Energy Institute (NEI) Risk application made in response to the license amendment on the licensee’s Informed Technical Specifications Task notice of availability will be processed incorporation of the changes into the Force (RITSTF) on August 12, 2003, on and noticed in accordance with Bases document and on requiring the behalf of the industry. TSTF–423, applicable NRC rules and procedures. licensee to control the changes in Revision 0, incorporates the BWR This notice solicits comment on accordance with the Bases Control Owners Group (BWROG) approved changes to end state requirements for Program. The CLIIP does not prevent Topical Report NEDC–32988, Revision required actions, if risk is assessed and licensees from requesting an alternative 2, ‘‘Technical Justification to Support managed, for the primary purpose of approach or proposing the changes Risk Informed Modification to Selected accomplishing short-duration repairs without the requested Bases and Bases Required Action End States for BWR which necessitated exiting the original control program. However, deviations Plants’’ (Reference 1), into the BWR STS Mode of operation. The change was from the approach recommended in this (Note: The changes are made with proposed in Topical Report GE NEDC– notice may require additional review by respect to Revision 2 of the STS 32988, Revision 2, ‘‘Technical the NRC staff and may increase the time NUREGs). Justification to support Risk Informed and resources needed for the review. TSTF–423 is one of the industry’s Modification to Selected Required Public Notices initiatives developed under the Risk Action End States for BWR Plants,’’ Management Technical Specifications This notice requests comments from which was approved by an NRC SE (RMTS) program. These initiatives are interested members of the public within dated September 27, 2002. This change intended to maintain or improve safety 30 days of the date of publication in the was proposed for incorporation into the through the incorporation of risk Federal Register. After evaluating the standard technical specifications by the assessment and management techniques owners groups participants in the comments received as a result of this in TS, while reducing unnecessary Technical Specification Task Force notice, the staff will either reconsider burden and making TS requirements (TSTF) and is designated TSTF–423. the proposed change or announce the consistent with the Commission’s other TSTF–423 can be viewed on the NRC’s availability of the change in a risk-informed regulatory requirements, Web page at http://www.nrc.gov/ subsequent notice (perhaps with some in particular the maintenance rule. reactors/operating/licensing/ changes to the safety evaluation or the techspecs.html. proposed NSHC determination as a The Code of Federal Regulations, 10 result of public comments). If the staff CFR 50.36, ‘‘Technical Specifications,’’ Applicability announces the availability of the states: ‘‘When a limiting condition for This proposal to modify technical change, licensees wishing to adopt the operation of a nuclear reactor is not met, specification requirements by the change must submit an application in the licensee shall shut down the reactor adoption of TSTF–423 is applicable to accordance with applicable rules and or follow the remedial action permitted all licensees of BWR plants who have other regulatory requirements. For each by the technical specification until the adopted or will adopt, in conjunction application, the staff will publish a condition can be met.’’ The STS and with the proposed change, technical notice of consideration of issuance of many plant TS provide a completion specification requirements for a Bases amendment to facility operating time (CT) for the plant to meet the control program consistent with the TS licenses, a proposed NSHC limiting condition for operation (LCO). Bases Control Program described in determination, and a notice of If the LCO or the remedial action cannot Section 5.5 of the applicable vendor’s opportunity for a hearing. The staff will be met, then the reactor is required to STS. also publish a notice of issuance of an be shut down. When the STS and To efficiently process the incoming amendment to operating license to individual plant technical specifications license amendment applications, the announce the modification of end state were written, the shutdown condition or staff requests that each licensee requirements for required actions in end state specified was usually cold applying for the changes proposed in plant technical specifications. shutdown.
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00051 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74039
Topical Report NEDC–32988, for operation (LCOs); (3) surveillance In practice, the risk during shutdown Revision 2, provides the technical basis requirements (SRs); (4) design features; operations is often addressed via to change certain required end states and (5) administrative controls. The rule voluntary actions and application of 10 when the TS Actions for remaining in does not specify the particular CFR 50.65 (Reference 3), the power operation cannot be met within requirements to be included in a plant’s maintenance rule. Section 50.65(a)(4) the CTs. Most of the requested TS TS. As stated in 10 CFR 50.36(c)(2)(i), states: ‘‘Before performing maintenance changes permit an end state of hot the ‘‘Limiting conditions for operation activities * * * the licensee shall assess shutdown (Mode 3), if risk is assessed are the lowest functional capability or and manage the increase in risk that and managed, rather than an end state performance levels of equipment may result from the proposed of cold shutdown (Mode 4) contained in required for safe operation of the maintenance activities. The scope of the the current TS. The request was limited facility. When a limiting condition for assessment may be limited to structures, to those end states where: (1) Entry into operation of a nuclear reactor is not met, systems, and components that a risk- the shutdown mode is for a short the licensee shall shut down the reactor informed evaluation process has shown interval, (2) entry is initiated by or follow any remedial action permitted to be significant to public health and inoperability of a single train of by the technical specifications * * *.’’ safety.’’ Regulatory Guide (RG) 1.182 equipment or a restriction on a plant Reference 1 states: ‘‘Cold shutdown is (Reference 4) provides guidance on operational parameter, unless otherwise normally required when an inoperable implementing the provisions of 10 CFR stated in the applicable TS, and (3) the system or train cannot be restored to an 50.65(a)(4) by endorsing the revised primary purpose is to correct the operable status within the allowed time. Section 11 (published separately) to initiating condition and return to power Going to cold shutdown results in the NUMARC 93–01, Revision 2. The operation as soon as is practical. loss of steam-driven systems, challenges revised Section 11 of NUMARC 93–01, The STS for BWR plants define five the shutdown heat removal systems, Revision 2, was subsequently operational modes. In general, they are: and requires restarting the plant. A more incorporated into Revision 3 of • Mode 1—Power Operation. The preferred operational mode is one that NUMARC 93–01 (Reference 5). reactor mode switch is in run position. maintains adequate risk levels while However, Revision 3 has not yet been • Mode 2—Reactor Startup. The repairs are completed without causing formally endorsed by the NRC. The reactor mode switch is in refuel position unnecessary challenges to plant changes in TSTF–423 are consistent (with all reactor vessel head closure equipment during shutdown and startup with the rules, regulations and bolts fully tensioned) or in startup/hot transitions.’’ In the end state changes associated regulatory guidance, as noted standby position. under consideration here, a problem above. • Mode 3—Hot Shutdown. The with a component or train has or will 3.0 Technical Evaluation reactor coolant system (RCS) result in a failure to meet a TS, and a The changes proposed in TSTF–423 temperature is above 200 degrees F (TS controlled shutdown has begun because specific) and the reactor mode switch is are consistent with the changes a TS Action requirement cannot be met proposed and justified in Topical Report in shutdown position (with all reactor within the TS CT. vessel head closure bolts fully GE NEDC–32988–A, Revision 2, and Most of today’s TS and the design tensioned). approved by the associated NRC SE basis analyses were developed under • Mode 4—Cold Shutdown. The RCS (Reference 6). The evaluation included the perception that putting a plant in temperature is equal to or less than 200 in Reference 6, as appropriate and cold shutdown would result in the degrees F and the reactor mode switch applicable to the changes of TSTF–423 safest condition and the design basis is in shutdown position (with all reactor (Reference 7), is reiterated here and analyses would bound credible vessel head closure bolts fully differences from the SE are justified. In shutdown accidents. In the late 1980s tensioned). its application the licensee commits to • Mode 5—Refueling. The reactor and early 1990s, the NRC and licensees TSTF–IG–05–02, Implementation mode switch is in shutdown or refuel recognized that this perception was Guidance for TSTF–423, Revision 0, position, and one or more reactor vessel incorrect and took corrective actions to ‘‘Technical Specifications End States, head closure bolts are less than fully improve shutdown operation. At the NEDC–32988–A,’’ (Reference 8), which tensioned. same time, standard TS were developed addresses a variety of issues such as Criticality is not allowed in Modes 3 and many licensees improved their TS. considerations and compensatory through 5. Since enactment of a shutdown rule was actions for risk-significant plant TSTF–423 generally allows a Mode 3 expected, almost all TS changes configurations. An overview of the end state rather than a Mode 4 end state involving power operation, including a generic evaluation and associated risk for selected initiating conditions in revised end state requirement, were assessment is provided below, along order to perform short-duration repairs postponed (see, for example the Final with a summary of the associated TS which necessitate exiting the original Policy Statement on TS Improvements, changes justified by Reference 1. Mode of operation. Short duration Reference 2). However, in the mid repairs are on the order of 2- to 3-days, 1990s, the Commission decided a 3.1 Risk Assessment but not more than a week. shutdown rule was not necessary in The objective of the BWROG topical light of industry improvements. report (Reference 1) risk assessment was 2.0 Regulatory Evaluation Controlling shutdown risk to show that any risk increases In 10 CFR 50.36, the Commission encompasses control of conditions that associated with the proposed changes in established its regulatory requirements can cause potential initiating events and TS end states are either negligible or related to the content of TS. Pursuant to responses to those initiating events that negative (i.e., a net decrease in risk). 10 CFR 50.36(c), TS are required to do occur. Initiating events are a function The BWROG topical report include items in the following five of equipment malfunctions and human documents a risk-informed analysis of specific categories related to station error. Responses to events are a function the proposed TS change. Probabilistic operation: (1) Safety limits, limiting of plant sensitivity, ongoing activities, Risk Assessment (PRA) results and safety system settings, and limiting human error, defense-in-depth, and insights are used, in combination with control settings; (2) limiting conditions additional equipment malfunctions. results of deterministic assessments, to
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00052 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74040 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
identify and propose changes in ‘‘end redundant trains is normally covered by 27, 2002. [NOTE: Only those changes states’’ for all BWR plants. This is in a single LCO. When multiple LCOs proposed in TSTF–423 are addressed in accordance with guidance provided in occur, which affect trains in several this SE. The SE and associated topical RG 1.174 (Reference 9) and RG 1.177 systems, the plant’s risk-informed report address the entire fleet of BWR (Reference 10). The three-tiered configuration risk management program plants, and the plants adopting TSTF– approach documented in RG 1.177, ‘‘An (CRMP), or the risk assessment and 423 must confirm the applicability of Approach for Plant-Specific, Risk- management program implemented in the changes to their plant.] Following Informed Decision Making: Technical response to the Maintenance Rule 10 are the proposed changes, including a Specifications,’’ was followed. The first CFR 50.65(a)(4), shall ensure that high- synopsis of the STS LCO, the change, tier of the three-tiered approach risk configurations are avoided. As part and a brief conclusion of acceptability. includes the assessment of the risk of the implementation of TSTF–423, the 3.2.1 TS 4.5.1.2 and LCO 3.4.3 (BWR/ impact of the proposed change for licensee commits to follow Section 11 of 4); TS 4.5.2.2 and LCO 3.4.4 (BWR/6), comparison to acceptance guidelines NUMARC 93–01, Revision 3, and Safety/Relief Valves (SRVs) consistent with the Commission’s Safety include guidance in appropriate plant Goal Policy Statement, as documented procedures and/or administrative The function of the SRVs is to protect in RG 1.174 entitled ‘‘An Approach for controls to preclude high-risk plant the plant against severe Using Probabilistic Risk Assessment in configurations when the plant is at the overpressurization events. These TS Risk-Informed Decisions on Plant- proposed end state. The staff finds that provide the operability requirements for Specific Changes to the Licensing such guidance is adequate for the SRVs as described below. The TS Basis.’’ In addition, the first tier aims at preventing risk-significant plant change allows the plant to remain in ensuring that there are no unacceptable configurations. Mode 3 until the repairs are completed. • temporary risk increases during the Configuration Risk Management [Note: Plant Applicability, BWR4/6] implementation of the proposed TS (Tier 3). The licensee has a program in change, such as when equipment is place to comply with 10 CFR 50.65 LCO: The safety function of 11 SRVs taken out of service. The second tier (a)(4) to assess and manage the risk from must be operable (BWR/4 plants). The addresses the need to preclude proposed maintenance activities. This safety function of seven SRVs must be potentially high-risk configurations program can support a licensee decision operable and the relief function of seven which could result if equipment is taken in selecting the appropriate actions to additional SRVs must be operable out of service concurrently with the control risk for most cases in which a (BWR/6 plants). Condition requiring entry into end implementation of the proposed TS risk-informed TS is entered. change. The third tier addresses the The generic risk impact of the state: If the LCO cannot be met with one application of 10 CFR 50.65(a)(4) of the proposed end state mode change was or two SRVs inoperable, the inoperable Maintenance Rule for identifying risk- evaluated subject to the following valves must be returned to operability significant configurations resulting from assumptions: within 14 days. If the SRVs cannot be maintenance related activities and 1. The entry into the proposed end returned to operable status within that taking appropriate compensatory state is initiated by the inoperability of time, the plant must be placed in Mode measures to avoid such configurations. a single train of equipment or a 3 within 12 hours and in Mode 4 within Unless invoked, such as by this or restriction on a plant operational 36 hours. another TS application, 50.65(a)(4) is parameter, unless otherwise stated in Proposed modification for end state applicable to maintenance related the applicable technical specification. required actions: If the LCO cannot be activities and does not cover other 2. The primary purpose of entering met with one or two SRVs inoperable, operational activities beyond the effect the end state is to correct the initiating the inoperable valves must be returned they may have on existing maintenance condition and return to power as soon to operability within 14 days. If the one related risk. as is practical. or two inoperable SRVs cannot be BWROG’s risk assessment approach 3. When Mode 3 is entered as the returned to operable status within 14 was found comprehensive and repair end state, the time the reactor days, the plant must be placed in Mode acceptable in the SE for the topical coolant pressure is above 500 psig will 3 within 12 hours. If three or more SRVs report. In addition, the analyses show be minimized. If reactor coolant become inoperable, the plant must be that the three-tiered approach criteria pressure is above 500 psig for more than placed in Mode 4 within 36 hours. for allowing TS changes are met as 12 hours, the associated plant risk will Assessment: The BWROG topical follows: be assessed and managed. report did a comparative PRA • Risk Impact of the Proposed Change These assumptions are consistent evaluation of the core damage risks of (Tier 1). The risk changes associated with typical entries into Mode 3 for operation in the current end state and in with the TS changes in TSTF–423, in short duration repairs, which is the the proposed Mode 3 end state. The terms of mean yearly increases in core intended use of the TS end state evaluation indicates that the core damage frequency (CDF) and large early changes. damage risks are lower in Mode 3 than release frequency (LERF), are risk The staff concludes that, in general, in Mode 4. Going to Mode 4 for one neutral or risk beneficial. In addition, going to Mode 3 (hot shutdown) instead inoperable SRV would cause loss of the there are no significant temporary risk of going to Mode 4 (cold shutdown) to high-pressure steam-driven injection increases, as defined by RG 1.177 carry out equipment repairs that are of system (reactor core isolation cooling criteria, associated with the short duration, does not have any (RCIC)/high pressure coolant injection implementation of the TS end state adverse effect on plant risk. (HPCI)), and loss of the power changes. conversion system (condenser/ • Avoidance of Risk-Significant 3.2 Assessment of TS Changes feedwater), and require activating the Configurations (Tier 2). The performed The changes proposed by the licensee residual heat removal (RHR) system. In risk analyses, which are based on single and in TSTF–423 are consistent with addition, emergency operating LCOs, shows that there are no high-risk the changes proposed in topical report procedures (EOPs) direct the operator to configurations associated with the TS GE NEDC–32988, Revision 2, and take control of the depressurization end state changes. The reliability of approved by the NRC SE of September function if low pressure injection/spray
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00053 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74041
systems are needed for reactor pressure c. If two ECCS injection subsystems in the current end state Mode 4. Going vessel (RPV) water makeup and cooling. are inoperable or one ECCS injection to Mode 4 for one ECCS subsystem or Based on the low probability of loss of subsystem and one ECCS spray system one ADS valve would cause loss of the the necessary overpressure protection are inoperable, one ECCS injection/ high-pressure steam-driven injection function and the number of systems spray subsystem must be restored to system (RCIC/HPCI), and loss of the available in Mode 3, the staff concludes operable status within 72 hours. If this power conversion system (condenser/ in the SE (reference 6) for the BWROG required action cannot be met, the plant feedwater), and require activating the topical report that the risks of staying in must be placed in Mode 3 within 12 RHR system. In addition, Plant Mode 3 are approximately the same as, hours and in Mode 4 within 36 hours Emergency Operating Procedures (EOPs) and in some cases lower than, the risks (BWR/6 plants only). direct the operator to take control of the of going to the Mode 4 end state. The d. If the HPCI/High Pressure Core depressurization function if low- change allows the inoperable SRV to be Spray (HPCS) system is inoperable, the pressure injection/spray systems are repaired in a plant operating mode with RCIC system must be verified to be needed for RPV water makeup and lower risks. After repairs are made, the operable by administrative means cooling. Based on the low probability of plant can be brought to full-power within 1 hour and the HPCI/HPCS loss of the reactor coolant inventory and operation with less potential for system restored to operable status the number of systems available in transients and errors. The plant is taken within 14 days. Mode 3, the staff concludes in the SE to into cold shutdown only when three or e. If one ADS valve is inoperable, it the BWR topical report that the risks of more SRVs are inoperable. Since the must be restored to operable status staying in Mode 3 are approximately the time spent in Mode 3 to perform the within 14 days. same as, and in some cases lower than, repair is infrequent and limited, the f. If one ADS valve is inoperable and the risks of going to the Mode 4 end proposed change is acceptable, one low-pressure ECCS injection/spray state. particularly in light of defense-in-depth subsystem is inoperable, the ADS valve Finding: Based on the above considerations. must be restored to operable status assessment, and because the time spent Finding: Based on the above within 72 hours or the low-pressure in Mode 3 to perform the repair is assessment, the staff finds that the ECCS injection/spray subsystem must infrequent and limited, and in light of requested change to allow operation in be restored to operable status within 72 defense-in-depth considerations, the Mode 3 with a minimum number of hours. proposed change is acceptable. SRVs inoperable after plant risk has g. If two or more ADS valves become inoperable, or the required actions 3.2.3 TS 4.5.1.4 and LCO 3.5.3 (BWR/ been assessed and managed, is 4 only), Reactor Core Isolation Cooling acceptable. described in items e and/or f cannot be met, the plant must be placed in Mode (RCIC) System 3.2.2 TS 4.5.1.3 and LCO 3.5.1 (BWR/ 3 within 12 hours and the reactor steam The function of the RCIC system is to 4); TS 4.5.2.3 and LCO 3.5.1 (BWR/6), dome pressure reduced to less than 150 provide reactor coolant makeup during Emergency Core Cooling Systems psig within 36 hours. loss of feedwater and other transient (ECCS) (Operating) Proposed modification for end state events. This TS provides the operability The ECCS systems provide cooling required actions: requirements for the RCIC system as a. No change water to the core in the event of a loss- described below. The TS change allows b. If the ECCS injection or spray of-coolant accident (LOCA). This set of the plant to remain in Mode 3 until the system is inoperable, the plant must be ECCS TS provide the operability repairs are completed. restored to operable status within 12 requirements for the various ECCS [Note: Plant Applicability, BWR/4] hours. The plant is not taken into Mode subsystems as described below. This TS 4 (cold shutdown). LCO: The RCIC system must be change would delete the secondary c. If two ECCS injection subsystems operable during Modes 1, 2 and 3 when actions. The plant can remain in Mode are inoperable or one ECCS injection the reactor steam dome pressure is 3 until the required repair actions are subsystem and one ECCS spray system greater than 150 psig. completed. The reactor is not are inoperable, one ECCS injection/ Condition requiring entry into end depressurized. spray subsystem must be restored to state: If the LCO cannot be met, the [Note: Plant Applicability, BWR4/6] operable status within 72 hours. If this following actions must be taken: (a) required action cannot be met, the plant verify by administrative means within 1 LCO: Each ECCS injection/spray hour that the HPCI system is operable, subsystem and the automatic must be placed in Mode 3 within 12 hours. The plant is not taken into Mode (b) restore the RCIC system to operable depressurization system (ADS) function status within 14 days. If either or both of seven BWR/4, or eight BWR/6, SRVs 4 (BWR/6 plants only). d. No change actions cannot be completed within the must be operable. e. No change allotted time, the plant must be placed Conditions requiring entry into end f. No change in Mode 3 within 12 hours and the state: If the LCO cannot be met, the g. If two or more ADS valves become reactor steam dome pressure reduced to following actions must be taken for the inoperable or the required actions less than 150 psig within 36 hours. listed conditions: described in item e and/or f cannot be Proposed modification for end state a. If one low-pressure ECCS injection/ met, the plant must be placed in Mode required actions: This TS change keeps spray subsystem is inoperable, the 3 within 12 hours. The reactor is not the plant in Mode 3 (hot shutdown) subsystem must be restored to operable depressurized and not taken to Mode 4. until the required repairs are completed. status in 7 days. Assessment: The BWROG topical The reactor steam dome pressure is not b. If the inoperable ECCS injection/ report did a comparative PRA reduced to less than 150 psig. core spray cannot be restored to evaluation of the core damage risks of Assessment: This change would allow operable status, the plant must be operation in the current end state and the inoperable RCIC system to be placed in Mode 3 within 12 hours and the proposed Mode 3 end state. The repaired in a plant operating mode with Mode 4 within 36 hours (BWR/4 plants evaluation indicates that the core lower risk and without challenging the only). damage risks are lower in Mode 3 than normal shutdown systems. The BWROG
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00054 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74042 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
topical report did a comparative PRA damage risks are lower in Mode 3 than hours for one Electric Power Assembly evaluation of the core damage risks of in Mode 4, the current end state. Going (EPA) inoperable or within one hour for operation in the current end state and in to Mode 4 for one LLS inoperable SRV both EPAs inoperable. In Modes 1, 2, the proposed Mode 3 end state. The would cause loss of the high-pressure and 3, if the in-service power supply(s) evaluation indicates that the core steam-driven injection system (RCIC/ cannot be removed from service within damage risks are lower in Mode 3 than HPCI), and loss of the power conversion the allotted time, the plant must be in Mode 4. Going to Mode 3 with reactor system (condenser/feedwater), and placed in Mode 3 within 12 hours and steam dome pressure less than 150 psig would require activating the RHR Mode 4 within 36 hours. for inoperability of RCIC would also system. With one LLS valve inoperable, Proposed Modification: The proposed cause loss of the high-pressure steam- the remaining valves are adequate to change is to keep the plant in Mode 3 driven injection system HPCI and loss of perform the required function. EOPs until the repair actions are completed. the power conversion system direct the operator to take control of the Delete required action in C.2 which (condenser/ feedwater), and would depressurization function if low required the plant to be in Mode 4. require activating the RHR system. In pressure injection/spray systems are Assessment: To reach Mode 3 per the addition, Plant EOPs direct the operator needed for RPV water makeup and TS, there must be a functioning power to take control of the depressurization cooling. Based on the low probability of supply with degraded protective function if low pressure injection/spray loss of the necessary overpressure circuitry in operation. However, the systems are needed for RPV water protection function during the over voltage, under voltage, or under makeup and cooling. Based on the low infrequent and limited time in Mode 3 frequency condition must exist for an probability of loss of the necessary and the number of systems available in extended time period to cause damage. overpressure protection function and Mode 3, the staff concludes in the SE to There is a low probability of this the number of systems available in the BWR topical report that the risks of occurring in the short period of time Mode 3, the staff concludes in the SE to staying in Mode 3 are approximately the that the plant would remain in Mode 3 the BWR topical report that the risks of same as and in some cases lower than without this protection. staying in Mode 3 are approximately the the risks of going to the Mode 4 end The specific failure condition of same as, and in some cases lower than, state. The proposed change allows interest is not risk significant for BWR the risks of going to the Mode 4 end repairs of the inoperable SRV to be PRAs. If the required restoration actions state. performed in a plant operating mode cannot be completed within the Finding: Based upon the above with lower risks. specified time, going into Mode 4 would assessment, and because the time spent Finding: Based upon the above cause loss of the high-pressure steam- in Mode 3 to perform the repair is assessment, and because the time spent driven injection system (RCIC/HPCI) infrequent and limited, and in light of in Mode 3 to perform the repair is and loss of the power conversion system defense-in-depth considerations, the infrequent and limited, and in light of (condenser/feedwater), and would proposed change is acceptable. defense-in-depth considerations, the require activating the RHR system. In proposed change is acceptable. addition, EOPs direct the operator to 3.2.4 TS 4.5.1.6 and LCO 3.6.1.6 take control of the depressurization (BWR/4); TS 5.5.2.5 and LCO 3.6.1.6 3.2.5 TS 4.5.1.1, TS 4.5.2.1 and LCO function if low pressure injection/spray (BWR/6), Low-Low Set Logic (LLS) 3.3.8.2, Reactor Protection System (RPS) systems are needed for RPV water Valves Electric Power Monitoring makeup and cooling. Based on the low The function of LLS logic is to RPS Electric Power Monitoring probability of loss of the RPS power prevent excessive short-duration SRV System is provided to isolate the RPS monitoring system during the infrequent cycling during an overpressure event. bus from the motor generator (MG) set and limited time in Mode 3 and the This TS provides operability or an alternate power supply in the number of systems available in Mode 3, requirements for the four LLS SRVs as event of over voltage, under voltage, or the staff concludes in the SE to the BWR described below. The TS change allows under frequency. This system protects topical report that the risks of staying in the plant to remain in Mode 3 until the the load connected to the RPS bus Mode 3 are approximately the same as repairs are completed. against unacceptable voltage and and in some cases lower than the risks of going to the Mode 4 end state. [Note: Plant Applicability, BWR 4/6] frequency conditions and forms an important part of the primary success Finding: Based upon the above Conditions requiring entry into end path of the essential safety circuits. assessment, and because the time spent state: If one LLS valve is inoperable, it Some of the essential equipment in Mode 3 to perform the repair is must be returned to operability within powered from the RPS buses includes infrequent and limited, and in light of 14 days. If the LLS valve cannot be the RPS logic, scram solenoids, and defense-in-depth considerations, the returned to operable status within the various valve isolation logic. The TS proposed change is acceptable. allotted time, the plant must be placed change allows the plant to remain in 3.2.6 TS 4.5.1.19 and LCO 3.8.1(BWR/ in Mode 3 within 12 hours and in Mode Mode 3 until the repairs are completed. 4 within 36 hours. 4); TS 4.5.2.17 and LCO 3.8.1(BWR/6), Proposed modification for end state [Note: Plant Applicability, BWR 4/6] AC Sources (Operating) required actions: The TS change would LCO: For Modes 1, 2, 3 and Modes 4 The purpose of the AC electrical keep the plant in Mode 3 until the and 5 (with any control rod withdrawn system is to provide during all required repair actions are completed. from a core cell containing one or more situations the power required to put and The plant would not be taken into Mode fuel assemblies), two RPS electric power maintain the plant in a safe condition 4 (cold shutdown). monitoring assemblies shall be operable and prevent the release of radioactivity Assessment: The BWROG topical for each in-service RPS motor generator to the environment. report did a comparative PRA set or alternate power supply. The Class 1E electrical power evaluation of the core damage risks of Condition Requiring Entry into End distribution system AC sources consist operation in the current end state and State: If the LCO cannot be met, the of the offsite power source (preferred the proposed Mode 3 end state. The associated in-service power supply(s) power sources, normal and alternate(s)), evaluation indicates that the core must be removed from service within 72 and the onsite standby power sources
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00055 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74043
(e.g., emergency diesel generators The BWROG topical report did a Condition requiring entry into end (EDGs)). In addition, many sites provide comparative PRA evaluation of the core state: The plant operators must bring the a crosstie capability between units. damage risks of operation in the current plant to Mode 3 within 12 hours and As required by General Design end state and in the proposed Mode 3 Mode 4 within 36 hours following the Criterion (GDC) 17 of 10 CFR Part 50, end state. Events initiated by the loss of sustained inoperability of one DC Appendix A, the design of the AC offsite power are dominant contributors electrical power subsystem for a period electrical system provides to core damage frequency in most BWR of 2 hours. independence and redundancy. The PRAs, and the steam-driven core cooling Proposed modification for end state onsite Class 1E AC distribution system systems, RCIC and HPCI, play a major required actions: The proposed TS is divided into redundant divisions so role in mitigating these events. The change is to remove the requirement to that the loss of any one division does evaluation indicates that the core place the plant in Mode 4, Required not prevent the minimum safety damage risks are lower in Mode 3 than Actions in D.2 (BWR/4) and E.2 (BWR/ functions from being performed. Each in Mode 4 for one inoperable AC power 6) are deleted. division has connections to two source. Going to Mode 4 for one Assessment: If one of the DC electrical preferred offsite power sources and a inoperable AC power source would power subsystems is inoperable, the single EDG or other Class 1E Standby cause loss of the high-pressure steam- remaining DC electrical power AC power source. driven injection system (RCIC/HPCI), subsystems have the capacity to support Offsite power is supplied to the unit and loss of the power conversion system a safe shutdown and to mitigate an switchyard(s) from the transmission (condenser/feedwater), and require accident condition. The BWROG topical network by two transmission lines. activating the RHR system. In addition, report did a comparative PRA From the switchyard(s), two electrically EOPs direct the operator to take control evaluation of the core damage risks of and physically separated circuits of the depressurization function if low operation in the current end state and in provide AC power through a stepdown pressure injection/spray systems are the proposed Mode 3 end state, with transformer(s) to the 4.16-kV emergency needed for RPV water makeup and one DC system inoperable. Events buses. cooling. Based on the low probability of initiated by the loss of offsite power are In the event of a loss of offsite power, loss of the AC power and the number of dominant contributors to core damage the emergency electrical loads are steam-driven systems available in Mode frequency in most BWR PRAs, and the automatically connected to the EDGs in 3, the staff concludes in the SE to the steam-driven core cooling systems, RCIC sufficient time to provide for a safe BWR topical report that the risks of and HPCI, play a major role in reactor shutdown and to mitigate the staying in Mode 3 are lower than going mitigating these events. The evaluation consequence of a design basis accident to the Mode 4 end state. indicates that the core damage risks are (DBA) such as a LOCA. Finding: Based upon the above lower in Mode 3 than in Mode 4. Going [Note: Plant Applicability, BWR 4/6] assessment, and because the time spent to Mode 4 for one inoperable DC power LCO: The following AC electrical in Mode 3 to perform the repair is source would cause loss of the high- power sources shall be operable in infrequent and limited, and in light of pressure steam-driven injection system Modes 1, 2, and 3: defense-in-depth considerations, the (RCIC/HPCI), and loss of the power a. Two qualified circuits between the proposed change is acceptable. conversion system (condenser/ offsite transmission network and the 3.2.7 TS 4.5.1.20 and LCO 3.8.4 (BWR/ feedwater), and require activating the onsite Class1E AC Electric Power 4); TS 4.5.2.18 and LCO 3.8.4 DC RHR system. In addition, EOPs direct Distribution System, Sources (Operating) the operator to take control of the b. Three EDGs, depressurization function if low c. Automatic Load Sequencers. The purpose of the DC power system pressure injection/spray systems are Condition requiring entry into end is to provide a reliable source of DC needed for RPV water makeup and state: Plant operators must bring the power for both normal and abnormal cooling. Based on the low probability of plant to Mode 4 within 36 hours conditions. It must supply power in an loss of the DC power and the number of following the sustained inoperability of emergency for an adequate length of systems available in Mode 3, the staff one required Automatic Load time until normal supplies can be concludes in the SE to the BWR topical Sequencer; either or both required restored. report that the risks of staying in Mode offsite circuits; either one, two or three The DC electrical system: 3 are approximately the same as and in required EDGs; or one required offsite a. Provides the AC emergency power some cases lower than the risks of going circuit and one, two or three required system with control power, to the Mode 4 end state. EDGs. b. Provides motive and control power Finding: Based upon the above Proposed modification for end state to selected safety related equipment, assessment, and because the time spent require actions: Delete required action and in Mode 3 to perform the repair is G.2 to go to Mode 4 (cold shutdown). c. Provides power to preferred AC infrequent and limited, and in light of The plant will remain in Mode 3 (hot vital buses (via inverters). defense-in-depth considerations, the shutdown). [Note: Plant Applicability, BWR 4/6] proposed change is acceptable. Assessment: Entry into any of the 3.2.8 TS 4.5.1.21 and LCO 3.8.7 (BWR/ conditions for the AC power sources LCO: For Modes 1, 2 and 3, the 4); TS 4.5.2.19 and 3.8.7 (BWR/6), implies that the AC power sources have following DC sources are required to be Inverters (Operating) been degraded and the single failure operable: protection for the safe shutdown BWR/4: The (Division 1 and Division In Modes 1, 2, and 3, the inverters equipment may be ineffective. 2 station service, and DG 1B, 2A, and provide the preferred source of power Consequently, as specified in TS 3.8.1 at 2C) DC electrical power systems shall be for the 120-VAC vital buses which present, the plant operators must bring operable. power the reactor protection system the plant to Mode 4 when the required BWR/6: The (Divisions 1, 2, and 3) DC (RPS) and the Emergency Core Cooling action is not completed by the specified electrical power subsystems shall be Systems (ECCS) initiation. The inverter time for the associated action. operable. can be powered from an internal AC
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00056 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74044 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
source/rectifier or from the station 3.2.9 TS 4.5.1.22 and LCO 3.8.9 (BWR/ DC/AC vital subsystems inoperable. battery. 4); TS 4.5.2.20 and LCO 3.8.9 (BWR/6), Events initiated by the loss of offsite [Note: Plant Applicability, BWR 4/6] Distribution Systems (Operating) power are dominant contributors to core The onsite Class 1E AC and DC damage frequency in most BWR PRAs, LCO: For Modes 1, 2, and 3 the electrical power distribution system is and the steam-driven core cooling following Inverters shall be operable: divided into redundant and systems, RCIC and HPCI, play a major role in mitigating these events. The BWR/4: The (Division 1 and Division independent AC, DC, and AC vital bus evaluation indicates that the core 2) shall be operable. electrical power distribution systems. The primary AC electrical power damage risks are lower in Mode 3 than BWR/6: The (Divisions 1, 2, and 3) distribution subsystem for each division in Mode 4. Going to Mode 4 for one shall be operable. consists of a 4.16-kV Engineered Safety inoperable AC/DC/AC vital subsystem Condition requiring entry into end Feature (ESF) bus having an offsite would cause loss of the high-pressure state: The plant operators must bring the source of power as well as a dedicated steam-driven injection system (RCIC/ plant to Mode 3 within 12 hours and onsite EDG source. The secondary plant HPCI), and loss of the power conversion Mode 4 within 36 hours following the distribution subsystems include 600- system (condenser/feedwater), and sustained inoperability of the required VAC emergency buses and associated require activating the RHR system. In inverter for a period of 24 hours. load centers, motor control centers, addition, EOPs direct the operator to take control of the depressurization Proposed modification for end state distribution panels and transformers. function if low pressure injection/spray required actions: The proposed TS The 120-VAC vital buses are arranged in systems are needed for RPV water change is to remove the requirement to four load groups and normally powered makeup and cooling. Based on the low place the plant in Mode 4. Required from DC via the inverters. There are two independent 125/250-VDC station probability of loss of the AC/DC/AC Actions in B.2 (BWR/4) and C.2 (BWR/ vital electrical subsystems during the 6) are deleted. service electrical power distribution systems and three independent 125- infrequent and limited time in Mode 3 Assessment: If one of the Inverters is VDC DG electrical power distribution and the number of systems available in inoperable, the remaining Inverters have subsystems that support the necessary Mode 3, the staff concludes in the SE to the capacity to support a safe shutdown power for ESF functions. Each the BWR topical report that the risks of and to mitigate an accident condition. subsystem consists of a 125-VDC and staying in Mode 3 are approximately the The BWROG topical report did a 250-VDC bus and associated same as and in some cases lower than comparative PRA evaluation of the core distribution panels. the risks of going to the Mode 4 end damage risks of operation in the current [Note: Plant Applicability, BWR 4/6] state. end state and in the proposed Mode 3 Finding: Based upon the above end state, with an inoperable Inverter. LCO: For Modes 1, 2, and 3, the assessment, and because the time spent Events initiated by the loss of offsite following electrical power distribution in Mode 3 to perform the repair is power are dominant contributors to core subsystems shall be operable: infrequent and limited, and in light of damage frequency in most BWR PRAs, BWR/4: The Division 1 and Division defense-in-depth considerations, the and the steam-driven core cooling 2 AC, DC, and AC vital buses shall be proposed change is acceptable. systems, RCIC and HPCI, play a major operable. 3.2.10 TS 4.5.1.5 and LCO 3.6.1.1, role in mitigating these events. The BWR/6: The Divisions 1, 2, and 3 AC, Primary Containment evaluation indicates that the core DC, and AC vital buses shall be damage risks are lower in Mode 3 than operable. The function of the primary Condition requiring entry into end in Mode 4. Going to Mode 4 for one containment is to isolate and contain state: The plant operators must bring the inoperable Inverter power source would fission products released from the plant to Mode 3 within 12 hours and cause loss of the high-pressure steam- Reactor Primary System following a Mode 4 within 36 hours following the driven injection system (RCIC/HPCI), design basis LOCA and to confine the sustained inoperability of one AC or one and loss of the power conversion system postulated release of radioactivity. The DC or one AC vital bus electrical power (condenser/feedwater), and require primary containment consists of a steel- subsystem for a period of 8 hours, 2 activating the RHR system. In addition, lined, reinforced concrete vessel, which hours and 2 hours, respectively (with a EOPs direct the operator to take control surrounds the Reactor Primary System maximum 16 hour Completion Time of the depressurization function if low and provides an essentially leak-tight limit from initial discovery of failure to pressure injection/spray systems are barrier against an uncontrolled release meet the LCO, to preclude being in the needed for RPV water makeup and of radioactivity to the environment. LCO indefinitely). Additionally, this structure provides cooling. Based on the low probability of Proposed modification for end state loss of the Inverters during the shielding from the fission products that required actions: The proposed TS may be present in the primary infrequent and limited time in Mode 3 change is to remove the requirement to and the number of systems available in containment atmosphere following place the plant in Mode 4, Required accident conditions. Mode 3, the staff concludes in the SE to Action in D.2 (BWR/4) and D.2 (BWR/ the BWR topical report that the risks of 6) are deleted. [Note: Plant Applicability, BWR 4/6] staying in Mode 3 are approximately the Assessment: If one of the AC/DC/AC LCO: The primary containment shall same as and in some cases lower than vital subsystems is inoperable, the be operable. the risks of going to the Mode 4 end remaining AC/DC/AC vital subsystems Condition Requiring Entry into End state. have the capacity to support a safe State: If the LCO cannot be met, the Finding: Based upon the above shutdown and to mitigate an accident primary containment must be returned assessment, and because the time spent condition. The BWROG topical report to operability within one hour (Required in Mode 3 to perform the repair is did a comparative PRA evaluation of the Action A.1). If the primary containment infrequent and limited, and in light of core damage risks of operation in the cannot be returned to operable status defense-in-depth considerations, the current end state and in the proposed within the allotted time, the plant must proposed change is acceptable. Mode 3 end state, with one of the AC/ be placed in Mode 3 within 12 hours
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00057 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74045
(Required Action B.1) and in Mode 4 Condition Requiring Entry into End thereby preventing an excessive within 36 hours (Required Action B.2). State: If one line has one or more reactor negative differential pressure across the Proposed Modification for End State building-to-suppression chamber wetwell/drywell boundary. Required Actions: Delete Required vacuum breakers inoperable for [Note: Plant Applicability, BWR/4] Action B.2. opening, the breaker(s) must be returned Assessment: The primary to operability within 72 hours (Required LCO: Nine suppression chamber-to- containment is one of the three primary Action C.1). If the vacuum breaker(s) drywell vacuum breakers shall be boundaries to the release of cannot be returned to operability within operable for opening. radioactivity. (The other two are the fuel the allotted time, the plant must be Condition Requiring Entry into End cladding and the Reactor Primary placed in Mode 3 within 12 hours State: If one suppression chamber-to- System pressure boundary.) Compliance (Required Action E.1) and in Mode 4 drywell vacuum breaker is inoperable with this LCO ensures that a primary within 36 hours (Required Action E.2). for opening, the breaker must be containment configuration exists, Proposed Modification for End State returned to operability within 72 hours including equipment hatches and Required Actions: Modify the Required (Required Action A.1). If the vacuum penetrations, that is structurally sound Actions so that if vacuum breaker(s) breaker cannot be returned to cannot be returned to operable status and will limit leakage to those leakage operability within the allotted time, the within the required Completion Times, rates assumed in the safety analyses. plant must be placed in Mode 3 within the plant is placed in hot shutdown. This LCO entry condition does not 12 hours (Required Action C.1) and in That is, modify Condition E to relate include leakage through an unisolated Mode 4 within 36 hours (Required only to Condition C, delete Required release path. The BWROG topical report Action C.2). Action E.2, and add Condition F, with has determined that previous generic Proposed Modification for End State Required Actions F.1 and F.2, shutting PRA work related to Appendix J Required Actions: Modify the Required down the plant to Mode 3 and then requirements has shown that Actions so that if vacuum breaker(s) Mode 4 respectively, to address an containment leakage is not risk cannot be returned to operable status inability to comply with the required significant. Should a fission product within the required Completion Times, actions related to the other Conditions the plant is placed in hot shutdown. release from the primary containment (i.e., Conditions A, B, and D). occur, the secondary containment and That is, modify Condition C to relate Assessment: The BWROG topical only to Condition A, and delete related functions would remain report has determined that the specific operable to contain the release, and the Required Action C.2, and add Condition failure condition of interest is not risk D, with Required Actions D.1 and D.2, standby gas treatment system would significant in BWR PRAs. The reduced remain available to filter fission shutting down the plant to Mode 3 and end state would only be applicable to then Mode 4 respectively, to address an products from being released to the the situation where the vacuum inability to comply with the required environment. By remaining in Mode 3, breaker(s) in one line are inoperable for actions related to Condition B, to close HPCI, RCIC, and the power conversion opening, with the remaining operable the vacuum breaker. system (condensate/feedwater) remain vacuum breakers capable of providing available for water makeup and decay the necessary vacuum relief function. Assessment: The BWROG topical heat removal. Additionally, the EOPs The existing end state remains report has determined that the specific direct the operators to take control of unchanged, as established by new failure of interest is not risk significant the depressurization function if low Condition F, for conditions involving in BWR PRAs. The reduced end state pressure injection/spray are needed for more than one inoperable line or would only be applicable to the reactor coolant makeup and cooling. vacuum breaker since they are needed situation where one suppression Therefore, defense-in-depth is in Modes 1, 2, and 3. In Mode 3, for chamber-to-drywell vacuum breaker is maintained with respect to water other accident considerations, HPCI, inoperable for opening, with the makeup and decay heat removal by RCIC, and the power conversion system remaining operable vacuum breakers remaining in Mode 3. (condensate/feedwater) remain available capable of providing the necessary Finding: The requested change is for water makeup and decay heat vacuum relief function, since they are acceptable. Note that the staff’s approval removal. Additionally, the EOPs direct required in Modes 1, 2, and 3. By relies upon the secondary containment the operators to take control of the remaining in Mode 3, HPCI, RCIC, and and the standby gas treatment system depressurization function if low the power conversion system for maintaining defense-in-depth while pressure injection/spray are needed for (condensate/feedwater) remain available in this reduced end state. reactor coolant makeup and cooling. for water makeup and decay heat Therefore, defense-in-depth is removal. Additionally, the EOPs direct 3.2.11 TS 4.5.1.7 and LCO 3.6.1.7, the operators to take control of the Reactor Building-to-Suppression maintained with respect to water makeup and decay heat removal by depressurization function if low Chamber Vacuum Breakers (BWR/4 pressure injection/spray are needed for only) remaining in Mode 3. Finding: Based upon the above RCS makeup and cooling. Therefore, The reactor building-to-suppression assessment, and because the time spent defense-in-depth is maintained with chamber vacuum breakers relieve in Mode 3 to perform the repair is respect to water makeup and decay heat vacuum when the primary containment infrequent and limited, and in light of removal by remaining in Mode 3. The depressurizes below the pressure of the defense-in-depth considerations, the existing end state remains unchanged reactor building, thereby serving to proposed change is acceptable. for conditions involving any preserve the integrity of the primary suppression chamber-to-drywell 3.2.12 TS 4.5.1.8 and LCO 3.6.1.8, containment. vacuum breakers that are stuck open, as Suppression Chamber-to-Drywell established by new Condition D. [Note: Plant Applicability, BWR/4] Vacuum Breakers (BWR/4 only) Finding: Based upon the above LCO: Each reactor building-to- The function of the suppression assessment, and because the time spent suppression chamber vacuum breaker chamber-to-drywell vacuum breakers is in Mode 3 to perform the repair is shall be operable. to relieve vacuum in the drywell, infrequent and limited, and in light of
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00058 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74046 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
defense-in-depth considerations, the supported by defense-in-depth designed to mitigate potential effects of proposed change is acceptable. considerations. Section 6.2 makes a a postulated DBA, that is, a large LOCA comparison between the current (Mode which is assumed to occur concurrently 3.2.13 TS 4.5.1.9, TS 4.5.2.8, and LCO 3) and the proposed (Mode 4) end state, with the most limiting single failure and 3.6.1.9, Main Steam Isolation Valve with respect to the means available to conservative inputs, such as for initial (MSIV) Leakage Control System (LCS) perform critical functions (i.e., functions suppression pool water volume and The MSIV LCS supplements the contributing to the defense-in-depth temperature. Under the conditions isolation function of the MSIVs by philosophy) whose success is needed to assumed in the DBA, steam blown down processing the fission products that prevent core damage and containment from the break could bypass the could leak through the closed MSIVs failure and mitigate radiation releases. suppression pool and end up in the after core damage, assuming leakage rate The risk and defense-in-depth suppression chamber air space and the limits which are based on a large LOCA. arguments, used according to the RHR suppression spray system could be [Note: Plant Applicability, BWR 4/6] ‘‘integrated decision-making’’ process of needed to condense such steam so that Regulatory Guides 1.174 and 1.177, the pressure and temperature inside LCO: Two MSIV LCS subsystems shall support the conclusion that the plant in primary containment remain within be operable. Mode 3 is as safe as Mode 4 (if not safer) analyzed design basis limits. However, Condition Requiring Entry Into End the frequency of a DBA is very small State: If one MSIV LCS subsystem is for repairing an inoperable MSIV LCS system. Personnel safety must be and the containment has considerable inoperable, it must be restored to margin to failure above the design operable status within 30 days considered separately. Finding: Based upon the above limits. For these reasons, the (Required Action A.1). If both MSIV assessment, and because the time spent unavailability of one or both RHR LCS subsystems are inoperable, one of in Mode 3 to perform the repair is suppression spray subsystems has no the MSIV LCS subsystems must be infrequent and limited, and in light of significant impact on CDF or LERF, restored to operable status within seven defense-in-depth considerations, the even for accidents initiated during days (Required Action B.1). If the MSIV proposed change is acceptable. operation at power. Therefore, it is very LCS subsystems cannot be restored to unlikely that the RHR suppression spray operable status within the allotted time, 3.2.14 TS 4.5.1.11 and LCO 3.6.2.4, system will be challenged to mitigate an the plant must be placed in Mode 3 Residual Heat Removal (RHR) accident occurring during power within 12 hours (Required Action C.1) Suppression Pool Spray(BWR/4 only) operation. This probability becomes and in Mode 4 within 36 hours Following a DBA, the RHR extremely unlikely for accidents that (Required Action C.2). suppression pool spray system removes would occur during a small fraction of Proposed Modification for End State heat from the suppression chamber the year (less than three days) during Required Actions: Delete Required airspace. A minimum of one RHR which the plant would be in Mode 3 Action C.2. suppression pool spray subsystem is (associated with lower initial energy Assessment: The BWROG topical required to mitigate potential bypass level and reduced decay heat load as report has determined that this system leakage paths from drywell and compared to power operation) to repair is not significant in BWR PRAs and, maintain the primary containment peak the failed RHR suppression spray based on a BWROG program, many pressure below the design limits. system. plants have eliminated the system Section 6 of reference 6 summarizes [Note: Plant Applicability, BWR/4] altogether. The unavailability of one or the staff’s risk argument for approval of both MSIV LCS subsystems has no LCO: Two RHR suppression pool TS 4.5.1.11 and LCO 3.6.2.4, ‘‘Residual impact on CDF or LERF, irrespective of spray subsystems shall be operable. Heat Removal (RHR) Suppression Pool the mode of operation at the time of the Condition Requiring Entry Into End Spray.’’ The argument for staying in accident. Furthermore, the challenge State: If one RHR suppression pool Mode 3 instead of going to Mode 4 to frequency of the MSIV LCS system (i.e., spray subsystem is inoperable repair the RHR Suppression Pool Spray the frequency with which the system is (Condition A), it must be restored to system (one or both trains) is also expected to be challenged to mitigate operable status within seven days supported by defense-in-depth offsite radiation releases resulting from (Required Action A.1). If both RHR considerations. Section 6.2 makes a MSIV leaks above TS limits) is less than suppression pool spray subsystems are comparison between the current (Mode 1.0E–6/yr. Consequently, the inoperable (Condition B), one of them 3) and the proposed (Mode 4) end state, conditional probability that this system must be restored to operable status with respect to the means available to will be challenged during the repair within eight hours (Required Action perform critical functions (i.e., functions time interval while the plant is at either B.1). If the RHR suppression pool spray contributing to the defense-in-depth the current or the proposed end state subsystem cannot be restored to philosophy) whose success is needed to (i.e., Mode 4 or Mode 3, respectively) is operable status within the allotted time, prevent core damage and containment less than 1.0E–8. This probability is the plant must be placed in Mode 3 failure and mitigate radiation releases, considerably smaller than probabilities within 12 hours (Required Action C.1), and precluding the need for RHR considered ‘‘negligible’’ in Regulatory and in Mode 4 within 36 hours suppression spray subsystems. Guide 1.177 for much higher (Required Action C.2). In addition, the probability of a DBA consequence risks, such as large early Proposed Modification for End State (large break) is much smaller during release. Required Actions: Delete Required shutdown as compared to power Section 6 of reference 6 summarizes Action C.2. operation. A DBA in Mode 3 would be the staff’s risk argument for approval of Assessment: The main function of the considerably less severe than a DBA TSs 4.5.1.9, 4.5.2.8, and LCO 3.6.1.9, RHR suppression spray system is to occurring during power operation since ‘‘Main Steam Isolation Valve (MSIV) remove heat from the suppression Mode 3 is associated with lower initial Leakage Control System (LCS).’’ The chamber so that the pressure and energy level and reduced decay heat argument for staying in Mode 3 instead temperature inside primary containment load. Under these extremely unlikely of going to Mode 4 to repair the MSIV remain within analyzed design limits. conditions, an alternate method that can LCS system (one or both trains) is also The RHR suppression spray system was be used to remove heat from the primary
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00059 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74047
containment (in order to keep the still be operable, including the standby Consequently, the conditional pressure and temperature within the gas treatment system, thereby probability that this system will be analyzed design basis limits) is minimizing the likelihood of an challenged during the repair time containment venting. For more realistic unacceptable release. By remaining in interval while the plant is at either the accidents that could occur in Mode 3, Mode 3, HPCI, RCIC, and the power current or the proposed end state (i.e., several alternate means are available to conversion system (condensate/ Mode 4 or Mode 3, respectively) is less remove heat from the primary feedwater) remain available for water than 1.0E–8. This probability is containment, such as the RHR system in makeup and decay heat removal. considerably smaller than probabilities the suppression pool cooling mode and Additionally, the EOPs direct the considered ‘‘negligible’’ in Regulatory the containment spray mode. operators to take control of the Guide 1.177 for much higher The risk and defense-in-depth depressurization function if low consequence risks, such as large early arguments, used according to the pressure injection/spray are needed for release. ‘‘integrated decision-making’’ process of RCS makeup and cooling. Therefore, Section 6 of reference 6 summarizes Regulatory Guides 1.174 and 1.177, defense-in-depth is improved with the staff’s risk argument for approval of support the conclusion that Mode 3 is respect to water makeup and decay heat TSs 4.5.1.13, 4.5.2.11, and LCO 3.6.4.3, as safe as Mode 4 (if not safer) for removal by remaining in Mode 3. ‘‘Standby Gas Treatment (SGT) System.’’ repairing an inoperable RHR Finding: The requested change is The argument for staying in Mode 3 suppression spray system. acceptable. Note that the staff’s approval instead of going to Mode 4 to repair the Finding: Based upon the above relies upon the primary containment, SGT system (one or both trains) is also assessment, and because the time spent and all other primary and secondary supported by defense-in-depth in Mode 3 to perform the repair is containment-related functions, to still considerations. Section 6.2 makes a infrequent and limited, and in light of be operable, including the standby gas comparison between the current (Mode defense-in-depth considerations, the treatment system, for maintaining 3) and the proposed (Mode 4) end state, proposed change is acceptable. defense-in-depth while in this end state. with respect to the means available to 3.2.15 TS 4.5.1.12, TS 4.5.2.10, and 3.2.16 TS 4.5.1.13, TS 4.5.2.11, and perform critical functions (i.e., functions LCO 3.6.4.1, Secondary Containment LCO 3.6.4.3, Standby Gas Treatment contributing to the defense-in-depth (SGT) System philosophy) whose success is needed to Following a DBA, the function of the prevent core damage and containment The function of the SGT system is to secondary containment is to contain, failure and mitigate radiation releases. ensure that radioactive materials that dilute, and stop radioactivity (mostly The risk and defense-in-depth leak from the primary containment into fission products) that may leak from arguments, used according to the the secondary containment following a primary containment. Its leak tightness ‘‘integrated decision-making’’ process of DBA are filtered and adsorbed prior to is required to ensure that the release of Regulatory Guides 1.174 and 1.177, exhausting to the environment. radioactivity from the primary support the conclusion that Mode 3 is containment is restricted to those Applicability: BWR4/6 LCO: Two SGT subsystems shall be as safe as Mode 4 (if not safer) for leakage paths and associated leakage repairing an inoperable SGT system. rates assumed in the accident analysis operable. Finding: Based upon the above and that fission products entrapped Condition Requiring Entry Into End assessment, and because the time spent within the secondary containment State: If one SGT subsystem is in Mode 3 to perform the repair is structure will be treated by the standby inoperable, it must be restored to infrequent and limited, and in light of gas treatment system prior to discharge operable status within seven days defense-in-depth considerations, the to the environment. (Required Action A.1). If the SGT subsystem cannot be restored to proposed change is acceptable. [Note: Plant Applicability, BWR 4/6] operable status within the allotted time, 3.2.17 TS 4.5.1.14 and LCO 3.7.1, LCO: The secondary containment the plant must be placed in Mode 3 Residual Heat Removal Service Water shall be operable. within 12 hours (Required Action B.1) (RHRSW) System (BWR/4 only) Condition Requiring Entry Into End and in Mode 4 within 36 hours State: If the secondary containment is (Required Action B.2). In addition, if The RHRSW system is designed to inoperable, it must be restored to two SGT subsystems are inoperable in provide cooling water for the RHR operable status within four hours Mode 1, 2, or 3, LCO 3.0.3 must be system heat exchangers, which are (Required Action A.1). If it cannot be entered immediately (Required Action required for safe shutdown following a restored to operable status within the D.1). normal shutdown or DBA or transient. allotted time, the plant must be placed Proposed Modification for End State [Note: Plant Applicability, BWR/4] in Mode 3 within 12 hours (Required Required Actions: Delete Required Action B.1), and in Mode 4 within 36 Action B.2. Change Required Action D.1 LCO: Two RHRSW subsystems shall hours (Required Action B.2). to ‘‘Be in Mode 3’’ with a Completion be operable. Proposed Modification for End State Time of ‘‘12 hours.’’ Condition Requiring Entry Into End Required Actions: Delete Required Assessment: The unavailability of one State: If the LCO cannot be met, the Action B.2. or both SGT subsystems has no impact following actions must be taken for the Assessment: This LCO entry on CDF or LERF, irrespective of the listed conditions: condition does not include gross leakage mode of operation at the time of the a. If one RHRSW pump is inoperable through an unisolable release path. The accident. Furthermore, the challenge (Condition A), it must be restored to BWROG topical report has determined frequency of the SGT system (i.e., the operable status within 30 days that previous generic PRA work related frequency with which the system is (Required Action A.1). to Appendix J requirements has shown expected to be challenged to mitigate b. If one RHRSW pump in each that containment leakage is not risk offsite radiation releases resulting from subsystem is inoperable (Condition B), significant. The primary containment, materials that leak from the primary to one RHRSW pump must be restored to and all other primary and secondary the secondary containment above TS operable status within seven days containment-related functions would limits) is less than 1.0E–6/yr. (Required Action B.1).
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00060 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74048 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
c. If one RHRSW subsystem is 3.2.18 TS 4.5.1.15 and LCO 3.7.2, depressurization function if low inoperable for reasons other than Plant Service Water (PSW) System and pressure injection/spray are needed for Condition A (Condition C), the RHRSW Ultimate Heat Sink (UHS) (BWR/4 only) RCS makeup and cooling. Therefore, subsystem must be restored to operable The PSW system (in conjunction with defense-in-depth is improved with status within seven days (Required the UHS) is designed to provide cooling respect to water makeup and decay heat Action C.1). water for the removal of heat from removal by remaining in Mode 3. certain safe shutdown-related Finding: Based upon the above d. If the required action and assessment, and because the time spent associated completion time cannot be equipment heat exchangers following a DBA or transient. in Mode 3 to perform the repair is met within the allotted time (Condition infrequent and limited, and in light of E), the plant must be placed in Mode 3 [Note: Plant Applicability, BWR/4] defense-in-depth considerations, the within 12 hours (Required Action E.1) LCO: Two PSW subsystems and UHS proposed change is acceptable. and in Mode 4 within 36 hours shall be operable. (Required Action E.2). (Note: Condition Condition Requiring Entry into End 3.2.19 TS 4.5.1.16 and LCO 3.7.4, D addresses both RHRSW subsystems State: If the LCO cannot be met, the Main Control Room Environmental inoperable for reason other than following actions must be taken for the Control (MCREC) System(BWR/4 only) Condition B, and its Required Action listed conditions: The MCREC system provides a D.1 is not affected by this change.) a. If one PSW pump is inoperable radiologically controlled environment (Condition A), it must be restored to from which the plant can be safely Proposed Modification for End State operable status within 30 days operated following a DBA. Required Actions: Renumber Conditions (Required Action A.1). [Note: Plant Applicability, BWR/4] D (and Required Action D.1), and E (and b. If one PSW pump in each Required Actions E.1 and E.2), to subsystem is inoperable (Condition B), LCO: Two MCREC subsystems shall Conditions E (and Required Action E.1) one PSW pump must be restored to be operable. and F (and Required Actions F.1 and operable status within seven days Condition Requiring Entry Into End F.2), respectively. Modify new (Required Action B.1). State: If one MCREC subsystem is Condition F to address new Condition c. If the required action and inoperable, it must be restored to E, which maintains the existing associated completion time cannot be operable status within seven days requirements with respect to both RHR met within the allotted time, the plant (Required Action A.1). If the MCREC subsystems being inoperable for reasons must be placed in Mode 3 within 12 subsystem cannot be restored to other than Condition B. Add a new hours (Required Action E.1) and in operable status within the allotted time, Condition D, which establishes Mode 4 within 36 hours (Required the plant must be placed in Mode 3 requirements for existing Conditions A, Action E.2). within 12 hours (Required Action B.1) B, and C, that are similar to existing Proposed Modification: Renumber and in Mode 4 within 36 hours Condition E but without Required unaffected Conditions C, D, E, and F to (Required Action B.2). If two MCREC Action E.2. Conditions D, E, F, and G respectively, subsystems are inoperable in Mode 1, 2, and renumber associated Required or 3, LCO 3.0.3 must be entered Assessment: The BWROG topical Actions accordingly. Add a new immediately (Required Action D.1). report performed a comparative PRA Condition C, for the Required Actions Proposed Modification for End State evaluation of the core damage risks and associated Completion Time of Required Actions: Delete Required when operating in the current end state Conditions A and B not met, with a Action B.2, and change Required Action versus the proposed Mode 3 end state. Required Action C.1, to be in Mode 3 in D.1 to ‘‘Be in Mode 3’’ with a The results indicated that the core a Completion Time of 12 hours. Change Completion Time of ‘‘12 hours.’’ damage risks while operating in Mode 3 the new Condition G to read, ‘‘Required Assessment: The unavailability of one (assuming the individual failure Action and associated Completion Time or both MCREC subsystems has no conditions) are lower or comparable to of Condition E not met, OR Both [PSW] significant impact on CDF or LERF, the current end state. By remaining in subsystems inoperable for reasons other irrespective of the mode of operation at Mode 3, HPCI, RCIC, and the power than Condition(s) B [and D], [OR [UHS] the time of the accident. Furthermore, conversion system (condensate/ inoperable for reasons other than the challenge frequency of the MCREC feedwater) remain available for water Conditions D [or E].’’ system (i.e., the frequency with which makeup and decay heat removal. Assessment: The BWROG topical the system is expected to be challenged Additionally, the EOPs direct the report performed a comparative PRA to provide a radiologically controlled operators to take control of the evaluation of the core damage risks environment in the main control room depressurization function if low associated with operating in the current following a DBA which leads to core pressure injection/spray are needed for end state versus the proposed Mode 3 damage and leaks of radiation from the RCS makeup and cooling. Therefore, end state. The results indicated that the containment that can reach the control defense-in-depth is improved with core damage risks while operating in room) is less than 1.0E–6/yr. respect to water makeup and decay heat Mode 3 (assuming the individual failure Consequently, the conditional removal by remaining in Mode 3, and conditions) are lower or comparable to probability that this system will be the current end state. With one pump challenged during the repair time the required safety function can still be inoperable in one or more subsystems, interval while the plant is at either the performed with the RHRSW subsystem the remaining pumps are adequate to current or the proposed end state (i.e., components that are still operable. perform the PSW heat removal function. Mode 4 or Mode 3, respectively) is less Finding: Based upon the above By remaining in Mode 3, HPCI, RCIC, than 1.0E–8. This probability is assessment, and because the time spent and the power conversion system considerably smaller than probabilities in Mode 3 to perform the repair is (condensate/feedwater) remain available considered ‘‘negligible’’ in Regulatory infrequent and limited, and in light of for water makeup and decay heat Guide 1.177 for much higher defense-in-depth considerations, the removal. Additionally, the EOPs direct consequence risks, such as large early proposed change is acceptable. the operators to take control of the release.
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00061 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74049
Section 6 of reference 6 summarizes the system is expected to be challenged Condition Requiring Entry Into End the staff’s risk argument for approval of to provide temperature control for the State: If the gross gamma activity rate of TS 4.5.1.16, and LCO 3.7.4, ‘‘Main control room following control room the noble gases in the main condenser Control Room Environmental Control isolation following a DBA) is less than Off gas (MCOG) system is not within (MCREC) System.’’ The argument for 1.0E–6/yr. Consequently, the limits, the gross gamma activity rate of staying in Mode 3 instead of going to conditional probability that this system the noble gases in the main condenser Mode 4 to repair the MCREC system will be challenged during the repair Off gas must be restored to within limits (one or both trains) is also supported by time interval while the plant is at either within 72 hours (Required Action A.1). defense-in-depth considerations. the current or the proposed end state If the required action and associated Section 6.2 makes a comparison (i.e., Mode 4 or Mode 3, respectively) is completion time cannot be met, one of between the current (Mode 3) and the less than 1.0E–8. This probability is the following must occur: proposed (Mode 4) end state, with considerably smaller than probabilities a. All steam lines must be isolated respect to the means available to considered ‘‘negligible’’ in Regulatory within 12 hours (Required Action B.1). perform critical functions (i.e., functions Guide 1.177 for much higher b. The steam jet air ejector (SJAE) contributing to the defense-in-depth consequence risks, such as large early must be isolated within 12 hours philosophy) whose success is needed to release. (Required Action B.2). prevent core damage and containment Section 6 of reference 6 summarizes c. The plant must be placed in Mode failure and mitigate radiation releases. the staff’s risk argument for approval of 3 within 12 hours (Required Action The risk and defense-in-depth TS 4.5.1.17, and LCO 3.7.5, ‘‘Control B.3.1) and in Mode 4 within 36 hours arguments, used according to the Room Air Conditioning (AC) System.’’ (Required Action B.3.2). Proposed Modification for End State ‘‘integrated decision-making’’ process of The argument for staying in Mode 3 Required Actions: Delete Required Regulatory Guides 1.174 and 1.177, instead of going to Mode 4 to repair the AC system (one or both trains) is also Action B.3.2. support the conclusion that Mode 3 is Assessment: The failure to maintain supported by defense-in-depth as safe as Mode 4 (if not safer) for the gross gamma activity rate of the considerations. Section 6.2 makes a repairing an inoperable MCREC system. noble gases in the main condenser Off Finding: Based upon the above comparison between the current (Mode gas (MCOG) within limits has no assessment, and because the time spent 3) and the proposed (Mode 4) end state, significant impact on CDF or LERF, with respect to the means available to in Mode 3 to perform the repair is irrespective of the mode of operation at perform critical functions (i.e., functions infrequent and limited, and in light of the time of the accident. Furthermore, contributing to the defense-in-depth defense-in-depth considerations, the the challenge frequency of the MCOG philosophy) whose success is needed to proposed change is acceptable. system (i.e., the frequency with which prevent core damage and containment 3.2.20 TS 4.5.1.17 and LCO 3.7.5, the system is expected to be challenged failure and mitigate radiation releases. to mitigate offsite radiation releases Control Room Air Conditioning (AC) The risk and defense-in-depth System (BWR/4 only) following a DBA) is less than 1.0E–6/yr. arguments, used according to the Consequently, the conditional The Control Room AC system ‘‘integrated decision-making’’ process of probability that this system will be provides temperature control for the Regulatory Guides 1.174 and 1.177, challenged during the repair time control room following control room support the conclusion that Mode 3 is interval while the plant is at either the isolation during accident conditions. as safe as Mode 4 (if not safer) for current or the proposed end state (i.e., [Note: Plant Applicability, BWR/4] repairing an inoperable AC system. Mode 4 or Mode 3, respectively) is less Finding: Based upon the above than 1.0E–8. This probability is LCO: Two control room AC assessment, and because the time spent considerably smaller than probabilities subsystems shall be operable. in Mode 3 to perform the repair is Condition Requiring Entry Into End considered ‘‘negligible’’ in Regulatory infrequent and limited, and in light of State: If one control room AC subsystem Guide 1.177 for much higher defense-in-depth considerations, the is inoperable, the subsystem must be consequence risks, such as large early proposed change is acceptable. restored to operable status within 30 release. days (Required Action A.1). If the 3.2.21 TS 4.5.1.18 and LCO 3.7.6, Section 6 of reference 6 summarizes required actions and associated Main Condenser Off gas (BWR/4 only) the staff’s risk argument for approval of completion times cannot be met, the The Off gas from the main condenser TS 4.5.1.18 and LCO 3.7.6, ‘‘Main plant must be placed in Mode 3 within normally includes radioactive gases. Condenser Off gas.’’ The argument for 12 hours (Required Action B.1) and in The gross gamma activity rate is staying in Mode 3 instead of going to Mode 4 within 36 hours (Required controlled to ensure that accident Mode 4 to repair the MCOG system (one Action B.2). If two control room AC analysis assumptions are satisfied and or both trains) is also supported by subsystems are inoperable, LCO 3.0.3 that offsite dose limits will not be defense-in-depth considerations. must be entered immediately (Required exceeded during postulated accidents. Section 6.2 makes a comparison Action D.1) The main condenser Off gas (MCOG) between the current (Mode 3) and the Proposed Modification for End State gross gamma activity rate is an initial proposed (Mode 4) end state, with Required Actions: Delete Required condition of a DBA which assumes a respect to the means available to Action B.2, and change Required Action gross failure of the MCOG system perform critical functions (i.e., functions D.1 to ‘‘Be in Mode 3’’ with a pressure boundary. contributing to the defense-in-depth Completion Time of ‘‘12 hours.’’ philosophy) whose success is needed to Assessment: The unavailability of one [Note: Plant Applicability, BWR/4] prevent core damage and containment or both AC subsystems has no LCO: The gross gamma activity rate of failure and mitigate radiation releases. significant impact on CDF or LERF, the noble gases measured at the main The risk and defense-in-depth irrespective of the mode of operation at condenser evacuation system arguments, used according to the the time of the accident. Furthermore, pretreatment monitor station shall be ‘‘integrated decision-making’’ process of the challenge frequency of the AC ≤240 mCi/second after decay of 30 Regulatory Guides 1.174 and 1.177, system (i.e., the frequency with which minutes. support the conclusion that Mode 3 is
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00062 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74050 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
as safe as Mode 4 (if not safer) for steam from the drywell directly into the comparison between the current (Mode repairing an inoperable MCOG system. primary containment airspace, 3) and the proposed (Mode 4) end state, Finding: Based upon the above bypassing the suppression pool. The with respect to the means available to assessment, and because the time spent primary containment also must perform critical functions (i.e., functions in Mode 3 to perform the repair is withstand a postulated low energy contributing to the defense-in-depth infrequent and limited, and in light of steam release into the primary philosophy) whose success is needed to defense-in-depth considerations, the containment airspace. The main prevent core damage and containment proposed change is acceptable. function of the RHR containment spray failure and mitigate radiation releases. system is to suppress steam, which is The risk and defense-in-depth 3.2.22 TS 4.5.2.6 and LCO 3.6.1.7, postulated to be released into the arguments, used according to the Residual Heat Removal (RHR) primary containment airspace through a ‘‘integrated decision-making’’ process of Containment Spray System (BWR/6 bypass leakage pathway and a low Regulatory Guides 1.174 and 1.177, only) energy line break under DBA support the conclusion that Mode 3 is The primary containment must be conditions, without producing as safe as Mode 4 (if not safer) for able to withstand a postulated bypass significant pressurization of the primary repairing an inoperable RHR leakage pathway that allows the passage containment (i.e., ensure that the containment spray system. of steam from the drywell directly into pressure inside primary containment Finding: Based upon the above the primary containment airspace, remains within analyzed design limits). assessment, and because the time spent bypassing the suppression pool. The Under the conditions assumed in the in Mode 3 to perform the repair is primary containment also must be able DBA, steam blown down from the break infrequent and limited, and in light of to withstand a low energy steam release could find its way into the primary defense-in-depth considerations, the into the primary containment airspace. containment through a bypass leakage proposed change is acceptable. The RHR Containment Spray System is pathway. In addition to the DBA, a 3.2.23 TS4.5.2.7 and LCO 3.6.1.8, designed to mitigate the effects of postulated low energy pipe break could Penetration Valve Leakage Control bypass leakage and low energy line add more steam into the primary System (PVLCS)(BWR/6 only) breaks. containment airspace. Under such an [Note: Plant Applicability, BWR/6] extremely unlikely scenario (very small The PVLCS supplements the isolation frequency of a DBA combined with the function of primary containment LCO: Two RHR containment spray likelihood of a bypass pathway and a isolation valves (PCIVs) in process lines subsystems shall be operable. concurrent low energy pipe brake inside that also penetrate the secondary Condition Requiring Entry Into End the primary containment), the RHR containment. These penetrations are State: If one RHR Containment Spray containment spray system could be sealed by air from the PVLCS to prevent Subsystem is inoperable, it must be needed to condense steam so that the fission products leaking past the restored to operable status within 7 days pressure inside the primary isolation valves and bypassing the (Required Action A.1). If two RHR containment remains within analyzed secondary containment after a design Containment Spray Subsystems are design limits. Furthermore, basis loss-of-coolant accident (LOCA). inoperable, one of them must be containments have considerable margin [Note: Plant Applicability, BWR/6] restored to operable status within 8 to failure above the design limit (it is hours (Required Action B.1). If the RHR very likely that the containment will be LCO: Two PVLCS subsystems shall be Containment Spray System cannot be able to withstand pressures as much as operable. restored to operable status within the three times the design limit). For these Condition Requiring Entry Into End allotted time, the plant must be placed reasons, the unavailability of one or State: If one PVLCS subsystem is in Mode 3 within 12 hours (Required both RHR containment spray inoperable, it must be restored to Action C.1), and in Mode 4 within 36 subsystems has no significant impact on operable status within 30 days hours (Required Action C.2) CDF or LERF, even for accidents (Required Action A.1). If two PVLCS Proposed Modification for End State initiated during operation at power. subsystems are inoperable, one of the Required Actions: Delete Required Therefore, it is very unlikely that the PVLCS subsystems must be restored to Action C.2. RHR containment spray system will be operable status within seven days Assessment: The primary challenged to mitigate an accident (Required Action B.1). If the PVLCS containment is designed with a occurring during power operation. This subsystem cannot be restored to suppression pool so that, in the event of probability becomes extremely unlikely operable status within the allotted time, a LOCA, steam released from the for accidents that would occur during a the plant must be placed in Mode 3 primary system is channeled through small fraction of the year (less than within 12 hours (Required Action C.1) the suppression pool water and three days) during which the plant and in Mode 4 within 36 hours condensed without producing would be in Mode 3 (associated with (Required Action C.2). significant pressurization of the primary lower initial energy level and reduced Assessment: The BWROG topical containment. The primary containment decay heat load as compared to power report has determined that this system is designed so that with the pool operation) to repair the failed RHR is not significant in BWR PRAs. The initially at the minimum water level and containment spray system. unavailability of one or both PVLCS the worst single failure of the primary Section 6 of reference 6 summarizes subsystems has no impact on CDF or containment heat removal systems, the staff’s risk argument for approval of LERF, irrespective of the mode of suppression pool energy absorption TS 4.5.2.6 and LCO 3.6.1.7, ‘‘Residual operation at the time of the accident. combined with subsequent operator Heat Removal (RHR) Containment Spray Furthermore, the challenge frequency of controlled pool cooling will prevent the System.’’ The argument for staying in the PVLCS system (i.e., the frequency primary containment pressure from Mode 3 instead of going to Mode 4 to with which the system is expected to be exceeding its design value. However, repair the RHR containment spray challenged to prevent fission products the primary containment must also system (one or both trains) is also leaking past the isolation valves and withstand a postulated bypass leakage supported by defense-in-depth bypassing the secondary containment) is pathway that allows the passage of considerations. Section 6.2 makes a less than 1.0E–6/yr. Consequently, the
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00063 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74051
conditional probability that this system and in Mode 4 within 36 hours loads. The drywell post-LOCA and the will be challenged during the repair (Required Action B.2). drywell purge vacuum relief subsystems time interval while the plant is at either Proposed Modification for End State are the means by which non- the current or the proposed end state Required Actions: Delete Required condensibles are transferred from the (i.e., Mode 4 or Mode 3, respectively) is Action B.2, and retain Condition B and primary containment back to the less than 1.0E–8. This probability is Required Action B.1 for one RHR drywell. suppression pool spray subsystem considerably smaller than probabilities [Note: Plant Applicability, BWR/6] considered ‘‘negligible’’ in Regulatory inoperable. Add Condition C, with Guide 1.177 for much higher Required Actions C.1 and C.2, identical LCO: Two drywell post-LOCA and consequence risks, such as large early to existing Condition B, with Required two drywell purge vacuum relief release. Actions B.1 and B.2, to maintain subsystems shall be operable. Section 6 of reference 6 summarizes existing requirements unchanged for Condition Requiring Entry Into End the staff’s risk argument for approval of two RHR suppression pool subsystems State: If one or two drywell post-LOCA TS 4.5.2.7 and LCO 3.6.1.8, ‘‘Penetration inoperable. vacuum relief subsystems are inoperable Valve Leakage Control System Assessment: The BWROG topical (Condition A), or if one drywell purge (PVLCS).’’ The argument for staying in report has completed a comparative vacuum relief subsystem is inoperable Mode 3 instead of going to Mode 4 to PRA evaluation of the core damage risks (Condition B), for reasons other than repair the PVLCS system (one or both of operation in the current end state being not closed, the subsystem(s) must trains) is also supported by defense-in- versus operation in the proposed Mode be restored to operable status within 30 depth considerations. Section 6.2 makes 3 end state. The results indicated that days (Required Actions B.1 and C.1, the core damage risks while operating in a comparison between the current respectively). If the required actions Mode 3 (assuming the individual failure (Mode 3) and the proposed (Mode 4) cannot be completed within the allotted conditions) are lower or comparable to end state, with respect to the means time, the plant must be placed in Mode the current end state. One loop of the available to perform critical functions 3 within 12 hours and in Mode 4 within RHR suppression pool cooling system is (i.e., functions contributing to the 36 hours. sufficient to accomplish the required defense-in-depth philosophy) whose Proposed Modification for End State safety function. By remaining in Mode success is needed to prevent core Required Actions: Renumber Conditions 3, HPCS, RCIC, and the power damage and containment failure and D, E, F and G, to Conditions E, F, G, and conversion system (condensate/ mitigate radiation releases. The risk and H respectively, and renumber associated feedwater) remain available for water Required Actions accordingly. Add a defense-in-depth arguments, used makeup and decay heat removal. according to the ‘‘integrated decision- new Condition D for when Required Additionally, the EOPs direct the Action and Associated Completion making’’ process of Regulatory Guides operators to take control of the Time of Condition B or C not met, with 1.174 and 1.177, support the conclusion depressurization function if low Required Action D.1 to be in Mode 3 in that Mode 3 is as safe as Mode 4 (if not pressure injection/spray are needed for a Completion Time of 12 hours. Change safer) for repairing an inoperable PVLCS RCS makeup and cooling. Therefore, new Condition G to read, ‘‘Required system. defense-in-depth is improved with Action and Associated Completion Finding: Based upon the above respect to water makeup and decay heat Time of Condition A, E or F not met.’’ assessment, and because the time spent removal by remaining in Mode 3. in Mode 3 to perform the repair is Finding: Based upon the above Assessment: The BWROG topical infrequent and limited, and in light of assessment, and because the time spent report has determined that the specific defense-in-depth considerations, the in Mode 3 to perform the repair is failure conditions of interest are not risk proposed change is acceptable. infrequent and limited, and in light of significant in BWR PRAs. With one or two drywell post-LOCA vacuum relief 3.2.24 TS 4.5.1.10, TS 4.5.2.9 and LCO defense-in-depth considerations, the proposed change is acceptable. subsystems inoperable or one drywell 3.6.2.3, Residual Heat Removal (RHR) purge vacuum relief subsystem Suppression Pool Cooling 3.2.25 TS 4.5.2.12 and LCO 3.6.5.6, inoperable, for reasons other than not Some means must be provided to Drywell Vacuum Relief System (BWR/6 being closed, the remaining operable remove heat from the suppression pool only) vacuum relief subsystems are adequate so that the temperature inside the The Mark III pressure suppression to perform the depressurization primary containment remains within containment is designed to condense, in mitigation function. By remaining in design limits. This function is provided the suppression pool, the steam released Mode 3, HPCS, RCIC, and the power by two redundant RHR suppression into the drywell in the event of a loss- conversion system (condensate/ pool cooling subsystems. of-coolant accident (LOCA). The steam feedwater) remain available for water makeup and decay heat removal. [Note: Plant Applicability, BWR 4/6] discharging to the pool carries the non- condensibles from the drywell. Additionally, the EOPs direct the LCO: Two RHR suppression pool Therefore, the drywell atmosphere operators to take control of the cooling subsystems shall be operable. changes from low humidity air to nearly depressurization function if low Condition Requiring Entry Into End 100% steam (no air) as the event pressure injection/spray are needed for State: If one RHR suppression pool progresses. When the drywell RCS makeup and cooling. Therefore, cooling subsystem is inoperable subsequently cools and depressurizes, defense-in-depth is improved with (Condition A), it must be restored to non-condensibles in the drywell must respect to water makeup and decay heat operable status within seven days be replaced to avoid excessive weir wall removal by remaining in Mode 3. (Required Action A.1). If the RHR overflow into the drywell. Rapid weir Finding: Based upon the above suppression pool spray subsystem wall overflow must be controlled in a assessment, and because the time spent cannot be restored to operable status large break LOCA, so that essential in Mode 3 to perform the repair is within the allotted time (Condition B), equipment and systems located above infrequent and limited, and in light of the plant must be placed in Mode 3 the weir wall in the drywell are not defense-in-depth considerations, the within 12 hours (Required Action B.1), subjected to excessive drag and impact proposed change is acceptable.
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00064 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74052 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
3.2.26 TS 4.5.2.13 and LCO 3.7.1, pressure injection/spray are needed for system (i.e., the frequency with which Standby Service Water (SSW) System RCS makeup and cooling. Therefore, the system is expected to be challenged and Ultimate Heat Sink (UHS)(BWR/6 defense-in-depth is improved with to provide a radiologically controlled only) respect to water makeup and decay heat environment in the main control room The SSW system (in conjunction with removal by remaining in Mode 3. following a DBA which leads to core the UHS) is designed to provide cooling Finding: Based upon the above damage and leaks of radiation from the water for the removal of heat from assessment, and because the time spent containment that can reach the control certain safe shutdown-related in Mode 3 to perform the repair is room) is less than 1.0E–6/yr. equipment heat exchangers following a infrequent and limited, and in light of Consequently, the conditional DBA or transient. defense-in-depth considerations, the probability that this system will be proposed change is acceptable. challenged during the repair time [Note: Plant Applicability, BWR/6] interval while the plant is at either the LCO: Division 1 and 2 SSW 3.2.27 TS 4.5.2.14 and LCO 3.7.3, current or the proposed end state (i.e., subsystems and UHS shall be operable. Control Room Fresh Air (CRFA) System Mode 4 or Mode 3, respectively) is less Condition Requiring Entry Into End (BWR/6 only) than 1.0E–8. This probability is State: If one or more cooling towers The CRFA system provides a considerably smaller than probabilities with one cooling tower fan is inoperable radiologically controlled environment considered ‘‘negligible’’ in Regulatory (Condition A), the cooling tower fan(s) from which the unit can be safely Guide 1.177 for much higher must be restored to operable status operated following a DBA. The CRFA consequence risks, such as large early within seven days (Required Action system consists of two independent and release. A.1). If one SSW subsystem is redundant high efficiency air filtration Section 6 of reference 6 summarizes inoperable for reasons other than subsystems for treatment of recirculated the staff’s risk argument for approval of Condition A (Condition C), the SSW air or outside supply air. Each TS 4.5.2.14 and LCO 3.7.3, ‘‘Control subsystem must be restored to operable subsystem consists of a demister, an Room Fresh Air (CRFA) System.’’ The status within 72 hours (Required Action electric heater, a prefilter, a high argument for staying in Mode 3 instead C.1). If the required action(s) and efficiency particulate air (HEPA) filter, of going to Mode 4 to repair the CRFA associated completion time(s) (of an activated charcoal adsorber section, a system (one or both trains) is also Conditions A or C) cannot be met second HEPA filter, a fan, and the supported by defense-in-depth (Condition D), the plant must be placed associated ductwork and dampers. considerations. Section 6.2 makes a in Mode 3 within 12 hours (Required Demisters remove water droplets from comparison between the current (Mode Action D.1) and in Mode 4 within 36 the airstream. Prefilters and HEPA 3) and the proposed (Mode 4) end state, hours (Required Action D.2). filters remove particulate matter that with respect to the means available to Proposed Modification: The existing may be radioactive. The charcoal perform critical functions (i.e., functions second and third conditions of existing adsorbers provide a holdup period for contributing to the defense-in-depth Condition D have been transferred to a gaseous iodine, allowing time for decay. philosophy) whose success is needed to new Condition E in an unchanged form prevent core damage and containment [Note: Plant Applicability, BWR/6] (with Required Actions E.1 and E.2 failure and mitigate radiation releases. identical to existing Required Actions LCO: Two CRFA subsystems shall be The risk and defense-in-depth D.1 and D.2). Existing Condition B with operable. arguments, used according to the its associated Required Actions and Condition Requiring Entry Into End ‘‘integrated decision-making’’ process of Associated Completion Times, has been State: If one CRFA subsystem is Regulatory Guides 1.174 and 1.177, transferred to a new Condition D in an inoperable (Condition A), it must be support the conclusion that Mode 3 is unchanged form. Existing Condition C, restored to operable status within seven as safe as Mode 4 (if not safer) for with its associated Required Action and days (Required Action A.1). If two repairing an inoperable CRFA system. Associated Completion Time, has been CRFA subsystems are inoperable Finding: Based upon the above moved to a new Condition B in (Condition B for control room boundary assessment, and because the time spent unchanged form. A new Condition C and Condition E for reasons for in Mode 3 to perform the repair is has been created. If the Required inoperability), one CRFA subsystem infrequent and limited, and in light of Actions and Associated Completion must be restored to operable status in 24 defense-in-depth considerations, the Times for new Condition A or B are not hours (Required Action B.1) or enter proposed change is acceptable. met (new Condition C), then the plant LCO 3.0.3 (Required Action E.1). If must be placed in Mode 3 in 12 hours Conditions A or B, and associated 3.2.28 TS 4.5.2.15 and LCO 3.7.4, (new Required Action C.1). Required Actions A.1 and B.1) cannot Control Room Air Conditioning (CRAC) Assessment: The BWROG topical be met in the required Completion Time System (BWR/6 only) report determined that the specific (Condition C), the plant must be placed The control room AC system provides failure condition of interest is not risk in Mode 3 within 12 hours (Required temperature control for the control room significant in BWR PRAs. With the Action C.1) and in Mode 4 within 36 following control room isolation. The specified inoperable components/ hours (Required Action C.2). control room AC system consists of two subsystems, a sufficient number of Proposed Modification for End State independent, redundant subsystems operable components/subsystems are Required Actions: Delete Required that provide cooling and heating of still available to perform the heat Action C.2, and change Required Action recirculated control room air. Each removal function. By remaining in E.1 to ‘‘Be in Mode 3’’ within a subsystem consists of heating coils, Mode 3, HPCS, RCIC, and the power Completion Time of ‘‘12 hours.’’ cooling coils, fans, chillers, conversion system (condensate/ Assessment: The unavailability of one compressors, ductwork, dampers, and feedwater) remain available for water or both CRFA subsystems has no instrumentation and controls to provide makeup and decay heat removal. significant impact on CDF or LERF, for control room temperature control. Additionally, the EOPs direct the irrespective of the mode of operation at The control room AC system is designed operators to take control of the the time of the accident. Furthermore, to provide a controlled environment depressurization function if low the challenge frequency of the CRFA under both normal and accident
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00065 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74053
conditions. A single subsystem provides arguments, used according to the than 1.0E–8. This probability is the required temperature control to ‘‘integrated decision-making’’ process of considerably smaller than probabilities maintain a suitable control room Regulatory Guides 1.174 and 1.177, considered ‘‘negligible’’ in Regulatory environment for a sustained occupancy support the conclusion that Mode 3 is Guide 1.177 for much higher of 12 persons. as safe as Mode 4 (if not safer) for consequence risks, such as large early [Note: Plant Applicability, BWR/6] repairing an inoperable CRAC system. release. Finding: Based upon the above Section 6 of reference 6 summarizes LCO: Two control room AC assessment, and because the time spent the staff’s risk argument for approval of subsystems shall be operable. in Mode 3 to perform the repair is TS 4.5.2.16 and LCO 3.7.5, ‘‘Main Condition Requiring Entry Into End infrequent and limited, and in light of Condenser Off gas.’’ The argument for State: If one control room AC subsystem defense-in-depth considerations, the staying in Mode 3 instead of going to is inoperable, it must be restored to proposed change is acceptable. Mode 4 to repair the MCOG system (one operable status within 30 days or both trains) is also supported by (Required Action A.1). If the required 3.2.29 TS 4.5.2.16 and LCO 3.7.5, defense-in-depth considerations. actions and associated completion times Main Condenser Off gas (BWR/6 only) Section 6.2 makes a comparison cannot be met, the plant must be placed The Off gas from the main condenser between the current (Mode 3) and the in Mode 3 within 12 hours (Required normally includes radioactive gases. proposed (Mode 4) end state, with Action B.1) and in Mode 4 within 36 The gross gamma activity rate is respect to the means available to hours (Required Action B.2). If two controlled to ensure that accident perform critical functions (i.e., functions control room AC subsystems are analysis assumptions are satisfied and contributing to the defense-in-depth inoperable, LCO 3.0.3 must be entered that offsite dose limits will not be philosophy) whose success is needed to immediately (Condition D). exceeded during postulated accidents. prevent core damage and containment Proposed Modification for End State [Note: Plant Applicability, BWR/6] failure and mitigate radiation releases. Required Actions: Delete Required The risk and defense-in-depth Action B.2, and change Required Action LCO: The gross gamma activity rate of arguments, used according to the D.1 to ‘‘Be in Mode 3’’ with a the noble gases measured at the Off gas ‘‘integrated decision-making’’ process of ≤ Completion Time of ‘‘12 hours.’’ recombiner effluent shall be 380 mCi/ Regulatory Guides 1.174 and 1.177, Assessment: The unavailability of one second after decay of 30 minutes. support the conclusion that Mode 3 is or both AC subsystems has no Condition Requiring Entry Into End as safe as Mode 4 (if not safer) for significant impact on CDF or LERF, State: If the gross gamma activity rate of repairing an inoperable MCOG system. irrespective of the mode of operation at the noble gases in the main condenser Finding: Based upon the above the time of the accident. Furthermore, Off gas is not within limits (Condition assessment, and because the time spent the challenge frequency of the AC A), the gross gamma activity rate of the in Mode 3 to perform the repair is system (i.e., the frequency with which noble gases in the main condenser Off infrequent and limited, and in light of the system is expected to be challenged gas must be restored to within limits defense-in-depth considerations, the to provide temperature control for the within 72 hours (Required Action A.1). proposed change is acceptable. control room following control room If the required action and associated isolation following a DBA which leads completion time cannot be met, one of 4.0 State Consultation to core damage) is less than 1.0E–6/yr. the following must occur: In accordance with the Commission’s Consequently, the conditional a. All steam lines must be isolated regulations, the [__] State official was probability that this system will be within 12 hours (Required Action B.1). notified of the proposed issuance of the challenged during the repair time b. The steam jet air ejector (SJAE) amendment. The State official had [(1) interval while the plant is at either the must be isolated within 12 hours no comments or (2) the following current or the proposed end state (i.e., (Required Action B.2). comments—with subsequent Mode 4 or Mode 3, respectively) is less c. The plant must be placed in Mode disposition by the staff]. than 1.0E–8. This probability is 3 within 12 hours (Required Action considerably smaller than probabilities B.3.1) and in Mode 4 within 36 hours 5.0 Environmental Consideration considered ‘‘negligible’’ in Regulatory (Required Action B.3.2). The amendment changes Guide 1.177 for much higher Proposed Modification for End State requirements with respect to the consequence risks, such as large early Required Actions: Delete Required installation or use of a facility release. Action B.3.2. component located within the restricted Section 6 of reference 6 summarizes Assessment: The failure to maintain area as defined in 10 CFR Part 20. [For the staff’s risk argument for approval of the gross gamma activity rate of the licensees adding a Bases Control TS 4.5.2.15 and LCO 3.7.4, ‘‘Control noble gases in the main condenser Off Program: The amendment also changes Room Air Conditioning (AC) System.’’ gas (MCOG) within limits has no record keeping, reporting, or The argument for staying in Mode 3 significant impact on CDF or LERF, administrative procedures or instead of going to Mode 4 to repair the irrespective of the mode of operation at requirements.] The NRC staff has CRAC system (one or both trains) is also the time of the accident. Furthermore, determined that the amendment supported by defense-in-depth the challenge frequency of the MCOG involves no significant increase in the considerations. Section 6.2 makes a system (i.e., the frequency with which amounts and no significant change in comparison between the current (Mode the system is expected to be challenged the types of any effluents that may be 3) and the proposed (Mode 4) end state, to mitigate offsite radiation releases released offsite, and that there is no with respect to the means available to following a DBA) is less than 1.0E–6/yr. significant increase in individual or perform critical functions (i.e., functions Consequently, the conditional cumulative occupational radiation contributing to the defense-in-depth probability that this system will be exposure. The Commission has philosophy) whose success is needed to challenged during the repair time previously issued a proposed finding prevent core damage and containment interval while the plant is at either the that the amendment involves no failure and mitigate radiation releases. current or the proposed end state (i.e., significant hazards considerations, and The risk and defense-in-depth Mode 4 or Mode 3, respectively) is less there has been no public comment on
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00066 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74054 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
the finding [FR ]. Accordingly, the Proposed No Significant Hazards of an accident previously evaluated is amendments meet the eligibility criteria Consideration Determination not significantly increased, if at all. The for categorical exclusion set forth in 10 Description of Amendment Request: consequences of an accident after CFR 51.22(c)(9) [and (c)(10)]. Pursuant A change is proposed to the technical adopting proposed TSTF–423, are no to 10 CFR 51.22(b), no environmental specifications (TS) of [plant name], different than the consequences of an impact statement or environmental consistent with Technical Specifications accident prior to adopting TSTF–423. assessment need be prepared in Task Force (TSTF) change TSTF–423 to Therefore, the consequences of an connection with the issuance of the the standard technical specifications accident previously evaluated are not amendment. (STS) for BWR Plants (NUREG 1433 and significantly affected by this change. The addition of a requirement to assess NUREG 1434) to allow, for some 6.0 Conclusion and manage the risk introduced by this systems, entry into hot shutdown rather The Commission has concluded, on change will further minimize possible than cold shutdown to repair the basis of the considerations discussed concerns. Therefore, this change does equipment, if risk is assessed and above, that (1) There is reasonable not involve a significant increase in the managed consistent with the program in assurance that the health and safety of probability or consequences of an place for complying with the the public will not be endangered by accident previously evaluated. requirements of 10 CFR 50.65(a)(4). operation in the proposed manner, (2) Changes proposed in will be made to Criterion 2—The Proposed Change Does such activities will be conducted in the [plant name] TS for selected Not Create the Possibility of a New or compliance with the Commission’s Required Action end states providing Different Kind of Accident From Any regulations, and (3) the issuance of the this allowance. Previously Evaluated amendments will not be inimical to the Basis for proposed no-significant- common defense and security or to the The proposed change does not hazards-consideration determination: health and safety of the public. involve a physical alteration of the plant As required by 10 CFR 50.91(a), an (no new or different type of equipment 7.0 References analysis of the issue of no-significant- will be installed). If risk is assessed and 1. NEDC–32988–A, Revision 2, hazards-consideration is presented managed, allowing a change to certain ‘‘Technical Justification to Support below: required end states when the TS Risk-Informed Modification to Selected Criterion 1—The Proposed Change Does Completion Times for remaining in Required Action End States for BWR Not Involve a Significant Increase in the power operation are exceeded, i.e., entry Plants,’’ September 2005. Probability or Consequences of an into hot shutdown rather than cold 2. Federal Register, Vol. 58, No. 139, Accident Previously Evaluated shutdown to repair equipment, will not p. 39136, ‘‘Final Policy Statement on introduce new failure modes or effects Technical Specifications Improvements The proposed change allows a change and will not, in the absence of other for Nuclear Power Plants,’’ July 22, to certain required end states when the unrelated failures, lead to an accident 1993. TS Completion Times for remaining in whose consequences exceed the 3. 10 CFR 50.65, Requirements for power operation will be exceeded. Most consequences of accidents previously Monitoring the Effectiveness of of the requested technical specification evaluated. The addition of a Maintenance at Nuclear Power Plants.’’ (TS) changes are to permit an end state requirement to assess and manage the 4. Regulatory Guide 1.182, ‘‘Assessing of hot shutdown (Mode 3) rather than an risk introduced by this change and the and Managing Risk Before Maintenance end state of cold shutdown (Mode 4) commitment by the licensee to adhere to Activities at Nuclear Power Plants,’’ contained in the current TS. The request the guidance in TSTF–IG–05–02, May 2000. (ML003699426) was limited to: (1) Those end states Implementation Guidance for TSTF– 5. NUMARC 93–01, ‘‘Industry where entry into the shutdown mode is 423, Revision 0, ‘‘Technical Guideline for Monitoring the for a short interval, (2) entry is initiated Specifications End States, NEDC– Effectiveness of Maintenance at Nuclear by inoperability of a single train of 32988–A,’’ will further minimize Power Plants,’’ Nuclear Management equipment or a restriction on a plant possible concerns. Thus, this change and Resource Council, Revision 3, July operational parameter, unless otherwise does not create the possibility of a new 2000. stated in the applicable technical or different kind of accident from an 6. NRC Safety Evaluation for Topical specification, and (3) the primary accident previously evaluated. Report NEDC–32988, Revision 2, purpose is to correct the initiating Criterion 3—The Proposed Change Does September 27, 2002. (ML022700603) condition and return to power operation Not Involve a Significant Reduction in 7. TSTF–423, Revision 0, ‘‘Technical as soon as is practical. Risk insights the Margin of Safety Specifications End States, NEDC– from both the qualitative and 32988–A.’’ quantitative risk assessments were used The proposed change allows, for some 8. TSTF–IG–05–02, Implementation in specific TS assessments. Such systems, entry into hot shutdown rather Guidance for TSTF–423, Revision 0, assessments are documented in Section than cold shutdown to repair ‘‘Technical Specifications End States, 6 of GE NEDC–32988, Revision 2, equipment, if risk is assessed and NEDC–32988–A,’’ September 2005. ‘‘Technical Justification to support Risk managed. The BWROG’s risk assessment 9. Regulatory Guide 1.174, ‘‘An Informed Modification to Selected approach is comprehensive and follows Approach for Using Probabilistic Risk Required Action End States for BWR staff guidance as documented in RGs Assessment in Risk-Informed Decision Plants.’’ They provide an integrated 1.174 and 1.177. In addition, the Making on Plant Specific Changes to the discussion of deterministic and analyses show that the criteria of the Licensing Basis,’’ USNRC, August 1998. probabilistic issues, focusing on specific three-tiered approach for allowing TS (ML003740133) technical specifications, which are used changes are met. The risk impact of the 10. Regulatory Guide 1.177, ‘‘An to support the proposed TS end state proposed TS changes was assessed Approach for Pant Specific Risk- and associated restrictions. The staff following the three-tiered approach Informed Decision Making: Technical finds that the risk insights support the recommended in RG 1.177. A risk Specifications,’’ USNRC, August 1998. conclusions of the specific TS assessment was performed to justify the (ML003740176) assessments. Therefore, the probability proposed TS changes. The net change to
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00067 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74055
the margin of safety is insignificant. applicants with a copy of the request, company or unit investment trust. The Therefore, this change does not involve personally or by mail. Hearing requests Underlying Funds may also be a significant reduction in a margin of should be received by the Commission registered as open-end investment safety. by 5:30 p.m. on January 3, 2006 and companies or unit investment trusts that Based upon the reasoning presented should be accompanied by proof of have received exemptive relief to, above and the previous discussion of service on the applicants, in the form of among other things, issue shares of the amendment request, the requested an affidavit or, for lawyers, a certificate limited redeemability that can be traded change does not involve a significant of service. Hearing requests should state on an exchange at negotiated prices hazards consideration. the nature of the writer’s interest, the (‘‘Exchange-Traded Funds’’). The Funds Dated at Rockville, Maryland, this 8th day reason for the request, and the issues also may invest a portion of their assets of December, 2005. contested. Persons who wish to be directly in equity or fixed income For the Nuclear Regulatory Commission. notified of a hearing may request securities, and other investments. notification by writing to the Applicants request relief to permit the T. Robert Tjader, Sr., Commission’s Secretary. Funds to charge a sales load in excess Acting Branch Chief, Technical Specifications of the limit in section 12(d)(1)(F)(ii) of Branch, Division of Inspection & Regional ADDRESSES: Secretary, U.S. Securities Support, Associate Director for Operating and Exchange Commission, 100 F the Act. Reactor Oversight & Licensing, Office of Street, NE., Washington, DC 20549– Applicants’ Legal Analysis Nuclear Reactor Regulation. 9303; Applicants: Brenda Sem, c/o [FR Doc. 05–24021 Filed 12–13–05; 8:45 am] Integrity Mutual Funds, Inc., 1 Main A. Section 12(d)(1) of the Act BILLING CODE 7590–01–P Street North, Minot, North Dakota 1. Section 12(d)(1)(A) of the Act 58703. provides that no registered investment FOR FURTHER INFORMATION CONTACT: company may acquire securities of SECURITIES AND EXCHANGE Keith A. Gregory, Senior Counsel, at another investment company if those COMMISSION (202) 551–6815 or Mary Kay Frech, securities represent more than 3% of the Branch Chief, at (202) 551–6821 acquired company’s total outstanding [Release No. IC–27184; 812–13176] (Division of Investment Management, voting stock, more than 5% of the The Integrity Funds, et al.; Notice of Office of Investment Company acquiring company’s total assets, or if Application Regulation). the securities, together with the SUPPLEMENTARY INFORMATION: The securities of any other acquired December 8, 2005. following is a summary of the investment companies, represent more AGENCY: Securities and Exchange application. The complete application than 10% of the acquiring company’s Commission (‘‘Commission’’). may be obtained for a fee at the total assets. Section 12(d)(1)(B) of the ACTION: Notice of an application for an Commission’s Public Reference Desk, Act provides that no registered open- order under section 12(d)(1)(J) of the 100 F Street, NE., Washington, DC end investment company, its principal Investment Company Act of 1940 20549–0102 (tel. (202) 551–8090). underwriter and any broker or dealer (‘‘Act’’) for an exemption from section may sell securities of the company to 12(d)(1)(F)(ii) of the Act. Applicants’ Representations another investment company if the sale 1. The Integrity Funds is a Delaware will cause the acquiring company to Summary of Application: Applicants statutory trust registered with the own more than 3% of the acquired request an order to permit certain Commission under the Act as an open- company’s voting stock, or if the sale registered open-end management end management investment company. will cause more than 10% of the investment companies relying on The Integrity Funds currently consists acquired company’s voting stock to be section 12(d)(1)(F) of the Act to charge of ten Funds.1 The Adviser is registered owned by investment companies. a sales load in excess of 11⁄2 percent. as an investment adviser under the 2. Section 12(d)(1)(F) of the Act Applicants: Integrity Money Investment Advisers Act of 1940. The provides that section 12(d)(1) shall not Management, Inc. (the ‘‘Adviser’’), Distributor is the principal underwriter apply to the acquisition by a registered Integrity Funds Distributor, Inc. (the to the Funds and is registered as a investment company of the securities of ‘‘Distributor’’), and The Integrity Funds broker-dealer under the Securities an investment company if, among other on behalf of itself and certain series Exchange Act of 1934. things, the acquiring company and its thereof, and future registered open-end 2. Certain Funds, including the All affiliates immediately after the purchase management investment companies and Season Fund, intend to invest all or a own no more than 3% of an acquired series thereof advised by the Adviser or portion of their assets in the shares of company’s total outstanding stock and an entity controlling, controlled by, or various other registered investment the acquiring company does not charge under common control with the Adviser companies that are not part of the same a sales load in excess of 11⁄2%. or for which the Distributor or any ‘‘group of investment companies’’ as Applicants state that the Funds will entity controlling, controlled by, or defined in section 12(d)(1)(G)(ii) of the comply with section 12(d)(1)(F) in all under common control with the Act as the Funds (‘‘Underlying Funds’’) respects except for the sales load limit Distributor serves as principal in reliance on section 12(d)(1)(F) of the of 11⁄2%. underwriter (the ‘‘Funds’’). Act. Each of the Underlying Funds will 3. Section 12(d)(1)(J) of the Act Filing Dates: The application was be registered as a closed-end investment provides that the Commission may filed on March 17, 2005 and amended company, an open-end investment exempt persons or transactions from any on December 2, 2005. provision of section 12(d)(1), if and to Hearing or Notification of Hearing: An 1 The Integrity All Season Fund (the ‘‘All Season the extent that such exemption is order granting the application will be Fund’’) is the only existing Fund that currently consistent with the public interest and issued unless the Commission orders a intends to rely on the requested relief. Any existing the protection of investors. or future registered open-end management hearing. Interested persons may request investment company or series thereof that relies on 4. Applicants request an order under a hearing by writing to the the order in the future will do so only in accordance section 12(d)(1)(J) exempting them from Commission’s Secretary and serving with the terms and conditions of the application. the sales load limitation in section
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00068 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74056 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
12(d)(1)(F)(ii). Applicants have agreed, (‘‘Board’’) of each Fund, including a investment companies, certain of which as a condition to the requested relief, majority of the Board who are not operate as exchange-traded funds, to that any sales charges and/or service ‘‘interested persons’’ (as defined in other registered open-end management fees with respect to shares of a Fund section 2(a)(19) of the Act) investment companies that are not part will not exceed the limits set forth in (‘‘Disinterested Directors’’), shall find of the same group of investment Rule 2830 of the NASD Conduct Rules that the advisory fees, if any, charged companies.1 The order would also (‘‘NASD Conduct Rules’’) applicable to under the Fund’s advisory contract(s) amend a condition in another prior a fund of funds. Applicants believe that are based on services provided that are order.2 it is appropriate to apply the NASD’s in addition to, rather than duplicative APPLICANTS: Rydex ETF Trust, Rydex rule to the proposed arrangement of, services provided under any Series Funds, Rydex Dynamic Funds, instead of the sales load limitation in Underlying Fund’s advisory contract(s). PADCO Advisors, Inc. (‘‘PADCO’’) and section 12(d)(1)(F)(ii) because the Such finding, and the basis upon which PADCO Advisors II, Inc. (‘‘PADCO II’’). proposed limit would cap the aggregate the finding was made, will be recorded FILING DATES: The application was filed sales charges that may be imposed by a fully in the minute books of the on February 28, 2003, and amended on fund of funds. Applicants assert that the appropriate Fund. In addition, in February 19, 2004, June 4, 2004 and NASD’s rule more accurately reflects connection with the approval of any September 29, 2005. Applicants have today’s regulatory environment with investment advisory contract pursuant agreed to file a final amendment during respect to the methods by which to section 15 of the Act subsequent to the notice period, the substance of investment companies finance sales such initial determination, the Board of which is reflected here. expenses. Applicants also state that the each Fund, including a majority of the HEARING OR NOTIFICATION OF HEARING: An Funds will incur brokerage Disinterested Directors, shall find that order granting the application will be commissions in connection with their the advisory fees, if any, charged under issued unless the Commission orders a purchase and sale of shares of closed- the Fund’s advisory contract(s) are hearing. Interested persons may request end funds or Exchange-Traded Funds. based on services provided that are in a hearing by writing to the The commissions on such transactions addition to, rather than duplicative of, Commission’s Secretary and serving will not differ from those customarily services provided pursuant to any applicants with a copy of the request, incurred in connection with the Underlying Fund’s advisory contract(s). personally or by mail. Hearing requests purchase and sale of comparable Such finding, and the basis upon which should be received by the Commission securities. the finding was made, will be recorded by 5:30 p.m. on January 3, 2006, and Applicants’ Conditions fully in the minute books of the should be accompanied by proof of appropriate Fund. service on applicants, in the form of an Applicants agree that any order 5. The Board of each Fund will satisfy granting the requested relief will be affidavit or, for lawyers, a certificate of fund governance standards as defined in service. Hearing requests should state subject to the following conditions: rule 0–1(a)(7) under the Act by the 1. The Funds will comply with the nature of the writer’s interest, the compliance date for the rule. section 12(d)(1)(F) in all respects except reason for the request, and the issues for the sales load limitation of section For the Commission, by the Division of contested. Persons who wish to be 12(d)(1)(F)(ii). Investment Management, under delegated notified of a hearing may request 2. Any sales charges and/or service authority. notification by writing to the fees (as those terms are defined in Rule Jonathan G. Katz, Commission’s Secretary. 2830 of the NASD Conduct Rules) Secretary. ADDRESSES: Secretary, U.S. Securities charged with respect to shares of a Fund [FR Doc. E5–7302 Filed 12–13–05; 8:45 am] and Exchange Commission, 100 F will not exceed the limits applicable to BILLING CODE 8010–01–P Street, NE., Washington, DC 20549– a fund of funds as set forth in Rule 2830 9303; Applicants, 9601 Blackwell Road, of the NASD Conduct Rules. Suite 500, Rockville, MD 20850. 3. No Underlying Fund will acquire SECURITIES AND EXCHANGE FOR FURTHER INFORMATION CONTACT: securities of any investment company or COMMISSION Stacy L. Fuller, Branch Chief, and company relying on section 3(c)(1) or [Investment Company Act Release No. Michael W. Mundt, Senior Special 3(c)(7) of the Act in excess of the limits 27183; 812–12935] Counsel, at (202) 551–6821 (Office of contained in section 12(d)(1)(A) of the Investment Company Regulation, Act, except to the extent that such Rydex ETF Trust, et al.; Notice of Division of Investment Management). Underlying Fund (a) receives securities Application SUPPLEMENTARY INFORMATION: The of another investment company as a following is a summary of the December 8, 2005. dividend or as a result of a plan of application. The complete application AGENCY: reorganization of a company (other than Securities and Exchange may be obtained for a fee at the a plan devised for the purpose of Commission (‘‘Commission’’). Commission’s Public Reference Branch, evading section 12(d)(1)of the Act); or ACTION: Notice of an application for an 100 F Street, NE., Washington, DC (b) acquires (or is deemed to have order under section 12(d)(1)(J) of the 20549–0102 (tel. 202–551–5850). acquired) securities of another Investment Company Act of 1940 (the investment company pursuant to ‘‘Act’’) for an exemption from sections Applicants’ Representations: exemptive relief from the Commission 12(d)(1)(A) and (B) and under sections 1. Rydex Series Funds and Rydex permitting such Underlying Fund to (i) 6(c) and 17(b) of the Act for an Dynamic Funds (the ‘‘Original Trusts’’) acquire securities of one or more exemption from section 17(a) of the Act. affiliated investment companies for 1 PADCO Advisors, Inc., et al., Investment short-term cash management purposes; SUMMARY OF THE APPLICATION: The order Company Act Rel. Nos. 24678 (Oct. 5, 2000) (notice) or (ii) engage in interfund borrowing would amend a prior order to permit and 24722 (Oct. 31, 2000) (order) (‘‘Original Order’’). and lending transactions. principal underwriters and brokers and 2 Rydex ETF Trust, et al., Investment Company 4. Prior to reliance on the requested dealers to sell shares of certain Act Rel. Nos. 25948 (Feb. 27, 2003) (notice) and order, the board of directors or trustees registered open-end management 25970 (Mar. 25, 2003) (order) (‘‘ETF Order’’).
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00069 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74057
and Rydex ETF Trust are open-end Applicants’ Legal Analysis Specifically, applicants state that they management investment companies will continue to be, and that any A. Original Order registered under the Act, each of which principal underwriter and Brokers will is comprised of separate series (‘‘Rydex 1. Section 12(d)(1)(B) prohibits any be, fully subject to all of the terms and Funds’’ or ‘‘Funds’’). PADCO and registered open-end investment conditions of the Original Order, as PADCO II, which do business as Rydex company, principal underwriter or amended by the requested order. Investments, are Maryland corporations Broker from knowingly selling any Applicants posit that the proposed registered as investment advisers under security issued by an open-end amendments raise no additional the Investment Advisers Act of 1940 investment company (‘‘acquired regulatory or investor protection (‘‘Advisers Act’’). All Rydex Funds are, company’’) to another investment concerns that are not addressed by the and will be, advised by PADCO, PADCO company (‘‘acquiring company’’) if the terms and conditions of the requested II or an entity that is controlling, sale would cause either the acquiring order. Applicants, therefore, contend controlled by or under common control company to own more than 3% of the that the previously requested relief, as it with PADCO and PADCO II and is acquired company’s voting stock or would be amended, will be (a) registered as an investment adviser investment companies generally to own appropriate in the public interest and under the Advisers Act, and are, and more than 10% of the acquired consistent with the protection of will be, in the same group of investment company’s voting stock. Applicants investors and the purposes fairly companies, as defined in section state that the Rydex Funds, including intended by the policy and provisions of 12(d)(1)(G)(ii) of the Act. Rydex ETF Funds, are permitted under the Act, (b) consistent with the public 2. The Commission issued the the Original Order to sell their shares to interest and the protection of investors, Original Order to the Original Trusts Funds of Funds in excess of the limits and (c) conducted on terms that are and PADCO upon their application of section 12(d)(1)(B). However, reasonable and fair and do not involve (‘‘Original Application’’) to permit applicants state that because Rydex ETF overreaching on the part of any person registered open-end management Shares have begun to be listed and concerned, and consistent with the investment companies (‘‘Funds of traded on a national securities policy of each registered fund involved Funds’’) that are not part of the same exchange, as defined in section 2(a)(26) and with the purposes of the Act. group of investment companies as the of the Act, or on The Nasdaq Stock Original Trusts to acquire shares of the Market since the Original Order, Brokers B. ETF Order Rydex Funds beyond the limits of are now virtually certain to be involved 4. Existing condition 2 to the ETF section 12(d)(1)(A) of the Act, and to in sales of Rydex ETF Shares to Funds Order provides that the prospectus permit the Original Trusts, and each of Funds, which may require the (‘‘Prospectus’’) and the product existing and future registered open-end requested relief. Accordingly, applicants description (‘‘Product Description’’) of management investment company that seek to amend the Original Order to each Rydex ETF Fund will disclose that is part of the same group of investment permit any principal underwriter and Rydex ETF Shares are issued by a Rydex companies as the Original Trusts to sell Broker knowingly to sell shares of Fund and that the acquisition of Rydex shares beyond the limits in section Rydex Funds to Funds of Funds in ETF Shares is subject to the restrictions 12(d)(1)(B) of the Act. The Commission excess of the limits prescribed by of section 12(d)(1). In light of the relief issued the ETF Order to permit the section 12(d)(1)(B). requested to permit Funds of Funds to series of Rydex ETF Trust (‘‘Rydex ETF 2. Applicants also seek to clarify the purchase, and the principal Funds’’) to issue shares of limited Original Order in certain respects. First, underwriter, Brokers and Rydex ETF redeemability (‘‘Rydex ETF Shares’’ or applicants seek to clarify that a Fund of Funds to sell, Rydex ETF Shares in ‘‘Shares’’) that trade in the secondary Funds that intends to rely on the excess of the limits of sections market at negotiated prices. amended order will enter into a 12(d)(1)(A) and (B), respectively, 3. Applicants request an order participation agreement with the applicants seek to replace existing amending both the Original Order and relevant Rydex Fund before exceeding condition 2 with condition 14, as stated the ETF Order. The requested order any of the investment limits of section below. Condition 14 generally provides would amend the Original Order to (a) 12(d)(1)(A). Second, applicants seek to that the Funds of Funds will be alerted permit any principal underwriter of a amend the Original Order to better that they may invest in Rydex ETF Rydex Fund and broker or dealer address situations where a Fund of Funds in excess of the limits of section (‘‘Broker’’) registered under the Funds employs an investment adviser 12(d)(1) to the extent that they comply Securities Exchange Act of 1934 within the meaning of section with the terms and conditions of the knowingly to sell shares of Rydex 2(a)(20)(A) of the Act (‘‘Fund of Funds Original Order, as amended by the Funds, including Rydex ETF Shares, Adviser’’) and one or more investment requested order, including the beyond the limits set forth in section advisers within the meaning of section requirement that they enter into a 12(d)(1)(B) to Funds of Funds and (b) 2(a)(20)(B) of the Act (‘‘Subadvisers’’). participation agreement with the Rydex modify certain terms and conditions of Applicants state that any investment the Original Order. In addition, the ETF Fund regarding the terms of the adviser to a Fund of Funds will be investment. requested order would amend a registered, or exempt from registration, condition of the ETF Order in order to under the Advisers Act. Applicants’ Conditions render it consistent with the relief from 3. Applicants state that their legal A. Original Order section 12(d)(1) granted by the Original analysis is unchanged from that Order as modified by the requested provided in the Original Application. Applicants agree the conditions to the order.3 Original Order will be superseded by, terms and conditions of the Original Application, and the requested order will be subject 3 Applicants state that, except for Brokers and as amended by this application. Applicants to, the following conditions: Funds of Funds, all parties that currently intend to acknowledge that Funds of Funds may rely on the 1. (a) The Fund of Funds Adviser, (b) rely on the requested order are named as applicants. requested order only to invest in Rydex Funds and Any other party that relies on the requested order not in any other registered investment company. any person controlling, controlled by, or in the future, including principal underwriters, Applicants state that Funds of Funds do not include under common control with the Fund of Brokers and Funds of Funds, will comply with the Rydex Funds. Funds Adviser, and (c) any investment
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00070 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74058 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
company or issuer that would be an Funds without taking into account any The Board of Trustees will review these investment company but for section consideration received by the Fund of purchases periodically, but no less 3(c)(1) or 3(c)(7) of the Act that is Funds or a Fund of Funds Affiliate from frequently than annually, to determine advised or sponsored by the Fund of a Rydex Fund or a Rydex Fund Affiliate whether the purchases were influenced Funds Adviser, or any person in connection with any services or by the investment by the Fund of Funds controlling, controlled by, or under transactions. in the Rydex Fund. The Board of common control with the Fund of 4. Once an investment by a Fund of Trustees will consider, among other Funds Adviser (collectively, the Funds in the securities of a Rydex Fund things, (i) whether the purchases were ‘‘Adviser Group’’) will not control exceeds the limit in section consistent with the investment (individually or in the aggregate) a 12(d)(1)(A)(i) of the Act, the board of objectives and policies of the Rydex Rydex Fund within the meaning of trustees of the Rydex Fund (‘‘Board of Fund, (ii) how the performance of section 2(a)(9) of the Act. (a) Any Trustees’’), including a majority of the securities purchased in an Affiliated Subadviser, (b) any person controlling, disinterested trustees, will determine Underwriting compares to the controlled by, or under common control that any consideration paid by the performance of comparable securities with the Subadviser, and (c) any Rydex Fund to the Fund of Funds or a purchased during a comparable period investment company or issuer that Fund of Funds Affiliate in connection of time in underwritings other than would be an investment company but with any services or transactions: (a) is Affiliated Underwritings or to a for section 3(c)(1) or 3(c)(7) of the Act fair and reasonable in relation to the benchmark such as a comparable market (or portion of such investment company nature and quality of the services and index, and (iii) whether the amount of or issuer) advised or sponsored by the benefits received by the Rydex Fund; (b) securities purchased by the Rydex Fund Subadviser or any person controlling, is within the range of consideration that in Affiliated Underwritings and the controlled by, or under common control the Rydex Fund would be required to amount purchased directly from an with the Subadviser (collectively, the pay to another unaffiliated entity in Underwriting Affiliate have changed ‘‘Subadviser Group’’) will not control connection with the same services or significantly from prior years. The (individually or in the aggregate) a transactions; and (c) does not involve Board of Trustees shall take any Rydex Fund within the meaning of overreaching on the part of any person appropriate actions based on its review, section 2(a)(9) of the Act. If, as a result concerned. This condition does not including, if appropriate, the institution of a decrease in the outstanding voting apply with respect to any services or of procedures designed to assure that securities of a Rydex Fund, the Adviser transactions between a Rydex Fund and purchases of securities in Affiliated Group or the Subadviser Group, each in its investment adviser(s), or any person Underwritings are in the best interest of the aggregate, becomes a holder of more controlling, controlled by, or under shareholders. than 25 percent of the outstanding common control with such investment 7. Each Rydex Fund shall maintain voting securities of a Rydex Fund, it adviser(s). and preserve permanently in an easily will vote its shares of the Rydex Fund 5. No Fund of Funds or Fund of accessible place a written copy of the in the same proportion as the vote of all Funds Affiliate (except to the extent it procedures described in the preceding other holders of the Rydex Fund’s is acting in its capacity as an investment condition, and any modifications, and shares. This condition does not apply to adviser to a Rydex Fund) will cause a shall maintain and preserve for a period the Subadviser Group with respect to a Rydex Fund to purchase a security in an of not less than six years from the end Rydex Fund for which the Subadviser or offering of securities during the of the fiscal year in which any purchase a person controlling, controlled by, or existence of any underwriting or selling in an Affiliated Underwriting occurred, under common control with the syndicate of which a principal the first two years in an easily accessible Subadviser acts as the investment underwriter is an officer, director, place, a written record of each purchase adviser within the meaning of section member of an advisory board, Fund of of securities in Affiliated Underwritings 2(a)(20)(A) of the Act. Funds Adviser, Subadviser or employee once an investment by a Fund of Funds 2. No Fund of Funds or Fund of of the Fund of Funds, or a person of in the securities of the Rydex Fund Funds Adviser, Subadviser, promoter, which any such officer, director, exceeds the limit of section principal underwriter, or any person member of an advisory board, Fund of 12(d)(1)(A)(i), setting forth from whom controlling, controlled by, or under Funds Adviser, Subadviser or employee the securities were acquired, the common control with any of those is an affiliated person (each, an identity of the underwriting syndicate’s entities (each, a ‘‘Fund of Funds ‘‘Underwriting Affiliate,’’ except that members, the terms of the purchase, and Affiliate’’) will cause any existing or any person whose relationship to the the information or materials upon potential investment by the Fund of Rydex Fund is covered by section 10(f) which the Board of Trustees’ Funds in shares of a Rydex Fund to of the Act is not an Underwriting determinations were made. influence the terms of any services or Affiliate). An offering of securities 8. Prior to an investment in a Rydex transactions between the Fund of Funds during the existence of an underwriting Fund in excess of the limits in section or a Fund of Funds Affiliate and the or selling syndicate of which a principal 12(d)(1)(A), each Fund of Funds and the Rydex Fund or its investment adviser(s), underwriter is an Underwriting Affiliate Rydex Fund will execute an agreement promoter, principal underwriter, or any is an ‘‘Affiliated Underwriting.’’ stating, without limitation, that their person controlling, controlled by, or 6. The Board of Trustees, including a boards of directors and their investment under common control with any of majority of the disinterested trustees, advisers understand the terms and those entities (each, a ‘‘Rydex Fund will adopt procedures reasonably conditions of the order and agree to Affiliate’’). designed to monitor any purchases of fulfill their responsibilities under the 3. The board of directors of a Fund of securities by a Rydex Fund in an order. At the time of its investment in Funds, including a majority of the Affiliated Underwriting once an a Rydex Fund in excess of the limit in disinterested directors, will adopt investment by a Fund of Funds in the section 12(d)(1)(A)(i), a Fund of Funds procedures reasonably designed to securities of the Rydex Fund exceeds will notify the Rydex Fund of the assure that the Fund of Funds Adviser the limit of section 12(d)(1)(A)(i) of the investment. At such time, the Fund of and any Subadviser are conducting the Act, including any purchases made Funds will also transmit to the Rydex investment program of the Fund of directly from an Underwriting Affiliate. Fund a list of the names of each Fund
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00071 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74059
of Funds Affiliate and Underwriting Act, except to the extent permitted by SECURITIES AND EXCHANGE Affiliate. The Fund of Funds will notify section 12(d)(1)(E) of the Act or an COMMISSION the Rydex Fund of any changes to the exemptive order that allows the Rydex [Release No. 34–52886; File No. S7–24–89] list of the names as soon as reasonably Fund to purchase shares of an affiliated practicable after a change occurs. The money market fund for short-term cash Joint Industry Plan; Solicitation of Rydex Fund and the Fund of Funds will management purposes. Comments and Order Granting maintain and preserve a copy of the Summary Effectiveness To Request To order, the agreement, and the list with 13. The board of directors of any Fund of Funds and the Board of Trustees of Extend the Operation of the Reporting any updated information for the Plan for Nasdaq-Listed Securities duration of the investment and for a any Rydex Fund will satisfy the fund governance standards as defined in rule Traded on Exchanges on an Unlisted period of not less than six years Trading Privilege Basis, Submitted by 0–1(a)(7) under the Act by the later of thereafter, the first two years in an The Pacific Exchange, Inc., The (i) the compliance date for the rule or easily accessible place. National Association of Securities 9. Prior to approving any advisory (ii) the date on which the Fund of Funds Dealers, Inc., The American Stock contract under section 15 of the Act, the and the Rydex Fund execute a Exchange LLC, The Boston Stock board of directors of each Fund of Participation Agreement. Exchange, Inc., The Chicago Stock Funds, including a majority of the B. ETF Order Exchange, Inc., The National Stock disinterested directors, will find that the Exchange, Inc., and The Philadelphia advisory fees charged under such Applicants agree to replace condition Stock Exchange, Inc. and To Extend advisory contract are based on services 2 of the ETF Order with the following Certain Exemptive Relief provided that will be in addition to, condition: rather than duplicative of, the services December 5, 2005. provided under the advisory contract(s) 14. Each Fund’s Prospectus and I. Introduction and Description of any Rydex Fund in which the Fund Product Description will clearly of Funds may invest. These findings and disclose that, for purposes of the Act, On December 2, 2005, the Pacific their basis will be recorded fully in the Shares are issued by a Fund and the Exchange, Inc. (‘‘PCX’’) on behalf of minute books of the appropriate Fund of acquisition of Shares by investment itself and the National Association of Funds. companies is subject to the restrictions Securities Dealers, Inc. (‘‘NASD’’), the 10. A Fund of Funds Adviser will of section 12(d)(1) of the Act, except as American Stock Exchange LLC waive fees otherwise payable to it by the permitted by an exemptive order that (‘‘Amex’’), the Boston Stock Exchange, Fund of Funds in an amount at least permits registered investment Inc. (‘‘BSE’’), the Chicago Stock equal to any compensation (including companies to invest in a Fund beyond Exchange, Inc. (‘‘CHX’’), the National Stock Exchange, Inc. (‘‘NSX’’), and the fees received pursuant to any plan the limits of section 12(d)(1), subject to adopted by a Rydex Fund under rule Philadelphia Stock Exchange, Inc. certain terms and conditions, including 12b-1 under the Act) received from a (‘‘Phlx’’) (hereinafter referred to that the registered investment company Rydex Fund by the Fund of Funds collectively as ‘‘Participants’’),1 as Adviser, or an affiliated person of the enter into an agreement with the Fund members of the operating committee Fund of Funds Adviser, other than any regarding the terms of the investment. (‘‘Operating Committee’’ or advisory fees paid to the Fund of Funds For the Commission, by the Division of ‘‘Committee’’) of the Plan submitted to Adviser or its affiliated person by the Investment Management, pursuant to the Securities and Exchange Rydex Fund, in connection with the delegated authority. Commission (‘‘Commission’’) a request investment by the Fund of Funds in the J. Lynn Taylor, to extend the operation of the Plan and also to extend certain exemptive relief Rydex Fund. Any Subadviser will waive Assistant Secretary. fees otherwise payable to the as described below.2 The Nasdaq UTP [FR Doc. E5–7339 Filed 12–13–05; 8:45 am] Subadviser, directly or indirectly, by the Plan governs the collection, processing, Fund of Funds in an amount at least BILLING CODE 8010–01–P and dissemination on a consolidated equal to any compensation received basis of quotation and last sale from a Rydex Fund by the Subadviser, information for each of its Participants. or an affiliated person of the Subadviser, This consolidated information informs other than any advisory fees paid to the investors of the current quotation and Subadviser or its affiliated person by the recent trade prices of The Nasdaq Stock Rydex Fund, in connection with the Market, Inc. (‘‘Nasdaq’’) securities. It investment by the Fund of Funds in the enables investors to ascertain from one Rydex Fund made at the direction of the data source the current prices in all the Subadviser. In the event that the markets trading Nasdaq securities. The Subadviser waives fees, the benefit of Plan serves as the required transaction the waiver will be passed through to the reporting plan for its Participants, Fund of Funds. which is a prerequisite for their trading 11. Any sales charges and/or service fees charged with respect to shares of 1 PCX is the chair of the operating committee the Funds of Funds will not exceed the (‘‘Operating Committee’’ or ‘‘Committee’’) for the limits applicable to a fund of funds as Joint Self-Regulatory Organization Plan Governing the Collection, Consolidation and Dissemination of set forth in rule 2830 of the NASD Quotation and Transaction Information for Nasdaq- Conduct Rules. Listed Securities Traded on Exchanges on an 12. No Rydex Fund will acquire Unlisted Trading Privilege Basis (‘‘Nasdaq UTP securities of any investment company or Plan’’ or ‘‘Plan’’) by the Participants. 2 See letter from Bridget M. Farrell, Chairman, company relying on section 3(c)(1) or OTC/UTP Operating Committee, to Jonathan G. 3(c)(7) of the Act in excess of the limits Katz, Secretary, Commission, dated December 2, contained in section 12(d)(1)(A) of the 2005.
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00072 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74060 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
Nasdaq securities. Currently, the Plan is Participants have requested an exemption under Rule 608(e) 19 from scheduled to expire on December 21, extension of the exemptive relief. compliance with Section VI.C.1. of the 2005. Plan as required by Rule 608(c).20 The III. Discussion This order grants summary Commission believes that the Plan is a effectiveness, pursuant to Rule 608(b)(4) The Commission finds that extending critical component of the national under the Securities Exchange Act of the operation of the Plan is consistent market system and that the requested 1934 (‘‘Act’’),3 to the request to extend with the requirements of the Act and the exemptive relief is necessary to assure operation of the Plan, as modified by all rules and regulations thereunder, and, the effective operation of the Plan. The changes previously approved, and to the in particular, Section 12(f) 14 and Commission believes that the requested request to extend certain exemptive Section 11A(a)(1) 15 of the Act and Rules exemptive relief extension is consistent relief (‘‘Date Extension’’). Pursuant to 601 and 608 thereunder.16 Section 11A with the Act, the Rules thereunder, and, Rule 608(b)(4) under the Act,4 the Date of the Act directs the Commission to specifically, with the objectives set forth Extension will be effective upon facilitate the development of a national in Sections 12(f) and 11A of the Act 21 publication in the Federal Register on market system for securities, ‘‘having and Rules 601 and 608 thereunder.22 temporary basis not to exceed 120 days. due regard for the public interest, the IV. Solicitation of Comments protection of investors, and the II. Exemptive Relief maintenance of fair and orderly The Commission seeks general While both Nasdaq and the NASD markets,’’ and cites as an objective of comments on the extension of the operate under the umbrella of a single that system the ‘‘fair competition * * * operation of the Plan and the extension Plan Participant, the submission of two between exchange markets and markets of exemptive relief. Interested persons distinct best bids and offers (‘‘BBOs’’) other than exchange markets.’’ 17 When are invited to submit written data, could be deemed inconsistent with the Commission first approved the Plan views, and arguments concerning the Section VI.C.1 of the Plan.5 Pursuant to on a pilot basis, it found that the Plan foregoing, including whether the the 13th Amendment of the Plan and ‘‘should enhance market efficiency and proposal is consistent with the Act. Rule 608(a)(3),6 Nasdaq cannot be fair competition, avoid investor Comments may be submitted by any of granted Plan Participant status until it is confusion, and facilitate surveillance of the following methods: registered as a national securities concurrent exchange and OTC Electronic Comments exchange. While Nasdaq submits a trading.’’ 18 The Plan has been in • distinct BBO from the NASD and until existence since 1990 and Participants Use the Commission’s Internet Nasdaq is registered as a national have been trading Nasdaq securities comment form (http://www.sec.gov/ securities exchange, the NASD will under the Plan since 1993. The rules/sro.shtml); or • submit quotes to the Plan’s Securities Commission finds that extending the Send an e-mail to rule- Information Processor (‘‘SIP’’) in a operation of the Plan through summary [email protected]. Please include File manner different than specified in effectiveness furthers the goals Number S7–24–89 on the subject line. Section VI.C.1. of the Plan and, thus, in described above by preventing the lapse Paper Comments conflict with Commission Rule 608(c).7 of the sole effective transaction • As discussed at length in the notice of reporting plan for Nasdaq securities Send paper comments in triplicate the 13th Amendment,8 the Commission traded by exchanges pursuant to to Jonathan G. Katz, Secretary, had determined to relieve the potential unlisted trading privileges. The Securities and Exchange Commission, conflict among the SuperMontage Commission believes that the Plan is Station Place, 100 F Street, NE, approval order,9 Rule 608,10 and the currently a critical component of the Washington, DC 20549–9303. Plan, by granting the NASD an national market system and that the All submissions should refer to File exemption under Rule 608(e) 11 from Plan’s expiration would have a serious, Number S7–24–89. This file number compliance with Section VI.C.1. of the detrimental impact on the further should be included on the subject line Plan as required by Rule 608(c) 12 until development of the national market if e-mail is used. To help the such time as Nasdaq is registered as a system. The Commission also finds that Commission process and review your national securities exchange.13 The Plan it is appropriate to grant summary comments more efficiently, please use effectiveness to the request to extend the only one method. The Commission will 3 17 CFR 242.608(b)(4). post all comments on the Commission’s 4 17 CFR 242.608(b)(4). Internet Web site (http://www.sec.gov/ seeking registration as a national securities 5 Section VI.C.1. of the Plan, as approved by the exchange. The most recent Form 1 and rules/sro.shtml). Copies of the Operating Committee in the 13th Amendment, accompanying amendments were published for submission, all subsequent states that ‘‘[t]he Processor shall disseminate on the comment. See Securities Exchange Act Release No. amendments, all written statements UTP Quote Data Feed the best bid and offer 52559 (October 4, 2005), 70 FR 59097 (October 11, with respect to the proposed rule information supplied by each Participant, including 2005). the NASD....’’ change that are filed with the 14 15 U.S.C. 78l(f). The Commission finds that 6 17 CFR 242.608(a)(3). extending the Plan is consistent with fair and Commission, and all written 7 17 CFR 242.608(c). Commission Rule 608(c) orderly markets, the protection of investors and the communications relating to the requires a self-regulatory organization participant of public interest, and otherwise in furtherance of the proposed rule change between the national market system plan to comply with the purposes of the Act. The Commission has taken into Commission and any person, other than terms of that plan. account the public trading activity in securities 8 See Securities Exchange Act Release No. 46139 traded pursuant to the Plan, the character of the those that may be withheld from the (June 28, 2001), 67 FR 44888 (July 5, 2002) (‘‘13th trading, the impact of the trading of such securities public in accordance with the Amendment Notice’’). on existing markets, and the desirability of provisions of 5 U.S.C. 552, will be 9 See Securities Exchange Act Release No. 43863 removing impediments to, and the progress that has available for inspection and copying in (January 19, 2001), 66 FR 8020 (January 26, 2001). been made toward the development of a national 10 17 CFR 242.608. market system. the Commission’s Public Reference 11 17 CFR 242.608(e). 15 15 U.S.C. 78k–1(a)(1). 12 17 CFR 242.608(c). 16 17 CFR 242.601 and 17 CFR 242.608. 19 17 CFR 242.608(e). 13 On March 15, 2001, the Nasdaq Stock Market, 17 15 U.S.C. 78k–1(a). 20 17 CFR 242.608(c). Inc. (‘‘Nasdaq’’) submitted to the Commission a 18 See Securities Exchange Act Release No. 28146 21 15 U.S.C. 781(f) and 15 U.S.C. 78k–1. Form 1 application pursuant to Section 6 of the Act, (June 26, 1990), 55 FR 27917 (July 6, 1990). 22 17 CFR 242.601 and 17 CFR 242.608.
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00073 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74061
Room. Copies of the filing also will be amendment to the Plan for Reporting of Securities would be included in OPRA’s available for inspection and copying at Consolidated Options Last Sale Reports basic service and not in its FCO service, the Office of the Secretary of the and Quotation Information (‘‘OPRA and revenues and expenses pertaining Committee, currently located at the Plan’’).3 The proposed OPRA Plan to market data regarding these new FCO Pacific Exchange, Inc. and Archipelago amendment would provide that classes Securities would be allocated to OPRA’s Exchange L.L.C., 100 South Wacker of Foreign Currency Options (‘‘FCO basic accounting center and further Drive, Suite 2000, Chicago, IL 60606. Securities’’ or ‘‘FCO’’), newly allocated among the parties to the OPRA All comments received will be posted introduced for trading on the Phlx Plan as if these products were EIO without change; the Commission does during a temporary period ending no Securities and not FCO Securities. not edit personal identifying later than December 31, 2007, will be information from submissions. You treated by OPRA as Equity/Index OPRA represents that all currently should submit only information that Options (‘‘EIO Securities’’ or ‘‘EIO’’) to traded FCO products would continue to you wish to make available publicly. All the extent described in the proposed be disseminated on the current FCO submissions should refer to File amendment. Notice of the proposal was data line, and would continue to be Number S7–24–89 and should be published in the Federal Register on treated by OPRA as FCO Securities. submitted on or before January 4, 2006. November 7, 2005.4 The Commission Only newly traded FCO Securities received no comment letters on the would be treated as EIO Securities and V. Conclusion proposed OPRA Plan amendment. This only for a temporary period while the It is therefore ordered, pursuant to order approves the proposal. Phlx’s upgraded FCO platform is being Sections 12(f) and 11A of the Act 23 and FCO Securities under the OPRA Plan developed. The purpose of the proposed paragraph (b)(4) of Rule 608 are currently traded only on the Phlx, OPRA Plan amendment is to codify in 24 thereunder, that the operation of the which processes these options on a the language of the OPRA Plan the Plan, as modified by all changes separate computer platform from its EIO above-described temporary treatment of Securities. The FCO platform is a legacy previously approved, be, and hereby is, the Phlx’s newly traded FCO Securities. extended, and that certain exemptive system, which is in the process of being relief also be extended, both for a period converted to a newer technology. The After careful review, the Commission not to exceed 120 days from the date of Phlx has advised OPRA that it expects finds that the proposed OPRA Plan publication of this Date Extension in the to have this effort completed no later amendment is consistent with the Federal Register. than December 31, 2007, and that, in the requirements of the Act and the rules 5 For the Commission, by the Division of meanwhile, the Phlx does not intend to and regulations thereunder. The Market Regulation, pursuant to delegated devote resources to expanding the soon Commission finds that the proposed authority.25 to be replaced legacy platform. Because OPRA Plan amendment is consistent Jonathan G. Katz, the legacy FCO platform does not have with Section 11A of the Act 6 and Rule Secretary. the capacity to handle additional classes 608 thereunder 7 in that it is appropriate [FR Doc. E5–7329 Filed 12–13–05; 8:45 am] of FCO Securities that may be in the public interest, for the protection introduced for trading by the Phlx while BILLING CODE 8010–01–P of investors and the maintenance of fair the new platform is being developed, and orderly markets, to remove the Phlx has proposed to temporarily impediments to, and perfect the SECURITIES AND EXCHANGE process any such new classes of FCO mechanisms of, a national market COMMISSION Securities on its EIO platform, which system. Specifically, the Commission does have the capacity to handle them, finds that it is appropriate to clarify in [Release No. 34–52901; File No. SR–OPRA– until the new FCO platform is available. the language of the OPRA Plan the 2005–03] According to OPRA, this would mean temporary treatment of the Phlx’s newly that, while these new FCO Securities are Options Price Reporting Authority; traded FCO Securities as EIO Securities Order Approving an Amendment to the on the EIO platform, their quotes and trade reports would be disseminated to and believes that the proposed language Plan for Reporting of Consolidated is a reasonable accommodation by Options Last Sale Reports and OPRA over EIO data lines and not over the FCO data line. In turn, this would OPRA during the time the Phlx is Quotation Information To Provide That upgrading its FCO platform. Classes of Foreign Currency Options require OPRA to treat these quotes and Newly Introduced for Trading on the trade reports as if they were EIO It is therefore ordered, pursuant to Philadelphia Stock Exchange Be Securities. Thus, quotes and trade Section 11A of the Act,8 and Rule 608 Treated as Equity/Index Options reports covering these new FCO thereunder,9 that the proposed OPRA During a Temporary Period Ending on Plan amendment (SR–OPRA–2005–03) 3 The OPRA Plan is a national market system plan be, and it hereby is, approved on a December 31, 2007 approved by the Commission pursuant to Section 11A of the Act and Rule 608 thereunder (formerly temporary basis, until December 31, December 6, 2005. Rule 11Aa3–2). See Securities Exchange Act 2007. On October 21, 2005, the Options Release No. 17638 (March 18, 1981), 22 S.E.C. Price Reporting Authority (‘‘OPRA’’) Docket 484 (March 31, 1981). The full text of the submitted to the Securities and OPRA Plan is available at http:// Exchange Commission (‘‘Commission’’), www.opradata.com. The OPRA Plan provides for the collection and pursuant to Section 11A of the dissemination of last sale and quotation information Securities Exchange Act of 1934 on options that are traded on the participant 5 In approving this proposed OPRA Plan (‘‘Act’’) 1 and Rule 608 thereunder,2 an exchanges. The six participants to the OPRA Plan Amendment, the Commission has considered its are the American Stock Exchange LLC, the Boston impact on efficiency, competition, and capital Stock Exchange, Inc., the Chicago Board Options 23 15 U.S.C. 78(f) and 15 U.S.C. 78k–1. formation. 15 U.S.C. 78c(f). Exchange, Incorporated, the International Securities 6 24 15 U.S.C. 78k–1. 17 CFR 242.608(b)(4). Exchange, Inc., the Pacific Exchange, Inc., and the 7 25 17 CFR 200.30–3(a)(27). Philadelphia Stock Exchange, Inc (‘‘Phlx’’). 17 CFR 242.608. 1 15 U.S.C. 78k–1. 4 See Securities Exchange Act Release No. 52710 8 15 U.S.C. 78k–1. 2 17 CFR 242.608. (November 1, 2005), 70 FR 67503. 9 17 CFR 242.608.
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00074 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74062 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
For the Commission, by the Division of 1 of OPRA’s BBO Guidelines to reduce Plan amendment (SR–OPRA–2005–04) Market Regulation, pursuant to delegated from five cents to one cent the be, and it hereby is, approved. authority.10 minimum price differential by which a For the Commission, by the Division of Jonathan G. Katz, bid or offer must improve a current Market Regulation, pursuant to delegated Secretary. quote in order to displace the current authority.10 [FR Doc. E5–7301 Filed 12–13–05; 8:45 am] quote in the consolidated BBO. In Jonathan G. Katz, BILLING CODE 8010–01–P addition, the proposed amendment will Secretary. revise the introductory paragraph of the [FR Doc. E5–7304 Filed 12–13–05; 8:45 am] BBO Guidelines to correctly refer to the BILLING CODE 8010–01–P SECURITIES AND EXCHANGE section of the OPRA Plan where the COMMISSION definition of ‘‘BBO’’ is set forth. [Release No. 34–52900; File No. SR–OPRA– Under the current rules of the SECURITIES AND EXCHANGE 2005–04] exchanges that are parties to the OPRA COMMISSION Plan, the minimum quoting increment Options Price Reporting Authority; for options is five cents (ten cents for [Release No. 34–52904; File No. SR–Amex– Order Approving an Amendment to the options quoted at $3 or higher), and no 2005–092] Plan for Reporting of Consolidated exchange currently quotes options in Self-Regulatory Organizations; Options Last Sale Reports and penny increments. In the absence of this American Stock Exchange LLC; Notice Quotation Information (‘‘OPRA Plan’’) amendment, if penny quoting were to be of Filing and Order Granting to Amend Guideline No. 1 of the Best introduced on one or more exchange Accelerated Approval of a Proposed Bid and Offer Guidelines Adopted and if an exchange were to improve the Rule Change and Amendment No. 1 Pursuant to the OPRA Plan current best quote on another exchange Thereto Relating to the Trading by less than five cents, the original December 6, 2005. Pursuant to Unlisted Trading quote and not the improved quote On October 31, 2005, the Options Privileges of the iShares S&P Global would continue to be disseminated over Price Reporting Authority (‘‘OPRA’’) 100 Fund submitted to the Securities and OPRA’s BBO service as the ‘‘best’’ even Exchange Commission (‘‘Commission’’), though a better quote would in fact be December 7, 2005. pursuant to section 11A of the available. This amendment would Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 assure that, in the event penny quoting Securities Exchange Act of 1934 (‘‘Act’’) 1 and Rule 608 thereunder,2 an is introduced in the options markets, (‘‘Act’’),1 and Rule 19b–4 thereunder,2 amendment to the Plan for Reporting of OPRA’s BBO service would disseminate notice is hereby given that on Consolidated Options Last Sale Reports the actual best-priced bids and offers at September 13, 2005, the American Stock and Quotation Information (‘‘OPRA any given point in time. Exchange LLC (‘‘Amex’’ or the Plan’’).3 The proposed amendment After careful review, the Commission ‘‘Exchange’’) filed with the Securities would amend Guideline No. 1 of the finds that the proposed OPRA Plan and Exchange Commission (‘‘SEC’’ or Best Bid and Offer Guidelines (‘‘BBO amendment is consistent with the ‘‘Commission’’) the proposed rule Guidelines’’) previously adopted by requirements of the Act and the rules change as described in Items I, II and III OPRA under section II (o) of the OPRA and regulations thereunder.5 The below, which Items have been prepared Plan and make a minor editorial Commission finds that the proposed by the Exchange. On November 22, correction to the introductory paragraph OPRA Plan amendment is consistent 2005, Amex filed Amendment No. 1 to of the BBO Guidelines. Notice of the with section 11A of the Act 6 and Rule the proposed rule change.3 The proposal was published in the Federal 608 thereunder 7 in that it is appropriate Commission is publishing this notice to Register on November 7, 2005.4 The in the public interest, for the protection solicit comments on the proposed rule Commission received no comment of investors and the maintenance of fair change, as amended, from interested letters on the proposed OPRA Plan and orderly markets, to remove persons and approving the proposal on amendment. This order approves the impediments to, and perfect the an accelerated basis. proposal. mechanism of, a national market The purpose of the proposed system. Specifically, the Commission I. Self-Regulatory Organization’s amendment is to amend Guideline No. finds that it is reasonable and Statement of the Terms of Substance of appropriate to amend the BBO the Proposed Rule Change 10 17 CFR 200.30–3(a)(29). Guidelines at this time to ensure that, The Amex proposes to trade shares 1 15 U.S.C. 78k–1. should the options exchanges receive (the ‘‘Fund Shares’’ or ‘‘Shares’’) of the 2 17 CFR 242.608. Commission approval to quote options iShares S&P Global 100 Fund (ticker 3 The OPRA Plan is a national market system plan in penny increments, OPRA would be approved by the Commission pursuant to Section symbol: IOO) (the ‘‘Global 100 Fund’’ or 11A of the Act and Rule 608 thereunder (formerly able to disseminate the actual best- ‘‘Fund’’) pursuant to unlisted trading Rule 11Aa3–2). See Securities Exchange Act priced bids and offers through its BBO privileges (‘‘UTP’’). Release No. 17638 (March 18, 1981), 22 S.E.C. service. The text of the proposed rule change Docket 484 (March 31, 1981). The full text of the OPRA Plan is available at http:// It Is therefore ordered, pursuant to is available on the Exchange’s Web site 8 www.opradata.com. section 11A of the Act, and Rule 608 at (http://www.amex.com) at the The OPRA Plan provides for the collection and thereunder,9 that the proposed OPRA principal office of the Exchange, and at dissemination of last sale and quotation information
on options that are traded on the participant 5 exchanges. The six participants to the OPRA Plan In approving this proposed OPRA Plan 10 17 CFR 200.30–3(a)(29). are the American Stock Exchange LLC, the Boston Amendment, the Commission has considered its 1 15 U.S.C 78s(b)(1). Stock Exchange, Inc., the Chicago Board Options impact on efficiency, competition, and capital 2 17 CFR 240.19b–4. formation. 15 U.S.C. 78c(f). Exchange, Incorporated, the International Securities 3 In Amendment No. 1, the Exchange clarified 6 Exchange, Inc., the Pacific Exchange, Inc., and the 15 U.S.C. 78k–1. and supplemented certain aspects of its proposal. Philadelphia Stock Exchange, Inc. 7 17 CFR 242.608. Amendment No. 1 supplements the information 4 See Securities Exchange Act Release No. 52714 8 15 U.S.C. 78k–1. provided in various sections, as indicated, of the (November 1, 2005), 70 FR 67501. 9 17 CFR 242.608. Exchange’s Form 19b–4.
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00075 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74063
the Commission’s Public Reference including any changes thereto, may be an issuer and the specialist in the Room. found on the S&P Global Web site at issuer’s securities. Exceptions in the http://www.spglobal.com. rule permit specialists in Fund Shares to II. Self-Regulatory Organization’s enter into Creation Unit transactions to Statement of the Purpose of, and (a) Dissemination of Information About facilitate the maintenance of a fair and Statutory Basis for, the Proposed Rule the Fund Shares Change orderly market. Commentary .04 to Quotations for and last sale Amex Rule 190 specifically applies to In its filing with the Commission, the information regarding the Fund is Index Fund Shares listed on the Amex included statements concerning disseminated through the Consolidated Exchange, including the Shares. the purpose of, and basis for, the Tape Association (‘‘CTA’’). The net asset Commentary .04 states that nothing in proposed rule change and discussed any value (‘‘NAV’’) of the Fund is calculated Amex Rule 190(a) should be construed comments it received on the proposed each business day, normally at the close to restrict a specialist registered in a rule change. The text of these statements of regular trading of the NYSE, and is security issued by an investment may be examined at the places specified published in a number of places, company from purchasing and in Item III below. The Amex has including http://www.iShares.com and redeeming the listed security, or prepared summaries, set forth in through the facilities of CTA. According securities that can be subdivided or sections A, B, and C below, of the most to the Funds’ prospectus, Investors Bank converted into the listed security, from significant aspects of such statements. & Trust Company, the administrator, the issuer as appropriate to facilitate the A. Self-Regulatory Organization’s custodian and transfer agent for the maintenance of a fair and orderly Statement of the Purpose of, and the Fund, determines the NAV for the market. Statutory Basis for, the Proposed Rule Funds as of the close of regular trading Amex Rule 154, Commentary .04(c) Change on the NYSE (ordinarily 4 p.m., Eastern provides that stop and stop limit orders time) on each day that the NYSE is open to buy or sell a security (other than an 1. Purpose for trading.6 The Funds and the index option, which is covered by Rule 950(f) The Exchange proposes to list and calculation methodology for the Index is and Commentary thereto) the price of trade Fund Shares which are Index both described in more detail in the which is derivatively priced based upon Fund Shares under Amex Rules 1000A NYSE Order. another security or index of securities, et seq., pursuant to UTP. The In order to provide updated may with the prior approval of a Floor Commission previously approved the information relating to the Funds for use Official, be elected by a quotation, as set original listing and trading of the Fund by investors, professionals, and persons forth in Commentary .04(c)(i–v). The Shares on the New York Stock wishing to create or redeem Fund Exchange has designated Index Fund Exchange, Inc. (‘‘NYSE’’).4 The Fund is Shares in creation unit aggregation Shares, including the Funds Shares, as a separate series of the iShares Trust (‘‘Creation Units’’), the NYSE eligible for this treatment. (the ‘‘Trust’’). Standard & Poor’s disseminates, through the facilities of The rules of the Exchange require its Corporation, a division of The McGraw- CTA, the indicative optimized portfolio members to deliver a prospectus or Hill Companies, Inc. (‘‘S&P’’), calculates value (‘‘IOPV’’), calculated by product description to investors and maintains the S&P Global 100 Index Bloomberg, L.P., every fifteen (15) purchasing Shares of the Fund prior to (the ‘‘Index’’ or ‘‘Underlying Index’’) in seconds during the trading hours for the or concurrently with the confirmation of cooperation with the NYSE. The Shares of 9:30 a.m. to 4:15 p.m. ET. a transaction in such Shares. The Underlying Index is governed and As described in the Funds’ Exchange notes, however, that although maintained by S&P through an Index prospectus, dividends are accrued daily Exchange Rule 1000A provides for Committee drawn from professionals at from net investment income and will be delivery of written descriptions to S&P. Additional information about the declared and paid to beneficial owners customers of Funds that have received Funds is also available at http:// of record at least annually by the Funds. an exemption from section 24(d) of the www.ishares.com. The process for payment of dividends Investment Company Act of 1940 and The investment objective of the Fund and other distributions is described in the Trust has received such an is to provide investment results that more detail in the Funds’ Prospectus exemption, there is at this time no correspond generally to the performance and in the NYSE Order. written description available for these of the Underlying Index. The Funds. The Exchange will advise its Underlying Index seeks results that (b) Trading Rules members and member organizations that correspond generally to the price and The Exchange deems the Fund Shares delivery of a prospectus in lieu of a yield performance, before fees and to be equity securities, thus rendering written description would satisfy the expenses, of 100 multinational, blue trading in the Shares subject to the requirements of Rule 1000A. chip companies of major importance in Exchange’s existing rules governing the The Amex will cease trading in the the global equity markets as defined by trading of equity securities. The trading Fund Shares if (a) the primary market the Index. The Index includes 100 large- hours for the Funds on the Exchange stops trading the Fund Shares because cap companies drawn from the S&P will be 9:30 a.m. to 4:15 p.m. Eastern of a regulatory halt akin to a halt based 1200 Index, whose businesses are global Time (‘‘ET’’). Shares trade with a on Amex Rule 117 and/or a halt because in nature and derive a substantial minimum price variation of $0.01. dissemination of the indicative portion of their operating income, assets Amex Rule 190 generally precludes optimized portfolio value (‘‘IOPV’’) and/ and employees from multiple certain business relationships between countries.5 The Index description, or underlying index value has ceased or (b) the primary market delists the Fund assets in at least one nation other than its home 4 See Securities Exchange Act Release No. 43658 country and makes its major management decisions Shares. (December 1, 2000), 65 FR 77408 (December 11, in a global context. The degree to which sales are 2000) (SR–NYSE–00–53) (‘‘NYSE Order’’). The executed outside the home country is a factor in (c) Surveillance Fund commenced trading on the NYSE on determining a company’s global reach. The Exchange notes that the 6 December 8, 2000. The Web site for the Trust, http:// Underlying Index is broad-based and 5 A global company is defined as a corporation www.iShares.com, makes available a variety of that has production facilities and/or other fixed other relevant information about the Shares. has components with significant market
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00076 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74064 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
capitalizations and liquidity.7 persons engaged in regulating, clearing, Commission, and all written Nevertheless, the Exchange represents settling, processing information with communications relating to the that its surveillance procedures are respect to, and facilitating transaction in proposed rule change between the adequate to properly monitor the securities, and, in general to protect Commission and any person, other than trading of the Shares. Specifically, the investors and the public interest. In those that may be withheld from the Amex will rely on its existing addition, the Exchange believes that the public in accordance with the surveillance procedures governing proposal is consistent with Rule 12f–5 provisions of 5 U.S.C. 552, will be Index Fund Shares, which have been under the Act 11 because it deems the available for inspection and copying in deemed adequate under the Act. Fund Shares to be equity securities, thus the Commission’s Public Reference Room. Copies of such filing also will be (d) Information Circular rendering the Shares subject to the Exchange’s existing rules governing the available for inspection and copying at In connection with the trading of the trading of equity securities. the principal office of the Amex. All Shares, the Amex will inform its comments received will be posted members in an Information Circular of B. Self-Regulatory Organization’s without change; the Commission does the special characteristics and risks Statement on Burden on Competition not edit personal identifying associated with trading of the Shares, The Exchange believes that the information from submissions. You such as, a description of the Fund and proposed rule change, as amended, will should submit only information that associated Shares, how the Fund Shares impose no burden on competition that you wish to make publicly available. All are created and redeemed in Creation is not necessary or appropriate in submissions should refer to File Units (e.g., that Fund Shares are not furtherance of the purposes of the Act. Number SR–Amex–2005–092 and individually redeemable), foreign should be submitted on or before currency risks, foreign securities C. Self-Regulatory Organization’s January 4, 2006. characteristics, applicable foreign Statement on Comments on the country laws and restrictions, Proposed Rule Change Received From IV. Commission’s Findings and Order applicable Exchange rules, Members, Participants or Others Granting Accelerated Approval of Proposed Rule Change dissemination information, trading No written comments were solicited information, the applicability of or received with respect to the proposed The Commission finds that the suitability rules and a discussion of any rule change. proposed rule change, as amended, is relief provided by the Commission or consistent with the requirements of the the staff from any rules under the Act. III. Solicitation of Comments Act and the rules and regulations Additionally, in the Information Interested persons are invited to thereunder applicable to a national Circular, the Exchange will advise its submit written data, views, and securities exchange.12 In particular, the members to deliver a prospectus to arguments concerning the foregoing, Commission finds that the proposed investors purchasing Shares of the Fund including whether the proposed rule rule change is consistent with section prior to or concurrently with the change, as amended, is consistent with 6(b)(5) of the Act,13 which requires that confirmation of a transaction in such the Act. Comments may be submitted by an exchange have rules designed, among Shares. The Information Circular will any of the following methods: other things, to promote just and also discuss the information that will be equitable principles of trade, to remove publicly available about the Shares. Electronic Comments impediments to and perfect the The Information Circular will also • Use the Commission’s Internet mechanism of a free and open market remind members of their suitability comment form (http://www.sec.gov/ and a national market system, and in obligations, including Amex Rule 411, rules/sro.shtml); or general to protect investors and the which impose a duty of the due • Send an e-mail to rule- public interest. diligence on its members and member [email protected]. Please include File In addition, the Commission finds firms to learn the essential facts relating Number SR–Amex–2005–092 on the that the proposal is consistent with to every customer prior to trading the subject line. section 12(f) of the Act,14 which permits Shares.8 an exchange to trade, pursuant to UTP, Paper Comments a security that is listed and registered on 2. Statutory Basis • Send paper comments in triplicate another exchange.15 The Commission The proposed rule change, as to Jonathan G. Katz, Secretary, notes that it previously approved the amended, is consistent with section 6(b) Securities and Exchange Commission, listing and trading of the Shares on the of the Act 9 in general and furthers the 100 F Street, NE., Washington, DC NYSE.16 The Commission also finds that objectives of section 6(b)(5) 10 in 20549–9303. the proposal is consistent with Rule particular in that it is designed to All submissions should refer to File prevent fraudulent and manipulative Number SR–Amex–2005–092. This file 12 In approving this rule change, the Commission acts and practices, to promote just and number should be included on the notes that it has considered the proposed rule’s equitable principles of trade, to foster impact on efficiency, competition, and capital subject line if e-mail is used. To help the formation. See 15 U.S.C. 78c(f). cooperation and coordination with Commission process and review your 13 15 U.S.C. 78f(b)(5). comments more efficiently, please use 14 15 U.S.C. 78l(f). 7 Telephone conversation between Florence only one method. The Commission will 15 Section 12(a) of the Act, 15 U.S.C. 78l(a), Harmon, Senior Special Counsel, Division of post all comments on the Commission’s generally prohibits a broker-dealer from trading a Market Regulation, Commission, and Jeffrey Burns, Internet Web site (http://www.sec.gov/ security on a national securities exchange unless Associate General Counsel, Amex, on December 6, the security is registered on that exchange pursuant 2005. rules/sro.shtml). Copies of the to section 12 of the Act. Section 12(f) of the Act 8 Telephone conversation between Florence submission, all subsequent excludes from this restriction trading in any Harmon, Senior Special Counsel, Division of amendments, all written statements security to which an exchange ‘‘extends UTP.’’ Market Regulation, Commission, and Jeffrey Burns, with respect to the proposed rule When an exchange extends UTP to a security, it Associate General Counsel, Amex, on December 6, allows its members to trade the security as if it were 2005. change that are filed with the listed and registered on the exchange even though 9 15 U.S.C. 78s(b). it is not so listed and registered. 10 15 U.S.C. 78s(b)(5). 11 17 CFR 240.12f–5. 16 See NYSE Order, supra note 4.
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00077 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74065
12f–5 under the Act,17 which provides 5. Amex will cease trading in the LLC (‘‘Amex’’ or ‘‘Exchange’’) filed with that an exchange shall not extend UTP Shares if (a) the primary market stops the Securities and Exchange to a security unless the exchange has in trading the Shares because of a Commission (‘‘Commission’’) the effect a rule or rules providing for regulatory halt similar to a halt based on proposed rule change as described in transactions in the class or type of Amex Rule 117 and/or a halt because Items I, II, and III below, which Items security to which the exchange extends dissemination of the IOPV and/or have been prepared by the Exchange. UTP. Amex rules deem the Shares to be underlying index value has ceased or (b) Amex has designated this proposal as equity securities, thus trading in the the primary market delists the Shares. one establishing or changing a due, fee, Shares will be subject to the Exchange’s This approval order is conditioned on or other charge imposed by a self- existing rules governing the trading of Amex’s adherence to these regulatory organization pursuant to equity securities.18 representations. Section 19(b)(3)(A) of the Act 3 and Rule The Commission further believes that The Commission finds good cause for 19b–4(f)(2) thereunder,4 which renders the proposal is consistent with Section approving this proposed rule change, as the proposal effective upon filing with 11A(a)(1)(C)(iii) of the Act,19 which sets amended, before the thirtieth day after the Commission. The Commission is forth Congress’s finding that it is in the the publication of notice thereof in the publishing this notice to solicit public interest and appropriate for the Federal Register. As noted previously, comments on the proposed rule change protection of investors and the the Commission previously found that from interested persons. the listing and trading of these Shares maintenance of fair and orderly markets I. Self-Regulatory Organization’s on the NYSE is consistent with the to assure the availability to brokers, Statement of the Terms of Substance of Act.20 The Commission presently is not dealers, and investors of information the Proposed Rule Change with respect to quotations for and aware of any issue that would cause it transactions in securities. Quotations for to revisit that earlier finding or preclude Amex proposes to modify its Options and last sale information regarding the the trading of these funds on the Fee Schedule by adopting a per-contract Shares are disseminated through the Exchange pursuant to UTP. Therefore, license fee for the orders of specialists, Consolidated Quotation System. accelerating approval of this proposed registered options traders, firms, non- Furthermore, the NYSE disseminates rule change should benefit investors by member market makers, and broker- through the facilities of CTA an updated creating, without undue delay, dealers (collectively, ‘‘Market IOPV for the Shares at least every 15 additional competition in the market for Participants’’) in connection with seconds from 9:30 a.m. to 4:15 p.m. E.T. these Shares. options transactions in two (2) new PowerShares exchange-traded funds The Exchange will cease trading in V. Conclusion (‘‘ETFs’’). the Shares if (a) the primary market The text of the proposed rule change stops trading the Shares because of a It Is therefore ordered, pursuant to section 19(b)(2) of the Act, that the is available on the Exchange’s Internet regulatory halt similar to a halt based on Web site (http://www.amex.com), at the Amex Rule 117 and/or a halt because proposed rule change (SR–Amex–2005– 092), is hereby approved on an Exchange’s principal office, and at the dissemination of the IOPV and/or Commission’s Public Reference Room. underlying index value has ceased or (b) accelerated basis. the primary market delists the Shares. For the Commission, by the Division of II. Self-Regulatory Organization’s In support of this proposed rule Market Regulation, pursuant to delegated Statement of the Purpose of, and change, the Exchange has made the authority.21 Statutory Basis for, the Proposed Rule following representations: Jonathan G. Katz, Change 1. Amex has appropriate rules to Secretary. In its filing with the Commission, the facilitate transactions in this type of [FR Doc. E5–7296 Filed 12–13–05; 8:45 am] Exchange included statements security. BILLING CODE 8010–01–P concerning the purpose of, and basis for, 2. Amex surveillance procedures are the proposed rule change and discussed adequate to properly monitor the any comments it received on the trading of the Shares on the Exchange. SECURITIES AND EXCHANGE proposed rule change. The text of these 3. Amex will distribute an COMMISSION statements may be examined at the Information Circular to its members [Release No. 34–52925; File No. SR–Amex– places specified in Item IV below. The prior to the commencement of trading of 2005–126] Exchange has prepared summaries, set the Shares on the Exchange that forth in sections A, B, and C below, of explains the terms, characteristics, and Self-Regulatory Organizations; the most significant aspects of such risks of trading such shares. American Stock Exchange LLC; Notice statements. 4. Amex will require a member with of Filing and Immediate Effectiveness a customer that purchases the Shares on of Proposed Rule Change to Adopt an A. Self-Regulatory Organization’s the Exchange to provide that customer Options Licensing Fee for Options on Statement of the Purpose of, and with a product prospectus and will note Certain PowerShares Exchange- Statutory Basis for, the Proposed Rule this prospectus delivery requirement in Traded Funds Change the Information Circular. 1. Purpose December 8, 2005. Pursuant to section 19(b)(1) of the The Exchange has entered into 17 17 CFR 240.12f–5. numerous agreements with various 18 The Commission notes that Commentary .04 to Securities Exchange Act of 1934 existing Amex Rule 190 will permit a specialist in (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 index providers for the purpose of the Shares to create or redeem creation units of notice is hereby given that on December trading options on certain ETFs. As a these funds to facilitate the maintenance of a fair 5, 2005, the American Stock Exchange result, the Exchange is required to pay and orderly market. The Commission previously index license fees to third parties as a has found Commentary .04 to Amex Rule 190 to be consistent with the Act. See Securities Exchange 20 See NYSE Order, supra note 4. condition to the listing and trading of Act Release No. 36947 (March 8, 1996), 61 FR 21 17 CFR 200.30–3(a)(12). 10606, 10612 (March 14, 1996) (SR–Amex–95–43). 1 15 U.S.C. 78s(b)(1). 3 15 U.S.C. 78s(b)(3)(A). 19 15 U.S.C. 78k–1(a)(1)(C)(iii). 2 17 CFR 240.19b–4. 4 17 CFR 240.19b–4(f)(2).
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00078 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74066 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
these ETF options. In many cases, the 6(b)(4) of the Act.7 In connection with IV. Solicitation of Comments Exchange is required to pay a significant the adoption of an options licensing fee licensing fee to the index provider that for the PowerShares ETF options, the Interested persons are invited to may not be reimbursed. In an effort to Exchange notes that charging the submit written data, views, and recoup the costs associated with certain options licensing fee, where applicable, arguments concerning the foregoing, index licenses, the Exchange has to all Market Participant orders, except including whether the proposed rule recently established per-contract for customer orders, is reasonable given change is consistent with the Act. licensing fees for orders of Market the competitive pressures in the Comments may be submitted by any of Participants that are collected on each industry. Accordingly, the Exchange the following methods: option transaction in certain designated seeks, through this proposal, to better Electronic Comments products in which such Market align its transaction charges with the Participant is a party.5 cost of providing trading products. • Use the Commission’s Internet The purpose of the proposal is to 2. Statutory Basis comment form (http://www.sec.gov/ charge an options licensing fee in rules/sro.shtml); or connection with options on the The Exchange believes that the • Send an e-mail to rule- PowerShares Value Line Timeliness proposed rule change is consistent with Select Portfolio (symbol: PIV) and the Section 6(b) of the Act 8 in general, and [email protected]. Please include File PowerShares Water Resources Portfolio furthers the objectives of section 6(b)(4) No. SR–Amex–2005–126 on the subject (symbol: PHO) (collectively, of the Act 9 in particular, in that it line. ‘‘PowerShares ETF options’’). provides for the equitable allocation of Paper Comments Specifically, Amex seeks to charge an reasonable dues, fees, and other charges options licensing fee of $0.10 per among its members and other persons • Send paper comments in triplicate contract side for each PowerShares ETF using its facilities. to Jonathan G. Katz, Secretary, option for the orders of Market Securities and Exchange Commission, Participants executed on the Exchange. B. Self-Regulatory Organization’s Statement on Burden on Competition Station Place, 100 F Street, NE., In all cases, the fee would be charged Washington, DC 20549–9303. only to the Exchange member through The Exchange does not believe that All submissions should refer to File whom such order is placed. the proposed rule change will impose Number SR–Amex–2005–126. This file Amex represents that the proposed any burden on competition that is not options licensing fee would allow the necessary or appropriate in furtherance number should be included on the Exchange to recoup its costs in of the purposes of the Act. subject line if e-mail is used. To help the connection with the index license fees Commission process and review your for the trading of the PowerShares ETF C. Self-Regulatory Organization’s comments more efficiently, please use options. The fee would be collected on Statement on Comments on the only one method. The Commission will every Market Participant order executed Proposed Rule Change Received from post all comments on the Commission’s on the Exchange. The Exchange believes Members, Participants or Others Internet Web site (http://www.sec.gov/ that requiring the payment of a per- No written comments were solicited rules/sro.shtml). Copies of the contract licensing fee in connection or received with respect to the proposed submission, all subsequent with the PowerShares ETF options by rule change. amendments, all written statements those Market Participants that benefit with respect to the proposed rule from the index license agreements is III. Date of Effectiveness of the change that are filed with the justified and consistent with the rules of Proposed Rule Change and Timing for Commission, and all written Commission Action the Exchange. communications relating to the The Exchange notes that, in recent The foregoing proposed rule change proposed rule change between the years, it has revised a number of its fees has become effective pursuant to section Commission and any person, other than to better align Amex fees with the actual 19(b)(3)(A)(ii) of the Act 10 and Rule those that may be withheld from the cost of delivering services and reduce 19b–4(f)(2) 11 thereunder because it public in accordance with the 6 Amex’s subsidization of such services. establishes or changes a due, fee, or provisions of 5 U.S.C. 552, will be The Exchange represents that the other charge imposed by the Exchange. available for inspection and copying in implementation of this proposal is At any time within 60 days of the filing the Commission’s Public Reference consistent with the reduction and/or of the proposed rule change, the Room. Copies of the filing also will be elimination of these subsidies. Amex Commission may summarily abrogate believes that this fee will help to available for inspection and copying at such rule change if it appears to the the principal office of Amex. All allocate to those Market Participants Commission that such action is engaging in transactions in PowerShares comments received will be posted necessary or appropriate in the public without change; the Commission does ETF options a fair share of the related interest, for the protection of investors, costs of offering such options for not edit personal identifying or otherwise in furtherance of the information from submissions. You trading. purposes of the Act. The Exchange asserts that the should submit only information that you wish to make available publicly. All proposal provides for an equitable 7 Section 6(b)(4) of the Act states that the rules of allocation of fees as required by section a national securities exchange must ‘‘provide for the submissions should refer to File equitable allocation of reasonable dues, fees, and Number SR–Amex–2005–126 and 5 See, e.g., Securities Exchange Act Release No. other charges among its members and issuers and should be submitted on or before 52493 (September 22, 2005), 70 FR 56941 other persons using its facilities.’’ 15 U.S.C. January 4, 2006. (September 29, 2005). 78f(b)(4). 8 6 See, e.g., Securities Exchange Act Release No. 15 U.S.C. 78f(b). 45360 (January 29, 2002), 67 FR 5626 (February 6, 9 15 U.S.C. 78f(b)(4). 2002); Securities Exchange Act Release No. 44286 10 15 U.S.C. 78s(b)(3)(A)(ii). (May 9, 2001), 66 FR 27187 (May 16, 2001). 11 17 CFR 19b–4(f)(2).
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00079 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74067
For the Commission, by the Division of not proposing any textual changes to the Exchange, Inc., and the Philadelphia Market Regulation, pursuant to delegated Constitution or Rules of CBOE. Stock Exchange, Inc. authority.12 The revised study outline is attached A committee of industry Jonathan G. Katz, as Exhibit 3a. However, CBOE has representatives, together with the staff Secretary. omitted the Series 9/10 selection of CBOE and the other SROs, recently [FR Doc. E5–7307 Filed 12–13–05; 8:45 am] specifications from this filing and has undertook a periodic review of the BILLING CODE 8010–01–P submitted the specifications under Series 9/10 examination program. As a separate cover to the Commission with result of this review, CBOE is proposing a request for confidential treatment to update the content of the examination SECURITIES AND EXCHANGE pursuant to the Commission’s to cover Regulation S–P,6 MSRB Rules COMMISSION confidential treatment procedures under G–37/G–38, SRO research analyst and the Freedom of Information Act.5 The anti-money laundering rules, municipal [Release No. 34–52914; File No. SR–CBOE– text of the proposed rule change is fund securities (e.g., 529 college savings 2005–98] available on the Exchange’s Web site plans), and exchange traded funds. (http://www.cboe.com), at the CBOE is further proposing revisions to Self-Regulatory Organizations; Exchange’s Office of the Secretary, and the study outline to reflect the SEC short Chicago Board Options Exchange, at the Commission. sale requirements. In addition, as part of Incorporated; Notice of Filing and an ongoing effort to align the Immediate Effectiveness of Proposed II. Self-Regulatory Organization’s examination more closely to the Rule Change Relating to Revisions to Statement of the Purpose of, and supervisory duties of a Series 9/10 the Series 9/10 Examination Program Statutory Basis for, the Proposed Rule limited principal, CBOE is proposing to Change modify the content of the examination December 7, 2005. In its filing with the Commission, to track the functional workflow of a Pursuant to Section 19(b)(1) of the CBOE included statements concerning Series 9/10 limited principal. Also, Securities Exchange Act of 1934 the purpose of and basis for the CBOE is proposing to include questions 1 2 (‘‘Act’’), and Rule 19b-4 thereunder, proposed rule change and discussed any related to parallel rules of NASD, the notice is hereby given that on November comments it received on the proposed options exchanges, the MSRB and the 16, 2005, the Pacific Exchange, Inc. rule change. The text of these statements NYSE in the same section of the exam. (‘‘CBOE’’ or ‘‘Exchange’’) filed with the may be examined at the places specified As a result of the revisions, CBOE is Securities and Exchange Commission in Item IV below. CBOE has prepared proposing to modify the main section (‘‘SEC’’ or ‘‘Commission’’) the proposed summaries, set forth in Sections A, B, headings and the number of questions rule change as described in Items I, II, and C below, of the most significant on each section of the Series 9/10 study and III below, which Items have been aspects of such statements. outline as follows: Section 1—Hiring, prepared by the CBOE. CBOE has Qualifications, and Continuing designated the proposed rule change as A. Self-Regulatory Organization’s Education, 9 questions; Section 2— constituting a stated policy, practice, or Statement of the Purpose of, and Supervision of Accounts and Sales interpretation with respect to the Statutory Basis for, the Proposed Rule Activities, 94 questions; Section 3— meaning, administration, or Change Conduct of Associated Persons, 14 enforcement of an existing rule of the 1. Purpose questions; Section 4—Recordkeeping self-regulatory organization pursuant to Requirements, 8 questions; Section 5— Section 19(b)(3)(A)(i) of the Act 3 and CBOE Rule 9.2 states that no member Municipal Securities Regulation, 20 Rule 19b–4(f)(1) thereunder,4 which organization shall be approved to questions; Section 6—Options renders the proposal effective upon transact options business with the Regulation, 55 questions. Sections 1 filing with the Commission. The public until those persons associated through 5 constitute the Series 10 Commission is publishing this notice to with it who are designated as Options portion of the examination. Section 6 solicit comments on the proposed rule Principals have been approved by and constitutes the Series 9 portion of the change from interested persons. registered with the Exchange. CBOE examination. Series 10 covers general Rule 9.2 further requires successful securities and municipal securities, and I. Self-Regulatory Organization’s completion of an examination Series 9 covers options. The revised Statement of the Terms of Substance of prescribed by the Exchange in order to examination continues to cover the the Proposed Rule Change qualify for registration as an Options areas of knowledge required for the CBOE is filing revisions to the study Principal. The Series 9/10 examination, supervision of sales activities. outline and selection specifications for an industry-wide examination, has been CBOE is proposing these changes to the Limited Principal—General designed for this purpose. The Series 9/ the entire content of the Series 9/10 Securities Sales Supervisor (Series 9/10) 10 examination tests a candidate’s examination, including the selection examination program. The proposed knowledge of securities industry rules specifications and question bank. The revisions update the material to reflect and regulations and certain statutory number of questions on the Series 9/10 changes to the laws, rules, and provisions pertinent to the supervision examination will remain at 200, and regulations covered by the examination, of sales activities. candidates will continue to have 4 as well as modify the content of the The Series 9/10 examination program hours to complete the Series 10 portion examination program to track more is shared by CBOE and the following and 11⁄2 hours to complete the Series 9 closely the functional workflow of a SROs: The American Stock Exchange portion. Also, each question will Series 9/10 limited principal. CBOE is LLC, the National Association of continue to count one point, and each Securities Dealers, Inc. (‘‘NASD’’), the candidate must correctly answer 70 12 17 CFR 200.30–3(a)(12). Municipal Securities Rule Making percent of the questions on each series, 1 15 U.S.C. 78s(b)(1). Board (‘‘MSRB’’), the New York Stock 9 and 10, to receive a passing grade. 2 17 CFR 240.19b–4. Exchange, Inc. (‘‘NYSE’’), the Pacific 3 15 U.S.C. 78s(b)(3)(A)(i). 6 17 CFR 248.1–18; 17 CFR 248.30; and 17 CFR 4 17 CFR 240.19b–4(f)(1). 5 17 C.F.R. 200.83. 248, Appendix A.
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00080 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74068 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
CBOE understands that the other IV. Solicitation of Comments SECURITIES AND EXCHANGE SROs also will file with the Commission Interested persons are invited to COMMISSION similar revisions to the Series 9/10 submit written data, views, and [Release No. 34–52913; File No. SR–CBOE– examination program. arguments concerning the foregoing, 2005–97] 2. Statutory Basis including whether the proposed rule change is consistent with the Act. Self-Regulatory Organizations; The Exchange believes that the Comments may be submitted by any of Chicago Board Options Exchange, proposed rule change is consistent with the following methods: Incorporated; Notice of Filing and Section 6(b) of the Act,7 in general, and Immediate Effectiveness of Proposed furthers the objectives of Section Electronic Comments Rule Change Relating to Revisions to 6(b)(1) 8 of the Act in particular, in that • Use the Commission’s Internet the Series 4 Examination Program it is designed to enforce compliance by comment form (http://www.sec.gov/ Exchange members and persons rules/sro.shtml); or December 7, 2005. associated with its members with the • Send an e-mail to rule- Pursuant to Section 19(b)(1) of the rules of the Exchange. The Exchange [email protected]. Please include File Securities Exchange Act of 1934 also believes the proposed rule change Number SR–CBOE–2005–98 on the (‘‘Act’’),1 and Rule 19b–4 thereunder,2 furthers the objectives of Section subject line. notice is hereby given that on November 6(c)(3) 9 of the Act, which authorizes 15, 2005, the Pacific Exchange, Inc. CBOE to prescribe standards of training, Paper Comments (‘‘CBOE’’ or ‘‘Exchange’’) filed with the experience and competence for persons • Send paper comments in triplicate Securities and Exchange Commission associated with CBOE members. to Jonathan G. Katz, Secretary, (‘‘SEC’’ or ‘‘Commission’’) the proposed Securities and Exchange Commission, rule change as described in Items I, II, B. Self-Regulatory Organization’s 100 F Street, NE., Washington, DC and III below, which Items have been Statement on Burden on Competition 20549–9303. prepared by CBOE. CBOE has CBOE does not believe that the All submissions should refer to File designated the proposed rule change as proposed rule change will impose any Number SR–CBOE–2005–98. This file constituting a stated policy, practice, or burden on competition that is not number should be included on the interpretation with respect to the necessary or appropriate in furtherance subject line if e-mail is used. To help the meaning, administration, or of purposes of the Act. Commission process and review your enforcement of an existing rule of the comments more efficiently, please use self-regulatory organization pursuant to C. Self-Regulatory Organization’s only one method. The Commission will Section 19(b)(3)(A)(i) of the Act 3 and Statement on Comments on the post all comments on the Commission’s Rule 19b–4(f)(1) thereunder,4 which Proposed Rule Change Received From Internet Web site (http://www.sec.gov/ renders the proposal effective upon Members, Participants or Others rules/sro.shtml). Copies of the filing with the Commission. The No written comments were solicited submission, all subsequent Commission is publishing this notice to or received with respect to the proposed amendments, all written statements solicit comments on the proposed rule rule change. with respect to the proposed rule change from interested persons. change that are filed with the III. Date of Effectiveness of the I. Self-Regulatory Organization’s Commission, and all written Proposed Rule Change and Timing for Statement of the Terms of Substance of communications relating to the Commission Action the Proposed Rule Change proposed rule change between the The proposed rule change has become Commission and any person, other than CBOE is filing revisions to the study effective pursuant to Section those that may be withheld from the outline and selection specifications for 19(b)(3)(A)(i) of the Act 10 and Rule 19b– public in accordance with the the Limited Principal—Registered 4(f)(1) thereunder,11 in that the provisions of 5 U.S.C. 552, will be Options (Series 4) examination program. proposed rule change constitutes a available for inspection and copying in The proposed revisions update the stated policy, practice, or interpretation the Commission’s Public Reference material to reflect changes to the laws, with respect to the meaning, Room. Copies of such filing also will be rules, and regulations covered by the administration, or enforcement of an available for inspection and copying at examination, as well as modify the existing rule of the self-regulatory the principal office of the CBOE. All content of the examination program to organization. CBOE will announce the comments received will be posted track more closely the functional implementation date in a Regulatory without change; the Commission does workflow of a Series 4 limited principal. Circular to be published no later than 60 not edit personal identifying CBOE is not proposing any textual days after SEC Notice of this filing. information from submissions. You changes to the Constitution or Rules of At any time within 60 days of the should submit only information that CBOE. filing of the proposed rule change, the you wish to make available publicly. All The revised study outline is attached Commission may summarily abrogate submissions should refer to File as Exhibit 3a. However, CBOE has such rule change if it appears to the Number SR–CBOE–2005–98 submitted omitted the Series 4 selection Commission that such action is on or before January 4, 2006. specifications from this filing and has necessary or appropriate in the public submitted the specifications under For the Commission, by the Division of interest, for the protection of investors, Market Regulation, pursuant to delegated separate cover to the Commission with or otherwise in furtherance of the authority.12 a request for confidential treatment purposes of the Act. Jonathan G. Katz, pursuant to the Commission’s confidential treatment procedures under Secretary. 7 15 U.S.C. 78f(b). 8 15 U.S.C. 78f(b)(1). [FR Doc. E5–7337 Filed 12–13–05; 8:45 am] 1 15 U.S.C. 78s(b)(1). 9 15 U.S.C. 78f(c)(3). BILLING CODE 8010–01–P 2 17 CFR 240.19b–4. 10 15 U.S.C. 78s(b)(3)(A)(i). 3 15 U.S.C. 78s(b)(3)(A)(i). 11 17 CFR 240.19b–4(f)(1). 12 17 CFR 200.30–3(a)(12). 4 17 CFR 240.19b–4(f)(1).
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00081 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74069
the Freedom of Information Act.5 The ongoing effort to align the examination C. Self-Regulatory Organization’s text of the proposed rule change is more closely to the supervisory duties of Statement on Comments on the available on the Exchange’s Web site a Series 4 limited principal, CBOE is Proposed Rule Change Received From (http://www.cboe.com), at the proposing to modify the content of the Members, Participants or Others Exchange’s Office of the Secretary, and examination to track the functional No written comments were solicited at the Commission. workflow of a Series 4 limited principal. or received with respect to the proposed More specifically, CBOE is proposing to II. Self-Regulatory Organization’s rule change. revise the main section headings and Statement of the Purpose of, and the number of questions on each section III. Date of Effectiveness of the Statutory Basis for, the Proposed Rule of the Series 4 study outline as follows: Proposed Rule Change and Timing for Change Options Investment Strategies, Commission Action In its filing with the Commission, decreased from 35 to 34 questions; The proposed rule change has become CBOE included statements concerning Supervision of Sales Activities and effective pursuant to Section the purpose of and basis for the Trading Practices, increased from 71 to 19(b)(3)(A)(i) of the Act 9 and Rule 19b– proposed rule change and discussed any 75 questions; and Supervision of 4(f)(1) thereunder,10 in that the comments it received on the proposed Employees, Business Conduct, and proposed rule change constitutes a rule change. The text of these statements Recordkeeping and Reporting stated policy, practice, or interpretation may be examined at the places specified Requirements, decreased from 19 to 16 with respect to the meaning, in Item IV below. CBOE has prepared questions. CBOE is further proposing administration, or enforcement of an summaries, set forth in Sections A, B, revisions to the study outline to reflect existing rule of the self-regulatory and C below, of the most significant the SEC short sale requirements. The organization. CBOE will announce the aspects of such statements. revised examination continues to cover implementation date in a Regulatory A. Self-Regulatory Organization’s the areas of knowledge required to Circular to be published no later than 60 Statement of the Purpose of, and supervise options activities. days after SEC Notice of this filing. CBOE is proposing these changes to Statutory Basis for, the Proposed Rule At any time within 60 days of the the entire content of the Series 4 Change filing of the proposed rule change, the examination, including the selection Commission may summarily abrogate 1. Purpose specifications and question bank. The such rule change if it appears to the CBOE Rule 9.2 states that no member number of questions on the Series 4 Commission that such action is organization shall be approved to examination will remain at 125, and necessary or appropriate in the public transact options business with the candidates will continue to have three interest, for the protection of investors, public until those persons associated hours to complete the exam. Also, each or otherwise in furtherance of the with it who are designated as Options question will continue to count one purposes of the Act. point, and each candidate must Principals have been approved by and IV. Solicitation of Comments registered with the Exchange. CBOE correctly answer 70 percent of the Rule 9.2 further requires successful questions to receive a passing grade. Interested persons are invited to CBOE understands that the other completion of an examination submit written data, views, and SROs also will file with the Commission prescribed by the Exchange in order to arguments concerning the foregoing, similar revisions to the Series 4 qualify for registration as an Options including whether the proposed rule examination program. Principal. The Series 4 examination, an change is consistent with the Act. industry-wide examination, has been 2. Statutory Basis Comments may be submitted by any of the following methods: designed for this purpose, and tests a The Exchange believes that the candidate’s knowledge of options proposed rule change is consistent with Electronic Comments trading generally, the industry rules Section 6(b) of the Act,6 in general, and • Use the Commission’s Internet applicable to trading of option contracts, furthers the objectives of Section comment form (http://www.sec.gov/ and the rules of registered clearing 6(b)(1) 7 of the Act in particular, in that rules/sro.shtml); or agencies for options. The Series 4 it is designed to enforce compliance by • Send an e-mail to rule- examination covers, among other things, Exchange members and persons [email protected]. Please include File equity options, foreign currency associated with its members with the Number SR–CBOE–2005–97 on the options, index options, and options on rules of the Exchange. The Exchange subject line. government and mortgage-backed also believes the proposed rule change Paper Comments securities. furthers the objectives of Section The Series 4 examination program is 6(c)(3) 8 of the Act, which authorizes • Send paper comments in triplicate shared by CBOE and the following CBOE to prescribe standards of training, to Jonathan G. Katz, Secretary, SROs: the American Stock Exchange experience and competence for persons Securities and Exchange Commission, LLC, the National Association of associated with CBOE members. 100 F Street, NE., Washington, DC Securities Dealers, Inc., the New York 20549–9303. Stock Exchange, Inc., the Pacific B. Self-Regulatory Organization’s All submissions should refer to File Exchange, Inc., and the Philadelphia Statement on Burden on Competition Number SR–CBOE–2005–97. This file Stock Exchange, Inc. CBOE does not believe that the number should be included on the A committee of industry proposed rule change will impose any subject line if e-mail is used. To help the representatives, together with the staff burden on competition that is not Commission process and review your of CBOE and the other SROs, recently necessary or appropriate in furtherance comments more efficiently, please use undertook a periodic review of the of purposes of the Act. only one method. The Commission will Series 4 examination program. As a post all comments on the Commission’s result of this review and as part of an 6 15 U.S.C. 78f(b). 7 15 U.S.C. 78(b)(1). 9 15 U.S.C. 78f(b)(3)(A)(i). 5 17 C.F.R. 200.83. 8 15 U.S.C. 78(c)(3). 10 17 CFR 240.19b–(f)(l).
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00082 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74070 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
Internet Web site (http://www.sec.gov/ Exchange Act of 1934 (‘‘Act’’).1 Notices purchase DTCC common shares rules/sro.shtml). Copies of the of the proposals were published in the (‘‘Voluntary Purchaser Participants’’).6 submission, all subsequent Federal Register on October 31, 2005.2 Holders of DTCC common shares are amendments, all written statements The Commission received one comment entitled to elect all of the directors of with respect to the proposed rule letter in response to the proposed rule DTCC other than two directors that change that are filed with the change filed by DTC 3 and one comment DTCC preferred shareholders are Commission, and all written letter in response to the proposed rule entitled to elect.7 DTCC common communications relating to the change filed by FICC.4 For the reasons shareholders are entitled to vote on all proposed rule change between the discussed below, the Commission is other matters submitted to a vote of Commission and any person, other than approving the proposed rule change. DTCC shareholders, and each DTCC common shareholder is entitled to one those that may be withheld from the II. Description public in accordance with the vote per DTCC common share. DTCC provisions of 5 U.S.C. 552, will be The Depository Trust & Clearing common shareholders are entitled to available for inspection and copying in Corporation (‘‘DTCC’’) is a holding cumulative voting in the election of the Commission’s Public Reference company parent of DTC, FICC, and directors. In addition, DTCC common Room. Copies of such filing also will be NSCC. Pursuant to DTCC’s current shareholders are entitled to receive out available for inspection and copying at Shareholders Agreement (‘‘Shareholders of the assets of DTCC, when and if the principal office of the CBOE. All Agreement’’), substantially all members declared by the Board of Directors of comments received will be posted and participants of DTC, FICC, and DTCC, dividends payable in cash or without change; the Commission does NSCC (collectively ‘‘Participants’’) are stock or otherwise. However, since DTC, not edit personal identifying entitled but are not required to purchase FICC, and NSCC provide their services information from submissions. You DTCC common shares. Participants are to their Participants on a cost-basis with should submit only information that allocated an entitlement to purchase revenues in excess of expenses and you wish to make available publicly. All DTCC common shares on the basis of necessary reserves rebated or provide submissions should refer to File their relative use of the services of DTC, their services on a discounted basis, as Number SR–CBOE–2005–97 and should FICC, and NSCC. As of the last periodic a matter of policy and practice DTCC be submitted on or before January 4, allocation of share entitlements in 2003, does not pay any dividends on DTCC 2006. approximately 1,100 Participants had a common shares. The amendments to the right to purchase DTCC common shares; Shareholders Agreement will have no For the Commission, by the Division of however, only 190 Participants effect on these rights of DTCC common Market Regulation, pursuant to delegated currently own any DTCC common authority.11 shareholders and preferred shares and of these only 86 own DTCC shareholders. Jonathan G. Katz, common shares up to the full amounts Pursuant to certain covenants in the Secretary. of their share entitlements. Shareholders Agreement, a person [FR Doc. E5–7338 Filed 12–13–05; 8:45 am] DTCC has obtained the consent of its elected as a director of DTCC also serves BILLING CODE 8010–01–P common shareholders to amend the as a director of DTC, FICC, and NSCC. Shareholders Agreement pursuant to The amendments to the Shareholders which Participants of DTC, FICC, and Agreement will have no effect on these SECURITIES AND EXCHANGE NSCC that make full use of the services covenants. COMMISSION of one or more of these clearing agency The system for allocating entitlements subsidiaries of DTCC would be required [Release No. 34–52922; File Nos. SR–DTC– to purchase shares in the Shareholders to purchase DTCC common shares Agreement was first implemented by 2005–16, SR–FICC–2005–19, and SR– 5 NSCC–2005–14] (‘‘Mandatory Purchaser Participants’’) DTC with respect to DTC common in accordance with the terms of the shares in 1973. At that time, the bank Self-Regulatory Organizations; The amended Shareholders Agreement users of DTC’s services purchased their Depository Trust Company, Fixed while preserving the right but not the DTC common shares, but for logistical Income Clearing Corporation, and obligation of other Participants that and other reasons the NYSE, the NASD, National Securities Clearing make only limited use of the services of and the American Stock Exchange Corporation; Order Approving one or more of the clearing agencies to (‘‘AMEX’’) (collectively ‘‘Self-Regulatory Proposed Rule Changes to Require 1 Members to Purchase Shares of the 15 U.S.C. 78s(b)(1). 6 The DTCC Shareholders Agreement marked to 2 Common Stock of The Depository Securities Exchange Act Release Nos. 52665 show the proposed amendments is attached to the (October 25, 2005), 70 FR 62357 [SR–DTC–2005– proposed rule change as Exhibit 3 and is available Trust & Clearing Corporation 16]; 52663 (October 25, 2005), 70 FR 62359 [SR– on DTC’s Web site at http://www.dtc.org/impNtc/ FICC–2005–19]; and 52664 (October 25, 2005), 70 mor/index.html, FICC’s Web site at http:// December 7, 2005. FR 62364 [SR–NSCC–2005–14]. www.ficc.com/gov/gov.docs.jsp?NS-query=, and 3 Letter from Stewart A. Levin, Ph.D., Geophysics I. Introduction NSCC’s Web site at www.nscc.com/legal. Research Fellow, Landmark Graphics Corp. (Oct. 7 In connection with the 1999 integration of DTC On October 4, 2005, The Depository 29, 2005). and NSCC and formation of DTCC, the New York 4 Trust Company (‘‘DTC’’), the Fixed Letter from Kelly S. McEntire, Retired State of Stock Exchange (‘‘NYSE’’) and the National Utah Administrator, (Dec. 6, 2005). Association of Securities Dealers (‘‘NASD’’), the Income Clearing Corporation (‘‘FICC’’), 5 Pursuant to the amendments to the Shareholders then coowners of NSCC, each received 10,000 and the National Securities Clearing Agreement, a Mandatory Purchaser Participant that DTCC preferred shares in exchange for their NSCC Corporation filed with the Securities is a Participant in more than one clearing agency common stock. DTCC preferred shareholders have and Exchange Commission will be required to purchase DTCC common shares no right to vote on any matters submitted to a vote based upon its relative use of the services of all of DTCC shareholders except that each of the two (‘‘Commission’’) proposed rule changes clearing agencies of which it is a Participant. For DTCC preferred shareholders are entitled to elect SR–DTC–2005–16, SR–FICC–2005–19, DTC, a Mandatory Purchaser Participant includes one director. DTCC preferred shareholders have no and SR–NSCC–2005–14 pursuant to all participants of DTC other than Limited right to receive any dividends. In the event of any section 19(b)(1) of the Securities Participants. For FICC, this term includes Netting liquidation, dissolution or winding up of the affairs Members of FICC’s Government Securities Division. of DTCC, DTCC preferred shareholders are entitled For NSCC, this term includes all Members other to a liquidation preference of $300 per share of 11 17 CFR 200.30–3(a)(12). than Mutual Fund/Insurance Services Members. DTCC preferred stock.
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00083 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74071
Organizations’’) purchased the DTC or discounts revenues in excess of to the other commenter’s fear that some common shares allocated to the broker- expenses and necessary reserves. ‘‘investors’’ would not be able to dealer users of DTC services that were Finally, because they introduce the purchase DTCC common shares, neither their members. It was anticipated that greatest risks to the clearing agencies DTC, FICC, nor NSCC have been over time as broker-dealers exercised and obtain the greatest benefits from informed by any of their Participants their right to purchase DTC common clearing agency services, it is that they would have difficulty or be shares, the number of DTC common appropriate to require those Participants unable to pay for the allocation of shares held by broker-dealers directly making full use of the services of DTC, shares. would increase, and the number of DTC FICC, and NSCC to contribute to DTCC’s V. Conclusion common shares held by the Self- capital through the purchase of its Regulatory Organizations would common shares. On the basis of the foregoing, the Commission finds that the proposed correspondingly decrease, potentially to III. Comment Letters zero, since the share entitlements of the rule changes are consistent with the Self-Regulatory Organizations were a The Commission received two requirements of the Act and in 9 function of the unexercised share comment letters. Both commenters particular section 17A of the Act and entitlements of their members. opposed the proposed rule change. One the rules and regulations thereunder. Notwithstanding the passage of time commenter stated that if DTC needed to It is therefore ordered, pursuant to and the opportunity afforded broker- raise capital it should offer the shares to section 19(b)(2) of the Act,11 that the dealer Participants to purchase DTCC the general public or participants in proposed rule changes (File Nos. SR– common shares, the Self-Regulatory DTC’s Direct Registration System. The DTC–2005–16, SR–FICC–2005–19, and Organizations continue to hold a commenter also suggested that share SR–NSCC–2005–14) be and hereby is significant block of DTCC common ownership by DTC participants provides approved. shares. NYSE holds approximately 29% a financial disincentive for such participants to share information with For the Commission by the Division of of the outstanding DTCC common Market Regulation, pursuant to delegated shares, and the NASD and the AMEX the Commission and other regulators authority.12 regarding criminal or unethical each holds approximately 3.7%. It is Jonathan G. Katz, also the case that a significant number practices. The other commentator suggested that requiring participants to Secretary. of Participants other than broker-dealers [FR Doc. E5–7305 Filed 12–13–05; 8:45 am] have not purchased any DTCC common purchase common shares in DTCC BILLING CODE 8010–01–P shares or have not purchased DTCC could be used as a means to separate common shares commensurate with small investors from large investors their share entitlements. Accordingly, a based on their net assets and subject smaller investors to potential abuse. SECURITIES AND EXCHANGE total of approximately 36.4% of the COMMISSION outstanding DTCC common shares are IV. Discussion not held by Participants but rather are Section 17A(b)(3)(C) of the Act [Release No. 34–52910; File No. SR–ISE– held by the Self-Regulatory requires that the rules of a clearing 2005–052] Organizations. Ownership of DTCC agency be designed to assure fair common shares (and previously Self-Regulatory Organizations; representation in the selection of its ownership of DTC common shares) is International Securities Exchange, Inc.; directors and the administration of its not a financial investment but instead is Notice of Filing and Immediate affairs.10 The Commission finds that a vehicle for supporting each registered Effectiveness of a Proposed Rule DTC, FICC, and NSCC’s proposed rule clearing agency and influencing its Change Relating to the Requirements changes are consistent with this policies and operations through the for Continued Approval of Securities requirement because the proposed election of directors. that Underlie Options Traded on the changes serve to increase the number of By providing that all DTCC common Exchange shares are owned by Participants, DTC, Participants that have input in the FICC, and NSCC believe that the selection of DTCC’s board of directors December 7, 2005. proposed rule changes 8 and the and thus the boards of directors of DTC, Pursuant to Section 19(b)(1) of the proposed amendments to the FICC, and NSCC. This increased Securities Exchange Act of 1934 Shareholders Agreement will guarantee participation of Participants should help (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 that Participants continue to govern and DTC, FICC, and NSCC assure that their notice is hereby given that on November to control the activities of DTC, FICC, Participants have fair representation in 21, 2005, the International Securities and NSCC, including the services the selection of its directors and the Exchange, Inc. (‘‘ISE’’ or ‘‘Exchange’’) provided and the service fees charged. administration of their affairs. filed with the Securities and Exchange The purpose of the proposed rule In particular, Participants will be in a Commission (‘‘Commission’’) the changes are not to raise capital for DTC, position to assure that DTC, FICC, and proposed rule change as described in FICC, and NSCC as suggested by one of NSCC continue the practices of Items I and II below, which Items have the commenters, but rather to establishing fees that are cost-based and been prepared by the ISE.3 The ISE filed redistribute common share ownership use-based and of returning to from having a significant portion held Participants in the form of cash rebates 11 15 U.S.C. 78s(b)(2). by the Self-Regulatory Organizations to 12 17 CFR 200.30–3(a)(12). having all shares held by the 1 8 The proposals add a new provision to each of 15 U.S.C. 78s(b)(1). DTC, FICC, and NSCC’s rules that requires Participants in order to increase 2 17 CFR 240.19b–4. Mandatory Purchaser Participants to purchase and Participants’ role in the selection of 3 In one part of the proposal, ISE Rule 504(d)(6) own DTCC common shares in accordance with the directors and the administration of DTC, is erroneously referenced, instead of current ISE terms of the Shareholders Agreement. The new FICC, and NSCC’s affairs. With respect Rule 503(b)(6). The staff corrected this reference, as provisions are DTC Rule 31, NSCC Rule 64, FICC’s per telephone conversation between Samir Patel, Government Securities Division Rule 49, and FICC’s Assistant General Counsel, ISE, and Christopher Mortgage-Backed Securities Division Article V, Rule 9 Supra notes 3 and 4. Chow, Attorney, Division of Market Regulation, 18. 10 15 U.S.C. 78q–1(b)(3)(C). Commission, December 5, 2005.
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00084 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74072 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
the proposal pursuant to Section securities association, or the issue, in failure has not been corrected within thirty 19(b)(3)(A) of the Act,4 and Rule 19b– the case of an underlying security that (30) days after the date the report was due 4(f)(6) thereunder,5 which renders the is principally traded through the to be filed.’’ proposal effective upon filing with the facilities of a national securities The Exchange proposes to eliminate Commission. The Commission is association, is no longer designated as this provision because (i) it limits publishing this notice to solicit an NMS security.] [(7)] (6) If an investors’ ability to use options to hedge comments on the proposed rule change, underlying security is approved for existing equity positions in such as amended, from interested persons. options listing and trading under the securities, and (ii) it is not necessary in provisions of Rule 502(c), the trading the context of the rest of ISE Rule I. Self-Regulatory Organization’s volume and price history of the Original 503(b). Statement of the Terms of Substance of Security (as therein defined) prior to but First, ISE Rule 503(b)(5) can and does the Proposed Rule Change not after the commencement of trading impact investors’ interests by preventing The ISE proposes to amend certain of in the Restructure Security (as therein investors from using new options series its rules governing the requirements for defined), including ‘‘when-issued’’ to hedge positions that they may hold in and the withdrawal of approval of trading, may be taken into account in the underlying security of companies securities underlying options traded on determining whether the trading volume that fail to make timely reports required the Exchange. The text of the proposed and market price requirements of (3) by the Act. ISE believes such a rule change is below. Proposed new and (4) of this paragraph (b) are restriction is inconsistent with the rules language is in italics; proposed satisfied. and regulations in the markets for the deletions are in [brackets]. (c)–(j) No change. underlying securities because no similar * * * * * trading restriction is placed upon the Rule 502. Criteria for Underlying trading of the underlying security itself. Securities II. Self-Regulatory Organization’s Thus, ISE Rule 503(b)(5) only serves to (a) Underlying securities with respect Statement of the Purpose of, and limit the abilities of shareholders in to which put or call options contracts Statutory Basis for, the Proposed Rule such companies who may wish to hedge are approved for listing and trading on Change their positions with new options series, the Exchange must meet the following In its filing with the Commission, the at a time when the ability to hedge may criteria: ISE included statements concerning the be particularly important. (1) The security must be registered purpose of and basis for the proposed ISE believes that ISE Rule 503(b)(5) and be an ‘‘NMS stock’’ as defined in rule change and discussed any has outlived any usefulness and now Rule 600 of Regulation NMS under the comments it received on the proposed serves to unnecessarily burden and Exchange Act [(i) listed on a national rule change. The text of these statements confuse the investing public. ISE securities exchange; or (ii) traded may be examined at the places specified believes this provision was appropriate through the facilities of a national in Item IV below. The ISE has prepared when it was first implemented in or securities association and reported as a summaries, set forth in Sections A, B, around 1976 when the listing and ‘‘national market system’’ (‘‘NMS’’) and C below, of the most significant trading of standardized options was still security as set forth in Rule 11Aa3–1 aspects of such statements. in its infancy and information under the Exchange Act]; and pertaining to public companies was not (2) No change. A. Self-Regulatory Organization’s readily available to the general investing (b)–(j) No change. Statement of the Purpose of, and public. The Exchange believes that Statutory Basis for, the Proposed Rule today’s listed options market, however, Rule 503. Withdrawal of Approval of Change is a mature one with investors who have Underlying Securities 1. Purpose access to a significant amount of real- (a) No change. time market information to assist them (b) Absent exceptional circumstances, The Exchange proposes to eliminate in making informed investment an underlying security will not be ISE Rule 503(b)(5) pertaining to the decisions, including information as to deemed to meet the Exchange’s continued approval of securities that whether companies have timely filed requirements for continued approval underlie options traded on the reports as required by the Exchange Act, whenever any of the following occur: Exchange. ISE Rule 503(b) sets forth and if not, why not. Therefore, ISE (1)–(4) No change. various situations under which an believes that there is no reason to [(5) The issuer has failed to make underlying security previously continue limiting investors’ ability to timely reports as required by applicable approved for options trading will in trade in options classes, including new requirements of the Exchange Act, and usual circumstances be deemed to no series within those classes, simply such failure has not been corrected longer meet Exchange requirements for because a company is not timely in within thirty (30) days after the date the the continuance of such approval. In filing its reports. The Exchange further report was due to be filed.] such circumstances, ISE Rule 503(a) states that this restriction is further [(6)] (5) The underlying security provides that the Exchange will not misplaced, considering that investors ceases to be an ‘‘NMS stock’’ as defined open for trading any additional series of are not similarly restricted from buying in Rule 600 of Regulation NMS under options in that class and may also limit or selling shares of the underlying the Exchange Act. [The issuer, in the any new opening transactions in those security in the equity markets. case of an underlying security that is options series that have already been Moreover, the Exchange believes that principally traded on a national opened. ISE Rule 503(b)(5) limits an investor’s securities exchange, is delisted from Currently, ISE Rule 503(b)(5) provides ability to hedge his underlying stock trading on that exchange and neither that an underlying security will no positions at a time when he may be in meets NMS criteria nor is traded longer be approved for options trading most need to protect his investment. through the facilities of a national on the Exchange when: The failure of a public company to ‘‘(5) The issuer has failed to make timely comply with its reporting requirements 4 15 U.S.C. 78s(b)(3)(A). reports as required by applicable under the Act could cause a significant 5 17 CFR 240.19b–4(f)(6). requirements of the Exchange Act, and such movement in the price of that
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00085 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74073
company’s stock. Restricting the security, respectively. Both of these Section 19(b)(3)(A) of the Act and Rule Exchange from opening new options provisions include as part of the criteria, 19b–4(f)(6) thereunder. series may leave investors without a requirement that the underlying A proposed rule change filed under means to hedge their positions with security must be a national market Rule 19b–4(f)(6) normally does not options contracts at strike prices that system security (‘‘NMS security’’). As become operative for 30 days after the more accurately reflect the part of the recently adopted Regulation date of filing. However, Rule 19b– contemporaneous price trends of the NMS,8 among other things, the 4(f)(6)(iii) permits the Commission to underlying stock. Commission revised the definition of an designate a shorter time if such action The ISE states that new options series NMS security. Specifically, Rule is consistent with the protection of on a security should not be permitted to 600(b)(46) under Regulation NMS investors and the public interest. In be opened if the underlying security defines an NMS security as ‘‘any addition, Rule 19b–4(f)(6)(iii) requires a ceases to be an ‘‘NMS stock’’ within the security or class of securities for which self-regulatory organization to provide meaning of Rule 600(b)(47) of transaction reports are collected, the Commission with written notice of 6 Regulation NMS. Typically, the processed, and made available pursuant its intent to file the proposed rule Exchange becomes aware of issues that to an effective transaction reporting change, along with a brief description may impact the continued listing of a plan, or an effective national market and text of the proposed rule change, at security well before that security is system plan for reporting transactions in least 5 business days prior to the date delisted from its primary market. listed options.’’ As such, each of these of filing of the proposed rule change, or Exchange staff routinely monitors daily ISE Rules will be amended to reflect such shorter time as designated by the press releases and informational these new terms. Commission. releases disseminated by various entities, such as, the primary listing 2. Statutory Basis The ISE has asked the Commission to waive the 5-day pre-filing notice market of a security and private news The ISE believes that the basis under services, in an effort to monitor the requirement and the 30-day operative the Act for this proposed rule change is delay. The Commission waives the 5- activities and news items pertaining to found in Section 6(b)(5), in that the the issuers of securities that underlie day pre-filing notice requirement. elimination of ISE Rule 503(b)(5), which Additionally, the Commission believes options traded on the Exchange. In is both burdensome to investors and many cases, when an issuer fails to that waiving the 30-day operative delay unnecessary for their protection, will is consistent with the protection of comply with its reporting requirements serve to remove impediments to and under the Act, the issuer is given a investors and the public interest perfect the mechanisms of a free and because the proposed rule change is substantial amount of time to cure this open market and a national market deficiency before the primary listing based upon a recently approved rule system and, in general, to protect change by the Chicago Board Options market actually delists the issuer’s investors and the public interest. 9 security. Many times, the issuer is able Exchange, Incorporated (‘‘CBOE’’), B. Self-Regulatory Organization’s which was published for notice and to comply without its security ever 10 being delisted. During this period, ISE Statement on Burden on Competition comment. For this reason, the staff continually monitors the status of Commission designates that the The ISE does not believe that the proposal has become effective and the issuer’s compliance with its proposed rule change will impose any reporting requirements to determine operative immediately upon filing with burden on competition that is not the Commission. whether the security may be delisted. necessary or appropriate in the Finally, the primary listing market furtherance of the purposes of the Act. At any time within 60 days of the typically issues a press release well in filing of the proposed rule change, the advance of delisting an issuer’s security C. Self-Regulatory Organization’s Commission may summarily abrogate to give investors and other market Statement on Comments on the such rule change if it appears to the participants adequate notice. Proposed Rule Change Received From Commission that such action is Given the availability of data and Members, Participants, or Others necessary or appropriate in the public interest, for the protection of investors, information relating to public issuers of The ISE has neither solicited nor or otherwise in furtherance of the securities in today’s markets, and in received comments on the proposed purposes of the Act.11 light of the extensive amount of rule change. additional continued listing standards IV. Solicitation of Comments under ISE Rule 503(b), waiting until a III. Date of Effectiveness of the security is actually delisted by its Proposed Rule Change and Timing for Interested persons are invited to primary listing market is the appropriate Commission Action submit written data, views, and point at which to restrict the issuance of Because the foregoing proposed rule arguments concerning the foregoing, new options series in an options class. change: (1) Does not significantly affect including whether the proposed rule Accordingly, the Exchange hereby the protection of investors or the public change is consistent with the Act. proposes to eliminate ISE Rule interest; (2) does not impose any Comments may be submitted by any of 503(b)(5). the following methods: Additionally, as a matter of significant burden on competition; and (3) by its terms does not become ‘‘housekeeping,’’ the Exchange also 9 operative for 30 days after the date of See Securities Exchange Act Release Nos. 52562 proposes to clarify the texts of ISE Rules (October 4, 2005), 70 FR 59382 (October 12, 2005) this filing, or such shorter time as the 502(a)(1) and 503(b)(6),7 which govern (notice for SR–CBOE–2004–037) and 52779 Commission may designate if consistent the criteria for the initial and continued (November 16, 2005), 70 FR 70902 (November 23, with the protection of investors and the 2005) (approval order for SR–CBOE–2004–037). listing of options on a particular public interest, the proposed rule 10 For purposes only of waiving the 30-day operative delay, the Commission has considered the 6 17 CFR 242.600(b)(47). change has become effective pursuant to proposed rule’s impact on efficiency, competition, 7 ISE Rule 503(b)(6) would become ISE Rule and capital formation. 15 U.S.C. 78c(f). 503(b)(5) to correspond with the elimination of 8 See Securities Exchange Act Release No. 51808 11 See Rule 19b–4(f)(6)(iii), 17 CFR 240.19b– current ISE Rule 503(b)(5), as discussed above. (June 9, 2005), 70 FR 37496 (June 29, 2005). 4(f)(6)(iii).
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00086 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74074 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
Electronic Comments SECURITIES AND EXCHANGE securities association,8 and in particular, with Section 15A(b)(6) of the • COMMISSION Use the Commission’s Internet Act.9 The Commission believes that the comment form (http://www.sec.gov/ [Release No. 34–52896; File No. SR-NASD– proposed rule change will align rules/sro.shtml); or 2005–116] Nasdaq’s requirements with the auditor • Send an e-mail to rule- oversight requirements of the Sarbanes- [email protected]. Please include File Self-Regulatory Organizations; Oxley Act and eliminate the No. SR–ISE–2005–052 on the subject National Association of Securities redundancy of Nasdaq’s current rule. line. Dealers, Inc.; Order Approving It is therefore ordered, pursuant to Proposed Rule Change To Modify Section 19(b)(2) of the Act,10 that the Paper Comments Nasdaq’s Auditor Peer Review proposed rule change (SR–NASD–2005– Requirement 116) be, and it hereby is, approved. • Send paper comments in triplicate For the Commission, by the Division of to Jonathan G. Katz, Secretary, December 6, 2005. Market Regulation, pursuant to delegated Securities and Exchange Commission, On September 29, 2005, the National authority.11 100 F Street, NE., Washington, DC Association of Securities Dealers, Inc. Jonathan G. Katz, 20549–0903. (‘‘NASD’’), through its subsidiary, The Secretary. All submissions should refer to File Nasdaq Stock Market, Inc. (‘‘Nasdaq’’), [FR Doc. E5–7333 Filed 12–13–05; 8:45 am] filed with the Securities and Exchange No. SR–ISE–2005–052. This file number BILLING CODE 8010–01–P should be included on the subject line Commission (‘‘Commission’’), pursuant if e-mail is used. To help the to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’),1 and Commission process and review your SECURITIES AND EXCHANGE Rule 19b–4 thereunder,2 a proposed rule comments more efficiently, please use COMMISSION change to modify NASD Rule 4350(k), only one method. The Commission will regarding the oversight of accountants [Release No. 34–52915; File No. SR–NYSE– post all comments on the Commission’s that audit listed issuers.3 The proposed 2005–85] Internet Web site (http://www.sec.gov/ rule change was published for comment rules/sro.shtml). Copies of the Self-Regulatory Organizations; New in the Federal Register on October 26, York Stock Exchange, Inc.; Notice of submission, all subsequent 2005.4 The Commission received no amendments, all written statements Filing and Immediate Effectiveness of comments on the proposal. This order Proposed Rule Change Relating to with respect to the proposed rule approves the proposed rule change. Revisions to the Study Outline and change that are filed with the Current NASD Rule 4350(k) requires Selection Specifications for the Commission, and all written each issuer listed on Nasdaq to be Limited Principal—General Securities communications relating to the audited by an independent accountant Sales Supervisor (Series 9/10) proposed rule change between the that has received an external quality Examination Program Commission and any person, other than control review by another independent those that may be withheld from the public accountant (a ‘‘peer review’’) or December 7, 2005. public in accordance with the is enrolled in an acceptable peer review Pursuant to Section 19(b)(1) of the provisions of 5 U.S.C. 552, will be program. The proposed rule change Securities Exchange Act of 1934 available for inspection and copying in would replace this requirement with a (‘‘Act’’),1 and Rule 19b–4 thereunder,2 the Commission’s Public Reference provision that requires each listed issuer notice is hereby given that on November Room. Copies of such filing will also be to be audited by an independent 30, 2005, the New York Stock Exchange, available for inspection and copying at accountant that is registered as a public Inc. (‘‘NYSE’’ or ‘‘Exchange’’) filed with the Securities and Exchange the principal office of the ISE. All accounting firm with the Public Commission (‘‘SEC’’ or ‘‘Commission’’) comments received will be posted Company Accounting Oversight Board (‘‘PCAOB’’), as provided for in the the proposed rule change as described without change; the Commission does in Items I, II, and III below, which Items not edit personal identifying Sarbanes-Oxley Act of 2002 (the ‘‘Sarbanes-Oxley Act’’).5 The PCAOB is have been prepared by the Exchange. information from submissions. You charged, among other things, with The Exchange has designated the should submit only information that conducting a continuing program of proposed rule change as constituting a you wish to make available publicly. All inspections of registered public stated policy, practice, or interpretation submissions should refer to File No. accounting firms.6 with respect to the meaning, SR–ISE–2005–052 and should be The Commission finds that the administration, or enforcement of an submitted on or before January 4, 2006. proposed rule change is consistent with existing rule of the self-regulatory For the Commission, by the Division of the requirements of Section 15A(b) of organization pursuant to Section Market Regulation, pursuant to delegated the Act 7 and the rules and regulations 19(b)(3)(A)(i) of the Act 3 and Rule 19b– authority.12 thereunder applicable to a national 4(f)(1) thereunder,4 which renders the Jonathan G. Katz, proposal effective upon filing with the Secretary. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 8 In approving this proposed rule change, the [FR Doc. E5–7303 Filed 12–13–05; 8:45 am] 3 The proposed rule change would also make a Commission has considered the proposed rule’s BILLING CODE 8010–01–P conforming amendment to the language of NASD impact on efficiency, competition and capital Rule 4200(a). formation. See 15 U.S.C. 78c(f). 9 4 Securities Exchange Act Release No. 52645 (Oct. 15 U.S.C. 78o–3(b)(6). 20, 2005), 70 FR 61864. 10 15 U.S.C. 78s(b)(2). 5 See Section 102 of the Sarbanes-Oxley Act, 15 11 17 CFR 200.30–3(a)(12). U.S.C. 7212. 1 15 U.S.C. 78s(b)(1). 6 See Section 104 of the Sarbanes-Oxley Act, 15 2 17 CFR 240.19b–4. U.S.C. 7214. 3 15 U.S.C. 78s(b)(3)(A)(i). 12 17 CFR 200.30–3(a)(12). 7 15 U.S.C. 78o–3(b). 4 17 CFR 240.19b–4(f)(1).
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00087 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74075
Commission. The Commission is developed examinations, and Exchange, Inc., and the Philadelphia publishing this notice to solicit administers examinations developed by Stock Exchange, Inc. NYSE understands comments on the proposed rule change other self-regulatory organizations that the other SROs also will file with from interested persons. (‘‘SROs’’), that are designed to establish the Commission similar revisions to the that persons associated with Exchange Series 9/10 examination program. I. Self-Regulatory Organization’s members and member organizations A committee of industry Statement of the Terms of Substance of have attained specified levels of representatives, together with the staff the Proposed Rule Change competence and knowledge. The of NYSE and the other SROs, recently The Exchange is filing with the Exchange periodically reviews the undertook a periodic review of the Commission revisions to the study content of the examinations to Series 9/10 examination program. As a outline and selection specifications for determine whether revisions are result of this review, NYSE is proposing the Limited Principal—General necessary or appropriate in view of to update the content of the examination Securities Sales Supervisor (Series 9/10) changes pertaining to the subject matter to cover Regulation S–P,8 MSRB Rules examination program. The proposed covered by the examinations. G–37/G–38, SRO research analyst and revisions update the material to reflect NYSE Rule 345 (‘‘Employees- anti-money laundering rules, municipal changes to the laws, rules, and Registration, Approval, Records’’) fund securities (e.g., 529 college savings regulations covered by the examination, requires member firms to register with plans), and exchange traded funds. The as well as modify the content of the the NYSE any individuals who regularly study outline also reflects the new SEC examination program to track more perform duties customarily performed short sale rule requirements. In closely the functional workflow of a by a direct supervisor of a registered addition, as part of an ongoing effort to Series 9/10 Limited Principal. representative. Under NYSE Rule 342 align the examination more closely to The revised study outline is available (‘‘Offices-Approval, Supervision, and the supervisory duties of a Series 9/10 on the Exchange’s Web site (http:// Control’’) member firms are required to Limited Principal, NYSE is proposing to www.nyse.com), at the NYSE, and at the supervise themselves. Specifically, modify the content of the examination Commission. However, the Exchange NYSE Rule 342.13 requires individuals to track the functional workflow of a has omitted the Series 9/10 selection who supervise general trading activities Series 9/10 Limited Principal. Also, specifications from this filing and has to have a creditable three-year record as NYSE is proposing to include questions submitted the specifications under a registered representative or equivalent related to the rules of the options separate cover to the Commission with experience and to pass the General exchanges and the MSRB and parallel a request for confidential treatment Securities Sales Supervisor NYSE and NASD rules in the same pursuant to Rule 24b–2 5 under the Act. Qualification Examination (Series 9/10) section of the exam. The Exchange will announce the or another examination acceptable to As a result of the revisions, the main proposed rule change and the the Exchange that demonstrates section headings and the number of implementation date to its members and competency relevant to assigned questions on each section of the Series member organizations in an Information responsibilities.7 9/10 study outline were modified as Memo to be published no later than 30 The Series 9/10 examination, an follows: Section 1—Hiring, days after SEC Notice of this filing. industry-wide examination, qualifies an Qualifications, and Continuing II. Self-Regulatory Organization’s individual to function as a General Education, 9 questions; Section 2— Statement of the Purpose of, and Securities Sales Supervisor. It tests a Supervision of Accounts and Sales Statutory Basis for, the Proposed Rule candidate’s knowledge of securities Activities, 94 questions; Section 3— Change industry rules and regulations and Conduct of Associated Persons, 14 certain statutory provisions pertinent to questions; Section 4—Record keeping In its filing with the Commission, the the supervision of sales activities. The Requirements, 8 questions; Section 5— Exchange included statements Series 9/10 examination is primarily Municipal Securities Regulation, 20 concerning the purpose of and basis for geared towards individuals who will act questions; Section 6—Options the proposed rule change and discussed as the Branch Managers/Sales Regulation, 55 questions. Sections 1 any comments it received on the Supervisor of the firm’s branch office through 5 constitute the Series 10 proposed rule change. The text of these locations. The Branch Manager is portion of the examination. Section 6 statements may be examined at the generally responsible for reviewing the constitutes the Series 9 portion of the places specified in Item IV below. The activities of registered persons at the examination. Series 10 covers general Exchange has prepared summaries, set branch location and is also responsible securities and municipal securities and forth in Sections A, B, and C below, of for the review and approval of customer Series 9 covers options. The revised the most significant aspects of such accounts that are opened through a examination continues to cover the statements. registered representative at a branch. areas of knowledge required for the A. Self-Regulatory Organization’s The Series 9/10 examination program supervision of sales activities. Statement of the Purpose of, and is shared by NYSE and the following NYSE is proposing similar changes to Statutory Basis for, the Proposed Rule SROs: the American Stock Exchange the corresponding sections of the Series Change LLC, the Chicago Board Options 9/10 selection specifications and Exchange, Inc., the Municipal Securities question bank. The number of questions 1. Purpose Rule Making Board (‘‘MSRB’’), the on the Series 9/10 examination will Pursuant to Section 6(c)(3)(B) 6 of the National Association of Securities remain at 200 and candidates will have Act, which requires the Exchange to Dealers, Inc. (‘‘NASD’’), the Pacific four hours to complete the Series 10 prescribe standards of training, portion and one and half hour to experience, and competence for persons 7 NYSE Rule 342.13 provides that the General complete the Series 9 portion. Also, associated with Exchange members and Securities Principal Examination (Series 24), if each candidate must correctly answer member organizations, the Exchange has taken and passed after July 1, 2001, is an acceptable alternative for persons whose duties do not include 70 percent of the questions on each the supervision of options or municipal securities 5 17 CFR 240.24b–2. sales activity. The examination requirement may be 8 17 CFR. 248.1–18; 17 CFR.249.30; and 17 6 15 U.S.C. 78f(c)(3)(B). waived at the discretion of the Exchange. CFR.248, Appendix A.
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00088 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74076 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
series, 9 and 10, to receive a passing Electronic Comments SECURITIES AND EXCHANGE grade. COMMISSION • Use the Commission’s Internet 2. Statutory Basis comment form (http://www.sec.gov/ [Release No. 34–52918; File No. SR–PCX– 2005–113] The Exchange believes that the rules/sro.shtml); or proposed rule change is consistent with • Send an e-mail to rule- Self-Regulatory Organizations; Pacific Section 6(c)(3)(B) 9 of the Act, in that it [email protected]. Please include File Exchange, Inc.; Notice of Filing and provides for the prescription by NYSE Number SR–NYSE–2005–85 on the Immediate Effectiveness of Proposed of standards of training, experience, and subject line. Rule Change and Amendment No. 1 competence for persons associated with Thereto Relating to Revisions to the NYSE members and member Paper Comments Series 9/10 Examination Program organizations. • Send paper comments in triplicate December 7, 2005. B. Self-Regulatory Organization’s to Jonathan G. Katz, Secretary, Pursuant to Section 19(b)(1) of the Statement on Burden on Competition Securities and Exchange Commission, Securities Exchange Act of 1934 NYSE does not believe that the 100 F Street, NE., Washington, DC (‘‘Act’’),1 and Rule 19b–4 thereunder,2 proposed rule change will result in any 20549–9303. notice is hereby given that on November burden on competition that is not All submissions should refer to File 17, 2005, the Pacific Exchange, Inc. necessary or appropriate in furtherance Number SR–NYSE–2005–85. This file (‘‘PCX’’ or ‘‘Exchange’’) filed with the Securities and Exchange Commission of the purposes of the Act. number should be included on the (‘‘SEC’’ or ‘‘Commission’’) the proposed subject line if e-mail is used. To help the C. Self-Regulatory Organization’s rule change as described in Items I, II, Statement on Comments on the Commission process and review your and III below, which Items have been Proposed Rule Change Received From comments more efficiently, please use prepared by PCX. On November 22, Members, Participants or Others only one method. The Commission will 2005, PCX filed Amendment No. 1 to post all comments on the Commission’s the proposed rule change. PCX has Comments were neither solicited nor Internet Web site (http://www.sec.gov/ received. designated the proposed rule change as rules/sro.shtml). Copies of the constituting a stated policy, practice, or III. Date of Effectiveness of the submission, all subsequent interpretation with respect to the Proposed Rule Change and Timing for amendments, all written statements meaning, administration, or Commission Action with respect to the proposed rule enforcement of an existing rule of the The proposed rule change has become change that are filed with the self-regulatory organization pursuant to 3 effective pursuant to Section Commission, and all written Section 19(b)(3)(A)(i) of the Act and 4 19(b)(3)(A)(i) 10 of the Act and Rule 19b– communications relating to the Rule 19b–4(f)(1) thereunder, which 4(f)(1) thereunder,11 in that the proposed rule change between the renders the proposal effective upon proposed rule change constitutes a Commission and any person, other than filing with the Commission. The stated policy, practice, or interpretation those that may be withheld from the Commission is publishing this notice to with respect to the meaning, public in accordance with the solicit comments on the proposed rule administration, or enforcement of an provisions of 5 U.S.C. 552, will be change, as amended, from interested existing rule of the self-regulatory available for inspection and copying in persons. organization. The Exchange will the Commission’s Public Reference I. Self-Regulatory Organization’s announce the implementation date to its Room. Copies of such filing also will be Statement of the Terms of Substance of members and member organizations in available for inspection and copying at the Proposed Rule Change an Information Memo to be published the principal office of the NYSE. All PCX is filing revisions to the study no later than 30 days after SEC Notice comments received will be posted outline and selection specifications for of this filing. without change; the Commission does the Limited Principal—General At any time within 60 days of the not edit personal identifying Securities Sales Supervisor (Series 9/10) filing of the proposed rule change, the information from submissions. You examination program. The proposed Commission may summarily abrogate should submit only information that revisions update the material to reflect such rule change if it appears to the you wish to make available publicly. All changes to the laws, rules, and Commission that such action is submissions should refer to File regulations covered by the examination, necessary or appropriate in the public Number SR–NYSE–2005–85 and should as well as modify the content of the interest, for the protection of investors, be submitted on or before January 4, examination program to track more or otherwise in furtherance of the 2006. closely the functional workflow of a purposes of the Act. For the Commission, by the Division of Series 9/10 limited principal. PCX is not IV. Solicitation of Comments Market Regulation, pursuant to delegated proposing any textual changes to the authority.12 existing PCX rules. Interested persons are invited to The revised study outline is available submit written data, views, and Jonathan G. Katz, on PCX’s Web site (http:// arguments concerning the foregoing, Secretary. www.pacificex.com), at PCX, and at the including whether the proposed rule [FR Doc. E5–7327 Filed 12–13–05; 8:45 am] Commission. However, PCX has omitted change is consistent with the Act. BILLING CODE 8010–01–P the Series 9/10 selection specifications Comments may be submitted by any of from this filing and has submitted the the following methods: 1 15 U.S.C. 78s(b)(1). 9 15 U.S.C. 78f(c)(3)(B). 2 17 CFR 240.19b–4. 10 15 U.S.C. 78s(b)(3)(A)(i). 3 15 U.S.C. 78s(b)(3)(A)(i). 11 17 CFR 240.19b–4(f)(1). 12 17 CFR 200.30–3(a)(12). 4 17 CFR 240.19b–4(f)(1).
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00089 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74077
specifications under separate cover to overall compliance with financial examination. Series 10 covers general the Commission with a request for responsibility rules for broker-dealers securities and municipal securities, and confidential treatment pursuant to Rule promulgated pursuant to the provisions Series 9 covers options. The revised 24b–2 under the Act.5 of the Act. The Series 9/10 examination, examination continues to cover the an industry-wide examination, qualifies areas of knowledge required for the II. Self-Regulatory Organization’s an individual to function as a General Statement of the Purpose of, and supervision of sales activities. Securities Sales Supervisor. The Series Statutory Basis for, the Proposed Rule PCX is proposing these changes to the 9/10 examination tests a candidate’s Change entire content of the Series 9/10 knowledge of securities industry rules examination, including the selection In its filing with the Commission, and regulations and certain statutory specifications and question bank. The PCX included statements concerning the provisions pertinent to the supervision number of questions on the Series 9/10 purpose of and basis for the proposed of sales activities. examination will remain at 200, and rule change and discussed any The Series 9/10 examination program candidates will continue to have four comments it received on the proposed is shared by PCX and the following hours to complete the Series 10 portion rule change. The text of these statements SROs: the American Stock Exchange and one and one-half hours to complete may be examined at the places specified LLC, the Chicago Board Options the Series 9 portion. Also, each question in Item IV below. PCX has prepared Exchange, Inc., the Municipal Securities will continue to count one point, and summaries, set forth in Sections A, B, Rule Making Board (‘‘MSRB’’), the New each candidate must correctly answer and C below, of the most significant York Stock Exchange, Inc. (‘‘NYSE’’), 70 percent of the questions on each aspects of such statements. the National Association of Securities series, 9 and 10, to receive a passing A. Self-Regulatory Organization’s Dealers, Inc. (‘‘NASD’’), and the grade. Statement of the Purpose of, and Philadelphia Stock Exchange, Inc. As noted below, PCX understands A committee of industry Statutory Basis for, the Proposed Rule that the other SROs also will file with representatives, together with the staff Change the Commission similar proposed rule of PCX and the other SROs, recently changes reflecting the revisions to the 1. Purpose undertook a periodic review of the Series 9/10 examination program. Pursuant to Section 6(c)(3) of the Series 9/10 examination program. As a Act,6 which allows PCX to examine and result of this review, PCX is proposing 2. Statutory Basis verify the standards of training, to update the content of the examination PCX believes that the proposed 8 experience, and competence for persons to cover Regulation S–P, MSRB Rules revisions to the Series 9/10 examination associated with Equities Trading Permit G–37/G–38, SRO research analyst and program are consistent with Section 6(b) (‘‘ETP’’) Holders, PCX has developed anti-money laundering rules, municipal of the Act,9 in general, and further the examinations, and requires satisfaction fund securities (e.g., 529 college savings objectives of Section 6(b)(1) 10 in of examinations developed by other plans), and exchange traded funds. PCX particular, in that it is designed to SROs, that are designed to establish that is further proposing revisions to the enforce compliance by ETP Holders and persons associated with ETP Holders study outline to reflect the SEC short persons associated with the rules of the have attained specified levels of sale requirements. In addition, as part of Exchange. competence and knowledge. PCX an ongoing effort to align the periodically reviews the content of examination more closely to the B. Self-Regulatory Organization’s examinations to determine whether supervisory duties of a Series 9/10 Statement on Burden on Competition revisions are necessary or appropriate in limited principal, PCX is proposing to PCX does not believe that the view of changes pertaining to the modify the content of the examination proposed rule change, as amended, will subject matter covered by the to track the functional workflow of a result in any burden on competition that examinations. Series 9/10 limited principal. Also, PCX is not necessary or appropriate in PCXE Rule 6.18(d) states that if an is proposing to include questions furtherance of the purposes of the Act. ETP Holder does business with the related to parallel rules of NASD, the public, the person (or persons) options exchanges, the MSRB, and the C. Self-Regulatory Organization’s designated to direct day-to-day NYSE in the same section of the exam. Statement on Comments on the compliance activity and each other As a result of the revisions, PCX is Proposed Rule Change Received From person directly supervising ten or more proposing to modify the main section Members, Participants or Others persons engaged in compliance activity headings and the number of questions Written comments were neither must pass the General Securities Sales on each section of the Series 9/10 study solicited nor received. Supervisor Qualification Examination outline as follows: Section 1—Hiring, (Series 9/10). A General Securities Sales Qualifications, and Continuing III. Date of Effectiveness of the Supervisor is precluded from Education, 9 questions; Section 2— Proposed Rule Change and Timing for performing any of the following Supervision of Accounts and Sales Commission Action activities: supervision of the origination Activities, 94 questions; Section 3— The proposed rule change, as and structuring of underwritings; Conduct of Associated Persons, 14 amended, has become effective pursuant supervision of market making questions; Section 4—Recordkeeping to Section 19(b)(3)(A)(i) of the Act 11 and commitments; final approval of Requirements, 8 questions; Section 5— Rule 19b-4(f)(1) thereunder,12 in that the advertisements as these are defined in Municipal Securities Regulation, 20 proposed rule change constitutes a NASD Rule 2210; supervision of the questions; Section 6—Options stated policy, practice, or interpretation custody of firm or customer funds and/ Regulation, 55 questions. Sections 1 with respect to the meaning, or securities for purposes of Rule 15c3– through 5 constitute the Series 10 administration, or enforcement of an 3 7 under the Act; or supervision of portion of the examination. Section 6 constitutes the Series 9 portion of the 9 15 U.S.C. 78f(b). 5 17 CFR 240.24b–2. 10 15 U.S.C. 78f(b)(1). 6 15 U.S.C. 78f(c)(3). 8 17 CFR 248.1–18; 17 CFR 248.30; and 17 CFR 11 15 U.S.C. 78s(b)(3)(A)(i). 7 17 CFR 240.15c3–3. 248, Appendix A. 12 17 CFR 240.19b–4(f)(1).
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00090 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74078 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
existing rule of the self-regulatory available for inspection and copying in change, as amended, from interested organization. PCX will announce the the Commission’s Public Reference persons. implementation date in a Rule Adoption Room. Copies of such filing also will be I. Self-Regulatory Organization’s Notice to be published no later than 7 available for inspection and copying at Statement of the Terms of Substance of days after Notice of this filing. the principal office of the PCX. All At any time within 60 days of the comments received will be posted the Proposed Rule Change filing of the proposed rule change, the without change; the Commission does The Exchange proposes changes to Commission may summarily abrogate not edit personal identifying PCX rules pertaining to the approval of such rule change if it appears to the information from submissions. You securities that underlie options traded Commission that such action is should submit only information that on the Exchange. Specifically, the necessary or appropriate in the public you wish to make available publicly. All Exchange proposes to eliminate Rule interest, for the protection of investors, submissions should refer to File 5.6(b)(5) and amend Rule 5.6(b)(6) and or otherwise in furtherance of the Number SR–PCX–2005–113 and should Rule 5.3(b). A copy of the proposed rule purposes of the Act.13 be submitted on or before January 4, change is available on the PCX Web site, IV. Solicitation of Comments 2006. (www.pacificex.com), at the PCX’s For the Commission, by the Division of Office of the Secretary and at the Interested persons are invited to Market Regulation, pursuant to delegated Commission’s Public Reference Room. submit written data, views, and authority.14 II. Self-Regulatory Organization’s arguments concerning the foregoing, Jonathan G. Katz, including whether the proposed rule Statement of the Purpose of, and Secretary. change, as amended, is consistent with Statutory Basis for, the Proposed Rule the Act. Comments may be submitted by [FR Doc. E5–7325 Filed 12–13–05; 8:45 am] Change BILLING CODE 8010–01–P any of the following methods: In its filing with the Commission, the Electronic Comments self-regulatory organization included statements concerning the purpose of • Use the Commission’s Internet SECURITIES AND EXCHANGE COMMISSION and basis for the proposed rule change comment form (http://www.sec.gov/ and discussed any comments it received rules/sro.shtml); or [Release No. 34–52911; File No. SR–PCX– on the proposed rule change. The text • Send an e-mail to rule- 2005–129] of these statements may be examined at [email protected]. Please include File the places specified in Item IV below. Number SR–PCX–2005–113 on the Self-Regulatory Organizations; Notice The self-regulatory organization has subject line. of Filing and Immediate Effectiveness of Proposed Rule Change by the prepared summaries, set forth in Paper Comments Pacific Exchange, Inc. and Amendment sections A, B and C below, of the most • Send paper comments in triplicate No. 1 Thereto Relating to the Approval significant aspects of such statements. to Jonathan G. Katz, Secretary, of Securities That Underlie Options A. Self-Regulatory Organization’s Securities and Exchange Commission, Traded on the Exchange Statement of the Purpose of, and 100 F Street, NE., Washington, DC December 7, 2005. Statutory Basis for, the Proposed Rule 20549–9303. Change All submissions should refer to File Pursuant to Section 19(b)(1) of the Number SR-PCX–2005–113. This file Securities Exchange Act of 1934 1. Purpose (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 number should be included on the The purpose of this Amendment No. notice is hereby given that on November subject line if e-mail is used. To help the 1 is to make clarifying changes and Commission process and review your 23, 2005, the Pacific Exchange, Inc. (‘‘PCX’’ or ‘‘Exchange’’) filed with the correct typographical errors in the comments more efficiently, please use original filing. This Amendment No. 1 only one method. The Commission will Securities and Exchange Commission (‘‘Commission’’) the proposed rule replaces the original rule filing in its post all comments on the Commission’s entirety. The Exchange proposes Internet Web site (http://www.sec.gov/ change as described in Items I and II below, which Items have been prepared changes to PCX rules pertaining to the rules/sro.shtml). Copies of the by the self-regulatory organization. On approval of securities that underlie submission, all subsequent December 7, 2005, PCX filed options traded on the Exchange. amendments, all written statements Amendment No. 1 to the proposed rule Specifically, the Exchange proposes to with respect to the proposed rule change.3 PCX filed the proposed rule eliminate Rule 5.6(b)(5) and amend Rule change that are filed with the change pursuant to Section 19(b)(3)(A) 5.6(b)(6) and Rule 5.3(b). Commission, and all written of the Act,4 and Rule 19b–4(f)(6) PCX Rule 5.6(b) sets forth various communications relating to the thereunder,5 which renders the situations under which an underlying proposed rule change between the proposal, as amended, effective upon security previously approved for Commission and any person, other than filing with the Commission. The options trading will in usual those that may be withheld from the Commission is publishing this notice to circumstances be deemed to no longer public in accordance with the solicit comments on the proposed rule meet Exchange requirements for the provisions of 5 U.S.C. 552, will be continuance of such approval. In such 14 17 CFR 200.30–3(a)(12). circumstances, Rule 5.6(b)(5) provides 13 The effective date of the original proposed rule 1 15 U.S.C. 78s(b)(1). that the Exchange will not open for is November 17, 2005. The effective date of 2 Amendment No. 1 is November 22, 2005. For 17 CFR 240.19b–4. trading any additional series of options purposes of calculating the 60-day period within 3 See Form 19b–4 dated December 7, 2005 which in that class and may also limit any new which the Commission may summarily abrogate the replaced the original filing in its entirety opening transactions in those options proposed rule change under Section 19(b)(3)(C) of (‘‘Amendment No. 1’’). Amendment No. 1 made series that have already been opened. the Act, the Commission considers the period to clarifying changes and corrected typographical commence on November 22, 2005, the date on errors in the original filing. The Exchange proposes to eliminate this which PCX submitted Amendment No. 1. See 15 4 15 U.S.C. 78s(b)(3)(A). provision because (1) it limits investors’ U.S.C. 78s(b)(3)(C). 5 17 CFR 240.19b–4(f)(6). ability to use options to hedge existing
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00091 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74079
equity positions in such securities, and Clearly, new options series on a transaction reports are collected, (2) it is not necessary in the context of security should not be permitted to be processed, and made available pursuant the rest of Rule 5.6(b). opened if the underlying security ceases to an effective transaction reporting First, Rule PCX 5.6(b)(5) can and does to be an NMS stock. Typically, the plan, or an effective national market impact investors’ interests by preventing Exchange becomes aware of issues that system plan for reporting transactions in them from using new options series to may impact the continued listing of a listed options.’’ Rule 600(b)(47) also hedge positions that may hold in the security well before that security is defines an ‘‘NMS stock’’ as any NMS underlying security of companies that delisted from its primary market. security other than an option. As such, fail to make timely reports required by Exchange staff routinely monitors daily PCX Rule 5.3(b) and Rule 5.6(b)(5) will the Act. The Exchange states that such press releases and informational be amended to reflect these new terms. a restriction is inconsistent with the releases disseminated by various rules and regulations in the markets for entities, such as, the primary listing 2. Statutory Basis the underlying securities because no market of a security and private news The Exchange believes that the similar trading restriction is placed services, in an effort to monitor the proposed rule change is consistent with upon the trading of the underlying activities and news items pertaining to Section 6(b)7 of the Act, in general, and security itself. Thus, Rule 5.6(b)(5) only the issuers of securities that underlie furthers the objectives of Section serves to limit the abilities of options traded on the Exchange. In 6(b)(5),8 in particular, in that it is shareholders in such companies who many cases, when an issuer fails to designed to facilitate transactions in may wish to hedge their positions with comply with its reporting requirements securities, to promote just and equitable new options series, at a time when the under the Act, the issuer is given a principles of trade, to enhance ability to hedge may be particularly substantial amount of time to cure this competition, and to protect investors important. deficiency before the primary listing and the public interest. The PCX believes that Rule 5.6(b)(5) market actually delists the issuer’s has outlived any usefulness and now security. Many times, the issuer is able B. Self-Regulatory Organization’s serves to unnecessarily burden and to comply without its security ever Statement on Burden on Competition confuse the investing public. This being delisted. During this period, PCX The Exchange does not believe that provision was appropriate when it was staff continually monitors the status of the proposed rule change will impose first implemented when the listing and the issuer’s compliance with its any burden on competition that is not trading of standardized options was still reporting requirements to determine necessary or appropriate in furtherance in its infancy and information whether the security may be delisted. of the purposes of the Act. pertaining to public companies was not Finally, the primary listing market readily available to the general investing typically issues a press release well in C. Self-Regulatory Organization’s public. The Exchange believes that advance of delisting an issuer’s security Statement on Comments on the today’s listed options market, however, to give investors and other market Proposed Rule Change Received From is a mature one with investors who have participants adequate notice. Members, Participants, or Others access to a significant amount of real- Given the availability of data and Written comments on the proposed time market information to assist them information relating to public issuers of rule change were neither solicited nor in making informed investment securities in today’s markets, and in received. decisions, including information as to light of the extensive amount of whether companies have timely filed additional continued listing standards III. Date of Effectiveness of the reports as required by the Act, and if under Rule 5.6(b), waiting until a Proposed Rule Change and Timing for not, why not. Therefore, the Exchange security is actually delisted by its Commission Action states that there is no reason to continue primary listing market is the appropriate The Exchange has designated the limiting investors’ ability to trade in point at which to restrict the issuance of proposed rule change as one that: (i) options classes, including new series new options series in an options class. Does not significantly affect the within those classes, simply because a Accordingly, the Exchange hereby protection of investors or the public company is not timely in filing its proposes to eliminate PCX Rule interest; (ii) does not impose any reports. The Exchange further believes 5.6(b)(5). significant burden on competition; and that this restriction is further misplaced, Additionally, as a matter of (iii) does not become operative for 30 considering that investors are not ‘‘housekeeping,’’ the Exchange also days from the date on which it was similarly restricted from buying or proposes to clarify Exchange Rule 5.3(b) filed, or such shorter time as the selling shares of the underlying security and Rule 5.6(b)(6), which govern the Commission may designate. Therefore, in the equity markets. criteria for the initial and continued the foregoing rule change has become Moreover, the Exchange believes that listing of options on a particular effective pursuant to Section 19(b)(3)(A) Rule 5.6(b)(5) limits an investor’s ability security, respectively. Both of these of the Act 9 and Rule 19b–4(f)(6) to hedge his underlying stock positions provisions include as part of the criteria, thereunder.10 At any time within 60 at a time when he may be in most need a requirement that the underlying days after the filing of the proposed rule to protect his investment. The failure of security must be a national market change, the Commission may summarily a public company to comply with its system security (‘‘NMS security’’). As abrogate the rule change if it appears to reporting requirements under the Act part of the recently adopted Regulation the Commission such action is could cause a significant movement in NMS, among other things, the necessary or appropriate in the public the price of that company’s stock. Commission revised the definition of an interest, for the protection of investors, Restricting the Exchange from opening NMS security.6 Specifically, Rule or otherwise in furtherance of the new options series may leave investors 600(b)(46) under Regulation NMS purposes of the Act. without means to hedge their positions defines an NMS security as ‘‘any with options contracts at strike prices security or class of securities for which 7 15 U.S.C. 78f(b). that more accurately reflect the 8 15 U.S.C. 78f(b)(5). contemporaneous price trends of the 6 See Securities Exchange Act Release No. 51808 9 15 U.S.C. 78s(b)(3)(A). underlying stock. (June 9, 2005); 70 FR 37496 (June 29, 2005). 10 17 CFR 240.19b–4(f)(6).
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00092 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74080 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
Pursuant to Rule 19b–4(f)(6)(iii) under rules/sro.shtml). Copies of the meaning, administration, or the Act,11 the proposal does not become submission, all subsequent enforcement of an existing rule of the operative for 30 days after the date of its amendments, all written statements self-regulatory organization pursuant to filing, or such shorter time as the with respect to the proposed rule Section 19(b)(3)(A)(i) of the Act 3 and Commission may designate if consistent change that are filed with the Rule 19b–4(f)(1) thereunder,4 which with the protection of investors and the Commission, and all written renders the proposal effective upon public interest. The PCX has asked the communications relating to the filing with the Commission. The Commission to waive the 30-day proposed rule change between the Commission is publishing this notice to operative delay and the five day pre- Commission and any person, other than solicit comments on the proposed rule those that may be withheld from the filing notice requirement. Because the change, as amended, from interested public in accordance with the proposed rule change is based upon a persons. recently approved rule change by the provisions of 5 U.S.C. 552, will be Chicago Board Options Exchange, available for inspection and copying in I. Self-Regulatory Organization’s Incorporated (‘‘CBOE’’),12 and the the Commission’s Public Reference Statement of the Terms of Substance of CBOE’s proposed rule change was Room. Copies of such filing also will be the Proposed Rule Change published for public notice and available for inspection and copying at comment, the Commission believes that the principal offices of the Exchange. PCX is filing revisions to the study waiving the 30-day operative delay, as All comments received will be posted outline and selection specifications for well as the five day pre-filing notice without change; the Commission does the Limited Principal—Registered requirement, is consistent with the not edit personal identifying Options (Series 4) examination program. protection of investors and the public information from submissions. You The proposed revisions update the interest. Accordingly, the Commission should submit only information that material to reflect changes to the laws, designates the proposal to be effective you wish to make available publicly. All rules, and regulations covered by the and operative upon filing with the submissions should refer to File examination, as well as modify the Commission.13 Number SR–PCX–2005–129 and should content of the examination program to be submitted on or before January 4, IV. Solicitation of Comments track more closely the functional 2006. workflow of a Series 4 limited principal. Interested persons are invited to For the Commission, by the Division of PCX is not proposing any textual submit written data, views, and Market Regulation, pursuant to delegated changes to the PCX Rules. The revisions authority.14 arguments concerning the foregoing, that PCX is submitting with this filing Jonathan G. Katz, including whether the proposed rule supersede all prior revisions to the change is consistent with the Act. Secretary. Series 4 examination program submitted Comments may be submitted by any of [FR Doc. E5–7328 Filed 12–13–05; 8:45 am] by PCX. the following methods: BILLING CODE 8010–01–P The revised study outline is available Electronic Comments on PCX’s Web site (http:// • Use the Commission’s Internet SECURITIES AND EXCHANGE www.pacificex.com), at PCX, and at the comment form (http://www.sec.gov/ COMMISSION Commission. However, PCX has omitted rules/sro.shtml); or the Series 4 selection specifications • [Release No. 34–52920; File No. SR–PCX– Send an e-mail to rule- 2005–112] from this filing and has submitted the [email protected]. Please include File specifications under separate cover to Number SR–PCX–2005–129 on the Self-Regulatory Organizations; Pacific the Commission with a request for subject line. Exchange, Inc.; Notice of Filing and confidential treatment pursuant to Rule Paper Comments Immediate Effectiveness of Proposed 24b–2 under the Act.5 Rule Change and Amendment No. 1 • Send paper comments in triplicate Thereto Relating to Revisions to the II. Self-Regulatory Organization’s to Jonathan G. Katz, Secretary, Series 4 Examination Program Statement of the Purpose of, and Securities and Exchange Commission, Statutory Basis for, the Proposed Rule Station Place, 100 F Street, NE., December 7, 2005. Change Washington, DC 20549–9303. Pursuant to Section 19(b)(1) of the All submissions should refer to File Securities Exchange Act of 1934 In its filing with the Commission, 1 2 Number SR–PCX–2005–129. This file (‘‘Act’’), and Rule 19b–4 thereunder, PCX included statements concerning the number should be included on the notice is hereby given that on November purpose of and basis for the proposed subject line if e-mail is used. To help the 3, 2005, the Pacific Exchange, Inc. rule change and discussed any Commission process and review your (‘‘PCX’’ or ‘‘Exchange’’) filed with the comments it received on the proposed comments more efficiently, please use Securities and Exchange Commission rule change. The text of these statements only one method. The Commission will (‘‘SEC’’ or ‘‘Commission’’) the proposed may be examined at the places specified post all comments on the Commission’s rule change as described in Items I, II, in Item IV below. PCX has prepared Internet Web site (http://www.sec.gov/ and III below, which Items have been summaries, set forth in Sections A, B, prepared by PCX. On November 22, and C below, of the most significant 2005, PCX filed Amendment No. 1 to 11 17 CFR 240.19b–4(f)(6)(iii). aspects of such statements. 12 See Securities Exchange Act Release Nos. the proposed rule change. PCX has 52562 (October 4, 2005), 70 FR 59382 (October 12, designated the proposed rule change as 2005) (notice for SR–CBOE–2004–37) and 52779 constituting a stated policy, practice, or (November 16, 2005), 70 FR 70902 (November 23, interpretation with respect to the 2005) (approval order for SR–CBOE–2004–37). 13 For purposes only of waiving the 30-day 14 3 15 U.S.C. 78s(b)(3)(A)(i). operative delay, the Commission has considered the 17 CFR 200.30–3(a)(12). proposed rule’s impact on efficiency, competition, 1 15 U.S.C. 78s(b)(1). 4 17 CFR 240.19b–4(f)(1). and capital formation. See 15 U.S.C. 78c(f). 2 17 CFR 240.19b–4. 5 17 CFR 240.24b–2.
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00093 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74081
A. Self-Regulatory Organization’s undertook a periodic review of the III. Date of Effectiveness of the Statement of the Purpose of, and Series 4 examination program. As a Proposed Rule Change and Timing for Statutory Basis for, the Proposed Rule result of this review and as part of an Commission Action Change ongoing effort to align the examination The proposed rule change, as more closely to the supervisory duties of 1. Purpose amended, has become effective pursuant a Series 4 limited principal, PCX is to Section 19(b)(3)(A)(i) of the Act10 and Pursuant to Section 6(c)(3) of the proposing to modify the content of the Rule 19b–4(f)(1) thereunder,11 in that Act,6 which allows PCX to examine and examination to track the functional the proposed rule change constitutes a verify the standards of training, workflow of a Series 4 limited principal. stated policy, practice, or interpretation experience, and competence for persons More specifically, PCX is proposing to with respect to the meaning, associated with PCX Options Trading revise the main section headings and administration, or enforcement of an Permit (‘‘OTP’’) Holders or OTP Firms, the number of questions on each section existing rule of the self-regulatory PCX has developed examinations, and of the Series 4 study outline as follows: organization. PCX will announce the requires satisfaction of examinations Options Investment Strategies, implementation date in a Rule Adoption developed by other SROs, that are decreased from 35 to 34 questions; Notice to be published no later than 7 designed to establish that persons Supervision of Sales Activities and days after Notice of this filing. associated with PCX OTP Holders or Trading Practices, increased from 71 to At any time within 60 days of the OTP Firms have attained specified 75 questions; and Supervision of filing of the proposed rule change, the levels of competence and knowledge. Employees, Business Conduct, and Commission may summarily abrogate PCX periodically reviews the content of Recordkeeping and Reporting such rule change if it appears to the examinations to determine whether Requirements, decreased from 19 to 16 Commission that such action is revisions are necessary or appropriate in questions. PCX is further proposing necessary or appropriate in the public view of changes pertaining to the revisions to the study outline to reflect interest, for the protection of investors, subject matter covered by the the SEC short sale requirements. The or otherwise in furtherance of the examinations. revised examination continues to cover purposes of the Act.12 PCX Rule 9.18 states that no OTP the areas of knowledge required to Firm or OTP Holder shall be approved IV. Solicitation of Comments supervise options activities. to transact business with the public in Interested persons are invited to options contracts, unless those persons PCX is proposing these changes to the entire content of the Series 4 submit written data, views, and associated with the OTP Firm or OTP arguments concerning the foregoing, Holder who are designated as Options examination, including the selection specifications and question bank. The including whether the proposed rule Principals or who are designated as change, as amended, is consistent with Registered Representatives have been number of questions on the Series 4 examination will remain at 125, and the Act. Comments may be submitted by approved by and registered with the any of the following methods: Exchange. The Series 4 examination, an candidates will continue to have three industry-wide examination, qualifies an hours to complete the exam. Also, each Electronic Comments question will continue to count one individual to function as a Registered • Use the Commission’s Internet point, and each candidate must Options and Security Futures Principal, comment form (http://www.sec.gov/ correctly answer 70 percent of the but only for purposes of supervising an rules/sro.shtml); or OTP Holder’s or OTP Firm’s options questions to receive a passing grade. • Send an e-mail to rule- activities.7 The Series 4 examination 2. Statutory Basis [email protected]. Please include File tests a candidate’s knowledge of options Number SR–PCX–2005–112 on the trading generally, the industry rules PCX believes that the proposed subject line. applicable to trading of option contracts, revisions to the Series 4 examination Paper Comments and the rules of registered clearing program are consistent with Section 6(b) 8 agencies for options. The Series 4 of the Act, in general, and further the • Send paper comments in triplicate 9 examination covers, among other things, objectives of Section 6(b)(1) in to Jonathan G. Katz, Secretary, equity options, foreign currency particular, in that it is designed to Securities and Exchange Commission, options, index options, and options on enforce compliance by OTP Holders and 100 F Street, NE., Washington, DC government and mortgage-backed OTP Firms and persons associated with 20549–9303. securities. the rules of the Exchange. All submissions should refer to File The Series 4 examination program is B. Self-Regulatory Organization’s Number SR–PCX–2005–112. This file shared by PCX and the following SROs: Statement on Burden on Competition number should be included on the the American Stock Exchange LLC, the subject line if e-mail is used. To help the Chicago Board Options Exchange, Inc., PCX does not believe that the Commission process and review your the New York Stock Exchange, Inc., the proposed rule change, as amended, will comments more efficiently, please use National Association of Securities result in any burden on competition that only one method. The Commission will Dealers, Inc., and the Philadelphia Stock is not necessary or appropriate in post all comments on the Commission’s Exchange, Inc. furtherance of the purposes of the Act. 10 A committee of industry C. Self-Regulatory Organization’s 15 U.S.C. 78s(b)(3)(A)(i). 11 17 CFR 240.19b–4(f)(1). representatives, together with the staff Statement on Comments on the of the PCX and the other SROs, recently 12 The effective date of the original proposed rule Proposed Rule Change Received From is November 3, 2005. The effective date of Members, Participants or Others Amendment No. 1 is November 22, 2005. For 6 15 U.S.C. 78f(c)(3). purposes of calculating the 60-day period within 7 A Registered Options and Security Futures Written comments were neither which the Commission may summarily abrogate the Principal also must complete a firm-element solicited nor received. proposed rule change under Section 19(b)(3)(C) of continuing education program that addresses the Act, the Commission considers the period to security futures and a principal’s responsibilities commence on November 22, 2005, the date on for security futures before such person can 8 15 U.S.C. 78f(b). which PCX submitted Amendment No. 1. See 15 supervise security futures activities. 9 15 U.S.C. 78f(b)(1). U.S.C. 78s(b)(3)(C).
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00094 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74082 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
Internet Web site (http://www.sec.gov/ proposed rule change.3 The Commission .01 Without limiting the general rules/sro.shtml). Copies of the is publishing this notice to solicit provisions of Rule 760, such Rule submission, all subsequent comments on the proposed rule change, requires Registered Options Traders amendments, all written statements as amended, from interested persons. who receive electronically-delivered with respect to the proposed rule orders directed to them, Specialists [or] I. Self-Regulatory Organization’s change that are filed with the Statement of the Terms of Substance of and Specialist Units who request that Commission, and all written the Proposed Rule Change payments be made [funds, or who make communications relating to the payments] to order flow providers as proposed rule change between the The Phlx proposes to amend Phlx part of the Exchange’s payment for order Commission and any person, other than Rule 760, Maintenance, Retention and flow program, to make, keep current and those that may be withheld from the Furnishing of Books, Records and Other preserve all books and records relating public in accordance with the Information, to incorporate recent to payment for order flow arrangements, provisions of 5 U.S.C. 552, will be changes to the Exchange’s payment for including but not limited to all records available for inspection and copying in order flow program. pertaining to the identity of the order the Commission’s Public Reference The Exchange recently amended its flow providers, [and] the [origin, use, Room. Copies of such filing also will be payment for order flow program for transfer, distribution and] rates, and the available for inspection and copying at trades settling on or after October 1, 4 basis for the amounts they have directed the principal office of the PCX. All 2005 (‘‘October program’’). Registered the Exchange to pay to order flow comments received will be posted Options Traders who receive providers [of all payments] (whether on without change; the Commission does electronically-delivered orders directed a per contract or flat fee basis). [Such not edit personal identifying to them (‘‘Directed ROTs’’) may, records should be maintained in such a information from submissions. You pursuant to the October program, direct fashion as to permit the Exchange to the Exchange to make payments to order should submit only information that track payments to order flow providers flow providers on their behalf.5 Thus, you wish to make available publicly. All on an option by option basis.] Such the Exchange proposes to amend Phlx submissions should refer to File books and records shall be made Rule 760 to clarify that these Directed Number SR–PCX–2005–112 and should available as may be requested by the ROTs would now be required to retain be submitted on or before January 4, Exchange. 2006. records relating to payment for order flow arrangements.6 II. Self-Regulatory Organization’s For the Commission, by the Division of The text of Rule Phlx 760, as Market Regulation, pursuant to delegated Statement of the Purpose of, and authority.13 proposed to be amended, is set forth Statutory Basis for, the Proposed Rule below with new language in italics and Jonathan G. Katz, Change deletions in [brackets]. Secretary. In its filing with the Commission, the [FR Doc. E5–7330 Filed 12–13–05; 8:45 am] Rule 760 Exchange included statements concerning the purpose of and basis for BILLING CODE 8010–01–P Maintenance, Retention and Furnishing the proposed rule change and discussed of Books, Records and Other any comments it received on the Information SECURITIES AND EXCHANGE proposed rule change. The text of these COMMISSION Every member and member statements may be examined at the organization shall make, keep current places specified in Item IV below. The [Release No. 34–52903; File No. SR–Phlx– and preserve such books and records as 2005–67] Exchange has prepared summaries, set the Exchange may prescribe and as may forth in sections A, B, and C below, of Self-Regulatory Organizations; be prescribed by the Securities the most significant aspects of such Philadelphia Stock Exchange, Inc.; Exchange Act of 1934 and the rules and statements. Notice of Filing of Proposed Rule regulations thereunder. No member or member organization shall refuse to A. Self-Regulatory Organization’s Change and Amendment No. 1 Thereto Statement of the Purpose of, and Relating to the Maintenance, Retention make available to the Exchange such books, records or other information as Statutory Basis for, the Proposed Rule and Furnishing of Books, Records and Change Other Information Regarding Payment may be called for under the rules or as For Order Flow may be requested in connection with an 1. Purpose investigation by the Exchange. December 7, 2005. Supplementary Material: * * * The Exchange states that the purpose Pursuant to section 19(b)(1) of the of this proposal is to update Phlx Rule Securities Exchange Act of 1934 3 Amendment No. 1 provided clarifying language 760 to reflect recent changes to the (‘‘Act’’),1 and Rule 19b–4 thereunder,2 to Phlx Rule 760 and the purpose section of the Exchange’s payment for order flow notice is hereby given that on November filing. program, specifically including that 4 The October program is in effect as a pilot Directed ROTs must now retain records 3, 2005, the Philadelphia Stock program that is scheduled to expire on May 27, Exchange, Inc. (‘‘Phlx’’ or ‘‘Exchange’’) 2006. See Securities Exchange Act Release No. relating to payment for order flow filed with the Securities and Exchange 52568 (October 6, 2005), 70 FR 60120 (October 14, arrangements. The Exchange proposes Commission (‘‘Commission’’) the 2005) (SR–Phlx–2005–58). to amend the Supplementary Material to proposed rule change as described in 5 The Exchange represents that under previous Phlx Rule 760 because the Exchange’s payment for order flow programs, specialist units current payment for order flow program Items I, II, and III below, which Items requested reimbursement from the Exchange for have been prepared by the Exchange. monies they paid to order flow providers. Pursuant no longer tracks payments to order flow On November 22, 2005, the Phlx to the October program, the available payment for providers on an option by option basis. submitted Amendment No. 1 to the order flow funds would be disbursed by the In addition, the Exchange notes that Exchange according to the instructions of the specialists and specialist units no longer specialist units and Directed ROTs. 13 17 CFR 200.30–3(a)(12). 6 The Exchange represents that specialists/ need to maintain records relating to the 1 15 U.S.C. 78s(b)(1). specialist units are already specifically required to use, transfer, and distribution of 2 17 CFR 240.19b–4. maintain these books and records. payment for order flow funds because
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00095 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74083
they will now direct the Exchange to B. Institute proceedings to determine For the Commission, by the Division of make on their behalf those payment for whether the proposed rule change Market Regulation, pursuant to delegated 10 order flow payments to the order flow should be disapproved. authority. providers. The Exchange also proposes Jonathan G. Katz, to specifically request that books and IV. Solicitation of Comments Secretary. records regarding the rate (for example, Interested persons are invited to [FR Doc. E5–7299 Filed 12–13–05; 8:45 am] $0.25 per contract or a flat monthly rate) submit written data, views, and BILLING CODE 8010–01–P that is paid to order flow providers and arguments concerning the foregoing, the basis for the amount that Directed including whether the proposed rule ROTs, specialists, and specialist units SECURITIES AND EXCHANGE change, as amended, is consistent with direct the Exchange to pay to order flow COMMISSION providers be maintained. the Act. Comments may be submitted by any of the following methods: [Release No. 34–52916; File No. SR–Phlx– 2. Statutory Basis 2005–71] Electronic Comments The Exchange believes the proposal is Self-Regulatory Organizations; consistent with section 6(b) of the Act 7, • Use the Commission’s Internet Philadelphia Stock Exchange, Inc.; in general, and furthers the objectives of comment form (http://www.sec.gov/ Notice of Filing and Immediate section 6(b)(1) of the Act,8 in particular, rules/sro.shtml); or Effectiveness of Proposed Rule in that it assist the Exchange in • Send an e-mail to rule- Change and Amendment No. 1 Thereto determining and enforcing compliance [email protected]. Please include File Relating to Revisions to the Series 9/ with its rules assist the Exchange in Number SR–Phlx–2005–67 on the 10 Examination Program determining an enforcing compliance subject line. with its rules (i.e., the specific terms of December 7, 2005. the Exchange’s payment for order flow Paper Comments Pursuant to section 19(b)(1) of the program). By enabling the Exchange to Securities Exchange Act of 1934 • 1 2 verify that the payment for order flow Send paper comments in triplicate (‘‘Act’’), and Rule 19b–4 thereunder, program is being administered in to Jonathan G. Katz, Secretary, notice is hereby given that on November accordance with the terms thereof as Securities and Exchange Commission, 16, 2005, the Philadelphia Stock approved by the Exchange and set forth 100 F Street, NE., Washington, DC Exchange, Inc. (‘‘Phlx’’ or ‘‘Exchange’’) in its filing with the Commission, this 20549–9303. filed with the Securities and Exchange Commission (‘‘SEC’’ or ‘‘Commission’’) proposal also promotes just and All submissions should refer to File the proposed rule change as described equitable principles of trade consistent Number SR–Phlx–2005–67. This file 9 in Items I, II, and III below, which Items with section 6(b)(1) of the Act. number should be included on the have been prepared by the Phlx. On B. Self-Regulatory Organization’s subject line if e-mail is used. To help the November 29, 2005, Phlx filed Statement on Burden on Competition Commission process and review your Amendment No. 1 to the proposed rule comments more efficiently, please use The Exchange does not believe that change. Phlx has designated the only one method. The Commission will proposed rule change as constituting a the proposed rule change will impose post all comments on the Commission’s any burden on competition that is not stated policy, practice, or interpretation Internet Web site (http://www.sec.gov/ necessary or appropriate in furtherance with respect to the meaning, rules/sro.shtml). Copies of the of the purposes of the Act. administration, or enforcement of an submission, all subsequent existing rule of the self-regulatory C. Self-Regulatory Organization’s amendments, all written statements organization pursuant to section Statement on Comments on the with respect to the proposed rule 19(b)(3)(A)(i) of the Act 3 and Rule 19b– Proposed Rule Change Received From change that are filed with the 4(f)(1) thereunder,4 which renders the Members, Participants or Others Commission, and all written proposal effective upon filing with the No written comments were solicited communications relating to the Commission. The Commission is or received by the Exchange on this proposed rule change between the publishing this notice to solicit proposal. Commission and any person, other than comments on the proposed rule change, those that may be withheld from the as amended, from interested persons. III. Date of Effectiveness of the public in accordance with the I. Self-Regulatory Organization’s Proposed Rule Change and Timing for provisions of 5 U.S.C. 552, will be Commission Action Statement of the Terms of Substance of available for inspection and copying in the Proposed Rule Change Within 35 days of the date of the Commission’s Public Reference The Phlx proposes to file revisions to publication of this notice in the Federal Room. Copies of the filing also will be the study outline and selection Register or within such longer period (i) available for inspection and copying at specifications for the Limited as the Commission may designate up to the principal office of the Exchange. All Principal—General Securities 90 days of such date if it finds such comments received will be posted Supervisor (Series 9/10) examination longer period to be appropriate and without change; the Commission does (‘‘Series 9/10 Examination’’), which is publishes its reasons for so finding, or not edit personal identifying administered by the National (ii) as to which the Exchange consents, information from submissions. You Association of Securities Dealers, Inc. the Commission will: should submit only information that (‘‘NASD’’). The proposed revisions A. By order approve the proposed rule you wish to make available publicly. All change, or submissions should refer to File 10 17 CFR 200.30–3(a)(12). Number SR–Phlx–2005–67 and should 1 15 U.S.C. 78s(b)(1). 7 15 U.S.C. 78f(b). be submitted on or before January 4, 2 17 CFR 240.19b–4. 8 15 U.S.C. 78f(b)(1). 2006. 3 15 U.S.C. 78s(b)(3)(A)(i). 9 15 U.S.C. 78f(b)(1). 4 17 CFR 240.19b–4(f)(1).
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00096 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74084 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
update the material to reflect changes to Commission 7 and Phlx is proposing a As further discussed below, the the laws, rules, and regulations covered similar rule change to update the Exchange is filing the proposed rule by the Series 9/10 Examination, as well content of the examination to cover change for immediate effectiveness. The as modify the content of the Regulation S–P,8 MSRB Rules G–37/G– Exchange will announce the proposed examination program to track more 38, SRO research analyst and anti- revisions in a Notice to Members to be closely the functional workflow of a money laundering rules, municipal fund published prior to the implementation Series 9/10 limited principal. Phlx is securities (e.g., 529 college savings date. not proposing any textual changes to its plans), and exchange traded funds. Phlx 2. Statutory Basis rules. is further proposing revisions to the The revised Series 9/10 Examination study outline to reflect the The Exchange believes that its study outline is available on Phlx’s Web Commission’s short sale requirements. proposal is consistent with section 6(b) site (http://www.phlx.com), at the Phlx, In addition, as part of an ongoing effort of the Actl9 in general and furthers the and at the Commission.5 to align the examination more closely to objectives of section 6(c)(3),10 which the supervisory duties of a Series 9/10 However, The Exchange has omitted authorize Phlx to prescribe standards of limited principal, the proposal would training, experience and competence for the Series 9/10 Examination selection modify the content of the examination specifications from this filing and has members of the Exchange or persons to track the functional workflow of a associated with them. submitted the specifications under Series 9/10 limited principal, and separate cover to the Commission with would include questions related to B. Self-Regulatory Organization’s a request for confidential treatment parallel rules of NASD, the options Statement on Burden on Competition pursuant to Rule 24b–2 under the Act.6 exchanges, the MSRB, and the NYSE in The Phlx does not believe that the II. Self-Regulatory Organization’s the same section of the exam. proposed rule change, as amended, will Statement of the Purpose of, and As a result of the revisions, Phlx is impose any burden on competition not Statutory Basis for, the Proposed Rule proposing to modify the main section necessary or appropriate in furtherance Change headings and the number of questions on each section of the Series 9/10 study of the purposes of the Act. In its filing with the Commission, the outline as follows: Section 1—Hiring, C. Self-Regulatory Organization’s Phlx included statements concerning Qualifications, and Continuing Statement on Comments on the the purpose of and basis for the Education, 9 questions; section 2— Proposed Rule Change Received From proposed rule change and discussed any Supervision of Accounts and Sales Members, Participants or Others comments it received on the proposed Activities, 94 questions; section 3— rule change. The text of these statements Conduct of Associated Persons, 14 No written comments were either may be examined at the places specified questions; section 4—Recordkeeping solicited or received. in Item IV below. The Phlx has prepared Requirements, 8 questions; section 5— summaries, set forth in sections A, B, Municipal Securities Regulation, 20 III. Date of Effectiveness of the and C below, of the most significant questions; section 6—Options Proposed Rule Change and Timing for aspects of such statements. Regulation, 55 questions. Sections 1 Commission Action through 5 constitute the Series 10 The proposed rule change, as A. Self-Regulatory Organization’s portion of the examination. Section 6 Statement of the Purpose of, and amended, has become effective pursuant constitutes the Series 9 portion of the to section 19(b)(3)(A)(i) 11 of the Act and Statutory Basis for, the Proposed Rule examination. Series 10 covers general Rule 19b-4(f)(1) thereunder,12 in that the Change securities and municipal securities, and proposed rule change constitutes a Series 9 covers options. The revised 1. Purpose stated policy, practice, or interpretation examination continues to cover the with respect to the meaning, The Series 9/10 Examination tests a areas of knowledge required for the administration, or enforcement of an candidate’s knowledge of securities supervision of sales activities. industry rules and regulations and Phlx is proposing these changes to the existing rule. certain statutory provisions pertinent to entire content of the Series 9/10 At any time within 60 days of the the supervision of sales activities. The examination, including the selection filing of the proposed rule change, the Series 9/10 Examination is shared by specifications and question bank. The Commission may summarily abrogate Phlx and the following SROs: The number of questions on the Series 9/10 such rule change if it appears to the NASD, the American Stock Exchange examination will remain at 200, and Commission that such action is LLC , the Chicago Board Options candidates will continue to have four necessary or appropriate in the public Exchange, Inc., the Municipal Securities hours to complete the Series 10 portion interest, for the protection of investors, Rule Making Board (‘‘MSRB’’) , the New and one and one-half hours to complete or otherwise in furtherance of the York Stock Exchange, Inc. (‘‘NYSE’’), the Series 9 portion. Also, each question purposes of the Act.13 and the Pacific Exchange, Inc. will continue to count one point, and A committee of industry each candidate must correctly answer 9 15 U.S.C. 78f(b). representatives, together with the staff 70 percent of the questions on each 10 15 U.S.C. 78f(c)(3). 11 of NASD and the other SROs, recently series, 9 and 10, to receive a passing 15 U.S.C. 78s(b)(3)(A)(i). 12 17 CFR 240.19b–4(f)(1). undertook a periodic review of the grade. Phlx believes that the other SROs are filing similar proposals. 13 The effective date of the original proposed rule Series 9/10 examination program. As a is November 16, 2005. The effective date of result of this review, the NASD has filed Amendment No. 1 is November 29, 2005. For a rule change proposal with the 7 See Securities Exchange Act Release No. 52548 purposes of calculating the 60-day period within (September 30, 2005), 70 FR 59111 (October 11, which the Commission may summarily abrogate the 2005) (SR-NASD–2005–111). In the filing, the proposed rule change under section 19(b)(3)(C) of 5 The Series 9/10 Examination study outline is NASD proposes an implementation date of no later the Act, the Commission considers the period to also available on NASD’s Web site (http:// than November 30, 2005. commence on November 29, 2005, the date on www.nasd.com). 8 17 CFR 248.1–18; 17 CFR 248.30; and 17 CFR which Phlx submitted Amendment No. 1. See 15 6 17 CFR 240.24b–2. 248, Appendix A. U.S.C. 78s(b)(3)(C).
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00097 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74085
IV. Solicitation of Comments For the Commission, by the Division of the laws, rules, and regulations covered Market Regulation, pursuant to delegated by the Series 4 Examination, as well as 14 Interested persons are invited to authority. to modify the content of the submit written data, views, and Jonathan G. Katz, examination program to track more arguments concerning the foregoing, Secretary. closely the functional workflow of a including whether the proposed rule [FR Doc. E5–7306 Filed 12–13–05; 8:45 am] Series 4 limited principal. Phlx is not change, as amended, is consistent with BILLING CODE 8010–01–P proposing any textual changes to its the Act. Comments may be submitted by rules. any of the following methods: The revised Series 4 Examination study outline is available on Phlx’s Web Electronic Comments SECURITIES AND EXCHANGE COMMISSION site (http://www.phlx.com), at the Phlx, • Use the Commission’s Internet and at the Commission. However, the [Release No. 34–52919; File No. SR–Phlx– Exchange has omitted the Series 4 comment form (http://www.sec.gov/ 2005–66] rules/sro.shtml); or Examination selection specifications from this filing and has submitted the • Send an e-mail to rule- Self-Regulatory Organizations; Philadelphia Stock Exchange, Inc.; specifications under separate cover to [email protected]. Please include File Notice of Filing and Immediate the Commission with a request for Number SR-Phlx-2005–71 on the subject Effectiveness of Proposed Rule confidential treatment pursuant to Rule 5 line. Change and Amendment No. 1 Thereto 24b–2 under the Act. Paper Comments Relating to Revisions to the Series 4 II. Self-Regulatory Organization’s Examination Program Statement of the Purpose of, and • Send paper comments in triplicate December 7, 2005. Statutory Basis for, the Proposed Rule to Jonathan G. Katz, Secretary, Change Securities and Exchange Commission, Pursuant to Section 19(b)(1) of the In its filing with the Commission, 100 F Street, NE., Washington, DC Securities Exchange Act of 1934 1 2 Phlx included statements concerning 20549–9303. (‘‘Act’’), and Rule 19b–4 thereunder, notice is hereby given that on November the purpose of and basis for the All submissions should refer to File 9, 2005, the Philadelphia Stock proposed rule change and discussed any Number SR-Phlx-2005–71. This file Exchange, Inc. (‘‘Phlx’’ or ‘‘Exchange’’) comments it received on the proposed number should be included on the filed with the Securities and Exchange rule change. The text of these statements subject line if e-mail is used. To help the Commission (‘‘SEC’’ or ‘‘Commission’’) may be examined at the places specified Commission process and review your the proposed rule change as described in Item IV below. Phlx has prepared comments more efficiently, please use in Items I, II, and III below, which Items summaries, set forth in Sections A, B, only one method. The Commission will have been prepared by Phlx. On and C below, of the most significant post all comments on the Commission’s November 28, 2005, Phlx filed aspects of such statements. Internet Web site (http://www.sec.gov/ Amendment No. 1 to the proposed rule A. Self-Regulatory Organization’s rules/sro.shtml). Copies of the change. Phlx has designated the Statement of the Purpose of, and submission, all subsequent proposed rule change as constituting a Statutory Basis for, the Proposed Rule amendments, all written statements stated policy, practice, or interpretation Change with respect to the proposed rule with respect to the meaning, change that are filed with the administration, or enforcement of an 1. Purpose Commission, and all written existing rule of the self-regulatory Phlx Rule 1024 states that a member communications relating to the organization pursuant to Section organization shall not transact any 3 proposed rule change between the 19(b)(3)(A)(i) of the Act and Rule 19b– business with the public in option 4 Commission and any person, other than 4(f)(1) thereunder, which renders the contracts unless those persons engaged those that may be withheld from the proposal effective upon filing with the in the management of the member Commission. The Commission is public in accordance with the organization’s business pertaining to publishing this notice to solicit provisions of 5 U.S.C. 552, will be option contracts are registered with and comments on the proposed rule change, approved by the Exchange as Options available for inspection and copying in as amended, from interested persons. the Commission’s Public Reference Principals. Additionally, the rule states that no individual member shall Room. Copies of such filing also will be I. Self-Regulatory Organization’s transact any business directly with the available for inspection and copying at Statement of the Terms of Substance of public in option contracts unless he is the principal office of the Phlx. the Proposed Rule Change registered with and approved by the All comments received will be posted Phlx is filing revisions to the study Exchange as an Options Principal. The without change; the Commission does outline and selection specifications for Series 4 examination, an industry-wide not edit personal identifying the Limited Principal—Registered examination, qualifies an individual to information from submissions. You Options (Series 4) examination program function as a Registered Options and should submit only information that (‘‘Series 4 Examination’’), which is Security Futures Principal, but only for you wish to make available publicly. All administered by the National purposes of supervising a member firm’s Association of Securities Dealers, Inc. submissions should refer to File options activities.6 (‘‘NASD’’). The proposed revisions Number SR-Phlx-2005–71 and should The Series 4 Examination tests a update the material to reflect changes to be submitted on or before January 4, candidate’s knowledge of options
2006. 14 17 CFR 200.30–3(a)(12). 5 17 CFR 240.24b–2. 1 15 U.S.C. 78s(b)(1). 6 A Registered Options and Security Futures 2 17 CFR 240.19b–4. Principal must complete an additional continuing 3 15 U.S.C. 78s(b)(3)(A)(i). education program before such person can 4 17 CFR 240.19b–4(f)(1). supervise security futures activities.
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00098 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74086 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
trading generally, the Phlx rules As further discussed below, the IV. Solicitation of Comments applicable to the trading of option Exchange is filing the proposed rule contracts, and the rules of registered change for immediate effectiveness. The Interested persons are invited to clearing agencies for options. The Series Exchange will announce the proposed submit written data, views, and 4 Examination covers, among other revisions in a Notice to Members to be arguments concerning the foregoing, things, equity options, foreign currency published prior to the implementation including whether the proposed rule options, index options, and options on date. change, as amended, is consistent with government and mortgage-backed the Act. Comments may be submitted by securities. 2. Statutory Basis any of the following methods: The Series 4 Examination is shared by The Exchange believes that its Electronic Comments Phlx and the following SROs: the proposal is consistent with Section 6(b) NASD, the American Stock Exchange of the Act 8 in general and furthers the • Use the Commission’s Internet LLC, the Chicago Board Options objectives of Section 6(c)(3),9 which comment form (http://www.sec.gov/ Exchange, Inc., the New York Stock authorize Phlx to prescribe standards of Exchange, Inc., and the Pacific rules/sro.shtml); or training, experience and competence for Exchange, Inc. NASD has filed with the • Send an e-mail to rule- members of the Exchange or persons Commission similar revisions to the [email protected]. Please include File associated with them. study outline and selection Number SR-Phlx-2005–66 on the subject specifications for the Series 4 B. Self-Regulatory Organization’s line. Examination.7 Phlx believes that the Statement on Burden on Competition other SROs are filing similar proposals. Paper Comments The Phlx does not believe that the A committee of industry • Send paper comments in triplicate representatives, together with the staff proposed rule change, as amended, will to Jonathan G. Katz, Secretary, of Phlx and the other SROs, recently impose any burden on competition not Securities and Exchange Commission, undertook a periodic review of the necessary or appropriate in furtherance Series 4 Examination and study outline of the purposes of the Act. 100 F Street, NE., Washington, DC 20549–9303. and selection specifications. As a result C. Self-Regulatory Organization’s of this review and as part of an ongoing Statement on Comments on the All submissions should refer to File effort to align the Series 4 Examination Proposed Rule Change Received From Number SR-Phlx-2005–66. This file more closely to the supervisory duties of Members, Participants or Others number should be included on the a Series 4 principal, Phlx is proposing subject line if e-mail is used. To help the to modify the content of the Series 4 No written comments were either Commission process and review your Examination to track the functional solicited or received. comments more efficiently, please use workflow of a Series 4 principal. More only one method. The Commission will specifically, Phlx is proposing to revise III. Date of Effectiveness of the post all comments on the Commission’s the main section headings and the Proposed Rule Change and Timing for number of questions on each section of Commission Action Internet Web site (http://www.sec.gov/ the Series 4 study outline as follows: rules/sro.shtml). Copies of the The proposed rule change, as Options Investment Strategies, submission, all subsequent amended, has become effective pursuant decreased from 35 to 34 questions; amendments, all written statements to Section 19(b)(3)(A)(i) 10 of the Act and Supervision of Sales Activities and with respect to the proposed rule Rule 19b–4(f)(1) thereunder,11 in that Trading Practices, increased from 71 to change that are filed with the the proposed rule change constitutes a 75 questions; and Supervision of Commission, and all written stated policy, practice, or interpretation Employees, Business Conduct, and communications relating to the Recordkeeping and Reporting with respect to the meaning, proposed rule change between the administration, or enforcement of an Requirements, decreased from 19 to 16 Commission and any person, other than existing rule of the Exchange. questions. Phlx is further proposing those that may be withheld from the revisions to the study outline to reflect At any time within 60 days of the public in accordance with the the SEC short sale requirements. The filing of the proposed rule change, the provisions of 5 U.S.C. 552, will be revised examination continues to cover Commission may summarily abrogate available for inspection and copying in the areas of knowledge required to such rule change if it appears to the the Commission’s Public Reference supervise options activities. Commission that such action is Room. Copies of such filing also will be Phlx is proposing similar changes to necessary or appropriate in the public available for inspection and copying at the corresponding sections of the Series interest, for the protection of investors, the principal office of the Phlx. All 4 Examination selection specifications or otherwise in furtherance of the comments received will be posted and question bank. The number of purposes of the Act.12 questions on the Series 4 Examination without change; the Commission does not edit personal identifying will remain at 125, and candidates will 8 15 U.S.C. 78f(b). have three hours to complete the exam. 9 15 U.S.C. 78f(c)(3). information from submissions. You Also, each question will continue to 10 15 U.S.C. 78s(b)(3)(A)(i). should submit only information that count as one point and candidates must 11 17 CFR 240.19b–4(f)(1). you wish to make available publicly. All correctly answer 70 percent of the 12 The effective date of the original proposed rule submissions should refer to File is November 9, 2005. The effective date of Number SR-Phlx-2005–66 and should questions to receive a passing grade. Amendment No. 1 is November 28, 2005. For purposes of calculating the 60-day period within be submitted on or before January 4, 7 See Securities Exchange Act Release Nos. 51216 which the Commission may summarily abrogate the 2006. (February 16, 2005), 70 FR 8866 (February 23, 2005) proposed rule change under Section 19(b)(3)(C) of (SR–NASD–2005–25) and 52546 (September 30, the Act, the Commission considers the period to 2005), 70 FR 59109 (October 11, 2005) (SR–NASD– commence on November 28, 2005, the date on 2005–109) (extending the implementation date of which Phlx submitted Amendment No. 1. See 15 the revisions to no later than November 30, 2005). U.S.C. 78s(b)(3)(C).
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00099 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74087
For the Commission, by the Division of Dated: December 9, 2005. Instructions: You must include the Market Regulation, pursuant to delegated C. Miller Crouch, agency name and docket number [OST– authority.13 Principal Deputy Assistant Secretary for 2001–8696] or the Regulatory Educational and Cultural Affairs, Department Identification Number (RIN) for this Jonathan G. Katz, of State. notice at the beginning of your Secretary. [FR Doc. 05–24065 Filed 12–12–05; 1:01 pm] comment. Note that all comments [FR Doc. E5–7326 Filed 12–13–05; 8:45 am] BILLING CODE 4710–08–P received will be posted without change BILLING CODE 8010–01–P to http://dms.dot.gov, including any personal information provided. DEPARTMENT OF TRANSPORTATION Privacy Act: Anyone is able to search the electronic form of all comments DEPARTMENT OF STATE Office of the Secretary received into any of our dockets by the name of the individual submitting the [Docket No. OST–2001–8696] [Public Notice 5246] comment (or signing the comment, if Policy Guidance Concerning submitted on behalf of an association, Culturally Significant Objects Imported Recipients’ Responsibilities to Limited business, labor union, etc.). You may for Exhibition Determinations: English Proficient (LEP) Persons review the DOT’s complete Privacy Act ‘‘Rubens and His Age: Masterpieces Statement in the Federal Register From the Hermitage’’ AGENCY: Office of the Secretary (OST), published on April 11, 2000 (Volume U.S. Department of Transportation 65, Number 70; Pages 19477–78) or you AGENCY: Department of State (DOT). may visit http://dms.dot.gov. ACTION: Notice of guidance with request Docket: You may view the public ACTION: Notice. for comments. docket through the Internet at http:// dms.dot.gov or in person at the Docket SUMMARY: Notice is hereby given of the SUMMARY: The United States Department Management System office at the above following determinations: Pursuant to of Transportation (DOT) is publishing address. the authority vested in me by the Act of guidance concerning services and FOR FURTHER INFORMATION CONTACT: October 19, 1965 (79 Stat. 985; 22 U.S.C. policies by recipients of Federal Joseph Austin, Chief, External Policy 2459), Executive Order 12047 of March financial assistance from the and Program Development Division, 27, 1978, the Foreign Affairs Reform and Department of Transportation related to Departmental Office of Civil Rights, Restructuring Act of 1998 (112 Stat. persons with limited English Telephone: (202) 366–5992, TTY: (202) 2681, et seq.; 22 U.S.C. 6501 note, et proficiency. The guidance is based on 366–9696, E-mail: seq.), Delegation of Authority No. 234 of the prohibition against national origin [email protected]; or Bonnie October 1, 1999, Delegation of Authority discrimination in Title VI of the Civil Angermann, Attorney-Advisor, Office of No. 236 of October 19, 1999, as Rights Act of 1964, as it affects limited General Law, Office of the General amended, and Delegation of Authority English proficient persons. Counsel, Telephone: (202) 366–9166, E- No. 257 of April 15, 2003 [68 FR 19875], DATES: This guidance is effective mail: [email protected]. I hereby determine that the objects to be immediately. Comments must be Arrangements to receive the policy included in the exhibition ‘‘Rubens and received on or before January 13, 2006. guidance in an alternative format may His Age: Masterpieces from the Late-filed comments will be considered be made by contacting the named Hermitage’’, imported from abroad for to the extent practicable. DOT will individuals. temporary exhibition within the United review all comments and will determine SUPPLEMENTARY INFORMATION: Title VI of States, are of cultural significance. The what modifications to the guidance, if the Civil Rights Act of 1964, 42 U.S.C. objects are imported pursuant to loan any, are necessary. This guidance 2000d, et seq., and its implementing supplants existing guidance on the same agreements with the foreign owners. I regulations provide that no person shall subject originally published at 66 FR also determine that the exhibition or be subjected to discrimination on the 6733 (January 22, 2001). display of the exhibit objects at the basis of race, color, or national origin Guggenheim-Hermitage Museum, Las ADDRESSES: You may submit comments, under any program or activity that Vegas, Nevada, from on or about January identified by the docket number [OST– receives Federal financial assistance. 2001–8696], by any of the following 30, 2006, until on or about August 30, The purpose of this limited English methods: 2006, and at possible additional venues proficiency policy guidance is to clarify • Web Site: http://dms.dot.gov. the responsibilities of recipients of yet to be determined, is in the national Follow the instructions for submitting Federal financial assistance from the interest. Public Notice of these comments on the DOT electronic docket U.S. Department of Transportation Determinations is ordered to be site. (DOT) (‘‘recipients’’), and assist them in published in the Federal Register. • Fax: (202) 493–2251. fulfilling their responsibilities to limited • FOR FURTHER INFORMATION CONTACT: For Mail: Docket Management System; English proficient (LEP) persons, further information, including a list of U.S. Department of Transportation, 400 pursuant to Title VI of the Civil Rights the exhibit objects, contact Richard Seventh Street, SW., Nassif Building, Act of 1964 and implementing Lahne, Attorney-Adviser, Office of the Room PL–401, Washington, DC 20590– regulations. 0001. Executive Order 13166, ‘‘Improving Legal Adviser, U.S. Department of State • (telephone: 202/453–8058). The address Hand Delivery: To the Docket Access to Services for Persons With is U.S. Department of State, SA–44, 301 Management System; Room PL–401 on Limited English Proficiency,’’ reprinted the plaza level of the Nassif Building, at 65 FR 50121 (August 16, 2000), 4th Street, SW. Room 700, Washington, 400 Seventh Street, SW., Washington, directs each Federal agency that is DC 20547–0001. DC, between 9 a.m. and 5 p.m., Monday subject to the requirements of Title VI through Friday, except Federal to publish guidance for its respective 13 17 CFR 200.30–3(a)(12). Holidays. recipients clarifying that obligation.
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00100 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74088 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
Executive Order 13166 further directs excessive and unnecessary. While none beyond that which exists in those laws. that all such guidance documents be urged that costs be excluded from Thus, the LEP Guidance does not consistent with the compliance consideration altogether, at least one increase the risk of recipients’ legal standards and framework detailed in the comment expressed concern that a liability to private plaintiffs. However, Department of Justice’s (DOJ’s) Policy recipient could use cost as a basis for the Department does not dismiss the Guidance entitled ‘‘Enforcement of Title avoiding otherwise reasonable and possibility that individuals may VI of the Civil Rights Act of 1964— necessary language assistance to LEP continue to initiate such legal actions. National Origin Discrimination Against persons. In contrast, a few comments The third most numerous category of Persons With Limited English suggested that the flexible fact- comments DOT received regarded the Proficiency.’’ See 65 FR 50123 (August dependent compliance standard set definition of ‘‘qualified interpreter’’ and 16, 2000) (DOJ’s General LEP Guidance). forth in the guidance, when combined expressed commentators’ concern with DOT published its initial guidance with the desire of most recipients to recipients’ responsibility to make regarding its recipients’ obligations to avoid the risk of noncompliance, could interpreters available, especially for take reasonable steps to ensure access lead some large recipients to incur recipients who serve populations with by LEP persons on January 22, 2001, unnecessary or inappropriate fiscal extremely diverse language needs. Set and requested public comment on the burdens in the face of already strained forth below in section VI are practices guidance. See 66 FR 6733. DOT received program budgets. The Department is to help recipients ascertain that their 21 comments in response to its January mindful that cost considerations could interpreters are both competent and 22, 2001, policy guidance. The be inappropriately used to avoid effective. This section should enable comments reflected the views of providing otherwise reasonable and recipients to assess the qualifications of individuals, organizations serving LEP necessary language assistance. the interpreters they use and identify populations, organizations favoring the Similarly, cost considerations could be any improvements that need to be use of the English language, and ignored or minimized to justify the addressed. recipient agencies. While many provision of a particular level or type of Three of the comments urged comments identified areas for language service even though effective withdrawal of the guidance, arguing it is improvement and/or revision, the alternatives exist at a minimal cost. The unsupported by law. In response, the majority of the comments on the DOT Department also is aware of the Department notes that its commitment LEP Guidance expressed agreement possibility that satisfying the need for to implementing Title VI and its with its overall goal of ensuring access language services might be quite costly regulations to address language barriers of LEP individuals to recipients’ for certain types of recipients, is longstanding and is unaffected by services. DOT worked closely with DOJ particularly if they have not updated recent judicial action precluding to ensure that recipients’ comments their programs and activities to the individuals from successfully were addressed in a consistent fashion. changing needs of the populations they maintaining suits to enforce agencies’ In the order most often raised, the serve. Title VI disparate impact regulations. common areas of comment regarded: The potential for some recipients to This guidance clarifies existing statutory cost considerations, especially for assert adverse cost impacts in order to and regulatory provisions by describing smaller recipients serving few LEP avoid Title VI obligations does not, in the factors recipients should consider in persons; increased litigation risk and the Department’s view, justify fulfilling their responsibilities to LEP liability for recipients as a result of the eliminating cost as a factor in all cases persons. guidance; and use of interpreters and when determining the necessary scope The remaining 18 comments were the definition of ‘‘qualified interpreter.’’ of reasonable language assistance generally supportive of the guidance A large number of comments focused services under DOT’s guidance. The and DOT’s leadership in this area. One on cost considerations and suggested Department continues to believe that recipient commented that constraining that the Department address them as costs are a legitimate consideration in LEP persons’ access to services may part of its evaluation of the language identifying the reasonableness of actually hinder their ability to become assistance needs of LEP persons. particular language assistance measures, more proficient in the English language, Particularly, this concern was expressed and the DOJ Recipient LEP Guidance therefore justifying increased programs by state agencies that at the time identifies the appropriate framework for LEP persons. Several comments received Coast Guard grants to through which costs are to be received addressed areas unique to the administer safe boating courses.1 But considered. See Department of Justice provision of transportation services to this policy guidance does not require Final Guidance to Federal Financial LEP persons. One recipient discussed DOT recipients to translate all courses Assistance Recipients Regarding Title VI the inconsistency between the Federal or materials in every circumstance or to Prohibition Against National Origin Motor Carrier Safety Administration’s take unreasonable or burdensome steps Discrimination Affecting Limited (FMCSA’s) regulations requiring all in providing LEP persons access. We English Proficient Persons, 67 FR 41455 drivers to speak and understand a have clarified the guidance to better (June 18, 2002). certain amount of English, and the convey its flexibility, based on the four- The second most common category of guidance’s requirement that the FMCSA factor analysis set forth in DOJ’s General comments DOT received expressed division offices provide information and LEP Guidance. concern over increased litigation risk services in other languages to Several recipients commented that and liability for recipients as a result of accommodate LEP persons. Pursuant to they serve few if any LEP persons and the LEP Guidance. As is addressed 49 CFR 391.11(b)(2), a person is that the cost of interpreting all of their below in the Introduction, Alexander v. qualified to drive a motor vehicle if he courses and materials would be Sandoval, 532 U.S. 275 (2001), holds or she ‘‘[c]an read and speak the English principally that there is no private right language sufficiently to converse with 1 This guidance does not address the extent to of action to enforce Title VI disparate the general public, to understand which Executive Order 13166 requires language impact regulations. The LEP Guidance highway traffic signs and signals in the access services in the provision of boating safety courses funded by the Coast Guard, because that is based on Title VI and DOT’s Title VI English language, to respond to official agency is no longer a component of the Department regulations at 49 CFR part 21 and does inquiries, and to make entries on reports of Transportation. not provide any private right of action and records.’’ In 1997, following an
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00101 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74089
American Civil Liberties Union (ACLU) Because this guidance must adhere to funds an array of services that can be legal challenge to this requirement, DOT the Federal-wide compliance standards made meaningfully accessible to issued an advance notice of proposed and framework detailed in the model otherwise eligible LEP persons. The rulemaking (ANPRM) to address this DOJ Recipient Guidance issued on June Federal Government is committed to issue. On July 24, 2003, FMCSA 18, 2002, DOT specifically solicits improving the accessibility of these withdrew this ANPRM, concluding that comments on the nature, scope, and programs and activities to eligible LEP the information introduced in response appropriateness of the DOT-specific persons, a goal that reinforces its to the notice ‘‘does not establish that the examples set out in this guidance equally important commitment to current regulation requires an explaining and/or highlighting how promoting programs and activities unnecessarily high level of English those consistent Federal-wide designed to help individuals learn fluency that has resulted in a compliance standards are applicable to English. Recipients of Federal financial discriminatory impact or effect based recipients of Federal financial assistance assistance have an obligation to reduce upon national origin, color, or from DOT. This guidance supplants the language barriers that can preclude ethnicity.’’ FMCSA determined the existing guidance on the same subject meaningful access by LEP persons to regulation ‘‘as written and properly published at 66 FR 6733 (January 22, important government services.3 enforced effectively balances issues of 2001). This guidance does not constitute In certain circumstances, failure to civil rights and highway safety.’’ 68 FR a regulation subject to the rulemaking ensure that LEP persons can effectively 43890. requirements of the Administrative participate in or benefit from federally Another recipient, who works with Procedure Act, 5 U.S.C. 553. assisted programs and activities may community-based organizations Dated: December 7, 2005. violate the prohibition under Title VI of concerned with transportation practices the Civil Rights Act of 1964, 42 U.S.C. J. Michael Trujillo, and policies, suggested mandatory LEP 2000d, and Title VI regulations against Access Assessments be attached to the Director, Departmental Office of Civil Rights. national origin discrimination. The standard financial assistance Assurance Guidance to Federal Financial purpose of this policy guidance is to Forms that recipients must execute, to Assistance Recipients Regarding Title assist recipients in fulfilling their serve as a basis for disqualifying VI Prohibition Against National Origin responsibilities to provide meaningful recipients submitting inaccurate or Discrimination Affecting Limited access to LEP persons under existing substantially incomplete assessments English Proficient Persons law. This guidance clarifies existing from Federal grant funding. While I. Introduction legal requirements for LEP persons by providing LEP persons with meaningful describing the factors recipients should access is the law and should be given Most individuals living in the United consider in fulfilling their high priority, DOT advocates a flexible States read, write, speak, and responsibilities to LEP persons.4 These approach in ensuring such access, as understand English. There are many are the same criteria DOT will use in outlined below in section V, in order to individuals, however, for whom English evaluating whether recipients are suit the varying needs of its recipients, is not their primary language. For complying with Title VI and Title VI and therefore has not adopted this instance, based on the 2000 census, regulations. suggestion. As discussed in section VIII, regarding individuals older than age 5, Executive Order 13166 charges DOJ DOT seeks to promote voluntary over 26 million individuals speak with the responsibility for providing compliance to meet Title VI’s goal of Spanish and almost 7 million LEP Guidance to other Federal agencies, ensuring that Federal funds are not used individuals speak an Asian or Pacific such as DOT, and for ensuring in a manner that discriminates on the Island language at home. If these consistency among each agency-specific basis of race, color, or national origin. individuals have a limited ability to guidance. Consistency among Federal DOT will work with recipients to meet read, write, speak, or understand Government agencies is particularly this goal, and will resort to more English, they are limited English important. Inconsistent or contradictory intrusive administrative remedies only proficient, or ‘‘LEP.’’ guidance could confuse recipients of if voluntary compliance cannot be In a 2001 Supplementary Survey by Federal funds and needlessly increase 2 secured and stronger measures become the U.S. Census Bureau, 33% of costs without facilitating the meaningful necessary to ensure LEP persons have Spanish speakers and 22.4% of all access for LEP persons that this policy meaningful access to services from Asian and Pacific Island language guidance is designed to address. As recipients of DOT financial assistance. speakers aged 18–64 reported that they with most government initiatives, this This document has been modified spoke English either ‘‘not well’’ or ‘‘not requires balancing several principles. based on careful consideration of public at all.’’ comments received by DOT, and the Language for LEP individuals can be 3 DOT recognizes that many recipients had approach DOJ adopted after analyzing a barrier to accessing important benefits language assistance programs in place prior to the or services, understanding and issuance of Executive Order 13166. This policy the public comments it received guidance provides a uniform framework for a following its initial guidance published exercising important rights, complying recipient to integrate, formalize, and assess the at 66 FR 3834 (January 16, 2001). This with applicable responsibilities, or continued vitality of these existing and possibly guidance is consistent with: Title VI, understanding other information additional reasonable efforts based on the nature of provided by federally funded programs its programs and activities, the current needs of the implementing regulations, Executive LEP populations it encounters, and its prior Order 13166, the DOJ General LEP and activities. The Federal Government experience in providing language services in the Guidance, and the model DOJ Recipient community it serves. Guidance issued on June 18, 2002. 2 PO35. Age by Language Spoken at Home by 4 This policy guidance is not a regulation but With particular emphasis on the Ability to Speak English for the Population 5 Years rather a guide. Title VI and its implementing and Over. Cens. Summ. File 3, 2001 Supp. Survey regulations require that recipients take responsible concerns mentioned above, the Summ. Tables (SF 3) (based on 12 monthly samples steps to ensure meaningful access by LEP persons. Department proposes this ‘‘Limited during 2001) Washington: U.S. Dep’t of Comm., Recipients should use the guidance to determine English Proficiency Guidance for Bur. of the Census. Viewed 14 September 2004, how best to comply with statutory and regulatory Department of Transportation available at: http://factfinder.census.gov/servlet/ obligations to provide meaningful access to the DTTable?_bm=y&-geo_id=D&-ds_name=D&- benefits, services, information, and other important Recipients.’’ The text of this guidance _lang=en&-redoLog=false&- portions of their programs and activities for document appears below. mt_name=DSS_2001_EST_G2000_P035. individuals who are LEP.
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00102 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74090 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
While this guidance discusses that activities. We have taken the position access to LEP persons and thus comply balance in some detail, it is important that this is not the case, and will with Title VI regulations forbidding to note the basic principles behind that continue to do so. Accordingly, we will recipients from ‘‘restrict[ing] an balance. First, we must ensure that strive to ensure that federally assisted individual in any way in the enjoyment federally assisted programs and programs and activities work in a way of any advantage or privilege enjoyed by activities aimed at the American public that is effective for all eligible others receiving any service, financial do not leave individuals behind simply beneficiaries, including those with aid, or other benefit under the program’’ because they face challenges limited English proficiency. or from ‘‘utiliz[ing] criteria or methods of administration which have the effect communicating in English. This is of II. Legal Authority particular importance because, in many of subjecting individuals to cases, LEP individuals form a Section 601 of Title VI of the Civil discrimination because of their race, substantial portion of those who Rights Act of 1964, 42 U.S.C. 2000d, color, or national origin, or have the particularly benefit from federally provides that no person shall ‘‘on the effect of defeating or substantially assisted programs and activities. ground of race, color, or national origin, impairing accomplishment of the Second, we must achieve this goal while be excluded from participation in, be objectives of the program as respects finding constructive methods to reduce denied the benefits of, or be subjected individuals of a particular race, color, or the costs of LEP requirements on small to discrimination under any program or national origin.’’ businesses, small local governments, or activity receiving Federal financial On that same day, DOJ issued a small nonprofit organizations that assistance.’’ Section 602 authorizes and general guidance document addressed receive Federal financial assistance. directs Federal agencies that are to ‘‘Executive Agency Civil Rights There are many productive steps that empowered to extend Federal financial Officers’’ setting forth general principles the Federal Government, either assistance to any program or activity ‘‘to for agencies to apply in developing collectively or as individual agencies, effectuate the provisions of [section 601] guidance documents for recipients can take to help recipients reduce the * * * by issuing rules, regulations, or pursuant to the Executive Order. costs of language services without orders of general applicability.’’ 42 ‘‘Enforcement of Title VI of the Civil sacrificing meaningful access for LEP U.S.C. 2000d–1. Rights Act of 1964—National Origin Department of Justice regulations persons. Without these steps, certain Discrimination Against Persons With promulgated pursuant to section 602 smaller recipients may choose not to Limited English Proficiency,’’ 65 FR forbid recipients from ‘‘utiliz[ing] participate in federally assisted 50123 (August 16, 2000) (DOJ’s General criteria or methods of administration programs or activities, threatening the LEP Guidance). which have the effect of subjecting Subsequently, Federal agencies raised critical functions that the programs or individuals to discrimination because of activities strive to assist. To that end, questions regarding the requirements of their race, color, or national origin, or the Executive Order, especially in light DOT plans to continue to work with have the effect of defeating or DOJ and other Federal agencies to of the Supreme Court’s decision in substantially impairing accomplishment Alexander v. Sandoval, 532 U.S. 275 provide ongoing assistance and of the objectives of the program as guidance in this important area. In (2001). On October 26, 2001, the respects individuals of a particular race, Assistant Attorney General for Civil addition, DOT plans to work with color, or national origin.’’ 28 CFR recipients of Federal financial Rights issued a memorandum for 42.104(b)(2). DOT’s Title VI regulations ‘‘Heads of Departments and Agencies, assistance—for example, with motor include almost identical language in vehicle departments, transit authorities, General Counsels and Civil Rights this regard. See 49 CFR 21.5(b)(vii)(2) Directors.’’ This memorandum clarified state departments of transportation, and (portions of these regulations are other transportation service providers— and reaffirmed the DOJ LEP Guidance in provided in Appendix A). light of Sandoval. The Assistant and LEP persons, to identify and share The Supreme Court, in Lau v. Nichols, model plans, examples of best practices, Attorney General stated that because 414 U.S. 563 (1974), interpreted Sandoval did not invalidate any Title VI and cost-saving approaches. Moreover, regulations promulgated by the former DOT intends to explore how language regulations that proscribe conduct that Department of Health, Education, and has a disparate impact on covered assistance measures and cost- Welfare, including a regulation similar containment approaches developed groups—the types of regulations that to that of DOJ, 45 CFR 80.3(b)(2), to hold form the legal basis for the part of with respect to its own federally that Title VI prohibits conduct that has conducted programs and activities can Executive Order 13166 that applies to a disproportionate effect on LEP persons federally assisted programs and be effectively shared or otherwise made because such conduct constitutes available to recipients, particularly activities—the Executive Order remains national origin discrimination. In Lau, a in force.5 small businesses, small local San Francisco school district that had a governments, and small nonprofit significant number of non-English- 5 The memorandum noted that some organizations. An interagency working speaking students of Chinese origin was commentators have interpreted Sandoval as group on LEP has developed a Web site, required to take reasonable steps to impliedly striking down the disparate impact http://www.lep.gov, to assist in provide them with a meaningful regulations promulgated under Title VI that form disseminating this information to the basis for the part of Executive Order 13166 that opportunity to participate in federally applies to federally assisted programs and activities. recipients, Federal agencies, and the funded educational programs. See, e.g., Sandoval, 532 U.S. at 286, 286 n.6 (‘‘[W]e communities being served. On August 11, 2000, Executive Order assume for purposes of this decision that section Many commentators have noted that 13166 was issued. ‘‘Improving Access to 602 confers the authority to promulgate disparate- impact regulations; * * * We cannot help some have interpreted the case of Services for Persons With Limited observing, however, how strange it is to say that Alexander v. Sandoval, 532 U.S. 275 English Proficiency,’’ 65 FR 50121 disparate-impact regulations are ‘inspired by, at the (2001), as impliedly striking down the (August 16, 2000). Under that order, service of, and inseparably intertwined with’ Sec. regulations promulgated under Title VI every Federal agency that provides 601 * * * when Sec. 601 permits the very behavior that the regulations forbid’’). The memorandum, that form the basis for the part of financial assistance to non-Federal however, made clear that DOJ disagreed with the Executive Order 13166 that applies to entities must publish guidance on how commentators’ interpretation. Sandoval holds federally assisted programs and its recipients can provide meaningful principally that there is no private right of action
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00103 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74091
Pursuant to Executive Order 13166, rehabilitate a particular highway on the proportion of LEP persons eligible to be DOT developed its own guidance National Highway System. All of the served or likely to be encountered by a document for recipients and initially operations of the entire state department program, activity, or service of the issued it on January 22, 2001. ‘‘DOT of transportation—not just the particular recipient or grantee; (2) the frequency Guidance to Recipients on Special highway program—are covered by the with which LEP individuals come in Language Services to Limited English DOT guidance. contact with the program; (3) the nature Proficient (LEP) Beneficiaries.’’ Finally, some recipients operate in and importance of the program, activity, However, in light of the public jurisdictions in which English has been or service provided by the recipient to comments received and the Assistant declared the official language. people’s lives; and (4) the resources Attorney General’s October 26, 2001, Nonetheless, these recipients continue available to the recipient and costs. As clarifying memorandum, DOT has to be subject to Federal indicated above, the intent of this policy revised its LEP guidance to ensure nondiscrimination requirements, guidance is to suggest a balance that greater consistency with DOJ’s revised including those applicable to the ensures meaningful access by LEP LEP guidance, published June 18, 2002, provision of federally assisted services persons to critical services while not and other agencies’ revised LEP to persons with limited English imposing undue burdens on small guidance. 67 FR 117 (June 18, 2002). proficiency. businesses, small local governments, or small nonprofit organizations. III. Who Is Covered? IV. Who Is a Limited English Proficient After applying the above four-factor Pursuant to Executive Order 13166, Individual? analysis to the various kinds of contacts the meaningful access requirement of Individuals who do not speak English a recipient has with the public, the Title VI, the Title VI regulations, and the as their primary language and who have recipient may conclude that different four-factor analysis set forth in the DOJ’s a limited ability to read, write, speak, or language assistance measures are revised LEP Guidance, 67 FR 117 (June understand English can be limited sufficient to ensure meaningful access to 18, 2002), apply to the programs and English proficient, or ‘‘LEP,’’ and, the different types of programs or activities of Federal agencies, including therefore, are entitled to language activities in which it engages. For DOT. Federal financial assistance assistance under Title VI of the Civil instance, some of a recipient’s activities includes grants, cooperative agreements, Rights Act of 1964 with respect to a will have a greater impact on or contact training, use of equipment, donations of particular type of service, benefit, or with LEP persons than others, and thus surplus property, and other assistance. encounter. However, if a Federal agency may require more in the way of Recipients of DOT assistance include, were to decide to terminate Federal language assistance. The flexibility that for example: funds based on noncompliance with recipients have in addressing the needs • State departments of transportation. Title VI or its regulations, only funds of the LEP populations they serve does • State motor vehicle administrations. directed to the particular program or not diminish, and should not be used to • Airport operators. activity that is out of compliance would minimize, the obligation that those • State highway safety programs. be terminated. 42 U.S.C. 2000d–1. needs be addressed. DOT recipients • Metropolitan planning Examples of populations likely to should apply the following four factors organizations. include LEP persons who are served or to the various kinds of contacts that they • Regional transportation agencies. encountered by DOT recipients and have with the public to assess language • Regional, state, and local transit should be considered when planning needs and decide what reasonable steps operators. language services include, but are not they should take to ensure meaningful • Public safety agencies.6 limited to: access for LEP persons. • Hazardous materials transporters • Public transportation passengers. • (1) The Number or Proportion of LEP and other first responders. Persons who apply for a driver’s Persons Served or Encountered in the • State and local agencies with license at a state department of motor Eligible Service Population emergency transportation vehicles. • The greater the number or proportion responsibilities, for example, the Persons subject to the control of of LEP persons from a particular transportation of supplies for natural state or local transportation enforcement language group served or encountered disasters, planning for evacuations, authorities, including, for example, in the eligible service population, the quarantines, and other similar action. commercial motor vehicle drivers. • more likely language services are Subrecipients likewise are covered Persons served by emergency needed. Ordinarily, persons ‘‘eligible to when Federal funds are passed through transportation response programs. • be served, or likely to be directly from one recipient to a subrecipient. Persons living in areas affected or affected, by’’ a recipient’s programs or Coverage extends to a recipient’s potentially affected by transportation activities are those who are in fact, entire program or activity, i.e., to all projects. • Business owners who apply to served or encountered in the eligible parts of a recipient’s operations. This is service population. This population will true even if only one part of the participate in DOT’s Disadvantaged Business Enterprise program. be program-specific, and includes recipient receives the Federal persons who are in the geographic area assistance. V. How Does a Recipient Determine the that is part of the recipient’s service Example: DOT provides assistance to Extent of Its Obligation to Provide LEP area. However, where, for instance, a a state department of transportation to Services? motor vehicle office serves a large LEP Recipients are required to take population, the appropriate service area to enforce Title VI disparate impact regulations. It did not address the validity of those regulations or reasonable steps to ensure meaningful is that served by the office, and not the Executive Order 13166 or otherwise limit the access to their programs and activities entire population served by the authority and responsibility of Federal agencies to by LEP persons. While designed to be a department. Where no service area has enforce their own Title VI regulations. flexible and fact-dependent standard, previously been approved, the relevant 6 Recipients should review DOJ’s LEP Guidance for specific examples of how the four-factor analysis the starting point is an individualized service area may be that which is applies to interactions between funded law assessment that balances the following approved by state or local authorities or enforcement authorities and first responders. four factors: (1) The number or designated by the recipient itself,
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00104 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74092 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
provided that these designations do not individual seeks services under the • Telephonic and video conferencing themselves discriminatorily exclude program in question. This plan need not interpretation services. certain populations. When considering be intricate. It may be as simple as being • Translating vital documents posted the number or proportion of LEP prepared to use a commercial on Web sites. individuals in a service area, recipients telephonic interpretation service to • Pooling resources and standardizing should consider LEP parent(s) whose obtain immediate interpreter services. documents to reduce translation needs. English proficient or LEP minor Additionally, in applying this standard, • Using qualified translators and children and dependents encounter the recipients should consider whether interpreters to ensure that documents services of DOT recipients. appropriate outreach to LEP persons need not be ‘‘fixed’’ later and that Recipients should first examine their could increase the frequency of contact inaccurate interpretations do not cause prior experiences with LEP individuals with LEP language groups. delay or other costs. and determine the breadth and scope of • Centralizing interpreter and (3) The Nature and Importance of the language services that are needed. In translator services to achieve economies Program, Activity, or Service Provided conducting this analysis, it is important of scale.8 by the Program to: Include language minority • Formalized use of qualified populations that are eligible The more important the activity, community volunteers. beneficiaries of recipients’ programs, information, service, or program, or the Large entities and those entities activities, or services but may be greater the possible consequences of the serving a significant number or underserved because of existing contact to the LEP individuals, the more proportion of LEP persons should language barriers; and consult likely language services are needed. The ensure that their resource limitations are additional data, for example, from the obligations to communicate rights to an well substantiated before using this census, school systems and community LEP person who needs public factor as a reason to limit language organizations, and data from state and transportation differ, for example, from assistance. Such recipients may find it local governments, community agencies, those to provide recreational useful to be able to articulate, through school systems, religious organizations, programming. A recipient needs to documentation or in some other and legal aid entities.7 determine whether denial or delay of reasonable manner, their process for access to services or information could determining that language services (2) The Frequency With Which LEP have serious or even life-threatening would be limited based on resources or Individuals Come in Contact With the implications for the LEP individual. costs. Program, Activity, or Service Decisions by a Federal, state, or local This four-factor analysis necessarily Recipients should assess, as entity to make an activity compulsory, implicates the ‘‘mix’’ of LEP services accurately as possible, the frequency such as requiring a driver to have a required. Recipients have two main with which they have or should have license, can serve as strong evidence of ways to provide language services: Oral contact with LEP individuals from the importance of the program or interpretation either in person or via different language groups seeking activity. telephone interpretation service assistance, as the more frequent the (hereinafter ‘‘interpretation’’) and contact, the more likely enhanced (4) The Resources Available to the written translation (hereinafter language services will be needed. The Recipient and Costs ‘‘translation’’). Oral interpretation can steps that are reasonable for a recipient A recipient’s level of resources and range from on-site interpreters for that serves an LEP person on a one-time the costs imposed may have an impact critical services provided to a high basis will be very different than those on the nature of the steps it should take volume of LEP persons to access expected from a recipient that serves in providing meaningful access for LEP through commercially available LEP persons daily. Recipients should persons. Smaller recipients with more telephonic interpretation services. also consider the frequency of different limited budgets are not expected to Written translation, likewise, can range types of language contacts, as frequent provide the same level of language from translation of an entire document contacts with Spanish-speaking people services as larger recipients with larger to translation of a short description of who are LEP may require certain budgets. In addition, ‘‘reasonable steps’’ the document. In some cases, language assistance in Spanish, while less may cease to be reasonable where the services should be made available on an frequent contact with different language costs imposed substantially exceed the expedited basis while in others the LEP groups may suggest a different and/or benefits. Recipients should carefully individual may be referred to another less intensified solution. If an LEP explore the most cost-effective means of office of the recipient for language individual accesses a program or service delivering competent and accurate assistance. on a daily basis, a recipient has greater language services before limiting The correct mix should be based on duties than if the same individual’s services due to resource concerns. what is both necessary and reasonable program or activity contact is Resource and cost issues, however, in light of the four-factor analysis. For unpredictable or infrequent. However, can often be reduced by technological instance, a motor vehicle department or even recipients that serve LEP persons advances, reasonable business practices, an emergency hazardous material clean- on an unpredictable or infrequent basis and the sharing of language assistance up team in a largely Hispanic should use this balancing analysis to materials and services among and neighborhood may need immediate oral determine what to do if an LEP between recipients, advocacy groups, interpreters available and should give affected populations, and Federal serious consideration to hiring bilingual 7 The focus of the analysis is on lack of English agencies. For example, the following staff (of course, many such departments proficiency, not the ability to speak more than one have already made these arrangements). language. Note that demographic data may indicate practices may reduce resource and cost the most frequently spoken languages other than issues where appropriate: Additionally, providing public English and the percentage of people who speak • Training bilingual staff to act as that language but speak or understand English less interpreters and translators. 8 Small recipients with limited resources may than well. People who are also proficient in English • find that entering into a bulk telephonic may speak some of the most commonly spoken Information sharing through interpretation service contract will prove cost languages other than English. industry groups. effective.
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00105 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74093
transportation access to LEP persons is (e.g., consecutive, simultaneous, Hiring Bilingual Staff. When crucial. An LEP person’s inability to summarization, or sight translation). particular languages are encountered utilize effectively public transportation • Have knowledge in both languages often, hiring bilingual staff offers one of may adversely affect his or her ability to of any specialized terms or concepts the best, and often most economical, obtain health care, or education, or peculiar to the recipient’s program or options. Recipients can, for example, fill access to employment. In contrast, there activity and of any particularized public contact positions, such as transit may be circumstances where the vocabulary and phraseology used by the station managers, department of motor importance and nature of the activity LEP person;9 and understand and follow vehicle service representatives, security and number or proportion and confidentiality and impartiality rules to guards, or program directors, with staff frequency of contact with LEP persons the same extent as the recipient that are bilingual and competent to may be low and the costs and resources employee for whom they are communicate directly with LEP persons needed to provide language services interpreting and/or to the extent their in their language. If bilingual staff may be high—such as in the case of a position requires. members are also used to interpret voluntary general public tour of an • Understand and adhere to their role between English speakers and LEP airport or train station—in which pre- as interpreters without deviating into a persons, or to orally interpret written arranged language services for the role as counselor, legal advisor, or other documents from English into another particular service may not be necessary. roles. language, they should be competent in Regardless of the type of language Additionally, some recipients may the skill of interpreting, as discussed services provided, quality and accuracy have their own requirements for above. Effective management strategies, of those services can be critical. interpreters, as individual rights may including any appropriate adjustments Recipients have substantial flexibility in depend on precise, complete, and in assignments and protocols for using determining the appropriate mix. accurate interpretations or translations. bilingual staff, can ensure that bilingual In some cases, interpreters may be staff members are fully and VI. Selecting Language Assistance appropriately utilized. When bilingual Services required to demonstrate that their involvement in a matter would not staff cannot meet all of the language Recipients may provide language create a conflict of interest. service obligations of the recipient, the services in either oral or written form. While quality and accuracy of recipient should turn to other options. Quality and accuracy of the language language services are critical, they are Hiring Staff Interpreters. Hiring service is critical in order to avoid nonetheless part of the appropriate mix interpreters may be most helpful where potential serious consequences to the of LEP services required. The quality there is a frequent need for interpreting LEP person and to the recipient. and accuracy of language services as services in one or more languages. Depending on the facts, sometimes it A. Oral Language Services part of disaster relief programs, or in the may be necessary and reasonable to (Interpretation) provision of emergency supplies and services, for example, must be provide on-site interpreters to facilitate Interpretation is the act of listening to extraordinarily high, while the quality accurate and meaningful something in one language (source and accuracy of language services in a communication with an LEP person. language) and orally translating it into bicycle safety course need not meet the Contracting for Interpreters. Contract another language (target language). same exacting standards. interpreters may be a cost-effective Where interpretation is needed and is Finally, when interpretation is needed option when there is no regular need for reasonable, recipients should consider and is reasonable, it should be provided a particular language skill. In addition some or all of the options below for in a timely manner in order to be to commercial and other private providing competent interpreters in a effective. Generally, to be ‘‘timely,’’ the providers, many community-based timely manner. recipient should provide language organizations and mutual assistance Competence of Interpreters. When assistance at a time and place that associations provide interpretation providing oral assistance, recipients avoids the effective denial of the services for particular languages. should ensure competency of the service, benefit, or right at issue or the Contracting with interpreters and language service provider, no matter providing training regarding the imposition of an undue burden on or which of the strategies outlined below recipient’s programs and processes to delay in important rights, benefits, or are used. Competency requires more these organizations can be a cost- services to the LEP person. For example, than self-identification as bilingual. effective option for providing language when the timeliness of services is Some bilingual staff and community services to LEP persons from those important, such as when an LEP person volunteers, for instance, may be able to language groups. needs access to public transportation, a communicate effectively in a different Using Telephone Interpreter Lines. DOT recipient does not provide language when communicating Telephone interpreter service lines often meaningful LEP access when it has only information directly in that language, offer prompt interpreting assistance in one bilingual staff member available one but not be competent to interpret into many different languages. They may be day a week to provide the service. and out of English. Likewise, they may particularly appropriate where the mode not be able to do written translations. of communicating with an English 9 Many languages have ‘‘regionalisms,’’ or Competency to interpret, however, differences in usage. For instance, a word that may proficient person would also be over the does not necessarily mean formal be understood to mean something in Spanish for phone. Although telephonic certification as an interpreter, although someone from Cuba may not be so understood by interpretation services are useful in certification is helpful. When using someone from Mexico. In addition, because there many situations, it is important to may be languages that do not have an appropriate interpreters, recipients should ensure direct interpretation of certain legal terms, the ensure that, when using such services, that they: interpreter should be able to provide the most the interpreters are competent to • Demonstrate proficiency in and appropriate interpretation. The interpreter should interpret any technical or legal terms ability to communicate information make the recipient aware of the issue and the specific to a particular program that may interpreter and recipient can then work to develop accurately in both English and in the a consistent and appropriate set of descriptions of be important parts of the conversation. other language and identify and employ these terms in that language that can be used again, Nuances in language and non-verbal the appropriate mode of interpreting when appropriate. communication can often assist an
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00106 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74094 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
interpreter and cannot be recognized appropriate in light of the circumstances recipient should consider whether a over the phone. The issues discussed and subject matter of the program, record of that choice and of the above regarding interpreter competency service or activity, including protection recipient’s offer of assistance is are also relevant to telephonic of the recipient’s own administrative, appropriate. Where precise, complete, interpreters. Video teleconferencing and mission-related, or enforcement interest and accurate interpretations or allowing interpreters to review relevant in accurate interpretation. In many translations of information and/or documents in advance may also be circumstances, family members testimony are critical, or where the helpful. (especially children) or friends are not competency of the LEP person’s Using Community Volunteers. In competent to provide quality and interpreter is not established, a recipient addition to consideration of bilingual accurate interpretations. Issues of might decide to provide its own, staff, staff interpreters, or contract confidentiality, privacy, or conflict of independent interpreter, even if an LEP interpreters (either in-person or by interest may also arise. LEP individuals person wants to use his or her own telephone) as options to ensure may feel uncomfortable revealing or interpreter as well. Extra caution should meaningful access by LEP persons, use describing sensitive or confidential be exercised when the LEP person of recipient-coordinated community information to a family member, friend, chooses to use a minor as the volunteers may provide a cost-effective or member of the local community. In interpreter. While the LEP person’s supplemental language assistance addition, such informal interpreters may decision should be respected, there may strategy under appropriate have a personal connection to the LEP be additional issues of competency, circumstances. They may be particularly person or an undisclosed conflict of confidentiality, or conflict of interest useful in providing language access for interest, such as the desire to obtain an when the choice involves using children a recipient’s less critical programs and LEP person’s personal identification as interpreters. The recipient should activities. To the extent the recipient information, for example, in the case of take care to ensure that the LEP person’s relies on community volunteers, it is an LEP person attempting to apply for choice is voluntary, that the LEP person often best to use volunteers who are a driver’s license. Thus, DOT recipients is aware of the possible problems if the trained in the information or services of should generally offer free interpreter preferred interpreter is a minor child, the program and can communicate services to the LEP person. This is and that the LEP person knows that a directly with LEP persons in their particularly true in situations in which competent interpreter could be provided language. Just as with all interpreters, health, safety, or access to important by the recipient at no cost. community volunteers used to interpret benefits and services are at stake, or between English speakers and LEP when credibility and accuracy are B. Written Language Services persons, or to orally translate important to protect an individual’s (Translation) documents, should be competent in the rights and access to important services. Translation is the replacement of a skill of interpreting and knowledgeable An example of such a case is when no written text from one language (source about applicable confidentiality and interpreters, or bilingual or symbolic language) into an equivalent written text impartiality rules. Recipients should signs are available in a state department in another language (target language). consider formal arrangements with of motor vehicles. In an effort to apply What Documents Should be community-based organizations that for a driver’s license, vehicle Translated? After applying the four- provide volunteers to address these registration, or parking permit, an LEP factor analysis, a recipient may concerns and help ensure that services person may be forced to enlist the help determine that an effective LEP plan for are available more regularly. of a stranger for translation. This its particular program or activity Use of Family Members, Friends, practice may raise serious issues of includes the translation of vital written Other Customers/Passengers as competency or confidentiality and may materials into the language of each Interpreters. Although recipients should compromise the personal security of the frequently encountered LEP group not plan to rely on an LEP person’s LEP person, as the stranger could have eligible to be served and/or likely to be family members, friends, or other access to the LEP person’s personal affected by the recipient’s program. informal interpreters to provide identification information, such as his Such written materials could include, meaningful access to important or her name, phone number, address, for example: programs and activities, where LEP social security number, driver’s license • Driver’s license, automobile persons so desire, they should be number (if different from the social registration, and parking permit forms. permitted to use an interpreter of their security number), and medical • Parking tickets, citation forms, and choice at their own expense (whether a information. However, there are violation or deficiency notices, or professional interpreter, family member, situations where proper application of pertinent portions thereof. or friend) in place of or as a supplement the four factors would lead to a • Emergency transportation to the free language services expressly conclusion that recipient-provided information. offered by the recipient. LEP persons services are not necessary. An example • Markings, signs, and packaging for may feel more comfortable when a of this is a voluntary educational tour of hazardous materials and substances. trusted family member or friend acts as an airport, or a train or bus station. • Signs in bus and train stations, and an interpreter. In addition, in exigent There, the importance and nature of the in airports. circumstances that are not reasonably activity may be relatively low and • Notices of public hearings regarding foreseeable, temporary use of unlikely to implicate issues of recipients’ proposed transportation interpreters not provided by the confidentiality, conflict of interest, or plans, projects, or changes, and recipient may be necessary. However, the need for accuracy. In addition, the reduction, denial, or termination of with proper planning and resources needed and costs of providing services or benefits. implementation, recipients should be language services may be high. In such • Signs in waiting rooms, reception able to avoid most such situations. a setting, an LEP person’s use of family, areas, and other initial points of entry. Recipients, however, should take friends, or others to interpret may be • Notices advising LEP persons of special care to ensure that family appropriate. free language assistance and language members, legal guardians, caretakers, If the LEP person voluntarily chooses identification cards for staff (i.e., ‘‘I and other informal interpreters are to provide his or her own interpreter, a speak’’ cards).
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00107 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74095
• Statements about the services sent out to the general public and not mean there is noncompliance. available and the right to free language cannot reasonably be translated into Rather these paragraphs merely provide assistance services in appropriate non- many languages. Thus, vital information a guide for recipients that would like English languages, in brochures, may include, for instance, providing greater certainty of compliance than can booklets, outreach and recruitment information in appropriate languages be provided by a fact-intensive, four- information, and other materials regarding where an LEP person might factor analysis. For example, even if a routinely disseminated to the public. obtain an interpretation or translation of safe harbor is not used, if written • Written tests that do not assess the document. translation of a certain document(s) English-language competency, but test Into What Languages Should would be so burdensome as to defeat the competency for a particular license, job, Documents be Translated? The extent of legitimate objectives of its program, it is or skill for which knowing English is the recipient’s obligation to provide not necessary. Other ways of providing not required. written translations of documents meaningful access, such as effective oral • Applications, or instructions on should be determined by the recipient interpretation of certain vital how to participate in a recipient’s on a case-by-case basis, looking at the documents, might be acceptable under program or activity or to receive totality of the circumstances in light of such circumstances. recipient benefits or services. the four-factor analysis. Because Safe Harbor. The following actions • Consent forms. translation is a one-time expense, will be considered strong evidence of Whether or not a document (or the consideration should be given to compliance with the recipient’s written- information it solicits) is ‘‘vital’’ may whether the upfront cost of translating translation obligations: depend upon the importance of the a document (as opposed to oral (a) The DOT recipient provides program, information, encounter, or interpretation) should be amortized over written translations of vital documents service involved, and the consequence the likely lifespan of the document for each eligible LEP language group to the LEP person if the information in when applying this four-factor analysis. that constitutes 5% or 1,000, whichever question is not accurate or timely. For The languages spoken by the LEP is less, of the population of persons instance, applications for bicycle safety individuals with whom the recipient eligible to be served or likely to be courses should not generally be has frequent contact determine the affected or encountered. Translation of considered vital, whereas access to safe languages into which vital documents other documents, if needed, can be driving handbooks could be considered should be translated. However, because provided orally; or vital. Where appropriate, recipients are many DOT recipients serve (b) If there are fewer than 50 persons encouraged to create a plan for communities in large cities or across an in a language group that reaches the 5% consistently determining, over time and entire state and regularly serve areas trigger in (a), the recipient does not across their various activities, what with LEP populations that speak dozens translate vital written materials but documents are ‘‘vital’’ to the meaningful and sometimes more than 100 provides written notice in the primary access of the LEP populations they languages, it would be unrealistic to language of the LEP language group of serve. translate all written materials into each the right to receive competent oral Classifying a document as vital or language. Although recent technological interpretation of those written materials, non-vital is sometimes difficult, advances have made it easier for free of cost. especially in the case of outreach recipients to store and share translated These safe harbor provisions apply to materials like brochures or other documents, such an undertaking would the translation of written documents information on rights and services. incur substantial costs and require only. They do not affect the requirement Awareness of rights or services is an substantial resources. However, well- to provide meaningful access to LEP important part of ‘‘meaningful access,’’ substantiated claims of lack of resources individuals through competent oral as lack of awareness may effectively to translate all such documents into interpreters where oral language deny LEP individuals meaningful dozens or more than 100 languages do services are needed and are reasonable. access. Thus, where a recipient is not necessarily relieve the recipient of Competence of Translators. As with engaged in community outreach efforts the obligation to translate vital oral interpreters, translators of written in furtherance of its programs and documents into at least several of the documents should be competent. Many activities, it should regularly assess the more frequently encountered languages. of the same considerations apply. needs of the populations frequently The recipient should then set However, the skill of translating is very encountered or affected by the program benchmarks for continued translations different from the skill of interpreting, or activity to determine whether certain into the remaining languages over time. and a person who is a competent critical outreach materials should be Safe Harbor. Many recipients would interpreter may or may not be translated. Community organizations like to ensure with greater certainty that competent to translate, and vice versa. may be helpful in determining what they comply with their obligations to Particularly where vital documents outreach materials may be most helpful provide written translations in are being translated, competence can to translate, and some such translations languages other than English. often be achieved by use of certified may be made more effective when done Paragraphs (a) and (b) below outline the translators. Certification or accreditation in tandem with other outreach methods, circumstances that can provide a ‘‘safe may not always be possible or including utilizing the ethnic media, harbor’’ for recipients regarding the necessary.10 Competence can often be schools, and religious and community requirements for translation of written ensured by having a second, organizations to spread a message. materials. A ‘‘safe harbor’’ means that if independent translator check the work Sometimes a very large document a recipient provides written translations of the primary translator. Alternatively, may include both vital and non-vital under these circumstances, such action one translator can translate the information. This may also be the case will be considered strong evidence of document, and a second, independent when the title and a phone number for compliance with the recipient’s written- obtaining more information on the translation obligations under Title VI. 10 For those languages in which no formal accreditation exists, a particular level of contents of the document in frequently The failure to provide written membership in a professional translation encountered languages other than translations under the circumstances association can provide some indicator of English is critical, but the document is outlined in paragraphs (a) and (b) does professional competence.
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00108 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74096 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
translator could translate it back into implementation plan to address the addition to helping employees identify English to check that the appropriate identified needs of the LEP populations the language of LEP persons they meaning has been conveyed. This is it serves. Although recipients have encounter, this process will help in called ‘‘back translation.’’ considerable flexibility in developing future applications of the first two Translators should understand the such a plan, maintaining a periodically factors of the four-factor analysis. In expected reading level of the audience updated written plan on language addition, posting notices in commonly and, where appropriate, have assistance for LEP persons (‘‘LEP plan’’) encountered languages notifying LEP fundamental knowledge about the target for use by recipient employees serving persons of language assistance will language group’s vocabulary and the public would be an appropriate and encourage them to self-identify. cost-effective means of documenting phraseology. Sometimes direct (2) Language Assistance Measures translation of materials results in a compliance and providing a framework translation that is written at a much for the provision of timely and An effective LEP plan would likely more difficult level than the English- reasonable language assistance. Such include information about the ways in language version or has no relevant written plans may also provide which language assistance will be equivalent meaning.11 Community additional benefits to a recipient’s provided. For instance, recipients may organizations may be able to help managers in the areas of training, want to include information on at least administration, planning, and the following: consider whether a document is written • at an appropriate level for the audience. budgeting. Thus, recipients may choose Types of language services Likewise, consistency in the words and to document the language assistance available. • How recipient staff can obtain those phrases used to translate terms of art, services in their plan, and how staff and services. legal, or other technical or LEP persons can access those services. • Certain DOT recipients, such as those How to respond to LEP callers. programmatic terms helps avoid • How to respond to written serving very few LEP persons or those confusion by LEP individuals and may communications from LEP persons. with very limited resources, may choose reduce costs. Creating or using already • How to respond to LEP individuals not to develop a written LEP plan. created glossaries of commonly used who have in-person contact with However, the absence of a written LEP terms may be useful for LEP persons recipient staff. and translators and cost effective for the plan does not obviate the underlying • How to ensure competency of recipient. Providing translators with obligation to ensure meaningful access interpreters and translation services. examples of previous accurate by LEP persons to a recipient’s program translations of similar material by other or activities. In that event, a recipient (3) Training Staff recipients or Federal agencies may also should consider alternative ways to Staff members should know their be helpful. reasonably articulate a plan for obligations to provide meaningful While quality and accuracy of providing meaningful access. Early access to information and services for translation services are critical, they are input from entities such as schools, LEP persons, and all employees in nonetheless part of the appropriate mix religious organizations, community public contact positions should be of LEP services required. For instance, groups, and groups working with new properly trained. An effective LEP plan documents that are simple and have no immigrants can be helpful in forming would likely include training to ensure important consequences for LEP persons this planning process. The following that: who rely on them may be translated by five steps may be helpful in designing • Staff knows about LEP policies and translators who are less skilled than an LEP plan and are typically part of procedures. • important documents with legal or other effective implementation plans. Staff having contact with the public information upon which reliance has (1) Identifying LEP Individuals Who (or those in a recipient’s custody) is important consequences (including, e.g., Need Language Assistance trained to work effectively with in- person and telephone interpreters. driver’s license written exams and There should be an assessment of the documents regarding important benefits Recipients may want to include this number or proportion of LEP training as part of the orientation for or services, or health, safety, or legal individuals eligible to be served or information). The permanent nature of new employees. Recipients have encountered and the frequency of flexibility in deciding the manner in written translations, however, imposes encounters pursuant to the first two which the training is provided, and the additional responsibility on the factors in the four-factor analysis. more frequent the contact with LEP recipient to ensure that the quality and One way to determine the language of persons, the greater the need will be for accuracy permit meaningful access by communication is to use language in-depth training. However, LEP persons. identification cards (or ‘‘I speak cards’’), management staff, even if they do not VII. Elements of an Effective which invite LEP persons to identify interact regularly with LEP persons, Implementation Plan on Language their language needs to staff. Such should be fully aware of and understand Assistance for LEP Persons cards, for instance, might say, ‘‘I speak the plan so they can reinforce its Spanish’’ in both Spanish and English, After completing the four-factor importance and ensure its or ‘‘I speak Vietnamese’’ in both English implementation by staff. analysis and deciding what language and Vietnamese. To reduce costs of assistance services are appropriate, a compliance, the Federal Government (4) Providing Notice to LEP Persons recipient should develop an has made a set of these cards available Once an agency has decided, based on on the Internet. The Census Bureau’s ‘‘I the four factors, that it will provide 11 For instance, although there may be languages that do not have a direct translation of some legal, speak card’’ can be found and language services, it is important that technical, or program-related terms, the translator downloaded at http://www.usdoj.gov/ the recipient notify LEP persons of should be able to provide an appropriate crt/cor/13166.htm. services available free of charge. translation. The translator should likely also make When records are normally kept of Recipients should provide this notice in the recipient aware of this. Recipients can then work with translators to develop a consistent and past interactions with members of the languages LEP persons would appropriate set of descriptions of those terms in that public, the language of the LEP person understand. Examples of notification language that can be used again, when appropriate. can be included as part of the record. In that recipients should consider include:
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00109 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74097
• Posting signs in intake areas and where demographics, services, and laws of the United States. In engaging in other entry points. This is important so needs are more static. One good way to voluntary compliance efforts, DOT that LEP persons can learn how to evaluate the LEP plan is to seek proposes reasonable timetables for access those language services at initial feedback from the community. achieving compliance and consults with points of contact. This is particularly In their reviews, recipients may want and assists recipients in exploring cost- true in areas with high volumes of LEP to consider assessing changes in: effective ways of coming into persons seeking access to certain • Current LEP populations in the compliance. In determining a recipient’s transportation safety information, or service area or population affected or compliance with the Title VI other services and activities run by DOT encountered. regulations, DOT’s primary concern is to recipients.12 • Frequency of encounters with LEP ensure that the recipient’s policies and • Stating in outreach documents that language groups. procedures provide meaningful access language services are available from the • Nature and importance of activities for LEP persons to the recipient’s agency. Announcements could be in, for to LEP persons. programs, activities, and services. instance, brochures, booklets, and in • Availability of resources, including While all recipients must work outreach and recruitment information. technological advances and sources of toward building systems that will These statements should be translated additional resources, and the costs ensure access for LEP individuals, DOT into the most common languages and imposed. acknowledges that the implementation could be ‘‘tagged’’ onto the front of • Whether existing assistance is of a comprehensive system to serve LEP common documents. meeting the needs of LEP persons. individuals is a process and that a • Working with community-based • Whether staff knows and system will evolve over time as it is organizations and other stakeholders to understands the LEP plan and how to implemented and periodically inform LEP individuals of the implement it. reevaluated. As recipients take • recipients’ services, including the Whether identified sources for reasonable steps to provide meaningful availability of language assistance assistance are still available and viable. access to federally assisted programs services. In addition to these five elements, and activities for LEP persons, DOT will • Using an automated telephone effective plans set clear goals, look favorably on intermediate steps voice mail attendant or menu system. management accountability, and recipients take that are consistent with The system could be in the most opportunities for community input and this guidance, and that, as part of a common languages encountered. It planning throughout the process. broader implementation plan or should provide information about VIII. Voluntary Compliance Effort schedule, move their service delivery available language assistance services system toward providing full access to and how to get them. The goal for Title VI and Title VI LEP persons. This does not excuse • Including notices in local regulatory enforcement is to achieve noncompliance but instead recognizes newspapers in languages other than voluntary compliance. DOT enforces that full compliance in all areas of a English. Title VI as it applies to recipients’ recipient’s activities and for all potential • Providing notices on non-English- responsibilities to LEP persons through language minority groups may language radio and television stations the procedures provided for in DOT’s reasonably require a series of about the available language assistance Title VI regulations (49 CFR part 21, implementing actions over a period of services and how to get them. portions of which are provided in time. However, in developing any • Providing presentations and/or Appendix A). phased implementation schedule, DOT notices at schools and religious The Title VI regulations provide that recipients should ensure that the organizations. DOT will investigate whenever it provision of appropriate assistance for receives a complaint, report, or other significant LEP populations or with (5) Monitoring and Updating the LEP information that alleges or indicates Plan respect to activities having a significant possible noncompliance with Title VI or impact on the health, safety, legal rights, Recipients should, where appropriate, its regulations. If the investigation or livelihood of beneficiaries is have a process for determining, on an results in a finding of compliance, DOT addressed first. Recipients are ongoing basis, whether new documents, will inform the recipient in writing of encouraged to document their efforts to programs, services, and activities need this determination, including the basis provide LEP persons with meaningful to be made accessible for LEP for the determination. DOT uses access to federally assisted programs individuals, and they may want to voluntary mediation to resolve most and activities. provide notice of any changes in complaints. However, if a case is fully services to the LEP public and to investigated and results in a finding of IX. Promising Practices employees. noncompliance, DOT must inform the The following examples are provided In addition, recipients should recipient of the noncompliance through as illustrations of the responses of some consider whether changes in a Letter of Findings that sets out the recipients to the need to provide demographics, types of services, or areas of noncompliance and the steps services to LEP persons, and are meant other needs require annual reevaluation that must be taken to correct the to be interesting and useful examples of of their LEP plan. Less frequent noncompliance. It must attempt to ways in which LEP recipients can reevaluation may be more appropriate secure voluntary compliance through provide language services. Recipients informal means. If the matter cannot be are responsible for ensuring meaningful 12 For instance, signs in intake offices could state resolved informally, DOT must secure access to all portions of their program or that free language assistance is available. The signs should be translated into the most common compliance through the termination of activity, not just the portions to which languages encountered and should explain how to Federal assistance after the DOT DOT assistance is targeted. So long as get the necessary language assistance. The Social recipient has been given an opportunity the language services are accurate, Security Administration has made such signs for an administrative hearing and/or by timely, and appropriate in the manner available at http://www.ssa.gov/multilanguage/ langlist1.htm. DOT recipients could, for example, referring the matter to DOJ with a outlined in this guidance, the types of modify these signs for use in programs, activities, recommendation that appropriate promising practices summarized below and services. proceedings be brought to enforce the can assist recipients in moving toward
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00110 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74098 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
meeting the meaningful access Safety Hotline, which has four the appropriateness of such an approach requirements of Title VI and the Title VI representatives who speak Spanish and to meet their individual service regulations. These examples do not, are available during normal hotline provision needs. however, constitute an endorsement by business hours (Mon.–Fri., 8 a.m.–10 • DOT’s National Highway Traffic DOT, which will evaluate recipients’ p.m. eastern time).13 Safety Administration (NHTSA) has situations on a case-by-case basis using Signage and Other Outreach. translated the National Standardized the factors described elsewhere in this Recipients have provided information Child Passenger Safety Training guidance. about services, benefits, eligibility Program curriculum into Spanish. The Language Banks. In several parts of requirements, and the availability of free course, designed to help communities the country, both urban and rural, language assistance, in appropriate work with parents and caregivers on the community organizations and providers languages by (a) posting signs and proper installation of child safety seats, have created language banks that placards with this information in public has been pilot tested and is scheduled dispatch competent interpreters, at places such as grocery stores, bus to be available to the public by early reasonable rates, to participating shelters, and subway stations; (b) 2006 through many national Latino organizations, reducing the need to have putting notices in print media and on organizations and State Highway Safety on-staff interpreters for low-demand radio and television stations that serve Offices. languages. This approach is particularly LEP groups or broadcasting in languages • DOT’s Federal Motor Carrier Safety appropriate where there is a scarcity of other than English;14 (c) airing videos Administration (FMCSA) division language services or where there is a and public service announcements for offices in California, Arizona, New large variety of language needs but non-English-speaking residents; (d) Mexico, Texas, and Puerto Rico employ limited demand for any particular placing flyers and signs in the offices of personnel conversant in Spanish to language. community-based organizations that communicate the agency’s critical safety Language Support Offices. A state serve large populations of LEP persons; regulations. social services agency has established (e) distributing information at places of • The Del Rio, Texas, Police an ‘‘Office for Language Interpreter worship, ethnic shopping areas, and Department implemented the El Services and Translation.’’ This office other gathering places for LEP groups; Protector program in Del Rio and tests and certifies all in-house and (f) using posters with appropriate developed public service broadcasts in contract interpreters, provides agency- languages designed to reach potential Spanish about traffic safety issues such wide support for translation of forms, beneficiaries; and (g) developing as loading and unloading school buses, client mailings, publications, and other pictures, images, figures, or icons that drinking and driving, and pedestrian written materials into non-English could be understandable alternatives to safety. languages, and monitors the policies of written words. • Emergency Medical Services (EMS) the agency and its vendors that affect DOT agencies and recipients have staff in Los Angeles reported that their LEP persons. implemented numerous language access system is equipped to receive calls in Some recipients have established services: • more than 150 languages, although working liaisons with local community DOT’s Pipeline and Hazardous Spanish is the most frequent language colleges to educate the LEP community Materials Safety Administration used by 911 callers who do not speak in transportation matters. One city (formerly known as the Research and English. formed a multilingual/multi-agency task Special Programs Administration), at 49 • District of Columbia DMV force to address language barriers and CFR §§ 192.616 and 195.440, requires information, forms, and support the concerns of the affected pipeline officers to establish a program material are available in German, communities. The task force completed for effective reporting by the public of Spanish, French, Russian, Dutch, and a survey of city staff with multilingual gas pipeline emergencies to the operator Portuguese and can be downloaded skills in order to identify employees or public officials, also providing that from the division’s Web site. The DC willing to serve as interpreters and is the program must be conducted in 15 DMV also provides a ‘‘City Services preparing lists of community and English and other common languages. Guide’’ in Chinese, Korean, Spanish, cultural organizations. We recommend that recipients consider and Vietnamese. DC’s ‘‘Click It or Use of Technology. Some recipients Ticket’’ program material and use their Internet and/or intranet 13 The evening hours permit people from the West information on child safety seat loaner capabilities to store translated Coast (where a significant number of LEP persons programs and fitting station locations documents online, which can be reside) to call after work, providing an option for instructions in Spanish, a separate queue, and are available in Spanish. retrieved as needed and easily shared Spanish-speaking operators. • The New Jersey Department of with other offices. For example, a 14 Notifications should be delivered in advance of scheduled meetings or events to allow time for Motor Vehicles administers driver’s multilanguage gateway on a Web page license tests in more than 15 languages, could be developed for LEP persons and persons to request accommodation and participate. 15 ‘‘Each [pipeline] operator shall establish a including Arabic, French, Greek, the public to access documents continuing educational program to enable Korean, Portuguese, and Turkish.16 translated into other languages. customers, the public, appropriate government • In North Dakota, while the Traffic Telephone Information Lines and organizations, and persons engaged in excavation Safety Office acknowledges a limited Hotlines. Recipients have subscribed to related activities to recognize a gas pipeline emergency for the purpose of reporting it to the minority population requiring telephone-based interpretation services operator or the appropriate public officials. The assistance with translation, the Driver and established telephone information program and the media used should be as Licensing Unit offers the option of an lines in common languages to instruct comprehensive as necessary to reach all areas in oral test in Spanish. callers on how to leave a recorded which the operator transports gas. The program must be conducted in English and in other • The Iowa Department of message that will be answered by languages commonly understood by a significant Transportation (IDOT) provides a someone who speaks the caller’s number and concentration of the non-English Spanish version of the Commercial language. For example, a recipient may speaking population in the operator’s area.’’ 49 CFR choose to adopt a program similar to the § 192.616. Section 195.440 of title 49, Code of Federal Regulations, imposes similar requirements 16 DOT recommends that state agencies share National Highway Traffic Safety in the case of hazardous liquid or carbon dioxide such information, to avoid the necessity of each Administration’s (NHTSA’s) Auto pipeline emergencies. agency performing every translation.
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00111 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74099
Driver’s License knowledge test using a difficulty reading English of appropriate languages, and providing touch screen computer, and study opportunities in the construction interpreters at public meetings. guides of the Iowa Driver’s Manual in industry. • In New Mexico, the Zuni Albanian, Bosnian, Russian, • When the Virginia DOT (VDOT) Entrepreneurial Enterprises, Inc. (ZEE) Vietnamese, and Korean. IDOT became aware that several Public Transportation Program designed established a liaison with a local Disadvantaged Business Enterprise the Zuni JOBLINKS program to develop, community college to provide education (DBE) firms were about to be removed implement, and maintain a for Bosnian refugees concerning the from construction projects in Northern transportation system to link Native Commercial Motor Vehicle driving Virginia because they required certified Americans and other traditionally course.17 concrete inspectors, and that they could unserved/underserved persons in the • The Wisconsin DOT created a 3rd not comply because the concrete service area to needed vocational grade level study guide, the Motorist inspection test was only offered in training and employment opportunities. Study Manual Easy Reader, which was English, it used supportive services Outreach for the program included radio translated by the Janesville Literacy funding from the Federal Highway announcements and posting of signs in Council into Spanish. Wisconsin DOT Administration to translate the training English and Zuni that described ZEE’s also provides the regular 6th grade level manual and test material into Spanish. services and provided ZEE’s phone version of the Reader in English, number. VDOT also provides tutoring for the • Spanish, and Hmong; a Motorcycle DBE firms. The Virginia State Police Washington, DC’s Metropolitan Study Manual in English and Spanish; maintains a written list of interpreters Area Transit Authority (WMATA) and a CDL (Commercial Driver’s available statewide to troopers through publishes pocket guides regarding its License) Study Manual in English and the Red Cross Language Bank, as well as system in French, Spanish, German, and Spanish. In addition, Knowledge and universities and local police Japanese, and has a multilanguage Highway Sign Tests are written in 13 departments. website link. • In North Dakota, Souris Basin languages other than English, recorded • The Colorado State Patrol produced Transportation (SBT) started using on audiocassette tapes in English and safety brochures in Spanish for farmers Spanish, or orally interpreted by visual logos on the sides of the vehicles and ranchers. It has also printed to help illiterate passengers identify the bilingual staffers obtained from a roster brochures in Spanish pertaining to of Wisconsin DOT employees who bus on which they were riding. regulatory requirements for trucking Although the illiteracy rate has dropped speak, read, or write foreign languages. firms. • among seniors, SBT kept the logos on its The Idaho Office of Traffic and • In preparation of its 20-year Highway Safety implemented a vehicles for use by the growing LEP planning document, the Transportation population and also added volunteers Spanish-language safety belt media Concept Report, the California DOT campaign to educate its Hispanic who speak languages other than English (Caltrans) held a public meeting titled (such as Spanish, German, Norwegian, community on the statewide ‘‘Click It, ‘‘Planning the Future of Highway 1’’ in Don’t Risk It!’’ program to boost seat belt Swedish, and French) available by the largely Hispanic city of Guadalupe, phone to drivers and staff. use. Information appears in Unido, through which Highway 1 runs. The • Idaho’s largest Spanish-language New York City Transit MetroCard meeting was broadcast on the local vending machines are located in every newspaper, and warns all motorists to public access channel since many of the buckle up or risk receiving a safety belt station and contain software that allows Spanish-speaking residents potentially them to be programmed in three citation. affected by Highway 1 projects rely on • The New Mexico State Highway languages in addition to English, based the channel to receive public affairs upon area demographics. Currently, and Transportation Department, with information. Caltrans provided a Federal Highway Administration these machines are capable of providing Spanish-language interpreter during the information in Spanish, French, French (FHWA) support, provides Spanish- meeting and also made its Spanish- language translations of its Right-of-Way Creole, Russian, Chinese, Japanese, speaking public affairs officer available Italian, Korean, Greek, and Polish. Acquisition and Relocation brochures to meet with participants individually. • and also employs bilingual right-of-way The Metropolitan Atlanta Rapid • During project planning for Transit Authority (MARTA) advertises agents to discuss project impacts in interstate improvements along Interstate Spanish. upcoming service and fare changes in • 710 in California, engineers presented Spanish, Korean, Vietnamese, and The State of Oregon developed a ‘‘good’’ alternatives to the affected report on multilingual services provided Chinese language newspapers. MARTA communities; however, the proposed also produces a bilingual (Spanish/ by state agencies. State agencies will use highway expansion would have the final document to enhance their English) service modifications booklet. removed low-income homes in • The Fort-Worth Transportation existing programs, including expanding communities that are 98% Spanish communication efforts to serve and Authority communicates information speaking. To ensure that their concerns about service and fare changes in protect all Oregonians. were heard, California identified the • The Texas DOT utilizes bilingual Spanish and English. It recruits affected communities and facilitated the employees in its permit office to provide Spanish-speaking customer service establishment of Community Advisory instruction and assistance to LEP representatives and bus operators and Committees that held bilingual Spanish-speaking truck drivers when has a community outreach liaison who workshops between engineers and the providing permits to route overweight is bilingual. The transit provider also public. trucks through Texas. In its ‘‘On the Job provides a Spanish-language interpreter • The Minnesota DOT authored a Training Supportive Services Program’’ at all public meetings. manual detailing its requirements to • The Salt Lake City International Texas DOT has used Spanish-language provide access to all residents of Airport maintains a list of 35 bilingual television to inform people who have Minnesota under environmental justice and multilingual employees who speak 17 DOT especially recommends the idea of standards, which included ideas such as one of 19 languages (including three working with local community colleges to educate publishing notices in non-English dialects of Chinese) and their contact the LEP community in transportation matters. newspapers, printing notices in information. The list is published in the
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00112 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74100 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
Airport Information Handbook and (i) Deny a person any service, DEPARTMENT OF TRANSPORTATION provided to all airport employees. The financial aid, or other benefit provided airport also contracts with a telephonic under the program; Federal Aviation Administration interpretation service to provide on- (ii) Provide any service, financial aid, demand telephone interpretation or other benefit to a person which is Notice of Opportunity for Public services to beneficiaries. different, or is provided in a different Comment on Surplus Property Release • The Port of Seattle has 16 manner, from that provided to others at Aiken Municipal Airport, Aiken, SC ‘‘Pathfinders’’ on staff who act as guides under the program; AGENCY: Federal Aviation and information sources throughout the (iii) Subject a person to segregation or Administration (FAA), DOT. Seattle Tacoma International Airport. A separate treatment in any matter related ACTION: Notice. key selection criterion for Pathfinders is to his receipt of any service, financial multilingual ability. The Pathfinders aid, or other benefit under the program; SUMMARY: Under the provisions of Title collectively speak 15 languages and are (iv) Restrict a person in any way in 49, U.S.C. 47153(c), notice is being often called on to act as interpreters for the enjoyment of any advantage or given that the FAA is considering a travelers who do not speak English. privilege enjoyed by others receiving request from the City of Aiken to waive Pathfinders greet all international flights any service, financial aid, or other the requirement that approximately 94 and are assigned to do so based on benefit under the program; acres of surplus property, located at the language skills. Aiken Municipal Airport, be used for • Seattle Tacoma International (vi) Deny a person an opportunity to aeronautical purposes. Airport’s trains carry announcements in participate in the program through the English, Japanese, and Korean. The Port provision of services or otherwise or DATES: Comments must be received on of Seattle contributed $5,000 to the afford him an opportunity to do so or before January 13, 2006. creation of the City of Tukwila’s which is different from that afforded ADDRESSES: Comments on this notice ‘‘Newcomers Guide,’’ which is others under the program; or may be mailed or delivered in triplicate published in six languages and includes (vii) Deny a person the opportunity to to the FAA at the following address: information about the airport and participate as a member of a planning, Atlanta Airports District Office, Attn: Airport Jobs, a referral service for advisory, or similar body which is an Paul Lo, Program Manager, 1701 employment at the airport. integral part of the program. Columbia Ave., Suite 2–260, Atlanta, The following is a sample notice that (2) A recipient, in determining the GA 30337–2747. would be useful for recipients to add to types of services, financial aid, or other In addition, one copy of any the publications or signs for their benefits, or facilities which will be comments submitted to the FAA must programs, services, or activities, in order provided under any such program, or be mailed or delivered to Larry G. to notify LEP individuals of the the class of person to whom, or the Morris, P.E., Public Works Director of availability of materials and services in situations in which, such services, the City of Aiken at the following other languages. financial aid, other benefits, or facilities address: City of Aiken, Post Office Box will be provided under any such Sample Notice of Availability of 1177, Aiken, SC 29802. program, or the class of persons to be Materials and Services FOR FURTHER INFORMATION CONTACT: Paul afforded an opportunity to participate in Lo, Program Manager, Atlanta Airports FOR FURTHER INFORMATION CONTACT: For any such program; may not, directly or District Office, 1701 Columbia Ave., hearing-impaired individuals or non- through contractual or other Suite 2–260, Atlanta, GA 30337–2747, English-speaking attendees wishing to arrangements, utilize criteria or methods (404) 305–7145. The application may be arrange for a sign language or foreign of administration which have the effect reviewed in person at this same language interpreter, please call or fax of subjecting persons to discrimination location. [name] of [organization] at Phone: xxx– because of their race, color, or national yyy–zzzz, TTY: xxx–yyy–zzzz, or Fax: origin, or have the effect of defeating or SUPPLEMENTARY INFORMATION: The FAA xxx–yyy–zzzz.’’ 18 substantially impairing accomplishment is reviewing a request by the City of Aiken to release approximately 94 acres Appendix A to DOT Guidance of the objectives of the program with respect to individuals of a particular of surplus property at the Aiken DOT’s Title VI regulation (49 CFR part race, color, or national origin. Municipal Airport. The property 21) states the following, in relevant part: consists of several parcels roughly * * * * * Sec. 21.5 Discrimination prohibited. located East of Palmetto Farms Road, (5) The enumeration of specific forms (a) General. No person in the United North of Reynolds Pond Road, and to of prohibited discrimination in this States shall, on the grounds of race, the West of U.S. Highway 1. This paragraph does not limit the generality color, or national origin be excluded property is currently shown on the of the prohibition in paragraph (a) of from participation in, be denied the approved Airport Layout Plan as this section. benefits of, or be otherwise subjected to aeronautical use land; however the discrimination under, any program to * * * * * property is currently not being used for which this part applies. (7) This part does not prohibit the aeronautical purposes and the proposed (b) Specific discriminatory actions consideration of race, color, or national use of this property is compatible with prohibited: origin if the purpose and effect are to airport operations. The City will (1) A recipient under any program to remove or overcome the consequences ultimately sell lots on the property for which this part applies may not, of practices or impediments which have future industrial and commercial use directly or through contractual or other restricted the availability of, or with proceeds of the sale providing arrangements, on the grounds of race, participation in, the program or activity funding for future airport development. color, or national origin. receiving Federal financial assistance, Any person may inspect the request on the grounds of race, color, or national in person at the FAA office listed above 18 If there is a known and substantial LEP origin. FOR FURTHER INFORMATION population that may be served by the program under discussed in the notice, the notice should be in the [FR Doc. 05–23972 Filed 12–13–05; 8:45 am] CONTACT. In addition, any person may, appropriate non-English language. BILLING CODE 4910–62–P upon request, inspect the request, notice
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00113 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74101
and other documents germane to the for FAA approval which sets forth the Copies of the full noise exposure map request in person at the Aiken measures the operator has taken or documentation and of the FAA’s Municipal Airport. proposes to take to reduce existing non- evaluation of the maps are available for Issued in Atlanta, Georgia on December 6, compatible uses and prevent the examination at the following locations: 2005. introduction of additional non- Federal Aviation Administration Scott L. Seritt, compatible uses. Detroit Airports District Office, 11677 The FAA has completed its review of South Wayne Road, Suite 107, Romulus, Manager, Atlanta Airports District Office, Southern Region. the noise exposure maps and Michigan 48174. accompanying documentation City of Cincinnati Department of [FR Doc. 05–24002 Filed 12–13–05; 8:45 am] submitted by the City of Cincinnati. The Transportation and Engineering, 801 BILLING CODE 4910–13–M documentation that constitutes the Plum Street, Room 405, City Hall, ‘‘noise exposure maps’’ as defined in 14 Cincinnati, Ohio 45202. Questions may be directed to the DEPARTMENT OF TRANSPORTATION CFR 150.7 includes: Existing 2002 Noise Exposure Map (FAR part 150 Noise individual named above under the Federal Aviation Administration Compatibility Program, volume 1, heading FOR FURTHER INFORMATION exhibit 4.4–1) and Future Baseline 2007 CONTACT. Noise Exposure Map Notice Noise Exposure Map (FAR part 150 Issued in Romulus, Michigan, November Noise Compatibility Program, volume 1, 28, 2005. AGENCY: Federal Aviation exhibit 5.3–1). The FAA has determined Administration, DOT. Irene R. Porter, that these noise exposure maps and Manager, Detroit Airport District Office, Great ACTION: Notice. accompanying documentation are in Lakes Region. SUMMARY: The Federal Aviation compliance with applicable [FR Doc. 05–24001 Filed 12–13–05; 8:45 am] Administration (FAA) announces its requirements. This determination is BILLING CODE 4910–13–M determination that the noise exposure effective on November 28, 2005. FAA’s maps submitted by the City of determination on an airport operator’s Cincinnati for the Cincinnati-Municipal noise exposure maps is limited to a DEPARTMENT OF TRANSPORTATION Lunken Airport under the provisions of finding that the maps were developed in the Aviation Safety and Noise accordance with the procedures Federal Aviation Administration Abatement Act (Act), 49 U.S.C. 47501, contained in appendix A of part 150. [Summary Notice No. PE–2005–64] et seq. and the Federal Aviation Such determination does not constitute Regulations (FAR), 14 CFR part 150 approval of the applicant’s data, Petitions for Exemption; Summary of (part 150) are in compliance with information or plans, or a commitment Petitions Received applicable requirements. to approve a noise compatibility program or to fund the implementation AGENCY: Federal Aviation DATES: The effective date of the FAA’s of that program. Administration (FAA), DOT. determination on the noise exposure If questions arise concerning the ACTION: Notice of petitions for maps is November 28, 2005. precise relationship of specific exemption received. FOR FURTHER INFORMATION CONTACT: Mr. properties to noise exposure contours Brad Davidson, Detroit Airports District depicted on a noise exposure map SUMMARY: Pursuant to FAA’s rulemaking Office, 11677 South Wayne Road, Suite submitted under section 47503 of the provisions governing the application, 107, Romulus, Michigan 48174, 734– Act, it should be noted that the FAA is processing, and disposition of petitions 229–2900. not involved in any way in determining for exemption part 11 of Title 14, Code SUPPLEMENTARY INFORMATION: This the relative locations of specific of Federal Regulations (14 CFR), this notice announces that the FAA finds properties with regard to the depicted notice contains a summary of certain that the noise exposure maps submitted noise contours, or in interpreting the petitions seeking relief from specified for Cincinnati-Municipal Lunken noise exposure maps to resolve requirements of 14 CFR. The purpose of Airport are in compliance with questions concerning, for example, this notice is to improve the public’s applicable requirements of part 150, which properties should be covered by awareness of, and participation in, this effective November 28, 2005. the provisions of section 47506 of the aspect of FAA’s regulatory activities. Under 49 U.S.C. 47503 of the Act, an Act. These functions are inseparable Neither publication of this notice nor airport operator may submit noise from the ultimate land use control and the inclusion or omission of information exposure maps to the FAA which meet planning responsibilities of local in the summary is intended to affect the applicable regulations and which depict government. These local responsibilities legal status of any petition or its final non-compatible land uses as of the date are not changed in any way under part disposition. of submission of such maps, a 150 or through FAA’s review of noise DATES: Comments on petitions received description of projected aircraft exposure maps. Therefore, the must identify the petition docket operations, and the ways in which such responsibility for the detailed number involved and must be received operations will affect such maps. The overlaying of noise exposure contours on or before January 3, 2006. Act requires such maps to be developed onto the map depicting properties on ADDRESSES: You may submit comments in consultation with interested and the surface rests exclusively with the [identified by DOT DMS Docket Number affected parties in the local community, airport operator that submitted those FAA–2005–23084] by any of the government agencies, and persons using maps, or with those public agencies and following methods: the airport. planning agencies with which • Web site: http://dms.dot.gov. An airport operator who has consultation is required under section Follow the instructions for submitting submitted noise exposure maps that are 47503 of the Act. The FAA has relied on comments on the DOT electronic docket found by FAA to be in compliance with the certification by the airport operator, site. the requirements of part 150, under section 150.21 of FAR part 150, • Fax: 1–202–493–2251. promulgated pursuant to the Act, may that the statutorily required consultation • Mail: Docket Management Facility; submit a noise compatibility program has been accomplished. U.S. Department of Transportation, 400
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00114 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74102 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
Seventh Street, SW., Nassif Building, SUMMARY: The FHWA is issuing this ACTION: Notice of renewal of exemption; Room PL–401, Washington, DC 20590– notice to advise the public that the effort request for comments. 001. to prepare an Environmental Impact • Hand Delivery: Room PL–401 on Statement (EIS) will be terminated for SUMMARY: FMCSA announces its the plaza level of the Nassif Building, transportation improvements in the decision to renew the exemptions from 400 Seventh Street, SW., Washington, 3500 South Corridor in Salt Lake the vision requirement in the Federal DC, between 9 a.m. and 5 p.m., Monday County, Utah. Motor Carrier Safety Regulations for 22 individuals. FMCSA has statutory through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: • Docket: For access to the docket to authority to exempt individuals from Jeffrey Berna, Environmental Specialist, vision standards if the exemptions read background documents or FHWA, Utah Division, 2520 West 4700 comments received, go to http:// granted will not compromise safety. The South, Suite 9A, Salt Lake City, UT agency has concluded that granting dms.dot.gov at any time or to Room PL– 84118, Telephone (801) 963–0182; or 401 on the plaza level of the Nassif these exemptions will provide a level of Lisa Wilson, Utah Department of safety that will be equivalent to, or Building, 400 Seventh Street, SW., Transportation (UDOT), 2010 South Washington, DC, between 9 a.m. and 5 greater than, the level of safety 2760 West, Salt Lake City, UT 84104, maintained without the exemptions for p.m., Monday through Friday, except Telephone (801) 887–3465. Federal Holidays. these commercial motor vehicle (CMV) SUPPLEMENTARY INFORMATION: The drivers. FOR FURTHER INFORMATION CONTACT: Tim FHWA is cooperation with the UDOT DATES: This decision is effective Adams (202) 267–8033, Sandy have elected to terminate efforts to December 27, 2005. Comments from Buchanan-Sumter (202) 267–7271, or prepare an EIS for transportation interested persons should be submitted John Linsenmeyer (202) 267–5174, improvements in the 3500 South by January 13, 2006. Office of Rulemaking (ARM–1), Federal corridor between Redwood Road and ADDRESSES: Aviation Administration, 800 You may submit comments 8400 West in West Valley City and Salt by any of the following methods. Please Independence Avenue, SW., Lake County, Utah. The original Notice Washington, DC 20591. label your comments with DOT DMS of Intent was published on April 1, Docket Numbers FMCSA–2001–10578, This notice is published pursuant to 2002, anticipating Utah Department of 14 CFR 11.85 and 11.91. FMCSA–2003–14223, FMCSA–2003– Transportation (UDOT) would request 15892. Issued in Washington, DC, on December 8, federal funding for project construction. • Web Site: http://dms.dot.gov. 2005. The UDOT has recently elected to revise Follow the instructions for submitting Anthony F. Fazio, the scope of the project and fully fund comments on the DOT electronic docket Director, Office of Rulemaking. the project with State funds. No federal site. funds or federal action will be required • Fax: 1–202–493–2251. Petitions For Exemption for the revised project. The UDOT will • Mail: Docket Management Facility; Docket No.: FAA–2005–23084. prepare a State Environmental Study for U.S. Department of Transportation, 400 Petitioner: Shuttle America the project. If you have any questions Seventh Street, SW., Nassif Building, Corporation and Republic Airline, Inc. regarding the revised 3500 South project Room PL–401, Washington, DC 20590– Section of 14 CFR Affected: 14 CFR or would like to provide scoping 0001. 121.415(a), 121.417, 121.421, and comments, please contact Lisa Wilson, • Hand Delivery: Room PL–401 on 121.805. UDOT Project Manger, at (801) 887– the plaza level of the Nassif Building, Description of Relief Sought: To allow 3465. 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday the petitioners, Shuttle America (Catalog of Federal and Domestic Assistance Corporation and Republic Airline, Inc., Program Number 20.205, Highway Research, through Friday, except Federal to count initial training successfully Planning and Construction. The regulations Holidays. accomplished by flight attendants implementing Executive Order 12372 All submissions must include the employed, trained and qualified by the regarding intergovernmental consultation on agency name and docket numbers for petitioner’s sister company, Chautauqua Federal programs and activities apply to this this notice. Note that all comments Airlines, Inc., as if the training had been program.) received will be posted without change accomplished by Shuttle America Issued on: December 8, 2005. to http://dms.dot.gov, including any Corporation and Republic Airline, Inc., Jeffrey Berna, personal information provided. To read without requiring the flight attendants Environmental Specialist, Utah Division, background documents or comments to repeat 92 hours of initial training Federal Highway Administration, Salt Lake received, go to http://dms.dot.gov or to otherwise required for newly hired City, Utah. Room PL–401 on the plaza level of the flight attendants under the applicable [FR Doc. 05–24016 Filed 12–13–05; 8:45 am] Nassif Building, 400 Seventh Street, regulations. BILLING CODE 4910–22–M SW., Washington, DC, between 9 a.m. [FR Doc. E5–7287 Filed 12–13–05; 8:45 am] and 5 p.m., Monday through Friday, except Federal Holidays. BILLING CODE 4910–13–P DEPARTMENT OF TRANSPORTATION FOR FURTHER INFORMATION CONTACT: Dr. Mary D. Gunnels, Office of Bus and DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Truck Standards and Operations, (202) Administration 366–4001, FMCSA, Department of Federal Highway Administration Transportation, 400 Seventh Street, [Docket Nos. FMCSA–2001–10578, FMCSA– SW., Washington, DC 20590–0001. Environmental Impact Statement: Salt 2003–14223, FMCSA–2003–15892] Office hours are from 8 a.m. to 5 p.m., Lake County, UT Qualification of Drivers; Exemption e.t., Monday through Friday, except AGENCY: Federal Highway Applications; Vision Federal holidays. Administration (FHWA), DOT. SUPPLEMENTARY INFORMATION: AGENCY: Federal Motor Carrier Safety Public Comments: The DMS is ACTION: Revised notice of intent. Administration (FMCSA), DOT. available 24 hours each day, except
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00115 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74103
when announced system maintenance provide a copy of the ophthalmologist’s drivers submit comments by January 13, requires a brief interruption in service. or optometrist’s report to the medical 2006. You can get electronic submission and examiner at the time of the annual In the past the FMCSA has received retrieval help guidelines under the medical examination; and (3) that each comments from Advocates for Highway ‘‘help’’ section of the DMS Web site. If individual provide a copy of the annual and Auto Safety (Advocates) expressing you want us to notify you that we medical certification to the employer for continued opposition to the FMCSA’s received your comments, please include retention in the driver’s qualification procedures for renewing exemptions a self-addressed, stamped envelope or file and retain a copy of the certification from the vision requirement in 49 CFR postcard. An acknowledgement page on his/her person while driving for 391.41(b)(10). Specifically, Advocates appears after submitting comments on- presentation to a duly authorized objects to the agency’s extension of the line and can be printed to document Federal, State, or local enforcement exemptions without any opportunity for submission of comments. official. Each exemption will be valid public comment prior to the decision to Privacy Act: Anyone is able to search for two years unless rescinded earlier by renew, and reliance on a summary the electronic form of all comments the FMCSA. The exemption will be statement of evidence to make its received into any of our dockets by the rescinded if: (1) The person fails to decision to extend the exemption of name of the individual submitting the comply with the terms and conditions each driver. comment (or signing the comment, if of the exemption; (2) the exemption has The issues raised by Advocates were submitted on behalf of an association, resulted in a lower level of safety than addressed at length in 69 FR 51346 business, labor union, etc.). You may was maintained before it was granted; or (August 18, 2004). The FMCSA review the Department of (3) continuation of the exemption would continues to find its exemption process Transportation’s complete Privacy Act not be consistent with the goals and appropriate to the statutory and Statement in the Federal Register objectives of 49 U.S.C. 31315 and regulatory requirements. published on April 11, 2000 (Volume 31136(e). Issued on: December 7, 2005. 65, Number 70; Pages 19477–78) or you Larry W. Minor, may visit http://dms.dot.gov. Basis for Renewing Exemptions Under 49 U.S.C. 31315(b)(1), an Director, Office of Bus and Truck, Standards Exemption Decision exemption may be granted for no longer and Operations. Under 49 U.S.C. 31315 and 31136(e), than two years from its approval date [FR Doc. E5–7284 Filed 12–13–05; 8:45 am] the FMCSA may renew an exemption and may be renewed upon application BILLING CODE 4910–EX–P from the vision requirements in 49 CFR for additional two year periods. In 391.41(b)(10), which applies to drivers accordance with 49 U.S.C. 31315 and of CMVs in interstate commerce, for a 31136(e), each of the 22 applicants has DEPARTMENT OF TRANSPORTATION two-year period if it finds ‘‘such satisfied the entry conditions for Federal Railroad Administration exemption would likely achieve a level obtaining an exemption from the vision of safety that is equivalent to, or greater requirements (66 FR 53826; 66 FR Proposed Agency Information than, the level that would be achieved 66966; 68 FR 69434; 68 FR 10301; 68 FR Collection Activities; Comment absent such exemption.’’ The 19596; 68 FR 52811; 68 FR 61860). Each Request procedures for requesting an exemption of these 22 applicants has requested (including renewals) are set out in 49 timely renewal of the exemption and AGENCY: Federal Railroad CFR part 381. This notice addresses 22 has submitted evidence showing that Administration, DOT. individuals who have requested renewal the vision in the better eye continues to ACTION: Notice. of their exemptions in a timely manner. meet the standard specified at 49 CFR SUMMARY: The FMCSA has evaluated these 22 391.41(b)(10) and that the vision In accordance with the applications for renewal on their merits impairment is stable. In addition, a Paperwork Reduction Act of 1995 and and decided to extend each exemption review of each record of safety while its implementing regulations, the for a renewable two-year period. They driving with the respective vision Federal Railroad Administration (FRA) are: deficiencies over the past two years hereby announces that it is seeking Anthony Brandano, Norman R. Lamy, indicates each applicant continues to renewal of the following currently John E. Rogstad, Ronald B. Brown, meet the vision exemption standards. approved information collection James A. Lenhart, John R. Snyder, These factors provide an adequate basis activities. Before submitting these Stanley E. Elliott, Dennis L. Lockhart, for predicting each driver’s ability to information collection requirements for Sr., Rene R. Trachsel, Elmer E. Gockley, continue to drive safely in interstate clearance by the Office of Management Jerry J. Lord, Thomas A. Valik, Jr., Glenn commerce. Therefore, the FMCSA and Budget (OMB), FRA is soliciting T. Hehner, Raymond P. Madron, John H. concludes that extending the exemption public comment on specific aspects of Voigts, Thomas T. Ingebretsen, Ronald for each renewal applicant for a period the activities identified below. S. Mallory, Kendle F. Waggle, Jr., Martin of two years is likely to achieve a level DATES: Comments must be received no D. Keough, Charles J. Morman, Randall of safety equal to that existing without later than February 13, 2006. B. Laminack, Jack E. Potts, Jr. the exemption. ADDRESSES: Submit written comments These exemptions are extended on any or all of the following proposed subject to the following conditions: (1) Comments activities by mail to either: Mr. Robert That each individual have a physical The FMCSA will review comments Brogan, Office of Safety, Planning and examination every year (a) by an received at any time concerning a Evaluation Division, RRS–21, Federal ophthalmologist or optometrist who particular driver’s safety record and Railroad Administration, 1120 Vermont attests that the vision in the better eye determine if the continuation of the Ave., NW., Mail Stop 17, Washington, continues to meet the standard in 49 exemption is consistent with the DC 20590, or Mr. Victor Angelo, Office CFR 391.41(b)(10), and (b) by a medical requirements at 49 U.S.C. 31315 and of Support Systems, RAD–20, Federal examiner who attests that the individual 31136(e). However, the FMCSA requests Railroad Administration, 1120 Vermont is otherwise physically qualified under that interested parties with specific data Ave., NW., Mail Stop 35, Washington, 49 CFR 391.41; (2) that each individual concerning the safety records of these DC 20590. Commenters requesting FRA
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00116 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74104 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
to acknowledge receipt of their provide 60-days notice to the public for organizes information collection respective comments must include a comment on information collection requirements in a ‘‘user friendly’’ format self-addressed stamped postcard stating, activities before seeking approval for to improve the use of such information; ‘‘Comments on OMB control number reinstatement or renewal by OMB. 44 and (iii) accurately assess the resources 2130–0500’’. Alternatively, comments U.S.C. 3506(c)(2)(A); 5 CFR 1320.8(d)(1), expended to retrieve and produce may be transmitted via facsimile to 1320.10(e)(1), 1320.12(a). Specifically, information requested. See 44 U.S.C. (202) 493–6265 or (202) 493–6170, or E- FRA invites interested respondents to 3501. mail to Mr. Brogan at comment on the following summary of Below is a brief summary of currently [email protected], or to Mr. proposed information collection approved information collection Angelo at [email protected]. activities regarding (i) whether the activities that FRA will submit for Please refer to the assigned OMB control information collection activities are clearance by OMB as required under the number in any correspondence necessary for FRA to properly execute PRA: submitted. FRA will summarize its functions, including whether the Title: Accident/Incident Reporting comments received in response to this activities will have practical utility; (ii) and Recordkeeping. notice in a subsequent notice and the accuracy of FRA’s estimates of the OMB Control Number: 2130–0500. include them in its information burden of the information collection Abstract: The collection of collection submission to OMB for activities, including the validity of the information is due to the railroad approval. methodology and assumptions used to accident reporting regulations set forth determine the estimates; (iii) ways for FOR FURTHER INFORMATION CONTACT: Mr. in 49 CFR part 225 which require FRA to enhance the quality, utility, and Robert Brogan, Office of Planning and railroads to submit monthly reports clarity of the information being Evaluation Division, RRS–21, Federal summarizing collisions, derailments, collected; and (iv) ways for FRA to Railroad Administration, 1120 Vermont and certain other accidents/incidents minimize the burden of information Ave., NW., Mail Stop 17, Washington, involving damages above a periodically collection activities on the public by DC 20590 (telephone: (202) 493–6292) revised dollar threshold, as well as automated, electronic, mechanical, or certain injuries to passengers, or Victor Angelo, Office of Support other technological collection employees, and other persons on Systems, RAD–20, RAD–20, Federal techniques or other forms of information railroad property. Because the reporting Railroad Administration, 1120 Vermont technology (e.g., permitting electronic Ave., NW., Mail Stop 35, Washington, submission of responses). See 44 U.S.C. requirements and the information DC 20590 (telephone: (202) 493–6470). 3506(c)(2)(A)(i)–(iv); 5 CFR needed regarding each category of (These telephone numbers are not toll- 1320.8(d)(1)(i)–(iv). FRA believes that accident/incident are unique, a different free.) soliciting public comment will promote form is used for each category. SUPPLEMENTARY INFORMATION: The its efforts to reduce the administrative Form Number(s): FRA F 6180.54; 55; Paperwork Reduction Act of 1995 and paperwork burdens associated with 55A; 56; 57; 78; 81; 97; 98; 99; 107. (PRA), Public Law No. 104–13, section the collection of information mandated Affected Public: Businesses. 2, 109 Stat. 163 (1995) (codified as by Federal regulations. In summary, Respondent Universe: 685 railroads. revised at 44 U.S.C. 3501–3520), and its FRA reasons that comments received Frequency of Submission: On implementing regulations, 5 CFR Part will advance three objectives: (i) Reduce occasion. 1320, require Federal agencies to reporting burdens; (ii) ensure that it Reporting Burden:
Total annual CFR section Respondent Total annual Average time Total annual burden cost universe responses per response burden hours (dollars)
225.9—Telephone Reports of Certain 685 railroads ...... 500 phone reports 15 minutes ...... 125 hours ...... $4,750 Accidents/Incidents and Other Events. 225.11—Reporting of Rail Equipment 685 railroads ...... 3,000 forms ...... 2 hours ...... 6,000 hours ...... 228,000 Accidents/Incidents—Form FRA F 6180.54. 225.12—Rail Equipment Accident/Inci- 685 railroads ...... 1,000 forms ...... 15 minutes ...... 250 hours ...... 9,500 dent Reports Alleging Human Factor as Cause—Form FRA F 6180.81. Part I Form FRA F 6180.78 (No- 685 railroads ...... 1,000 notices + 10 minutes + 3 372 hours ...... 14,136 tices). 4,100 copies. minutes. Joint Operations ...... 685 railroads ...... 100 requests ...... 20 minutes ...... 33 hours ...... 1,254 Late Identification ...... 685 railroads ...... 20 attachments + 15 minutes ...... 10 hours ...... 380 20 notices. Employee Statement Railroad employees 75 statements ...... 1.5 hours ...... 113 hours ...... 4,972 Supplementing Railroad Accident Report (Part II Form FRA 6180.78). Employee Confidential Letter ...... Railroad employees 10 letters ...... 2 hours ...... 20 hours ...... 880 225.13—Late Reports ...... 685 railroads ...... 50 amended rpts. + 1 hour + 3 minutes 52 hours ...... 1,976 40 copies. 225.17—Doubtful Cases; Alcohol or 685 railroads ...... 80 reports ...... 30 minutes ...... 40 hours ...... 1,520 Drug Involvement: Narrative Reports to FRA. Appended reports required by 685 railroads ...... 5 reports ...... 30 minutes ...... 3 hours ...... 114 § 219.209(b). 225.19—Rail-Highway Grade Crossing 685 railroads ...... 3,000 forms ...... 2 hours ...... 6,000 hours ...... 228,000 Accident/Incident Report—Form FRA F 6180.57.
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00117 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74105
Total annual CFR section Respondent Total annual Average time Total annual burden cost universe responses per response burden hours (dollars)
Death, Injury, or Occupational Ill- 685 railroads ...... 12,000 forms ...... 20 minutes ...... 4,000 hours ...... 152,000 ness (Form FRA F 6180.55a). 225.21—Railroad Injury and Illness 685 railroads ...... 8,220 forms ...... 10 minutes ...... 1,370 hours ...... 52,060 Summary—Form FRA F 6180.55. 225.21—Annual Railroad Report of Em- 685 railroads ...... 685 forms ...... 15 minutes ...... 171 hours ...... 6,498 ployee Hours and Casualties, By State—Form FRA F 6180.56. 225.21/25—Railroad Employee Injury 685 railroads ...... 18,000 forms ...... 60 minutes ...... 18,000 hours ...... 792,000 and/or Illness Record—Form FRA F 6180.98. Copies of Forms to Employees ...... 685 railroads ...... 540 form copies .... 2 minutes ...... 18 hours ...... 792 225.21—Initial Rail Equipment Accident/ 685 railroads ...... 13,000 forms ...... 30 minutes ...... 6,500 hours ...... 286,000 Incident Record—Form FRA F 6180.97. 225.21—Alternative Record for Illnesses 685 railroads ...... 300 forms ...... 15 minutes ...... 75 hours ...... 2,850 Claimed to Be Work Related—Form FRA F 6180.107. 225.25 (h)—Posting of Monthly Sum- 685 railroads ...... 8,220 lists ...... 16 minutes ...... 2,192 hours ...... 83,296 mary. 225.27—Retention of Records ...... 685 railroads ...... 1,900 records ...... 2 minutes ...... 63 hours ...... 2,394 225.33—Internal Control Plans— 685 railroads ...... 25 amendments .... 14 hours ...... 350 hours ...... 13,300 Amendments. 225.35—Access to Records and Re- 15 railroads ...... 400 lists ...... 20 minutes ...... 133 hours ...... 5,054 ports. Subsequent Years ...... 4 railroads ...... 16 lists ...... 20 minutes ...... 5 hours ...... 190 225.37—Magnetic Media Transfer and 8 railroads ...... 96 transfers ...... 10 minutes ...... 16 hours ...... 608 Electronic Submission. Electronic Submission: Batch Con- 685 railroads ...... 200 forms ...... 3 minutes ...... 10 hours ...... 380 trol Forms (6180.99) and Form FRA F 6180.55.
Total Responses: 76,602. ACTION: Grant of petition for exemption. The petition requested an exemption Estimated Total Annual Burden: from parts-marking pursuant to 49 CFR SUMMARY: 45,921 hours. This document grants in full 543, Exemption from Vehicle Theft the petition of General Motors Status: Regular Review. Prevention Standard, based on the Corporation, (GM) for an exemption in installation of an antitheft device as Pursuant to 44 U.S.C. 3507(a) and 5 accordance with § 543.9(c)(2) of 49 CFR CFR 1320.5(b), 1320.8(b)(3)(vi), FRA standard equipment for the entire part 543, Exemption from the Theft vehicle line. informs all interested parties that it may Prevention Standard, for the Chevrolet not conduct or sponsor, and a Under § 543.5(a), a manufacturer may Malibu/Malibu Maxx vehicle line petition NHTSA to grant exemptions for respondent is not required to respond beginning with model year (MY) 2006. to, a collection of information unless it one line of its vehicle lines per year. In This petition is granted because the its petition, GM provided a detailed displays a currently valid OMB control agency has determined that the antitheft number. description and diagram of the identity, device to be placed on the line as design, and location of the components Authority: 44 U.S.C. 3501–3520. standard equipment is likely to be as of the antitheft device for the new Issued in Washington, DC on December 7, effective in reducing and deterring vehicle line. The antitheft device is a 2005. motor vehicle theft as compliance with transponder-based, electronic, D.J. Stadtler, the parts-marking requirements of the immobilizer system. GM will install its Director, Office of Budget, Federal Railroad Theft Prevention Standard. antitheft device as standard equipment Administration. DATES: The exemption granted by this on its Chevrolet Malibu /Malibu Maxx [FR Doc. E5–7288 Filed 12–13–05; 8:45 am] notice is effective beginning with model vehicle line beginning with MY 2006. BILLING CODE 4910–06–P year (MY) 2006. GM’s submission is considered a FOR FURTHER INFORMATION CONTACT: Ms. complete petition as required by 49 CFR Carlita Ballard, Office of International 543.7, in that it meets the general DEPARTMENT OF TRANSPORTATION Policy, Fuel Economy and Consumer requirements contained in § 543.5 and Programs, NHTSA, 400 Seventh Street, the specific content requirements of National Highway Traffic Safety SW., Washington, DC 20590. Ms. § 543.6. Administration Ballard’s phone number is (202) 366– The antitheft device to be installed on Petition for Exemption From the 5222. Her fax number is (202) 493–2290. the MY 2006 Chevrolet Malibu/Malibu Federal Motor Vehicle Motor Theft SUPPLEMENTARY INFORMATION: In a Maxx is the PASS–Key III+. The PASS– Prevention Standard; General Motors petition dated July 19, 2005, GM Key III+ device is designed to be active Corporation requested an exemption from the parts- at all times without direct intervention marking requirements of the theft by the vehicle operator. The system is AGENCY: National Highway Traffic prevention standard (49 CFR part 541) fully armed immediately after the Safety Administration, Department of for the Chevrolet Malibu/Malibu Maxx ignition has been turned off and the key Transportation (DOT). vehicle line beginning with MY 2006. removed. The system will provide
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00118 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74106 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
protection against unauthorized starting GM also stated that although its adequate reasons for its belief that the and fueling of the vehicle engine. antitheft device provides protection antitheft device will reduce and deter Components of the antitheft device against unauthorized starting and theft. This conclusion is based on the include a special ignition key and fueling of the vehicle, it does not information GM provided about its decoder module. Before the vehicle can provide any visible or audible device. be operated, the key’s electrical code indication of unauthorized entry by For the foregoing reasons, the agency must be sensed and properly decoded means of flashing vehicle lights or hereby grants in full GM’s petition for by the PASS–Key III+ control module. sounding of the horn. Since the system exemption for the Chevrolet Malibu/ The ignition key contains electronics is fully operational once the vehicle has Malibu Maxx vehicle line from the molded into the key head. These been turned off, specific visible or parts-marking requirements of 49 CFR electronics receive energy and data from audible reminders beyond key removal part 541. The agency notes that 49 CFR the control module. Upon receipt of the reminders have not been provided. part 541, Appendix A–1, identifies Based on comparison of the reduction data, the key will calculate a response those lines that are exempted from the in the theft rates of GM vehicles using to the data using secret information and Theft Prevention Standard for a given a passive theft deterrent device with an an internal encryption algorithm, and model year. 49 CFR part 543.7(f) audible/visible alarm system to the transmit the response back to the contains publication requirements reduction in theft rates for GM vehicle vehicle. The controller module incident to the disposition of all part models equipped with a passive translates the radio frequency signal 543 petitions. Advanced listing, antitheft device without an alarm, GM received from the key into a digital including the release of future product signal and compares the received finds that the lack of an alarm or attention attracting device does not nameplates, the beginning model year response to an internally calculated for which the petition is granted and a value. If the values match, the key is compromise the theft deterrent performance of a system such as PASS– general description of the device is recognized as valid and the vehicle can necessary in order to notify law be operated. Key III+. GM’s proposed device, as well as enforcement agencies of new vehicle GM indicated that the theft rates, as other comparable devices that have lines exempted from the parts marking reported by the Federal Bureau of received full exemptions from the parts- requirements of the Theft Prevention Investigation’s National Crime marking requirements, lack an audible Standard. Information Center, are lower for GM or visible alarm. Therefore, these If GM decides not to use the models equipped with the ‘‘PASS– devices cannot perform one of the exemption for this line, it should Key’’-like systems which have functions listed in 49 CFR part formally notify the agency. If such a exemptions from the parts-marking 543.6(a)(3), that is, to call attention to decision is made, the line must be fully requirements of 49 CFR part 541, than unauthorized attempts to enter or move marked according to the requirements the theft rates for earlier, similarly- the vehicle. However, theft data have under 49 CFR parts 541.5 and 541.6 constructed models which were parts- indicated a decline in theft rates for (marking of major component parts and marked. Based on the performance of vehicle lines that have been equipped replacement parts). the PASS–Key, PASS–Key II, and with devices similar to that which GM PASS–Key III systems on other GM NHTSA notes that if GM wishes in the proposes. In these instances, the agency future to modify the device on which models, and the advanced technology has concluded that the lack of a visual utilized by the modification, GM this exemption is based, the company or audio alarm has not prevented these may have to submit a petition to modify believes that the MY 2006 antitheft antitheft devices from being effective device will be more effective in the exemption. Part 543.7(d) states that protection against theft. a part 543 exemption applies only to deterring theft than the parts-marking On the basis of this comparison, GM vehicles that belong to a line exempted requirements of 49 CFR part 541. has concluded that the proposed under this part and equipped with the Additionally, GM stated that the PASS– antitheft device is no less effective than antitheft device on which the line’s Key III+ system has been designed to those devices installed on lines for exemption is based. Further, part enhance the functionality and theft which NHTSA has already granted full 543.9(c)(2) provides for the submission protection provided by GM’s first, exemption from the parts-marking of petitions ‘‘to modify an exemption to second, and third generation PASS–Key, requirements. permit the use of an antitheft device PASS–Key II, and PASS–Key III Based on the evidence submitted by similar to but differing from the one systems. GM, the agency believes that the specified in that exemption.’’ In addressing the specific content antitheft device for the GM vehicle line requirements of 543.6, GM provided is likely to be as effective in reducing The agency wishes to minimize the information on the reliability and and deterring motor vehicle theft as administrative burden that part durability of the proposed device. To compliance with the parts-marking 543.9(c)(2) could place on exempted ensure reliability and durability of the requirements of the Theft Prevention vehicle manufacturers and itself. The device, GM conducted tests based on its Standard (49 CFR part 541). agency did not intend in drafting Part own specified standards. GM provided The agency concludes that the device 543 to require the submission of a a detailed list of the tests conducted on will provide four of the five types of modification petition for every change the components of its immobilizer performance listed in § 543.6(a)(3): to the components or design of an device and believes that the device is Promoting activation; preventing defeat antitheft device. The significance of reliable and durable since it complied or circumvention of the device by many such changes could be de with the specified requirements for each unauthorized persons; preventing minimis. Therefore, NHTSA suggests test. Specifically, GM stated that the operation of the vehicle by that if the manufacturer contemplates components of the device were tested unauthorized entrants; and ensuring the making any changes, the effects of and met compliance in climatic, reliability and durability of the device. which might be characterized as de mechanical and chemical environments, As required by 49 U.S.C. 33106 and minimis, it should consult the agency and immunity to various 49 CFR part 543.6(a)(4) and (5), the before preparing and submitting a electromagnetic radiation. agency finds that GM has provided petition to modify.
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00119 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74107
Authority: 49 U.S.C. 33106; delegation of of the antitheft device for the new PASS–Key II, and PASS–Key III authority at 49 CFR 1.50. vehicle line. The antitheft device is a systems. Issued on: December 7, 2005. transponder-based, electronic, In addressing the specific content Stephen R. Kratzke, immobilizer system. GM will install its requirements of 543.6, GM provided Associate Administrator for Rulemaking. antitheft device as standard equipment information on the reliability and durability of the proposed device. To [FR Doc. E5–7285 Filed 12–13–05; 8:45 am] on its Pontiac G6 vehicle line beginning with MY 2007. GM’s submission is ensure reliability and durability of the BILLING CODE 4910–59–P considered a complete petition as device, GM conducted tests based on its required by 49 CFR 543.7, in that it own specified standards. GM provided DEPARTMENT OF TRANSPORTATION meets the general requirements a detailed list of the tests conducted on contained in § 543.5 and the specific the components of its immobilizer National Highway Traffic Safety content requirements of § 543.6. device and believes that the device is Administration The antitheft device to be installed on reliable and durable since it complied the MY 2007 Pontiac G6 is the PASS– with the specified requirements for each Petition for Exemption From the Key III+. The PASS–Key III+ device is test. Specifically, GM stated that the Federal Motor Vehicle Motor Theft designed to be active at all times components of the device were tested Prevention Standard; General Motors without direct intervention by the and met compliance in climatic, Corporation vehicle operator. The system is fully mechanical and chemical environments, armed immediately after the ignition and immunity to various AGENCY: National Highway Traffic has been turned off and the key electromagnetic radiation. Safety Administration, Department of removed. The system will provide GM also stated that although its Transportation (DOT). protection against unauthorized starting antitheft device provides protection ACTION: Grant of petition for exemption. and fueling of the vehicle engine. against unauthorized starting and SUMMARY: This document grants in full Components of the antitheft device fueling of the vehicle, it does not the petition of General Motors include a special ignition key and provide any visible or audible Corporation, (GM) for an exemption in decoder module. Before the vehicle can indication of unauthorized entry by accordance with § 543.9(c)(2) of 49 CFR be operated, the key’s electrical code means of flashing vehicle lights or part 543, Exemption from the Theft must be sensed and properly decoded sounding of the horn. Since the system Prevention Standard, for the Pontiac G6 by the PASS–Key III+ control module. is fully operational once the vehicle has vehicle line beginning with model year The ignition key contains electronics been turned off, specific visible or (MY) 2007. This petition is granted molded into the key head. These audible reminders beyond key removal because the agency has determined that electronics receive energy and data from reminders have not been provided. Based on comparison of the reduction the antitheft device to be placed on the the control module. Upon receipt of the in the theft rates of GM vehicles using line as standard equipment is likely to data, the key will calculate a response a passive theft deterrent device with an be as effective in reducing and deterring to the data using secret information and audible/visible alarm system to the motor vehicle theft as compliance with an internal encryption algorithm, and reduction in theft rates for GM vehicle the parts-marking requirements of the transmit the response back to the models equipped with a passive Theft Prevention Standard. vehicle. The controller module translates the radio frequency signal antitheft device without an alarm, GM DATES: The exemption granted by this received from the key into a digital finds that the lack of an alarm or notice is effective beginning with model signal and compares the received attention attracting device does not year (MY) 2007. response to an internally calculated compromise the theft deterrent FOR FURTHER INFORMATION CONTACT: Ms. value. If the values match, the key is performance of a system such as PASS– Carlita Ballard, Office of International recognized as valid and the vehicle can Key III+. Policy, Fuel Economy and Consumer be operated. GM’s proposed device, as well as Programs, NHTSA, 400 Seventh Street, GM indicated that the theft rates, as other comparable devices that have SW., Washington, DC 20590. Ms. reported by the Federal Bureau of received full exemptions from the parts- Ballard’s phone number is (202) 366– Investigation’s National Crime marking requirements, lack an audible 5222. Her fax number is (202) 493–2290. Information Center, are lower for GM or visible alarm. Therefore, these SUPPLEMENTARY INFORMATION: In a models equipped with the ‘‘PASS– devices cannot perform one of the petition dated July 19, 2005, GM Key’’-like systems which have functions listed in 49 CFR part requested an exemption from the parts- exemptions from the parts-marking 543.6(a)(3), that is, to call attention to marking requirements of the theft requirements of 49 CFR part 541, than unauthorized attempts to enter or move prevention standard (49 CFR part 541) the theft rates for earlier, similarly- the vehicle. However, theft data have for the Pontiac G6 vehicle line constructed models which were parts- indicated a decline in theft rates for beginning with MY 2007. The petition marked. Based on the performance of vehicle lines that have been equipped requested an exemption from parts- the PASS–Key, PASS–Key II, and with devices similar to that which GM marking pursuant to 49 CFR 543, PASS–Key III systems on other GM proposes. In these instances, the agency Exemption from Vehicle Theft models, and the advanced technology has concluded that the lack of a visual Prevention Standard, based on the utilized by the modification, GM or audio alarm has not prevented these installation of an antitheft device as believes that the MY 2007 antitheft antitheft devices from being effective standard equipment for the entire device will be more effective in protection against theft. vehicle line. deterring theft than the parts-marking On the basis of this comparison, GM Under § 543.5(a), a manufacturer may requirements of 49 CFR Part 541. has concluded that the proposed petition NHTSA to grant exemptions for Additionally, GM stated that the PASS– antitheft device is no less effective than one line of its vehicle lines per year. In Key III+ system has been designed to those devices installed on lines for its petition, GM provided a detailed enhance the functionality and theft which NHTSA has already granted full description and diagram of the identity, protection provided by GM’s first, exemption from the parts-marking design, and location of the components second, and third generation PASS–Key, requirements.
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00120 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74108 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
Based on the evidence submitted by similar to but differing from the one 1152.50 (d)(1) (notice to governmental GM, the agency believes that the specified in that exemption.’’ agencies) have been met. antitheft device for the GM vehicle line The agency wishes to minimize the As a condition to this exemption, any is likely to be as effective in reducing administrative burden that Part employee adversely affected by the and deterring motor vehicle theft as 543.9(c)(2) could place on exempted abandonment shall be protected under compliance with the parts-marking vehicle manufacturers and itself. The Oregon Short Line R. Co.— requirements of the Theft Prevention agency did not intend in drafting Part Abandonment—Goshen, 360 I.C.C. 91 Standard (49 CFR 541). 543 to require the submission of a (1979). To address whether this The agency concludes that the device modification petition for every change condition adequately protects affected will provide four of the five types of to the components or design of an employees, a petition for partial performance listed in § 543.6(a)(3): antitheft device. The significance of revocation under 49 U.S.C. 10502(d) Promoting activation; preventing defeat many such changes could be de must be filed. or circumvention of the device by minimis. Therefore, NHTSA suggests Provided no formal expression of unauthorized persons; preventing that if the manufacturer contemplates intent to file an offer of financial operation of the vehicle by making any changes, the effects of assistance (OFA) has been received, this unauthorized entrants; and ensuring the which might be characterized as de exemption will be effective on January reliability and durability of the device. minimis, it should consult the agency 13, 2006, unless stayed pending As required by 49 U.S.C. 33106 and before preparing and submitting a reconsideration. Petitions to stay that do 49 CFR part 543.6(a)(4) and (5), the petition to modify. not involve environmental issues,1 agency finds that GM has provided Authority: 49 U.S.C. 33106; delegation of formal expressions of intent to file an adequate reasons for its belief that the authority at 49 CFR 1.50. OFA under 49 U.S.C. 1152.27(c)(2),2 and trail use/rail banking requests under antitheft device will reduce and deter Issued on: December 7, 2005. theft. This conclusion is based on the 49 CFR 1152.29 3 must be filed by Stephen R. Kratzke, information GM provided about its December 27, 2005. Petitions to reopen device. Associate Administrator for Rulemaking. or requests for public use conditions For the foregoing reasons, the agency [FR Doc. E5–7286 Filed 12–13–05; 8:45 am] under 49 CFR 1152.28 must be filed by hereby grants in full GM’s petition for BILLING CODE 4910–59–P January 3, 2006, with: Surface exemption for the Pontiac G6 vehicle Transportation Board, 1925 K Street, line from the parts-marking NW., Washington, DC 20423–0001. DEPARTMENT OF TRANSPORTATION requirements of 49 CFR part 541. The A copy of any petition filed with the agency notes that 49 CFR Part 541, Surface Transportation Board Board should be sent to BNSF’s Appendix A–1, identifies those lines representative: Michael Smith, 311 S. that are exempted from the Theft [STB Docket No. AB–6 (Sub–No. 434X)] Wacker Dr., Suite 3000, Chicago, IL Prevention Standard for a given model 60606–6677. BNSF Railway Company— year. 49 CFR part 543.7(f) contains If the verified notice contains false or Abandonment Exemption—in Fergus publication requirements incident to the misleading information, the exemption County, MT disposition of all part 543 petitions. is void ab initio. Advanced listing, including the release BNSF Railway Company (BNSF) has BNSF has filed an environmental and of future product nameplates, the filed a notice of exemption under 49 historic report which addresses the beginning model year for which the CFR part 1152 subpart F—Exempt abandonment’s effects, if any, on the petition is granted and a general Abandonments to abandon a line of environment and historic resources. description of the antitheft device is railroad between milepost 9.50 near SEA will issue an environmental necessary in order to notify law Moore, MT, and milepost 28.35 near assessment (EA) by December 19, 2005. enforcement agencies of new vehicle Lewiston, MT, the 1.30-mile Berg Interested persons may obtain a copy of lines exempted from the parts marking Lumber Spur (milepost 0.00–milepost the EA by writing to SEA (Room 500, requirements of the Theft Prevention 1.30), and the Heath Spur (milepost Surface Transportation Board, Standard. 0.00–milepost 1.10), a total distance of Washington, DC 20423–0001) or by If GM decides not to use the 21.25 miles in Fergus County, MT. The calling SEA, at (202) 565–1539. exemption for this line, it should line traverses United States Postal [Assistance for the hearing impaired is formally notify the agency. If such a Service Zip Codes 59457 and 59464. available through the Federal decision is made, the line must be fully BNSF has certified that: (1) No local Information Relay Service (FIRS) at 1– marked according to the requirements traffic has moved over the line for at 800–877–8339.] Comments on under 49 CFR Parts 541.5 and 541.6 least 2 years; (2) any overhead traffic on environmental and historic preservation (marking of major component parts and the line can be rerouted over other lines; matters must be filed within 15 days replacement parts). (3) no formal complaint filed by a user NHTSA notes that if GM wishes in the of rail service on the line (or by a state 1 The Board will grant a stay if an informed decision on environmental issues (whether raised future to modify the device on which or local government entity acting on by a party or by the Board’s Section of this exemption is based, the company behalf of such user) regarding cessation Environmental Analysis (SEA) in its independent may have to submit a petition to modify of service over the line either is pending investigation) cannot be made before the the exemption. Part 543.7(d) states that with the Surface Transportation Board exemption’s effective date. See Exemption of Out- of-Service Rail Lines, 5 I.C.C.2d 377 (1989). Any a Part 543 exemption applies only to or with any U.S. District Court or has request for a stay should be filed as soon as possible vehicles that belong to a line exempted been decided in favor of complainant so that the Board may take appropriate action before under this part and equipped with the within the 2-year period; and (4) the the exemption’s effective date. antitheft device on which the line’s requirements at 49 CFR 1105.7 2 Each OFA must be accompanied by the filing exemption is based. Further, part (environmental report), 49 CFR 1105.8 fee, which currently is set at $1,200. See 49 CFR 1002.2(f)(25). 543.9(c)(2) provides for the submission (historic report), 49 CFR 1105.11 3 Each trail use request must be accompanied by of petitions ‘‘to modify an exemption to (transmittal letter), 49 CFR 1105.12 the filing fee, which currently is set at $200. See permit the use of an antitheft device (newspaper publication) and 49 CFR 49 CFR 1002.2(f)(27).
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00121 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices 74109
after the EA becomes available to the Internal Revenue Service (IRS) Estimated Total Burden Hours: public. OMB Number: 1545–0143. 11,750,000 hours. Environmental, historic preservation, Type of Review: Extension. Clearance Officer: Glenn P. Kirkland public use, or trail use/rail banking Title: Heavy Highway Vehicle Use (202) 622–3428, Internal Revenue conditions will be imposed, where Tax Return. Service, Room 6516, 1111 Constitution appropriate, in a subsequent decision. Form: IRS form 2290/SP/FR. Avenue, NW., Washington, DC 20224. Pursuant to the provisions of 49 CFR Description: Form 2290 is used to OMB Reviewer: Alexander T. Hunt 1152.29(e)(2), BNSF shall file a notice of compute and report the tax imposed by (202) 395–7316, Office of Management consummation with the Board to signify section 4481 on the highway use of and Budget, Room 10235, New that it has exercised the authority certain motor vehicles. The information Executive Office Building, Washington, granted and fully abandoned the line. If is used to determine whether the DC 20503. consummation has not been effected by taxpayer has paid the correct amount of Michael A. Robinson, BNSF’s filing of a notice of tax. Treasury PRA Clearance Officer. consummation by December 14, 2006, Respondents: Business or other for- and there are no legal or regulatory profit. [FR Doc. E5–7341 Filed 12–13–05; 8:45 am] barriers to consummation, the authority Estimated Total Burden Hours: BILLING CODE 4810–01–P to abandon will automatically expire. 22,521,400 hours. On December 1, 2005, the Board of OMB Number: 1545–1686. Commissioners of Fergus County, MT Type of Review: Extension. DEPARTMENT OF THE TREASURY (Fergus County), filed an objection to Title: REG–103736–00 (Final) Submission for OMB Review; the notice. Fergus County raises a Requirement to Maintain List of Comment Request number of concerns about the proposed Investors in Potentially Abusive Tax abandonment, but provides no basis for Shelters. December 8, 2005. the Board to reject the notice. However, Description: The regulations provide The Department of Treasury has should the County desire to seek a stay guidance on the requirement under submitted the following public of the effectiveness of the exemption, it section 6112 to maintain a list of information collection requirement(s) to may do so, keeping in mind the investors in potentially abusive tax OMB for review and clearance under the deadline set forth in this notice. Also a shelters. Paperwork Reduction Act of 1995, petition to revoke the exemption under Respondents: Business or other for- Public Law 104–13. Copies of the 49 U.S.C. 10502(d) after its effectiveness profit, Individual or households. submission(s) may be obtained by may be filed at any time. Estimated Total Burden Hours: 50,000 calling the Treasury Bureau Clearance Board decisions and notices are hours. Officer listed. Comments regarding this available on our Web site at http:// OMB Number: 1545–1799. information collection should be www.stb.dot.gov. Type of Review: Extension. addressed to the OMB reviewer listed Title: Notice 2002–69, Interest Rates Decided: December 6, 2005. and to the Treasury Department and Appropriate Foreign Loss Payment Clearance Officer, Department of the By the Board, David M. Konschnik, Patterns for Determining the Qualified Director, Office of Proceedings. Treasury, Room 11000, 1750 Insurance Income of Certain Controlled Pennsylvania Avenue, NW., Vernon A. Williams, Corporations under Section 954(i). Washington, DC 20220. Secretary. Description: This notice provide [FR Doc. 05–23959 Filed 12–13–05; 8:45 am] guidance on how to determine the DATES: Written comments should be BILLING CODE 4915–01–P foreign loss payment patterns of a received on or before January 13, 2006 foreign insurance company owned by to be assured of consideration. U.S. shareholder for purpose of Financial Crimes Enforcement Network DEPARTMENT OF THE TREASURY determining the amount of investment (FinCEN) income earned by the insurance Submission for OMB Review; company that is not treated as Subpart OMB Number: 1506–0019. Comment Request F income under section 954(i). Type of Review: Revision. Respondents: Business or other for Title: Suspicious Activity Report by December 8, 2005. profit. Securities and Futures Industries and 31 The Department of Treasury has Estimated Total Burden Hours: 300 CFR 103 17(d) and 103.19(d). submitted the following public hours. Form: FinCEN form 101. information collection requirement(s) to OMB Number: 1545–1819. Description: Treasury is requiring OMB for review and clearance under the Type of Review: Extension. certain securities broker-dealers, future Paperwork Reduction Act of 1995, Title: REG–116641–01 (Final) commission merchants, and introducing Public Law 104–13. Copies of the Information Reporting and Backup brokers in commodities to file submission(s) may be obtained by Withholding for Payment Card suspicious activity reports. calling the Treasury Bureau Clearance Transactions. Respondents: Business or other for- Officer listed. Comments regarding this Description: The document contains profit. information collection should be final regulations relating to the Estimated Total Reporting Burden: addressed to the OMB reviewer listed information reporting requirements, 16,800 hours. and to the Treasury Department information reporting penalties, and Clearance Officer: Russell Stephenson Clearance Officer, Department of the backup withholding requirements for (202) 354–6012, Department of the Treasury, Room 11000, 1750 payment card transactions. This Treasury, Financial Crimes Enforcement Pennsylvania Avenue, NW., document also contains final regulations Network, P.O. Box 39, Vienna, VA Washington, DC 20220. relating to the IRS TIN Matching 22183. DATES: Written comments should be Program. OMB Reviewer: Alexander T. Hunt received on or before January 13, 2006 Respondents: Business or other for- (202) 395–7316, Office of Management to be assured of consideration. profit. and Budget, Room 10235, New
VerDate Aug<31>2005 17:26 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00122 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 74110 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Notices
Executive Office Building, Washington, DEPARTMENT OF THE TREASURY Company, Enfield, Connecticut, to DC 20503. convert to the stock form of Office of Thrift Supervision organization. Copies of the application Michael A. Robinson, [AC–06: OTS Nos. 00803, H–3845 and H– are available for inspection by Treasury PRA Clearance Officer. 4256] appointment (phone number: (202) 906– [FR Doc. E5–7342 Filed 12–13–05; 8:45 am] 5922 or e-mail: BILLING CODE 4810–02–P Enfield Federal Savings and Loan [email protected]) at the Association, Enfield Mutual Holding Public Reading Room, OTS, 1700 G Company, and NEBS Bancshares, Inc., Street, NW., Washington, DC 20552, and Enfield, CT; Approval of Conversion OTS Northeast Regional Office, Application Harborside Financial Center Plaza Five, Notice is hereby given that on Suite 1600, Jersey City, New Jersey November 10, 2005, the Assistant 07311. Managing Director, Examinations and Dated: December 8, 2005. Supervision—Operations, Office of By the Office of Thrift Supervision. Thrift Supervision (‘‘OTS’’), or her designee, acting pursuant to delegated Nadine Y. Washington, authority, approved the application of Corporate Secretary. Enfield Federal Savings and Loan [FR Doc. 05–24008 Filed 12–13–05; 8:45 am] Association and Enfield Mutual Holding BILLING CODE 6720–01–M
VerDate Aug<31>2005 15:29 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00123 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 Wednesday, December 14, 2005
Part II
Department of the Interior Fish and Wildlife Service
50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Astragalus lentiginosus var. coachellae (Coachella Valley Milk-Vetch); Final Rule
VerDate Aug<31>2005 16:33 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\14DER2.SGM 14DER2 74112 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
DEPARTMENT OF THE INTERIOR most listed species, while consuming Procedural and Resource Difficulties in significant amounts of available Designating Critical Habitat Fish and Wildlife Service conservation resources. The Service’s We have been inundated with present system for designating critical lawsuits for our failure to designate 50 CFR Part 17 habitat has evolved since its original critical habitat, and we face a growing RIN 1018–AT74 statutory prescription into a process that number of lawsuits challenging critical provides little real conservation benefit, habitat determinations once they are Endangered and Threatened Wildlife is driven by litigation and the courts made. These lawsuits have subjected the and Plants; Designation of Critical rather than biology, limits our ability to Service to an ever-increasing series of Habitat for Astragalus lentiginosus var. fully evaluate the science involved, court orders and court-approved coachellae (Coachella Valley Milk- consumes enormous agency resources, settlement agreements, compliance with Vetch) and imposes huge social and economic which now consumes nearly the entire costs. The Service believes that listing program budget. This leaves the AGENCY: Fish and Wildlife Service, additional agency discretion would Interior. Service with little ability to prioritize its allow our focus to return to those activities to direct scarce listing ACTION: Final rule. actions that provide the greatest benefit resources to the listing program actions to the species most in need of with the most biologically urgent SUMMARY: We, the U.S. Fish and protection. Wildlife Service (Service), herein species conservation needs. address the designation of critical Role of Critical Habitat in Actual The consequence of the critical habitat for Astragalus lentiginosus var. Practice of Administering and habitat litigation activity is that limited coachellae (Coachella Valley milk- Implementing the Act listing funds are used to defend active vetch) under the Endangered Species lawsuits, to respond to Notices of Intent While attention to and protection of (NOIs) to sue relative to critical habitat, Act of 1973, as amended (Act). In total, habitat is paramount to successful we are designating zero acres of critical and to comply with the growing number conservation actions, we have of adverse court orders. As a result, habitat for Astragalus lentiginosus var. consistently found that, in most coachellae. We identified 17,746 ac listing petition responses, the Service’s circumstances, the designation of own proposals to list critically (7,182 ha) of local, County, State, critical habitat is of little additional Federal, and private lands containing imperiled species, and final listing value for most listed species, yet it determinations on existing proposals are features essential to the conservation of consumes large amounts of conservation A.l. var. coachellae in Riverside County. all significantly delayed. resources. Sidle (1987) stated, ‘‘Because The accelerated schedules of court- However, all habitat with essential the Act can protect species with and features is located within areas to be ordered designations coupled with the without critical habitat designation, need to avoid the risks associated with conserved and managed by the draft critical habitat designation may be Coachella Valley MSHCP/NNCP or noncompliance with judicially imposed redundant to the other consultation deadlines, have left the Service with within areas conserved within the requirements of section 7.’’ Currently, Coachella Valley Preserve System under limited ability to provide for adequate only 470 species, or 37.5 percent of the public participation or to ensure a the Coachella Valley fringe-toed HCP, 1,253 listed species in the U.S. under and therefore is excluded or exempted defect-free rulemaking process before the jurisdiction of the Service, have making decisions on listing and critical from critical habitat under section designated critical habitat. 4(b)(2) or 3(5)(A) of the Act. habitat proposals. This in turn fosters a We address the habitat needs of all second round of litigation in which DATES: This rule becomes effective on 1,253 listed species through January 13, 2006. those who fear adverse impacts from conservation mechanisms such as critical habitat designations challenge ADDRESSES: Comments and materials listing, section 7 consultations, the those designations. The cycle of received, as well as supporting Section 4 recovery planning process, the litigation appears endless, is very documentation used in the preparation Section 9 protective prohibitions of expensive, and in the final analysis of this final rule, will be available for unauthorized take, Section 6 funding to provides relatively little additional public inspection, by appointment, the States, and the Section 10 incidental protection to listed species. during normal business hours at the take permit process. The Service The costs resulting from the Carlsbad Fish and Wildlife Office, 6010 believes that it is these measures that designation include legal costs, the cost Hidden Valley Road, Carlsbad, may make the difference between of preparation and publication of the California 92011. You may obtain copies extinction and survival for many designation, the analysis of the of the final rule and economic analysis species. economic effects and the cost of from this address or by calling (760) We note, however, that the August 6, requesting and responding to public 431–9440, or from our Internet site at 2004, Ninth Circuit judicial opinion, comment, and in some cases the costs http://carlsbad.fws.gov. Gifford Pinchot Task Force v. United of compliance with the National FOR FURTHER INFORMATION CONTACT: Mr. States Fish and Wildlife Service, found Environmental Policy Act (NEPA). None Jim Bartel, Field Supervisor, Carlsbad our definition of adverse modification of these costs result in any benefit to the Fish and Wildlife Office (see ADDRESSES was invalid. In response to the decision, species that is not already afforded by section). the Director has provided guidance to the protections of the Act enumerated SUPPLEMENTARY INFORMATION: the Service based on the statutory earlier, and they directly reduce the language. In this rule, our analysis of the funds available for direct and tangible Designation of Critical Habitat Provides consequences and relative costs and conservation actions. Little Additional Protection to Species benefits of the critical habitat In 30 years of implementing the Act, designation is based on application of Background the Service has found that the the statute consistent with the 9th Astragalus lentiginosus var. designation of statutory critical habitat Circuit’s ruling and the Director’s coachellae is found on loose wind- provides little additional protection to guidance. blown sands in dunes and flats, and in
VerDate Aug<31>2005 16:33 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER2.SGM 14DER2 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74113
sandy alluvial washes in the northern The primary threat to Astragalus habitat designation on or before Coachella Valley area spanning roughly lentiginosus var. coachellae and its November 30, 2005. The proposed rule from the sandy alluvial washes just east habitat is the extensive and growing to designate critical habitat for of Cabezon to the dunes off Washington urban development in the Coachella Astragalus lentiginosus var. coachellae Avenue, north and west of Indio in Valley (63 FR 53596), including was signed on November 30, 2004, and Riverside County, California. At the residential, commercial, and published in the Federal Register on time A. l. var. coachellae was listed agricultural development. Urbanization December 14, 2004 (69 FR 74468). under the Act in 1998, we were aware has both direct and indirect adverse Summary of Comments and that 90 percent of this taxon’s effects on A. l. var. coachellae. Recommendations occurrences were located within 3 mi (5 Urbanization directly destroys suitable km) of Interstate 10 from north of Indio and occupied habitat onsite, and During the initial 60-day public to Cabezon (Barrows 1987; CNDDB indirectly degrades suitable and comment period for the proposed 1996). A majority of these occurrences occupied habitat by blocking the fluvial designation of critical habitat (69 FR were discovered in and around Snow (water) and eolian (wind) transport of 74468), we contacted all appropriate Creek, Whitewater River downstream sand from sand source areas to State, local and Federal agencies, from the percolation ponds, Mission downwind areas of suitable habitat. elected officials, scientific and Morongo Creeks, the Willow Hole Other threats to Astragalus lentiginosus organizations, and other interested Reserve, the Big Dune south of Interstate var. coachellae and its habitat include parties, via mail and/or fax, and invited Highway 10 (I–10), and the Coachella the obstruction of sand transport and them to submit comments and/or Valley Preserve (Coachella Valley competition by dense populations of information concerning the proposed Association of Governments invasive exotic plants, such as Saharan rule. We also published newspaper unpublished data 2004). The largest mustard (Brassica tournefortii) and notices on December 17, 2004, in the populations of up to several thousand Mediterranean grass (Schismus Desert Sun, Palm Springs, CA; Press- plants were found prior to listing in the barbatus), and direct mortality by off- Enterprise, Riverside, CA; San Diego Big Dune area south of I–10, including highway vehicle (OHV) use (63 FR Union-Tribune, San Diego, CA; Orange several thousand plants that were 53596). County Register, Santa Ana, CA; and in discovered again in 2005 (USFWS Previous Federal Actions the Los Angeles Times, Los Angeles, CA, unpublished data 2005). Other areas inviting public comment. The initial The following section summarizes the containing large populations that were comment period ended February 14, Federal actions that occurred since the known prior to listing that contain from 2005. We did not receive any requests rule listing this species as endangered several hundred to a thousand plants for a public hearing prior to the was published in the Federal Register include the Willow Hole reserve area, published deadline. on October 6, 1998. Please refer to the Snow Creek area, and Coachella Valley final listing rule (63 FR 53596) for a A second comment period was open Preserve (Coachella Valley Association discussion of Federal actions that from September 27, 2005, to October 27, of Governments unpublished data occurred prior to the species Federal 2005 (70 FR 56434), announcing the 2004). listing. availability of the September 2005 draft There also exists a disjunct Astragalus At the time of listing we determined economic analysis (DEA) of critical lentiginosus var. coachellae population that designation of critical habitat was habitat designation for Astragalus that was known at the time of listing. ‘‘not prudent’’ (63 FR 53596). On lentiginosus var. coachellae as prepared This population is located November 15, 2001, the Center for by Northwest Economic Associates and approximately 50 miles (80 km) east of Biological Diversity and the California reopening the comment period for the the Coachella Valley in the Chuckwalla Native Plant Society filed a lawsuit proposed rule. All comments and new Valley near the City of Desert Center. against Secretary of the Interior and the information have been incorporated into This population has only been found in Service challenging our ‘‘not prudent’’ this final rule as appropriate. a limited extent on and near a sandy determinations for eight plant species During the first comment period, we roadside berm along a 5-mile (8-km) listed as endangered or threatened, received four comments, including a stretch of Highway 177, northeast of the including Astragalus lentiginosus var. joint letter from two non-profit City of Desert Center. The Palen Dunes, coachellae (Center for Biological organizations, a letter from a county located approximately 3 miles (5 km) Diversity, et al. v. Norton, No. 01 CV agency, a water agency, and a local south of Highway 177, contain sandy 2101, S.D. Cal.). A second lawsuit mining business. All four comment soils that appear suitable for A. l. var. asserting the same challenge was filed letters disagreed with the size and area coachellae. However, it is uncertain on November 21, 2001, by the Building proposed critical habitat: three of the whether the plant occurs in this area Industry Legal Defense Foundation letters requested the reduction of critical since surveys are limited to only one (Building Industry Legal Defense habitat and one letter requested the unsuccessful survey attempt in 1998 Foundation v. Norton, No. 01 CV 2145, expansion of critical habitat to more (Bureau of Land Management, S.D. Cal.). The parties in both cases areas. unpublished data 2001a). agreed to remand the critical habitat During the second comment period, Please refer to the final listing rule determinations for the eight plant we received one comment letter on the published in the Federal Register on species at issue to the Service for draft economic analysis from an October 6, 1998 (63 FR 53596), for a reconsideration. On July 1, 2002, the environmental organization. The detailed discussion on the taxonomic Court directed us to reconsider our not commenter, who also commented history and description of this taxon. It prudent determination and submit to during the first comment period, is our intent in this document to the Federal Register for publication a disagreed with excluding areas from reiterate and discuss only those topics proposed critical habitat designation, if critical habitat and requested that we directly relevant to the development prudent, for Astragalus lentiginosus var. include sand source areas in critical and designation of critical habitat or coachellae on or before November 30, habitat. The commenter also claimed relevant information obtained since the 2004, and to submit to the Federal that the economic analysis grossly final listing. Register for publication of a final critical overestimated the costs associated with
VerDate Aug<31>2005 16:33 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER2.SGM 14DER2 74114 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
conserving Astragalus lentiginosus var. Peer Review Comments var. coachellae, as stated in our rule to coachellae. (1) Comment: A peer reviewer list the species on October 6, 1998 (63 FR 53596). However, we anticipate that Peer Review requested we clarify how critical habitat may provide legal protection to a vandalism to this taxon may not In accordance with our peer review increase since we are working with non- policy published on July 1, 1994 (59 FR federally listed plant on non-Federal lands. Specifically, they sought more Federal landowners on the draft 34270), we solicited independent Coachella Valley MSHCP/NCCP and opinions from four knowledgeable information on several matters, including: (1) Whether non-Federal excluding lands that contain habitat individuals who have expertise with the with features essential to the species, with the geographic region landowners were contacted about the proposed critical habitat designation conservation of the species from critical where the species occurs, and/or with habitat. Furthermore, the draft and inquired about their perspective of the principles of conservation biology. Coachella Valley MSHCP/NCCP is also the proposal; (2) whether non-Federal The purpose of such review is to ensure proposing to protect reserve areas landowners are currently under any that the designation is based on containing A. l. var. coachellae with agreement with State, Federal, or local scientifically sound data, assumptions, fencing and other forms of enforcement. governments for the conservation of this and analyses, including input of These types of actions under a taxon; (3) an assessment of how the appropriate experts and specialists. comprehensive management plan offer proposed designation may open the Of the four individuals contacted, two more protections for federally listed Service to litigation for designating responded. The two peer reviewers that plants, such as A. l. var. coachellae, on critical habitat on non-Federal lands responded generally supported the non-Federal lands than a critical habitat proposal and provided us with and increase vandalism to plants on designation. additional information, clarifications, non-Federal lands. (2) Comment: A peer reviewer and suggestions to improve the final Our Response: First, although some emphasized the importance of critical habitat designation. One habitat containing features essential to protecting various types of habitat, reviewer recommended expanding the the conservation of Astragalus including: (1) Currently unoccupied critical habitat designation to include lentiginosus var. coachellae were habitat; (2) currently unoccupied habitat lands within the draft Coachella Valley determined to occur on non-Federal that was historically occupied; (3) Multiple Species Habitat Conservation lands, these lands were excluded from potential habitat downwind and Plan and Natural Community critical habitat designation because of downstream of current populations; and Conservation Plan (MSHCP/NCCP) that their inclusion in the preferred (4) source sand areas that provide future were proposed for exclusion. This alternative reserve design in the draft habitat in downwind and down- recommendation was based on the fact Coachella Valley MSHCP/NCCP (CVMC drainage areas. Another reviewer stated that the draft Coachella Valley MSHCP/ 2004). that it was unclear in the proposed rule NCCP has yet to be approved and that Second, we did not contact all non- whether these areas were included as effective conservation efforts for Federal landowners whose property critical habitat. Astragalus lentiginosus var. coachellae contained habitat with features essential Our Response: First, the Act defines are, therefore, still unproven. The other to the conservation of this taxon. critical habitat as ‘‘specific areas within peer reviewer did not comment on However, we did inform the public the geographical area occupied by the whether critical habitat should be about the proposed critical habitat species, at the time it is listed * * * on expanded or reduced, but recommended designation through several local which are found those physical and the Service provide more explanation newspapers and with a letter to elected biological features (I) essential to the for our determinations for including or officials and several local, State, Tribal, conservation of the species and (II) excluding certain areas from designated and Federal agencies working in the which may require special management critical habitat. Both peer reviewers Coachella Valley. We also are currently considerations or protection.’’ We have discussed the importance of including working with non-Federal landowners identified all areas within the important sand source areas as critical whose property contains habitats with geographic range of the species that are habitat because they are important for features essential to the conservation of known to be occupied, contain features providing and transporting sediment this taxon on the draft Coachella Valley essential to the conservation of containing new sands to downstream MSHCP/NCCP to conserve habitat for Astragalus lentiginosus var. coachellae, and downwind sandy areas containing this taxon. and that may require special PCEs, even though these areas do not Third, it is not within the scope of a management considerations or contain PCEs that support populations critical habitat designation to determine protection. It is not our current policy of this taxon. Both reviewers suggested whether a designation of critical habitat to include all areas that could ways to improve the clarity of both the on non-Federal lands will make the potentially provide suitable habitat or rule and our decision-making process. Service more vulnerable to litigation. As are not known to be occupied, even if We reviewed all comments, including required under section 4(b)(1)(A) of the they were historically occupied. comments received from the public and Act, we use the best scientific data Second, we agree with the reviewer that peer reviewers during the comment available to determine areas that contain sand source areas are important for the periods, for substantive, relevant issues habitat with features essential to the conservation of A. l. var. coachellae. and new data regarding critical habitat conservation of the species. Ownership However, we have determined that the and Astragalus lentiginosus var. of lands being proposed as critical presence of active sand dunes (primary coachellae. Peer reviewer comments are habitat is relevant to the Secretary’s constituent element (PCE) 1) is an summarized and addressed separately consideration under 4(b)(2) of the Act of essential feature, and we have in the following section. Public relevant factors such as the economic designated them as a PCE (see Primary comments are grouped into three impacts to landowners of designating Constituent Elements for a detailed general issue categories relating to such lands as critical habitat. We also discussion). Therefore, Federal actions critical habitat and the draft economic share concerns that designating critical that affect the sand transport system analysis and addressed in the Public habitat may lead to an increase in will indirectly affect critical habitat. Comments section below. vandalism of Astragalus lentiginosus Because there is already a regulatory
VerDate Aug<31>2005 16:33 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER2.SGM 14DER2 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74115
mechanism within this designation, it is conservation areas that are or will be transport system and ‘‘cut off’’ from the not necessary to designate the sand conserved and managed by Federal and sand sources that maintain suitable source areas themselves. Federally local governments (see section titled habitat for this plant. The long-term funded or permitted projects affecting Application of Section 3(5)(A) and viability of these occurrences is reduced listed species outside their designated Exclusions Under Section 4(b)(2) of the because there is little to no potential critical habitat areas may still result in Act for a more detailed discussion). that the natural ecological processes that jeopardy findings in some cases. (6) Comment: A peer reviewer stated maintain the habitat for A. l. var. (3) Comment: A peer reviewer stated that designating only small tracts of coachellae will return. The length of that one of the benefits of designating land as critical habitat may not be time that these isolated occurrences will critical habitat is that it helps in beneficial because of the movement of remain into the future depends upon a identifying extant populations of suitable habitat through time due to variety of site-specific factors such as Astragalus lentiginosus var. coachellae wind and flooding, thus resulting in the degree of isolation from the sand when initiating Section 7 consultations. these areas becoming unsuitable. transport system, size and scale of the Our Response: We agree with the Our Response: First, as discussed development that is blocking the reviewer that there is an educational above in Comment #5, we have downstream movement of sediment, benefit of designating critical habitat excluded in this final rule all areas that and the rate of sand loss around the because it identifies areas that contain were proposed as critical habitat. plant population. Management efforts features essential to the conservation of Second, the reason only small tracts of may substitute for the natural ecological the species that may require special lands were originally proposed as processes by mechanically transferring management protection or critical habitat was because larger sand to areas ‘‘cut off’’ from sand considerations, and this may provide adjacent areas with habitat containing sources. These management practices information to Federal agencies required features essential to conservation of this are discussed below (see section titled to consult with us on their actions. taxon were either excluded from the Special Management Considerations or (4) Comment: The same peer reviewer designation because they are proposed Protection). stated that another benefit of for protection under the draft Coachella (9) Comment: A peer reviewer designating critical habitat is identifying Valley MSHCP/NCCP. We believe that questioned why there were no Agua unoccupied areas that may be important these conservation practices will garner Caliente Reservation lands included areas for supporting Astragalus more conservation benefits than a within critical habitat if there are lentiginosus var. coachellae populations critical habitat designation (see section significant populations on these lands. in the future. titled Application of Section 3(5)(A) and Our Response: We recognize that Our Response: We agree with the Exclusions Under Section 4(b)(2) of the important populations exist on Agua reviewer that unoccupied areas may be Act for a more detailed discussion). Caliente Reservation lands in the Big important for the recovery of the taxon (7) Comment: A peer reviewer stated Dune area. However, we determined by supporting future Astragalus that there is value in the process for that these areas did not contain features lentiginosus var. coachellae determining critical habitat because it essential to the conservation of this populations. However, it is not the has allowed for an assessment of areas taxon because the ecological processes intent of the Act to designate critical with habitat that contain features that maintain suitable habitat in this habitat throughout a taxon’s entire essential to the conservation of the area from the Whitewater River sand range, including areas that potentially taxon, even though not all these areas transport system have been could be occupied. We have identified are being proposed because they are compromised by development in areas known to be occupied at the time being addressed in other management Cathedral City. New eolian sands are of listing and known to be currently plans. prevented by development from occupied that contain habitat with Our Response: We agree with the replenishing the Big Dune area. We have features essential to the conservation of reviewer and have discussed this later determined that without these this taxon. in the rule (see Relationship of Critical ecological processes the long-term (5) Comment: A peer reviewer stated Habitat to the Pending Coachella Valley prospect of Astragalus lentiginosus var. that it is beneficial to exclude areas from Multiple Species Habitat Conservation coachellae populations in this area is critical habitat if the area is already Plan and Natural Community reduced. protected through the Federal or local Conservation Plan and Natural (10) Comment: A peer reviewer stated government ownership as well as Community Conservation Plan that we should include a discussion on through private reserves. (MSHCP/NCCP) for a detailed the best and worst case scenarios for Our Response: We agree with the discussion). Astragalus lentiginosus var. coachellae reviewer. A critical habitat designation (8) Comment: A peer reviewer stated protections once the draft Coachella will not afford as much protection for an that there are many occurrences of Valley MSHCP/NCCP is finalized. area containing habitat with features Astragalus lentiginosus var. coachellae Our Response: The impacts and essential to the conservation of on sites that are ‘‘cut off’’ from sand conservation measures provided for Astragalus lentiginosus var. coachellae sources by intervening land uses. The Astragalus lentiginosus var. coachellae as would be afforded under Federal, peer reviewer suggests that the rule under the draft Coachella Valley State, Tribal, or local ownership would be more clear if it described how MSHCP/NCCP will be analyzed as part provided the property is managed for long these sites might be expected to of a section 7 consultation for the the conservation of this taxon. Also, support viable populations and whether issuance of a section 10(a)(1)(B) permit under the definition of critical habitat, these occurrences can be meaningful to to the Coachella Valley Association of we can only include lands in critical long-term conservation for the plant, Governments (CVAG) and local habitat if the essential features may and whether management efforts could jurisdictions. The Service has not require special management help protect these populations. completed the section 7 consultation for considerations or protection. Thus, we Our Response: We agree with the this section 10 permit at this time. have excluded all areas containing reviewer that there are occurrences of However, we are confident that CVAG features essential to the conservation of Astragalus lentiginosus var. coachellae will reach a successful conclusion to its this taxon due to their inclusion within that are now isolated from the sand MSHCP/NCCP development process
VerDate Aug<31>2005 16:33 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER2.SGM 14DER2 74116 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
and successfully conserve habitat for the species or result in the destruction management based on monitoring Astragalus lentiginosus var. coachellae or adverse modification of critical results. The facets are interrelated and to meet the requirements outlined in habitat. Section 9 of the Act includes their integration will test assumptions section 10(a)(1)(B) of the Act. The draft prohibitions on the removal and systematically in order to adapt and MSHCP/NCCP proposes to conserve reduction to possession; maliciously learn. 19,321 ac (7,819 ha) of modeled A. l. damaging or destroying, or removing, (14) Comment: A peer reviewer stated var. coachellae habitat in their cutting, digging up, or damaging or that the Service’s analysis of the benefits Conservation Areas that includes large destroying in knowing violation of any of excluding lands covered under the core habitat areas and other important state law; or in violation of a state draft Coachella Valley MSHCP/NCCP conservation areas, such as sand sources criminal trespass law of A. l. var. did not present a cogent argument for and sand transport corridors. Other coachellae on Federal lands. why the benefits of excluding critical goals include: (1) Protecting other The Bureau of Land Management habitat within the draft Coachella Valley important conservation areas to allow (BLM) continues to manage Astragalus MSHCP/NCCP outweigh the benefits of for population fluctuation and promote lentiginosus var. coachellae under the inclusion. genetic diversity; (2) protecting California Desert Conservation Act and Our Response: We believe that our necessary ecological processes, other authorities, including section 7 of argument for excluding non-Federal including the sand transport systems, the Act. We have made significant lands within the draft Coachella Valley that will be beneficial in maintaining progress in completing the Coachella MSHCP/NCCP emphasizes the point the PCEs in the areas containing features Valley MSHCP/NCCP and we believe that benefits of a comprehensive essential for the conservation of A. l. that the plan would provide a greater management plan that covers a federally var. coachellae; (3) maintaining level of conservation to A. l. var. listed plant on non-Federal lands will biological corridors and linkages among coachellae than would sections 4, 7, and garner more conservation benefits than all conserved populations to the 9 of the Act by themselves. The plan designating critical habitat (see section maximum extent feasible; and (4) provides for the conservation of core titled Relationship of Critical Habitat to ensuring conservation of habitat quality habitat areas and other conserved the Pending Coachella Valley Multiple through biological monitoring and habitats that would benefit the species, Species Habitat Conservation Plan and adaptive management actions. protects necessary ecological processes Natural Community Conservation Plan Therefore, we have excluded under and biological corridors and linkages, and Natural Community Conservation section 4(b)(2) of the Act all lands implements monitoring and Plan (MSHCP/NCCP) for a more detailed containing features essential for the management programs, and restricts discussion). conservation of A. l. var. coachellae activities that result in adverse impacts Comments From the State within the Coachella Valley MSHCP/ to this plant. NCCP plan area (see section titled (12) Comment: A peer reviewer stated Section 4(i) of the Act states, ‘‘the Pending Coachella Valley Multiple that we should include a discussion on Secretary shall submit to the State Species Habitat Conservation Plan and the Service’s authority (if any) to agency a written justification for her Natural Community Conservation Plan monitor compliance of the Coachella failure to adopt regulation consistent MSHCP/NCCP for a more detailed Valley MSHCP/NCCP and ensure that with the agency’s comments or discussion). conservation measures for Astragalus petition.’’ No comments were received (11) Comment: A peer reviewer stated lentiginosus var. coachellae are from the State regarding the proposal to that we should include a discussion on implemented as proposed in the draft designate critical habitat for the what options the Service has for plan. Astragalus lentiginosus var. coachellae. conservation of Astragalus lentiginosus Our Response: Section 10(a)(2)(B) of the Act specifies that an incidental take Comments Related to the Process of var. coachellae if the draft Coachella Designating Critical Habitat Valley MSHCP/NCCP is never finalized. permit ‘‘shall contain such terms and Our Response: In the absence of an conditions as the Secretary deems (15) Comment: One commenter stated approved Coachella Valley MSHCP/ necessary or appropriate to carry out the that the Service failed to cite any NCCP, Astragalus lentiginosus var. purposes of this paragraph, including, scientific evidence supporting our coachellae would continue to receive but not limited to, such reporting decision to exclude certain areas with means for protection and be provided a requirements as the Secretary deems habitat containing features essential to program for its conservation under the necessary for determining whether such the conservation of the taxon from the Act. Under section 4 of the Act, the terms and conditions are being critical habitat designation. Service would develop and implement complied with.’’ The draft Coachella Our Response: Section 4(b)(2) of the a recovery plan for A. l. var. coachellae, Valley MSHCP/NNCP includes Act allows us to consider the economic, although there are currently no plans by monitoring and reporting requirements national security, and any other relevant the Service to fund or finish preparing that will be incorporated into any impact of specifying any particular area a recovery plan. However, permit issued under the plan. as critical habitat. An area may be implementation of a recovery plan by (13) Comment: The same peer excluded from critical habitat if it is landowners, Federal agencies, and other reviewer also stated that the Service determined that the benefits of parties is voluntary. Section 7(a)(1) of should describe any proposed exclusion outweigh the benefits of the Act calls for Federal agencies monitoring or adaptive management in specifying a particular area as critical (including the Department of the the draft plan that might ensure habitat, unless the failure to designate Interior), in consultation with and adequate remedial work that will be such area as critical habitat will result assistance from the Secretary of the done if needed. in the extinction of the species. As Interior, to utilize their authorities in Our Response: The draft Coachella outlined in the proposed rule, we furtherance of the purposes of the Act. Valley MSHCP/NCCP follows an determined the benefits of exclusion Section 7(a)(2) of the Act requires adaptive management approach that outweigh the benefits of including lands Federal agencies to ensure that any involves development of objectives, covered by the draft Coachella Valley Federal action would not likely conceptual models of system dynamics, MSHCP/NCCP. We have also clarified jeopardize the continued existence of a monitoring program, and changes to our determination that exclusion of
VerDate Aug<31>2005 16:33 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER2.SGM 14DER2 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74117
these areas will not result in extinction outweigh the benefits of including these Several of the CNDDB records are in of the species (see section titled areas as designated critical habitat and habitats that are severely degraded due Relationship of Critical Habitat to the applying another regulatory hardship on to significant disturbance from nearby Pending Coachella Valley Multiple HCP participants for lands that are development. Additionally, in Species Habitat Conservation Plan and already or will conservation benefits for determining areas containing essential Natural Community Conservation Plan A. l. var. coachellae. features, we compiled a larger dataset of and Natural Community Conservation (17) Comment: A commenter stated Astragalus lentiginosus var. coachellae Plan (MSHCP/NCCP) for a more detailed that there is a benefit of having locations than just the CNDDB records. discussion). designated critical habitat in excluded It is evident from our data that we have (16) Comment: A commenter areas should the draft Coachella Valley captured a majority of the high quality contended that Habitat Conservation MSHCP/NCCP and Coachella Valley locations within areas possessing Plans (HCPs: In this case the draft Fringe-Toed Lizard HCP falter in their features essential to the conservation of Coachella Valley MSHCP/NCCP) have conservation mandate. this taxon. High-quality locations very different goals for species Our Response: If these HCPs were to include those sites with PCEs and are conservation than critical habitat fail in their conservation mandate, it within areas still functioning as part of designations. HCPs allow for take of would be possible for the Service to re- one of the three major sand transport covered species, reducing species propose these areas for critical habitat systems in the Coachella Valley. We numbers that are already in crisis of designation. However, the Service has believe we captured locations that have extinction even further and further determined that the benefits of the best prognosis for long-term survival reducing listed species opportunity for designating critical habitat in these and are the areas essential to the recovery. Whereas, a critical habitat areas do not outweigh the benefits of conservation of the taxon. Our proposed designation and protection are meant to excluding these areas from designation rule for critical habitat designation of A. promote recovery of the species (section while these lands are covered under l. var. coachellae clearly mapped areas 3(3) and 3(5) of the Act; F.3d 434 and either the Coachella Valley MSHCP or that were being proposed as critical the August 6, 2004, Ninth Circuit the Coachella Valley Fringe-Toed Lizard habitat as well as areas that were judicial opinion, Gifford Pinchot Task HCP, and therefore have excluded these proposed for exclusion. We do not Force v. United State Fish and Wildlife areas from designation. believe that it should have been Service). Furthermore, under the Act, (18) Comment: One commenter confusing to determine as to whether ‘‘essential habitat’’ and ‘‘unoccupied expressed their concern that any the CNDDB records were located either areas’’ that are critical to the species designation of critical habitat within the within proposed areas, excluded areas, survival and recovery have no legal draft Coachella Valley MSHCP/NCCP or areas not containing features essential definition and therefore no legal Plan Area may jeopardize the to the conservation of A. l. var. standing under the law. As a result, the participation by various cities in the coachellae. commenter contended that by not Plan. We also do not believe that all areas designating critical habitat as required, Our Response: It is our determination containing features essential to the the Service is an abdication of that maintaining partnerships in the conservation of Astragalus lentiginosus responsibility to follow the law. planning process for the Coachella var. coachellae should be designated Our Response: The Service has Valley MSHCP/NCCP will provide a critical habitat if they are within areas operated under the Secretary’s greater conservation benefit to that are already receiving or will very discretion to exclude areas from critical Astragalus lentiginosus var. coachellae likely receive management benefits to habitat if the benefits of such exclusion than designating critical habitat on this taxon (see section titled Application outweigh the benefits of its inclusion. lands under these partners’ auspices of Section 3(5)(A) and Exclusions Under Section 4(b)(2) of The Act states ‘‘the and potentially losing their Section 4(b)(2) of the Act for a more Secretary shall designate critical habitat, participation in the Plan. detailed discussion). On the same note, and make revisions thereto, under (19) Comment: A commenter stated we do not believe that excluding critical subsection (a)(3) on the basis of the best that the proposed critical habitat habitat based on existing or pending scientific data available and after taking included only one of twenty-six habitat conservation plans would set into consideration the economic impact, Astragalus lentiginosus var. coachellae back the recovery potential of A. l. var. and any other relevant impact, of locations recorded in the California coachellae since these plans provide specifying any particular area as critical Natural Diversity Database (CNDDB). more conservation benefits than would habitat. The Secretary may exclude any They also stated that it is unclear if the be provided by designating these areas area from critical habitat if he remaining locations are within lands as critical habitat. As a result, we determines that the benefits of such excluded from the designation, and believe that the long-term partnerships exclusion outweigh the benefits of commented that all lands with habitat that are formed by agreeing to habitat specifying such area as part of the essential to the conservation of the conservation plans or other critical habitat, unless he determines, taxon should be included as critical conservation plans that provide based on the best scientific data habitat. They also stated excluding conservation benefits to A. l. var. available, that the failure to designate critical habitat would hurt the recovery coachellae work more effectively toward such area as critical habitat will result potential of the taxon. promoting the recovery of this taxon in the extinction of the species Our Response: Ten of twenty-eight than would a critical habitat concerned.’’ CNDDB records (there are 28 records designation. The Service’s exclusion of areas rather than 26 as stated in the comment) (20) Comment: One commenter stated containing features essential to the were captured within areas that we have that the critical habitat designation conservation of Astragalus lentiginosus determined contain features essential to suffers from a lack of habitat var. coachellae from critical habitat is the conservation of this taxon. In connectivity. based on the inclusion of these areas determining these areas, it is important Our Response: We recognize that within conservation areas of a nearly not only to look at quantity of locations habitat connectivity is an important approved HCP. The benefits to A. l. var. that were captured, but also the quality aspect of a critical habitat designation coachellae that are garnered from a HCP of the locations that were captured. because this allows for gene flow
VerDate Aug<31>2005 16:33 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER2.SGM 14DER2 74118 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
between populations and recolonization taxon. We changed our mapping Act to include every population of areas with endangered or extirpated procedure for the final designation and throughout a species’ range within populations. We used the best available abandoned use of the grid system. critical habitat. The commenters did not scientific data to develop the criteria Instead, the legal UTM coordinates for provide information indicating the used to delineate critical habitat the boundary of the critical habitat significance of the Desert Center boundaries associated with both recent followed precisely with the boundary of population or what other peripheral occurrences and occurrences known at the areas containing essential features. populations should have been included the time of listing (see Criteria Used To As a result, all CVWD lands containing within critical habitat. Identify Critical Habitat). We recognize features essential for the conservation of (25) Comment: A commenter that designation of critical habitat may this taxon were excluded from critical requested clarification on the area of not include all of the habitat areas that habitat designation pursuant to section proposed critical habitat in Unit 1 may eventually be determined to be 4(b)(2) of the Act. outside the bounds of the Whitewater necessary for the recovery of the Granite Construction Company lands Floodplain Conservation Area species. For these reasons, critical were also included within the legal (southeast of the Conservation Area). habitat designations do not signal that maps for the same reasons. After the Our Response: This area has been habitat outside the designation is change in our mapping process for the determined to not contain features unimportant or may not be required for final designation, Granite Construction essential to the conservation of recovery. Company lands are no longer in critical Astragalus lentiginosus var. coachellae habitat because they do not contain and has been removed from critical Comments Related to Site-Specific habitat with features essential to the habitat. Areas and Unoccupied Areas Identified conservation of this taxon. Comments Related to the Draft for Possible Inclusion (23) Comment: Two commenters Economic Analysis (21) Comment: One commenter requested that BLM lands north of the requested that unoccupied areas percolation ponds be removed from (26) Comment: A commenter stated identified in the proposed rule as being critical habitat because it is not suitable that the draft economic analysis (DEA) important to maintain fluvial and eolian habitat. One of these commenters also should have included an analysis of processes be included as part of the requested that all remaining BLM lands benefits, such as maintaining natural final critical habitat designation. within the draft Coachella Valley flood control processes along Our Response: See response to MSHCP/NCCP Plan be excluded from waterways, amenity values, open space, Comment #2 above. critical habitat because the BLM’s flood/drought mitigation, and (22) Comment: A commenter stated California Desert Conservation Area detoxification and decomposition of that not all Coachella Valley Water Plan Amendment (CDCAPA) for the wastes. District (CVWD) lands were excluded Coachella Valley already requires BLM Our Response: In the context of a from the critical habitat designation, to manage their lands consistent with critical habitat designation, the primary possibly due to the Service’s use of the Coachella Valley MSHCP/NCCP. purpose of the rulemaking (i.e., the outdated parcel data. Similarly, another Our Response: We agree with the direct benefit) is to designate areas in commenter stated that we should commenter and all BLM lands that were need of special management that remove all Granite Construction proposed as critical habitat are excluded contain the features that are essential to Company property from critical habitat from designation in this final rule based the conservation of listed species. designation and suggested that its on BLM’s commitment under their The designation of critical habitat inclusion may be due to errors in parcel CDCAPA to manage their lands may result in two distinct categories of data. consistent with the draft Coachella benefits to society: (1) Use; and (2) non- Our Response: We excluded all Valley MSHCP once it is completed (see use benefits. Use benefits are simply the CVWD lands from critical habitat section titled Relationship of Critical social benefits that accrue from the because of their participation and Habitat to the Pending Coachella Valley physical use of a resource. Visiting anticipated signatory status in the draft Multiple Species Habitat Conservation critical habitat to see endangered Coachella Valley MSHCP/NCCP Plan and Natural Community species in their natural habitat would be planning process (see Discussion in Conservation Plan and Natural a primary example. Non-use benefits, in Relation of Critical Habitat to the Community Conservation Plan contrast, represent welfare gains from Pending Coachella Valley Multiple (MSHCP/NCCP) for a more detailed ‘‘just knowing’’ that a particular listed Species Habitat Conservation Plan/ discussion). species’ natural habitat is being Natural Communities Conservation Plan (24) Comment: One commenter stated specially managed for the survival and (MSHCP/NCCP)). The inclusion of that the Astragalus lentiginosus var. recovery of that species. Both use and CVWD property within the critical coachellae population located north of non-use benefits may occur habitat designation was an artifact of Desert Center also be included as unaccompanied by any market our mapping process during the critical habitat since it represents an transactions. proposed rule for describing legal important peripheral population. The A primary reason for conducting this boundaries for areas with habitat commenter also discusses other analysis is to provide information containing features essential for the peripheral populations that were not regarding the economic impacts conservation of this taxon. The mapping included. associated with a proposed critical process for the proposed rule overlaid a Our Response: Although the habitat designation. Section 4(b)(2) of 100m by 100m grid on areas containing Astragalus lentiginosus var. coachellae the Act requires the Secretary to essential features to create an outer population in Desert Center appears designate critical habitat based on the boundary that was used to describe the unusual because it is so disjunct from best scientific data available after taking legal Universal Transverse Mercator the main center of the taxon’s range, we into consideration the economic impact, (UTM) coordinates. In some areas, this do not have any information indicating and any other relevant impact, of process captured excluded Water that this population has special specifying any particular area as critical District lands containing essential demographic, ecological, or genetic habitat. Economic impacts can be both features for the conservation of this significance. It is not the intent of the positive and negative and by definition,
VerDate Aug<31>2005 16:33 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER2.SGM 14DER2 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74119
are observable through market Our Response: The DEA discusses future conservation-related impacts to transactions. other relevant regulations and be co-extensive with the designation. Where data are available, this analysis protection efforts for other listed species (29) Comment: A commenter attempts to recognize and measure the that include Astragalus lentiginosus var. contended that pre-designation impacts net economic impact of the proposed coachellae and its habitat. In general, are attributed to the listing of the designation. For example, if the fencing the analysis errs conservatively in order species and not critical habitat, and of a species’ habitat to restrict motor to make certain the economic effects therefore should not be included in the vehicles results in an increase in the have not been missed. It treats as DEA. number of individuals visiting the site ‘‘coextensive’’ other Federal and State Our Response: The primary purpose for wildlife viewing, then the analysis requirements that may result in of the economic analysis is to estimate would recognize the potential for a overlapping protection measures (e.g., the potential economic impacts positive economic impact and attempt California Environmental Quality Act) associated with the designation of to quantify the effect (e.g., impacts that for the plant. The economic analysis critical habitat for Astragalus would be associated with an increase in distributes the cost of conserving A. l. lentiginosus var. coachellae. The Act tourism spending by wildlife viewers). var. coachellae habitat equally among defines critical habitat to mean those In this particular instance, however, the the number of other listed species likely specific areas that are essential to the economic analysis did not identify any to co-exist with A. l. var. coachellae as conservation of the species. The Act credible estimates or measures of indicated by the historical also defines conservation to mean the positive economic impacts that could consultations. None of the past A. l. var. use of all methods and procedures offset some of the negative economic coachellae consultations focused solely necessary to bring any endangered impacts analyzed earlier in this on A. l. var. coachellae but rather on species or threatened species to the analysis. other listed and sensitive species co- point at which the measures of the Act Under Executive Order 12866, OMB occurring in the area. Within a are no longer necessary. Thus we directs Federal agencies to provide an biological opinion or HCP that covers interpret the Act to mean that the assessment of both the social costs and several species, we are unable to economic analysis should include all of benefits of proposed regulatory actions. accurately segregate out the cost for an the economic impacts associated with OMB’s Circular A–4 distinguishes two individual species from the rest of the the conservation of the species, which types of economic benefits: direct species covered in the biological may include some of the effects benefits and ancillary benefits. opinion or HCP. associated with listing because the Ancillary benefits are defined as species was listed prior to the proposed (28) Comment: The same commenter favorable impacts of a rulemaking that designation of critical habitat. We note stated that the DEA does not make a are typically unrelated, or secondary, to that the Act generally requires critical distinction between the costs of listing the statutory purpose of the rulemaking. habitat to be designated at the time of the species under the Act versus In the context of critical habitat, the listing, and, that had we conducted an designating critical habitat. primary purpose of the rulemaking (i.e., economic analysis at that time, the the direct benefit) is the potential to Our Response: The economic analysis impacts associated with listing would enhance conservation of the species. is intended to assist the Secretary in not be readily distinguishable from The published economics literature has determining whether the benefits of those associated with critical habitat documented that social welfare benefits excluding particular areas from the designation. can result from the conservation and designation outweigh the biological (30) Comment: A commenter recovery of endangered and threatened benefits of including those areas in the questioned the framework for species. In its guidance for designation. Also, this information quantifying conservation-related costs implementing Executive Order 12866, allows us to comply with direction from in the DEA of critical habitat for OMB acknowledges that it may not be the U.S. 10th Circuit Court of Appeals Astragalus lentiginosus var. coachellae feasible to monetize, or even quantify, that ‘‘co-extensive’’ effects should be for flood control projects, local the benefits of environmental included in the economic analysis to transportation projects, California regulations due to either an absence of inform decision-makers regarding which Department of Transportation (Caltrans) defensible, relevant studies or a lack of areas to designate as critical habitat mitigation, and all other projects within resources on the implementing agency’s (New Mexico Cattle Growers Association the boundaries of the draft Coachella part to conduct new research. Rather v. U.S. Fish and Wildlife Service (248 Valley MSHCP/NCCP as these projects than rely on economic measures, the F.3d 1277)). and the costs associated with them are Service believes that the direct benefits This analysis identifies those covered under the draft Coachella of the proposed rule are best expressed potential activities believed to be most Valley MSHCP/NCCP. in biological terms that can be weighed likely to threaten Astragalus Our Response: As described in against the expected cost impacts of the lentiginosus var. coachellae and its Section 8.6.2 of the DEA, the post- rulemaking. habitat and, where possible, quantifies designation Coachella Valley MSHCP/ We have accordingly considered, in the economic impact to avoid, mitigate, NCCP costs captured by the DEA evaluating the benefits of excluding or compensate for such threats within include management, monitoring, and versus including specific area, the the boundaries of the critical habitat administration of the Coachella Valley biological benefits that may occur to a designation. Where critical habitat is MSHCP/NCCP reserve system. These species from designation (see below, being proposed after a species is listed, costs are calculated and allocated based Exclusions Under section 4(b)(2) of the some future impacts may be on the rate of projected development Act), but these biological benefits are unavoidable, regardless of the final within the units. Other non- not addressed in the economic analysis. designation and exclusions under development related activities also (27) Comment: The same commenter section 4(b)(2). However, due to the contribute funds toward the objected to the attribution of difficulty in making a credible management, monitoring and conservation costs that benefit multiple distinction between listing and critical management of the Coachella Valley sympatric species solely to Astragalus habitat effects within critical habitat MSHCP/NCCP. As described in Section lentiginosus var. coachellae in the DEA. boundaries, this analysis considers all 6.1.2.2 of the DEA, CVAG, the joint
VerDate Aug<31>2005 16:33 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER2.SGM 14DER2 74120 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
powers authority functioning as lead coachellae, has been developed for the include these impacts. The final agency for the preparation of the draft Agua Caliente Indian Reservation. In the economic analysis will update Section Coachella Valley MSHCP/NCCP, is proposed rule, we did not identify 5.1.4 and Table 15 to exclude these expected to contribute approximately $1 habitat on Agua Caliente Tribal lands as costs; however, the final results of the million toward management, containing features essential for the report are not changed by this comment. monitoring, and administration of the conservation of the Astragalus (35) Comment: A commenter asserted Coachella Valley MSHCP/NCCP for lentiginosus var. coachellae, thus, no that the methodology used to quantify transportation projects. The costs pre or post-designation costs are development impacts in the DEA is related to these transportation projects estimated on Tribal lands as associated questionable as it assumes that habitat are not captured in the estimated with the critical habitat designation. will be destroyed and it does not Coachella Valley MSHCP/NCCP costs. (33) Comment: A commenter examine the ability of habitat to be Furthermore, as described in Sections questioned the relevancy of some of the acquired. 6.1.2.3 and 8.1.1.2 of the DEA, the costs development-related Astragalus Our Response: Section 2.2.2.1 of the captured in the DEA for Caltrans lentiginosus var. coachellae DEA describes the model applied to mitigation and flood control are related conservation costs described in Table estimate impacts to development. The to land acquisitions, and land 13. Specifically, the commenter draft Coachella Valley MSHCP/NCCP acquisition costs were not captured in questioned the inclusion of costs that do has proposed implementation of a one- the estimated Coachella Valley MSHCP/ not directly or indirectly benefit A. l. time mitigation fee for future NCCP costs. The Coachella Valley var. coachellae. development within the boundaries of MSHCP/NCCP costs estimated in the Our Response: As described in the Coachella Valley MSHCP/NCCP. DEA include management, monitoring, Section 5.1 of the DEA, the section 7 These funds will be used by the County and administration of the Coachella consultation history involving to finance the future acquisition of lands Valley MSHCP/NCCP reserve system. Astragalus lentiginosus var. coachellae for the Coachella Valley MSHCP/NCCP (31) Comment: The same commenter and development projects was reserve and are captured by the DEA reviewed. The consultation history for questioned the use of cost information (Section 5.2.1). The DEA assumes that A. l. var. coachellae provides the types from the draft Coachella Valley MSHCP/ development is allowed in habitat areas of conservation activities incurred by NCCP in the DEA since the Coachella if appropriate mitigation fees paid. That developers for conserving A. l. var. Valley MSHCP/NCCP is not yet is, this open city modeling approach coachellae and its habitat. The costs finalized and will not be prior to final assumes that land is not lost to associated with these consultations are designation of critical habitat for development, but instead that not included in the DEA as these Astragalus lentiginosus var. coachellae. development occurs with mitigation, for Our Response: As described in projects occurred in areas not identified example, preserving habitat outside the Section 1.3 of the DEA, estimates of in the proposed CHD. However, the footprint of the development project. It post-designation effects are based on information on the conservation activities that are ‘‘reasonably activities is provided for background is uncertain which specific areas foreseeable,’’ including, but not limited information on conservation efforts for containing essential features may be to, activities that are currently the species and its habitat. Furthermore, developed during the forecast period authorized, permitted, or funded, or for while the commenters do not cite and when those areas may be which proposed plans are currently specific examples of costs included in developed. By assuming that all future available to the public. The draft the analysis that do not directly or development is allowed in habitat areas Coachella Valley MSHCP/NCCP falls indirectly benefit A. l. var. coachellae, with appropriate mitigation fees, the under this latter category. While in draft this analysis does not include DEA captures the cost to development form, planning and development of the conservation costs for activities that do projects of protecting the plant and its Coachella Valley MSHCP/NCCP began not benefit A. l. var. coachellae. habitat. 12 years ago in 1994, and it is (34) Comment: A commenter (36) Comment: A commenter anticipated that the Coachella Valley questioned the DEA’s derivation of the requested clarification on whether the MSHCP/NCCP will become permitted ‘‘not allocated’’ pre-designation costs of Whitewater River/Thousand Palms by year-end 2005. Furthermore, as conserving Astragalus lentiginosus var. Flood Control project is covered under described in response to Issue 1, coachellae incurred by development in the draft Coachella Valley MSHCP/ considering the Coachella Valley essential habitat in Table 15 of the DEA. NCCP, if it is on hold due to lack of MSHCP/NCCP costs captured by the Our Response: The commenter is funding, or if it is moving forward. DEA are separate from the estimated correct; Section 5.1.4 and Table 15 in Our Response: As described in non-development-related costs, there the DEA are incorrect. Based on the Section 8.2.1 of the DEA, ‘‘Currently, are no double counting issues. consultation history for Astragalus the flood control project has been (32) Comment: A commenter lentiginosus var. coachellae, there have delayed due to a lack of funding for the questioned the consistency in the been five informal consultations and project. Therefore, at this time it is not allocation of habitat conservation plan- one formal consultation where the possible to determine what, if any, related costs to Astragalus lentiginosus project proponent was required to additional measures may be required var. coachellae in the DEA. In implement A. l. var. coachellae due to the proposed project redesign. particular, the commenter questioned conservation efforts. However, because However, the flood control project is a why conservation costs to develop the these projects occurred in areas not ‘‘Covered Activity’’ in the draft Agua Caliente Band of Cahuilla Indians identified in the proposed critical Coachella Valley MSHCP.’’ HCP were not allocated to costs of habitat designation, costs associated (37) Comment: A commenter critical habitat for Astragalus with these consultations are not questioned the ‘‘not allocated’’ pre- lentiginosus var. coachellae. included in this analysis. While the text designation costs in Table 27 of the DEA Our Response: As described in and table in Section 5.1.4 of the DEA of conserving Astragalus lentiginosus Section 3.4 of the DEA, a draft HCP describe and estimate pre-designation var. coachellae incurred by the BLM in proposing coverage for 24 species, costs for these projects, the remaining areas containing features essential to the including Astragalus lentiginosus var. tables and text appropriately do not conservation of A. l. var. coachellae.
VerDate Aug<31>2005 16:33 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER2.SGM 14DER2 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74121
Our Response: The commenter (40) Comment: A commenter if the action results in a section 7 identified a mistake in Table 27 of the questioned the use of ‘‘low income consultation. This analysis DEA. These costs occurred in areas not farmers’’ as an example of a group that appropriately identifies and analyzes identified in the proposed critical may be adversely affected by species economic impacts on activities that may habitat designation and should not be conservation in Section 1.1 of the DEA. occur on private lands within the included in this Table. The remaining The commenter stated that no Federal proposed critical habitat areas. tables and text in the DEA appropriately nexus exists for farming activity and Furthermore, the DEA is not limited to do not include these impacts. The final therefore farming is exempt from any only those activities with a Federal economic analysis will update Table 27 regulation by the Endangered Species nexus. As described in Section 1.1, the to exclude these costs; however, the Act. DEA quantifies costs associated with final results of the report are not Our Response: As described in measures taken to protect the species changed by this comment. Appendix A of the DEA, approximately and its habitat, not just section 7-related (38) Comment: A commenter stated 39 ac (16 ha ) of private lands in Units costs. the cost model used in the DEA to 1 and 2 are classified as agriculture land (43) Comment: A commenter stated estimate the administrative cost of and were included in proposed critical Section 4.3.2 of the DEA must be section 7 consultation is highly inflated. habitat. While the number of agriculture modified to clarify that benefits are Our Response: As described in acres was negligible in the proposed limited to areas where Astragalus Section 2.2 of the DEA, the cost model rule, and actually not designated as lentiginosus var. coachellae and fringe- is based on a survey of Federal agencies critical habitat in the final rule, the use toed lizard are sympatric, not through and Service Field Offices across the of farmers as an example of a group of the whole range of A. l. var. coachellae. country and the costs are believed to be individuals that could be impacted in Our Response: This comment clarifies statements in the DEA on page 46. This representative of the typical range of Section 1.1 of the DEA is simply for comment does not change the results of costs of the section 7 consultation illustrative purposes and is considered the report. process. Throughout the development of appropriate. In addition, while a Federal the DEA, stakeholders were asked nexus may not exist for farming Summary of Changes From the whether the range of estimated activities, the DEA quantifies Proposed Rule coextensive effects. As defined in consultation costs was reasonable. In In developing the final designation of the case that stakeholders anticipated Section 1.2, the DEA estimates impacts associated with overlapping protective critical habitat for Astragalus higher or lower costs, this improved measures of other Federal, State, and lentiginosus var. coachellae, we information would be applied in the local laws that aid habitat conservation reviewed peer and public comments DEA. No stakeholders indicated, in the areas proposed for designation. received on the proposed designation of however, that the range of costs applied (41) Comment: A commenter critical habitat published on December in the DEA was inappropriate. requested that a more equitable input- 14, 2004 (69 FR 74468) and draft (39) Comment: A commenter stated output model be used to evaluate the economic analysis published on that the cost estimates of species regional economic effects in the DEA. September 27, 2005 (70 FR 56434); conservation as provided in the DEA Our Response: As described in conducted further evaluation of lands conflict with the cost estimated in the Section 1.1.2.2 of the DEA, it was proposed as critical habitat; updated our draft Coachella Valley MSHCP/NCCP. assumed that development is not mapping parcel data; and were more Therefore, either the DEA or the draft restricted by critical habitat designation, precise with our mapping. Coachella Valley MSHCP/NCCP but that developers will instead mitigate We modified our mapping process in contains errors in its impact estimates. their activities through mitigation fee the final rule from the proposed rule to Our Response: Section E.S.5 of the payments to address Astragalus remove 675 ac (272 ha) of Service’s draft Coachella Valley MSHCP/NCCP lentiginosus var. coachellae Refuge lands and private lands that summarizes the costs of implementing conservation concerns. Therefore, were inadvertently proposed as critical the plan, including non-acquisition regional economic impacts are not habitat. These lands were either already program administration costs, expected as a result of A. l. var. excluded from critical habitat under Monitoring Program, Management coachellae conservation efforts. section 4(b)(2) of the Act or did not Program, and Adaptive Management (42) Comment: A commenter contain features essential for the Costs, and land acquisition and land mentioned that critical habitat for plants conservation of Astragalus lentiginosus improvement costs. The draft Coachella has no jurisdiction on private lands that var. coachellae. In the proposed rule, we Valley MSHCP/NCCP estimates these lack a federal nexus and that the DEA used a process that overlaid a grid on costs will total almost $1.5 billion does not address this issue. areas containing features essential for during the first 75 years of Our Response: As described in the conservation of A. l. var. coachellae implementing the Coachella Valley Section 2.2.2 of the DEA, the critical in order to produce legal Universal MSHCP/NCCP. This impact estimate, habitat designation for Astragalus Transverse Mercator (UTM) coordinates however, is not directly comparable to lentiginosus var. coachellae or any other that represented the critical habitat that in the DEA as the policy actions threatened or endangered species has boundaries. This gridding process being analyzed are different. The draft the potential to impose costs on private extended the legal boundaries beyond Coachella Valley MSHCP/NCCP individuals or groups of individuals if the boundaries of the areas containing estimates the cost of acquiring and there is a connection or nexus between essential features and consequently managing its reserve area and private activities and Federal actions. included private lands that did not conservation actions for the multiple For example, if a Federal permit is contain essential features or included species covered under the plan. Further, required before developers can begin private lands and Service Refuge lands the geographic scope of the draft construction or if there is Federal that contained essential features, but Coachella Valley MSHCP/NCCP and the funding for a private activity, then it is were intended to be excluded under areas designated as critical habitat for possible that the provisions of the Act, section 4(b)(2) of the Act. For the final Astragalus lentiginosus var. coachellae including critical habitat designation, designation, we have abandoned the use are different. may potentially restrict private actions of the gridding process and have based
VerDate Aug<31>2005 16:33 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER2.SGM 14DER2 74122 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
the legal coordinates precisely on the Conservation Plan (MSHCP/NCCP for a Coachella Valley fringe-toed lizard for boundaries of the areas containing more detailed discussion). sandy soils. Based on this HCP and essential features. Based on this We have also determined that BLM MOU, we have not included 3,527 ac mapping modification, we removed all and Service Refuge (Coachella Valley (1,427 ha) of Service Refuge lands from proposed private and Service Refuge National Wildlife Refuge) lands within Unit 3 and 128 ac (52 ha) of BLM lands lands (675 ac (272 ha)) from critical the Coachella Valley Preserve System do from all three units (see section titled habitat. not meet the definition of critical habitat Relationship of Critical Habitat to In addition to the non-Federal lands under section 3(5)(A) of the Act since Federal Lands within the Coachella that were excluded pursuant to section these lands may not require special Valley Fringe-Toed Lizard HCP— 4(b)(2) of the Act based on their management considerations due to their Application of Section 3(5)(A) of the Act coverage under the draft Coachella inclusion and management within the Valley MSHCP/NCCP, we have also Coachella Valley Preserve System under for a more detailed discussion). Table 1 excluded BLM lands that were proposed the Coachella Valley Fringe-Toed Lizard reflects the changes made in this final as critical habitat. BLM is an official HCP. Both the BLM and the Service rule and outlines the total area cooperator with the Coachella Valley entered into an MOU with the Coachella containing habitat with features MSHCP/NCCP and has committed to Valley Fringe-Toed Lizard HCP in 1986 essential to the conservation of A. l. var. manage their lands consistent with the that defined their roles and coachellae, areas excluded from final MSHCP/NCCP under their California responsibilities for managing their lands critical habitat under the pending Desert Conservation Area Plan within the Coachella Valley Preserve Coachella Valley MSHCP/NCCP or not Amendment for the Coachella Valley System. Conservation measures outlined included based on the approved that was signed in 2002 (see section in the Coachella Valley Fringe-Toed Coachella Valley Fringe-Toed Lizard titled Pending Coachella Valley Lizard HCP also benefit Astragalus HCP, and total area designated as final Multiple Species Habitat Conservation lentiginosus var. coachellae since it has critical habitat. Plan and Natural Community similar habitat requirements as the
TABLE 1.—TOTAL AREA CONTAINING HABITAT WITH ESSENTIAL FEATURES, AREAS EXCLUDED FROM FINAL CRITICAL HABITAT UNDER THE PENDING COACHELLA VALLEY MSHCP/NCCP, AND AREAS NOT INCLUDED AS CRITICAL HABI- TAT WITHIN THE COACHELLA VALLEY PRESERVE SYSTEM UNDER THE COACHELLA VALLEY FRINGE-TOED LIZARD HCP, AND TOTAL AREA DESIGNATED AS FINAL CRITICAL HABITAT FOR ASTRAGALUS LENTIGINOSUS VAR. COACHELLAE (AC/HA)
Area ex- Total area cluded under Area not in- Total area containing pending cluded under designated Critical habitat unit habitat with Coachella Coachella as final essential Valley Valley Fringe- critical features MSHCP/ Toed Lizard habitat NCCP HCP
1. Whitewater River System ...... 8,210 ac ...... 8,188 ac ...... 22 ac ...... 0 ac. (3,323 ha) .... (3,314 ha) .... (9 ha) ...... (0 ha). 2. Mission Creek/Morongo Wash System ...... 4,699 ac ...... 4,607 ac ...... 92 ac ...... 0 ac. (1,901 ha) .... (1,864 ha) .... (37 ha) ...... (0 ha). 3. Thousand Palms System ...... 4,837 ac ...... 1,296 ac ...... 3,541 ac ...... 0 ac. (1,958 ha) .... (525 ha) ...... (1,433 ha) .... (0 ha).
Total ...... 17,746 ac ..... 14,091 ac ..... 3,655 ac ...... 0 ac. (7,182 ha) .... (5,703 ha) .... (1,480 ha) .... (0 ha).
In the proposed rule we requested Coachella Valley MSHCP/NCCP is explains the relationship between comment on the potential inclusion of proposing to protect sand source areas critical habitat and BLM activities that unoccupied sand source areas in a way that will benefit A. l. var. are covered under their California downwind and downstream of suitable coachellae. Desert Conservation Area Plan. habitat. We received feedback from Our Primary Constituent Elements We changed the land ownership data three commenters, all of whom have been revised to reflect only in GIS for the final rule. We determined supported including these areas in the features essential for the conservation of that the ownership data provided by the critical habitat designation as areas Astragalus lentiginosus var. coachellae CVAG is superior to the State ownership containing habitat with features on lands that are occupied by this taxon data that was used in the proposed rule essential to the conservation of the and on which we are designating critical because it is a region-specific dataset taxon. We acknowledge the importance habitat. The Primary Constituent that is currently being used in land of sand to this species in the Primary Elements in the proposed rule included management planning for the Coachella Constituent Elements section and have features that occurred only on lands that Valley region. This changed the land determined that inclusion of the sand are not expected to ever be occupied by ownership classification for areas in the sources areas in the final critical habitat A. l. var. coachellae (sand source areas), proposed rule that were thought to be designation is not essential to the and which we do not consider to be State Lands Commission lands. These conservation of the species as these essential to the conservation of this lands were reclassified in the final rule areas are both unoccupied and species. as either private or CVWD lands under unsuitable for Astragalus lentiginosus We have included a discussion in the the CVAG’s dataset. Because of our var. coachellae. Finally, the draft Section 7 Consultation section that section 4(b)(2) exclusion determinations
VerDate Aug<31>2005 16:33 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER2.SGM 14DER2 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74123
for this designation, lands under these primary constituent elements, as Furthermore, we recognize that ownerships were excluded from critical defined at 50 CFR 424.12(b)). designation of critical habitat may not habitat designation. Habitat occupied at the time of listing include all of the habitat areas that may may be included in critical habitat only eventually be determined to be Critical Habitat if the essential features thereon may necessary for the recovery of the Critical habitat is defined in section 3 require special management or species. For these reasons, critical of the Act as—(i) the specific areas protection. Thus, we do not include habitat designations do not signal that within the geographical area occupied areas where existing management is habitat outside the designation is by a species, at the time it is listed in sufficient to conserve the species. (As unimportant or may not be required for accordance with the Act, on which are discussed below, such areas may also be recovery. found those physical or biological excluded from critical habitat pursuant Areas that support populations, but features (I) essential to the conservation to section 4(b)(2).) Accordingly, when are outside the critical habitat of the species and (II) that may require the best available scientific data do not designation, will continue to be subject special management considerations or demonstrate that the conservation needs to conservation actions implemented protection; and (ii) specific areas of the species require additional areas, under section 7(a)(1) of the Act and to outside the geographical area occupied we will not designate critical habitat in the regulatory protections afforded by by a species at the time it is listed, upon areas outside the geographical area the section 7(a)(2) jeopardy standard, as a determination that such areas are occupied by the species at the time of determined on the basis of the best essential for the conservation of the listing. An area currently occupied by available information at the time of the species. Conservation, as defined under the species but was not known to be action. Federally funded or permitted section 3 of the Act means to use and occupied at the time of listing will projects affecting listed species outside the use of all methods and procedures likely, but not always, be essential to the their designated critical habitat areas which are necessary to bring any conservation of the species and, may still result in jeopardy findings in endangered species or threatened therefore, typically included in the some cases. Similarly, critical habitat species to the point at which the critical habitat designation. designations made on the basis of the measures provided pursuant to the Act The Service’s Policy on Information best available information at the time of are no longer necessary. Such methods Standards Under the Endangered designation will not control the and procedures include, but are not Species Act, published in the Federal direction and substance of future limited to, all activities associated with Register on July 1, 1994 (59 FR 34271), recovery plans, habitat conservation scientific resources management such as and Section 515 of the Treasury and plans, or other species conservation research, census, law enforcement, General Government Appropriations planning efforts if new information Act for Fiscal Year 2001 (Pub. L. 106– habitat acquisition and maintenance, available to these planning efforts calls 554; H.R. 5658) and the associated propagation, live trapping, and for a different outcome. Information Quality Guidelines issued transplantation, and, in the by the Service, provide criteria, Methods extraordinary case where population establish procedures, and provide As required by section 4(b)(1)(A) of pressures within a given ecosystem guidance to ensure that decisions made the Act, we use the best scientific data cannot be otherwise relieved, may by the Service represent the best available in determining areas that are include regulated taking. scientific data available. They require essential to the conservation of Critical habitat receives protection Service biologists to the extent Astragalus lentiginosus var. coachellae. under section 7 of the Act through the consistent with the Act and with the use This includes information from our own prohibition against destruction or of the best scientific data available, to documents, including the final rule adverse modification of critical habitat use primary and original sources of listing the taxon as endangered (63 FR with regard to actions carried out, information as the basis for 53596), recent biological surveys, funded, or authorized by a Federal recommendations to designate critical reports, aerial photos, and other agency. Section 7 requires consultation habitat. When determining which areas documentation. We also used the on Federal actions that are likely to are critical habitat, a primary source of habitat model developed by the result in the destruction or adverse information is generally the listing Coachella Valley Mountain Conservancy modification of critical habitat. The package for the species. Additional (CVMC) for the proposed Coachella designation of critical habitat does not information sources include the Valley MSHCP/NCCP (CVMC 2004), as affect land ownership or establish a recovery plan for the species, articles in a starting point for identification of refuge, wilderness, reserve, preserve, or peer-reviewed journals, conservation areas with habitat that contain features other conservation area. Such plans developed by States and counties, essential to the conservation of this designation does not allow government scientific status surveys and studies, taxon and compared it to data from or public access to private lands. biological assessments, or other other plant surveys. Section 7 is a purely protective measure unpublished materials and expert We have also reviewed available and does not require implementation of opinion or personal knowledge. All information that pertains to the habitat restoration, recovery, or enhancement information is used in accordance with requirements of this species. We used measures. the provisions of Section 515 of the published historical surveys for To be included in a critical habitat Treasury and General Government Astragalus lentiginosus var. coachellae designation, the habitat within the area Appropriations Act for Fiscal Year 2001 and ecological descriptions of the occupied by the species must first have (Pub. L. 106–554; H.R. 5658) and the Sonoran Desert (Abrams 1944, Munz features that are essential to the associated Information Quality and Keck 1959, Shreve and Wiggins conservation of the species. Critical Guidelines issued by the Service. 1964, Turner and Brown 1982, Holland habitat designations identify, to the Section 4 of the Act requires that we 1986) to describe the range of extent known using the best scientific designate critical habitat on the basis of environmental conditions in which the data available, habitat areas that provide the best scientific data available. Habitat plant existed prior to current landscape essential life cycle needs of the species is often dynamic, and species may move changes that have resulted in the loss of (i.e., areas on which are found the from one area to another over time. the species’ habitats. We used data in
VerDate Aug<31>2005 16:33 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER2.SGM 14DER2 74124 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
reports submitted during section 7 Coachella Valley in the Chuckwalla the process where the wind picks up consultations and by biologists holding Valley, along approximately a 5-mile and moves small sand grains, and leaves section 10(a)(1)(A) recovery permits to portion of Highway 177 northeast of behind larger sand grains forming an evaluate the habitat model developed Desert Center (Bureau of Land ‘‘armor’’ that prevents wind from for the plant (Sanders and Thomas Management, unpublished data 2001a). moving additional smaller particles Olsen Associates 1996, Service Astragalus lentiginosus var. trapped below (Sharp and Saunders unpublished Geographic Information coachellae populations in the Coachella 1978). The stabilized sand fields in the System (GIS) data). We also used agency Valley are strongly affiliated with active, latter case are temporary, becoming and academic reports to describe the stabilized, and shielded sandy active when the armor is disturbed over sand transport systems (Lancaster et al substrates (Holland 1986, Sanders and large areas, or new blow sand is 1993, Griffiths et al. 2002) and used Thomas Olsen Associates 1996). This deposited from upwind fluvial reports about related varieties of taxon is primarily found on loose eolian depositional areas. Astragalus lentiginosus to describe its (wind transported) and rarely on Astragalus lentiginosus var. ecology and phenology (Beatley 1974, alluvial (water transported) sands that coachellae is also found in shielded Forseth et al. 1984, and Pavlik 1985). are located on dunes or flats, and along sand dunes and fields. These areas have Finally, we used information and disturbed margins of washes (Barneby similar sand formations as compared to materials submitted during the public 1964). The highest densities of A. l. var. active and stabilized sand dunes and comment period for the proposed coachellae have been found in locations fields, except that sand source and critical habitat rule. containing large deposits of eolian sand, transport systems that would normally including Snow Creek (Sanders and replenish these areas have been Primary Constituent Elements Thomas Olsen Associates 1996), Big interrupted or shielded by human In accordance with section 3(5)(A)(i) Dune, and Willow Hole areas (Bureau of development. of the Act and regulations at 50 CFR Land Management, unpublished data Astragalus lentiginosus var. 424.12, in determining which areas to 2001b). coachellae also occurs in localized designate as critical habitat that were The sandy substrates that provide patches of eolian sand or in active within the geographic area occupied by suitable habitat for Astragalus washes that are, in some cases, fairly the species at the time of listing, we are lentiginosus var. coachellae are distant from large dunes or sand field required to base critical habitat extremely dynamic in terms of spatial areas. Some of these localized patches of determinations on the best scientific mobility and tendency to change back eolian sands are characterized as data available and to consider those and forth from active to stabilized ephemeral sand accumulations lacking physical and biological features (Lancaster 1995). This has significant dune formation. This type of habitat (primary constituent elements (PCEs)) consequences for A. l. var. coachellae generally occurs at the western end of that are essential to the conservation of because their population densities vary the Coachella Valley where wind the species, and that may require special with different types of sandy substrates. velocities are highest (Sharp and management considerations or For instance, the greatest densities of Saunders 1978). protection. These include, but are not plants have been recorded on dune and Astragalus lentiginosus var. limited to: Space for individual and hummock habitats, such as Big Dune, coachellae fruiting bodies are inflated, population growth and for normal Snow Creek and Willow Hole, whereas an apparent adaptation for being behavior; food, water, air, light, smaller densities of plants have been dispersed by wind. Protecting wind minerals, or other nutritional or recorded on stabilized sand fields transport corridors between A. l. var. physiological requirements; cover or (Bureau of Land Management, coachellae populations from obstruction shelter; sites for breeding, reproduction, unpublished GIS data 2001b). is important for allowing inflated fruit and rearing (or development) of Conserving a wide variety of sandy pods to disperse to other areas and offspring; and habitats that are protected substrate types is important for the promote gene flow among populations. from disturbance or are representative of conservation of A. l. var. coachellae Protecting these corridors is also the historic geographical and ecological because of the dynamics of the eolian important for allowing pollinators to distributions of a species. sand transport processes. reach different populations and The primary constituent elements Active dunes are generally presumably assist in also maintaining essential to the conservation of characterized as barren expanses of gene flow. Finally, some of the fine Astragalus lentiginosus var. coachellae moving sand where perennial shrub sands blowing across the corridor are are derived from the physical and species are sparse. These dunes may deposited and occasionally accumulate biological features that are essential to intergrade with stabilized or partially and serve as ephemeral habitat. the conservation of this taxon as stabilized dunes, which have similar described below. sand accumulations and formations, but Primary Constituent Elements for are stabilized by evergreen or deciduous Astragalus lentiginosus var. coachellae Space for Individual and Population shrubs, scattered low annuals, and Based on our current knowledge of Growth Within the Eolian (Wind-Blown) perennial grasses. the life history, biology, and ecology of Sand Transport System Active sand fields are similar to active the species and the requirements of the Astragalus lentiginosus var. dunes, but are characterized as smaller habitat to sustain the essential life coachellae has a limited distribution. sand accumulations that are not of history functions of the species, we have The majority of populations are found sufficient depth to form dune determined that Astragalus lentiginosus in the Coachella Valley area, mostly in formations. These may be characterized var. coachellae’s primary constituent and around Snow Creek, Whitewater as hummocks forming behind elements are: River, Mission and Morongo Creeks, individual shrubs or clumps of 1. Active sand dunes, characterized as Willow Hole, Big Dune, and Coachella vegetation. large accumulations of moving sand Valley Preserve areas (Bureau of Land Stabilized sand fields are similar to with sparse perennial shrub cover that Management, unpublished data 2001b). active sand fields, but contain sand are contained within one of the three There are also several historic and accumulations that are stabilized by major sand transport systems recent records southeast of the vegetation or are armored. Armoring is (Whitewater River, Mission Creek and
VerDate Aug<31>2005 16:33 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER2.SGM 14DER2 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74125
Morongo Wash, and Thousand Palms occupied and unoccupied habitat. For Further, we believe the draft Coachella sand transport systems), that provide areas occupied by the species, these are Valley MSHCP/NCCP will adequately soil conditions for the growth of ‘‘ (i) the specific areas on which are address the issue of protecting the Astragalus lentiginosus var. coachellae. found those physical and biological function of these sand source areas so 2. Stabilized or partially stabilized features essential to the conservation of that they continue to replenish sands to sand dunes containing evergreen or the species and that may require special protected sandy habitat areas in the deciduous shrubs, scattered low management considerations or Coachella Valley. annuals, or perennial grasses that are protection. For areas not occupied, a contained within one of the three major determination is required that the entire Criteria Used To Identify Critical sand transport systems (Whitewater area is essential for the conservation of Habitat River, Mission Creek and Morongo the species before it can be included in We are designating critical habitat on Wash, and Thousand Palms sand critical habitat. Congress has also lands that we have determined were transport systems) and providing soil cautioned the Service to be occupied at the time of listing, are conditions for individual population ‘‘exceedingly circumspect’’ in currently known to be occupied, contain growth of Astragalus lentiginosus var. designating unoccupied areas as critical the primary constituent elements coachellae. habitat. essential for the conservation of 3. Active or stabilized sand fields Our proposed rule included a section Astragalus lentiginosus var. coachellae, containing smaller sand accumulations containing Unoccupied Areas Identified and may be in need of special than dunes and are often characterized for Possible Inclusion, for which we management considerations or as hummocks forming on leeward sides requested comment regarding whether protection of shrubs that are contained within one all, only a portion, or none of these We reevaluated the proposed of the three major sand transport areas should be included in the designations based on public comment, systems (Whitewater River, Mission designation. Astragalus lentiginosus var. peer review of the proposed rule, the Creek and Morongo Wash, and coachellae’s PCEs are dependent on economic analysis of the proposed rule, Thousand Palms sand transport sand being continually replenished from the public comments on that analysis, systems) and providing soil conditions sand source areas upwind and upstream and other available information, to for individual growth of Astragalus of where it occupies. Those areas ensure that the designation accurately lentiginosus var. coachellae. Stabilized identified for possible inclusion reflects habitat with the PCEs that is fields are similar to active fields but included sand source areas (mountain essential to the conservation of contain sands stabilized by vegetation or drainages) for each Unit that function to Astragalus lentiginosus var. coachellae. that are armored. provide fluvial sediment containing All areas identified in the model are 4. Shielded sand fields or dunes that sands to fluvial depositional areas within the historical and current ranges are contained within one of the three where wind transports the sands to of A. l. var. coachellae and contain the major sand transport systems areas that support the taxon’s PCEs. PCEs described above. Rather than (Whitewater River, Mission Creek and Areas identified for specific review designate every area containing PCEs, Morongo Wash, and Thousand Palms included mountain drainages in the San we designated only those areas which sand transport systems) and providing Bernardino and San Jacinto mountains available evidence suggests those areas soil conditions for individual growth of for Unit 1, mountain drainages in the support the numbers and distribution of Astragalus lentiginosus var. coachellae. eastern San Bernardino and Little San A. l. var. coachellae conservation. Areas These habitat features are similar to Bernardino mountains for Unit 2, and for which the evidence available at this active or stabilized sand fields or dunes, mountain drainages in the Indio Hills time was less certain were not included except the sand source is no longer able west of Thousand Palms Canyon for in this designation, although we believe to replenish these areas with new sand Unit 3. For a more detailed discussion these areas to be important to the due to anthropogenic factors. on the function of these sand source 5. Active washes containing fluvial areas see Areas Containing the Fluvial species and may include them in future sand deposits that are contained within and Eolian Processes That Generate recovery plans. We designated critical one of the three major sand transport Suitable Habitat in the proposed habitat for A. l. var. coachellae in areas systems (Whitewater River, Mission designation of critical habitat for A. l. that are necessary to advance at least Creek and Morongo Wash, and var. coachellae (69 FR 74468). We also one of the following conservation Thousand Palms sand transport requested comment on whether the draft criteria: systems) and providing soil conditions Coachella Valley MSHCP/NCCP would (1) The conservation of areas for individual growth of Astragalus provide for sufficient sand transport to representative of the geographic lentiginosus var. coachellae. maintain A. l. var. coachellae, and distribution of the species since species 6. Ephemeral non-sandy areas within whether there are threats to sand source that are protected across their ranges the sand transport system where mass areas that would be addressed by have lower chances of extinction (Soule movements of sand by eolian processes designating them as critical habitat. and Simberloff 1986; Pavlik 1996; Noss can occur and that are contained within Although peer review and public et al. 1999); one of the three major sand transport comment were generally favorable (2) The conservation of areas systems (Whitewater River, Mission towards including the unoccupied sand representative of the ecological Creek and Morongo Wash, and source areas in the final critical habitat distribution of the species. Astragalus Thousand Palms sand transport designation, we are only designating lentiginosus var. coachellae is systems) and providing soil conditions areas actually occupied at the time of associated with various sandy soil types for individual growth of Astragalus listing in 1998. We have determined and vegetation communities. lentiginosus var. coachellae. that the presence of active sand dunes Maintaining the full range of varying (PCE 1) is an essential feature, and we habitat types and characteristics for a Unoccupied Areas Identified for have designated them as a PCE. We species is necessary because it would Possible Inclusion believe that the PCEs adequately include the full extent of the physical The Act has different standards for describe the essential function of the and biological conditions necessary for designation of critical habitat in seed source areas in occupied areas. the species (Noss et al. 2002).
VerDate Aug<31>2005 16:33 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER2.SGM 14DER2 74126 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
(3) The conservation of areas active sand fields, and (8) mesquite was used to provide a more easily necessary to allow movement of pollen hummocks. describable boundary for habitat and seeds between areas representative Because the model has not been boundaries that are often non-linear. of the geographic and ecological refined with any field data since it was However, we abandoned using this distribution of Astragalus lentiginosus developed (CVMC 2004), we reviewed process because it created confusion by var. coachellae. the validity of the environmental inadvertently capturing areas outside of (4) The conservation of areas that still variables used to create the model with areas containing features essential to the function within one of three major sand occurrence data and information about conservation of this taxon or areas that transport systems within the geographic the plant’s ecology. We found records were originally excluded pursuant to range of this taxon in the northern for Astragalus lentiginosus var. section 4(b)(2) of the Act as described Coachella Valley. These three systems coachellae in all of the natural above. named for the purposes of this rule are communities used to create the model. When determining critical habitat the Whitewater River, Mission Creek/ The areas we determined contain boundaries, we made every effort to Morongo Wash, and Thousand Palms essential features for the conservation of avoid including within the boundaries sand transport systems. The sand this taxon include a mosaic of these of the map contained within this final transport systems are very important for habitat types, as well as intervening rule developed areas such as buildings, sustaining the various types of sandy areas of ephemeral habitat to allow for paved areas, and other structures that habitats required by Astragalus the transport of wind-dispersed seed lack primary constituent elements for lentiginosus var. coachellae in the pods and eolian sands between Astragalus lentiginosus var. coachellae. Coachella Valley. The eolian sands in locations containing large areas of The scale of the maps prepared under the valleys originate in the drainage habitat. the parameters for publication within basins in the surrounding mountains. Habitat with essential features for the the Code of Federal Regulations may not Major precipitation and flooding conservation of Astragalus lentiginosus reflect the exclusion of such developed episodes erode sediment from the var. coachellae was mapped using GIS areas. Any such structures and the land and refined using topographical and hillslopes and carry it downstream under them inadvertently left inside aerial map coverages. We excluded through the fluvial systems. Fine- critical habitat boundaries shown on the areas containing features essential for grained sediments are deposited in maps of this final rule have been the conservation of this taxon that were either bajadas (alluvial fans) or excluded by text in the proposed rule covered under legally operative or depositional areas that form the supply and are not designated as critical nearly completed habitat conservation of sand for the eolian sand transport habitat. Therefore, Federal actions plans (HCPs) pursuant to section 4(b)(2) system. limited to these areas would not trigger of the Act. Section 10(a)(1)(B) of the Act section 7 consultation, unless they affect In cases where more occupied areas authorizes us to issue permits for the the species and/or primary constituent were present than were needed for the take of listed animal species incidental elements in adjacent critical habitat. conservation of the geographic or to otherwise lawful activities. An ecological distribution of the species, incidental take permit application must Special Management Considerations or we gave priority to areas which were be supported by an HCP that identifies Protection would be receiving protection under the conservation measures that the When designating critical habitat, we draft Coachella Valley MSHCP/NCCP. permittee agrees to implement for the assess whether the primary constituent Astragalus lentiginosus var. species to minimize and mitigate the elements contained with the identified coachellae is one of the species impacts of the requested incidental take. habitat may require special management proposed for coverage by the proposed We encourage HCP applicants to also considerations or protection. As we Coachella Valley MSHCP/NCCP. A incorporate measures to provide for the undertake the process of designating spatially explicit habitat model for the conservation of listed plant species. We critical habitat for a species, we first plant in the Coachella Valley spanning often exclude non-Federal public lands evaluate lands defined by those physical from Cabezon to Thousand Palms was and private lands that are covered by an and biological features essential to the created to assist in the design of existing operative HCP and executed conservation of this taxon for inclusion preserves and to evaluate the potential implementation agreement (IA) under in the designation pursuant to section benefits of the MSHCP/NCCP on A. l. section 10(a)(1)(B) of the Act from 3(5)(A) of the Act. Secondly, we var. coachellae (Coachella Valley designated critical habitat because the evaluate lands defined by those features Mountain Conservancy (CVMC) 2004). benefits of exclusion outweigh the to assess whether they may require We used this habitat model to assist us benefits of inclusion as discussed in special management considerations or in identifying specific areas to designate section 4(b)(2) of the Act. protection. Threats to Astragalus as critical habitat for the A. l. var. In the final rule, we described the lentiginosus var. coachellae’s PCEs coachellae. The model was developed legal Universal Transverse Mercator include direct and indirect effects of with occurrence data for A. l. var. (UTM) coordinates, North American residential and commercial coachellae (Bureau of Land Datum 27, of the critical habitat development and exotic plant species. Management, unpublished data 2001b). boundaries by recording coordinates Areas containing features essential to Environmental variables associated with along actual boundaries of the areas the conservation of Astragalus the occurrence locations were identified containing features essential to the lentiginosus var. coachellae may require and maps containing those variables conservation of Astragalus lentiginosus special management due to threats were combined with GIS land use and var. coachellae. This is in contrast to the posed by urban development that are habitat information to create the model. proposed critical habitat rule where we not designed to avoid direct destruction Eight types of habitats were used in the overlaid a 100-meter by 100-meter grid of A. l. var. coachellae’s PCEs and that model: (1) Margins of active dunes, (2) on areas containing essential features to obstruct eolian sand transport to areas active shielded desert dunes, (3) determine the critical habitat that contain the PCEs. On private lands, stabilized desert dunes, (4) stabilized boundaries that were described as the urban and golf course developments sand fields, (5) stabilized shielded sand legal UTM coordinates. The 100-meter destroy plants and occupied habitat fields, (6) ephemeral sand fields, (7) gridding process in the proposed rule directly. Large housing and golf course
VerDate Aug<31>2005 16:33 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER2.SGM 14DER2 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74127
developments may also affect the is often necessary to germinate A. l. var. modification in relation to the localized wind and flooding regimes by coachellae’s seeds. conservation of the species. reducing wind movement by the Section 7(a) of the Act requires Final Critical Habitat Designation structures and landscaping and by Federal agencies, including the Service, changing the flooding and drainage We determined that approximately to evaluate their actions with respect to patterns. Occupied habitats downstream 17,746 ac (7,182 ha) of habitat that was any species that is proposed or listed as and downwind of these developments, known to be occupied at the time of endangered or threatened and with dependent upon the continuous listing and is known to be currently respect to its critical habitat, if any is replenishment of loose unconsolidated occupied and contains features essential proposed or designated. Regulations sands for their long-term existence, may to the conservation of Astragalus implementing this interagency be degraded by the alteration, blockage, lentiginosus var. coachellae exist in cooperation provision of the Act are and reduction in their supply of sand. Riverside County, California (Table 1). codified at 50 CFR part 402. Section 7(a)(4) of the Act requires In addition, some areas may require All 17,746 ac (7,182 ha) are within areas Federal agencies to confer with us on special management due to other types that are conserved or will soon be any action that is likely to jeopardize of development that are also not conserved under HCPs, including 3,655 ac (1,479 ha) that is already conserved the continued existence of a proposed designed to avoid direct impacts to species or result in destruction or Astragalus lentiginosus var. coachellae’s within the Coachella Valley Preserve System under the approved Coachella adverse modification of proposed PCEs and that obstruct eolian sand critical habitat. Conference reports may transport to areas that contain the PCEs. Valley Fringe-Toed Lizard HCP and 14,091 ac (5,703 ha) that will very likely include reasonable and prudent On public lands, the construction and alternatives or reasonable and prudent operation of sand and gravel mining, be conserved under the Coachella Valley MSHCP/NCCP. On the basis of measures to assist the agency in dams, and percolation ponds in western eliminating conflicts that may be caused Coachella Valley can directly impact our evaluation of the conservation measures afforded to A. l. var. by the proposed action. We may issue plants and occupied habitat and a formal conference report if requested decrease the amount of fluvial coachellae under the Coachella Valley Fringe-Toed Lizard HCP, we have by a Federal agency. Formal conference transported sediments to deposition concluded that the Federal lands within reports on proposed critical habitat areas downstream occupied habitats. contain an opinion that is prepared the Coachella Valley Preserve System For example, the percolation ponds according to 50 CFR 402.14, as if critical that contain features essential to constructed on BLM areas resulted in habitat were designated. We may adopt conservation of this taxon do not meet the direct loss of plants and occupied the formal conference report as the the definition of critical habitat under biological opinion when the critical habitat and may have altered the section 3(5)(A) of the Act because they habitat is designated, if no substantial transport of sand to downstream may not require special management new information or changes in the occupied habitats. Astragalus considerations. In addition, on the basis action alter the content of the opinion lentiginosus var. coachellae is of our evaluation of the conservation (see 50 CFR 402.10(d)). Until such time threatened by the lack of minimization measures that will very likely be as a proposed designation is finalized, measures in project designs for afforded to A. l. var. coachellae under operation and maintenance of these any reasonable and prudent alternatives the draft Coachella Valley MSHCP/ or reasonable and prudent measures facilities that reduce both direct impacts NCCP, we have concluded that the to A. l. var. coachellae and its habitat included in a conference report are benefit of excluding the lands covered advisory. and indirect impacts to sand by this MSHCP/NCCP outweighs the transportation downstream and If a species is listed or critical habitat benefit of including them as critical is designated, section 7(a)(2) requires downwind from these facilities to habitat (see section titled Application of Federal agencies to ensure that activities occupied habitats. Finally, some areas Section 3(5)(A) and Exclusions Under they authorize, fund, or carry out are not may require special management due to Section 4(b)(2) of the Act for a more likely to jeopardize the continued other threats posed by invasive exotic detailed discussion), and therefore are existence of such a species or to destroy plants to Astragalus lentiginosus var. excluding these lands from critical or adversely modify its critical habitat. coachellae’s PCEs. On both private and habitat designation pursuant to section If a Federal action may affect a listed public lands in the Coachella Valley 4(b)(2) of the Act. As a result, we are not species or its critical habitat, the region, the major invasive exotic plant designating any areas containing responsible Federal agency (action species include Saharan mustard features essential to the conservation of agency) must enter into consultation (Brassica tournefortii), Mediterranean A. l. var. coachellae as critical habitat in with us. Through this consultation, the grass (Schismus barbatus), and Russian this final rule. action agency ensures that their actions thistle (Salsola tragus). The invasion of Effects of Critical Habitat Designation do not destroy or adversely modify these exotic species is likely having critical habitat. indirect effects on Astragalus Section 7 Consultation When we issue a biological opinion lentiginosus var. coachellae’s PCEs by Section 7 of the Act requires Federal concluding that a project is likely to reducing wind velocity near ground agencies, including the Service, to result in the destruction or adverse level and stabilizing loose sediments ensure that actions they fund, authorize, modification of critical habitat, we also that are a major component of the PCEs. or carry out are not likely to destroy or provide reasonable and prudent The reduction in sand movement adversely modify critical habitat. Such alternatives to the project, if any are reduces the quality of the PCEs (loose- alterations include, but are not limited identifiable. ‘‘Reasonable and prudent sandy habitat) that support A. l. var. to: ‘‘Alterations adversely modifying alternatives’’ are defined at 50 CFR coachellae populations and obstructs any of those physical or biological 402.02 as alternative actions identified eolian sand transport to downwind features that were the basis for during consultation that can be areas containing PCEs. Further, the determining the habitat to be critical.’’ implemented in a manner consistent reduction in sand movement may We are currently reviewing the with the intended purpose of the action, reduce the amount of scarification that regulatory definition of adverse that are consistent with the scope of the
VerDate Aug<31>2005 16:33 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER2.SGM 14DER2 74128 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
Federal agency’s legal authority and the PCEs, such as active sand dunes or Valley is one of five bioregional jurisdiction, that are economically and fields, in areas containing features planning areas under the CDCA Plan. technologically feasible, and that the essential for the conservation of Amendments to this plan for each Director believes would avoid Astragalus lentiginosus var. coachellae. bioregion address unique biological destruction or adverse modification of An example of such activity includes resource issues that are applicable to a critical habitat. Reasonable and prudent sand and gravel mining within stream given area, and prescribe management alternatives can vary from slight project channels; actions that address local land use modifications to extensive redesign or (2) Activities that block downwind needs. To more effectively and relocation of the project. Costs transport of eolian sands to areas of consistently manage their portion of the associated with implementing a suitable habitat, and thus degrading the public lands within the CDCA, the BLM reasonable and prudent alternative are PCEs, such as active sand dunes or developed a land zoning system that similarly variable. fields, in areas containing features provided specific land management Regulations at 50 CFR 402.16 require essential for the conservation of prescriptions. Under this zoning Federal agencies to reinitiate Astragalus lentiginosus var. coachellae. strategy, different areas are assigned to consultation on previously reviewed Examples of such activities include any one of four multiple-use classes (MUC). actions in instances where critical type of development or the planting of The MUC assignment is based on the habitat is subsequently designated and tamarisk rows that obstruct near surface considered sensitivity of resources and the Federal agency has retained winds carrying eolian sands; kinds of uses occurring in each discretionary involvement or control (3) Activities that foster invasion of geographic area. over the action or such discretionary exotic weeds in areas containing Under their CDCAPA for the involvement or control is authorized by features essential to the conservation of Coachella Valley, the BLM proposes law. Consequently, some Federal Astragalus lentiginosus var. coachellae seven interim measures to protect agencies may request reinitiation of (e.g., roads, landscaping, soil federally listed species, including consultation or conference with us on disturbance) that may outcompete A. l. Astragalus lentiginosus var. coachellae. actions for which formal consultation var. coachellae for valuable resources These interim measures were developed has been completed, if those actions and may stabilize sands in upwind areas to conserve species during development may affect designated critical habitat or and prevent them from being of the Coachella Valley MSHCP/NCCP. are likely to adversely modify or destroy transported to areas containing features These interim measures that are relevant proposed critical habitat. essential for the conservation of A. l. to A. l. var. coachellae include: (1) The Federal activities that may affect the var. coachellae. BLM will only consider land exchanges Astragalus lentiginosus var. coachellae Both designated critical habitat Units or disposals involving threatened or or its critical habitat will require section are known to be occupied by Astragalus endangered species habitat if they 7 consultation. Activities on private or lentiginosus var. coachellae. Federal benefit the species; and (2) the BLM will State lands requiring a permit from a agencies already consult with us on not allow any new activities that may Federal agency, such as a permit from activities in areas currently occupied by adversely affect A. l. var. coachellae on the U.S. Army Corps of Engineers under the taxon or if the taxon may be affected BLM lands within the conservation section 404 of the Clean Water Act, a by the action to ensure that their actions areas of the draft Coachella Valley section 10(a)(1)(B) permit from the do not jeopardize the continued MSHCP/NCCP. In addition, the BLM Service, or some other Federal action, existence of the A. l. var. coachellae. will manage for maintenance of including funding (e.g., Federal On December 24, 2002, we issued a hydrologic regime and sand sources for Highway Administration or Federal Biological Opinion on the BLM’s all known populations and habitat of A. Emergency Management Agency California Desert Conservation Area l. var. coachellae on BLM lands. funding), will also continue to be Plan Amendment (CDCAPA) for the Overall, the CDCAPA for the subject to the section 7 consultation Coachella Valley . At issue was the Coachella Valley bioregion provided process. Federal actions not affecting proposed amendment to the 1980 BLM general guidance that can either benefit listed species or critical habitat and California Desert Conservation Area or adversely affect the conservation of actions on non-Federal and private Plan (CDCA Plan). federally listed species, including lands that are not federally funded, Congress designated the CDCA with Astragalus lentiginosus var. coachellae, authorized, or permitted do not require Section 601 of the Federal Land Policy depending on location and project type section 7 consultation. and Management Act (FLPMA) of 1976. relative to their Multiple-Use Class Section 4(b)(8) of the Act requires us To provide for management of activity guidelines. However, future to briefly evaluate and describe in any recreational use, as well as to resolve activities and projects will still need to proposed or final regulation that other resource and public land use receive site-specific environmental designates critical habitat those conflicts, FLPMA also directed the review and section 7 consultation. activities involving a Federal action that Secretary of the Interior to ‘‘prepare and may adversely modify such habitat, or implement a comprehensive, long-range Application of Section 3(5)(A) and that may be affected by such plan for management, use, development, Exclusions Under Section 4(b)(2) of the designation. Activities that may destroy and protection of the public lands Act or adversely modify critical habitat may within the CDCA.’’ The CDCA Plan was Section 3(5)(A) of the Act defines also jeopardize the continued existence signed in January 1980, and this critical habitat as the specific areas of the Astragalus lentiginosus var. document now serves as the primary within the geographic area occupied by coachellae. Federal activities that, when document that describes the basic the species on which are found those carried out, may adversely affect critical management principles that the BLM physical and biological features (i) habitat for the A. l. var. coachellae uses for managing their portion of the essential to the conservation of the include, but are not limited to: CDCA. The CDCA Plan has undergone species and (ii) which may require (1) Activities that inhibit downstream numerous minor amendments over the special management considerations or sediment transport and the past 25 years, including major protection. Therefore, areas within the replenishment of sands to areas of amendments to divide it into five eco- geographic area occupied by the species occupied habitat, and thus degrading regions/planning areas. The Coachella that do not contain the features essential
VerDate Aug<31>2005 16:33 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER2.SGM 14DER2 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74129
for the conservation of the species are if they provide assurances that the transferred management responsibilities not, by definition, critical habitat. conservation measures they outline will by the TNC to the Center for Natural Similarly, areas within the geographic be implemented and effective: (1) Lands Management (CNLM). The area occupied by the species that do not Legally operative HCPs that cover the Coachella Valley Preserve System was require special management also are species, (2) draft HCPs that cover the designed to capture habitats closely not, by definition, critical habitat. To species and have undergone public associated with the Coachella Valley determine whether an area requires review and comment (i.e., pending fringe-toed lizard, including primarily special management, we first determine HCPs), (3) Tribal conservation plans that loose, unstabilized, windblown sand. if the essential features located there cover the species, (4) State conservation These habitats encompass several of the generally require special management to plans that cover the species, and (5) PCEs important for the conservation of address applicable threats. If those National Wildlife Refuge System Astragalus lentiginosus var. coachellae, features do not require special Comprehensive Conservation Plans. including active sand dunes, stabilized management, or if they do in general but Table 1 contains a summary of areas or partially stabilized sand dunes, active not for the particular area in question containing features essential to the or stabilized sand fields, and shielded because of the existence of an adequate conservation of Astragalus lentiginosus sand fields that are contained within the management plan or for some other var. coachellae that do not meet the Thousand Palms sand transport system. reason, then the area does not require definition of critical habitat as well as Even though Astragalus lentiginosus special management. areas containing essential features that var. coachellae is not a covered species We consider a current plan to provide are being excluded from critical habitat under the Coachella Valley Fringe-Toed adequate management or protection if it in this rule. Lizard HCP, it receives conservation meets three criteria: (1) The plan is benefits from the management of the complete and provides a conservation Relationship of Critical Habitat to Coachella Valley Preserve System due to benefit to the species (i.e., the plan must Federal Lands Within the Coachella the protections afforded to the habitats maintain or provide for an increase in Valley Fringe-Toed Lizard HCP— associated with the Coachella Valley the species’ population, or the Application of Section 3(5)(A) of the fringe-toed lizard that are also enhancement or restoration of its habitat Act associated with Astragalus lentiginosus within the area covered by the plan); (2) We are not including areas containing var. coachellae. In May 1995, the BLM the plan provides assurances that the features essential to the conservation of prepared the Coachella Valley Preserve conservation management strategies and Astragalus lentiginosus var. coachellae System Management Plan and Decision actions will be implemented (i.e., those in portions of all three units that are Record (CVPS Management Plan) that responsible for implementing the plan contained within Federal lands (BLM provided guidance for managing the are capable of accomplishing the and Service Refuge lands) within the Coachella Valley Preserve System. The objectives, and have an implementation boundaries of the Coachella Valley proposed CVPS Management Plan was schedule or adequate funding for Preserve System in the Coachella Valley available for public review in October implementing the management plan); fringe-toed lizard HCP under section 1994. The CVPS Management Plan and (3) the plan provides assurances 3(5)(A) of the Act. On April 21, 1986, discussed management actions that that the conservation strategies and the Service approved and issued a were designed to conserve other sand- measures will be effective (i.e., it Section 10(a)(1)(B) incidental take dependent sensitive species, including identifies biological goals, has permit under the Act for the Coachella Astragalus lentiginosus var. coachellae provisions for reporting progress, and is Valley fringe-toed lizard under the (which was a Federal candidate species of a duration sufficient to implement the Coachella Valley Fringe-Toed Lizard at the time). These management actions plan and achieve the plan’s goals and HCP and IA. The HCP called for the included, acquisition of suitable habitat objectives). establishment of three separate for the Coachella Valley fringe-toed Further, section 4(b)(2) of the Act preserves for the conservation of the lizard, law enforcement, install and states that critical habitat shall be Coachella Valley fringe-toed lizard: (1) maintain boundary fencing and signs, designated, and revised, on the basis of The Coachella Valley Preserve; (2) the research effective methods for removing the best available scientific data after Willow Hole-Edom Hill Preserve; and exotic invasive weeds, such as Russian taking into consideration the economic (3) the Indian Avenue Preserve within thistle (Salsola tragus) and mustard impact, national security impact, and the Whitewater River floodplain, which (Brassica tournefortii), and research any other relevant impact of specifying are collectively known as the Coachella techniques for enhancing sand any particular area as critical habitat. Valley Preserve System. Acquisition and deposition into the preserves. An area may be excluded from critical maintenance of the Coachella Valley In order for the Secretary to determine habitat if it is determined that the Preserve System was the basis for the that an area is adequately managed and benefits of exclusion outweigh the issuance of the Service’s section 10(a) does not require special management, benefits of specifying a particular area permit to allow the incidental take of the Secretary must evaluate existing as critical habitat, unless the failure to the Coachella Valley fringe-toed lizard management and find that it provides designate such area as critical habitat on private lands. The Coachella Valley (1) a conservation benefit to the species; will result in the extinction of the Preserve System is managed (2) reasonable assurances for species. cooperatively by the major landowners implementation; and (3) reasonable In our critical habitat designations, we within each Preserve, including the assurances that conservation efforts will use both provisions outlined in sections BLM, the Service, the CDFG, and The be effective. The Secretary has reviewed 3(5)(A) and 4(b)(2) of the Act to evaluate Nature Conservancy. These major the management plan and actions for those specific areas that we proposed for landowners signed an IA in 1986 that the Coachella Valley Preserve System designation as critical habitat. Lands we defined their roles and responsibilities and has determined that the Preserve have found that do not meet the in the management of the Coachella System is adequately managed for definition of critical habitat under Valley Preserve System, which was later Astragalus lentiginosus var. coachellae, section 3(5)(A), and lands excluded amended in 1991 to include the CDPR and therefore does not need special pursuant to section 4(b)(2) include those as a major landowner. Another management. Therefore, all areas within covered by the following types of plans amendment on August 3, 1999 BLM and Service Refuge lands
VerDate Aug<31>2005 16:33 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER2.SGM 14DER2 74130 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
containing features essential for the However, given the broad scope of these Open Space District, Riverside County conservation of A. l. var. coachellae regional HCPs, not all projects Waste Management District, California within the boundaries of the Coachella envisioned to potentially occur may Department of Parks and Recreation Valley Preserve System are not included actually take place. (CDPR), and Coachella Valley in this final critical habitat designation In developing critical habitat Mountains Conservancy also joined in pursuant to section 3(5)(A) of the Act. designations, the Service has analyzed preparation of the Plan. The parties later Finally, rather than not including the habitat conservation planning efforts to amended the Planning Agreement to other non-Federal landowners within determine if the benefits of excluding also address the requirements of the the Coachella Valley Preserve System in them from critical habitat outweigh the NCCP Act and prepare a NCCP pursuant critical habitat, these lands are excluded benefits of including them in designated to California Fish and Game Code from critical habitat pursuant to section critical habitat. In reviewing HCPs, the Section 2810. As stated in their 4(b)(2) of the Act because of their intent Service has assessed the potential CDCAPA for the Coachella Valley, BLM to be signatories to the draft Coachella impacts of critical habitat designation has committed 95% of their public land Valley MSHCP/NCCP. on lands covered by HCPs on future base within the conservation areas of partnerships, the status of HCP efforts the MSHCP/NCCP to be managed Relationship of Critical Habitat to and progress made in developing and Pending Habitat Conservation Plans— consistent with the MSHCP/NCCP. The implementing such plans, and their MSHCP/NCCP area proposes to Exclusions Under Section 4(b)(2) of the relationship to the conservation of Act encompass approximately 1,131,000 ac species. In certain circumstances, the (457,700 ha) in Riverside County. The Section 4(b)(2) of the Act requires us Service has determined that an HCP not MSHCP/NCCP is proposing to provide to consider other relevant impacts, in yet completed may be considered for 747,000 ac (302,300 ha) of conservation addition to economic impacts, when exclusion from critical habitat areas that will provide conservation designating critical habitat. Section designation pursuant to section 4(b)(2) benefits for 52 federally listed and 10(a)(1)(B) of the Act authorizes us to of the Act. sensitive species, including A. l. var. issue permits for the take of listed coachellae, over the life of the permit wildlife species incidental to otherwise Pending Coachella Valley Multiple Species Habitat Conservation Plan and (75 years). The Permittees’ funding lawful activities. Development of an program proposes funding from a HCP is a prerequisite for the issuance of Natural Community Conservation Plan (MSHCP/NCCP) variety of potential sources, including, an incidental take permit pursuant to but not limited to: (1) Local section 10(a)(1)(B) of the Act. An We re-affirmed our December 14, development mitigation fees; (2) fees on incidental take permit application must 2004, proposed rule exclusion of non- the importation of waste into landfills be supported by an HCP that identifies Federal lands containing features and transfer stations in Riverside conservation measures that the essential for the conservation of County; (3) transportation project Permittee agrees to implement for the Astragalus lentiginosus var. coachellae mitigation; (4) regional infrastructure species to minimize and mitigate the within the draft Coachella Valley project mitigation; and (5) Eagle impacts of the permitted incidental take. MSHCP/NCCP’s plan area under section Mountain Landfill Environmental Although take of plant species is not 4(b)(2) of the Act (69 FR 74468). In Mitigation Trust Fund. CVAG has prohibited under the Act, and therefore addition, we have determined that BLM demonstrated a sustained commitment cannot be authorized under an lands within the draft Coachella Valley incidental take permit, plant species are MSHCP/NCCP that are outside of the to develop the MSHCP/NCCP to comply included on the permit in recognition of Coachella Valley Preserve System with section 10(a)(1)(B) of the Act, the the conservation benefits provided to warrant exclusion from the critical California Endangered Species Act, and them under the HCP and for the habitat designation due to their official the State’s NCCP program. On purposes of the No Surprises participation in the draft Coachella November 5, 2004, the Service assurances. Valley MSHCP/NCCP planning process published a Notice of Availability of a HCPs vary in size and may provide for and commitment under their CDCAPA Final Environmental Impact Statement/ incidental take coverage and to manage their lands consistent with Environmental Impact Report (EIS/EIR) conservation management for one or the Coachella Valley MSHCP/NNCP for the MSHCP/NCCP. many federally listed species. once it is completed. All areas containing features essential Additionally, more than one applicant The draft Coachella Valley MSHCP/ for the conservation of Astragalus may participate in the development and NCCP has been in development from the lentiginosus var. coachellae are implementation of an HCP. Large mid-1990s to present. Since 1997, the contained within the proposed preferred regional HCPs expand upon the basic planning process has proceeded under alternative reserve design of the draft requirements set forth in section the auspices of a Memorandum of Coachella Valley MSHCP/NCCP. CVAG 10(a)(1)(B) of the Act because they Understanding governing the estimates there are 36,398 ac (14,730 ha) reflect a voluntary, cooperative preparation of the MSHCP/NCCP of modeled habitat for A. l. var. approach to large-scale habitat and entered into by the following entities: coachellae habitat within the draft species conservation planning. Many of CVAG; the cities of Cathedral City, Coachella Valley MSHCP/NCCP plan the large regional HCPs in southern Coachella, Desert Hot Springs, Indian area. The draft MSHCP/NCCP proposes California have been, or are being, Wells, Indio, La Quinta, Palm Desert, to conserve 19,321 ac (7,819 ha) of developed to provide for the Palm Springs, and Rancho Mirage; modeled A. l. var. coachellae habitat in conservation of numerous federally County of Riverside; the Service; their Conservation Areas that includes listed species and unlisted sensitive California Department of Fish and Game large core habitat areas and other species and the habitat that provides for (CDFG); BLM; U.S. Forest Service; and important conservation areas, such as their biological needs. These HCPs are the National Park Service. Later, the sand sources and sand transport designed to proactively implement Caltrans, CVWD, Imperial Irrigation corridors. Core habitat areas include: conservation actions to address future District, Riverside County Flood Control Snow Creek/Windy Point Conservation projects that are anticipated to occur and Water Conservation District, Area; Whitewater Floodplain within the planning area of the HCP. Riverside County Regional Parks and Conservation Area; Willow Hole
VerDate Aug<31>2005 16:33 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER2.SGM 14DER2 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74131
Conservation Area; and Thousand MSHCP/NCCP to meet the requirements conservation of Astragalus lentiginosus Palms Conservation Area. Other goals outlined in section 10(a)(1)(B) of the var. coachellae to Federal agencies and include: (1) Protecting other important Act. to the public. In Sierra Club v. Fish and conservation areas to allow for Wildlife Service, 245 F.3d 434 (5th Cir. (1) Benefits of Inclusion population fluctuation and promote 2001), the Fifth Circuit Court of Appeals genetic diversity; (2) protecting Overall, we believe that there is stated that the identification of habitat necessary ecological processes, minimal benefit from designating containing the features essential to the including the sand transport systems, critical habitat for Astragalus conservation of the species can provide that will be beneficial in maintaining lentiginosus var. coachellae within the informational benefits to the public, the PCEs in the areas containing features draft Coachella Valley MSHCP/NCCP State and local governments, scientific essential for the conservation of A. l. because, as explained above, these lands organizations, and Federal agencies. The var. coachellae; (3) maintaining are being proposed to be managed for court also noted that heightened public biological corridors and linkages among the conservation of this taxon. awareness of the plight of listed species all conserved populations to the A benefit of including an area within and their habitats may facilitate maximum extent feasible; and (4) a critical habitat designation is the conservation efforts. The inclusion of an ensuring conservation of habitat quality protection provided by section 7(a)(2) of area as critical habitat may focus and through biological monitoring and the Act that directs Federal agencies to contribute to conservation efforts by adaptive management actions. ensure that their actions do not result in other parties by clearly delineating areas CVAG carefully considered all the destruction or adverse modification of high conservation values for certain available and occupied habitats for of critical habitat. The designation of species. However, we believe that this Astragalus lentiginosus var. coachellae critical habitat may provide a different educational benefit has largely been in developing their conservation level of protection under section 7(a)(2) achieved for A. l. var. coachellae. The of the Act for Astragalus lentiginosus strategy for this species. CVAG public outreach and environmental var. coachellae that is separate from the concluded that the habitats within the impact reviews required under the obligation of a Federal agency to ensure proposed Conservation Areas would National Environmental Policy Act for that their actions are not likely to provide long-term protection for self- the draft Coachella Valley MSHCP/ jeopardize the continued existence of sustaining populations of this taxon NCCP provided significant the endangered species. Under the because of the following factors: (1) opportunities for public education Gifford Pinchot decision, critical habitat Conserved habitat areas are large regarding the conservation of the areas designations may provide greater enough to increase the likelihood for occupied by A. l. var. coachellae. There benefits to the recovery of a species than maintaining self-sustaining populations would be little additional informational of A. l. var. coachellae and incorporate was previously believed, but it is not possible to quantify this benefit at benefit gained from including these key habitat elements for the species; (2) lands as critical habitat because of the potential adverse effects within present. However, the protection provided is still a limitation on the level of information that has been, and Conservation Areas would not eliminate continues to be, made available to the or significantly impact any core harm that occurs as opposed to a requirement to provide a conservation public as part of the regional planning populations; (3) potential development effort. Additionally, we believe the would not adversely impact the benefit. We are in the final stages of completing a section 7 consultation on value of the Conservation Areas to necessary ecological processes (such as provide protection and enhancement of sand source and transport system) the issuance of the section 10(a)(1)(B) habitat for Astragalus lentiginosus var. needed to maintain currently viable permit for the Coachella Valley MSHCP/ coachellae within the draft Coachella habitat, and (4) lands in the MSHCP/ NCCP for which A. l. var. coachellae is Valley MSHCP/NCCP is well NCCP reserve system would be managed a covered species. The section established among State and local and monitored (CVMC 2004). The 10(a)(1)(B) permit includes plants in governments, and Federal agencies even Service evaluated the Conservation recognition of the conservation value of without the designation of critical Areas for A. l. var. coachellae, and based the HCP and to provide ‘‘No Surprises’’ habitat. on our analysis and the best scientific to Permittees, even though the take data available, recognized that the prohibition does not apply to plants. The inclusion of the identified 14,091 Conservation Areas also contained the If designated, primary constituent ac (5,703 ha) of land as critical habitat physical and biological features elements in this area would be protected would provide some additional Federal essential to the conservation of the from destruction or adverse regulatory benefits for the species species. modification by Federal actions using a consistent with the conservation In light of the Service’s confidence conservation standard based on the standard based on the Ninth Circuit that CVAG will reach a successful Ninth Circuit Court’s decision in Gifford Court’s decision in Gifford Pinchot. A conclusion to its MSHCP/NCCP Pinchot. This requirement would be in benefit of inclusion would be the development process and successfully addition to the requirement that requirement of a Federal agency to conserve habitat for Astragalus proposed Federal actions avoid likely ensure that their actions on these non- lentiginosus var. coachellae, we have jeopardy to the species’ continued Federal lands do not likely result in identified and excluded under section existence. However, since all areas jeopardizing the continued existence of 4(b)(2) of the Act all lands (14,091 ac containing features essential for the the species or result in the destruction (5,703 ha)) containing features essential conservation of the Astragalus or adverse modification of critical for the conservation of A. l. var. lentiginosus var. coachellae are habitat. This additional analysis to coachellae within the Coachella Valley occupied, consultation for activities determine destruction or adverse MSHCP/NCCP plan area, including non- which may adversely affect the species modification of critical habitat is likely Federal lands covered by the MSHCP/ would be required, even without the to be small because the lands are not NCCP and Federal lands managed critical habitat designation. under Federal ownership and any consistent with the MSHCP/NCCP. We Another potential benefit of Federal agency proposing a Federal believe that CVAG has made significant designation would be to signal the action on the 11,877 ac (4,807 ha) of progress in the development of its importance of these lands to the non-Federal lands would likely consider
VerDate Aug<31>2005 16:33 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER2.SGM 14DER2 74132 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
the conservation value of these lands as of the PCEs for Astragalus lentiginosus District, Riverside County Flood Control identified in the draft Coachella Valley var. coachellae by: (1) Protecting and Water Conservation District, MSHCP/NCCP and take the necessary important ecological processes that Riverside County Regional Parks and steps to avoid jeopardy or the maintain the PCEs for A. l. var. Open Space District, Riverside County destruction or adverse modification of coachellae; (2) maintaining biological Waste Management District, CDPR; critical habitat. corridors and linkages among all Coachella Valley Mountains As discussed below, however, we conserved populations to the maximum Conservancy; CDFG; Caltrans; BLM; believe that designating any lands extent feasible; and (3) ensure U.S. Forest Service; the National Park within the Coachella Valley MSHCP/ conservation of habitat quality through Service; and us to complete and NCCP as critical habitat would provide biological monitoring and adaptive implement the Coachella Valley little additional educational and Federal management actions, such as controlling MSHCP/NCCP. Instead of using limited regulatory benefits for the species. exotic invasive weeds that may degrade funds to comply with administrative Because the excluded areas are the PCEs. The draft Coachella Valley consultation and designation occupied by the species, there must be MSHCP/NCCP therefore proposes to requirements which cannot provide consultation with the Service over any provide for the protection of PCEs, and protection beyond what is currently in action which may result in adverse address special management needs. place, the partners could instead use effects to these populations on Federal Designation of critical habitat would their limited funds for the conservation lands or on lands with a Federal nexus. therefore not provide as great a benefit of this species. The additional educational benefits that to the species as the positive A related benefit of excluding lands might arise from critical habitat management measures in the plan. within HCPs from critical habitat designation have been largely designation is the unhindered, The benefit of excluding lands within accomplished through the public review continued ability to seek new nearly completed HCPs from critical and comment of the environmental partnerships with future HCP habitat designation includes relieving impact documents which accompanied participants including States, Counties, landowners, communities, and counties the development of the Coachella Valley local jurisdictions, conservation of any additional regulatory burden that MSHCP/NCCP. organizations, and private landowners, might be imposed by a critical habitat For 30 years prior to the Ninth Circuit which together can implement designation consistent with the Court’s decision in Gifford Pinchot, the conservation actions that we would be Fish and Wildlife Service equated the conservation standard based on the unable to accomplish otherwise. If lands jeopardy standard with the standard for Ninth Circuit Court’s decision in Gifford within nearly completed HCP plan areas destruction or adverse modification of Pinchot. Many HCPs, particularly large are designated as critical habitat, it critical habitat. However, in Gifford regional HCPs take many years to would likely have a negative effect on Pinchot the court noted the government, develop and, upon completion, become our ability to establish new partnerships by simply considering the action’s regional conservation plans that are to develop HCPs, particularly large, survival consequences, was reading the consistent with the recovery objectives regional HCPs that involve numerous concept of recovery out of the for listed species that are covered within participants and address landscape- regulation. The court, relying on the the plan area. Additionally, many of level conservation of species and CFR definition of adverse modification, these HCPs provide conservation habitats. By excluding these lands, we required the Service to determine benefits to unlisted, sensitive species preserve our current partnerships and whether recovery was adversely and federally listed plants that do not encourage additional conservation affected. The Gifford Pinchot decision receive protections on non-Federal actions in the future. This is especially arguably made it easier to reach an lands not subject to a Federal nexus. important for federally listed plants that ‘‘adverse modification’’ finding by Imposing an additional regulatory do not receive take prohibitions under reducing the harm, affecting recovery, review after an HCP is nearly completed the Act on non-Federal lands. By rather than the survival of the species. solely as a result of the designation of including measures to conserve plants However, there is an important critical habitat may undermine and habitat in an HCP, non-Federal distinction: Section 7(a)(2) limits conservation efforts and partnerships in participants are voluntarily agreeing to adverse effects to the species and its many areas. In fact, it could result in the conserve plants that would not designated critical habitat through loss of species’ benefits if participants otherwise receive protections with a either a jeopardy or destruction or abandon the voluntary HCP process critical habitat designation. Further, adverse modification analyses. It does because the critical habitat designation imposing additional regulatory burdens not require positive improvements or may result in additional regulatory on HCP participants with regard to a enhancement of the species status. requirements than faced by other parties listed plant could discourage them from Thus, any management plan which who have not voluntarily participated in including plants as covered species and considers enhancement or recovery as species conservation. Designation of providing conservation benefits for the management standard will almost critical habitat within the boundaries of them. always provide more benefit than the nearly approved HCPs could be viewed Furthermore, an HCP or NCCP/HCP critical habitat designation. This is as a disincentive to those entities application must itself be consulted particularly true for management plans currently developing HCPs or upon. While this consultation will not that include plants on non-Federal contemplating them in the future. look specifically at the issue of adverse lands because plants do not receive Another benefit from excluding these modification to critical habitat, unless protection stemming from the take lands is to maintain the partnerships critical habitat has already been prohibitions under the Act on non- developed among several partners in the designated within the proposed plan Federal lands. Coachella Valley including CVAG; the area, it will determine if the HCP cities of Cathedral City, Coachella, jeopardizes the species in the plan area. (2) Benefits of Exclusion Desert Hot Springs, Indian Wells, Indio, In addition, Federal actions not covered As mentioned above, the draft La Quinta, Palm Desert, Palm Springs, by the HCP in area that may affect Coachella Valley MSHCP/NCCP and Rancho Mirage; County of occupied by listed species would still proposes to provide for the conservation Riverside; CVWD, Imperial Irrigation require consultation under section 7 of
VerDate Aug<31>2005 16:33 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER2.SGM 14DER2 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74133
the Act. HCP and NCCP/HCPs typically all conserved populations to the excluded areas were designated as provide for greater conservation benefits maximum extent feasible, and critical habitat. to a covered species than section 7 conservation of habitat quality through Critical habitat is being designated for consultations because HCPs and NCCP/ biological monitoring and adaptive Astragalus lentiginosus var. coachellae HCPs assure the long-term protection management actions that may improve in other areas that will be accorded the and management of a covered species PCEs. protection from adverse modification by and its habitat, and funding for such In contrast, the benefits of excluding Federal actions using the conservation management through the standards 11,877 ac (4,807 ha) of non-Federal standard based on the Ninth Circuit found in the 5 Point Policy for HCPs (64 lands covered by their likely signatory Court’s decision in Gifford Pinchot. FR 35242) and the HCP ‘‘No Surprises’’ status to the draft Coachella Valley These factors acting in concert with the regulation (63 FR 8859). Such MSHCP/NCCP and 2,214 ac (896 ha) of other protections provided under the assurances are typically not provided by BLM lands based on their commitment Act, lead us to find that exclusion of section 7 consultations that, in contrast under their CDCAPA for the Coachella these 14,091 ac (5,703 ha) within the to HCPs, often do not commit the Valley to manage their lands consistent draft Coachella Valley MSHCP/NCCP project proponent to long-term special with the draft Coachella Valley MSHCP/ will not result in extinction of A. l. var. management considerations or NCCP and official participation in the coachellae. protections. Thus, a consultation draft Coachella Valley MSHCP/NCCP Economic Analysis typically does not accord the lands it planning process from critical habitat covers the extensive benefits a HCP or designation are increased because of the Section 4(b)(2) of the Act requires us NCCP/HCP provides. The development high level of cooperation by the to designate critical habitat on the basis and implementation of HCPs or NCCP/ participants in the Coachella Valley of the best scientific information HCPs provide other important MSHCP/NCCP to conserve this taxon. available and to consider the economic conservation benefits, including the This partnership exceeds any and other relevant impacts of development of biological information conservation value provided by a designating a particular area as critical to guide the conservation efforts and critical habitat designation, particularly habitat. We may exclude areas from assist in species conservation, and the for federally listed plants, which do not critical habitat upon a determination creation of innovative solutions to receive protection stemming from take that the benefits of such exclusions conserve species while allowing for prohibitions on non-Federal lands outweigh the benefits of specifying such development. under the Act. areas as critical habitat. We cannot exclude such areas from critical habitat (3) Benefits of Exclusion Outweigh the (4) Exclusion Will Not Result in when such exclusion will result in the Benefits of Inclusion Extinction of the Species extinction of the species concerned. We have reviewed and evaluated the exclusion of 14,091 ac (5,703 ha) of In the proposed designation of critical Following the publication of the lands within the nearly completed habitat for Astragalus lentiginosus var. proposed critical habitat designation, Coachella Valley MSHCP/NCCP plan coachellae published on December 14, we conducted an economic analysis to area from critical habitat designation for 2004 (69 FR 74468), we excluded all estimate potential economic effects of Astragalus lentiginosus var. coachellae; non-Federal lands containing essential the proposed Astragalus lentiginosus and based on this evaluation, we find features for the conservation of A. l. var. var. coachellae critical habitat that the benefits of exclusion, which coachellae from the proposed designation (Northwest Economics include potentially avoiding increased designation under Section 4(b)(2) of the Associates 2005). The draft analysis was regulatory costs that could result from Act because of their relationship to the made available for public review on including those lands in this draft Coachella Valley MSHCP/NCCP. In September 27, 2005 (70 FR 56434). We designation of critical habitat, ensuring this final designation, we continue to accepted comments on the draft analysis the willingness of existing partners to believe that the exclusion of non- until October 27, 2005. continue active conservation measures, Federal lands as well as BLM lands The primary purpose of the economic maintaining the ability of attracting new (14,091 ac (5,703 ha)) in all three Units analysis is to estimate the potential partners, and directing limited funding will not result in extinction of A. l. var. economic impacts associated with the to conservation actions with partners, of coachellae since all areas containing designation of critical habitat for the the lands containing features essential essential features for the conservation of Astragalus lentiginosus var. coachellae. to the conservation of A. l. var. A. l. var. coachellae are being proposed This information is intended to assist coachellae within the draft Coachella for conservation and management that the Secretary in making decisions about Valley MSHCP/NCCP outweigh the will benefit this taxon pursuant to the whether the benefits of excluding benefits of inclusion, which include draft Coachella Valley MSHCP/NCCP. particular areas from the designation limited educational and regulatory The draft Coachella Valley MSHCP/ outweigh the benefits of including those benefits that are largely otherwise NCCP includes specific conservation areas in the designation. This economic provided for under the draft MSHCP/ objectives, avoidance and minimization analysis considers the economic NCCP, of these lands as critical habitat. measures, and management for the draft efficiency effects that may result from The benefits of inclusion of these 14,091 Coachella Valley MSHCP/NCCP that the designation, including habitat ac (5,703 ha) of lands as critical habitat exceed any conservation value provided protections that may be co-extensive are lessened because of the significant as a result of a critical habitat with the listing of the species. It also level of conservation that is proposed to designation. addresses distribution of impacts, be provided for A. l. var. coachellae The jeopardy standard of section 7 including an assessment of the potential under the draft Coachella Valley and routine implementation of habitat effects on small entities and the energy MSHCP/NCCP, including the conservation through the section 7 industry. This information can be used conservation of PCEs, protection of process also provide assurances that the by the Secretary to assess whether the important ecological processes that species will not go extinct. The effects of the designation might unduly maintain PCEs, maintenance of exclusion leaves this protection burden a particular group or economic biological corridors and linkages among unchanged from what would exist if the sector.
VerDate Aug<31>2005 16:33 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER2.SGM 14DER2 74134 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
This analysis focuses on the direct a regulatory flexibility analysis that Federal agencies; non-Federal activities and indirect costs of the rule. However, describes the effects of the rule on small are not affected by the designation. economic impacts to land use activities entities (i.e., small businesses, small Typically, when proposed critical can exist in the absence of critical organizations, and small government habitat designations are made final, habitat. These impacts may result from, jurisdictions). However, no regulatory Federal agencies must consult with us if for example, local zoning laws, State flexibility analysis is required if the their activities may affect designated and natural resource laws, and head of the agency certifies the rule will critical habitat. Consultations to avoid enforceable management plans and best not have a significant economic impact the destruction or adverse modification management practices applied by other on a substantial number of small of critical habitat would be incorporated State and Federal agencies. Economic entities. In our proposed rule, we into the existing consultation process. impacts that result from these types of withheld our determination of whether Our analysis determined that costs protections are not included in the this designation would result in a involving conservation measures for analysis as they are considered to be significant effect as defined under Astragalus lentiginosus var. coachellae part of the regulatory and policy SBREFA until we completed our draft would be incurred for activities baseline. economic analysis of the proposed involving residential, commercial, and There is no economic impact within designation so that we would have the industrial development (land the final designation because the factual basis for our determination. subdivision companies); transportation Service has not designated any lands as According to the Small Business (Caltrans, CVAG, or Riverside County critical habitat for Astragalus Administration (SBA), small entities Transportation Commission); Federal lentiginosus var. coachellae. include small organizations, such as land (BLM, U.S. Forest Service, and the A copy of the final economic analysis independent nonprofit organizations, Service); other public (CDFG and CDPR) and supporting documents are included and small governmental jurisdictions, or conservation (TNC and CNLM) land in our administrative file and may be including school boards and city and management; water supply (Mission obtained by contacting the Carlsbad town governments that serve fewer than Springs Water District and CVWD); office (see ADDRESSES section). 50,000 residents, as well as small flood control (CVWD and Riverside businesses (13 CFR 121.201). Small County Flood Control and Water Required Determinations businesses include manufacturing and Conservation District agencies); Regulatory Planning and Review mining concerns with fewer than 500 implementation of the draft Coachella employees, wholesale trade entities Valley MSHCP/NCCP; and wind energy In accordance with Executive Order with fewer than 100 employees, retail projects (private businesses and 12866, this document is a significant and service businesses with less than $5 individuals). However, since no critical rule in that it may raise novel legal and million in annual sales, general and habitat is being designated, no policy issues, but it will not have an heavy construction businesses with less consultations would be necessary. annual effect on the economy of $100 than $27.5 million in annual business, In our economic analysis of the million or more or affect the economy special trade contractors doing less than proposed designation, we evaluated the in a material way. Due to the tight $11.5 million in annual business, and potential economic effects on small timeline for publication in the Federal agricultural businesses with annual business entities resulting from Register, the Office of Management and sales less than $750,000. To determine conservation actions related to the Budget (OMB) has not formally if potential economic impacts to these listing of this species and designation of reviewed this rule. As explained above small entities are significant, we its critical habitat. Because zero acres of in the section titled Economic Analysis, considered the types of activities that critical habitat are being designated, we prepared an economic analysis of might trigger regulatory impacts under there would be no additional costs to this action. We used this analysis to this designation as well as types of small businesses, and, thus, this rule meet the requirement of section 4(b)(2) project modifications that may result. In would not result in a ‘‘significant effect’’ of the Act to determine the economic general, the term ‘‘significant economic for small businesses in Riverside consequences of designating the specific impact’’ is meant to apply to a typical County, California. As such, we are areas as critical habitat. We also used it small business firm’s business certifying that this rule will not result in to help determine whether to exclude operations. a significant economic impact on a any area from critical habitat, as To determine if this designation of substantial number of small entities. provided for under section 4(b)(2), if we critical habitat for Astragalus Small Business Regulatory Enforcement determine that the benefits of such lentiginosus var. coachellae will affect a Fairness Act (5 U.S.C. 801 et seq.) exclusion outweigh the benefits of substantial number of small entities, we specifying such area as part of the considered the number of small entities Under SBREFA, this rule is not a critical habitat, unless we determine, affected within particular types of major rule. Our detailed assessment of based on the best scientific data economic activities (e.g., residential, the economic effects of this designation available, that the failure to designate industrial, and commercial is described in the economic analysis. such area as critical habitat will result development). We considered each Based on the effects identified in the in the extinction of the species. industry or category individually to economic analysis as well as the fact determine if certification is appropriate. that this rule is a zero designation of Regulatory Flexibility Act (5 U.S.C. 601 In estimating the numbers of small critical habitat, we believe that this rule et seq.) entities potentially affected, we also will not have an annual effect on the Under the Regulatory Flexibility Act considered whether their activities have economy of $100 million or more, will (5 U.S.C. 601 et seq., as amended by the any Federal involvement; some kinds of not cause a major increase in costs or Small Business Regulatory Enforcement activities are unlikely to have any prices for consumers, and will not have Fairness Act (SBREFA) of 1996), Federal involvement and so will not be significant adverse effects on whenever an agency is required to affected by the designation of critical competition, employment, investment, publish a notice of rulemaking for any habitat. Designation of critical habitat productivity, innovation, or the ability proposed or final rule, it must prepare only affects activities conducted, of U.S.-based enterprises to compete and make available for public comment funded, permitted, or authorized by with foreign-based enterprises.
VerDate Aug<31>2005 16:33 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER2.SGM 14DER2 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74135
Executive Order 13211 participation in a voluntary Federal and coordinated development of, this program.’’ critical habitat designation with On May 18, 2001, the President issued The designation of critical habitat appropriate State resource agencies in an Executive Order (E.O. 13211) on does not impose a legally binding duty California. The designation of zero acres regulations that significantly affect on non-Federal government entities or of critical habitat in areas currently energy supply, distribution, and use. private parties. Under the Act, the only occupied by Astragalus lentiginosus var. Executive Order 13211 requires agencies regulatory effect is that Federal agencies coachellae would have no impact on to prepare Statements of Energy Effects must ensure that their actions do not State and local governments and their when undertaking certain actions. This destroy or adversely modify critical activities. The process of identifying final rule to designate critical habitat for habitat under section 7. While non- habitat with features essential to the Astragalus lentiginosus var. coachellae Federal entities who receive Federal conservation of the species may have is not a significant regulatory action funding, assistance, permits or some benefit to these governments in under Executive Order 12866, and it is otherwise require approval or that these areas essential to the not expected to significantly affect authorization from a Federal agency for conservation of the species are more energy supplies, distribution, or use. an action may be indirectly impacted by clearly defined, and the primary Therefore, this action is not a significant the designation of critical habitat, the constituent elements of the habitat energy action and no Statement of legally binding duty to avoid necessary to the survival of the species Energy Effects is required. destruction or adverse modification of are specifically identified. While critical habitat rests squarely on the Unfunded Mandates Reform Act (2 making this definition and Federal agency. Furthermore, to the U.S.C. 1501 et seq.) identification does not alter where and extent that non-Federal entities are what federally sponsored activities may In accordance with the Unfunded indirectly impacted because they occur, it may assist these local Mandates Reform Act (2 U.S.C. 1501 et receive Federal assistance or participate governments in long-range planning seq.), we make the following findings: in a voluntary Federal aid program, the (rather than waiting for case-by-case Unfunded Mandates Reform Act would (a) This rule will not produce a section 7 consultations to occur). not apply; nor would critical habitat Federal mandate. In general, a Federal shift the costs of the large entitlement Civil Justice Reform mandate is a provision in legislation, programs listed above onto State In accordance with Executive Order statute, or regulation that would impose governments. 12988, the Office of the Solicitor has an enforceable duty upon State, local, (b) We do not believe that this rule determined that the rule does not Tribal governments, or the private sector will significantly or uniquely affect unduly burden the judicial system and and includes both ‘‘Federal small governments because we are meets the requirements of sections 3(a) intergovernmental mandates’’ and designating zero acres of critical habitat. and 3(b)(2) of the Order. We have ‘‘Federal private sector mandates.’’ Consequently, we do not believe that designated zero acres of critical habitat These terms are defined in 2 U.S.C. critical habitat designation would in accordance with the provisions of the 658(5)–(7). ‘‘Federal intergovernmental significantly or uniquely affect small Act. This final rule uses standard mandate’’ includes a regulation that government entities. As such, a Small property descriptions and identifies the ‘‘would impose an enforceable duty Government Agency Plan is not primary constituent elements within the upon State, local, or tribal governments’’ required. designated areas to assist the public in with two exceptions. It excludes ‘‘a understanding the habitat needs of Takings condition of Federal assistance.’’ It also Astragalus lentiginosus var. coachellae. excludes ‘‘a duty arising from In accordance with Executive Order participation in a voluntary Federal 12630 (‘‘Government Actions and Paperwork Reduction Act of 1995 (44 program,’’ unless the regulation ‘‘relates Interference with Constitutionally U.S.C. 3501 et seq.) to a then-existing Federal program Protected Private Property Rights’’), we This rule does not contain any new under which $500,000,000 or more is have analyzed the potential takings collections of information that require provided annually to State, local, and implications of designating critical approval by OMB under the Paperwork tribal governments under entitlement habitat for Astragalus lentiginosus var. Reduction Act. This rule will not authority,’’ if the provision would coachellae. Critical habitat designation impose recordkeeping or reporting ‘‘increase the stringency of conditions of does not affect landowner actions that requirements on State or local assistance’’ or ‘‘place caps upon, or do not require Federal funding or governments, individuals, businesses, or otherwise decrease, the Federal permits, nor does it preclude organizations. An agency may not Government’s responsibility to provide development of habitat conservation conduct or sponsor, and a person is not funding’’ and the State, local, or Tribal programs or issuance of incidental take required to respond to, a collection of governments ‘‘lack authority’’ to adjust permits to permit actions that do require information unless it displays a accordingly. (At the time of enactment, Federal funding or permits to go currently valid OMB control number. these entitlement programs were: forward. Because we are designating National Environmental Policy Act Medicaid; AFDC work programs; Child zero acres of critical habitat for Nutrition; Food Stamps; Social Services Astragalus lentiginosus var. coachellae, It is our position that, outside the Block Grants; Vocational Rehabilitation this rule does not pose significant Tenth Circuit, we do not need to State Grants; Foster Care, Adoption takings implications. prepare environmental analyses as Assistance, and Independent Living; defined by the NEPA in connection with Family Support Welfare Services; and Federalism designating critical habitat under the Child Support Enforcement.) ‘‘Federal In accordance with Executive Order Endangered Species Act of 1973, as private sector mandate’’ includes a 13132, the rule does not have significant amended. We published a notice regulation that ‘‘would impose an Federalism effects. A Federalism outlining our reasons for this enforceable duty upon the private assessment is not required. In keeping determination in the Federal Register sector, except (i) a condition of Federal with DOI and Department of Commerce on October 25, 1983 (48 FR 49244). This assistance; or (ii) a duty arising from policy, we requested information from, assertion was upheld in the courts of the
VerDate Aug<31>2005 16:33 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER2.SGM 14DER2 74136 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
Ninth Circuit (Douglas County v. conservation of the Astragalus Regulation Promulgation Babbitt, 48 F.3d 1495 (9th Cir. Ore. lentiginosus var. coachellae. I Accordingly, we amend part 17, 1995), cert. denied 116 S. Ct. 698 (1996). References Cited subchapter B of chapter I, title 50 of the Government-to-Government Code of Federal Regulations, as set forth Relationship With Tribes A complete list of all references cited below: in this rulemaking is available upon In accordance with the President’s request from the Field Supervisor, PART 17—[AMENDED] memorandum of April 29, 1994, Carlsbad Fish and Wildlife Office (see I 1. The authority citation for part 17 ‘‘Government-to-Government Relations ADDRESSES section). continues to read as follows: with Native American Tribal Author(s) Governments’’ (59 FR 22951), Executive Authority: 16 U.S.C. 1361–1407; 16 U.S.C. Order 13175, and the Department of 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– The primary authors of this package 625, 100 Stat. 3500; unless otherwise noted. Interior’s manual at 512 DM 2, we are the Carlsbad Fish and Wildlife I 2. In § 17.12(h), in the List of readily acknowledge our responsibility Office staff. to communicate meaningfully with Endangered and Threatened Plants, revise the entry for ‘‘Astragalus recognized Federal Tribes on a List of Subjects in 50 CFR Part 17 lentiginosus var. coachellae’’ under government-to-government basis. We Endangered and threatened species, ‘‘FLOWERING PLANTS’’ to read as have determined that no tribal lands Exports, Imports, Reporting and follows: occupied at the time of listing contain recordkeeping requirements, the features essential for the Transportation. § 17.12 Endangered and threatened plants. conservation and no tribal lands that are * * * * * unoccupied are essential for the (h) * * *
Species Historic range Family Status When listed Critical Special Scientific name Common name habitat rules
FLOWERING PLANTS
******* Astragalus Coachella Valley U.S.A. (CA) ...... Fabaceae ...... E 647 17.96(a) (No NA lentiginosus var. milk-vetch. areas des- coachellae. ignated)
*******
I 3. In § 17.96, amend paragraph (a) by Family Fabaceae: Astragalus designated as critical habitat for this adding an entry for Astragalus lentiginosus var. coachellae species. lentiginosus var. coachellae in (Coachella Valley Milk-Vetch) * * * * * alphabetical order under Family Dated: November 30, 2005. Fabaceae to read as follows: Pursuant to section 4(b)(2) of the Act, we have excluded all areas determined Craig Manson, § 17.96 Critical habitat—plants. to meet the definition of critical habitat Assistant Secretary for Fish and Wildlife and under section 3(5)(A) of the Act for Parks. (a) Flowering plants. Astragalus lentiginosus var. coachellae. [FR Doc. 05–23694 Filed 12–13–05; 8:45 am] * * * * * Therefore, no specific areas are BILLING CODE 4310–55–P
VerDate Aug<31>2005 16:37 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER2.SGM 14DER2 Wednesday, December 14, 2005
Part III
Department of the Interior Fish and Wildlife Service
50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Sonoma County Distinct Population Segment of the California Tiger Salamander; Final Rule
VerDate Aug<31>2005 16:42 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\14DER3.SGM 14DER3 74138 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
DEPARTMENT OF THE INTERIOR significant amounts of available critical habitat, and we face a growing conservation resources. The Service’s number of lawsuits challenging critical Fish and Wildlife Service present system for designating critical habitat determinations once they are habitat has evolved since its original made. These lawsuits have subjected the 50 CFR Part 17 statutory prescription into a process that Service to an ever-increasing series of RIN 1018–AU23 provides little real conservation benefit, court orders and court-approved is driven by litigation and the courts settlement agreements, compliance with Endangered and Threatened Wildlife rather than biology, limits our ability to which now consumes nearly the entire and Plants; Designation of Critical fully evaluate the science involved, listing program budget. This leaves the Habitat for the Sonoma County Distinct consumes enormous agency resources, Service with little ability to prioritize its Population Segment of the California and imposes huge social and economic activities to direct scarce listing Tiger Salamander costs. The Service believes that resources to the listing program actions additional agency discretion would with the most biologically urgent AGENCY: Fish and Wildlife Service, allow our focus to return to those species conservation needs. Interior. actions that provide the greatest benefit The consequence of the critical ACTION: Final decision in rulemaking to the species most in need of habitat litigation activity is that limited process. protection. listing funds are used to defend active lawsuits, to respond to Notices of Intent SUMMARY: We, the U.S. Fish and Role of Critical Habitat in Actual (NOIs) to sue relative to critical habitat, Wildlife Service (Service), designate and Practice of Administering and and to comply with the growing number exclude approximately 17,418 acres (ac) Implementing the Act of adverse court orders. As a result, (7,049 hectares (ha)) of critical habitat While attention to and protection of listing petition responses, the Service’s for the Sonoma County distinct habitat is paramount to successful own proposals to list critically population segment of the California conservation actions, we have imperiled species and final listing tiger salamander (Ambystoma consistently found that, in most determinations on existing proposals are californiense) pursuant to the circumstances, the designation of all significantly delayed. Endangered Species Act of 1973, as critical habitat is of little additional The accelerated schedules of court amended (Act). We are excluding all value for most listed species, yet it ordered designations have left the critical habitat based on interim consumes large amounts of conservation Service with almost no ability to conservation strategies and measures resources. Sidle (1987) stated, ‘‘Because provide for adequate public being implemented by those local the Act can protect species with and participation or to ensure a defect-free governing agencies with land use without critical habitat designation, rulemaking process before making authority over the area and also as a critical habitat designation may be decisions on listing and critical habitat result of economic exclusions redundant to the other consultation proposals due to the risks associated authorized under section 4(b)(2) of the requirements of section 7.’’ Currently, with noncompliance with judicially- Act. Therefore, no critical habitat is only 466 species or 36.7 percent of the imposed deadlines. This in turn fosters being designated for the Sonoma County 1,269 listed species in the United States a second round of litigation in which distinct population segment of the under the jurisdiction of the Service those who fear adverse impacts from California tiger salamander in Sonoma have designated critical habitat. critical habitat designations challenge County, California. We address the habitat needs of all those designations. The cycle of DATES: This final decision becomes 1,269 listed species through litigation appears endless, is very effective on January 13, 2006. conservation mechanisms such as expensive, and in the final analysis listing, section 7 consultations, the provides relatively little additional ADDRESSES: Comments and materials Section 4 recovery planning process, the protection to listed species. received, as well as supporting Section 9 protective prohibitions of The costs resulting from the documentation used in the preparation unauthorized take, Section 6 funding to designation include legal costs, the cost of this rulemaking, will be available for the States, and the Section 10 incidental of preparation and publication of the public inspection, by appointment, take permit process. The Service designation, the analysis of the during normal business hours, at the believes that it is these measures that economic effects and the cost of Sacramento Fish and Wildlife Office may make the difference for the requesting and responding to public (SFWO), 2800 Cottage Way, W–2605, conservation of many species. comment, and in some cases the costs Sacramento, CA 95825. The final rule We note, however, that two courts of compliance with the National and economic analysis will be available found our definition of adverse Environmental Policy Act (NEPA). None via the Internet at http://www.fws.gov/ modification to be invalid (March 15, of these costs result in any benefit to the sacramento/. 2001, decision of the United States species that is not already afforded by FOR FURTHER INFORMATION CONTACT: Court Appeals for the Fifth Circuit, the protections of the Act enumerated Field Supervisor, Sacramento Fish and Sierra Club v. U.S. Fish and Wildlife earlier, and they directly reduce the Wildlife Office, at the above address, Service et al., F.3d 434 and the August funds available for direct and tangible (telephone (916) 414–6600; facsimile 6, 2004, Ninth Circuit judicial opinion, conservation actions. (916) 414–6712). Gifford Pinchot Task Force v. United Background SUPPLEMENTARY INFORMATION: States Fish and Wildlife Service). On December 9, 2004, the Director issued It is our intent to discuss only those Designation of Critical Habitat Provides topics directly relevant to the Little Additional Protection to Species guidance to be used in making section 7 adverse modification determinations. designation of critical habitat in this In 30 years of implementing the Act, rule. For more information on the the Service has found that the Procedural and Resource Difficulties in Sonoma County distinct population designation of statutory critical habitat Designating Critical Habitat segment of the California tiger provides little additional protection to We have been inundated with salamander, refer to the final listing rule most listed species, while consuming lawsuits for our failure to designate and proposed critical habitat rule
VerDate Aug<31>2005 16:42 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74139
published in the Federal Register on C–04 4324 FMS)). On February 3, 2005, new information regarding critical March 19, 2003 (68 FR 13498), and the District Court required the Service to habitat for the Sonoma County distinct August 2, 2005 (70 FR 44301), submit for publication in the Federal population segment of the California respectively. Register, a final determination on the tiger salamander. Comments received As previously mentioned in the proposed critical habitat designation on were grouped into general issues proposed critical habitat rule published or before December 1, 2005. On August specifically relating to the proposed in the Federal Register on August 2, 2, 2005, we noticed in the Federal critical habitat rulemaking for the 2005 (70 FR 44301), we have been Register a proposed critical habitat Sonoma County distinct population cooperatively working with Federal, designation (70 FR 44301). On August segment of the California tiger State, County, and local officials as well 19, 2005, a court order was filed on the salamander, are addressed in the as representatives from local business above complaint, which upheld the following summary, and incorporated and environmental groups over the last section 4(d) rule exempting grazing from into the final rule as appropriate. 18 months to develop a conservation Section 9 prohibitions, but vacated the Comments From the State strategy for the California tiger downlisting of the Santa Barbara and salamander in Sonoma County. The Sonoma populations and reinstated Section 4(i) of the Act states, ‘‘the development of the Santa Rosa Plain their endangered distinct population Secretary shall submit to the State Conservation Strategy (Conservation segment status. On October 25, 2005, we agency a written justification for her Strategy) along with implementation noticed in the Federal Register the failure to adopt regulation consistent measures has been moving forward and availability of a draft economic analysis with the agency’s comments or the County of Sonoma along with the on the proposed designation (70 FR petition.’’ We did not receive any cities of Santa Rosa, Rohnert Park, 61591). In a November 17, 2005 Federal comments from State agencies regarding Cotati and Windsor have all passed Register notice (70 FR 69717), we the proposal to designate critical habitat resolutions supporting the development requested comments on a refinement of for the Sonoma County distinct and agree to work toward those areas considered to contain the population segment of the California implementation of the Conservation essential features necessary for the tiger salamander. Strategy for the protection of the conservation of the Sonoma County Peer Review Sonoma County distinct population distinct population segment of the segment of the California tiger California tiger salamander, and In accordance with our policy salamander as well as several other identified the adjusted economic published on July 1, 1994 (59 FR Federally listed plant species occurring impacts. This final decision associated 34270), we solicited expert opinions on the Santa Rosa Plain. with the rulemaking process is in from six knowledgeable individuals On June 29, 2005, the Service and the accordance with the settlement with scientific expertise that included California Department of Fish and Game agreement and court order. For more familiarity with the species, the (CDFG) issued interim guidelines which information on previous Federal actions geographic region in which the species contain project specific conservation concerning the California tiger occurs, and conservation biology measures for projects affecting the salamander, refer to the proposed rule to principles. We received a response from California tiger salamander on the Santa designate critical habitat in Sonoma three of the peer reviewers. These Rosa Plain. These interim guidelines are County published in the Federal reviewers provided specific information in place and the measures identified in Register on August 2, 2005 (70 FR regarding species location and habitat as them are currently being implemented 44301), as well as the listing notice well as information on the areas that by those individuals impacting habitat published in the Federal Register on could be excluded based on soil features considered essential for the March 19, 2003 (68 FR 13498). information, locations of wetlands, conservation of the Sonoma County potential breeding habitat, elevation distinct population segment of the Summary of Comments and information, and habitat fragmentation. California tiger salamander. These Recommendations This information was used to assist us conservation measures have been We requested written comments from in determining the final critical habitat reviewed by the team developing the the public on the proposed designation boundaries. Any changes as a result of Conservation Strategy as well as peer of critical habitat for California tiger peer review information are reflected reviewed by biologists knowledgeable of salamander in the proposed rule and incorporated in this final amphibian conservation or ecological published on August 2, 2005 (70 FR rulemaking as appropriate. Specific peer conservation in general and are 44301). We also contacted appropriate review comments are addressed in the consistent with long-term conservation Federal, State, and local agencies; following summary below. of the California tiger salamander and scientific organizations; and other other listed plants on the Santa Rosa interested parties and invited them to Peer Review Comments Plain. As the Conservation Strategy is comment on the proposed rule. In Comment: The critical habitat area finalized, the Service and the CDFG addition, we held two public hearings should be reduced to approximately intend to continue to implement and or on September 8, 2005, in Santa Rosa, 18,000–20,000+ acres of extant occupied revise these interim guidelines to best California. habitat and comprised of a 1.3 mile (mi) conserve the California tiger salamander We had three open comment periods, (2 kilometer (km)) buffer around known and other Federally-listed plant species totaling 91 days, between August 2, breeding locations. on the Santa Rosa Plain. 2005 and November 28, 2005. During Our Response: As outlined in our those periods, we received comments notice published in the Federal Register Previous Federal Actions directly addressing the proposed critical on November 17, 2005 (70 FR 69717), On October 13, 2004, a complaint was habitat designation: three from peer we refined the proposed designation to filed in the U.S. District Court for the reviewers, six from local government, just those areas surrounding known Northern District of California (Center and 55 from organizations or breeding locations, and by applying for Biological Diversity and individuals. We reviewed all comments parameters for dispersal and upland Environmental Defense Council v. U.S. received from the peer reviewers and habitat similar to those we used in Fish and Wildlife Service et al. (Case No. the public for substantive issues and critical habitat designation for the Santa
VerDate Aug<31>2005 16:42 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 74140 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
Barbara and Central populations of the extend south to Rainsville Road, north be designed including specific areas California tiger salamander. We began of Petaluma. which should be included and excluded mapping habitat by buffering breeding Our Response: As part of our from the final designation. locations by a distance of 0.70 mi (1.1 deliberation over which areas to Our Response: We used the best km) to capture dispersal and upland designate, we used currently known scientific information available in habitat use by the species. Some California tiger salamander breeding determining the extent of the critical research has found that 99 percent of locations within Sonoma County. We habitat boundaries and revised our interpond dispersal would be captured believe that basing our designation on proposed rule based on comments using this 0.7 mi (1.1 km) radius around breeding locations would ensure the received and peer review. We mapped a breeding pond (Trenham et al. 2001; conservation of the species by providing only those areas which contained the Trenham and Shaffer 2005). areas which contain the essential essential features necessary to conserve Salamanders have been documented features of aquatic, upland, and the Sonoma County distinct population dispersing even farther than 0.7 mi (1.1 dispersal habitats. We lacked adequate segment of the California tiger km) (Sweet 1998) however, and the documentation of essential features, salamander. When determining critical Conservation Strategy chose a radius of particularly breeding habitat, that might habitat boundaries, we made every 1.3 mi (2.1 km) to ensure that incidental be associated with this observation to effort to avoid including within the take coverage would be inclusive of all include it in a critical habitat boundaries of the map contained within areas likely to be occupied by designation. We recognize that this final rule developed areas such as salamanders and to establish a broad designation of critical habitat may not buildings, paved areas, and other area in which conservation for include all of the habitat areas that may structures that lack the primary salamander would be implemented. eventually be determined to be constituent elements for the California Ultimately however, as discussed necessary for the recovery of the tiger salamander. The scale of the maps below, we excluded all areas species. For these reasons, critical prepared under the parameters for designation as critical habitat (see habitat designations do not signal that publication within the Code of Federal Application of Exclusions Under habitat outside the designation is Regulations may not reflect the Section 4(b)(2) of the Act). unimportant or may not be required for exclusion of such developed areas. Any Comment: Existing urban centers recovery. Areas that support such structures and the land under them within the historic range of California populations, but are outside the critical inadvertently left inside critical habitat tiger salamander should be removed habitat designation, will continue to be boundaries shown on the maps of this from the designation. Retaining these subject to the regulatory protections final rule have been excluded by text in urban centers will bias the economic afforded by the section 7(a)(2) jeopardy the rule and are not designated as evaluation of critical habitat. standard as determined on the basis of critical habitat. These developed and Our Response: In our final the best available information at the nonessential habitat areas would not designation, we mapped only those time of the action. contain the primary constituent areas which contained the essential elements and as such would not be features necessary to conserve the Other Comments considered critical habitat. We excluded Sonoma County distinct population Issue 1: Habitat and Species Specific all the area which would otherwise have segment of the California tiger Information been designated as final critical habitat salamander. We removed all developed based on implementation of local and nonessential areas to the best of our Comment: A few comments stated government management strategies and ability, however due to mapping they were in favor of including the economic cost (see Exclusions Under precision we were unable to remove all Petaluma area as critical habitat because Section 4(b)(2) of the Act section). such development. The scale of the they have observed salamanders in this Comment: One commenter stated that maps prepared under the parameters for area and suitable habitat exists. critical habitat unit is too limited and publication within the Code of Federal Our Response: We have been unable that California tiger salamanders have Regulations may not reflect the to confirm the claims of these been observed south to Muir Woods, exclusion of such developed areas. Any comments. Breeding or individual Marin County. such structures and the land under them observations of the species in the Our Response: We used the best left inside the critical habitat boundaries Petaluma area have yet to be verified by scientific data available for the shown on the maps of this final rule recognized experts. Since the emergency designation of critical habitat and have been excluded by text in the rule listing in July, 2002, we have received alternative considered for the Sonoma and are not designated as critical numerous claims from the public that County distinct population segment of habitat. These developed and they have seen salamanders at various the California tiger salamander, as per nonessential habitat areas although locations within the potential range of section 3(5)(A)(i) of the Act and within the boundary of the final the species. Upon further investigation regulations at 50 CFR 424.12. We used designation would not contain the by recognized experts in those the California Natural Diversity primary constituent elements and as instances, the arboreal salamander Database (CNDDB), survey records, and such would not be considered critical (Aneides lugubris) is frequently other information to determine the habitat. We excluded all the final mistaken for the California tiger historical and potential range of the critical habitat based on implementation salamander and no confirmed breeding species at the time of listing in March of local government management areas for the California tiger salamander 2003. There are no confirmed records of strategies and economic cost (see have been confirmed outside those the Sonoma County distinct population Exclusions Under Section 4(b)(2) of the identified during this rulemaking segment of the California tiger Act section). process. salamander found in Marin County. Comment: There is anecdotal Comment: Several commenters stated evidence of one adult California tiger Issue 2: Unit Designations that the extension of California tiger salamander near Rainsville Road in the Comment: Several comments salamander critical habitat into the 1990s from an amateur herpetologist included specific recommendations on Petaluma area is not justified based on and the critical habitat boundary should how the critical habitat unit(s) should the current known locations of the
VerDate Aug<31>2005 16:42 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74141
species and distribution of California City of Santa Rosa’s urban grown FR 44301), and we accepted comments tiger salamander habitats. Several boundary as critical habitat because of from all interested parties for a 60-day commenters also stated that the their concerns of high economic comment period, until October 3, 2005. Petaluma area is nearly completely impacts. On October 25, 2005, we reopened the developed and lacks the primary Our Response: Section 4 of the comment period for 21 days until constituent elements, the designation Endangered Species Act of 1973, as November 14, 2005, and made available would cause significant economic amended, and our implementing the draft economic analysis (70 FR impacts; and that the lands within the regulations, state that critical habitat 61591). On November 17, 2005, we Petaluma city limit should be excluded shall be designated for species listed reopened the comment period for 12 from critical habitat. under the Act. We have excluded all days until November 28, 2005 (70 FR Our Response: We used the best areas which otherwise would have been 69717), and requested comments on a scientific information available in designated as critical habitat, including refinement of those areas considered to determining the extent of the critical areas within the City of Santa Rosa contain the essential features necessary habitat boundaries and revised our urban growth boundary (UGB), after for the conservation of the Sonoma proposed rule based on comments taking into consideration the economic County distinct population segment of received and peer review. The area impact and conservation measures being the California tiger salamander. The which otherwise would have received a implemented by local governmental Conservation Strategy was released for designation as critical habitat is based agencies (see Exclusions Under Section public comment on August 17, 2005. on known breeding locations for the 4(b)(2) of the Act section). The document was posted on the species. As a result, the area south of Comment: One commenter expressed websites of the City of Santa Rosa and Pepper Road in Cotati was not concern about the burden on the Sacramento Fish and Wildlife Office considered essential to the conservation agricultural practices such as plowing of the U.S. Fish and Wildlife Service. of the species. In addition, as a result of fields, planting new vines, and the The Service issued a press release and analyzing the benefits of designating removal of existing vines. local media reported the event. A public critical habitat versus benefits of not Our Response: Designation of critical meeting to accept comments and designating critical habitat we excluded habitat in areas occupied by the species provide information was held in Santa all the final critical habitat based on does not necessarily result in a Rosa on September 12, 2005. The public implementation of local government regulatory burden above that already in comment period closed on the management conservation strategies and place due to the presence of the listed Conservation Strategy on September 17, economic costs (see Exclusions Under species. The Service works with private 2005. Section 4(b)(2) of the Act section). landowners to identify activities and Although the area considered essential modifications to activities that will not Issue 5: Designation Process in the final determination does not result in take, to develop measures to Comment: One commenter stated that include the Petaluma area, this does not minimize the potential for take, and to the proposed rule’s boilerplate position mean that the area does not contain provide authorizations for take through statement that critical habitat provides appropriate habitat for the California Sections 7 and 10 of the Act. One no additional benefit to listed species tiger salamander or that the area may be intention of critical habitat is to inform violates the Act’s requirement that the needed for recovery of the species. We people of areas that contain the features Service base its determinations solely continue to encourage all local that are essential for the conservation of on the best available science. governmental municipalities to work the species. We encourage landowners Our Response: The Service’s closely with State and Federal resource to work in partnership with us to statements regarding the general agencies to conserve and protect develop plans that allow their land protections provided by critical habitat endangered and sensitive species and management and development practices does not change the method in which their habitats. to proceed in a manner consistent with we make our final critical habitat Comment: One commenter the conservation of listed species. The determinations. We used the best recommends excluding the areas north California tiger salamander is already a scientific data available in determining of Santa Rosa Creek; within the 100 year Federally-listed species, and as such, the extent of the area which would be flood plain; east of Highway 101 from projects that may result in take of the designated as critical habitat absent Rohnert Park Expressway north; and species are already required to consult exclusions and in identifying areas south of Pepper Road to Lichau Creek. with the Service under Section 7 or which contain the features essential to Our Response: We have revised the Section 10 of the Act. However, we the conservation of the species. areas considered as critical habitat excluded all areas which otherwise Comment: One commenter stated that based on scientific information, peer would have been designated as critical the proposed rule implies that if the review, and comments received. As a habitat based on implementation of Service does not receive justification for result, we have removed many areas local government management strategies inclusion of an area during the public from the proposed rule that did not and economic cost (see Exclusions comment period, then that area will be contain the essential features. Also our Under Section 4(b)(2) of the Act dropped from the final critical habitat final determination has excluded all the section). designation. The commenter also stated remaining area which otherwise would that the Service needs to make its have been designated as critical habitat Issue 4: Notification and Comment decision on the basis of the best based on implementation of local Period Comments available scientific information and government management strategies and Comment: One commenter stated that where the information is not completely economic cost (see Exclusions Under the comment period was too short and clear or incomplete, the benefit of the Section 4(b)(2) of the Act section). the information about the Conservation doubt should go toward actions which Strategy was not available until just would benefit conservation of the Issue 3: Social and Economic Costs/ recently. species. Regulatory Burden Our Response: The proposed critical Our Response: It was not our intent to Comment: Several commenters habitat designation was published in the suggest that areas would be removed requested excluding the lands in the Federal Register on August 2, 2005 (70 from the designation if information was
VerDate Aug<31>2005 16:42 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 74142 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
not received to justify their inclusion. presence of the listed species. However, County of Sonoma, the City of Santa We based the final critical habitat on the we excluded all the area which would Rosa, the City of Cotati, the Town of best scientific information available as otherwise be designated as critical Windsor, the City of Rohnert Park, the well as incorporated appropriate peer habitat based on implementation of California Department of Fish and review information. We believe that the local government management strategies Game, and the Service have signed a final area identified as critical habitat and economic cost (see Application of planning agreement and the local prior to exclusion under section 4(b)(2) Exclusions Under Section 4(b)(2) of the jurisdictions adopted individual represents the best scientific Act section). resolutions that agree to implement an information as to what areas contain the Issue 8: Conservation Strategy interim conservation strategy while the essential features necessary for Conservation Strategy is fully adopted conservation of the Sonoma County Comment: One commenter stated that and implemented. We have outlined distinct population segment of the identifying the Conservation Strategy as those reasons why we believe the California tiger salamander considering an alternative to designating critical current Conservation Strategy would the economic and other relevant habitat is not appropriate or lawful provide a benefit above that of impacts. under the Endangered Species Act. designating critical habitat (see Our Response: We did not propose Comment: One commenter stated that Exclusion Under Section 4(b)(2) of the the Service needs to narrow the scope the Conservation Strategy to be an alternative to designating critical Act section). However, the Conservation of the proposed critical habitat and not Strategy is still under development and include the entire geographical area that habitat. However, Section 4(b)(2) of the Act states that ‘‘The Secretary may subject to final approval. Should the can be occupied by the threatened or current Conservation Strategy not be endangered species. exclude any area from critical habitat if implemented or changed to such an Our Response: The final boundaries of [s]he determines that the benefits of that area which would be designated as such exclusion outweigh the benefits of extent as it no longer provides for the critical habitat prior to exclusion under specifying such area as part of the conservation of the Sonoma County section 4(b)(2) for the Sonoma County critical habitat, unless [s]he determines, distinct population segment of the distinct population segment of the based on the best scientific data California tiger salamander, we would California tiger salamander has been available, that the failure to designate revisit our current determination on greatly reduced from the proposed such area as critical habitat will result designating critical habitat for the designation. Based on the best scientific in the extinction of the species species and repropose critical habitat. data available, we removed those areas concerned.’’ We excluded all the area Comment: One commenter stated that from the proposed designation which which would otherwise have been the Service needs to protect the areas did not contain the essential habitat designated as critical habitat based on where the California tiger salamander features, were already developed, or implementation of local government reside rather than relocate them as is were outside the current range of the management strategies and economic identified in the Conservation Strategy. cost (see Application of Exclusions species. The final area which would be Our Response: The designation of Under Section 4(b)(2) of the Act designated as critical habitat absent critical habitat does not prescribe exclusion under section 4(b)(2) is based section). management actions but does define on the aquatic, upland and dispersal Comment: Several commenters areas which contain the essential habitat surrounding known breeding expressed support of the Conservation features described as primary locations. Strategy, but had reservations because it was not finalized and that it needs constituent elements. We agree that Issue 6: Cooperative Efforts improvement in order to conserve the protection of areas where California Comment: One commenter expressed Sonoma County distinct population tiger salamanders are endemic should their support of the cooperative/ segment of the California tiger be the priority of the strategy, and this partnership approach being used by the salamander and four Federally-listed is demonstrated by the conservation Conservation Strategy members. They plants. areas identified in the Conservation stated that designating critical habitat Our Response: In development of the Strategy. The Conservation Strategy would provide disincentives to private Conservation Strategy, the Federal, identifies areas that support potential landowners by requiring farmers and State, County and local government habitat but is not currently occupied by ranchers obtaining funds from the U.S. agencies, as well as representatives from the California tiger salamander and Department of Agriculture through the the building industry and recommends translocation of the species Farm Bill to complete the consultation environmental organizations, received to be an option only under certain process, which hinders the completion similar comments regarding issues with circumstances. These areas may be of conservation activities on these lands. the Conservation Strategy. The suitable for translocation of individuals Our Response: We support all Conservation Strategy has been to aid in the recovery of the species. cooperative/partnership efforts to independently peer reviewed and Some projects authorized under Section conserve federally listed threatened and comments received from peer reviewers 7 or 10 of the ESA may have endangered species. Federal agencies have been incorporated into the current unavoidable impacts to the species. already consult with us on activities version of the plan. The Conservation These unavoidable impacts may be (i.e., permitting or funding of projects) Strategy focuses on establishing large, minimized by salvaging individuals and in areas currently occupied by the contiguous preserves and a coordinated relocating them to suitable habitat on a species or if the species may be affected region-wide restoration and case by case basis. Preliminary data has by the action to ensure that their actions management strategy, species research, demonstrated that this management do not jeopardize the continued endowment funding, administration of technique may be successful. The existence of the species. Therefore, we preserve management, and Conservation Strategy has been peer believe that the designation of critical implementation that will contribute to reviewed by recognized experts and the habitat would not likely result in the recovery of the California tiger comments regarding translocation have significant additional regulatory burden salamander and four Federal and State been incorporated into the current above that already in place due to the listed plants in Sonoma County. The version of the plan.
VerDate Aug<31>2005 16:42 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74143
Issue 9: Economic Analysis responsibilities under section 4(b)(2) Comment: Several commenters state Comment: One commenter states that then, the Service need only to consider that the DEA underestimates the impact the Draft Economic Analysis (DEA) fails whether the economic impacts (both of critical habitat on transportation to evaluate benefits associated with positive and negative) or any other projects in Sonoma County. Our Response: Planned transportation conserving the California tiger impact are significant enough to merit projects are captured in the DEA using salamander. Further, this commenter exclusion of any particular area without the California Department of states that the DEA should review the causing the species to go extinct. Transportation’s California benefits of conserving open space and Comment: One commenter states that Transportation Investment System riparian areas. the DEA overestimates costs associated (CTIS) tool that includes information for Our Response: In the context of a with conserving California tiger interstates, principal arterials, and rural critical habitat designation, the primary salamander, because it includes minor arterials. The CTIS tool purpose of the rulemaking (i.e., the economic impacts attributable to listing incorporates information about projects direct benefit) is to designate areas in under the Act. The commenter further overseen by the State Transportation need of special management that states that the DEA confuses the Improvement Program, the State contain the features essential to the economic costs by including costs of Highway Operations and Protection conservation of listed species. While a conservation efforts to protect the Program, the Interregional listed species may be the primary species (not its critical habitat) with conservation of the proposed critical Transportation Strategic Plan, the beneficiary of designated critical California Aviation System Plan, and habitat, the designation of critical habitat. For this reason, the commenter questions why the DEA includes pre- various regional transportation planning habitat may also result in two distinct organizations. Version 1.3.2 of this tool categories of benefits to society: (1) Use, designation costs, as these costs are associated with listing of the species. is used in the DEA as the updated and (2) non-use benefits. Use benefits Version 2.0 had not been released at the are the social benefits that accrue from Our Response: This analysis identifies those economic activities believed to time the report was prepared. the physical use of a resource. Visiting Accordingly, the DEA is prepared using critical habitat to see endangered most likely threaten the California tiger salamander and its habitat and, where the most current publicly available species in their natural habitat would be information on planned transportation a primary example. Non-use benefits, in possible, quantifies the economic impact to avoid, mitigate, or compensate projects. Public comments received contrast, represent welfare gains from were inadequate to update impact for such threats within the boundaries just knowing that a particular listed calculations. of the critical habitat. In instances species’ natural habitat is being Based on the public comments specially managed for the conservation where critical habitat is being proposed received, the Service’s contractor for of that species. Both use and non-use after a species is listed, some future completing the economic analysis benefits may occur unaccompanied by impacts may be unavoidable, regardless contacted the Sonoma County any market transactions. of the final designation and exclusions Transportation Authority (Authority) to A primary reason for conducting this under 4(b)(2). However, due to the request more detailed information on analysis is to provide information difficulty in making a credible the nature, location and scope of regarding the economic impacts distinction between listing and critical additional planned projects. The associated with a proposed critical habitat effects within critical habitat Authority was unable to provide the habitat designation. Section 4(b)(2) of boundaries, this analysis considers all needed information in time to revise the the Act requires the Secretary to future conservation-related impacts to impact analysis within the court- designate critical habitat based on the be coextensive with the designation. directed timeframe. However, since no best scientific data available after taking Comment: Several commenters state critical habitat is being designated, the into consideration the economic impact, that the DEA should incorporate the impacts asserted by the commenter will and any other relevant impact, of recent ruling in the Ninth Circuit Court not be incurred. specifying any particular area as critical of Appeals, Gifford Pinchot Task Force Comment: Several commenters state habitat. Economic impacts can be both v. U.S. Fish and Wildlife Service. that mitigation prices used in the DEA positive and negative and by definition, Our Response: The DEA are too low. The comments further cite are observable through market acknowledges that the Ninth Circuit a wide range of current market prices for transactions. judicial opinion, Gifford Pinchot Task mitigation in Sonoma County. Where data are available, this analysis Force v. United States Fish and Wildlife Our Response: The DEA calculates attempts to recognize and measure the Service, invalidated the Service’s mitigation prices as the cost of land net economic impact of the proposed regulation defining destruction or assembly in the various California tiger designation. For example, the DEA adverse modification of critical habitat. salamander mitigation zones plus the investigates whether conserved open The Service is currently reviewing the cost of required improvements to land space at designated mitigation sites decision to determine what affect it (and to make the site suitable for California results in increased property values. to a limited extent Center for Biological tiger salamander occupation. This The DEA did not find any evidence that Diversity v. Bureau of Land approach is consistent with the welfare- housing price was influenced by Management (Case No. C–03–2509–SI, theoretic underpinnings of the impact proximity to the nearest conservation N.D. Cal.)) may have on the outcome of model, in particular its focus on area. The authors hypothesize that this consultations pursuant to section 7 of efficiency effects. One social cost of may be attributable to the large amount the Act. As a result of this ruling, the using land for mitigation is the value of of open space in Sonoma County. While DEA assumes that efforts to mitigate the foregone alternative uses of the land. section 4(b)(2) of the Act gives the impacts to the habitat must occur within These values are approximately equal to Secretary discretion to exclude certain the boundaries of critical habitat. the purchase price of the land. Another areas from the final designation, she is Consistent with this requirement, zonal social cost of mitigation is the value of authorized to do so only if an exclusion mitigation sites assumed in the DEA are the resources used to modify the land to does not result in the extinction of the those identified in the Santa Rosa Plain make it suitable for California tiger species. In terms of carrying out its Conservation Strategy. salamander occupation.
VerDate Aug<31>2005 16:42 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 74144 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
Mitigation prices may rise above the Summary of Changes From Proposed of the species and (II) that may require supply price of mitigation, for example Rule special management considerations or when the supply of mitigation is In the proposed critical habitat rule protection; and (ii) specific areas constrained by permitting delays or for the Sonoma County distinct outside the geographical area occupied other factors. However, prices above population segment of the California by a species at the time it is listed, upon supply cost are a transfer between tiger salamander, we identified the a determination that such areas are agents and net out of an efficiency historical and potential range of the essential for the conservation of the species. ‘‘Conservation’’ means the use impact. species in Sonoma County, utilizing all Comment: Two commenters state that of all methods and procedures that are known breeding and adult locality data the DEA should not use mitigation necessary to bring an endangered or a and GIS resources available to the formulas described in the Conservation threatened species to the point at which Service. Based on comments received Strategy since it is not a legally binding listing under the Act is no longer from the public and from peer review, document. Further, the commenters necessary. state that the DEA should not assume and a refinement of our parameters for Critical habitat receives protection that critical habitat has no impacts dispersal and upland habitat use by the under section 7 of the Act through the outside of a 1.3-mile buffer around species, we revised the final designation prohibition against destruction or breeding habitat. of critical habitat for the Sonoma adverse modification of critical habitat Our Response: The cities of Santa County distinct population segment of with regard to actions carried out, Rosa, Rohnert Park, and Cotati, the town the California tiger salamander, as funded, or authorized by a Federal of Windsor, Sonoma County, the local follows: agency. Section 7 requires consultation development community, (1) As outlined in our notice on Federal actions that are likely to environmental organizations, the published in the Federal Register on result in the destruction or adverse Service, and other federal and state November 17, 2005 (70 FR 69717), we modification of critical habitat. The agencies have undertaken a process to refined the proposed designation by designation of critical habitat does not support California tiger salamander applying parameters for dispersal and affect land ownership or establish a conservation at a regional level. This upland habitat similar to those we used refuge, wilderness, reserve, preserve, or effort has involved extensive scientific in critical habitat designation for the other conservation area. Such research and analysis of the biological Santa Barbara and Central populations designation does not allow government and ecological issues relating to of the California tiger salamander. We or public access to private lands. California tiger salamander and of its began mapping habitat by buffering To be included in a critical habitat specific circumstances in the region. known salamander breeding locations designation, the habitat within the area During the week of November 7, 2005, by a distance of 0.70 mi (1.1 km) to occupied by the species must first have all of the local jurisdictions formally capture dispersal and upland habitat features that are essential to the approved execution of a planning use by the species. We adjusted the 0.70 conservation of the species. Critical agreement that commits them to work mi (1.1 km) area around breeding sites habitat designations identify, to the with the Service and other parties to depending on habitat availability, extent known using the best scientific finalize and implement the dispersal barriers, and development and data available, habitat areas that provide Conservation Strategy. Indeed, one removed areas which did not contain essential life cycle needs of the species economic cost of critical habitat may be the essential features. See Methodology (i.e., areas on which are found the to disrupt and impose additional costs and Criteria Sections below for more primary constituent elements, as on this collaborative effort. information. defined at 50 CFR 424.12(b)). Comment: Two commenters state that (2) We revised the proposed critical Habitat occupied at the time of listing the DEA underestimates or ignores habitat unit based on comments and may be included in critical habitat only potential impacts to agriculture. In biological information and peer review if the essential features thereon may particular, commenters are concerned received during the public comment require special management or that the DEA does not quantify impacts periods. protection. Thus, we do not include to the wine grape industry and does not (3) Collectively, we excluded or areas where existing management is quantify increases in production costs removed the entire designation. Some sufficient to conserve the species (as or decreases in agricultural land values areas in the proposed rule were discussed below, such areas may also be resulting from critical habitat. removed because they did not contain excluded from critical habitat pursuant Our Response: The DEA quantifies the the primary constituent elements. Other to section 4(b)(2)). Accordingly, when reduction in agricultural land values areas were excluded based on the best available scientific data do not resulting from foregone or constrained conservation measures being demonstrate that the conservation needs land development opportunities. A implemented by the local government of the species so require, we will not review of available biological opinions agencies, or because of designate critical habitat in areas did not reveal any evidence of disproportionately high economic costs, outside the geographical area occupied limitations on crop production practices as authorized under section 4(b)(2) of by the species at the time of listing. An resulting from listing of the California the Act (see ‘‘Application of Exclusions area currently occupied by the species tiger salamander. Under Section 4(b)(2) of the Act’’ but was not known to be occupied at the The DEA acknowledges that critical section below). time of listing will likely be essential to habitat may increase the costs and the conservation of the species and, Critical Habitat reduce the economic optimality of therefore, included in the critical habitat vineyard development within critical Critical habitat is defined in section 3 designation. habitat. However, given the relative of the Act as—(i) the specific areas The Service’s Policy on Information abundance of substitute vineyard sites within the geographical area occupied Standards Under the Endangered within Sonoma County relative to the by a species, at the time it is listed in Species Act, published in the Federal forecasted increase in vineyard acreage, accordance with the Act, on which are Register on July 1, 1994 (59 FR 34271), it is speculative at present to assign found those physical or biological and Section 515 of the Treasury and costs to this potential impact. features (I) essential to the conservation General Government Appropriations
VerDate Aug<31>2005 16:42 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74145
Act for Fiscal Year 2001 (Pub. L. 106– planning efforts if new information critical habitat designation for the 554; H.R. 5658) and the associated available to these planning efforts calls species. Information Quality Guidelines issued for a different outcome. The areas determined to contain the by the Service, provide criteria, features essential for the conservation of Methods establish procedures, and provide the California tiger salamander are guidance to ensure that decisions made As required by section 4(b)(1)(A) of designed to provide sufficient aquatic by the Service represent the best the Act, we use the best scientific data habitat for breeding and upland habitat scientific and commercial data available in determining areas that as refugia for adults to maintain and available. They require Service contain the features that are essential to sustain populations of California tiger biologists to the extent consistent with the conservation of the Sonoma County salamanders throughout their range, and the Act and with the use of the best distinct population segment of the provide those habitat components scientific and commercial data California tiger salamander. In necessary for the species. Conserving available, to use primary and original determining the areas to designate California tiger salamanders over the sources of information as the basis for critical habitat for the California tiger long term requires a three-pronged recommendations to designate critical salamander, we used the best scientific approach: (1) Protecting the hydrology habitat. When determining which areas data available. We have reviewed the and water quality of breeding pools and are critical habitat, a primary source of overall approach to the conservation of ponds; (2) retaining or providing for information is generally the listing the Sonoma County distinct population connectivity between breeding locations package for the species. Additional segment of the California tiger for genetic exchange and recolonization; information sources include the salamander undertaken by local, State, and (3) protecting sufficient upland recovery plan for the species, articles in and Federal agencies operating within habitat around each breeding location to peer-reviewed journals, conservation the species’ range since its listing in allow for enough adult survival to plans developed by States and counties, 2003 (68 FR 13498). maintain a breeding population over the scientific status surveys and studies, We have also reviewed available long term. In our determination of the biological assessments, or other information that pertains to the habitat amount of critical habitat to designate, unpublished materials and expert requirements of this species. The we focused on identifying those areas opinion or personal knowledge. All material included data in reports which contained the features which information is used in accordance with submitted during section 7 would provide the breeding and upland habitat to maintain and sustain existing the provisions of Section 515 of the consultations and by biologists holding populations of salamanders in Treasury and General Government section 10(a)(1)(A) recovery permits; documented breeding sites (vernal pool Appropriations Act for Fiscal Year 2001 research published in peer-reviewed complexes) identified within Sonoma (Pub. L. 106–554; H.R. 5658) and the articles and presented in academic County. Due to the complex life history associated Information Quality theses and agency reports; and regional and dispersal capabilities of California Guidelines issued by the Service. Geographic Information System (GIS) Section 4 of the Act requires that we tiger salamanders, and the dynamic coverages. designate critical habitat on the basis of nature of the environments in which the best scientific data available. Habitat Primary Constituent Elements they are found, the primary constituent is often dynamic, and species may move elements described below should be In accordance with section 3(5)(A)(i) from one area to another over time. found throughout the unit that is being Furthermore, we recognize that of the Act and regulations at 50 CFR identified as critical habitat. Critical designation of critical habitat may not 424.12, in determining which areas to habitat for the Sonoma County distinct include all of the habitat areas that may propose as critical habitat, we are population segment of the California eventually be determined to be required to base critical habitat tiger salamander will provide for necessary for the conservation of the determinations on the best scientific breeding and nonbreeding habitat and species. For these reasons, critical data available and to consider those for dispersal between these habitats, as habitat designations do not signal that physical and biological features well as allowing for an increase in the habitat outside the designation is (primary constituent elements (PCEs)) size of the Sonoma County distinct unimportant or may not be required for that are essential to the conservation of population segment of the California recovery. the species, and that may require special tiger salamander. Areas that support populations, but management considerations and are outside the critical habitat protection. These include, but are not Space for Individual and Population designation, will continue to be subject limited to: Space for individual and Growth and Normal Behavior to conservation actions implemented population growth and for normal California tiger salamanders require a under section 7(a)(1) of the Act and to behavior; food, water, air, light, combination of aquatic habitat and the regulatory protections afforded by minerals, or other nutritional or upland habitat in order to successfully the section 7(a)(2) jeopardy standard, as physiological requirements; cover or maintain normal population growth and determined on the basis of the best shelter; sites for breeding, reproduction, behavior. Aquatic habitat is essential for available information at the time of the and rearing (or development) of California tiger salamander breeding action. Federally funded or permitted offspring; and habitats that are protected and for providing space, food, and cover projects affecting listed species outside from disturbance or are representative of necessary to sustain early life history their designated critical habitat areas the historic geographical and ecological stages of California tiger salamanders. may still result in jeopardy findings in distribution of a species. Breeding habitat consists of fresh water some cases. Similarly, critical habitat The specific primary constituent bodies, including natural and man-made designations made on the basis of the elements required for the California ponds, vernal pools, or other ephemeral best available information at the time of tiger salamander are derived from the or permanent wetland features which designation will not control the biological needs of the California tiger allow California tiger salamanders to direction and substance of future salamander as described below and in complete their aquatic portion of their recovery plans, habitat conservation the Background section of this lifecycle. To be considered essential, plans, or other species conservation designation and previous listing or aquatic habitats must have the potential
VerDate Aug<31>2005 16:42 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 74146 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
to hold water for a minimum of 12 their lifecycle. As a result California metapopulation structure (Hanski and weeks in the winter or spring in a year tiger salamanders require areas which Gilpin 1991). A metapopulation is a set of average rainfall. This is the amount support a prey base of both aquatic (e.g., of local populations or breeding sites of time needed for juveniles to complete zooplankton, aquatic larvae, aquatic within an area, where typically metamorphosis and become capable of invertebrates, tadpoles, etc.) and migration from one local population or surviving in upland habitats. During terrestrial (e.g., terrestrial invertebrates, breeding site to other areas containing periods of drought or less-than average insects, frogs, worms, etc.) species. The suitable habitat is possible, but not rainfall, these breeding sites may not aquatic and upland habitat features routine. Movement between areas hold water long enough for individuals would support the necessary prey base containing suitable habitat (i.e. to complete metamorphosis, but these in all aspects of the California tiger dispersal) is restricted due to sites would still be considered because salamander lifecycle. inhospitable conditions around and they constitute breeding habitat in years between areas of suitable habitat. Reproduction of average rainfall. Without its essential Because many of the areas of suitable aquatic habitat features, the California Lifetime reproductive success for habitat may be small and support small tiger salamander would not survive, California and other tiger salamanders is numbers of salamanders, local because breeding could not occur. low. Trenham et al. (2000) found the extinction of these small units may be average female bred 1.4 times and common. Upland Habitat produced 8.5 young that survived to A metapopulation’s persistence Associated upland habitat containing metamorphosis per reproductive effort. depends on the combined dynamics of underground refugia is essential for the This resulted in roughly 11 these local extinctions and the survival of adult California tiger metamorphic offspring over the lifetime subsequent recolonization of these areas salamanders and juveniles that have of a female. In part, this low through dispersal (Hanski and Gilpin recently undergone metamorphosis. reproductive success is due to the 1991; Hanski 1994). The essential Adult and juvenile California tiger extended time it takes for California dispersal habitat feature generally salamanders are terrestrial, and they tiger salamanders to reach sexual consists of upland areas adjacent to enter aquatic habitats only for short maturity: Most do not breed until 4 or essential aquatic habitat that are not periods of time to breed. For the 5 years of age. While individuals may isolated from breeding ponds by barriers majority of their life cycle, California survive for more than 10 years, many that California tiger salamanders cannot tiger salamanders depend for survival breed only once. Combined with low cross. Essential dispersal habitat on upland habitats containing survivorship of metamorphosed features provide connectivity among underground or covered refugia where individuals (in some populations, less California tiger salamander breeding they are protected from desiccation. than 5 percent of marked juveniles ponds. While California tiger Juveniles have been found in soil cracks survive to become breeding adults salamanders can bypass many obstacles, and rodent burrows and adults almost (Trenham et al. 2000)), reproductive and do not require a particular type of exclusively in rodent burrows. These output in most years is not sufficient to habitat for dispersal, the habitat underground refugia provide protection maintain populations. This trend connecting essential aquatic habitat from the hot, dry weather in the suggests that the species requires features must be free of barriers (e.g. a nonbreeding season (Shaffer and occasional ‘‘boom’’ breeding events to physical or biological feature that Trenham 2005). California tiger prevent extirpation (temporary or prevents salamanders from dispersing salamanders also find food in small permanent loss of the species from a beyond the feature). Examples of mammal burrows and rely on the particular habitat) or extinction barriers are areas of steep topography burrows for protection from predators. (Trenham et al. 2000). With such low devoid of soil or vegetation and State The upland areas also regulate the recruitment, isolated populations are Highway 101. Agricultural lands such as hydrological functioning and protect susceptible to unusual, randomly row crops, orchards, vineyards, and water quality of the aquatic habitat occurring natural events as well as from pastures do not constitute barriers to the (Hanes and Stromberg 1998). As human-caused factors that reduce dispersal of California tiger described in previous rules (69 FR breeding success and individual salamanders. Therefore, a critical 68572; 70 FR 49380), California tiger survival. Factors that repeatedly lower element for successful conservation is salamanders have been found up to 1.3 breeding success in isolated pools can the maintenance of sets of mi (2 km) from occupied occurrences quickly extirpate a population. interconnected sites that are within the (Sweet, 1998). The only known study California tiger salamanders would ‘‘rescue’’ distance of other ponds we are aware of that specifically require an interconnected network of (Trenham et al. 2001). investigated movement of California ponds and upland areas so that they can tiger salamanders between breeding disperse from one pond to nearby ponds Primary Constituent Elements for the ponds projected that 0.70 mi (1.1 km) in order to augment or recolonize Sonoma County Distinct Population would encompass 99 percent of locally extirpated ponds and uplands. Segment of the County California Tiger interpond dispersal (Trenham et al. Salamander Dispersal Habitat 2001; Trenham and Shaffer 2005). As Based on our current knowledge of we did for the Santa Barbara and Central Protecting the ability of California the life history, biology, and ecology of populations, we used the 0.70 mi (1.1 tiger salamanders to move freely across the species and the requirements of the km) away from breeding location to the landscape in search of breeding habitat to sustain the essential life identify those upland habitat features ponds is essential in maintaining gene history functions of the species, we have essential for the Sonoma County distinct flow and for recolonization of sites that determined that the Sonoma County population segment of the California are temporarily extirpated and is distinct population segment of the tiger salamander. essential in preserving the California California tiger salamander’s primary tiger salamander’s population structure. constituent elements (PCEs) are: Food The life history and ecology of the (1) Standing bodies of fresh water, California tiger salamanders use both California tiger salamander make it including natural and manmade ponds, aquatic and terrestrial habitat during likely that this species has a vernal pools, and other ephemeral or
VerDate Aug<31>2005 16:42 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74147
permanent water bodies that typically conducted California tiger salamander landscapes. As described in previous become inundated during winter rains surveys throughout the range of the rules (69 FR 68572; 70 FR 49380), and hold water for a sufficient length of species. The range boundaries were California tiger salamander have been time (i.e., 12 weeks) necessary for the developed based on the principles of found up to 1.3 mi (2 km) from species to complete the aquatic portion conservation science, genetics of the occupied occurrences (Sweet 1998). The of its life cycle; species, topography, geology, soils, only known study we are aware of that (2) Barrier-free uplands adjacent to vernal pool type distribution, historic specifically investigated movement of breeding ponds (within 0.7 mi (1.1 km)) distribution, and survey information California tiger salamanders between that contain small mammal burrows. (CNDDB 2005). In the proposed breeding ponds projected that 0.70 mi Small mammals are essential in creating designation, we purposefully included a (1.1 km) would encompass 99 percent of the underground habitat that adult broad area that after further review interpond dispersal (Trenham et al. California tiger salamanders depend included some areas which were 2001; Trenham and Shaffer 2005). As upon for food, shelter, and protection developed and or did not contain the we did for the Santa Barbara and Central from the elements and predation; and essential features or lacked the populations, we used a 0.70 mi (1.1 km) (3) Accessible upland areas between documented occurrence information. breeding locations (PCE 1) and areas In order to map only those areas dispersal distance (radius) as a guide for with small mammal burrows (PCE 2) containing the essential features, we the amount of upland habitat around that allow for dispersal among such refined the proposed designation to just known occupied extant occurrences to sites. those areas surrounding known be mapped as critical habitat for the breeding locations in Sonoma County. purposes of preserving the Sonoma Criteria Used To Identify Critical County distinct population segment of Habitat In addition, we applied parameters for upland dispersal and habitat use similar the California tiger salamander within In determining the areas we would to those used in the critical habitat small mammal burrows (PCE 2). consider as critical habitat, we first designations for the Central and Santa However, we recognize that (as with looked at those breeding locations Barbara populations of California tiger movements in search of suitable identified as being occupied at the time salamander. Our refined designation underground refugia) upland habitat of listing and which contain the habitat and associated economic impacts were features influence California tiger features (primary constituent elements, published in the Federal Register on salamander movements within a PCEs) essential for the conservation of November 17, 2005 (70 FR 69717). particular landscape. As a result, we the species. We then looked at those In the development of the final made adjustments to the upland areas to additional areas found to be occupied designation, we revised the critical include additional areas containing the subsequent to listing which also habitat boundaries to better identify PCEs. In other cases, the critical habitat contained those essential habitat those areas containing the essential was reduced so as not to include non- features determined to provide for the features for conservation of species. We conservation of the Sonoma County habitat areas (those not exhibiting the focused on areas within the range where PCEs) from the designation. Some distinct population segment of the we had credible records of breeding agricultural and other lands were California tiger salamander. (reports filed by biologists holding included if they were within the 0.7 mi In our determination of critical habitat section 10(a)(1)(A) recovery permits) (1.1 km) distance and the essential for the Sonoma County distinct indicating California tiger salamander population segment of the California presence (CNDDB 2005). Our feature for upland refugia or tiger salamander, we selected areas that conservation strategy for the Sonoma connectivity between occurrences and possess the physical and biological population focuses on those breeding were not considered a barrier to features that are essential to the locations that provide sufficient aquatic movement. conservation of the species and that may and upland habitats to ensure high When determining critical habitat require special management enough adult survival to maintain and boundaries, we made every effort to considerations or protection. After sustain extant occurrences of California avoid the designation of developed identifying the PCEs that are essential to tiger salamander within the range of the areas such as buildings, paved areas, the conservation of the California tiger Sonoma County distinct population and other structures that lack PCEs for salamander, we used the PCEs in segment. the California tiger salamander. Any combination with occurrence data; We then identified the amount of such structures inadvertently left inside confirmed breeding information, upland habitat surrounding these critical habitat boundaries are not geographic distribution; GIS data layers breeding occurrences where adult considered part of the critical habitat for habitat mapping; vegetation, California tiger salamanders live during unit. This also applies to the land on topography, watersheds, and current the majority of their life cycle. To which such structures sit directly. land uses; scientific information on the determine a general guideline for the Therefore, Federal actions limited to biology and ecology of the California amount of upland habitat necessary to these areas would not trigger section 7 tiger salamander; and accepted support an occurrence of adult consultations, unless activities within conservation principles for threatened California tiger salamander, we these areas affect the species and/or or endangered species. reviewed the primary literature primary constituent elements in In our proposed designation and in regarding California tiger salamander adjacent critical habitat. our refinement of that proposal, we upland habitat use, including Trenham identified areas that contain those (2000), Trenham et al. (2000 and 2001), A brief discussion of the area that features which are essential to the and Trenham and Shaffer (2005). would have been designated as critical conservation of the California tiger The best scientific peer-reviewed data habitat had it not been excluded is salamander within the occupied range indicate that California tiger salamander provided in the unit descriptions below. of the Sonoma County distinct do not remain primarily in burrows Additional detailed documentation population segment of the California close to aquatic habitats and breeding concerning the essential nature of this tiger salamander, as was reported and ponds, but instead move some distance area is contained in our supporting mapped by biologists who had out into the surrounding upland record for this rulemaking.
VerDate Aug<31>2005 16:42 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 74148 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
Special Management Considerations or critical habitat designation (70 FR The area which would be designated Protections 44301, August 2, 2005). as critical habitat absent exclusions under section 4(b)(2), described below, When designating critical habitat, we Critical Habitat Designation constitute our best assessment of the assess whether the areas determined to In the development of the critical areas: (1) Within the geographical area be occupied at the time of listing and occupied by the species at the time of contain the PCEs may require special habitat for the Sonoma County distinct population segment of the California listing; (2) that contain the PCEs; and (3) management considerations or that may require special management. protections. Threats which may warrant tiger salamander, we determined which lands have features essential to the Although all of the areas are within the special management within the area geographical area known to be occupied being identified as critical habitat for conservation of the species by defining the physical and biological features by the species at the time of listing, we the California tiger salamander include are not designating all of the areas essential to the species’ conservation activities such as: Habitat destruction known to be occupied by the Sonoma and delineating the specific areas and fragmentation (e.g. urban and County distinct population segment of containing them. We then evaluated agricultural development); the California tiger salamander. We those lands determined to have essential sedimentation, introduction of provide separate discussions on: (1) The features to ascertain if any specific areas nonnative predators such as bullfrogs reasons why these areas contain features and fish and non-native salamanders; are appropriate for exemption or essential for the conservation of the activities that could disturb aquatic exclusion from critical habitat pursuant Sonoma County distinct population breeding habitats and water quality, to either sections 3(5)(A), 4(a)(3), or segment of the California tiger such as heavy equipment operation, 4(b)(2) of the Act. On the basis of our salamander and (2) special management ground disturbance, maintenance evaluation, we have determined that the considerations for these areas. All of the projects (e.g. pipelines, roads, benefits of excluding lands under areas containing features determined to powerlines), off-road travel or appropriate management for the be essential for the conservation of the recreation; activities that would reduce Sonoma County distinct population Sonoma County distinct population small mammal populations to the point segment of the California tiger segment of the California tiger that there is insufficient underground salamander outweighs the benefits of salamander were known to be occupied refugia used by salamanders for their inclusion. We also evaluated the at the time of listing. foraging, protection from predators, and economic costs of the designation and The tables below show the lands shelter from the elements; activities that identified those areas which had being excluded from critical habitat create barriers impassable for disproportionately high cost and pursuant to section 4(b)(2) of the Act salamanders or increase mortality in evaluated whether those high cost areas (Table 1), a summary of the areas upland habitat between extant also warranted exclusion. We have containing the features that are essential occurrences in breeding habitat; and, subsequently excluded the entire lands to the Sonoma County distinct activities that disrupt vernal pool from the Sonoma County distinct population segment of the California complexes’ ability to support California population segment of the California tiger salamander (Table 2) and the tiger salamander breeding function. A tiger salamander critical habitat approximate area that would be detailed discussion of threats to the pursuant to section 4(b)(2) of the Act designated as critical habitat absent Sonoma County distinct population (refer to Exclusions under Section exclusion under section 4(b)(2) for the segment of the California tiger 4(b)(2) of the Act section below) based Sonoma County distinct population salamander and its habitat can be found on both the ongoing management being segment of the California tiger in the final listing rule (68 FR 13498, implemented by local governing salamander by land ownership (Table March 19, 2003) and the proposed agencies and high economic costs. 3).
TABLE 1.—APPROXIMATE AREA ACRES (AC)/HECTARES (HA) EXCLUDED FROM CRITICAL HABITAT FOR THE SONOMA COUNTY DISTINCT POPULATION SEGMENT OF THE CALIFORNIA TIGER SALAMANDER PURSUANT TO SECTION 4(b)(2) OF THE ACT
California Excluded area total ac ha
Unit 1 ...... 17,418 7,049
TABLE 2.—AREAS DETERMINED TO CONTAIN FEATURES ESSENTIAL TO CONSERVATION OF THE SONOMA COUNTY DIS- TINCT POPULATION SEGMENT FOR THE CALIFORNIA TIGER SALAMANDER AND THE AREA EXCLUDED FROM THE FINAL CRITICAL HABITAT DESIGNATION [AC (HA)]
Definitional area Excluded area Total Unit ac ha ac ha ac ha
1a ...... 1,313 531 1,313 531 0 0 1b ...... 12,887 5,215 12,887 5,215 0 0 1c ...... 2,442 988 2,442 988 0 0 1d ...... 776 314 776 314 0 0
Total ...... 17,418 7,049 17,418 7,049 0 0
VerDate Aug<31>2005 16:42 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74149
TABLE 3.—CRITICAL HABITAT UNITS DESIGNATED BUT EXCLUDED FOR THE SONOMA COUNTY DISTINCT POPULATION SEGMENT FOR THE CALIFORNIA TIGER SALAMANDER
Federal State Local Other Total Unit ac ha ac ha ac ha ac ha ac ha
1a ...... 8 3 ...... 1,305 528 1,313 531 1b ...... 260 105 ...... 12,627 5,110 12,887 5,215 1c ...... 2,442 988 2,442 988 1d ...... 776 314 776 314
Total ...... 268 108 ...... 17,150 6,941 17,418 7,049
Figure 1 below represents the area habitat for the species based on descriptions of the unit, and reasons which would otherwise be designated as economic impacts and the conservation why it meets the definition of critical critical habitat for the Sonoma County benefits of implementation of interim habitat for the Sonoma County distinct distinct population segment of the and long-term conservation measures population segment for the California California tiger salamander absent for the California tiger salamander being tiger salamander, below. exclusions under section 4(b)(2). We adopted and implemented by local BILLING CODE 4310–55–U have excluded the entire final critical governing agencies. We present brief
VerDate Aug<31>2005 16:42 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 74150 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
BILLING CODE 4310–55–C
VerDate Aug<31>2005 16:42 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 ER14DE05.000 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74151
Santa Rosa Plain Unit Subunit 1b: (12,887 ac (5,215 ha)) for this subunit includes those activities The Santa Rosa Plain unit consists of This subunit is located south of outlined above. This subunit has been 17,418 ac (7,049 ha) in four subunits Guerneville Road to Sierra Road in the excluded from the final designation due distributed in the Santa Rosa Plain central portion of the designation. Land to both the conservation measures being south of Mark West Spring Creek and ownership within the subunit includes implemented by local governing north of Pepper Road. The area is approximately 260 ac (105 ha) of CDFG agencies as well as having located mostly west of the developed land. Land within the remainder of this disproportionately high economic costs portions of Santa Rosa, Rohnert Park subunit is privately owned. The subunit (see ‘‘Exclusion Under Section 4(b)(2) and Cotati. Each one of the subunits is determined to be critical habitat section’’ below). represents a breeding center for the because it contains features essential to Subunit 1d: (776 ac (314 ha)) species. All four of these areas were the conservation of the California tiger This subunit is located in the considered occupied at the time of salamander, it is occupied by the southern portion of the designation near listing and contain the features species, it represents the largest Old Redwood Highway south of Cotati. considered essential for the contiguous area, it is in the center of the Land within the area is privately owned. conservation of the species. The special distribution of the Sonoma County The subunit is determined to be critical management required for this unit distinct population segment of the habitat because it contains features includes management of introduction of California tiger salamander, contains the essential to the conservation of the nonnative predators and other species to most known occurrences of breeding, California tiger salamander, it is ponds; management of off-road vehicle and it is one of four breeding centers for occupied by the species, it represents use; management of construction, the species. This subunit contains the the southeastern most distribution of installation and maintenance of roads, essential habitat features of ponded California tiger salamander in Sonoma pipelines, powerlines, and areas which stay inundated for the County, and it is one of four breeding telecommunication lines; small minimum amount of time for the centers for the species. This subunit mammal populations management; species to complete its aquatic lifecycle contains the essential habitat features of management of activities that create (PCE 1) and provides a prey base as well ponded areas which stay inundated for barriers impassable for salamanders; as space for growth and development; the minimum amount of time for the and management of activities that and upland areas which contain species to complete its aquatic lifecycle disrupt vernal pool complexes’ ability to underground mammal burrows and (PCE 1) and provides a prey base as well support California tiger salamanders. similar refugia for food and shelter (PCE as space for growth and development; 2), and accessible upland habitats for Subunit 1a; (1,313 ac (531 ha)) and upland areas which contain dispersal (PCE 3). Special management underground mammal burrows and This subunit is located in the for this subunit includes those activities similar refugia for food and shelter (PCE northern portion of the designation near outlined above. This subunit has been 2), and accessible upland habitats for Fulton and Piner Roads. Land excluded from the final designation due dispersal (PCE 3). Special management ownership within the subunit includes to both the conservation measures being for this unit includes those activities approximately 8 ac (3 ha) of CDFG land implemented by local governing outlined above. This subunit has been within the Alton Lane Preserve. Land agencies as well as having excluded from the final designation due within the remainder of this subunit is disproportionately high economic costs to both the conservation measures being privately owned. The subunit is (see ‘‘Exclusion Under Section 4(b)(2) implemented by local governing determined to be critical habitat because section’’ below). it contains features essential to the agencies as well as having conservation of the California tiger Subunit 1c: (2,442 ac (988 ha)) disproportionately high economic costs salamander, it is occupied by the This subunit is located in the (see ‘‘Exclusion Under Section 4(b)(2)’’ species, it represents the northernmost southern portion of the designation near section below). distribution of California tiger Stoney Point Road near Roblar Road and Effects of Critical Habitat Designation salamander in Sonoma County, and it is north of Pepper Road. Land within the one of four breeding centers for the area is privately owned. The subunit is Section 7 Consultation species. This subunit contains the determined to be critical habitat because Section 7 of the Act requires Federal essential habitat features of ponded it contains features essential to the agencies, including the Service, to areas which stay inundated for the conservation of the California tiger ensure that actions they fund, authorize, minimum amount of time for the salamander, it is occupied by the or carry out are not likely to destroy or species to complete its aquatic lifecycle species, it represents the southernmost adversely modify critical habitat. Such (PCE 1) and provides a prey base as well distribution of the Sonoma County alterations include, but are not limited as space for growth and development; distinct population segment of the to: Alterations adversely modifying any and upland areas which contain California tiger salamander, and it is one of those physical or biological features underground mammal burrows and of four breeding centers for the species. that were the basis for determining the similar refugia for food and shelter (PCE This subunit contains the essential habitat to be critical. We are currently 2), and accessible upland habitats for habitat features of ponded areas which reviewing the regulatory definition of dispersal (PCE 3). Special management stay inundated for the minimum adverse modification in relation to the for this subunit includes those activities amount of time for the species to conservation of the species. outlined above. This subunit has been complete its aquatic lifecycle (PCE 1) Section 7(a) of the Act requires excluded from the final designation due and provides a prey base as well as Federal agencies, including the Service, to both the conservation measures being space for growth and development; and to evaluate their actions with respect to implemented by local governing upland areas which contain any species that is proposed or listed as agencies as well as having underground mammal burrows and endangered or threatened and with disproportionately high economic costs similar refugia for food and shelter (PCE respect to its critical habitat, if any is (see ‘‘Exclusion Under Section 4(b)(2) 2), and accessible upland habitats for proposed or designated. Regulations section’’ below). dispersal (PCE 3). Special management implementing this interagency
VerDate Aug<31>2005 16:42 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 74152 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
cooperation provision of the Act are reasonable and prudent alternative are (3) Road construction and codified at 50 CFR Part 402. similarly variable. maintenance funded or authorized by Section 7(a)(4) of the Act requires Regulations at 50 CFR 402.16 require the Federal Highway Administration; Federal agencies to confer with us on Federal agencies to reinitiate (4) Conservation measures by private any action that is likely to jeopardize consultation on previously reviewed landowners funded by the Natural the continued existence of a proposed actions in instances where critical Resources Conservation Service; species or result in destruction or habitat is subsequently designated and (5) Airport construction regulated by the Federal Aviation Administration; adverse modification of proposed the Federal agency has retained (6) Construction of communication critical habitat. Conference reports may discretionary involvement or control include reasonable and prudent facilities licensed by the Federal over the action or such discretionary Communications Commission; and alternatives or reasonable and prudent involvement or control is authorized by measures to assist the agency in (7) Other activities funded by the U.S. law. Consequently, some Federal Environmental Protection Agency, eliminating conflicts that may be caused agencies may request reinitiation of by the proposed action. We may issue Department of Energy, Federal consultation or conference with us on Emergency Management Agency, or a formal conference report if requested actions for which formal consultation by a Federal agency. Formal conference other Federal agency. has been completed, if those actions reports on proposed critical habitat Special management that may be may affect designated critical habitat or contain an opinion that is prepared needed for the Sonoma County distinct adversely modify or destroy critical according to 50 CFR 402.14, as if critical population segment of the California habitat. habitat were designated. We may adopt tiger salamander and its habitat is the formal conference report as the Federal activities that may affect the briefly summarized below: biological opinion when the critical Sonoma County distinct population (1) Manage hydrologic functioning of habitat is designated, if no substantial segment of the California tiger vernal pools and ponds. Restore and new information or changes in the salamander or any critical habitat would maintain natural hydrologic regimes to action alter the content of the opinion require section 7 consultation. Activities prevent hydrologic changes to aquatic (see 50 CFR 402.10(d)). Until such time on private or State lands requiring a habitats to maintain their suitability as as a proposed designation is finalized, permit from a Federal agency, such as California tiger salamander breeding any reasonable and prudent alternatives a permit from the U.S. Army Corps of habitat and restore such habitats in or reasonable and prudent measures Engineers under section 404 of the areas where they have become altered or included in a conference report are Clean Water Act, a section 10(a)(1)(B) destroyed. advisory. permit from the Service, or some other (2) Manage water quality. Manage If a species is listed or critical habitat Federal action, including funding (e.g., actions that significantly and is designated, section 7(a)(2) requires Federal Highway Administration or detrimentally alter the water chemistry Federal agencies to ensure that activities Federal Emergency Management Agency in the aquatic salamander habitat. they authorize, fund, or carry out are not funding), will also continue to be Possible actions requiring such likely to jeopardize the continued subject to the section 7 consultation management would include intentional existence of such a species or to destroy process. Federal actions not affecting or unintentional release of chemical or or adversely modify its critical habitat. listed species or critical habitat and biological pollutants into the surface If a Federal action may affect a listed actions on non-Federal and private water or connected groundwater at a species or its critical habitat, the lands that are not federally funded, point source or by dispersed release responsible Federal agency (action authorized, or permitted do not require (non-point). agency) must enter into consultation section 7 consultation. (3) Upland Habitat Management. with us. Through this consultation, the Section 4(b)(8) of the Act requires us Actions that significantly and action agency ensures that their actions to briefly evaluate and describe in any detrimentally alter the characteristics of do not destroy or adversely modify proposed or final regulation that the upland habitat surrounding aquatic critical habitat. designates critical habitat those areas may need special management. When we issue a biological opinion activities involving a Federal action that Possible actions which may require concluding that a project is likely to may adversely modify such habitat, or special management include vegetation result in the destruction or adverse that may be affected by such manipulation, road construction and modification of critical habitat, we also designation. Activities that may destroy maintenance, gravel mining, and urban provide reasonable and prudent or adversely modify critical habitat may and suburban development and alternatives to the project, if any are also jeopardize the continued existence infrastructure. We note that such identifiable. ‘‘Reasonable and prudent of the Sonoma County distinct alteration and or destruction of the alternatives’’ are defined at 50 CFR population segment of the California surrounding upland areas which results 402.02 as alternative actions identified tiger salamander. Federal activities that, in alteration of the hydrologic during consultation that can be when carried out, would adversely functioning of the aquatic habitat may implemented in a manner consistent affect any critical habitat for the Sonoma destroy or adversely modify the aquatic with the intended purpose of the action, County distinct population segment of habitat associated with the upland that are consistent with the scope of the the California tiger salamander include, areas. As a result, these activities could Federal agency’s legal authority and but are not limited to: eliminate or reduce the habitat jurisdiction, that are economically and necessary for the reproduction, technologically feasible, and that the (1) Actions that would regulate sheltering or growth of the Sonoma Director believes would avoid activities affecting waters of the United County distinct population segment of destruction or adverse modification of States by the Army Corps of Engineers the California tiger salamander. critical habitat. Reasonable and prudent under section 404 of the Clean Water (4) Manage nonnative aquatic species. alternatives can vary from slight project Act; Manage the introduction, spreading, or modifications to extensive redesign or (2) Actions by any Federal agency that augmenting of detrimental nonnative relocation of the project. Costs change water flow regimes, or that dam, aquatic species into salamander aquatic associated with implementing a divert, or channel water; habitat. Possible actions requiring such
VerDate Aug<31>2005 16:42 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74153
management would include fish In our critical habitat designations, we activities require consultation pursuant stocking for sport, aesthetics, biological use the provision outlined in section to section 7 of the Act to ensure that control, or other purposes; and release 4(b)(2) of the Act to evaluate those they are not likely to destroy or of live bait fish and nonnative tiger specific areas that contain the features adversely modify critical habitat. There salamanders. essential to the conservation of the are two limitations to this regulatory (5) Manage On- and Off-Road Use. species to determine which areas to effect. First, it only applies where there Protect aquatic and upland areas from propose and subsequently finalize (i.e. is a Federal nexus—if there is no off-road vehicle use. Manage trails, road designate) as critical habitat. On the Federal nexus, designation itself does maintenance, and off-road vehicle basis of our evaluation, we have not restrict actions that destroy or access to prevent habitat degradation in determined that the benefits of adversely modify critical habitat. order to maintain, protect, and restore excluding certain lands from the Second, it only limits destruction or California tiger salamander habitat. designation of critical habitat for the adverse modification. By its nature, the (6) Manage small mammal control Sonoma County distinct population prohibition on adverse modification is activities. Activities that would reduce segment of the California tiger designed to ensure those areas that small mammal populations to the point salamander outweigh the benefits of contain the physical and biological that there is insufficient underground their inclusion, and have subsequently features essential to the conservation of refugia used by the Sonoma County excluded all lands within Sonoma the species or unoccupied areas that are distinct population segment of the County from this designation pursuant essential to the conservation of the California tiger salamander for foraging, to section 4(b)(2) of the Act as discussed species are not eroded. Critical habitat protection from predators, and shelter below. designation alone, however, does not from the elements may ultimately be Areas excluded pursuant to section require specific steps toward recovery. detrimental to salamanders. 4(b)(2) may include those covered by Once consultation under section 7 of the following types of plans/programs if the Act is triggered, the process may (7) Manage creation of dispersal the plans/programs provide assurances conclude informally when the Service barriers. Activities that create barriers that the conservation measures they concurs in writing that the proposed impassable for salamanders, increase outline will be implemented and Federal action is not likely to adversely mortality in upland habitat between effective: (1) Legally operative Habitat affect the listed species or its critical extant occurrences, or disrupt dispersal Conservation Plans (HCPs) that cover habitat. However, if the Service behavior may be detrimental to the the species; (2) draft HCPs that cover the determines through informal salamander and may require special species and have undergone public consultation that adverse impacts may management. Activities that may require review and comment (i.e., pending occur, then formal consultation would such management include highway and HCPs); (3) Tribal conservation plans/ be initiated. Formal consultation other urban infrastructure, building programs that cover the species; (4) concludes with a biological opinion development, and intensively managed State conservation plans/programs that issued by the Service on whether the agricultural development (annual cover the species; (5) National Wildlife proposed Federal action is likely to crops). Refuges with Comprehensive jeopardize the continued existence of a We consider the entire area which Conservation Plans (CCPs) or other listed species or result in destruction or would be designated as critical habitat, applicable programs that provide adverse modification of critical habitat, absent exclusion under section 4(b)(2), assurances that the conservation with separate analyses being made to be occupied by the species at the time measures for the species will be under both the jeopardy and the adverse of listing based on information provided implemented and effective, and; (6) modification standards. For critical from 10(a)(1)(A) reports and occurrence Partnerships, conservation plans/ habitat, a biological opinion that data (CNDDB 2005). We consider the easements, or other type of formalized concludes in a determination of no entire area which would be designated relationship/agreement on private lands. destruction or adverse modification may as critical habitat, absent exclusion The relationship of critical habitat to contain discretionary conservation under section 4(b)(2), to contain the these types of areas is discussed in recommendations to minimize adverse features essential to the conservation of detail in the following paragraphs. effects to primary constituent elements, the Sonoma County distinct population After consideration under section but it would not contain any mandatory segment of the California tiger 4(b)(2), the entire area of habitat has reasonable and prudent measures or salamander. been excluded from critical habitat for terms and conditions. Mandatory Exclusion Under Section 4(b)(2) of the the Sonoma County distinct population reasonable and prudent alternatives to Act segment of the California tiger the proposed Federal action would only salamander as a result of both be issued when the biological opinion Section 4(b)(2) of the Act states that conservation measures being results in a jeopardy or adverse critical habitat shall be designated, and implemented and developed by local modification conclusion. revised, on the basis of the best governing agencies and We also note that for 30 years prior to available scientific data after taking into disproportionately high economic costs. the Ninth Circuit Court’s decision in consideration the economic impact, A detailed analysis of our exclusion of Gifford Pinchot, the Service equated the national security impact, and any other these lands under section 4(b)(2) of the jeopardy standard with the standard for relevant impact of specifying any Act is provided in the paragraphs that destruction or adverse modification of particular area as critical habitat. An follow. critical habitat. The Court ruled that the area may be excluded from critical Service could no longer equate the two habitat if it is determined that the General Principles of Section 7 standards and that adverse modification benefits of exclusion outweigh the Consultations Used in the 4(b)(2) evaluations require consideration of benefits of specifying a particular area Balancing Process impacts on the recovery of species. as critical habitat, unless the failure to The most direct, and potentially Thus, under the Gifford Pinchot designate such area as critical habitat largest regulatory benefit to the species decision, critical habitat designations will result in the extinction of the of critical habitat is that federally may provide greater benefits to the species. authorized, funded, or carried out recovery of a species. However, we
VerDate Aug<31>2005 16:42 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 74154 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
believe the conservation achieved constituting essential California tiger available scientific data after taking into through implementing larger scale salamander habitat. Consequently, we consideration the economic impact, management plans is typically greater believe that the informational benefits national security impact, and any other than would be achieved through are already provided even though these relevant impact of specifying any multiple site-by-site, project-by-project, areas are not designated as critical particular area as critical habitat. An section 7 consultations involving habitat. Additionally, the purpose of area may be excluded from critical consideration of critical habitat. informing State agencies and local habitat if it is determined that the Management plans commit resources to governments about areas which would benefits of exclusion outweigh the implement long-term management and benefit from protection and benefits of specifying a particular area protection to particular habitat for at enhancement of habitat for the as critical habitat, unless the failure to least one, and possibly other, listed or California tiger salamander normally designate such area as critical habitat sensitive species. Section 7 served by the designation of critical will result in the extinction of the consultations only commit Federal habitat is already well established species. agencies to prevent adverse among State and local governments, and The Secretary exercises her discretion modification to designated critical Federal agencies for those areas which under section 4(b)(2) to exclude all habitat caused by the particular project we are excluding in this rule on the essential areas from a final critical and they are not committed to provide basis of other implemented conservation habitat designation for the following conservation or long-term benefits to measures and the on-going development reasons: (1) The adverse impacts areas not affected by the proposed and implementation of the Conservation associated with the likely economic project. Thus, any management plan Strategy. costs of the proposed final designation which considers enhancement or As discussed in the ‘‘Summary of outweigh the likely conservation recovery as the management standard Changes from the Proposed Rule’’ benefits provided by a final designation, will always provide as much or more section above, we have determined that and (2) it is highly probable that the benefit than a consultation for critical all habitat in Sonoma County for the Santa Rosa Plain Conservation Strategy habitat designation conducted under the California tiger salamander (Unit 1) will will be implemented, and this strategy standards required by the Ninth Circuit not be designated as critical habitat as would provide conservation benefits in the Gifford Pinchot decision. a result of this rulemaking process. We that are superior to a final critical The information provided in this have reached this determination habitat designation. A final designation section applies to all the discussions because we believe the benefits of may also work at cross purposes to the below that discuss the benefits of excluding this unit from as critical Conservation Strategy by discouraging inclusion and exclusion of critical habitat outweigh the benefits of the involvement of local jurisdictions habitat in that it provides the framework designating the unit as critical habitat. and private landowners without for the consultation process. After the Sonoma County distinct providing any counterbalancing, population segment of the California proactive conservation benefit. Educational Benefits of Critical Habitat tiger salamander was listed as an The following discussion describes A benefit of including lands in critical endangered species (68 FR 13498), we the analysis of the relative costs and habitat is that the designation of critical as well as other resource and regulatory benefits of a critical habitat designation. habitat serves to educate landowners, agencies (U.S. Army Corps of Engineers, Section 4(b)(2) of the Act allows the State and local governments, and the CDFG, U.S. Environmental Protection Secretary to exclude areas from critical public regarding the potential Agency) were contacted by local habitat for economic reasons or other conservation value of an area. This governmental officials from Sonoma relevant impacts if she determines that helps focus and promote conservation County and the Cities of Windsor, Santa the benefits of such exclusion exceed efforts by other parties by clearly Rosa, Rohnert Park, and Cotati to the benefits of designating the area as delineating areas of high conservation strategize on how best to conserve State critical habitat, unless the exclusion value for the Sonoma County distinct and Federally listed species on the will result in the extinction of the population segment of the California Santa Rosa Plain. The Conservation species concerned. This is a tiger salamander. In general the Strategy is intended to direct discretionary authority Congress has educational benefit of a critical habitat conservation efforts for the Sonoma provided to the Secretary with respect designation always exists, although in County distinct population segment of to critical habitat. Although economic some cases it may be redundant with the California tiger salamander and and other impacts may not be other educational effects. For example, several other Federally listed plant considered when listing a species, habitat conservation plans (or in the species. Although a recovery plan has Congress has expressly required their case here, the Conservation Strategy) not yet been prepared, recovery consideration when designating critical have significant public input and may activities for the Sonoma County habitat. largely duplicate or exceed the distinct population segment of the Relationship of Critical Habitat to educational benefit of a critical habitat California tiger salamander would likely Economic Impacts—Exclusions Under designation. This benefit is closely parallel those conservation measures Section 4(b)(2) of the Act related to a second, more indirect identified in the Conservation Strategy. benefit; in that designation of critical We believe that the best way to achieve In conducting economic analyses, we habitat would inform State agencies and the objectives outlined in the are guided by the 10th Circuit Court of local governments about areas that Conservation Strategy will be to use the Appeal’s ruling in the New Mexico could or should be conserved under authorities under section 4(b)(2) to Cattle Growers Association case (248 State laws or local ordinances. exclude these lands. F.3d at 1285), which directed us to However, we believe that there would consider all impacts, ‘‘regardless of be little additional informational benefit Application of Exclusions Under whether those impacts are attributable gained from the designation of critical Section 4(b)(2) of the Act co-extensively to other causes.’’ As habitat for the exclusions we are making Section 4(b)(2) of the Act states that explained in the analysis, due to in this rule because these areas were critical habitat shall be designated, and possible overlapping regulatory schemes included in the proposed rule as revised, on the basis of the best and other reasons, there are also some
VerDate Aug<31>2005 16:42 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74155
elements of the analysis that may We provided notice of availability of the 20 years following a designation of overstate some costs. a DEA on October 25, 2005 (70 FR critical habitat. Conversely, the Ninth Circuit has 61591) and requested comment on the A copy of the final economic analysis recently ruled (‘‘Gifford Pinchot’’, 378 potential exclusion of high cost areas. with supporting documents are F.3d at 1071) that the Service’s We published a subsequent notice on included in our administrative record regulations defining ‘‘adverse November 17, 2005 (70 FR 69717) in and may be obtained by contacting U.S. modification’’ of critical habitat are which we disclosed revised economic Fish and Wildlife Service, Branch of invalid because they define adverse impacts based on a refinement of the Endangered Species (see ADDRESSES modification as affecting both survival proposed designation on which we section). and recovery of a species. The Court solicited public comment. The DEA We have considered, but are directed us to consider that estimated the foreseeable economic excluding from critical habitat for the determinations of adverse modification impacts of the proposed critical habitat Sonoma County distinct population should be focused on impacts to designation on government agencies and segment of the California tiger recovery. While we have not yet private businesses and individuals. The salamander all essential habitat in the proposed a new definition for public economic analysis identified potential four highest cost census tracts which cumulatively account for approximately review and comment, compliance with costs over a 20-year period as a result 94% of the economic impacts of the the Court’s direction may result in of the proposed critical habitat designation (Table 4). additional costs associated with the designation, including those costs designation of critical habitat coextensive with listing. The analysis TABLE 4.—EXCLUDED CENSUS TRACTS (depending upon the outcome of the measured lost economic efficiency AND COSTS rulemaking). In light of the uncertainty associated with residential and concerning the regulatory definition of commercial development, and public adverse modification, our current Adjusted welfare projects and activities, such as Census tract impact in final EA ($) methodological approach to conducting economic impacts on transportation economic analyses of our critical habitat projects, the energy industry, and 06097153300 ...... 125,612,192 designations is to consider all Federal lands. However, no Federal 06097153200 ...... 30,148,184 conservation-related costs. This lands are within the proposed critical (including transpor- approach would include costs related to tation costs) habitat boundary. The economic sections 4, 7, 9, and 10 of the Act, and 06097151201 ...... 18,746,038 analysis considered the potential should encompass costs that would be 06097153005 ...... 9,863,633 economic effects of actions relating to considered and evaluated in light of the the conservation of the Sonoma County Gifford Pinchot ruling. (1) Benefits of Inclusion of the 4 distinct population segment of the In addition, we have received several Excluded Census Tracts California tiger salamander, including credible comments on the economic costs associated with sections 4, 7, and The principal benefit of designating analysis contending that it 10 of the Act, and including those critical habitat is that Federal activities underestimates, perhaps significantly, that may affect such habitat are subject attributable to designating critical the costs associated with this critical to consultation pursuant to section 7 of habitat. It further considered the habitat designation. Both of these factors the Act. Such consultation requires economic effects of protective measures are a balancing consideration against the every Federal agency to ensure that any taken as a result of other Federal, State, possibility that some of the costs shown action it authorizes, funds, or carries out and local laws that aid habitat in the economic analysis might be is not likely to result in the destruction attributable to other factors, or are conservation for the California tiger or adverse modification of critical overly high, and so would not salamander in essential habitat areas. habitat. The most direct, and potentially necessarily be avoided by excluding the The economic analysis considered both largest, regulatory benefit of critical area for which the costs are predicted economic efficiency and distributional habitat is that federally authorized, from this critical habitat designation. effects. In the case of habitat funded, or carried out activities require We recognize that we have excluded conservation, efficiency effects generally consultation pursuant to section 7 of the all of the proposed critical habitat. reflect the ‘‘opportunity costs’’ Act to ensure that these activities are Congress expressly contemplated that associated with the commitment of not likely to destroy or adversely modify exclusions under this section might resources to comply with habitat critical habitat. result in such situations when it enacted protection measures (e.g., lost economic There are two limitations to this the exclusion authority. House Report opportunities associated with regulatory effect. First, it only applies 95–1625, stated on page 17: ‘‘Factors of restrictions on land use). This analysis where there is a Federal nexus—if there recognized or potential importance to also addressed how potential economic is no Federal nexus, designation itself human activities in an area will be impacts are likely to be distributed, does not restrict actions that destroy or considered by the Secretary in deciding including an assessment of any local or adversely modify critical habitat. whether or not all or part of that area regional impacts of habitat conservation Second, it only limits destruction or should be included in the critical and the potential effects of conservation adverse modification. It does not habitat. In some situations, no critical activities on small entities and the encourage proactive or ‘‘interventionist’’ habitat would be specified. In such energy industry. This information can conservation efforts. By its nature, the situations, the Act would still be in be used by decision makers to assess prohibition on adverse modification is force and prevent any taking or other whether the effects of the designation designed to ensure those areas that prohibited act * * *’’ (emphasis might unduly burden a particular group contain the physical and biological supplied). We accordingly believe that or economic sector. Finally, the analysis features essential to the conservation of these exclusions, and the basis upon looked retrospectively at costs that have the species or unoccupied areas that are which they are made, are fully within been incurred since the date the species essential to the conservation of the the parameters for the use of section was listed as an endangered species and species are maintained. Critical habitat 4(b)(2) set out by Congress. considers those costs that may occur in designation alone, however, does not
VerDate Aug<31>2005 16:42 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 74156 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
require specific steps toward recovery, the Service, and any non-Federal action analysis that designation of critical especially on non-federal lands. that may take a California tiger habitat could result in approximately Once consultation under section 7 of salamander will require a Section 10 $184 million in costs in these four the Act is triggered, the process may permit if the action is not already census tracts, the majority of which are conclude informally when the Service covered under a section 7 consultation. directly related to residential concurs in writing that the proposed In general, regulatory benefits of a development impacts. We believe that Federal action is not likely to adversely critical habitat designation would be the potential decrease in residential affect the listed species or its critical highest on Federal lands where most housing development that could be habitat. However, if the Service actions would be subject to section 7 caused by this designation of critical determines through informal review. There are no Federal lands in habitat for the Sonoma County distinct consultation that adverse impacts are the Santa Rosa Plain. However, section population segment of the California likely to occur, then formal consultation 7 consultation likely will have a tiger salamander would minimize would be initiated. Formal consultation regulatory effect on many proposed impacts to and potentially provide some concludes with a biological opinion actions that directly affect California additional protection to the species, the issued by the Service on whether the tiger salamander breeding habitat due to vernal pool complexes and ponds where proposed Federal action is likely to a Federal nexus with the Clean Water they reside, and the physical and jeopardize the continued existence of a Act and consultation with the Army biological features essential to the listed species or result in destruction or Corps of Engineers. As described above, species’ conservation (i.e., the primary adverse modification of critical habitat, these consultations are likely to result in constituent elements). Thus, this with separate analyses being made determinations of ‘‘no jeopardy’’ to the decrease in residential housing under both the jeopardy and the adverse species and ‘‘no destruction or adverse development would directly translate modification standards. For critical modification’’ of critical habitat under into a potential benefit to the species habitat, a biological opinion that the Gifford Pinchot standard. Upland that would result from this designation. concludes in a determination of no areas or private lands where California However, these benefits are likely to destruction or adverse modification may tiger salamander have not been be quite limited in relation to what the contain discretionary conservation surveyed or observed will be subject to California tiger salamander requires for recommendations to minimize adverse less and sometimes no regulation under successful conservation on the Santa effects to primary constituent elements, the Act. This outcome depends on Rosa Plain. This consultation benefit but it would not contain any mandatory whether local jurisdictions require would not apply to all critical habitat reasonable and prudent measures or California tiger salamander surveys on lands because of a lack of a Federal terms and conditions. Mandatory private lands and, if so, whether nexus for large portions of unsurveyed reasonable and prudent alternatives to California tiger salamanders are actually private uplands that are not the proposed Federal action would only found on the property. If California tiger immediately adjacent to breeding be issued when the biological opinion salamander are found on these upland ponds. It would also be applied in a results in a jeopardy or adverse areas, and the proposed action may take piecemeal, project-by-project fashion. modification conclusion. California tiger salamander, then a Application of section 7 on these private We also note that the decision of the section 10 permit is required and lands would depend on an Ninth Circuit in Gifford Pinchot Task consultation on critical habitat will also unpredictable combination of several Force v. USFWS must be considered in occur. In contrast, if California tiger factors, including the presence of a weighing the effects of designation of salamander are not found or the section 7 Federal nexus, the likelihood critical habitat. In that case, the court landowner declines to survey for or certainty of California tiger held the Service’s regulatory definition California tiger salamander, then the salamander occupancy on the project of ‘‘destruction or adverse modification’’ proposed action may occur without a site, the willingness of the landowner to was contrary to the Act because it section 7 or section 10 permit and there survey for California tiger salamander if required an analysis of the effect of the is no consultation under the Act. Under occupancy is unknown, the legal ability proposed Federal action on the survival this process, it is likely that a significant and political desire of local jurisdictions of the species in addition to an analysis amount of potential upland aestivation to require surveys and/or some form of of the effect on recovery of the species. habitat will not be regulated under the consultation with the Service, and the To the extent compliance with Gifford Act because of a lack of a Federal nexus ability to require compensatory Pinchot would lead to more and the low likelihood that portions of mitigation if impacts to California tiger determinations that Federal actions these areas are currently occupied by salamander are anticipated. destroy or adversely modify critical the species. It is in cases such as this Therefore, it is reasonable to conclude habitat than had previously been the where a critical habitat designation that only a portion of the area that case, designation of critical habitat provides little positive regulatory otherwise would be designated as would provide greater regulatory benefit. critical habitat will likely be regulated protections to the species’ habitat. Designation of critical habitat for the or conserved. Some areas of potential Significant portions of the lower Sonoma County distinct population critical habitat would be conserved Santa Rosa Plain within or adjacent to segment of the California tiger through the direct regulation of Federal the urban growth boundary are salamander would confer some limited actions and associated private activities documented to be occupied by additional regulatory benefits beyond (e.g., a Clean Water Act permit California tiger salamander. Other the status quo because the Service concerning a proposed development portions are not surveyed and may or would apply the Gifford Pinchot that would fill wetlands). On the other may not be occupied. Also, there are recovery standard to section 7 hand, large portions of critical habitat large upland areas near breeding ponds consultations on proposed Federal on private lands will not be regulated where California tiger salamander activities. This standard would ensure under section 7 or section 10 of the Act aestivate underground. Any Federal that the Service looks beyond the where direct take is not likely to occur activity adversely affecting California jeopardy standard when assessing a or is undeterminable, and no other tiger salamander in these occupied areas project’s impact on a species’ critical Federal nexus exists. We are unable to will require section 7 consultations with habitat. We determined in the economic calculate at this time the relative
VerDate Aug<31>2005 16:42 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74157
amounts of land in these two respective and Federal agencies by providing for the Sonoma County distinct categories. At best, a critical habitat information about habitat that contains population segment of the California designation, in conjunction with section features considered essential to the tiger salamander and would bring 9 take prohibitions, is most likely to conservation of the Sonoma County funding for these efforts. We therefore protect known occupied breeding sites distinct population segment of the find that the benefits of excluding the or occupied upland areas. A critical California tiger salamander, and in four census tracts from this designation habitat designation is least likely to facilitating conservation efforts through of critical habitat outweigh the benefits protect unoccupied habitat and heightened public awareness of the of including them in the designation. unsurveyed private lands with no plight of the listed species. Recovery Federal nexus and, as we discuss below, plans would contain explicit objectives Relationship of Critical Habitat to may serve to discourage California tiger for ongoing public education, outreach, Current and Proposed Conservation salamander conservation on these areas. and collaboration at local, State, and Efforts—Application of Section 4(b)(2) Another potential benefit is that the Federal levels, and between the private We have considered, but are designation of critical habitat can serve and public sectors to guide recovery of excluding, lands within the refined to educate the public regarding the the Sonoma County distinct population designation that fall within the potential conservation value of an area segment of the California tiger boundaries of the draft Conservation and thereby focus and contribute to salamander. Strategy. We believe the benefits of conservation efforts by clearly excluding lands within this draft delineating areas of high conservation (3) Benefits of Exclusion Outweigh the Conservation Strategy outweigh the value for certain species. Such a benefit Benefits of Inclusion benefits of including them. The could be substantial in geographic areas We believe that the benefits from following represents our rationale for where the presence of the California excluding these four census tracts from excluding these areas. Taken together tiger salamander was a relatively new or the designation of critical habitat— with the four census tracts excluded unknown phenomenon, and there was a avoiding the potential economic and above for economic reasons, the result is need to educate the local community to human costs, both in dollars and jobs, the species’ presence and conservation predicted in the economic analysis— that we are not designating any critical needs. However, such a situation does exceed the educational and regulatory habitat for the Sonoma County distinct not exist anywhere in the Santa Rosa benefits which could result from population segment of the California Plain. Due in large part to the extensive including those lands in this tiger salamander at this time on the media attention applied to the high- designation of critical habitat. basis of both economics and the profile conflicts that accompanied the We have evaluated and considered proactive conservation benefits listing of the species and the critical the potential economic costs on the conferred by the locally developed habitat proposal, there is widespread residential development industry and conservation strategy. knowledge of the species’ local status public sector transportation projects Since the listing of the Sonoma and conservation needs. Therefore, it is relative to the potential benefit for the County distinct population segment of unlikely that a final critical habitat Sonoma County distinct population the California tiger salamander, Federal, designation would provide any segment of the California tiger State, and local officials have struggled significant new or additional salamander and its primary constituent with how best to manage the unique educational benefit beyond the status elements derived from the designation conservation challenge posed by this quo. of critical habitat. We believe that species. The salamander occurs almost In sum, a final critical habitat avoiding the potential economic impact exclusively on undeveloped, privately designation would confer some of up to approximately $184 million on owned lands within an approved urban additional, but limited, regulatory the development industry and public growth boundary (UGB) or within areas benefits on portions of the critical sector projects significantly outweighs adjacent to the UGB. Prior to the listing, habitat above and beyond those already the potential conservation and significant local planning efforts had provided through the listing of the protective benefits for the species and been completed, and much of the species. Most of these limited additional the primary constituent elements that remaining salamander habitat within or benefits would be a consequence of would be derived from the designation adjacent to the UGB had been section 7 consultation on critical habitat of these four census tracts as critical designated for various types of to the Gifford Pinchot standard. habitat. development. Additionally, we believe that the (2) Benefits of Exclusion of the Four recovery planning process provides Pursuant to section 4(b)(2), we Census Tracts equivalent educational value to the analyzed whether the benefits of The economic analysis conducted for public, State and local governments, designating these lands as critical the refined proposal estimates that the scientific organizations, and Federal habitat were outweighed by the benefits costs associated with designating these agencies in providing information about of excluding these lands from a final four census tracts would be habitat that contains those features designation. In the following section, we approximately $184 million. By considered essential to the conservation evaluate a ‘‘without critical habitat’’ excluding these census tracts, some of of the Sonoma County distinct scenario and compare it to a ‘‘with these costs will be avoided. population segment of the California critical habitat’’ scenario. The difference Additionally, important public sector tiger salamander, and in facilitating between the two scenarios measured the transportation projects will avoid the conservation efforts through heightened net negative or positive impacts costs associated with critical habitat public awareness of the plight of the attributable to the designation of critical designation. listed species. Recovery plans would habitat. We paid particular attention to We believe that the required future contain explicit objectives for ongoing the following issues: recovery planning process would public education, outreach, and • The degree to which a critical provide at least equivalent educational collaboration at local, State, and Federal habitat designation would confer value to the public, State and local levels, and between the private and regulatory conservation benefits on governments, scientific organizations, public sectors to guide recovery efforts these species (e.g. high, medium, low);
VerDate Aug<31>2005 16:42 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 74158 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
• Whether the designation would most cases to encourage and carry out the California tiger salamander and educate members of the public such that active management measures to prevent other listed species on the Santa Rosa conservation efforts would be enhanced; extinctions and promote recovery (Bean Plain. • Whether a critical habitat 2002). Consideration of this concern is This group developed the designation would have a positive, especially important in areas where Conservation Strategy, a comprehensive neutral, or negative impact on local recovery efforts require access and plan to provide for California tiger support for salamander conservation, landowner permission for survey and salamander conservation while also including the finalization and restoration efforts. Simply preventing identifying a predictable process implementation of the Conservation ‘‘harmful activities’’ will not slow the whereby certain public and private Strategy; extinction of listed species or promote development projects can proceed. The • To what extent a critical habitat their recovery. Proactive, voluntary Conservation Strategy was published in designation is likely to encourage or conservation efforts are necessary to draft form and provided to the public discourage future cooperative efforts prevent the extinction and promote the for review and comment earlier in 2005. with local landowners and officials; recovery of these species (Wilcove and The Conservation Strategy also received and, Lee 2004, Shogren et al. 1999). It is extensive peer review from • The degree to which the widely acknowledged that conservation knowledgeable scientists. For the sake Conservation Strategy provides a better of the Sonoma County distinct of brevity, the Conservation Strategy conservation alternative to critical population segment of the California document (August 3, 2005) is habitat and the likelihood it will be tiger salamander will require proactive incorporated herein by reference, while implemented. restoration efforts. the main objectives of the Conservation If a critical habitat designation results Strategy are described below: (1) Benefits of Inclusion of the Excluded in a quantifiable reduction in the (1) Provide for the long-term survival Areas likelihood that existing or future and recovery of the California tiger voluntary, cooperative conservation The benefits of inclusion of the salamander and listed plant species by activities will be carried out on non- excluded areas as critical habitat were establishing and supporting a system of federal lands, and at the same time fails described in the preceding section. preserves, mitigation banks, and to confer a counter-balancing positive restoration areas. regulatory or educational benefit to the (2) Benefits of Exclusion of the Excluded Areas—Other Relevant Impacts (2) Ensure that projects impacting conservation of the species, then the extant California tiger salamander benefits of excluding such areas from The salamander occurs almost subpopulations are minimized and critical habitat outweigh the benefits of exclusively on undeveloped, privately mitigated to the maximum extent including them. owned lands within an approved urban possible. The designation of critical habitat on growth boundary in Sonoma County. (3) Identify and maximize the non-federal lands can have both Prior to the listing, significant local potential for restoration of degraded negative and positive impacts on the planning efforts had been completed, habitat areas, and add these to the conservation of listed species (Bean and much of the remaining salamander preserve system. 2002). There is a growing body of habitat within the growth boundary had (4) Fund monitoring efforts to make documentation that some regulatory been designated for various types of sure that California tiger salamander actions by the Federal government, development. Because of the conservation areas are adaptively while well-intentioned and required by salamander’s occurrence on private managed to account for changing law, can under certain circumstances lands mostly designated for conditions and new information. have unintended negative consequences development, the primary challenge (5) Fund monitoring efforts to make for the conservation of species on non- facing Federal, State, and local officials sure that the provisions of the federal lands (Bean 2002; Brook et al. is how best to reconcile the goals and Conservation Strategy are properly 2003; James 2002; Koch 2002; Wilcove requirements of the Federal Endangered implemented and that its terms are et al. 1996). Some landowners fear a Species Act with the economic and enforced. decline in value of their properties social needs of the local communities in (6) Provide for a cost effective, because of their belief that the Act may Sonoma County. predictable, and streamlined process for restrict future land-use options where Approximately two years ago, a group private and public development projects threatened or endangered species are of Federal, State, and local officials and under the Act, and; found. Consequently, endangered stakeholders initiated an effort to (7) Ensure that the Conservation species are perceived by many address this challenge. Local biologists Strategy for California tiger salamander landowners as a financial liability, with the Service, the U.S. Army Corps is compatible with local urban planning which sometimes results in anti- of Engineers, the U.S. Environmental efforts and, likewise, ensure that conservation incentives to these Protection Agency, and the California changes to local planning efforts are landowners (Brook et al. 2003, Main et Department of Fish and Game joined compatible with ongoing California tiger al. 1999). with local representatives of the cities of salamander conservation. According to some researchers, the Santa Rosa, Cotati, Rohnert Park, Final completion and implementation designation of critical habitat on private Sonoma County, the North Coast of the Conservation Strategy will require lands significantly reduces the Regional Water Quality Control Board, several more steps to comply with State likelihood that many landowners will and the environmental and and local government approval support and carry out conservation development communities. All parties processes. We have some concern that actions (Bean 2002; Brook et al. 2003; recognized that a court-ordered Federal the strategy is not yet completed and Main et al. 1999). The magnitude of this designation of critical habitat would under implementation, but these negative outcome is greatly amplified in likely further polarize local concerns are alleviated by the passage of conservation situations, such as on conservation efforts, and that a regional resolutions by the local jurisdictions privately-owned lands, where it is scientific effort with broad local support (November 9, 2005) and subsequent insufficient simply to prohibit harmful of private landowners had the highest approval of a planning agreement activities. Instead, it is necessary in likelihood of achieving conservation of committing them to complete and
VerDate Aug<31>2005 16:42 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74159
implement the strategy within the next impacts on the finalization and effectiveness of California tiger 18–24 months as these approval implementation of the Santa Rosa Plain salamander recovery. Under the best of processes are completed. In addition, Conservation Strategy. Avoiding these circumstances, a critical habitat these jurisdictions have agreed to negative impacts is a benefit of designation would only provide implement interim conservation excluding these lands from the final piecemeal, project-by-project measures until the Conservation critical habitat designation. conservation benefits to California tiger Strategy is implemented to ensure that (3) Benefits of Exclusion Outweigh the salamander by prohibiting adverse current or initiated actions proceed Benefits of Inclusion for Proposed modification of designated critical consistent with the biological objectives Critical Habitat habitat. It would not provide a proactive of the Conservation Strategy. These or distinct population segment-wide interim measures subject actions As discussed in the overview to this recovery benefit to the species affecting California tiger salamander and section, we analyzed whether the achievable under larger-scale its habitat to Service and CDFG review, benefits of designating these lands as conservation plans, which benefit from and they provide mitigation for critical habitat were outweighed by the economies of scale through unavoidable impacts to California tiger benefits of excluding these lands from a participation of multiple landowners salamander. These measures are final designation. We evaluated a and project proponents in partnership described in greater detail later in this ‘‘without critical habitat’’ scenario and with one or more local jurisdictions in section. compared it to a ‘‘with critical habitat’’ a relatively large geographic area. Such Implementation of the Conservation scenario. The difference between the larger-scale plans are more effective at Strategy offers the best possible two scenarios measured the net negative protecting and managing strategically opportunity to reconcile the goals of the or positive impacts attributable to the situated habitat areas of a size that can Federal Endangered Species Act with designation of critical habitat. achieve long-term conservation for the In general, we believe the the economic and social planning goals species than a project-by-project conservation achieved through of the local communities. We are approach. The most important benefits implementing habitat conservation encouraged by the passage of the provided by the Conservation Strategy, plans (HCPs), approved conservation resolutions and the approval of the in comparison to a designation of agreements, or other applied habitat planning agreement by all of the critical habitat, can be summarized as management strategies such as the affected local jurisdictions and believe follows: that final implementation of the Conservation Strategy is typically greater than would be achieved through (1) The Conservation Strategy Conservation Strategy is very likely. We reconciles local growth plans (e.g., an are also encouraged by the tremendous multiple site-by-site, project-by-project, section 7 consultations involving approved urban growth boundary) with show of good faith by all of the agencies the conservation goals of the Federal and local entities that have participated consideration of critical habitat. Endangered Species Act. A critical in this process as part of the Management plans commit resources to habitat designation has not been Conservation Strategy team, and the implement long-term management and reconciled with local plans, and generous commitment of their time and protection to particular habitat for at according to multiple public comments effort over the last two years. This large least one and possibly other listed or by knowledgeable officials is likely to investment of personnel resources by sensitive species. Section 7 not be supported by local landowners these many entities reflects a serious consultations only commit Federal and government officials. Therefore, the commitment and implies a high agencies to prevent adverse Conservation Strategy has a higher likelihood that the strategy will be modification to critical habitat caused likelihood of successfully providing for finalized and implemented. by the particular project, and they are Further, it is likely that a designation not committed to provide conservation the conservation of California tiger of critical habitat in the face of this or long-term benefits to areas not salamander because it has been planning effort would have a chilling affected by the proposed, site-specific embraced by the local community effect on the participation of at least project. Thus, any HCP or conservation through their elected officials. some of these local entities and strategy which establishes long-term (2) A tremendous amount of local stakeholders. Several comments enhancement or recovery as the planning resources and public received from various jurisdictions management standard, and that ensures participation has already been expended expected that a critical habitat implementation of compensatory in completing the most recent round of designation would encourage mitigation where appropriate, will urban growth planning in Sonoma participants to leave the cooperative always provide as much or more benefit County. A decision such as a Federal process that has been established and than a consultation for critical habitat critical habitat designation could may cause the breakdown of the designation conducted under the dramatically affect these boundaries and Conservation Strategy. Likewise, it is standards required by the Ninth Circuit should, wherever possible and probable that local landowners affected in the Gifford Pinchot decision. appropriate, be flexible to accommodate by a final critical habitat designation Therefore, we assign relatively little locally developed and approved process would revert to the more weight to the benefits of designating this planning processes. This flexibility traditional ‘‘permit-by-permit’’ approval area as critical habitat when compared makes economic, social, and process, which would make planning to the approach embodied by the conservation sense. for long-term California tiger Conservation Strategy. This strategy (3) The Conservation Strategy has salamander conservation much more provides the highest likelihood of created an atmosphere of partnership by difficult on a landscape scale, as conserving habitat for California tiger bringing together a broad coalition of described earlier. salamander and listed plants in Sonoma government officials, local developers, In summary, we conclude that the County. The need to maintain and environmentalists, and landowners. A designation of critical habitat for the expand recent gains in cooperative critical habitat designation will likely Sonoma County distinct population conservation efforts in Sonoma County polarize many of these stakeholders and segment of the California tiger for the California tiger salamander and decrease the likelihood that meaningful salamander would have negative listed plants is crucial to the long-term cooperative conservation will be
VerDate Aug<31>2005 16:42 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 74160 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
achieved for the California tiger process, as discussed in the economic when such exclusion will result in the salamander. analysis, provide assurance that the extinction of the species concerned. (4) The Conservation Strategy species will not go extinct. In addition, Following the publication of the provides a ‘‘proactive’’ conservation the species is protected from take under proposed critical habitat designation, strategy that actively encourages section 9 of the Act. The exclusion we conducted an economic analysis to California tiger salamander conservation leaves these protections unchanged estimate the potential economic effect of for all types of California tiger from those that would exist if the the designation. The draft analysis was salamander lands, including excluded areas were designated as made available for public review on unoccupied or unsurveyed lands and critical habitat. October 25, 2005 (70 FR 61591), and we agricultural lands. Critical habitat In fact, we believe the exclusion of accepted comments on the draft provides ‘‘prohibitive’’ protections in these areas from a critical habitat economic analysis until November 14, portions of the species’’ range, but it designation will actually improve both 2005. We reopened the comment period does not encourage proactive activities. its short term and long term on November 17, 2005 to allow all Therefore, the Conservation Strategy has conservation opportunities and will interested parties an opportunity to a higher likelihood of achieving reduce its likelihood of extinction. comment simultaneously on the conservation of California tiger Implementation of the ‘‘interim proposed rule and a refinement of the salamander on private lands, and it has measures’’ and the Conservation original which we were considering (70 a higher likelihood of helping re- Strategy will provide an opportunity for FR 69717). We accepted comments until establish California tiger salamander on maintaining and increasing salamanders November 28, 2005. unoccupied lands. in certain portions of the Santa Rosa The primary purpose of the economic (5) The Conservation Strategy has a Plain, while a critical habitat analysis is to estimate the potential higher likelihood of achieving broader designation will likely not prevent the economic impacts associated with the landscape-level conservation for the continued slow demise of the designation of critical habitat for the California tiger salamander and listed population as unmanaged fragmentation Sonoma County distinct population plants. The critical habitat designation, occurs due to piecemeal development. segment of the California tiger in contrast, would likely result in (5) Reconsideration of This Decision salamander. This information is piecemeal conservation efforts that intended to assist the Secretary in would be influenced by the order in Necessarily, in balancing the benefits making decisions about whether the which permit requests are submitted to of inclusion against the benefits of benefits of excluding particular areas Federal and other agencies. exclusion, we must make forecast about from the designation outweigh the (6) The Conservation Strategy will future occurrences. Our forecasts are benefits of including those areas in the identify funding mechanisms to provide based on the best information currently designation. This economic analysis for California tiger salamander available. We recognize that our considers the economic efficiency mitigation and conservation. Critical information is imperfect, and therefore effects that may result from the habitat has no funding mechanisms for our forecasts may be imperfect. To the designation, including habitat California tiger salamander mitigation extent that our analysis is not borne out, protections that may be co-extensive costs and proactive conservation we will consider further rulemaking in with the listing of the species. It also activities. the future. For example, if the (7) The Conservation Strategy Conservation Strategy is not finalized or addresses distribution of impacts, provides ongoing educational benefits implemented in a reasonable amount of including an assessment of the potential that surpass any of those that would be time, or the interim measures prove to effects on small entities, the energy provided by a final critical habitat be less effective at conserving the industry, transportation projects, and designation. California tiger salamander than Federal lands. This information can be For the reasons described above, we expected, our current analysis will used by the Secretary to assess whether have determined that the benefits of likely prove to have significantly the effects of the designation might designating critical habitat for the understated the benefits of inclusion. unduly burden a particular group or Sonoma County distinct population Therefore, if we subsequently economic sector. segment of the California tiger determine, based on new information, This analysis focuses on the direct salamander are relatively small, while that the benefits of including a and indirect costs of the rule. However, the benefits of not designating proposed particular area are not outweighed by economic impacts to land use activities critical habitat and proceeding with the the benefits of excluding it, we will can exist in the absence of critical Conservation Strategy are more promptly publish a proposed rule to habitat. These impacts may result from, significant. revise the critical habitat to add that for example, local zoning laws, State area, and after public comment, add that and natural resource laws, and (4) Exclusion Will Not Result in area to the designation, if appropriate. enforceable management plans and best Extinction of the Species management practices applied by other We believe that exclusion of these Economic Analysis State and Federal agencies. Economic lands will not result in the extinction of Section 4(b)(2) of the Act requires us impacts that result from these types of the Sonoma County distinct population to designate critical habitat on the basis protections are not included in the segment of the California tiger of the best scientific information analysis as they are considered to be salamander. Many of these areas are available and to consider the economic part of the regulatory and policy considered occupied habitat. Actions and other relevant impacts of baseline. which might adversely affect the species designating a particular area as critical We received comments on the draft are expected to have a Federal nexus, habitat. We may exclude areas from economic analysis of the proposed and would thus undergo a section 7 critical habitat upon a determination designation. Following the close of the consultation with the Service. The that the benefits of such exclusions comment period, we considered those jeopardy standard of section 7, and outweigh the benefits of specifying such comments and prepared responses to routine implementation of habitat areas as critical habitat. We cannot comments (see Responses to Comments preservation through the section 7 exclude such areas from critical habitat section above).
VerDate Aug<31>2005 16:42 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74161
The November 17, 2005, notice (70 FR publish a notice of rulemaking for any especially with critical habitat 69717) reopening the comment period proposed or final rule, it must prepare designations of limited extent, we may provides a detailed economics section and make available for public comment aggregate across all industries and that shows an economic impact on land a regulatory flexibility analysis that consider whether the total number of development of $195,863,729. The describes the effect of the rule on small small entities affected is substantial. In revised impact on transportation entities (i.e., small businesses, small estimating the number of small entities projects is $426,000. The total revised organizations, and small government potentially affected, we also consider cost of designation is thus $196,289,729, jurisdictions). However, no regulatory whether their activities have any or $17,316,226 annualized over 20 flexibility analysis is required if the Federal involvement. years. In the event that portions of head of an agency certifies the rule will Designation of critical habitat only critical habitat with the urban growth not have a significant economic impact affects activities conducted, funded, or boundaries are excluded, the cost drops on a substantial number of small permitted by Federal agencies. Some to $128,008,620. entities. The SBREFA amended the RFA kinds of activities are unlikely to have We are not designating any critical to require Federal agencies to provide a any Federal involvement and so will not habitat for the Sonoma County distinct statement of factual basis for certifying be affected by critical habitat population segment of the California that the rule will not have a significant designation. In areas where the species tiger salamander. We are excluding all economic impact on a substantial is present, Federal agencies already are areas under 4(b)(2) (see Exclusions number of small entities. The SBREFA required to consult with us under section) so there are no costs associated also amended the RFA to require a section 7 of the Act on activities they with this rulemaking process. certification statement. fund, permit, or implement that may A copy of the economic analysis with Small entities include small affect the California tiger salamander. supporting documents are included in organizations, such as independent Federal agencies also must consult with our administrative record and may be nonprofit organizations; small us if their activities may affect critical obtained by contacting U.S. Fish and governmental jurisdictions, including habitat. Designation of critical habitat, Wildlife Service, Branch of Endangered school boards and city and town therefore, could result in an additional Species (see ADDRESSES section) or for governments that serve fewer than economic impact on small entities due downloading from the Internet at 50,000 residents; as well as small to the requirement to reinitiate http://www.fws.gov/sacramento. businesses. Small businesses include consultation for ongoing Federal manufacturing and mining concerns activities. Required Determinations with fewer than 500 employees, Had we designated critical habitat, it Regulatory Planning and Review wholesale trade entities with fewer than would not have been expected to result 100 employees, retail and service in significant small business impacts In accordance with Executive Order businesses with less than $5 million in since revenue losses would have been 12866, this document is a significant annual sales, general and heavy less than one percent of total small rule in that it may raise novel legal and construction businesses with less than business revenues in affected areas. policy issues, but will not have an $27.5 million in annual business, Large businesses greatly dominate annual effect on the economy of $100 special trade contractors doing less than greenfield development, and it was million or more or affect the economy $11.5 million in annual business, and estimated that no more than a single in a material way. Due to the tight agricultural businesses with annual small business would be affected timeline for publication in the Federal sales less than $750,000. To determine annually as a consequence of Register, the Office of Management and if potential economic impacts to these designation. Budget (OMB) has not formally small entities are significant, we In general, two different mechanisms reviewed this rule. As explained above, consider the types of activities that in section 7 consultations could lead to we prepared an economic analysis of might trigger regulatory impacts under additional regulatory requirements for this action. We used this analysis to this rule, as well as the types of project the single small business, on average, meet the requirement of section 4(b)(2) modifications that may result. In that may be required to consult with us of the Act to determine the economic general, the term ‘‘significant economic each year regarding their project’s consequences of designating specific impact’’ is meant to apply to a typical impact on California tiger salamander areas as critical habitat. We also used it small business firm’s business and its habitat. First, if we conclude, in to help determine whether to exclude operations. a biological opinion, that a proposed any area from critical habitat, as To determine if the rule could action is likely to jeopardize the provided for under section 4(b)(2), if we significantly affect a substantial number continued existence of a species or determine that the benefits of such of small entities, we consider the adversely modify its critical habitat, we exclusion outweigh the benefits of number of small entities affected within can offer ‘‘reasonable and prudent specifying such area as part of the particular types of economic activities alternatives.’’ Reasonable and prudent critical habitat, unless we determine, (e.g., housing development, grazing, oil alternatives are alternative actions that based on the best scientific and and gas production, timber harvesting). can be implemented in a manner commercial data available, that the We apply the ‘‘substantial number’’ test consistent with the scope of the Federal failure to designate such area as critical individually to each industry to agency’s legal authority and habitat will result in the extinction of determine if certification is appropriate. jurisdiction, that are economically and the species. However, the SBREFA does not technologically feasible, and that would explicitly define ‘‘substantial number’’ avoid jeopardizing the continued Regulatory Flexibility Act (5 U.S.C. 601 or ‘‘significant economic impact.’’ existence of listed species or result in et seq.) Consequently, to assess whether a adverse modification of critical habitat. Under the Regulatory Flexibility Act ‘‘substantial number’’ of small entities is A Federal agency and an applicant may (RFA) (as amended by the Small affected by this designation, this elect to implement a reasonable and Business Regulatory Enforcement analysis considers the relative number prudent alternative associated with a Fairness Act (SBREFA) of 1996), of small entities likely to be impacted in biological opinion that has found whenever an agency is required to an area. In some circumstances, jeopardy or adverse modification of
VerDate Aug<31>2005 16:42 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 74162 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
critical habitat. An agency or applicant (5) Activities funded by the EPA, U.S. ‘‘Federal private sector mandates.’’ could alternatively choose to seek an Department of Energy, or any other These terms are defined in 2 U.S.C. exemption from the requirements of the Federal agency. 658(5)–(7). ‘‘Federal intergovernmental Act or proceed without implementing It is likely that a developer or other mandate’’ includes a regulation that the reasonable and prudent alternative. project proponent could modify a ‘‘would impose an enforceable duty However, unless an exemption were project or take measures to protect upon State, local, or tribal governments’’ obtained, the Federal agency or California tiger salamander. The kinds with two exceptions. It excludes ‘‘a applicant would be at risk of violating of actions that may be included if future condition of federal assistance.’’ It also section 7(a)(2) of the Act if it chose to reasonable and prudent alternatives excludes ‘‘a duty arising from proceed without implementing the become necessary include conservation participation in a voluntary Federal reasonable and prudent alternatives. set-asides, management of competing program,’’ unless the regulation ‘‘relates Second, if we find that a proposed nonnative species, restoration of to a then-existing Federal program action is not likely to jeopardize the degraded habitat, and regular under which $500,000,000 or more is continued existence of a listed animal or monitoring. These are based on our provided annually to State, local, and plant species, we may identify understanding of the needs of the tribal governments under entitlement reasonable and prudent measures species and the threats it faces, as authority,’’ if the provision would designed to minimize the amount or described in the final listing rule and ‘‘increase the stringency of conditions of extent of take and require the Federal proposed critical habitat designation. assistance’’ or ‘‘place caps upon, or agency or applicant to implement such These measures are not likely to result otherwise decrease, the Federal measures through non-discretionary in a significant economic impact to Government’s responsibility to provide terms and conditions. We may also project proponents. funding’’ and the State, local, or Tribal identify discretionary conservation In summary, we have considered governments ‘‘lack authority’’ to adjust recommendations designed to minimize whether this action would result in a accordingly. (At the time of enactment, or avoid the adverse effects of a significant economic effect on a these entitlement programs were: proposed action on listed species or substantial number of small entities. We Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social Services critical habitat, help implement have determined that it would not affect Block Grants; Vocational Rehabilitation recovery plans, or to develop a substantial number of small entities State Grants; Foster Care, Adoption information that could contribute to the because we are excluding areas which Assistance, and Independent Living; recovery of the species. otherwise would be designated. A regulatory flexibility analysis is not Family Support Welfare Services; and Based on our experience with required. Child Support Enforcement.) ‘‘Federal consultations pursuant to section 7 of private sector mandate’’ includes a the Act for all listed species, virtually Small Business Regulatory Enforcement regulation that ‘‘would impose an all projects—including those that, in Fairness Act (5 U.S.C 801 et seq.) enforceable duty upon the private their initial proposed form, would result Under SBREFA, this action is not a sector, except (i) a condition of Federal in jeopardy or adverse modification major rule. We are excluding all areas assistance; or (ii) a duty arising from determinations in section 7 from critical habitat, so there are no participation in a voluntary Federal consultations—can be implemented economic impacts attributable to a program.’’ successfully with, at most, the adoption critical habitat designation. The designation of critical habitat of reasonable and prudent alternatives. does not impose a legally binding duty These measures, by definition, must be Executive Order 13211 on non-Federal government entities or economically feasible and within the On May 18, 2001, the President issued private parties. Under the Act, the only scope of authority of the Federal agency Executive Order (E.O.) 13211 on regulatory effect is that Federal agencies involved in the consultation. We can regulations that significantly affect must ensure that their actions do not only describe the general kinds of energy supply, distribution, and use. destroy or adversely modify critical actions that may be identified in future E.O. 13211 requires agencies to prepare habitat under section 7. While non- reasonable and prudent alternatives. Statements of Energy Effects when Federal entities who receive Federal These are based on our understanding of undertaking certain actions. This final funding, assistance, permits or the needs of the species and the threats rule does not designate critical habitat otherwise require approval or it faces, as described in the final listing for the California tiger salamander and authorization from a Federal agency for rule and this notice of rulemaking. The is not expected to significantly affect an action may be indirectly impacted by types of Federal actions or authorized energy supplies, distribution, or use. the designation of critical habitat, the activities that we have identified as Therefore, this action is not a significant legally binding duty to avoid potential concerns are: energy action, and no Statement of destruction or adverse modification of (1) Regulation of activities affecting Energy Effects is required. critical habitat rests squarely on the waters of the United States by the Corps Federal agency. Furthermore, to the Unfunded Mandates Reform Act (2 extent that non-Federal entities are of Engineers under section 404 of the U.S.C. 1501 et seq.) Clean Water Act; indirectly impacted because they In accordance with the Unfunded receive Federal assistance or participate (2) Regulation of water flows, Mandates Reform Act (2 U.S.C. 1501 et in a voluntary Federal aid program, the damming, diversion, and channelization seq.), we make the following findings: Unfunded Mandates Reform Act would implemented or licensed by Federal (a) This action will not produce a not apply; nor would critical habitat agencies; Federal mandate. In general, a Federal shift the costs of the large entitlement (3) Road construction and mandate is a provision in legislation, programs listed above on to State maintenance, right-of-way designation, statute, or regulation that would impose governments. and regulation of agricultural activities; an enforceable duty upon State, local, (b) We do not believe that this action (4) Hazard mitigation and post- Tribal governments, or the private sector will significantly or uniquely affect disaster repairs funded by the FEMA; and includes both ‘‘Federal small governments because it will not and intergovernmental mandates’’ and produce a Federal mandate of $100
VerDate Aug<31>2005 16:42 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74163
million or greater in any year, that is, it Endangered Species Act of 1973, as Code of Federal Regulations, as set forth is not a ‘‘significant regulatory action’’ amended. We published a notice below: under the Unfunded Mandates Reform outlining our reasons for this Act. The designation of critical habitat determination in the Federal Register PART 17—[AMENDED] imposes no obligations on State or local on October 25, 1983 (48 FR 49244). This governments. As such, a Small assertion was upheld in the courts of the I 1. The authority citation for part 17 Government Agency Plan is not Ninth Circuit (Douglas County v. continues to read as follows: required. Babbitt, 48 F.3d 1495 (9th Cir. Ore. Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 1995), cert. denied 116 S. Ct. 698 (1996). 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– Federalism 625, 100 Stat. 3500; unless otherwise In accordance with Executive Order Government-to-Government 13132, the action does not have Relationship With Tribes I 2. In § 17.95, amend paragraph (d) by significant Federalism effects. The rule In accordance with the President’s adding an entry for California tiger does not designate any critical habitat, memorandum of April 29, 1994, salamander (Ambystoma californiense) and a Federalism assessment is not ‘‘Government-to-Government Relations in Sonoma County following the entries required. with Native American Tribal for ‘‘California tiger salamander in Santa Governments’’ (59 FR 22951), Executive Barbara County’’ and ‘‘Central Civil Justice Reform Order 13175, and the Department of Population of California tiger In accordance with Executive Order Interior’s Manual at 512 DM 2, we salamander’’ read as follows: 12988, the Office of the Solicitor has readily acknowledge our responsibility determined that the action does not to communicate meaningfully with § 17.95 Critical habitat—fish and wildlife. unduly burden the judicial system and recognized Federal Tribes on a * * * * * meets the requirements of sections 3(a) government-to-government basis. We (d) Amphibians. and 3(b)(2) of the Order. We are not are not designating any critical habitat * * * * * designating any critical habitat with this in this rule, and no Tribal lands are action. involved. California Tiger Salamander (Ambystoma californiense) Paperwork Reduction Act of 1995 (44 References Cited U.S.C. 3501 et seq.) * * * * * A complete list of all references cited This rule does not contain any new in this rulemaking is available upon California Tiger Salamander in Sonoma collections of information that require request from the Field Supervisor, County approval by OMB under the Paperwork Sacramento Fish and Wildlife Office Reduction Act. This rule will not (see ADDRESSES section). Pursuant to section 4(b)(2) of the Act, impose recordkeeping or reporting we have excluded all areas determined requirements on State or local Author(s) to meet the definition of critical habitat governments, individuals, businesses, or The primary author of this package is under section 4(b)(2) of the Act for organizations. An agency may not the staff of the Sacramento Fish and California tiger salamander in Sonoma conduct or sponsor, and a person is not Wildlife Office. County. Therefore, no specific areas are required to respond to, a collection of designated as critical habitat for this List of Subjects in 50 CFR Part 17 information unless it displays a species. currently valid OMB control number. Endangered and threatened species, * * * * * Exports, Imports, Reporting and National Environmental Policy Act recordkeeping requirements, Dated: December 1, 2005. It is our position that, outside the Transportation. Craig Manson, Tenth Circuit, we do not need to Assistant Secretary for Fish and Wildlife and Regulation Promulgation prepare environmental analyses as Parks. defined by the NEPA in connection with I Accordingly, we amend Part 17, [FR Doc. 05–23701 Filed 12–13–05; 8:45 am] designating critical habitat under the subchapter B of chapter I, title 50 of the BILLING CODE 4310–55–P
VerDate Aug<31>2005 16:42 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 Wednesday, December 14, 2005
Part IV
Department of Agriculture Agricultural Marketing Service
7 CFR Parts 1124 and 1131 Milk in the Pacific Northwest and Arizona-Las Vegas Marketing Areas; Final Decision on Proposed Amendments to Marketing Agreement and to Orders; Proposed Rule
VerDate Aug<31>2005 16:40 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\14DEP2.SGM 14DEP2 74166 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules
DEPARTMENT OF AGRICULTURE handler is afforded the opportunity for for being subject to the pooling and a hearing on the petition. After a pricing provisions of the two orders. Agricultural Marketing Service hearing, the Secretary would rule on the Entities currently defined as producer- petition. The Act provides that the handlers under the terms of these orders 7 CFR Parts 1124 and 1131 district court of the United States in any will be subject to the pooling and [Docket No. AO–368–A32, AO–271–A37; district in which the handler is an pricing provisions of the orders if their DA–03–04B] inhabitant, or has its principal place of route disposition of fluid milk products business, has jurisdiction in equity to is more than 3-million pounds per Milk in the Pacific Northwest and review the Secretary’s ruling on the month. Arizona-Las Vegas Marketing Areas; petition, provided a bill in equity is Producer-handlers with route Final Decision on Proposed filed not later than 20 days after the date disposition of less than 3-million Amendments to Marketing Agreement of the entry of the ruling. pounds during the month will not be and to Orders subject to the pooling and pricing Regulatory Flexibility Act and provisions of the orders. To the extent AGENCY: Agricultural Marketing Service, Paperwork Reduction Act that current producer-handlers for each USDA. In accordance with the Regulatory order have route disposition of fluid ACTION: Proposed rule. Flexibility Act (5 U.S.C. 601 et seq.), the milk products outside of the marketing Agricultural Marketing Service has areas, such route disposition will be SUMMARY: This document is the final considered the economic impact of this subject to an order’s pooling and pricing decision proposing to adopt changes to action on small entities and has certified provisions if total in-area route provisions of the producer-handler that this final decision will not have a disposition causes them to become fully definitions of the Pacific Northwest and significant economic impact on a regulated. Arizona-Las Vegas orders as contained substantial number of small entities. For Assuming that some current in a Recommended Decision published the purpose of the Regulatory Flexibility producer-handlers will have route in the Federal Register on April 13, Act, a dairy farm is considered a ‘‘small disposition of fluid milk products of 2005. This document is subject to business’’ if it has an annual gross more than 3-million pounds during the approval by producers. revenue of less than $750,000, and a month, such producer-handlers will be FOR FURTHER INFORMATION CONTACT: Jack dairy products manufacturer is a ‘‘small regulated subject to the pooling and Rower, Marketing Specialist or Gino business’’ if it has fewer than 500 pricing provisions of the orders like Tosi, Associate Deputy Administrator employees. For the purposes of other handlers. Such producer-handlers for Order Formulation and Enforcement, determining which dairy farms are will account to the pool for their uses USDA/AMS/Dairy Programs, Order ‘‘small businesses,’’ the $750,000 per of milk at the applicable minimum class Formulation and Enforcement Branch, year criterion was used to establish a prices and pay the difference between STOP 0231-Room 2971, 1400 milk marketing guideline of 500,000 their use-value and the blend price of Independence Avenue SW., pounds per month. Although this the order to the order’s producer- Washington, DC 20250–0231, (202) 720– guideline does not factor in additional settlement fund. 2357 or (202) 690–1366, e-mail monies that may be received by dairy While this may cause an economic addresses: [email protected] or producers, it should be an inclusive impact on those entities with more than [email protected]. standard for most ‘‘small’’ dairy farmers. 3-million pounds of route sales who For purposes of determining a handler’s currently are considered producer- SUPPLEMENTARY INFORMATION: This size, if the plant is part of a larger handlers by the two orders, the impact administrative action is governed by the company operating multiple plants that is offset by the benefit to other small provisions of Sections 556 and 557 of collectively exceed the 500 employee businesses. With respect to dairy Title 5 of the United States Code and, limit, the plant will be considered a farmers whose milk is pooled on the therefore, is excluded from the large business even if the local plant has two marketing orders, such dairy requirements of Executive Order 12866. fewer than 500 employees. farmers who have not heretofore shared The amendments to the rules Producer-handlers are defined as in the additional revenue that accrues proposed herein have been reviewed dairy farmers that process only their from the marketwide pooling of Class I under Executive Order 12988, Civil own milk production. These entities sales by producer-handlers will share in Justice Reform. They are not intended to must be dairy farmers as a pre-condition such revenue. This will have a positive have a retroactive effect. If adopted, the to operating processing plants as impact on 486 small dairy farmers in the proposed amendments would not producer-handlers. The size of the dairy Pacific Northwest and Arizona-Las preempt any state or local laws, farm determines the production level of Vegas marketing areas. Additionally, all regulations, or policies, unless they the operation and is the controlling handlers who dispose of more than 3- present an irreconcilable conflict with factor in the capacity of the processing million pounds of fluid milk products this rule. plant and possible sales volume per month will pay at least the The Agricultural Marketing associated with the producer-handler announced Federal order Class I price Agreement Act of 1937, as amended (7 entity. Determining whether a producer- for such use. This will have a positive U.S.C. 601–674), provides that handler is considered small or large impact on 18 small regulated handlers. administrative proceedings must be business must depend on its capacity as To the extent that current producer- exhausted before parties may file suit in a dairy farm where a producer-handler handlers in the Pacific Northwest and court. Under Section 608c(15)(A) of the with annual gross revenue in excess of the Arizona-Las Vegas orders become Act, any handler subject to an order may $750,000 is considered a large business. subject to the pooling and pricing request modification or exemption from The amendments would place entities provisions, such will be determined in such order by filing with the Secretary currently considered to be producer- their capacity as handlers. Such entities a petition stating that the order, any handlers under the Pacific Northwest or will no longer have restrictions provision of the order, or any obligation the Arizona-Las Vegas orders on the applicable to their business operations imposed in connection with the order is same terms as all other fully regulated that were conditions for producer- not in accordance with the law. A handlers provided they meet the criteria handler status and exemption from the
VerDate Aug<31>2005 16:40 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 E:\FR\FM\14DEP2.SGM 14DEP2 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules 74167
pooling and pricing provisions of the annual marketing exceeds 6-million rules of practice and procedure two orders. In general, this includes pounds of milk and potentially subject governing the formulation of marketing being able to buy or acquire any to the pooling and pricing provisions of agreements and marketing orders (7 CFR quantity of milk from dairy farmers or the order because of route disposition Part 900), at Tempe, Arizona, beginning other handlers instead of being limited exceeding 3-million pounds per month. on September 23, 2003; reconvened, and by the current constraints of the two A review of reporting requirements continuing at Seattle, Washington, on orders. Additionally, the burden of was completed under the Paperwork November 17, 2003; and reconvened balancing their milk production is Reduction Act of 1995 (44 U.S.C. and concluding at Alexandria, Virginia, relieved. Milk production in excess of Chapter 35). It was determined that on January 23, 2004, pursuant to a what is needed to satisfy their Class I these proposed amendments would notice of hearing issued July 31, 2003, route disposition needs will receive the have minimal impact on reporting, and a correction to the notice issued minimum price protection established recordkeeping, or other compliance August 23, 2003, and notices of under the terms of the two orders. The requirements for entities currently reconvened hearings issued October 27, burden of balancing milk supplies will considered producer-handlers under the 2003, and December 18, 2003. be borne by all producers and handlers Pacific Northwest and the Arizona-Las Upon the basis of the evidence who are pooled and regulated under the Vegas marketing orders because they introduced at the hearing and the record terms of the two orders. would remain identical to the current thereof, the Administrator, on April 7, During September 2003, the Pacific requirements applicable to all other 2005, issued a Recommended Decision Northwest had 16 pool distributing regulated handlers who are currently containing notice of the opportunity to plants, 1 pool supply plant, 3 subject to the pooling and pricing file written exceptions thereto. cooperative pool manufacturing plants, provisions of the two orders. No new The material issues, findings, 7 partially regulated distributing plants, forms are proposed and no additional conclusions, and rulings of the 8 producer-handler plants and 2 exempt reporting requirements would be Recommended Decision are hereby plants. Of the 27 regulated handlers, 16 necessary. approved and adopted and set forth or 59 percent were considered large This notice does not require herein. The material issue on the record businesses. Of the 691 dairy farmers additional information collection that of hearing relate to: whose milk was pooled on the order, requires clearance by the Office of 1. The regulatory status of producer- 223 or 32 percent were considered large Management and Budget (OMB) beyond handlers. businesses. If these amendatory actions currently approved information Findings and Conclusions are not undertaken, 68 percent of the collection. The primary sources of data dairy farmers (468) in the Pacific used to complete the forms are routinely The following findings and Northwest order who are small used in most business transactions. conclusions on the material issues are businesses will continue to be adversely Forms require only a minimal amount of based on evidence presented at the affected by the operations of large information which can be supplied hearing and the record thereof: producer-handlers. without data processing equipment or a 1. The Regulatory Status of Producer- For the Arizona-Las Vegas order, trained statistical staff. Thus, the Handlers during September 2003 there were 3 information collection and reporting Amendments to the producer-handler pool distributing plants, 1 cooperative burden is relatively small. Requiring the definitions of the Pacific Northwest and pool manufacturing plant, 18 partially same reports for all handlers does not the Arizona-Las Vegas milk marketing regulated distributing plants, 2 significantly disadvantage any handler orders are adopted. This decision will producer-handler plants and 3 exempt that is smaller than the industry result in all producer-handlers with in- plants (including an exempt plant average. located in Clark County Nevada) Prior documents in this proceeding: area route disposition of more than 3- operated by 22 handlers. Of these Notice of Hearing: Issued July 31, million pounds of fluid milk products plants, 15 or 68 percent were considered 2003; published August 6, 2003 (68 FR per month being subject to the pooling large businesses. Of the 106 dairy 46505). and pricing provisions of the applicable farmers whose milk was pooled on the Correction to Notice of Hearing: order. This action will cause some order, 88 or 83 percent were considered Issued August 20, 2003; published current producer-handlers to become large businesses. If these amendatory August 26, 2003 (68 FR 51202). subject to the pooling and pricing actions are not undertaken, 17 percent Notice of Reconvened Hearing: Issued provisions of the orders. of the dairy farmers in the Arizona-Las October 27, 2003; published October 31, Currently, the Pacific Northwest and Vegas order who are small businesses 2003 (68 FR 62027). the Arizona-Las Vegas milk marketing will continue to be adversely affected by Notice of Reconvened Hearing: Issued orders provide separate but similar large producer-handler operations. December 18, 2003; published definitions that describe and define a In their capacity as producers, 7 December 29, 2003 (68 FR 74874). special category of handler known as producer-handlers would be considered Recommended Decision: Issued April producer-handlers. While there are as large producers as their annual 7, 2005; published April 13, 2005 (70 FR specific differences in how each order marketing exceeds 6-million pounds of 19636). defines and describes producer- milk. Record evidence indicates that for handlers, both orders—as do all Federal the Pacific Northwest marketing order at Preliminary Statement milk marketing orders—exempt the time of the hearing, four producer- A public hearing held on proposed producer-handlers from the pooling and handlers would potentially become amendments to the marketing agreement pricing provisions of the orders. subject to the pooling and pricing and order regulating the handling of Exemption from the pooling and provisions of the order because of route milk in the Pacific Northwest and pricing provisions of the orders disposition of more than 3-million Arizona-Las Vegas marketing areas. The essentially means that the minimum pounds per month within the marketing hearing was held pursuant to the class prices established under the orders area. For the Arizona-Las Vegas order, provisions of the Agricultural Marketing that handlers must pay for milk are not one producer-handler would be Agreement Act of 1937, as amended (7 applicable to producer-handlers and considered a large producer because its U.S.C. 601–674), and the applicable producer-handlers receive no minimum
VerDate Aug<31>2005 16:40 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 E:\FR\FM\14DEP2.SGM 14DEP2 74168 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules
price protection for surplus milk for the Pacific Northwest order more the period of January 2000 through July disposed of within either order’s like the current Arizona-Las Vegas 2003, or about a 10–14 cents per marketing area. Producer-handlers enjoy order. hundredweight (cwt) impact on the keeping the entire value of their milk A fourth proposal, published in the order’s blend price. In addition, the production disposed of as fluid milk hearing notice as Proposal 4, seeking to witness estimated lost revenue of about products in the marketing area to prevent the simultaneous pooling of the $3 million, or about a 10-cent per cwt themselves and do not share this value same milk on the Arizona-Las Vegas lower blend price for the period of with other dairy farmers whose milk is milk marketing order and on a state- September 1997 through January 1999. pooled on either of the two orders. operated order that provides for A second witness appearing on behalf However, producer-handlers are marketwide pooling, (commonly of UDA also testified in support of subject to strict definitions and referred to a ‘‘double-dipping’’) was Proposal 3. This witness explained that limitations in their business practices. addressed in a separate final rule that the proposed 3-million pound route Both orders limit the ability of was issued November 18, 2005 (70 FR disposition limit on producer-handlers producer-handlers to buy or acquire 70991) and will become effective on was partly based on provisions of the milk that may be needed from dairy January 1, 2006. Fluid Milk Promotion Act which farmers or other handlers. Additionally, requires an assessment for the Summary of Testimony producer-handlers bear the entire promotion of fluid milk when a burden of balancing their own milk Proposal 3 received testimony by a handler’s sales are greater than 3- production. Milk production in excess witness appearing on behalf of United million pounds per month. The witness of what is needed to satisfy their Class Dairymen of Arizona (UDA). UDA is a said that producer-handlers who have I route disposition needs will receive dairy cooperative supplying the ability to enjoy this level of route whatever price they are able to obtain. approximately 88 percent of the milk in disposition should not be exempted Such milk does not receive the the Arizona-Las Vegas milk marketing from pooling and pricing provisions and minimum price protection of the order. order (Order 131). The UDA witness that their continued exemption poses a It is the exemption from the pooling testified in support of establishing a 3- serious threat to orderly marketing and and pricing provisions of the Pacific million pound limit in route disposition the operation of the Federal milk order Northwest and Arizona-Las Vegas of fluid milk products for producer- program. orders that is the central issue of this handlers in the marketing area, which, The second UDA witness claimed that proceeding. While producer-handlers if exceeded, would cause the producer- in December 1994, Sarah Farms was are exempt from the pooling and pricing handler to become subject to the pooling considered an insignificant factor provisions of the two orders, they are and pricing provisions of the order. The within the Order 131 marketing area ‘‘regulated’’ to the extent that producer- witness was of the opinion that the because their monthly raw milk handlers submit reports to the Market current producer-handler definition production was less than 5 million Administrator who monitors producer- contradicts the overall purposes of the pounds, of which less than 1.3 million handler operations to ensure that such Federal milk order program to establish pounds of Class I products were entities are in compliance with the uniform prices among all handlers and distributed within the marketing area. conditions for such regulatory status. the marketwide sharing of revenue Relying on Market Administrator For the purposes of brevity and among all producers who supply the statistics, the witness added that by convenience, this decision will refer to market. 1996, UDA estimated that Sarah Farms’ those handlers who are subject to the The UDA witness asserted that Sarah monthly Class I route disposition had pooling and pricing provisions of the Farms is the largest producer-handler in increased to more than 6 million orders as ‘‘fully regulated handlers’’ in the Order 131 marketing area and avoids pounds. The witness also testified that contrast to producer-handlers. the classified pricing and pooling from late 1998 until this proceeding, requirements applicable to all other Sarah Farms had been one of only two Overview of the Proposals handlers. The witness characterized this producer-handlers selling Class I This proceeding considered three as the operation of an individual products in the marketing area. Relying proposals seeking the application of handler pool within a marketwide pool. on Market Administrator statistics, the each order’s pooling and pricing The witness stated that UDA is aware witness estimated that Sarah Farms’ provisions, or full regulation, of that historically Federal orders have Class I route sales within Order 131 had producer-handlers when their route exempted producer-handler operations increased from about 7 million pounds disposition of fluid milk products in the from the pricing and pooling provisions per month to as much as 15 million marketing areas exceeded 3-million of orders because they were small and pounds per month by 2002. pounds per month. These proposals had little impact in the marketplace. A witness appearing on behalf of the were published in the hearing notice as The witness contrasted this historical Kroger Company (Kroger), a fully Proposals 1, 2 and 3. Proposal 1 is perspective with Sarah Farms, regulated handler under the Pacific applicable to the Pacific Northwest milk recognized as the largest producer- Northwest milk marketing order (Order marketing order. Proposal 3 is handler in Order 131, by citing a trade 124) and Order 131, testified in support applicable to the Arizona-Las Vegas journal article that ranked Sarah Farms of Proposals 1, 2, and 3. The witness milk marketing order. Proposal 2, as the second largest U. S. dairy farm said that changes in marketing applicable to only the Pacific Northwest with 13,000 cows in 1995. conditions in both orders necessitate order, is identical to Proposal 1 but also The witness testified that UDA changes in how the orders define seeks to limit a producer-handler from estimates Sarah Farms’ Class I sales producer-handlers. In the opinion of the distributing fluid milk products to a within the Order 131 marketing area are witness, producer-handlers enjoy a wholesale customer who is served by a about 12 million pounds per month. competitive sales advantage by being fully regulated or partially regulated Because of Sarah Farms’ exemption exempted from the pooling and pricing distributing plant in the same-sized from the pooling and pricing provisions provisions of both orders. The witness package with a similar label during the of the order, the witness estimated a loss explained that producer-handlers have a month. In this regard, Proposal 2 would in revenue to producers who pool milk sales advantage because they have the make the producer-handler definition on the order at about $11,586,589 over flexibility to set their internal raw milk
VerDate Aug<31>2005 16:40 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 E:\FR\FM\14DEP2.SGM 14DEP2 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules 74169
price at a level well below the they are responsible for balancing their 124. Relating past business experiences announced Federal order minimum fluid milk needs and cannot transfer as a fully regulated handler known as Class I price that fully regulated balancing costs to other pooled market Sunshine Dairy, the witness explained handlers must pay. participants. how business was lost to a producer- The Kroger witness also testified that The WUD witness also testified that handler competitor. The witness regulated handlers in Orders 124 and some producer-handlers were becoming attributed this loss of business to the 131 have been forced to respond to much larger than fully regulated fluid competitive sales advantage enjoyed by competitive situations with producer- processors in Orders 124 and 131. The producer-handlers resulting from their handlers in supplying retail grocery witness was of the opinion that large exemption from the pooling and pricing outlets. This was due in part to the producer-handlers were effectively provisions of the order. competitive sales advantage producer- taking greater and greater shares of the The NDA witness testified that as a handlers have in being able to lower Class I market in both orders and caused fully regulated handler known as their price to retailers while still pooled milk to be forced into lower- Sunshine Dairy they had also lost a maintaining an adequate profit margin, valued manufacturing uses. According small customer who, at that time, was the witness explained. The witness said to the witness, these outcomes are buying about 25,000 gallons of milk per that Kroger’s retail outlets could not do having a direct negative impact on week. The witness said that this this competitively without eroding their handlers and producers in both orders customer grew to constitute more than profit margins. Because of these and are generating instability in the 10 percent of its fluid milk sales competitive situations, the witness Federal milk marketing order system. volume. According to the witness, even concluded that producer-handlers The WUD witness asserted that when though they had provided great service exceeding more than 3 million pounds producer-handler sales growth and products, they lost the account per month in Class I sales was a threatened the sales of fully regulated because the customer could save reasonable estimate of when producer- handlers under California’s State-wide hundreds of thousands of dollars a year handlers are in direct competition with regulatory system, the State acted to by procuring milk from a producer- fully regulated handlers and should maintain and protect their pooling and handler. According to the witness, therefore receive the same regulatory pricing system by placing a limit on the Sunshine Dairy lost this account treatment. The same regulatory volumes of sales producer-handlers because the producer-handler was able treatment of producer-handlers as fully could have within the State before to price its milk at a level below the regulated handlers above this threshold becoming fully regulated. The witness minimum Federal order Class I price. would, according to the witness, re- was of the opinion that the Federal The witness also testified that the establish equity among handlers order program also needs to act by producer-handler subsequently lost this competing for Class I sales in these two adopting the proposed amendments to account to a fully regulated handler that marketing areas. similarly limit the sales volume of was of national scope. The Kroger witness was of the producer-handlers. The NDA witness expressed the opinion that the volume of producer- A witness appearing on behalf of the opinion that the goal of the Federal handler route disposition was a key Alliance of Western Milk Producers Order system is to maintain order in the aspect of the disorderly marketing (Alliance), an organization representing market. In this regard, the witness conditions in Orders 124 and 131. California cooperatives, also testified in testified that handlers should not be However, the witness indicated that a support of Proposals 1, 2, and 3. The exempt from the pooling and pricing producer-handler’s processing plant size witness indicated that how the Federal provisions of an order because they own alone was not necessarily an accurate order program deals with the producer- their cows and produce their own milk indicator of processing plant efficiency. handler issue is of interest to California supply when other handlers are not The witness testified that smaller plants dairy farmers because changes in Orders exempted. The witness stressed that can be very competitive. In this regard, 124 and 131, which border California, such an exemption is unfair, noting that the witness said that Kroger’s largest will have a direct impact on the State’s the vast majority of dairy farmers should plant was not its most efficient bottling milk marketing and regulatory program. not receive smaller paychecks for the plant. The witness was of the opinion that same product as producer-handlers A witness appearing on behalf of producer-handlers have a tremendous because they lack a processing plant. Western United Dairymen (WUD), the competitive advantage in the A witness appearing on behalf of largest dairy farmer association in marketplace because they are not Maverick Milk Producers Association California representing approximately subject to minimum pricing and are (Maverick), a cooperative of dairy 1,100 of California’s 2,000 dairy farmers, thereby able to avoid a pooling farmers located in Arizona that markets testified in support of Proposals 1 and obligation to share their Class I revenue its milk in California and Arizona, 3. The witness expressed the opinion with all pooled market participants. The testified in support of Proposal 3. The that a primary reason for the exemption witness asserted that unless some witness testified that all handlers who of producer-handlers from the pricing limitation is put on the route sales market their milk in Order 131 should and pooling provisions of Orders 124 volume of producer-handlers, it may be subject to the pooling and pricing and 131 had been because these entities encourage new producer-handlers to provisions of the order, including were customarily small businesses that enter the market and further erode the producer-handlers. The witness inferred operate self-sufficiently and do not have equitable pricing principles relied on by from Market Administrator statistics a significant impact in the marketplace. the Federal milk order program. that the largest producer-handler in The WUD witness testified that the A witness appearing on behalf of Order 131, Sarah Farms, had cost regulatory exemption for producer- Northwest Dairy Association (NDA) Maverick members in excess of $1.2 handlers has been largely unchanged in testified in support of Proposals 1 and million in revenue since 1999 because the Federal order system for more than 2. The witness provided a business Sarah Farms had not been subject to the 50 years. The witness explained that example demonstrating how producer- pooling and pricing provisions of the there had been no significant handlers enjoy a pricing and marketing order. The witness testified that the demonstration of unfair advantages advantage by being exempt from the estimated loss of revenue to the Order accruing to producer-handlers because pooling and pricing provisions of Order 131 pool was based on an assumption
VerDate Aug<31>2005 16:40 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 E:\FR\FM\14DEP2.SGM 14DEP2 74170 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules
that Sarah Farms produced about 18 are exempt from the pricing and pooling The Shamrock witness concluded that million pounds of milk per month that provisions of Order 131. According to a sales volume limitation of 3 million would have been pooled as Class I milk. the witness, the price of Class I products pounds per month for producer- A former executive and co-owner of offered to wholesale customers by handlers was reasonable because a 3 Vitamilk, an independent handler no producer-handlers can be lower than million pound limit would represent longer operating as a going concern, what Shamrock can offer profitably and about three percent of the total Class I formerly located in Seattle, Washington, that Sarah Farms, a producer-handler of sales in the Order 131 marketing area. appeared on behalf of Dairy Farmers of the order, has been able to raid their In addition, the witness testified that a America (DFA) and testified in support customer base. Furthermore, the witness plant which processes 3 million pounds of Proposals 1 and 2. This DFA witness said that Shamrock’s ability to maintain per month is an indicator of a very testified that in seeking alternative its policy of equitable pricing among its efficient plant operation. From these markets for its milk products, Vitamilk customers, be able to hold its prices views, the witness concluded that a began to compete with producer- fairly constant to maintain customer producer-handler with route disposition handlers for school milk supply loyalty, and avoid bidding against itself in excess of 3 million pounds per month contracts through one of its wholesale for its own customers is undermined is able to fully exploit economies of size distributors. However, their bid because of the producer-handler pricing and should therefore be treated the same attempts were unsuccessful, the witness advantage over fully regulated handlers. as fully regulated handlers. testified, because the school district The witness said Shamrock is unable to The Shamrock Foods witness sought fixed-price contracts for quickly adjust their business practices conceded that there are additional packaged fluid milk which they could to meet such competition because of challenges faced by producer-handlers not supply in competition with a their size and because of different in terms of managing milk supplies and producer-handler. While conceding that regulatory treatment. disposing of surplus milk which fully Vitamilk was inexperienced in bidding The Shamrock witness was of the regulated handlers do not face. The for school-lunch business, the witness opinion that the producer-handler witness also acknowledged that there asserted that the fixed price contract exemption from minimum pricing and are costs associated with managing offered by the producer-handler was pooling provisions threatens the marketing risk, including the disposal of below the combined value of the economic viability of Order 131. For surplus milk production. However, the Federal order Class I price plus example, the witness explained that witness was of the opinion that these costs are more than covered by the Vitamilk’s cost allocations to marketing, major customers such as Safeway, processing, distribution, overhead, competitive advantages that exist by Kroger, Wal-Mart and strong distributor profit, and risk. being exempt from the pooling and independents like Costco, Bashas and This DFA witness explained that pricing provisions of the order. One Sam’s Club buy milk on a wholesale Vitamilk tried to retain other customers example the witness provided was that basis to resell to retail consumers. The by lowering their prices in an effort to a producer-handler can balance its witness noted that these customers seek keep and gain sales volume even though supply by selling fluid milk products the opportunity to buy milk at prices the price represented no contribution to into an unregulated area such as similar to those offered by the producer- covering their indirect costs. The California. witness testified that prices offered by a handler—at prices below the Federal A witness appearing on behalf of local producer-handler were 11 to 12 order Class I price. The witness testified Shamrock Farms, which is affiliated cents per gallon below Vitamilk’s best that if Proposal 3 or some other with Shamrock Foods, testified in net price to distributors. According to restriction limiting route disposition support of Proposal 3. Shamrock Farms the witness, even though Vitamilk’s volume is not adopted, either there will milks 6,500 cows and is located in customers reported satisfaction with the have to be an expansion of producer- Maricopa County, Arizona. The witness company’s service and other non-price handler supplies by expanding their testified that Shamrock Farms has attributes, the producer-handler’s ability farms or existing fully regulated always been a pooled producer on Order to provide fluid milk products at a handlers will need to reorganize their 131 and its predecessor order. The lower cost resulted in the loss of business practices to develop their own- witness asserted that Sarah Farms customer accounts. The witness asserted farm production and become a operates dairy farms with approximately that the loss of accounts was caused producer-handler to remain 10,000 to 12,000 milking cows. While largely by the producer-handler’s competitive. the witness conceded the lack of hard inability to price Class I products below The Shamrock witness offered data to confirm this assertion, the what a fully regulated Class I handler testimony regarding market research witness arrived at this estimate of farm could price its products. In addition, the they routinely conduct through on-going size by counting the number of milk witness testified that in 2003 Vitamilk surveys of retail grocery stores in Order tankers per day that delivered to the even attempted to sell its Class I 131. The witness explained that Sarah Farms’ plant in Yuma, Arizona. products at prices below breakeven and Shamrock salespersons do this to gather A consultant witness appearing on was still unable to find a price whereby market intelligence on their behalf of Dairy Farmers of America it could successfully recapture business competitors. According to the witness, (DFA), proponents of Proposals 1, 2, and lost to a producer-handler. Shamrock’s marketing research 3, had prepared a study that analyzed A witness appearing on behalf of indicated that prices for bottled fluid and compared the value of raw milk to Shamrock Foods Company (Shamrock), milk offered by Sarah Farms was a large producer-handler with the cost a fully regulated handler located in typically 6 to 8 cents a gallon below of milk to fully regulated handlers and Arizona and Colorado, testified in their price—equating to about 48 to 64 described the economic impact of support of Proposal 3. The witness cents on a per cwt basis. The witness competition between these two business maintained that Shamrock is at a testified that their market research also entities. The study conducted by this competitive disadvantage with revealed that Sarah Farms’ production witness was based on a proprietary producer-handlers because Shamrock is and route disposition had grown from database of 150 milk processing plants required to pay the Federal order Class approximately 8 million pounds in 1998 owned by businesses for which this I price for milk while producer-handlers to nearly 17.2 million pounds by 2003. witness’ company performed accounting
VerDate Aug<31>2005 16:40 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 E:\FR\FM\14DEP2.SGM 14DEP2 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules 74171
and other consulting services. subject to the pooling and pricing witness indicated no direct knowledge According to the witness, 20 plants provisions of an order compete for route of the costs of labor employed by were selected as being representative of sales, the producer-handler will always producer-handlers in Orders 124 or 131. the costs for 6 different size classes of have a price advantage which could be The witness did conclude that use of bottling plants. The witness explained as large as the difference between the non-union labor by producer-handlers that the plant cost data was adjusted by Federal order Class I price and the would provide them with a clear cost applying regional consumer price index order’s blend price. The witness also advantage over similar or larger size (CPI) factors as published by the U.S. said that the examination across all fully regulated handlers that typically Department of Labor. According to the types of retail outlets reveals that a employed unionized labor. witness, this method of adjusting data, producer-handler will always have a The DFA consultant witness was of the selection of relevant plants, the price advantage in competing with fully the professional opinion that current analytic methods employed in regulated handlers. Federal order regulations provide conducting the study, and the The consultant witness for DFA producer-handlers with a significant interpretation of the study results were provided a comparative cost analysis of cost advantage that cannot be matched all based on Generally Accepted servicing a warehouse store account by by fully regulated handlers that are Accounting Principles (GAAP). a fully regulated fluid milk plant and a subject to pooling and pricing The DFA consultant witness large producer-handler using actual regulations. If the proposal to place a 3 acknowledged that while the study of retail prices for 2-percent milk in million pound per month volume limit plant costs was based on actual plant Phoenix, Arizona, during January on producer-handlers route disposition data acquired from fully regulated through June 2003. The witness testified is adopted, it will eliminate what the handlers, the study did not include data that based on the study’s data and witness described as an unfair economic from plants located in either the Pacific assumptions, a large producer-handler advantage for large producer-handlers Northwest or the Arizona-Las Vegas can service such an account and return while serving to protect a more modest marketing areas. The witness also a substantial above-market premium pricing advantage for small producer- acknowledged that the data for the over the producer blend price. However, handlers. smallest plants in the study were taken the study reveals that the handler In additional testimony, the from producer-handler plants located in paying the Class I price for its raw milk consultant witness for DFA western Pennsylvania, an area not supply will have little or no margin, the acknowledged the difficulty in regulated by a Federal milk marketing witness contrasted. The producer- reconciling the 150,000 pound per order. The witness also explained that handler’s raw milk cost advantage, the month route disposition limit the study’s actual data could not be witness said, allows it to service these established for exempt plants with the offered for inspection and examination stores profitably at a price that cannot proposed 3 million pound per month in this proceeding because individual be matched by a fully regulated handler. limit for producer-handlers. According plant cost and related information were The witness concluded that producer- to the witness, the difference in these proprietary, adding that this also handlers are in a position to acquire any two limits are for two distinctly explained why the data used in the account they choose to service by different entities and can be rationalized study were averaged. The witness offering a price which the regulated by the Department by acknowledging a further testified that the selection of plant cannot meet. value commensurate with milk appropriate plants for inclusion in the In other testimony, the DFA production risks incurred by a study from all of the plants in the consultant witness provided a pro-forma producer-handler that are not incurred witness’ proprietary database was based income statement for a regulated by handlers who buy milk from dairy on professional judgment and handler in Order 124 developed using farmers. A handler who buys milk from experience. certain assumptions about costs, prices dairy farmers does not incur the The DFA consultant witness and income. The witness demonstrated production risks associated with explained that the analysis of the data through an analysis of the pro-forma operating a farm enterprise, the witness derived for the Northwest or the income statement that a large producer- said. In this regard, the witness Arizona-Las Vegas marketing areas handler would be able to successfully acknowledged that the study focused suggests that as plant volumes increase compete with fully regulated handlers if only on plant processing costs and not per unit processing costs decrease and regulated. The witness concluded from on the cost of producing milk in the that the highest per unit processing this analysis that a successful producer- farm enterprise function of a producer- costs are found at the smallest plant handler would be economically viable handler. sizes. At large plant sizes, the witness even if it were subject to the order’s A witness representing Dean Foods contrasted, a processor, regardless of pooling and pricing provisions. (Dean) testified in support of proposals regulatory status, can increase milk The DFA consultant witness testified establishing a volume limit on processing volume at a nominal that the cost data used in the study’s producer-handler route disposition. The additional per unit cost. pro-forma income statement example witness testified that while Dean Foods Relating an additional example of the was generated using statistical methods does not operate bottling plants in either study’s findings, the DFA consultant based on one month’s representative Orders 124 or 131, they do operate fluid witness testified that, other things being data for similar sized regulated handlers milk plants in many States regulated by equal, a hypothetical plant bottling 3 and assumed that producer-handlers Federal milk marketing orders and in million pounds of milk per month in 2- and regulated handlers employed union areas not subject to Federal milk order gallon pack containers would have per labor and operated within collective regulation. The witness testified that unit processing costs that were bargaining agreements. The witness where Dean faces competition from significantly higher than a plant testified that based on own business plants that do not pay regulated producing 20 million pounds of milk experience, the characterization of labor minimum prices, Dean is affected. The per month in the same size container costs would be representative of large witness stressed that milk bottling packs. In addition, the witness testified fully regulated handler operations in the plants need to have equitable raw milk that the study suggests that where a Pacific Northwest or the Arizona-Las costs for the Federal milk order system large producer-handler and a handler Vegas marketing areas. In contrast, the to remain valid.
VerDate Aug<31>2005 16:40 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 E:\FR\FM\14DEP2.SGM 14DEP2 74172 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules
The Dean witness said that the economic concept of ‘‘transfer that a handler had in a marketing area. competitiveness and efficiency are not pricing,’’ the maximum price that a Below 3 million pounds per month necessarily a function of processing producer-handler ‘‘pays’’ for route disposition, the witness said, the plant size. On this theme, the witness transferring milk from its farm impact of an individual handler is provided an example where a small, production enterprise to its processing negligible and therefore rationalizes fully regulated milk bottler in Bryan, enterprise can be estimated even though why smaller handlers are exempt from Texas, successfully bid to supply a the producer-handler does not actually fluid milk promotion assessments. Texas state prison against a much larger sell raw milk to itself. According to the A witness appearing on behalf of DFA Dean plant. The witness testified that witness, transfer pricing in the context testified in support of Proposals 1, 2, the Bryan plant had processing capacity of the producer-handler issue, predicts and 3. The witness viewed the of less than 3 million pounds per month that the price of milk assigned to milk exemption of producer-handlers from but was more efficient than the Dean from the producer-handler farm the pooling and pricing provisions of plant and that because of its enterprise essentially becomes the price Federal orders as a loophole that management structure, it could adjust at which milk could be sold to a threatens the economic viability of the more quickly to changing market regulated handler—the Federal order Federal milk order system and the conditions. blend price. Accordingly, the witness economic well-being of pooled A witness appearing on behalf of the asserted that a producer-handler’s producers. This witness, like the NMPF National Milk Producers Federation advantage in raw milk procurement for witness, testified that a growing interest (NMPF) testified in support of Proposals processing, as compared to fully by large dairy farmers in becoming 1 and 3. The witness was of the opinion regulated handlers, would be the producer-handlers is a major factor in that productivity increases resulting difference between the Federal order DFA’s interest in seeking to amend the from technological advances and the Class I price and the order’s blend price. producer-handler definition in the growth of dairy farms enable large The NMPF witness testified that their Pacific Northwest or the Arizona-Las producers to capture sufficient analysis reinforces the findings of the Vegas orders. The witness testified that economies of scale in processing own- consultant witness for DFA regarding the exemption from the pooling and farm milk and thereby compete the magnitude of the pricing advantage pricing provisions of these orders effectively with established, fully producers-handlers enjoy over handlers provides producer-handlers with a regulated handlers. In light of this, the who are subject to the pooling and competitive advantage over fully witness testified that such producers pricing provisions of a Federal order. regulated handlers by effectively can disrupt the orderly marketing of While noting that the DFA consultant permitting producer-handlers to milk in a market, adding that dairy witness’ study used aggregated data that purchase milk at an internal price at or farmers ‘‘turned producer-handlers’’ does result in a significant loss of below the Federal order blend price could grow across a market causing information for analytical purposes, the while fully regulated handlers must pay even greater disruption to orderly witness stressed that even with this the usually higher Class I price for milk. marketing in other Federal milk limitation it nevertheless remains the According to this DFA witness, the marketing orders. best data available to rely upon. difference between the Class I price and The witness asserted that NMPF’s The NMPF witness was of the opinion the Federal order blend price represents own analysis, and a plant study by that the producer-handler exemption a significant windfall generated solely Cornell University revealed that larger from an order’s pooling and pricing by the regulatory exemptions accorded fluid milk bottling plants have exhibited provisions also creates inequity among to producer-handlers. decreasing processing costs on a per producers because it reduces the The DFA witness summarized that the gallon basis as the size of processing amount of milk pooled as a Class I use proposed 3 million pound per month facilities increase. The witness of milk, which in turn, lowers the total limitation on route disposition is based explained that as the scale of processing revenue of the marketwide pool to be on four considerations. According to the plants increase, average processing costs shared among pooled producers. witness, the proposed limit is: (1) tend to remain fairly constant, with the According to the witness, this threatens Consistent with the minimum volume of lowest per unit cost levels being orderly marketing. The witness related milk sales that triggers the fluid milk exhibited over a relatively wide range of that farms with over 3 million pounds promotion assessment for handlers; (2) processing capacities. The witness of monthly production represent about the level at which producer-handlers testified that the lower per unit 15 percent of the U.S. milk supply and achieve competitive equity with fully processing cost advantages of larger may represent some 40 percent of U.S. regulated handlers in terms of plant plant sizes tend to be greatest for very fluid milk sales. According to the processing efficiency; (3) the level of large processing plants rather than witness, the steadily increasing number route disposition that has a significant among smaller plants. The witness said of farms with this magnitude of monthly impact on the pool value of milk; and that significant cost and other milk production suggests that large (4) the level of route disposition that has competitive advantages attributed to producers could exploit the producer- a significant impact on the order’s economies of scale in fluid milk handler provision and thus further pooled producers and fully regulated processing become evident at about the erode equity to both producers and handlers. The witness indicated that if 3-million pound per month processing handlers across the entire Federal milk a producer-handler’s volume is level. marketing order system. sufficient to reduce a pool’s value by a According to the NMPF witness, the The NMPF witness stated that the 3 penny (1 cent) per hundredweight it is exemption of producer-handlers from million pound per month route significant and is of sufficient the pooling and pricing provisions of disposition limit proposed for producer- magnitude to warrant ending producer- Orders 124 and 131 allows producer- handlers as part of Proposals 1 and 3 is handler exemption from the pooling and handlers to effectively pay the also consistent with the promotion pricing provisions of the orders. The equivalent of the blend price for milk at assessment exemption of the Fluid Milk witness also concluded from the study their plants, a price lower than the Class Promotion Program. According to the conducted by the consultant witness for I price that fully regulated competitors witness, the promotion exemption limit DFA that when a producer-handler pay. The witness testified that by using set by Congress was based on the impact reaches a 3 million pound per month
VerDate Aug<31>2005 16:40 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 E:\FR\FM\14DEP2.SGM 14DEP2 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules 74173
distribution level, not only does the averaged some $317,000 per month, or explained that a large producer-handler producer-handler reach similar plant the equivalent of 12.5 cents per cwt. experiencing increasing returns to its processing cost efficiencies but it is also The DFA witness testified that the operation could continue to grow in size of sufficient size to service a producer-handler price advantage over until it controlled a substantial share of considerable number of retail outlets on fully regulated handlers provides a the Class I market. The witness testified a competitive par with fully regulated powerful incentive for customers to that a producer-handler with route handlers. According to the witness, purchase milk from producer-handlers disposition of 3 million pounds per continuing the exemption from an rather than fully regulated handlers. The month could supply a small regional order’s pooling and pricing provisions witness testified that producer-handlers grocery chain but likely would not be beyond the 3 million pound sales have as much as a 15-cent per gallon able to diversify its marketing risk with volume level causes serious market advantage over fully regulated handlers sales to other customers. disruptions. in Order 131. According to the witness, According to the DFA witness, if The DFA witness also testified that the advantage is based on the difference producer-handlers are allowed to gain the exemption of producer-handlers between the Order 131 Class I price and Class I sales without restraint, fully from the pooling and pricing provisions the order’s blend price which ranged regulated handlers and pooled of the orders is encouraging large from 15.9 to as much as 18.3 cents per producers would likely come to view producers to consider becoming gallon during the period of January 2000 Federal milk marketing orders as producer-handlers in both Orders 124 through July 2003. ineffective. According to the witness, and 131 and in other Federal order The DFA witness related that under these conditions producers marketing areas. As an example, the wholesale milk buyers base possibly would seek to terminate the witness testified that some retail outlets procurement decisions on tenths and orders. The DFA witness characterized now seek packaged fluid milk supplies even hundredths of a cent differences in this potential scenario as a form of from producer-handlers in an effort to the price per gallon, indicating that market disorder. obtain lower cost milk supplies. The price differences of more than 15 cents The DFA witness said that rising witness was of the opinion that without per gallon overwhelmingly favors the interest in the producer-handler option a limit on route disposition volume, producer-handler in head-to-head price by large dairy farmers challenges the producer-handlers will displace pooled competition. The witness testified that long-term viability of the entire Federal producers and fully regulated handlers lower-priced packaged fluid milk milk order system. The witness did as the dominant suppliers of fluid milk products from producer-handlers is acknowledge that no new producer- not only in the Pacific Northwest and used by wholesale buyers of milk as handler operations have entered either Arizona-Las Vegas marketing areas, but leverage in daily price negotiations with the Order 124 or 131 marketing areas in ultimately throughout all other Federal fully regulated handlers and is a form of recent years. The witness also milk marketing areas. The witness disorderly marketing. Such market acknowledged that market information cautioned that the potential for the disorder, the witness said, causes all kept by the Department shows that the growth of producer-handlers gives rise processors to receive lower prices for volume of sales by producer-handlers to considering lowering Class I milk their packaged fluid milk products. had declined nationally from 1.47 prices as a means to counter the The DFA witness also expressed the billion pounds per year to 1.16 billion competitive price advantage that opinion that the plant costs faced by a pounds per year between 1988 and producer-handlers are afforded by large producer-handler are similar to 1998. regulatory exemption from pooling and those faced by fully regulated handlers The DFA witness offered pricing provisions. even though the witness had no direct modifications to Proposal 1 that would The DFA witness testified that the knowledge of individual producer- also be applicable to Proposal 3. current producer-handler definition handler businesses in Order 124 or 131. Basically, in addition to limiting a creates market disorder because it While agreeing with the characterization producer-handlers route disposition to disrupts the flow of Class I milk from that producer-handlers are a single and less than 3 million pounds per month, pooled producers to regulated handlers. seamless milk production and the modification made extensive In addition, the witness testified that processing enterprise, the witness changes in terminology as to how pooled producers effectively subsidize asserted that higher balancing and producer-handlers are defined. The the balancing costs of producer- operational costs attributable to intent of these modifications, the handlers. In the opinion of the witness, producer-handler operations are not witness said, is to clarify that the these outcomes are destabilizing and are significantly different than those burden of proof and the responsibility producing disorder in both the Pacific associated with fully regulated handlers for providing all the details to Northwest and Arizona-Las Vegas of the same processing plant size. The substantiate proof to the Market marketing areas. In further explanation witness further asserted that the Administrator for producer-handler of these points, the witness expressed producer-handler price advantage status rests with the producer-handler. concern about the loss of Class I revenue combined with the ability to increase The DFA witness testified that Market that would otherwise accrue to pooled production volume at negligible Administrators will continue to be producers. As an example, relying on additional costs per unit exaggerates the relied upon by Federal orders to use Market Administrator data in making advantage to a point where a producer- their discretion in determining professional inferences, the witness handler can increase market share producer-handler status. According to testified that the largest producer- nearly at will. the witness, the proposed modifications handler in the Order 131 marketing Through a series of examples for the producer-handler definitions are area, Sarah Farms, had monthly route depicting scenarios of different plant expected to provide flexibility for a disposition in the range of 12.1 to 19.1 sizes, the DFA witness testified that Market Administrator to investigate and million pounds. According to the producer-handlers with 80 and 90 audit proposed producer-handler witness, the value of the sales revenue percent Class I utilization could operate operations and to ensure qualification lost to the Order 131 pool by not profitably in spite of higher balancing requirements are met. In addition, the subjecting Sarah Farms to the pooling costs associated with operating as a witness said that if Proposals 1 and 3 and pricing provisions of the order producer-handler. The witness are adopted, it was reasonable that
VerDate Aug<31>2005 16:40 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 E:\FR\FM\14DEP2.SGM 14DEP2 74174 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules
existing producer-handlers in Orders and Northwest Independent Milk According to the NDA witness, 124 and 131 be given a period of time Producers, hereinafter collectively producer-handlers use pooled producers to adjust their operations to the referred to as NDA, in support of and pooled handlers to balance their proposed producer-handler Proposals 1, 2, and 3. The witness milk supply. The witness testified that requirements. testified that the producer-handler ‘‘balancing off of the pool’’ involves Another witness appearing on behalf exemption from the pooling and pricing producer-handlers selling milk to retail of DFA testified in support of Proposals provisions of Order 124 provides an outlets until their milk supply is 1 and 3 on the basis that small and unfair competitive advantage to exhausted with retail outlets buying average-sized dairy farmers, including producer-handlers at the expense of additional milk supplies from fully producer-handlers with milk production pooled producers and fully regulated regulated handlers to meet the shortfall. below 3 million pounds of milk per handlers. According to the witness, the According to the witness, the fully month, have higher production costs historical justifications for exempting regulated handler is not only the than larger dairy farms. The witness producer-handlers because such entities residual milk supplier but also said that very large dairy farms tend to are small operators without significant effectively has the burden of balancing have management expertise and market impact on prices and they do not the Class I needs of the market not business sophistication, access to provide significant competition with fulfilled by the producer-handler. capital, access to veterinary services, fully regulated handlers are no longer Consequently, these burdens are and economies of size and scale that warranted. The witness testified that transferred to the market’s pooled tend to lower their per unit costs of milk producer-handlers in Order 124 are now producers by the regulated handlers. production. This DFA witness testified a significant force in the marketing area According to the witness, this tactic that a dairy farm would need and are likely to continue to increase in allows a producer-handler to maximize approximately 1,800 cows to achieve a size and market significance. The its revenue by obtaining the highest 3 million pound per month level of witness noted that Congress had price available while essentially production available for bottling and effectively supported the Department’s avoiding any costs of surplus milk route disposition. long-standing producer-handler disposal in lower-valued uses. This The DFA witness did not know if 3 exemption from pooling and pricing advantage is amplified, the witness said, million pounds of route disposition per provisions of Federal orders since the when a producer-handler is able to month was the precise number above 1960’s. The witness stated that only a balance its milk production and sales which producer-handlers should few large producer-handlers currently into areas not regulated by a Federal become subject to the pricing and operate in the Order 124 marketing area. milk marketing order. pooling provisions of Orders 124 and The witness indicated agreement with 131. Similarly, the witness did not other proponent testimony that a The NDA witness testified that the know what economic impact adopting producer-handler’s raw milk cost was proposed 3 million pound per month Proposals 1 and 3 would have on the Federal order blend price. route disposition limit for producer- producer-handlers in the respective According to the witness, the blend handlers is also based on political marketing areas. The witness did relate price represents an alternative market considerations and on an intuitive having knowledge of interest being price available to a producer-handler. notion. The witness explained that expressed by dairy farmers who had Accordingly, the witness asserted, the processing plants smaller than 3 million monthly production in excess of 3 only reason a producer-handler would pounds per month are exempted by million pounds per month seeking seek to continue an exemption from an Congress from the 20-cent per possible producer-handler status. order’s pooling and pricing provisions hundredweight processor-funded fluid A witness representing Northwest would be to maintain a competitive milk promotion program. As a result, Dairy Association (NDA) testified that advantage. The witness related that from the witness related that the proponents they market the milk of 603 milk a producer viewpoint the competitive are of the opinion that this level would producers traditionally associated with advantage is the ability to retain the also prove to be acceptable in the Order 124. The witness said that NDA entire Class I value and from the context of its application to handlers also is the parent company of WestFarm handler viewpoint the competitive regulated under the terms of a milk Foods, an operator of three distributing advantage is not accounting to the pool marketing order. In addition, the plants located in Seattle, Washington, at the order’s Class I price. The witness witness testified that NDA’s subsidiary’s and Portland and Medford, Oregon. The estimated the producer-handler (WestFarm Foods) own study of witness added that NDA also operates advantage over the period of January processing plant size and costs suggests four milk manufacturing plants in the 2000 through October 2003 to be the that the DFA plant size and cost study Order 124 marketing area. The witness difference between the Order 124 Class may actually understate when plant testified that while NDA does not have I and blend prices which averaged about processing cost efficiencies are gained. a direct connection to Order 131, it 15.4 cents per gallon or $1.79 per cwt. According to the witness, NDA’s study indirectly shares similar concerns with The NDA witness asserted that during suggests that this occurs at about the the proponents of Proposal 3 in that a period of rapidly rising milk prices, 2.5-million pound per month level they share a border with California and producer-handlers also have a indicating that plants of this size and share similar concerns regarding the competitive advantage by being able to larger lower their processing costs by Federal and State milk order systems. In enter into long-term fixed price about 10 cents per gallon. The witness addition, the witness noted that Order contracts in a way fully regulated related that a plant processing 3 million 124 has the second largest volume of handlers cannot. In the opinion of the pounds per month would have a cost producer-handler milk marketings of witness, by offering relatively long-term savings of approximately 11.4 cents per any Federal order—second only to fixed price contracts, a producer- gallon. Accordingly, the witness Order 131. handler may be able to attract and retain concluded that producer-handler plants The NDA witness was also appearing customers using a pricing policy that dispose of Class I milk products in on behalf of Tillamook County unavailable to fully regulated handlers. excess of 3 million pounds per month Creamery Association, Farmers The witness stated that this represents should therefore become subject to the Cooperative Creamery, Inland Dairy, a form of disorderly marketing. pooling and pricing provisions of Order
VerDate Aug<31>2005 16:40 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 E:\FR\FM\14DEP2.SGM 14DEP2 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules 74175
124. The witness said this would ensure could be displaced by producer- changed. These changes were made that all similar handlers would have the handlers. without compensation to those same raw milk costs. The NDA witness testified that the operators who engaged in the practice of The NDA witness also testified in rise of warehouse and very high volume double dipping. support of Proposal 2. The witness ‘‘super stores’’ also has contributed to The NDA witness testified that viewed this as preventing producer- the structural changes in the dairy opponents to placing a route disposition handlers from expanding the benefit of industry with packaged fluid milk limit on producer-handlers incorrectly their regulatory status by balancing their products being supplied as cheaply as argue that as vertically integrated supply on the market’s pooled possible. According to the witness, enterprises, producer-handlers face producers and at the same time tending ‘‘super stores’’ and warehouse stores are more risks and higher costs than do to ensure that fully regulated handlers able to exert market power in obtaining pooled producers and fully regulated would not become residual suppliers of the lowest market prices available for handlers. The witness asserted that the fluid milk products to the market. fluid milk products at the wholesale Federal order program does not The NDA witness speculated that the level. incorporate a value for risk in its investment required for a processing The NDA witness testified that there regulatory framework. In addition, the plant to produce only milk packaged in are approximately 800 pooled producers witness noted that some producer- gallons is relatively small when on the Pacific Northwest order. handlers are continuing to stay in According to the witness, all of these compared to a very large dairy farmer’s business even as the total number of producers are small businesses who existing investment in land, livestock, producer-handlers has declined in the would receive a benefit in the range of and equipment. The witness was of the last several years in the Order 124 2.4—4 cents per hundredweight for opinion that the potentially higher marketing area. The witness related their milk if Proposal 1 were adopted. returns on the additional investment for historical data from Market An increase in producer income would a processing plant producing only Administrator sources indicating that 10 result, the witness said, from the sharing gallon containers of packaged fluid milk of the 11 producer-handlers which have of Class I revenue by pooling the largest gone out of business in recent years in would be attractive to very large dairy producer-handlers in the marketing area the Order 124 marketing area had farmers such that it would encourage who individually have route disposition monthly route disposition of less than 3 large producers to become producer- in excess of 3 million pounds per million pounds. handlers. According to the witness, month. According to the witness, the In other testimony, the NDA witness such a scenario threatens the economic additional total Class I revenue that conceded that no handler is exempt attractiveness of the Federal order would accrue to the Order 124 pool from, or subject to, Federal milk order program and the prevailing structure of would be in the range of $2.8—$4.0 regulations on the basis of plant the dairy industry. million per month. operating costs. In addition, the witness While the NDA witness testified only The NDA witness addressed concerns testified that a Federal milk order which to conditions affecting Order 124, the regarding instances where handlers and had many producer-handlers supplying witness did indicate fluid milk dairy farmers have made investments 10 percent of the Class I market would marketing has been undergoing based on the provisions of a Federal not represent a disruptive influence or considerable structural changes for milk order. In rationalizing concerns create market disorder if the market many years that are national in scope. about the impact a change in regulation share of the producer-handlers was The structural changes taking place may have on business decisions using stable (did not grow.) Also, the witness throughout the dairy industry are most current order provisions, the witness indicated that if the market share markedly exhibited by consolidation in noted several past Federal order supplied by producer-handlers was the production, processing, marketing, decisions where regulatory changes had stable but the number of producer- and distribution of dairy products, the an impact on persons that had built and handlers supplying that market witness said. As an example, the designed their business practices on decreased, the impact of producer- witness illustrated that Vitamilk’s existing order provisions. For example, handlers on the marketing conditions in decision to go out of business was a the witness noted that the elimination of the area would not be considered direct result of the acquisition of its two the ‘‘bulk tank handler’’ provision in the disorderly. largest grocery store customers by Western milk marketing order by a The NDA witness testified that a route Safeway and Kroger. The witness noted tentative final decision would have disposition volume below 3 million that Safeway and Kroger are both effectively reduced the value that pounds per month does not tend to lend national companies that also process proprietary bulk tank handlers could a price or cost advantage to producer- milk as fully regulated handlers for their assign to their facilities. In addition, the handlers. The witness said that the own stores and other customers. The witness related how the implementation impact of a producer-handler on a witness was of the opinion that Vitamilk of Federal milk order reform eliminated marketing area’s blend price is directly could not find other profitable business individual handler pools and reduced related to the size of the marketing area. because it was unable to compete the value of those investments. In this regard, the witness related that effectively with existing producer- According to the witness, these changes a 3 million pound milk bottling plant in handlers and other competitors in the occurred as a matter of course with the the Upper Midwest Federal order, for Pacific Northwest after losing a operators of those facilities absorbing example, would have a deminimus significant portion of its business by the the actual costs of the regulatory impact on that order’s blend price but Safeway and Kroger acquisition of their changes. The witness also testified that nevertheless maintained that a 3 million customers. The witness was of the the elimination of ‘‘double dipping’’ in pound route disposition limit was a opinion that as consolidation continues the Upper Midwest, Central, Mideast, reasonable trigger to cause producer- within the dairy industry, a Class I Northeast, Pacific Northwest, and handlers to become subject to the handler may find a declining number of Western orders had negative impacts on order’s pooling and pricing provisions. marketing alternatives and thus give rise the investments made by operators who The witness offered that an appropriate to market disorder. The witness was of were able to take advantage of those limit could be more than 3 million the opinion that fully regulated handlers regulatory features before they were pounds, possibly as high as 4-million
VerDate Aug<31>2005 16:40 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 E:\FR\FM\14DEP2.SGM 14DEP2 74176 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules
pounds, while still reasonably meeting on the monthly changes in the order’s selective exemption from regulation the overall objectives sought in Proposal Class I price. The witness further rather than for business reasons. 1. The witness cautioned that setting a asserted that producer-handlers are able According to the Dean witness, only limit that is too low—for example at to displace the Class I use of milk on the a few types of firms have been 500,000 pounds per month—would Order 124 pool by selling fluid milk historically exempted from the pooling essentially close the marketing and products into Alaska, an area not subject and pricing provisions of Federal orders regulatory option of market entry as a to order regulation, at prices below the which include government and producer-handler. Class I price. According to the witness, university facilities, small processors, In agreeing with other testimony, a 3 when a producer-handler displaces and producer-handlers—characterizing million pound limit was consistent with potential fully regulated handler sales in the producer-handler exemption as one what the NDA witness characterized as Alaska, the fully regulated handler’s of administrative convenience. The a political settlement reached with the milk is forced to a lower use value witness was of the opinion that Department in determining when which lowers the blend price paid to producer-handlers should only be handlers would become subject to a pooled producers. The witness asserted exempt from the pooling and pricing fluid milk promotion program that if producer-handler competition provisions of Federal orders when the assessment. According to the witness, was absent in Alaska, WestFarm Foods effect of providing a regulatory important consideration was given to would be the dominant supplier to exemption has a negligible effect on the threat of handlers with route customers in that market. While noting market participants. In this regard, the disposition of less than 3 million that producer-handlers continue to witness was of the opinion that a penny pounds per month being able to band provide significant competition to or more impact on the order’s blend together and vote to terminate the fluid WestFarm’s bottling operations, the price was significant. Relating this milk promotion program. The witness witness testified that none of the opinion to conditions in Order 131, the indicated that a 3 million pound level producer-handlers are selling fluid milk witness determined that the order’s is also a coincidentally useful volume as products below the Federal order blend price would be affected by a it supports the DFA’s consultant minimum Class I price. penny when the route distribution of a witness’ plant size and cost study and The WestFarm Foods witness testified producer-handler was at the 950,000 analysis. that WestFarm Foods must meet a pound per month level. A witness appearing on behalf of The Dean witness testified that a dairy specified level of Class I sales to qualify NDA’s WestFarm Foods testified in farmer operating as a producer-handler all of its milk receipts for pooling on support of Proposals 1 and 2. The can receive a higher price than the Order 124. According to the witness, witness provided data comparing the alternative of an order’s blend price, producer-handlers in the marketing area variable costs of WestFarm’s Medford, depending on the internal transfer price. Oregon, bottling plant that processes 12 have become very aggressive sellers of The witness explained that a processor million pounds of milk per month with milk and have increased their sales operating as a producer-handler a hypothetical plant processing less volume to the point where fully essentially has the ability to ‘‘acquire’’ than 3 million pounds per month. The regulated Class I handlers are having milk at a transfer price as the milk witness testified that the results of this difficulty qualifying all of their moves from the farm enterprise to the comparison were similar to the results producer milk receipts for pooling on processing enterprise. In this regard, the of the DFA’s study. The witness testified the order. The witness attributed such witness related that such a transfer price that WestFarm Food’s study similarly pooling difficulties to the lack of growth can be represented by the difference concluded that as plant sizes increase, in the Class I market combined with between the order’s blend price and the per unit processing costs tend to growing producer-handler route Class I price. However, the witness decrease. disposition. In addition, the witness conceded that if the producer-handler is The NDA witness testified that testified that NDA charges its customers viewed as a single seamless entity, the WestFarm Foods has lost significant an over-order premium of between 30 application of transfer pricing may sales of packaged fluid milk products to and 45 cents per cwt. reveal less information than would an grocery stores and school milk contracts A witness appearing on behalf of evaluation of all costs and revenues in to producer-handler competitors. The Dean Foods offered testimony in determining the extent of the witness reported that WestFarm Foods support of Proposals 1, 2, and 3. The competitive advantage that a producer- competed with one producer-handler in witness asserted that exemptions to handler may enjoy by regulatory the Pacific Northwest for shelf space in pooling and pricing provisions of exemption from the pricing and pooling 11 different retail outlets. According to Federal milk marketing orders should be provisions of an order. the witness, the total volume of these few. According to the witness, the basic The Dean witness also noted that sales was approximately 8 million underlying objectives of an order are to using an internal transfer price may be pounds per year. The witness indicated efficiently assure an adequate supply of of limited value as it does not involve that the producer-handler was able to milk for fluid uses and to enhance price discovery achieved through arms- offer longer term, fixed price contracts returns to dairy farmers. The witness length transactions. However, the to retailers and thereby remove price said that the Federal milk orders witness was of the strong opinion that volatility. The witness said that fully achieve these objectives by: using a regardless of a measure of operating regulated handlers, like WestFarm classified pricing plan setting minimum performance or efficiency, a producer- Foods, do not have this ability because class prices, utilizing the marketwide handler would always have a they must pay the Federal order Class I pooling of the classified values of milk competitive advantage over a fully price which fluctuates every month. to return a blend price to dairy farmers regulated handler. The witness asserted The WestFarm Foods witness asserted and verifying handler reporting through that the competitive advantage which that producer-handlers in Order 124 audits. The witness stressed that absent accrues to the producer-handler is the offer prices for fluid milk products that uniform and universal application of an difference between the order’s Class I range from 15 to 45 cents per gallon order to market participants, some price and the blend price. In this regard cheaper than milk offered by fully market participants will reap the witness was of the opinion that regulated Class I handlers, depending competitive advantages due solely to producer-handlers would always be able
VerDate Aug<31>2005 16:40 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 E:\FR\FM\14DEP2.SGM 14DEP2 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules 74177
to compete more effectively than fully marketing alternatives than through a Milk was located in Waco, Texas, and regulated handlers because of their cooperative. In the opinion of the had route disposition across a large part exemption from the pooling and pricing witness, preserving the existing of Texas that is now part of the provisions of an order. producer-handler definition provides Southwest milk marketing area. The witness offered an opinion as to dairy farmers with an alternative According to the witness, Pure Milk was why there has not been significant mechanism to market their milk directly the combination of a profitable dairy market entry of new producer-handlers and retain all of the revenue earned. In farm whose milk was pooled on the if being exempt from the pricing and this regard, the witness indicated that Texas order and a profitable fluid pooling provisions of an order confers ARI could see no reason why the route distributing and manufacturing plant significant competitive advantages over disposition of a producer-handler that produced an array of various fluid fully regulated handlers. In this regard, should be limited to 3 million pounds milk products, ice cream and ice cream the witness offered that resources do not per month while regulated handlers mixes. The witness was of the opinion move easily between different have no limitations on route that limiting route disposition would enterprises within the dairy industry disposition. render the option of becoming a because of cost and regulatory risk. The A witness appearing on behalf of producer-handler an unattractive witness also offered the opinion that if Braum’s Dairy (Braum’s), a producer- business option under any large companies, such as Kroger, handler located in Tuttle, Oklahoma, circumstances. The witness stressed that attempted to become a producer- testified in opposition to Proposals 1 without the ability to grow or otherwise handler, legislative changes to prevent and 3. The witness testified that attain economies of size and scale, the such outcomes would quickly result. Braum’s milks approximately 10,000 producer-handler business model could The Dean Foods witness was of the cows and processes its milk production never be successful. opinion that the notion of disorderly into fluid milk and cultured and ice The SBEDMD witness testified to marketing should be seen to exist when cream products. The witness said that participating in a Federal milk order the regulatory terms of trade between all of the milk and milk products hearing that similarly sought to limit the competitors are different. Along this produced by Braum’s Dairy are route disposition of producer-handlers theme, the witness testified that in marketed exclusively through its own under the Texas order in 1989. Order 131, disorderly marketing retail outlets. The witness further According to the witness, the argument conditions exist because the terms of testified that Braum’s does not have advanced at that time was that the trade between competitors are not the sales to wholesale customers and competitive advantage of being exempt same, citing specifically the regulatory maintained that they do not directly from the order’s pooling and pricing exemption from pooling and pricing for compete with fully regulated handlers. provisions enjoyed by large producer- producer-handlers and no similar The Braum’s witness is of the opinion handlers would undermine the exemption for their fully regulated that Proposals 1 and 3 seek to eliminate economic viability of the Federal milk competitors. However, the witness competition by producer-handlers for order program by causing harm to contrasted the growing presence and the benefit of fully regulated handlers pooled producers and fully regulated market share in fluid milk distribution and will result in many producer- handlers. The witness indicated that by producer-handlers in Order 131 with handlers becoming fully regulated. The Pure Milk, operating as a producer- the stable market share of producer- witness also was of the opinion that handler, failed not as a result of any handlers in Order 124. Proposals 1 and 3 were advanced as a competitive advantage arising from A witness appearing on behalf of Alan means to ultimately seek amending the exemptions from pooling and pricing Ritchey, Incorporated (ARI), a family- producer-handler provision in all provisions but from the unique risks owned dairy farm business located in Federal milk orders even though the and costs associated with operating as a Texas and Oklahoma, testified in provision has worked well for the past producer-handler. opposition to limiting route disposition 66 years. The SBEDMD witness testified that, of producer-handlers as advanced in The witness indicated that Braum’s for a time, Pure Milk was convinced that Proposals 1 and 3. The witness testified had not always been a producer-handler there was an advantage to operating as that ARI marketed its milk through DFA but due to Federal order pooling rules a producer-handler instead of operating because DFA was the only available for out-of-area milk that were as a pooled producer or a fully regulated buyer in the area. The witness testified detrimental to Braum’s interests, the handler. The witness related that this that ARI opposed Proposals 1 and 3 decision was made to become a view was held until Pure Milk lost a because it would limit the option of producer-handler. The witness said that major customer that caused it to become becoming a producer-handler for those in addition to the problems posed by consistently unprofitable. In this regard, dairy farmers seeking alternative pooling rules when the company was a the witness testified that Pure Milk had marketing options for their milk. The fully regulated handler, Braum’s also an account with a very large grocery witness characterized the dairy industry attributed difficulty acquiring a reliable chain in Texas and explained that when as consolidating and forcing dairy and sufficient quantity of high-quality the large grocery chain customer learned farmers to consider abandoning their milk on a timely basis as a reason for of Pure Milk’s involvement in the 1989 traditional relationships with becoming a producer-handler. milk order hearing the account was lost. cooperatives. The witness viewed A witness appeared in opposition to The witness characterized and becoming a producer-handler as a high- Proposals 1 and 3, on behalf of described this business loss as an risk business venture but an important Mallorie’s Dairy, Edaleen Dairy, and example of the regulatory risk of being alternative that should continue to be Smith Brothers Dairy, all producers- a producer-handler. available to dairy farmers. handlers in the Order 124 marketing The SBEDMD witness also testified The ARI witness also testified that area. The witness was the owner of the that Pure Milk was unable to obtain and cooperatives with membership and Pure Milk and Ice Cream Company retain significant long-term contracts market presence which is national in (Pure Milk), a large Texas producer- except for some school business and scope have market power that may be handler that is no longer in operation. prison sales. The witness said that as a reducing the revenue of individual dairy This witness, hereinafter referred to as producer-handler, there was simply too farmers who have no other milk the SBEDMD witness, testified that Pure much marketing risk and insufficient
VerDate Aug<31>2005 16:40 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 E:\FR\FM\14DEP2.SGM 14DEP2 74178 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules
long-term contract business to justify pooling and pricing provisions was regions using the Consumer Price Index the additional required investment in misplaced. The witness maintained that rather than the Producer Price Index, (2) plant and equipment to operate as a producer-handler, the only measure the sample of plants did not include any profitably. The witness testified that as of success is the profitability of the plants located in the two marketing a result of losing a large retail account entire operation. However, the witness order areas, and (3) the sample of plants after being its supplier for two years to said that Pure Milk used the marketing could not demonstrate any similarity to a fully regulated handler, Pure Milk lost order’s blend price as a transfer price for producer-handlers in either of the two sufficient revenue and decided to end the limited purpose of conducting marketing order areas. operations as a producer-handler. internal evaluations of its production The SBEDMD second witness also The SBEDMD witness also related performance and to derive a measure of testified that DFA’s plant cost study that in order to operate its plant its plant’s operating efficiency. The results were similarly based on faulty profitably, Pure Milk would have had to witness testified that the company did data. According to the witness, the achieve a volume of 1.2 million pounds use Federal order minimum class prices statistical analyses used in the DFA per month, a level it never attained. In as a basis for pricing milk to its plant cost study should have been based addition, the witness said, the company customers and as a basis for making on observations of individual plant was never able to contain costs to a level contract bids. costs rather than by averaging plant cost at which it could compete effectively A second witness appearing on behalf across the various classes of plant sizes with large fully regulated handlers in of Smith Brothers Farms, Edaleen Dairy, selected for inclusion in the study. In the marketing area. The witness testified and Mallorie’s Dairy, testified in addition, the witness testified that the that Pure Milk’s fully regulated opposition to Proposals 1, 2, and 3. This analyses should have considered all competitors had larger plants and witness, hereinafter referred to as the plant costs by region, labor type, and operated 24 hours a day, 7 days a week, SBEDMD second witness, was of the type of regulated handler rather than while Pure Milk’s plant, in contrast, opinion that these proposals would relying only on selected costs. operated about 17 hours a day, 5 days adversely restrain competition in the The SBEDMD second witness was of a week. The witness concluded that dairy industry in both the Order 124 the opinion that the interest in because their competitors operated at a and 131 marketing areas. The witness advancing Proposals 1 and 3 stems from higher capacity, they had plant testified that the producer-handler what the witness characterized as the efficiencies Pure Milk could not exemption from pooling and pricing in arbitrary setting of higher than needed achieve. The witness attributed Pure Orders 124 and 131 serve a needed and Class I differentials in all Federal milk Milk’s inability to achieve the desired useful purpose by providing market orders. According to the witness, higher level of plant efficiency to the producer- niches and marketing alternatives for than needed Class I differential levels handler definition which limited and operators with dairy production and were set because of proponent lobbying constrained their ability to purchase processing expertise as a means to efforts during Federal milk order reform. additional milk supplies from others remain competitive in an era of According to the witness, lowering during their low production seasons. otherwise increasing industry Class I differential levels would The witness also attributed Pure Milk’s consolidation. The witness was of the effectively reduce the incentive for inability to achieve desired plant opinion that the best measure of further business expansion of producer- efficiencies to their inability to market orderliness in dairy markets should be handlers. surplus milk production at a profit on results rather than on the mechanics In addition, the SBEDMD second during high milk production seasons. and operations of a milk marketing witness was of the opinion that The witness described these as other order. According to the witness, orderly producer-handlers add much needed examples of regulatory risk faced by a marketing implies protecting the rights competition in the Order 124 and 131 producer-handler. of producers to choose their market marketing areas. According to the At the closing of the Pure Milk plant, outlet freely without coercion or witness, the high concentration ratio of the witness indicated that he then unreasonable barriers to market entry. handlers-to-dairy farmers in both orders managed Promised Land Dairy which The SBEDMD second witness has created a near monopsony of milk operated as a small producer-handler criticized the proponent’s use of the buyers that has negative implications for from 1996–1999 supplying specialty Cornell University processing plant prices received by dairy farmers. The packaged fluid milk products to health study, also relied upon by the NMPF witness also characterized the high food and grocery stores. The witness witness, as a basis to support the concentration ratio of handlers-to-dairy said that Promised Land Dairy’s proposed 3 million pound per month farmers as contrary to the public interest specialty operation, selling Jersey cow route disposition limit for producer- because it may result in higher prices to milk in glass bottles, also failed to be handlers. The witness was critical of the consumers. profitable for the same reasons as the Cornell study, in part, because the The SBEDMD second witness pointed Pure Milk Company—the inability to minimum plant sizes considered in the to other changes in marketing balance supplies, the inability to study were 4 times or 12 million pounds conditions that warrant not changing achieve plant operating efficiencies, and larger than the 3 million pound limit the current regulatory exemptions of the inability to obtain and retain a long- contained as part of Proposals 1 and 3. producer-handlers. The witness testified term customer base. The witness The witness also was of the opinion that that the consolidation of cooperatives testified that Promised Land Dairy the Cornell plant study yielded results through mergers into fewer and larger ended its operation as a producer- that were statistically insignificant cooperatives, together with full-supply handler because it could not achieve because the number of plants used in marketing contracts, has reduced dairy profitability. the study was too small to reveal useful farmer income because cooperatives can In additional testimony, the SBEDMD information. The witness explained that re-blend and re-distribute revenue to witness was of the opinion that relying the sample of plants used in the study their members at a value below the on the concept of transfer pricing as a was not applicable to considerations order’s blend price. The witness also means for demonstrating that a pricing regarding marketing conditions in testified that cooperatives that are advantage accrues to producer-handlers Orders 124 and 131 because: (1) The national in scope may not be meeting by being exempt from the order’s data were improperly grouped into the local needs of their dairy farmer
VerDate Aug<31>2005 16:40 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 E:\FR\FM\14DEP2.SGM 14DEP2 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules 74179
members in markets where such A witness appearing on behalf of production risks, and processing risks cooperatives are the dominant buyer of Smith Brothers Dairy (Smith Brothers), that, when combined into a single milk because it leaves producers a producer-handler located in the Order business enterprise, are greater than without alternative marketing options 124 marketing area, testified in those borne by either pooled producers except to sell their milk through the opposition to Proposals 1 and 2. or fully regulated handlers. The witness dominant cooperative. With such According to the witness, Smith asserted that any pricing advantage the changes to marketing conditions, the Brothers has been operating as a producer-handler may have is offset by witness concluded that becoming a producer-handler for some 43 years. The the combination of these costs and by producer-handler provides dairy witness testified that Smith Brothers is the loss of opportunity to produce, farmers a useful and needed alternative a family owned and operated enterprise acquire and market other dairy to limited marketing options resulting that survives by serving niche markets products. from dairy industry consolidations. not well served by other market The witness testified that Smith The SBEDMD second witness participants, including fully regulated Brothers, in part, balances its own milk characterized the application of the handlers. The witness testified that the production by selling surplus milk into pooling and pricing provisions of largest single market niche served by Alaska, an area not regulated by a Orders 124 and 131 as essentially an Smith Brothers is home delivery, Federal milk order, and characterized imposition of a tax on producer- representing approximately 70 percent Alaska as an under-served market. handlers. The witness said that the of its fluid milk sales. According to the A second witness, an independent pooling and pricing provisions of the witness, Smith Brothers purposely milk distributor appearing on behalf of orders should apply only to those pursued this market niche beginning in Smith Brothers, also testified in handlers that purchase milk from 1980 when home delivery represented opposition to Proposals 1 and 2. The producers. Along this theme, while only a third of their fluid milk sales. witness testified to operating a milk acknowledging that producer-handlers The witness was of the opinion that the distribution business for more than 26 are also handlers, the witness did not goal of the proponents advancing the years and was one of approximately 60 view an intra-firm transfer of milk from adoption of Proposal 1 is to eliminate other independent distributors selling the farm production enterprise to the producer-handlers as competitors in the Smith Brothers dairy products to market processing plant enterprise as Order 124 marketing area. niches including coffee shops, equivalent to a purchase of milk by a The witness maintained that Smith independent convenience stores, the handler from a dairy farmer. The Brothers has not been a disruptive factor home delivery market, and daycare in the Order 124 marketing area. The witness testified to awareness of a court operations that larger market witness testified that Smith Brothers ruling equating intra-firm transfers of participants do not serve. The witness does not directly compete for customers milk as identical to purchases of milk attributed long-term business success as with large fully regulated handlers as it but considered such rulings not being a distributor to personal service, does not have sales to grocery chains, relevant to the context of this nostalgia, and product quality. The convenience stores, or large commercial proceeding for limiting the route witness also attributed sales success by retailers in the marketing area. Relying disposition volume of a producer- advertising that the milk distributed is on Market Administrator statistics for handler. produced without growth hormones and Order 124, the witness related the that the milk is produced and processed A third witness appearing on behalf of decline in the number of producer- Smith Brothers Farms, Edaleen Dairy, handlers from 73 in 1997 to 11 in 2000 by a family farm business. and Mallorie’s Dairy, also testified in and a decline in route disposition by all A third witness for Smith Brothers opposition to Proposals 1 and 2. The producer-handlers of nearly 6 percent Dairy also testified in opposition to witness provided financial information between 2000 and mid-2003 as evidence Proposals 1 and 2. The witness was of regarding efficient dairy processing that clearly demonstrates producer- the opinion that these proposals are plant size and costs. The witness handlers are not a source of market designed to eliminate producer-handlers indicated that successful long-term disorder. The witness also discounted as competitors of fully regulated operators in the fluid processing the notion that producer-handlers enjoy handlers. The witness was also of the business must operate their plants a competitive advantage by noting the opinion that both proposals are efficiently and process sufficient lack of entry of new producer-handlers intended to serve as an intentional volumes to achieve a competitive cost in the Order 124 marketing area. market entry barrier for other large structure. The witness said that The Smith Brothers witness testified producers who may seek to become establishing a maximum monthly that the majority of regulated handlers producer-handlers as a means to regain processing limit of 3 million pounds for in Order 124 are much larger, more control of their milk marketings. producer-handlers limits them to diversified, and not interested in the The witness related that Smith operating plants that would be unable to niche market of home delivery that Brothers evaluates itself as a single capitalize on the economies of scale Smith Brothers serves. The witness integrated enterprise. The witness required to further reduce per unit costs testified that limiting a producer- testified that as the person responsible to more competitive levels. handler’s route disposition to less than for measuring the efficiency of the A former Market Administrator of the 3 million pounds per month would operation, Smith Brothers does not rely pre-reform Central Arizona milk cause them to not only lose their status on the concept of transfer pricing as a marketing order testified in opposition as a producer-handler but may even means to measure the efficiency or to Proposal 1, 2, and 3. The witness result in Smith Brothers terminating market value of their milk production. explained that if regulated, producer- operations altogether. The witness testified that Smith handlers would be subject to the The Smith Brothers witness explained Brothers does not compare its cost of pooling and pricing provisions of an that producer-handlers face different production to the Federal order Class I order by being required to pay into the costs and risks than do pooled price or the blend price in measuring producer-settlement fund of the order producers and fully regulated handlers. the efficiency of its operations. on the basis of their Class I sales in the According to the witness, producer- According to the witness, Smith marketing area. handlers have balancing risks, farm Brothers compares their total costs to
VerDate Aug<31>2005 16:40 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 E:\FR\FM\14DEP2.SGM 14DEP2 74180 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules
the prices the company receives for its for example, that a very large customer, and cost of balancing its milk supply products (total receipts). such as a warehouse customer, may be and operates at its sole risk and A witness appearing on behalf of such a large part of a producer-handler’s enterprise, a regulatory constraint not Edaleen Dairy, a producer-handler capacity that losing such a customer can applicable to fully regulated handlers. located in the Order 124 marketing area, risk continued economic viability of the The Edaleen Dairy witness amplified testified in opposition to Proposals 1 entire operation because it is so difficult the above differences between and 2. The witness stated that as the to absorb the loss of revenue and to find producers-handlers, dairy farmers, and milk production manager and co-owner new customers. fully regulated handlers. With respect to of Edaleen Dairy, their cost of milk The Edaleen Dairy witness testified dairy farmer and producer-handler production is higher than that estimated that producer-handlers also serve differences, the witness noted that a by those proposing a limit on the route market niches that fully regulated pooled producer can deliver milk to dispositions of producer-handlers. The handlers do not service. The witness alternative buyers if its primary buyer is witness testified that Edaleen Dairy’s said that if a limit on producer-handler not available but that a producer- milk production costs exceeded a recent route disposition had been in place handler can only deliver milk to its own Order 124 blend price of $10.50 per cwt. when the Starbucks account became plant and a dairy farmer has no legal The witness testified that Edaleen available, for example, the opportunity requirement or economic responsibility Dairy once held a milk supply contract to service that account would not have for the viability of any particular with Starbucks by replacing Sunshine been possible. The witness asserted that processing plant or handler. With Dairy, a fully regulated handler. limiting the sales volume of producer- respect to the fully regulated handler According to the witness, the contract handlers also would effectively and producer-handler differences, the provided more than a year’s lead time eliminate servicing new market niches witness noted that a fully regulated for Edaleen Dairy to develop additional that might arise in the future. In this handler can acquire any quantity of milk production and processing regard, the witness cited the example of milk from any number of dairy farmers capacities. The witness said that the coffee-kiosk shops that were not of and the business failure of any Starbucks account was offered to interest to fully regulated handlers until individual dairy farmer does not have Edaleen Dairy on the basis of its the mid-1990’s. an overwhelming impact on the customer service, product quality and The Edaleen Dairy witness testified economic viability of a fully regulated price. that an important element of why their handler’s operation. The witness testified that Edaleen producer-handler operation is valued by The Edaleen Dairy witness testified Dairy eventually lost its Starbucks’ their customers is because they have that combined risks—as a producer and contract to Safeway, a fully regulated complete and total control of the as a handler—are not incurred by either handler, noting that Starbucks phased production and processing of their milk. a pooled producer or a fully regulated out Edaleen Dairy as a supplier over a The witness testified that without the handler. The witness testified, for 6-month period. The witness said that producer-handler exemption from the example, that if a producer-handler reasons given for the loss of the account pooling and pricing provisions of Order loses a sale it continues to have milk was that Safeway offered to supply milk 124, Edaleen Dairy would not be able to production that must be disposed of and at a lower price and Starbucks’ rapid offer such a differentiated fluid milk the costs of that milk production must growth gave rise to geographical supply product to its customers. be paid regardless of whether a market needs that Edaleen Dairy could not A second witness, also appearing on exists for that milk. According to the meet. The witness explained that the 6- behalf of Edaleen Dairy, testified in witness, the risks and costs of month phase-out of Edaleen Dairy as a opposition to Proposals 1, 2, and 3. The production, processing, and marketing milk supplier to Starbucks was unusual witness testified that Edaleen Dairy accrue to the entire operation because in the dairy business. The witness said operates an efficient dairy farm producer-handlers are a single operating that more typically account operation and processing plant as a enterprise. terminations are given with a month’s producer-handler. The witness was of Additionally, the Edaleen Dairy notice or less. the opinion that a producer-handler witness said, there are inseparable links The witness testified that Edaleen operates a farm and a plant with risks between the production and processing Dairy’s balancing costs are greater than that differ from the risks faced by dairy portions of the producer-handler that of the pooled producers of Order farmers and processing plant operators. because if either the milk production 124. The witness also testified that According to the witness, a producer- process fails or the processing process during periods of low market prices for handler differs from pooled dairy fails, both processes affect the single milk, balancing costs are particularly farmers in three different ways: (1) operating entity. The witness testified difficult to manage. The witness related Pooled producers are guaranteed the that the regulation of the processing and that Edaleen Dairy’s surplus milk minimum Federal order blend price, (2) marketing operations of a producer- production is sold to fully regulated pooled producers do not bear the handler coincidentally regulates the handlers but they are paid $1.50 per cwt marketing risk and additional costs dairy farm portion of the producer- less than the Class III price. involved in selling their milk, and (3) handler enterprise. According to the The Edaleen Dairy witness testified pooled producers do not bear the risks witness, the most important benchmark that there are several factors that tend to and costs of operating a processing for a producer-handler is whether in the restrain the growth of producer- plant. With regard to how a producer- long-run the total revenue received for handlers. According to the witness, handler differs from fully regulated its milk exceeds the total costs of its environmental regulations, marketing handlers, the witness cited three operation. and production risks, and management important differences: (1) Fully The Edaleen Dairy witness testified risks all act to limit the ability for regulated handlers purchase their milk that the Federal order blend price is business expansion. The witness said supply and therefore do not incur the irrelevant to a successful producer- that the size of potential customers also risk of production, (2) fully regulated handler and bears no relation to the can constrain a producer-handler’s handlers know the cost of raw milk prices received from its milk sales. The operational flexibility and ability to before buying it from dairy farmers, and witness expressed the irony of expand the business. The witness said, (3) a producer-handler bears the risk testimony concerning the importance of
VerDate Aug<31>2005 16:40 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 E:\FR\FM\14DEP2.SGM 14DEP2 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules 74181
the blend price to producer-handlers by Dairy markets its milk on a wholesale restriction on sales volume would force parties who do not operate as producer- basis directly and through independent a dramatic change to Sarah Farms’ handlers. The witness said that Edaleen distributors and small independent business structure and practices when Dairy ignores what the Federal order retailing establishments ranging from there was no evidence of an unfair blend price may be for the month and grocery stores to coffee shops. regulatory advantage by being exempt seeks to sell milk at the highest possible According to the witness, the milk from the Order 131 pooling and pricing price but never intentionally below the production enterprise of their producer- provisions. Federal order Class I price. The witness handler operation is very efficient, The witness testified that Sarah noted that during the past several years producing an average of 80 pounds of Farms’ sales exceed 3 million pounds there have been times when the Class I milk per day per cow. The witness per month, noting that the majority of price fell below the cost of production. testified that Mallorie’s Dairy’s largest its current sales, and sales since During such times, the witness was of customer is an independent distributor becoming a producer-handler in 1995, the opinion that fully regulated handlers who has developed a niche market by are in Arizona. The witness said that have a distinct advantage over producer- supplying small companies that other some major customers include Sam’s handlers. fully regulated handlers do not serve. Club, Basha’s (a grocery store chain), The Edaleen Dairy witness testified According to the witness, Mallorie’s Costco, and other smaller independent that cooperatives have certain regulatory Dairy lost a grocery store chain account retailers. The witness said that Sarah advantages by being able to re-blend which had been one of its large long- Farms’ growth was directly related to its pool proceeds and actually pay their term customers to a fully regulated ability to fill a market void left by members less than the order blend handler. The witness stressed that any competitors who exited the dairy price. The witness claimed that re- price advantage that Mallorie’s Dairy business leaving an opportunity that blending allows cooperatives to use derives from the existing producer- others could not completely fill. their bottling operations to essentially handler exemption from the pooling and The witness asserted that Sarah Farms subsidize their processing operations. pricing provisions of Order 124 is offset produces a differentiated product from The witness testified that if a producer- by the cost of balancing its milk supply, that of its competitors by marketing its handler’s route disposition was more about 20 percent of its production. The fluid milk products with tamper than 3 million pounds per month, the witness said that Mallorie’s Dairy resistant caps and by delivering their required payment into the producer- performs its balancing requirements by fluid milk products to customers within settlement fund would return no benefit selling its surplus milk to a local 24 hours of milking which, according to to the producer-handler. According to cooperative at the lower of the Class III the witness, adds up to 7 days to the the witness, the proceeds paid to the or Class IV price minus a substantial shelf life of its products. The witness producer-settlement fund would simply discount. According to the witness, also said that Sarah Farms’ gallon-sized be distributed to other pooled balancing sales represents about 10 fluid milk products are shipped in producers. This would, according to the percent of Mallorie’s’ total sales while cardboard containers, which further witness, have an adverse impact on specialty milk sales to commercial food differentiates these products from their small businesses such as Edaleen Dairy, processors represent the remainder. competitors. a business with fewer than 500 The Mallorie’s Dairy witness was The Sarah Farms witness testified that employees. unsure of the full impact that adoption being a producer-handler is a high-risk In addition, the Edaleen Dairy witness of Proposals 1 and 2 would have on undertaking. Relying on Market saw no justification for limiting the Mallorie’s Dairy. However, the witness Administrator data, the witness noted route disposition of producer-handlers said that Mallorie’s Dairy would lose its that the number of producer-handlers in in Order 124 because Market producer-handler status and thus be Order 131 has declined from six in 1980 Administrator statistics indicate a forced to expand its plant size in order to only two in 2003, an important declining market share of the Class I to continue operating, to remain indicator of the high-risk nature of being market by producer-handlers. The competitive and to exploit their current a producer-handler. witness also asserted that limiting the marketing strengths while seeking new The witness testified that Sarah Farms route distribution of producer-handlers business from warehouse stores such as pays its own balancing costs and does would essentially close the marketing Costco and Walmart. not transfer these costs to other fully option that becoming a producer- The founder of Sarah Farms, a regulated handlers or pooled producers handler offers to large producers. The producer-handler located in the Order of Order 131. In addition, the witness witness viewed such restrictions as 131 marketing area, testified in testified that as a producer-handler, acting to reduce competition among opposition to Proposals 1, 2, and 3. The Sarah Farms simultaneously bears all of handlers rather than enhancing it. witness was of the opinion that the its own production, marketing, and A third witness, the founder of purpose of the public hearing was to processing costs and risks unlike pooled Edaleen Dairy, also testified in eliminate Sarah Farms as a competitor producers and fully regulated handlers. opposition to Proposals 1, 2, and 3. The in the Order 131 marketing area. The The witness also was of the opinion that witness related that when acquiring witness said that imposing a 3-million a fluid milk processing plant under financing, bank loan officers will only pound per month route disposition limit construction in Clark County, Nevada, consider Edaleen Dairy’s cows as on producer-handlers would restrict the an area exempt from Federal milk appropriate collateral for financing. The growth of Sarah Farms while leaving regulation, poses a greater competitive witness testified that bankers place no competing cooperatives and proprietary threat to producers and fully regulated asset value for loan collateralization on handlers free to compete without handlers than any other entity. The Edaleen Dairy’s processing plant additional restraints. The witness was of witness also testified that Sarah Farms facilities. the opinion that imposing a route does not sell its milk below the Order A witness appearing on behalf of disposition limit on producer-handlers 131 Class I price plus the cost of Mallorie’s Dairy, a producer-handler as advanced in Proposal 3, was based on transportation, packaging, and located in the Order 124 marketing area, projected future conditions and was processing. testified in opposition to Proposals 1 therefore both unjustified and A witness representing Food City, a and 2. The witness said that Mallorie’s speculative. According to the witness, a retail grocery chain, testified on behalf
VerDate Aug<31>2005 16:40 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 E:\FR\FM\14DEP2.SGM 14DEP2 74182 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules
of Sarah Farms. The witness testified pricing, which stressed NDA, is not producer-handlers sales to 3 million that Food City, and its parent company, applicable to producer-handlers. pounds per month on the basis that it the Basha’s operate some 144 stores in The rapid and extensive growth of was the same benchmark as in the Fluid Arizona, New Mexico, and California. Sarah Farms was also noted by NDA Milk Promotion Act of 1990. Rather, The witness said that Food City buys who claimed that Sarah Farms now has UDA finds merit in regulating large milk from Sarah Farms and from a fully captured 15 to 20 percent of all the producer-handlers above 3 million regulated handler. The witness Class I sales in Order 131. This equates, pounds per month in route sales indicated that Food City’s opposition to the NDA brief said, to a reduction in because at such a size they are able to Proposal 3 was to help assure that Food Class I premium dollars by at least $2.5 achieve economies of scale that enable City continues to have more than a million per year. In the Order 124 area, them to be competitive factors in the single supplier for its fluid milk needs. added NDA, producer-handlers account market and able to compete with fully The witness indicated that in the longer for about 10 percent of total in-area regulated handlers. term, the availability of multiple Class I sales and similarly reduce Class A brief was filed on behalf of suppliers tends to assure competitive I premium dollars. Shamrock Foods Company, Shamrock pricing, reliable service, and product A brief filed on behalf of DFA Farms Company and the Dean Foods quality. The witness said that Food reiterated their support for the adoption Company in continued support of the City’s interest in multiple suppliers of proposals 1, 2, and 3 stressing that adoption of Proposal 3. They transcended the issue of whether the small dairies which do not impact total emphasized that Sarah Farms’ doubling supplier is a fully regulated handler or pool value should be the only exempted of Class I sales between 1998 and 2003 a producer-handler. producer-handlers. DFA noted that in was not known and could not have been Order 124 the three largest producer- known during the time of adopting the Post Hearing Briefs and Motions handlers, which average nearly 5.0 consolidated orders as a part of Federal Post hearing briefs filed on behalf of million pounds of Class I sales each per milk order reform. In this regard, they proponents and opponents made month, are larger in size than one-third also noted that at the time of Federal extensive arguments as they relate to of the order’s fully regulated milk order reform, the Department case law, arguing legal contexts for why distributing plants. According to the could not have known of the growing large producer-handlers should or DFA brief, in Order 131, Sarah Farms importance to integrated operations should not become subject to the has captured more than 15 million such as Kroger and Safeway of price pooling and pricing provisions of the pounds of Class I sales per month. DFA competition from large warehouse box Pacific Northwest and the Arizona-Las was of the opinion that orderly stores such as Costco caused by large Vegas marketing orders. Presented marketing conditions can only be producer-handler sales. Lastly, they herein are discussions of the briefs as maintained if any exceptions to indicated that no limit had been placed they relate to the economic and classified pricing are limited and on producer-handlers during Federal marketing conditions of the two orders. justified. DFA emphasized that large milk order reform because it could not A brief filed on behalf of NDA producer-handlers in the two orders have been known that losses to pooled reiterated its support for the adoption of have captured a significant share of the participants would increase by a Proposals 1, 2, and 3. They noted that Class I sales which thereby reduces multiple of nearly four from before to both Orders 124 and 131 have fully returns to all producers while retaining after implementation of order reform. regulated handlers operating plants substantial Class I proceeds for each A brief filed on behalf of NMPF whose route disposition of Class I milk producer-handler on an individual continued to iterate its support for are smaller than the largest producer- handler pool basis. adoption of proposals that would limit handlers in the two orders. NDA The DFA brief also reiterated reasons the size of producer-handlers. NMPF stressed that the Department cannot why 3 million pounds of Class I route was of the opinion that the exemption ignore a situation where the smallest distribution should be established as the for producer-handlers violates the regulated handlers in the market are not cap for producer-handler exemption principles of producer equity upon provided equitable minimum prices as from full regulation. They stated that which the milk order program relies. In intended by Congress when the AMAA there is a similar benchmark applicable addition, they were of the opinion that established the requirement that in the Fluid Milk Promotion Act of producer-handler exemption threatens classified pricing be uniform to all 1990. They also indicated that volumes orderly marketing. They explained that handlers. of milk sales from stores in the farms with over 3 million pounds of In brief, NDA took issue with the marketing areas indicate that at the 3 monthly production account for about notion by opponents that producer- million pound level, a handler could 15 percent of the total U.S. milk supply handler balancing costs are greater than supply a number of small stores. They which equates to about 40 percent of that of fully regulated handlers. NDA noted that at this threshold size, fluid milk sales. Continued exemption argued that the milk order program does producer-handlers’ economies of scale of producer-handlers from pooling and not attempt to consider all costs or are sufficient enough that as handlers, pricing, the NMPF maintained, address issues of profitability. They producer-handlers can be competitive threatens both producer and handlers. noted that balancing costs are typically with fully regulated handlers. Lastly, A Statement of Interest was filed on borne by regulated handlers over and DFA maintained that, as producers, behalf of two cooperatives, Select Milk above the minimum cost structure producer-handlers have substantial Producers and Continental Dairy reflected in the orders. In this regard, economies of scale in on-farm milk Products, indicating support for NDA noted that opponents expanded on production that if exempt from pooling, adoption of Proposal 3 as submitted by the burden of their own balancing costs gives producer-handlers a significant UDA. Select Milk Producers is a New but did not consider balancing costs advantage in the marketplace for fluid Mexico milk marketing cooperative and incurred by fully regulated handlers. milk sales. Continental Dairy Products is an Ohio They further explained that balancing A brief filed on behalf of UDA milk marketing cooperative. costs may also be absorbed by continued to iterate its support for the A consolidated brief filed on behalf of marketwide pooling through the adoption of Proposal 3. They indicated Edaleen Dairy, Mallorie’s Dairy, Smith mechanism of Class III and Class IV that they did not support limiting Brothers Farms, and Sarah Farms
VerDate Aug<31>2005 16:40 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 E:\FR\FM\14DEP2.SGM 14DEP2 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules 74183
stressed that as producer-handlers who certification of the hearing record on determining whether a producer- have sales in excess of three million June 1, 2004. Given that the objection handler is a small or large business rest pounds per month, adoption of any goes to the weight to be given to the on the producer-handler’s capacity as a proposal that would subject them to the testimony and exhibits and not to their producer. Proponents noted that most pooling and pricing provisions of the admissibility, the motion is denied. handlers, regardless of their regulatory orders would cause their organizations A Motion to Strike the exceptions and status, would be considered small to be severely affected. They stressed comments of the large producer- businesses because of the 500 employee that if they become required to make handlers—Sarah Farms, Edaleen Dairy, threshold established by the Small equalization payments to the producer- Mallorie’s Dairy, and Smith Brothers Business Administration’s definition of settlement funds, this would take Farms—was filed on behalf of DFA. a large business for milk processing millions of dollars per year away from This motion was received on July 11, plants. their operations and redistribute it to 2005, and sought to prevent the The Shamrock, et al., comment other producers with no return benefit introduction of new material into the reiterated the position of the proponents to their operations. record by opponent producer-handlers. that an impact of more than a penny per In brief, Edaleen Dairy, Mallorie’s The Department has concluded that the cwt per month on an order’s blend price Dairy, Smith Brothers Farms, and Sarah testimony, briefs, and the relevance of is sufficient to indicate a significant Farms indicated that the advantages comments and exceptions filed by all impact on the blend price that dairy producer-handlers have as alleged by parties are clearly delineated in the farmers receive by pooling milk on these proponents, vanish when the financial context of the official record. orders. In addition, they agreed with the benefits of not having to pay minimum Accordingly, the motion by DFA, and a Recommended Decision’s finding that prices and avoiding equalization subsequent motion filed jointly on producer-handlers with route payments to the producer-settlement behalf of DFA, Dean, UDA, Shamrock disposition of fluid milk products in fund are offset by their balancing costs. Farms and Shamrock Foods, are denied. excess of 3 million pounds per month Any remaining advantage should be A Motion to Supplement the Public had a significant and disruptive impact viewed as acceptable given the Record due to ex parte communications in these marketing areas. According to increased risks producer-handlers incur was filed on behalf of Sarah Farms on the comment, these impacts are large in the marketplace. They indicated that April 7, 2005. This motion sought enough to warrant a new review of the rational persons would not take on additional information to amplify the producer-handler exemption from the additional risk without the prospect of public record of this proceeding based pooling and pricing provisions of the additional rewards. on the attendance of the AMS Dairy orders. In brief, Edaleen Dairy, Mallorie’s Programs Deputy Administrator at the Shamrock, et al., took exception to the Dairy, Smith Brothers Farms, and Sarah annual meeting of Dairylea Cooperative recommended 3 million pound per Farms stressed that, in their opinion, where a speaker publicly addressed month in-area Class I route disposition neither milk supply or prices for milk in issues germane to this proceeding and as the threshold beyond which the two marketing areas had fluctuated producer-handlers in the Federal milk producer-handlers would become unreasonably, noting that milk was in order program in a speech. A subject to the pooling and pricing such sufficient supply that with or Memorandum to the Record Regarding provisions of the orders. They explained without producer-handlers supplies are Ex Parte Communications was issued on that this threshold was too generous and plentiful. They did not view their fluid May 23, 2005, by the Deputy should have been set at some level less milk sales in the marketing area as Administrator, Dairy Programs than 3 million pounds per month. contributing to the erosion of classified explaining that no Dairy Programs Shamrock, et al., was joined in this prices or blend prices. They cited officials engaged in ex parte discussions exception by the National Milk hearing record statistics to assert that of the material issues of this proceeding Producers Federation. Shamrock et al., they are not a cause of market disorder at the Dairylea Cooperative meeting on also took exception to the charge of ex or cause the inefficient movement of October 12–13, 2004, nor at the DFA parte communications between USDA milk. They cited the reduction in the annual meeting on March 23–24, 2005, officials and certain leaders of DFA number of producer-handlers, nor at any other forum. This alleged by large producer-handlers who emphasizing that between 1975 and memorandum is available for public would likely become regulated if the 2000, the Pacific Northwest order inspection at the Office of the USDA orders were amended. According to the producer-handler numbers fell from 73 Hearing Clerk and at the Dairy Programs comment, such allegations were to 11 with average daily pounds of Web site, www.ams.usda.gov/dairy/. unwarranted. production increasing only 4.7 percent Comments and exceptions by DFA between 1985 and 2000. For the Comments and Exceptions similarly supported the findings of the Arizona-Las Vegas order, they noted A number of proponents for Recommended Decision. The comments that since 1982, the number of regulating large producer-handlers, by DFA called for immediate producer-handlers fell from seven to including Shamrock Foods Company, implementation of the proposed full two. According to the brief, on the basis Dean Foods Company, United Dairymen regulation of producer-handlers with in- of such statistics, there can be no of Arizona, and Shamrock Farms area route disposition of fluid milk finding that producer-handlers have (hereinafter Shamrock, et al.) submitted products in excess of 3 million pounds unabated growth or that they are a joint comments and exceptions to the per month. They noted that each source of market disruption. Recommended Decision. The month’s delay in implementing the A motion to strike the testimony and proponents were joined by the Alliance proposed rule significantly reduces the related exhibits concerning plant of Western Milk Producers representing blend price for pooled producers. They operating costs offered by DFA’s California cooperatives (1100 dairy agreed with the Recommended Decision consultant witness was filed on behalf farmer members) in support of the and the Shamrock, et al; conclusion that of Edaleen Dairy, Mallorie’s Dairy, Recommended Decision’s findings. a producer-handler’s characterization of Smith Brothers Farms and Sarah Farms. The Shamrock, et al., comments being a small or large business should The presiding Administrative Law Judge agreed with the Recommended be based on the producer-handler’s received this motion after the Decision’s finding that the criteria for capacity as a producer.
VerDate Aug<31>2005 16:40 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 E:\FR\FM\14DEP2.SGM 14DEP2 74184 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules
DFA’s comments also noted that the included Sarah Farms, Mallorie’s Dairy, explanations of activities that the record of the proceeding supported the Edaleen Dairy, and Smith Brothers Recommended Decision incorrectly conclusions of the Recommended Farms, Inc. Their exceptions specifically characterizes as market disruption and Decision on the disorder caused by reiterated opposition to adopting any disorderly marketing. exempting large producer-handlers from measure that would cause them to be In separate exceptions, Sarah Farms the pooling and pricing provisions of subject to the order’s pooling and reiterated their opposition to the the orders. In this regard, their pricing provisions. They also took findings of the Recommended Decision comments reiterated from their post- exception to the finding that impacts on maintaining that market disorder hearing brief that large producer- an order’s blend price are significant resulting from the alleged advantages handler balancing costs are much lower and disruptive to orderly marketing. enjoyed by producer-handlers is not in these marketing areas than historical This finding, they stressed, is arbitrary demonstrated in the record. They noted balancing costs of small producer- and capricious because, in their that producer-handler market share in handlers. As with Shamrock, et al., the opinion, record evidence is not the Pacific Northwest order had comment noted that allegations of ex sufficient to reach this conclusion. declined in the year preceding the parte communications between DFA The large producer-handlers’ joint hearing—from 10 percent to 9 percent. and USDA officials were unfounded. exception disagreed with the They asserted that producer-handler As with Shamrock, et al., DFA took Recommended Decision’s finding that market share in the Arizona-Las Vegas exception to adopting a threshold of 3 large producer-handlers should be order was 10 percent during the same million pounds per month of in-area viewed as large businesses in their period, concluding that no finding of route disposition. They maintained that capacity as dairy farmers rather than in either competitive advantage or market the threshold should include all route their capacity as handlers. In this disorder can be made. Mallorie’s Dairy, disposition not just in-area route regard, they concluded that if producer- Edaleen Dairy, and Smith Brothers disposition. DFA was joined in this handlers are considered for regulation Farms, presented separate and similar exception by National Milk Producers on the basis that they are large in their exceptions. Federation. capacity as dairy farmers, they cannot Each large producer-handler noted in Six hundred ten e-mail comments have their exemption from pooling and their separate exception that at current received expressed support for the pricing provisions removed because the route disposition levels, their monthly Recommended Decision’s findings. AMAA provides the authority to only revenue would decline significantly if These comments were from dairy farmer regulate handlers and not dairy farmers. they become required to make members of cooperatives, employees of They continued to assert that they are equalization payments to the order’s cooperatives, representatives of seamless integrated entities that cannot producer-settlement fund. Edaleen producer and processor organizations be viewed in separate capacities as Dairy, for example, stated that their from California, as well as producer and producers and handlers. Thus, the monthly revenue would decline by processor organizations in the Pacific exception concluded that large $125,000. The other large producer- Northwest and Arizona-Las Vegas producer-handlers should be viewed as handlers noted in their separate marketing areas. Comments indicating small businesses because they have exceptions that owners, employees and support received via the U.S. Postal fewer than 500 employees. customers would experience similar Service and fax also were largely from The large producer-handlers’ took losses in revenue from reduced sales dairy farmers, cooperatives, associations exception to the Recommended volume in their efforts to maintain of cooperatives, and their employees. Decision’s findings concerning the producer-handler status. Supporting comments for the impact on order blend prices noting that In separate exceptions Edaleen Dairy Recommended Decision’s findings by milk market prices vary over time as noted that lowered revenues may in dairy farmer and dairy farmer marketing conditions change. They turn reduce employment at their dairy organizations focused on the pricing concluded that such variations in prices farm and processing plant and may even and sales advantages that producer- are unrelated to the level of route affect employment in supporting service handlers have by being exempt from disposition of producer-handlers businesses as a result of down-sizing classified pricing and marketwide individually or in the aggregate. In their operations. They were joined in pooling. Specifically, these comments addition, they stressed that even if large similar exceptions by Smith Brothers stressed that the impact on fully producer-handlers enjoyed advantages Farms, Mallorie’s Dairy, and Sarah regulated handlers and pooled as claimed by proponents, their Farms. All large producer-handlers also producers is directly related to the size aggregate share of the market in the asserted that their full regulation would of producer-handlers. In general, these Pacific Northwest during the period decrease competition and that their comments contain the common theme 2000–2003 had decreased. customers would likely experience that the pricing advantage enjoyed by The large producer-handlers’ joint increased prices and reduced product producer-handlers has been the exception asserted that the record choices. difference between an order’s Class I demonstrates that fully regulated Within the April 13–June 13, 2005, price and blend price. The comments handlers are able to compete effectively comment period, 12,223 e-mail generally support the conclusion that with large producer-handlers. They took comments and more than 5,600 hard- small producer-handlers, having route exception to the Recommended copy comments were received through disposition below 3 million pounds per Decision’s finding that large producer- the U.S. Postal Service or by fax that month, have not been a significant handlers are the cause of market opposed fully regulating large producer- factor in the Pacific Northwest or disruption and characterized the finding handlers. In addition, 1969 pages of Arizona-Las Vegas marketing areas. as arbitrary and capricious. In their petitions containing a total of 26,267 The large producer-handlers from the view, such a finding is not established signatures opposing the findings of the Arizona-Las Vegas and Pacific or supported in the record. The Recommended Decision were received. Northwest marketing areas submitted exception maintains that normal The signed petitions were submitted by joint comments and exceptions in variability in milk prices and gains or Edaleen Dairy, Mallorie’s Dairy, and opposition to the findings of the losses of commercial accounts are Sarah Farms. Of the 12,223 e-mail Recommended Decision. These entities contained in the record as examples and comments received, approximately
VerDate Aug<31>2005 16:40 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 E:\FR\FM\14DEP2.SGM 14DEP2 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules 74185
11,590, or about 95 percent, opposed the distributing plant that supplies the same proposed to end when the volume of Recommended Decision’s findings. product in a same-sized package with a Class I route disposition in the These comments were generated as part similar label in the same month. While marketing area exceeds 3 million of a write-in campaign by what each order has its own unique pounds per month. appeared to be customers located in the definition, it is accurate to say that in In considering issues relating to size, United States, Canada, and Mexico of general, producer-handlers are required producer-handlers are dairy farmers that the large producer-handlers opposing to operate their businesses at their own process and sell only their own milk their full regulation. enterprise and risk, meaning that the production. These entities are dairy Other comments received in care and management of the dairy farmers as a pre-condition to operating opposition to the Recommended animals and other resources necessary a processing plant as producer-handlers. Decision included letters from the for the production, processing, and Consequently, the size of the dairy farm United States Senators from Alaska and distribution of their Class I products are determines the production level of the some members of the U.S. House of the sole responsibility of the producer- operation and is the controlling factor in Representatives from the States of handlers. the capacity of the processing plant and Oregon, Washington, and Arizona. Producer-handler exclusion from possible sales volume. Accordingly, the Several Oregon and Washington elected pooling and pricing provisions also has major consideration in determining State, county and municipal officials been historically based on the premise whether a producer-handler is a large or and regional economic development that the objectives of the AMAA small business focuses on its capacity as organizations provided exceptions (orderly marketing) could be achieved a dairy farm. Under SBA criteria, a dairy expressing opposition to the without extending regulation to this farm is considered large if its gross Recommended Decision’s findings. The category of handler. In previous revenue exceeds $750,000 per year with exceptions speculated that fully rulemaking decisions, the Department a production guideline of 500,000 regulating producer-handlers might has articulated its authority to subject pounds of milk per month. Accordingly, result in job losses at locations where producer-handlers to further regulation, a dairy farm with sales of its own milk these producer-handlers produce and including being subject to marketwide that exceeds 3 million pounds per bottle milk and market their dairy pooling and minimum pricing month is considered a large business. products. Some of these comments provisions, if they singularly or Another factor to consider regarding speculated that independent residential collectively have an impact on the the size of producer-handlers is their milk route operators in Oregon might be market. For example, in a Final Decision ability to have an impact on the forced out of business if large producer- (31 FR 7062–7064; May 13, 1966) for the market’s pooled participants. Indicators handlers became fully regulated. Puget Sound order, a predecessor to the of market disruption affecting dairy Exceptions opposing implementation Pacific Northwest order, the Department farmers who pool their milk on the of the Recommended Decision were found that producer-handlers should orders and by the orders’ fully regulated submitted on behalf of consumer and continue to be exempt from pooling and handlers should be determined on the processor interests from unregulated pricing provisions of the order with the basis of prices that are uniform to areas who currently purchase milk from caveat that the producer-handlers could producers and equitable among some of the large producer-handlers. be subject to further regulation if handlers. When these price conditions These parties expressed concern that justified by prevailing market are present, milk marketing order areas milk prices in unregulated areas, such conditions. This position was amplified are considered to be exhibiting orderly as Alaska, would rise significantly if in a subsequent Puget Sound Final marketing—a key objective of the large producer-handlers became fully Decision (32 FR 1073–1074; July 21, AMAA that relies on the tools of regulated. 1967) where the Department found that classified pricing and marketwide a hearing should be held to consider the pooling. In the absence of equity among Findings regulation of producer-handlers if the producers and handlers such conditions Although producer-handlers have not marketing area is susceptible to being are and should be deemed to be been fully regulated as a general affected by producer-handlers or if disorderly. practice, the AMAA provides the producer-handler sales could disrupt or As already discussed above, producer- authority to regulate handlers of milk to operate to the detriment of other handler exemptions from the pooling carry out the purposes of the AMAA. producers in the market. Such policy and pricing provisions of the orders are With respect to producer-handlers, the was also articulated in another decision based upon the premise that the burden legislative history indicates that there is concerning producer-handlers (Texas of surplus disposal of their milk authority to regulate such operations if and Southwest Plains, Recommended production is borne by them alone. they are so large as to disrupt the market Decision, 54 FR 27179, June 28, 1989). Consequently, they have not shared the for producers. In the past during other That decision concluded that subjecting additional value of their production that rulemaking proceedings, producer- producer-handlers to the pooling and arose from Class I sales with pooled handlers have been found not to disrupt pricing provisions of the order would be dairy farmers. In this regard, to the the marketing of milk and milk appropriate if it could be shown that extent that producer-handlers are no products. producer-handlers cause market longer bearing the burden of surplus Nevertheless, restrictions were placed disruption to the market’s dairy farmers disposal, specifically disposal of milk on producer-handlers. Both the Pacific or regulated handlers. production in some form other than Northwest and the Arizona-Las Vegas The proposals for fully regulating Class I, gives rise to considering orders currently permit producer- producer-handlers in this proceeding, regulatory measures that would tend to handlers to purchase up to 150,000 specifically making them subject to the provide price equity among producers pounds per month of supplemental milk order’s pooling and pricing provisions, and handlers that is eroded when only from pool sources. In addition, the are based primarily on issues relating to producer-handlers are permitted to Arizona-Las Vegas order, prohibits the producer-handler size, specifically the retain the entire additional value of milk disposition of Class I products by a volume of Class I route disposition. The accruing from Class I sales. producer-handler to a wholesale producer-handler exemption from The record supports finding that customer who is also serviced by a pool pooling and pricing provisions is producer-handlers with more than 3
VerDate Aug<31>2005 16:40 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 E:\FR\FM\14DEP2.SGM 14DEP2 74186 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules
million pounds of route disposition per producer-handlers over fully regulated facilities, they are not assuming the month in both the Pacific Northwest handlers. While this has always been entire burden of balancing their and the Arizona-Las Vegas marketing the case, those producer-handlers with production with their fluid milk areas are the primary source of route disposition of more than 3 million requirements as discussed later in this disruption to the orderly marketing of pounds of milk per month in these two decision. milk. This disorder is evidenced by orders are large enough to have a The record evidence supports significantly inequitable minimum negative impact on the prices received concluding that the one large producer- prices that handlers pay and reduced by pooled dairy farmers. Since fully handler represents between 12–18 blend prices that dairy farmers receive regulated handlers do not have the percent of the total Class I sales volume under the terms of each area’s marketing ability to escape payment into the in the Arizona-Las Vegas marketing order. Accordingly, producer-handler producer-settlement fund of the area. The record evidence supports a status under the Pacific Northwest and difference in their use-value of milk and conclusion that the exemption of this the Arizona-Las Vegas orders should the order’s blend price like producer- producer-handler has reduced the blend end when a producer-handler exceeds 3 handlers, regulated handlers competing price received by pooled producers million pounds per month of in-area against large producer-handlers are at a between $0.04 and $0.06 per cwt per Class I route disposition. competitive price disadvantage. month in the Arizona-Las Vegas Review of the intent of the producer- Even though producer-handlers argue marketing area. Similarly, record handler provision and the marketing otherwise, this decision agrees with evidence reveals that producer-handler conditions arising from this provision in proponent arguments, most notably by exemption from pooling and pricing in these orders could warrant finding that the NMPF witness, that the difference the Pacific Northwest reduces the blend the original producer-handler between the Class I price and the blend price to all other dairy farmers by exemption is no longer valid or should price is a reasonable estimate of the $0.02–$0.04 per cwt. The Pacific be limited to 150,000 pounds per month pricing advantage producer-handlers Northwest marketing area has eight Class I route disposition limit. However, enjoy even if it is not possible to producer-handlers, with four having the hearing notice for this proceeding determine the precise pricing advantage Class I route disposition exceeding 3 constrains such a finding to a level of of any individual producer-handler. million pounds per month. In the not less than 3 million pounds per This pricing advantage is compounded aggregate, all producer-handlers in the month of Class I route dispositions. as producer-handler size, and the Pacific Northwest account for nearly 10 Adopting a 3 million pound Class I accompanying increase in the volume of percent of the total Class I sales in the route disposition limit on producer- Class I sales in the marketing area, marketing area. Importantly, the impact handlers is supported in direct begins to increasingly affect the blend on the marketing area’s blend price by testimony by proponent witnesses and price received by pooled producers. the exemption from the pooling and other marketing data, most notably the The record contains specific examples pricing provision by any of the volume of Class I route disposition demonstrating that producer-handlers individual producer-handlers whose relative to the total volume of Class I with route disposition of more than 3 sales exceed 3 million pounds per sales, and structural changes in the million pounds per month have and are month on average exceeds $0.01, a level markets. Producer-handlers with more placing their fully regulated competitors found to be significant and disruptive to than 3 million pounds of Class I route at a comparative sales disadvantage. For orderly marketing. While the marketing disposition significantly affect the blend example, Shamrock Foods, a regulated conditions of the Pacific Northwest area price received by producers. This handler with substantial sales in the differ from the Arizona-Las Vegas decision finds merit in DFA’s and Arizona-Las Vegas marketing area, is marketing area in the number of Dean’s testimony that a blend price constrained in competing on a price producer-handlers and the relative impact of 1-cent per cwt is significant. basis for customers by the order’s market share of producer-handlers, The reduction in the blend prices minimum prices that must be paid for evidence of market disruption by received by producers in the Pacific milk procurement. Meanwhile, the large producer-handlers resulting in lower Northwest and Arizona-Las Vegas producer-handler is able to compete for blend prices is a common factor of both orders, attributable to producer-handler commercial customers at prices that a orders. route disposition are significant and regulated handler is unable to match. The record, based on Market greater than 1-cent per cwt. The record The competitive pricing advantage of Administrator data, supports evidence supports a conclusion that the producer-handlers is clearly attributable concluding that the annualized exemption of producer-handlers from to their exemption from paying the reduction in revenue received by the pooling and pricing has reduced the difference between the Class I and blend average pooled producer in the Pacific blend price between $0.04 to $0.06 per price into the producer-settlement fund. Northwest marketing area would range cwt per month in the Arizona-Las Vegas This competitive pricing advantage has from $1,500–$3,000 from the $0.02– marketing area and between $0.02 to been recognized previously by the $0.04 cents per cwt per month reduction $0.04 per cwt per month for the Pacific Department (Milk in the Texas on the order’s blend price during 2003. Northwest marketing area since January Southwest Plains Marketing Area, 54 FR For the Arizona-Las Vegas marketing 2000. The causes of the blend price 27182) and determined not to cause area the record supports concluding that reduction arise from a producer- disorderly marketing conditions. the annualized reduction in revenue handler’s ability to price fluid milk at an However, marketing conditions and the received by the average pooled producer amount between the blend price and the overall dairy industry’s marketing would range between $11,000–$17,000 order’s Class I price combined with the structure have changed significantly in from the $0.04–$0.06 per cwt impact of producer-handler’s size relative to the these orders resulting in disorderly large producer-handlers on that order’s total volume of Class I milk disposition marketing conditions as evidenced by blend price per month for 2003. in the respective marketing areas. lower blend prices received by pooled As in the Arizona-Las Vegas In general, the difference between the producers. The producer-handlers are marketing area, producer-handlers in Class I price and the blend price not significantly larger in these two orders the Pacific Northwest similarly enjoy a paid into the producer-settlement fund and while they are solely responsible for competitive sales advantage because is the pricing advantage enjoyed by their production and processing they do not procure milk at the order’s
VerDate Aug<31>2005 16:40 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 E:\FR\FM\14DEP2.SGM 14DEP2 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules 74187
Class I price as required of fully by having the pooling and pricing essentially become the residual regulated handlers. This has resulted in provisions of the orders apply to large suppliers of Class I milk to the market fully regulated handlers not being able producer-handlers. Accordingly, this when a producer-handler’s production to compete with producer-handlers for decision does not agree with the is not able to satisfy the fluid milk Class I route sales. For example, arguments of either the large producer- demands of their customer. The retailer Vitamilk testified that as regional handlers or in those exceptions of other need only purchase milk from fully grocery chains were acquired by interested parties arguments that full regulated handlers to offset what a national handlers in the Pacific regulation would eliminate their ability producer-handler is not able to supply. Northwest marketing area, independent to provide home-delivery or hormone- This is of growing concern to both regulated handlers such as Vitamilk free milk to their customers. No producer and regulated handler found themselves unable to compete for provision of any Federal milk marketing interests in the Pacific Northwest and sales with large producer-handlers in order prevents or promotes the the Arizona-Las Vegas marketing areas the changed marketing environment of marketing practices that handlers use to because consumers are buying an fewer wholesale customers on a price service their customer demands for increasing share of their grocery needs basis. Vitamilk demonstrated that the home-delivery or in providing hormone- from discount outlets. pricing advantage that accrues to free milk products. The record evidence, reinforced with producer-handlers from their exemption The record supports concluding that subsequent comments, also reveals that from pooling and pricing provisions producer-handlers with more than 3 producer-handlers in both the Pacific created an insurmountable marketing million pounds of route disposition per Northwest and the Arizona-Las Vegas obstacles that eliminated Vitamilk’s month have gained the ability to no marketing areas with route disposition ability to compete for available longer bear the burden of the surplus of more than 3 million pounds per customers in the marketing area on the disposal of their milk production. This month enjoy sales of fluid milk products basis of minimum Class I prices represents a significant development into unregulated areas such as Alaska established by the order. that warrants the need for regulatory and California. These examples For both the Pacific Northwest and action because producer-handler contribute to demonstrating a shifting of the Arizona-Las Vegas marketing areas, exemption from the pooling and pricing the burden of balancing their milk record evidence demonstrates that large provisions of the orders has been production onto the order’s pooled producer-handlers have a comparative rationalized on the basis that producer- producers. This outcome has the pricing advantage over fully regulated handlers bear the entire burden of compounded disadvantage for regulated handlers. Without full regulation of balancing their own production. A handlers and their producer-suppliers large producer-handlers, the order is not producer-handler not bearing the because fully regulated handlers must able to ensure equitable minimum burden of balancing their milk account to the marketwide pool for prices to similarly situated handlers. production essentially shifts such Class I sales outside of the marketing Such an advantage has resulted in fully burden to the market’s pooled producers area at the order’s Class I price. This regulated handlers losing sales to while simultaneously retaining the full yields a two-fold advantage to producer- producer-handlers on the basis of value of Class I sales for themselves. handlers—the ability to eliminate minimum prices. Producer-handlers Record evidence, reinforced by balancing their milk production through have similarly lost accounts to fully subsequent exceptions, demonstrates Class I sales at the expense of the regulated handlers but for reasons other that large producer-handlers are able to regulated market and the ability to than minimum prices established by the use their pricing advantage to transfer compete on a consistent basis at prices orders. their burden of surplus disposal to that fully regulated handlers are unable Consideration was given to the regulated handlers. Evidence provided to meet. themes of the more than 12,000 e-mail by an affiliate of NDA demonstrates that This evidence contradicts the notion comments, petition subjects and producer-handlers were able to use their that the balancing of their milk arguments advanced by large producer- pricing advantage to displace sales of production is a burden borne handlers that were received during the regulated handlers into Alaska. exclusively by the producer-handler. briefing and comment periods of the According to the witness testimony, Thus it is reasonable to find that Recommended Decision. One of these producer-handlers were able, at will, to producer-handlers with Class I route themes is that large producer-handlers displace the established accounts of distribution in excess of 3 million are family-owned business enterprises fully regulated handlers on the basis of pounds per month in the Pacific in both orders that should receive minimum prices. The testimony Northwest and the Arizona-Las Vegas support through their special status. supports concluding that such sales by marketing areas are not truly balancing This concern does not acknowledge that large producer-handlers displace fluid their production. Accordingly, this the producers who are the competitors milk sales of fully regulated handlers decision finds that the burden of of large producer-handlers are nearly all that would otherwise have been balancing has been essentially shifted to family-owned dairy farms who are producer-handler surplus. the market’s pooled participants. This members of cooperatives. Another A changing retail environment gives decision also finds that large producer- highly commented theme given rise to the potential of producer- handlers have and use a pricing consideration in this decision and handlers entering into sales agreements advantage that cannot be overcome by raised by large producer-handlers was to furnish the retailers with as much fully regulated handlers. This advantage that certain market niches that they milk as the producer-handler can increases only as producer-handler size serve in the public interest such as deliver. Marketing milk to national increases. Therefore, it is reasonable providing home delivery and hormone grocery discounters creates an that large producer-handler status free milk will not be provided by fully environment in which the producer- should be limited. regulated handlers and may not occur if handlers can sell nearly their entire This decision considered the they become fully regulated. There is no production to such a retailer, bypassing relevance of a 3 million pound route record evidence to support concluding the need to balance their production. In disposition threshold on producer- that home-delivery or availability of such a marketing environment, the handler route disposition. The relative hormone free milk would be disrupted regulated market’s pooled producers impact on the market’s pooled
VerDate Aug<31>2005 16:40 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 E:\FR\FM\14DEP2.SGM 14DEP2 74188 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules
participants by producer-handlers that arise from inequitable Class I prices and confirmed, except where they may having more than 3-million pounds of to handlers. A 3 million pound per conflict with those set forth herein. route disposition in the market is month limitation on route disposition (a) The tentative marketing agreement measurable and significant in both the would likely result in the full regulation and the order, as hereby proposed to be Pacific Northwest and Arizona-Las of a current producer-handler in the amended, and all of the terms and Vegas marketing areas. When Arizona-Las Vegas marketing area. Of conditions thereof, will tend to considered in the aggregate, producer- the producer-handlers operating in the effectuate the declared policy of the Act; handlers in the Pacific Northwest with Pacific Northwest marketing area, four (b) The parity prices of milk as over 3 million pounds of route producer-handlers would likely become determined pursuant to Section 2 of the disposition collectively have more regulated by adopting the 3 million Act are not reasonable in view of the significant share of the Class I market pound per month limitation on route price of feeds, available supplies of which further lowers the blend price disposition. Adoption of this limitation feeds, and other economic conditions received by dairy farmers. will not completely eliminate the which affect market supply and demand All handlers have different impact of the other producer-handlers for milk in the marketing area(s), and production and processing costs. These in the Pacific Northwest marketing area the minimum prices specified in the differences may be due to differing but should nevertheless result in a tentative marketing agreements and the levels of plant operating efficiencies significant and immediate reduction in orders, as hereby proposed to be related to their size or to that portion of market disorder and disruption by amended, are such prices as will reflect their milk supply that may be produced assuring that similarly situated handlers the aforesaid factors, insure a sufficient and supplied from their own farms. face the same minimum Class I prices quantity of pure and wholesome milk, Whatever the cost differences, all fully and producers receive the same blend and be in the public interest; regulated handlers must pay the same prices. (c) The tentative marketing minimum Class I price and equalize The hearing notice contained a agreements and the orders, as hereby their use-value of milk (generally, the proposal that would make the producer- proposed to be amended, will regulate difference between the Class I price and handler definition of the Pacific the handling of milk in the same the blend price) into the order’s Northwest order the same as that for the manner as, and will be applicable only producer-settlement fund. Similarly, all Arizona-Las Vegas order, most notably to persons in the respective classes of producers have differing milk the proposed requirement would not industrial and commercial activity production costs. Producer cost permit a producer-handler to market to specified in marketing agreements upon differences, for example, may be the the same client the same product in a which a hearing has been held; and result of farm size or differing milk similar package with a similar label in (d) All milk and milk products production levels attributable to the same month as a regulated handler. handled by handlers, as defined in the management ability. Nevertheless, The record does not contain sufficient tentative marketing agreement and the producers, regardless of their costs, evidence of disorderly marketing order as hereby proposed to be receive the same minimum blend price. conditions that would support amended, are in the current of interstate This decision finds that disorderly recommending a prohibition on commerce or directly burden, obstruct, marketing conditions exist in the Pacific producer-handlers in marketing to the or affect interstate commerce in milk or Northwest and Arizona-Las Vegas same client the same product in a its products. marketing areas. The source of the similar package with a similar label in disorder is directly attributable to the the same month as a regulated handler. Rulings and Exceptions operations of large producer-handlers Additionally, the proposals contained In arriving at the findings and and their exemption from the pooling in the hearing notice seeking the full conclusions, and the regulatory and pricing provisions of the orders. regulation of producer-handlers when provisions of this decision, each of the The record evidence for full regulation they surpass a 3-million pound per exceptions received was carefully and of large producer-handlers with route month threshold in Class I route fully considered in conjunction with the disposition in excess of 3 million dispositions in the marketing area were record evidence. To the extent that the pounds per month support finding that substantially modified during the findings and conclusions and the market disruption is present because the hearing. The modifications redescribe regulatory provisions of this decision blend prices paid to producers in both producer-handlers and harmonize the are at variance with any of the orders are measurably and significantly producer-handler definitions between exceptions, such exceptions are thereby lowered. the two orders with changed overruled for the reasons previously This decision finds that producer- terminology. The record evidence does stated in this decision. handlers with route disposition in not support finding that a compelling excess of 3 million pounds per month need exists to make the Pacific Marketing Agreement and Order enjoy significant competitive sales Northwest producer-handler definition Annexed hereto and made a part advantages because they do not account the same as that for the Arizona-Las hereof is one document—A Marketing to the marketwide pool at the same Vegas order. The current producer- Agreement regulating the handling of minimum Class I price for raw milk handler definitions of both orders milk. procurement. This clearly gives large adequately describe those entities that It is hereby ordered that this entire producer-handlers a pricing advantage qualify as producer-handlers. final decision and the Marketing over fully regulated handlers when Agreement annexed hereto be published General Findings competing for sales. This pricing in the Federal Register. advantage becomes amplified as The findings and determinations producer-handler size increases further hereinafter set forth supplement those Referendum Order To Determine affecting the minimum price producers that were made when the Pacific Producer Approval; Determination of receive. Adoption of a 3 million pound Northwest and the Arizona-Las Vegas Representative Period; and Designation per month threshold for producer- orders were first issued and when they of Referendum Agent handlers should tend to significantly were amended. The previous findings It is hereby directed that a referendum reduce disorderly marketing conditions and determinations are hereby ratified be conducted and completed on or
VerDate Aug<31>2005 16:40 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 E:\FR\FM\14DEP2.SGM 14DEP2 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules 74189
before the 30th day from the date this (1) The said order as hereby amended, route distribution within the marketing decision is published in the Federal and all of the terms and conditions area during the month not to exceed 3 Register, in accordance with the thereof, will tend to effectuate the million pounds and who the market procedure for the conduct of referenda declared policy of the act; administrator has designated a (7 CFR 900.300–311), to determine (2) The parity prices of milk, as producer-handler after determining that whether the issuance of the order as determined pursuant to Section 2 of the all of the requirements of this section amended and hereby proposed to be Act, are not reasonable in view of the have been met. amended, regulating the handling of price of feeds, available supplies of (a) Requirements for designation. milk in the Pacific Northwest and feeds, and other economic conditions Designation of any person as a Arizona-Las Vegas marketing areas are which affect market supply and demand producer-handler by the market approved or favored by producers, as for milk in the aforesaid marketing area. administrator shall be contingent upon defined under the terms of the order, as The minimum prices specified in the meeting the conditions set forth in amended and as hereby proposed to be order as hereby amended are such paragraphs (a)(1) through (5) of this amended, who during such prices as will reflect the aforesaid section. Following the cancellation of a representative period were engaged in factors, insure a sufficient quantity of previous producer-handler designation, the production of milk for sale within pure and wholesome milk, and be in the a person seeking to have their producer- the aforesaid marketing area. public interest; and handler designation reinstated must The representative period for the (3) The said order as hereby amended demonstrate that these conditions have conduct of such referendum is hereby regulates the handling of milk in the been met for the preceding month. determined to be June 2003. same manner as, and is applicable only (1) The care and management of the The agent of the Secretary to conduct to persons in the respective classes of dairy animals and the other resources such referendum is hereby designated to industrial or commercial activity and facilities designated in paragraph be James R. Daugherty, the Pacific specified in, a marketing agreement (b)(1) of this section necessary to Northwest and Arizona-Las Vegas upon which a hearing has been held. produce all Class I milk handled Market Administrator. (4) All milk and milk products (excluding receipts from handlers fully List of Subjects in 7 CFR Parts 1124 and handled by handlers, as defined in the regulated under any Federal order) are 1131 tentative marketing agreement and the under the complete and exclusive order as hereby proposed to be Milk marketing orders. control, ownership and management of amended, are in the current of interstate the producer-handler and are operated Dated: December 9, 2005. commerce or directly burden, obstruct, as the producer-handler’s own Lloyd C. Day, or affect interstate commerce in milk or enterprise and its own risk. Administrator, Agricultural Marketing its products. (2) The plant operation designated in Service. Order Related to Handling paragraph (b)(2) of this section at which Order Amending the Order Regulating the producer-handler processes and It is therefore ordered, that on and the Handling of Milk in the Pacific packages, and from which it distributes, after the effective date hereof, the Northwest and Arizona-Las Vegas its own milk production is under the handling of milk in the Pacific Marketing Areas complete and exclusive control, Northwest and Arizona-Las Vegas ownership and management of the (This order shall not become effective marketing areas shall be in conformity producer-handler and is operated as the unless and until the requirements of to and in compliance with the terms and producer-handler’s own enterprise and § 900.14 of the rules of practice and conditions of the order, as amended, at its sole risk. procedure governing proceedings to and as hereby amended as follows: (3) The producer-handler neither formulate marketing agreements and The provisions of the order amending marketing orders have been met). receives at its designated milk the order contained in the production resources and facilities nor Findings and Determinations Recommended Decision issued by the receives, handles, processes, or Administrator, Agricultural Marketing The findings and determinations distributes at or through any of its Service, on April 7, 2005, and published designated milk handling, processing, or hereinafter set forth supplement those in the Federal Register on April 13, that were made when the order was first distributing resources and facilities 2005 (70 FR 19636), are adopted and other source milk products for issued and when it was amended. The shall be the terms and provisions of previous findings and determinations reconstitution into fluid milk products these orders. The revised orders read as or fluid milk products derived from any are hereby ratified and confirmed, follows: except where they may conflict with source other than: 1. The authority citation for 7 CFR (i) Its designated milk production those set forth herein. Parts 1124 and 1131 continues to read (a) Finding. A public hearing was held resources and facilities (own farm as follows: upon certain proposed amendments to production); the tentative marketing agreement and Authority: 7 U.S.C. 601–674. (ii) Pool handlers and plants regulated to the order regulating the handling of under any Federal order within the PART 1124—MILK IN THE PACIFIC milk in the Pacific Northwest and limitation specified in paragraph (c)(2) NORTHWEST MARKETING AREA Arizona-Las Vegas marketing areas. The of this section; or hearing was held pursuant to the 2. Amend the Producer-handler (iii) Nonfat milk solids which are provisions of the Agricultural Marketing definition of the Pacific Northwest milk used to fortify fluid milk products. Agreement Act of 1937, as amended (7 marketing order by revising § 1124.10 to (4) The producer-handler is neither U.S.C. 601–674), and the applicable read as follows: directly nor indirectly associated with rules of practice and procedure (7 CFR the business control or management of, Part 900). § 1124.10 Producer-handler. nor has a financial interest in, another Upon the basis of the evidence Producer-handler means a person handler’s operation; nor is any other introduced at such hearing and the who operates a dairy farm and a handler so associated with the record thereof, it is found that: distributing plant from which there is producer-handler’s operation.
VerDate Aug<31>2005 16:40 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 E:\FR\FM\14DEP2.SGM 14DEP2 74190 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules
(5) No milk produced by the herd(s) first day of the month following the distributing plant from which there is or on the farm(s) that supply milk to the month in which the requirements were route distribution within the marketing producer-handler’s plant operation is: not met or the conditions for area during the month not to exceed 3 (i) Subject to inclusion and cancellation occurred. million pounds and who the market participation in a marketwide (1) Milk from the milk production administrator has designated a equalization pool under a milk resources and facilities of the producer- producer-handler after determining that classification and pricing program handler, designated in paragraph (b)(1) all of the requirements of this section under the authority of a State of this section, is delivered in the name have been met. government maintaining marketwide of another person as producer milk to (a) Requirements for designation. pooling of returns, or another handler. Designation of any person as a (ii) Marketed in any part as Class I (2) The producer-handler handles producer-handler by the market milk to the non-pool distributing plant fluid milk products derived from administrator shall be contingent upon of any other handler. sources other than the milk production meeting the conditions set forth in (b) Designation of resources and facilities and resources designated in paragraphs (a)(1) through (5) of this facilities. Designation of a person as a paragraph (b)(1) of this section, except section. Following the cancellation of a producer-handler shall include the that it may receive at its plant, or previous producer-handler designation, determination of what shall constitute acquire for route disposition, fluid milk a person seeking to have their producer- milk production, handling, processing, products from fully regulated plants and handler designation reinstated must and distribution resources and facilities, handlers under any Federal order if demonstrate that these conditions have all of which shall be considered an such receipts do not exceed 150,000 been met for the preceding month. integrated operation, under the sole and pounds monthly. This limitation shall (1) The care and management of the exclusive ownership of the producer- not apply if the producer-handler’s dairy animals and the other resources handler. own-farm production is less than and facilities designated in paragraph (1) Milk production resources and 150,000 pounds during the month. (b)(1) of this section necessary to facilities shall include all resources and (3) Milk from the milk production produce all Class I milk handled facilities (milking herd(s), buildings resources and facilities of the producer- (excluding receipts from handlers fully housing such herd(s), and the land on handler is subject to inclusion and regulated under any Federal order) are which such buildings are located) used participation in a marketwide under the complete and exclusive for the production of milk which are equalization pool under a milk control, ownership and management of solely owned, operated, and which the classification and pricing plan operating the producer-handler and are operated producer-handler has designated as a under the authority of a State as the producer-handler’s own source of milk supply for the producer- government. enterprise and its own risk. handler’s plant operation. However, for (d) Public announcement. The market (2) The plant operation designated in purposes of this paragraph, any such administrator shall publicly announce: paragraph (b)(2) of this section at which milk production resources and facilities (1) The name, plant location(s), and the producer-handler processes and which do not constitute an actual or farm location(s) of persons designated as packages, and from which it distributes, potential source of milk supply for the producer-handlers; its own milk production is under the producer-handler’s operation shall not (2) The names of those persons whose complete and exclusive control, be considered a part of the producer- designations have been cancelled; and ownership and management of the handler’s milk production resources and (3) The effective dates of producer- producer-handler and is operated as the facilities. handler status or loss of producer- producer-handler’s own enterprise and (2) Milk handling, processing, and handler status for each. Such at its sole risk. distribution resources and facilities announcements shall be controlling (3) The producer-handler neither shall include all resources and facilities with respect to the accounting at plants receives at its designated milk (including store outlets) used for of other handlers for fluid milk products production resources and facilities nor handling, processing, and distributing received from any producer-handler. receives, handles, processes, or fluid milk products which are solely (e) Burden of establishing and distributes at or through any of its owned by, and directly operated or maintaining producer-handler status. designated milk handling, processing, or controlled by the producer-handler or in The burden rests upon the handler who distributing resources and facilities which the producer-handler in any way is designated as a producer-handler to other source milk products for has an interest, including any establish through records required reconstitution into fluid milk products contractual arrangement, or over which pursuant to § 1000.27 that the or fluid milk products derived from any the producer-handler directly or requirements set forth in paragraph (a) source other than: indirectly exercises any degree of of this section have been and are (i) Its designated milk production management control. continuing to be met, and that the resources and facilities (own farm (3) All designations shall remain in conditions set forth in paragraph (c) of production); effect until canceled, pursuant to this section for cancellation of the (ii) Pool handlers and plants regulated paragraph (c) of this section. designation do not exist. under any Federal order within the (c) Cancellation. The designation as a limitation specified in paragraph (c)(2) producer-handler shall be canceled PART 1131—MILK IN THE ARIZONA- of this section; or upon determination by the market LAS VEGAS MARKETING AREA (iii) Nonfat milk solids which are administrator that any of the 3. Amend the Producer-handler used to fortify fluid milk products. requirements of paragraph (a)(1) through definition of the Arizona-Las Vegas milk (4) The producer-handler is neither (5) of this section are not continuing to marketing order by revising § 1131.10 to directly nor indirectly associated with be met, or under any of the conditions read as follows: the business control or management of, described in paragraphs (c)(1), (2) or (3) nor has a financial interest in, another of this section. Cancellation of a § 1131.10 Producer-handler. handler’s operation; nor is any other producer-handler’s status pursuant to Producer-handler means a person handler so associated with the this paragraph shall be effective on the who operates a dairy farm and a producer-handler’s operation.
VerDate Aug<31>2005 16:40 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 E:\FR\FM\14DEP2.SGM 14DEP2 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Proposed Rules 74191
(5) No milk produced by the herd(s) be considered a part of the producer- acquire for route disposition, fluid milk or on the farm(s) that supply milk to the handler’s milk production resources and products from fully regulated plants and producer-handler’s plant operation is: facilities. handlers under any Federal order if (i) Subject to inclusion and (2) Milk handling, processing, and such receipts do not exceed 150,000 participation in a marketwide distribution resources and facilities pounds monthly. This limitation shall equalization pool under a milk shall include all resources and facilities not apply if the producer-handler’s classification and pricing program (including store outlets) used for own-farm production is less than under the authority of a State handling, processing, and distributing 150,000 pounds during the month. government maintaining marketwide fluid milk products which are solely (3) Milk from the milk production pooling of returns, or owned by, and directly operated or resources and facilities of the producer- (ii) Marketed in any part as Class I controlled by the producer-handler or in handler is subject to inclusion and milk to the non-pool distributing plant which the producer-handler in any way participation in a marketwide of any other handler. has an interest, including any equalization pool under a milk (6) The producer-handler does not contractual arrangement, or over which classification and pricing plan operating distribute fluid milk products to a the producer-handler directly or under the authority of a State wholesale customer who is served by a indirectly exercises any degree of government. plant described in § 1131.7(a), (b), or (e), management control. or a handler described in § 1000.8(c) (3) All designations shall remain in (d) Public announcement. The market that supplied the same product in the effect until canceled pursuant to administrator shall publicly announce: same-sized package with a similar label paragraph (c) of this section. (1) The name, plant location(s), and to a wholesale customer during the (c) Cancellation. The designation as a farm location(s) of persons designated as month. producer-handler shall be canceled producer-handlers; (b) Designation of resources and upon determination by the market facilities. Designation of a person as a administrator that any of the (2) The names of those persons whose producer-handler shall include the requirements of paragraph (a)(1) through designations have been cancelled; and determination of what shall constitute (5) of this section are not continuing to (3) The effective dates of producer- milk production, handling, processing, be met, or under any of the conditions handler status or loss of producer- and distribution resources and facilities, described in paragraphs (c)(1), (2) or (3) handler status for each. Such all of which shall be considered an of this section. Cancellation of a announcements shall be controlling integrated operation, under the sole and producer-handler’s status pursuant to with respect to the accounting at plants exclusive ownership of the producer- this paragraph shall be effective on the of other handlers for fluid milk products handler. first day of the month following the received from any producer-handler. (1) Milk production resources and month in which the requirements were (e) Burden of establishing and facilities shall include all resources and not met or the conditions for maintaining producer-handler status. facilities (milking herd(s), buildings cancellation occurred. The burden rests upon the handler who housing such herd(s), and the land on (1) Milk from the milk production is designated as a producer-handler to which such buildings are located) used resources and facilities of the producer- establish through records required for the production of milk which are handler, designated in paragraph (b)(1) pursuant to § 1000.27 that the solely owned, operated, and which the of this section, is delivered in the name requirements set forth in paragraph (a) producer-handler has designated as a of another person as producer milk to of this section have been and are source of milk supply for the producer- another handler. handler’s plant operation. However, for (2) The producer-handler handles continuing to be met, and that the purposes of this paragraph, any such fluid milk products derived from conditions set forth in paragraph (c) of milk production resources and facilities sources other than the milk production this section for cancellation of the which do not constitute an actual or facilities and resources designated in designation do not exist. potential source of milk supply for the paragraph (b)(1) of this section, except [FR Doc. 05–24024 Filed 12–9–05; 2:16 pm] producer-handler’s operation shall not that it may receive at its plant, or BILLING CODE 3410–02–P
VerDate Aug<31>2005 16:40 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 E:\FR\FM\14DEP2.SGM 14DEP2 i
Reader Aids Federal Register Vol. 70, No. 239 Wednesday, December 14, 2005
CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING DECEMBER
Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. 13 CFR Presidential Documents 3 CFR Executive orders and proclamations 741–6000 121...... 72577 Proclamations: 123...... 72577 The United States Government Manual 741–6000 7967...... 72575 7968...... 73903 Other Services 14 CFR Electronic and on-line services (voice) 741–6020 5 CFR 23...... 72068, 72070 Privacy Act Compilation 741–6064 25...... 73559, 73561 300...... 72065 39 ...... 72358, 72361, 72363, Public Laws Update Service (numbers, dates, etc.) 741–6043 307...... 72065 TTY for the deaf-and-hard-of-hearing 741–6086 72366, 72368, 72595, 72902, 315...... 72065 73347, 73351, 73355, 73358, 316...... 72065 73361, 73364, 73576, 73577, ELECTRONIC RESEARCH 330...... 72065 73579, 73581, 73583, 73919, 335...... 72065 World Wide Web 73921, 73923, 73925, 73930, 550...... 72065 73933, 73935 Full text of the daily Federal Register, CFR and other publications 551...... 72065 71 ...... 72371, 72905, 73129, is located at: http://www.gpoaccess.gov/nara/index.html 720...... 72065 73131, 73132, 73134 Federal Register information and research tools, including Public Proposed Rules: 97 ...... 72703, 72705, 73367, Inspection List, indexes, and links to GPO Access are located at: 337...... 73646 73785 930...... 73646 http://www.archives.gov/federallregister/ Proposed Rules: 13...... 72403 E-mail 7 CFR 39 ...... 72083, 72085, 72088, FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 210...... 72349 72327, 72406, 72409, 72599, an open e-mail service that provides subscribers with a digital 220...... 72349 72601, 72726, 72938, 72939, form of the Federal Register Table of Contents. The digital form 226...... 72349 72942, 72945, 72947, 73171, of the Federal Register Table of Contents includes HTML and 272...... 72350 73173, 73391, 73392, 73633, PDF links to the full text of each document. 274...... 72350 73665, 73668, 73671 276...... 72350 To join or leave, go to http://listserv.access.gpo.gov and select 47...... 72403 278...... 72350 61...... 72403 Online mailing list archives, FEDREGTOC-L, Join or leave the list 279...... 72350 (or change settings); then follow the instructions. 71 ...... 72949, 72950, 73959 280...... 72350 91...... 72403 PENS (Public Law Electronic Notification Service) is an e-mail 301...... 73553 93...... 73674 service that notifies subscribers of recently enacted laws. 305...... 72881 183...... 72403 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 319...... 72068, 72881 399...... 73960 and select Join or leave the list (or change settings); then follow 800...... 73556 the instructions. 906...... 73123 15 CFR 979...... 72699 748...... 72073 FEDREGTOC-L and PENS are mailing lists only. We cannot 984...... 72195, 72892 respond to specific inquiries. 985...... 72355 16 CFR Reference questions. Send questions and comments about the 1030...... 73126 303...... 73369 Federal Register system to: [email protected] 1902...... 73347 801...... 73369 The Federal Register staff cannot interpret specific documents or Proposed Rules: 803...... 73369 regulations. 927...... 73167 1124...... 74166 17 CFR 1131...... 74166 FEDERAL REGISTER PAGES AND DATE, DECEMBER 200...... 72566 1207...... 73945 201...... 72566 1209...... 73945 72065–72194...... 1 229...... 72372 1220...... 72257 72195–72348...... 2 231...... 73344 239...... 72372 72349–72576...... 5 9 CFR 72577–72698...... 6 241...... 73344 94...... 73905 271...... 73344 72699–72880...... 7 420...... 73378 72881–73122...... 8 11 CFR 73123–73346...... 9 Proposed Rules: 18 CFR 73347–73552...... 12 109...... 73946 Proposed Rules: 73553–73904...... 13 41...... 72730 73905–74192...... 14 12 CFR 158...... 72730 229...... 73128 284...... 72090 707...... 72895 286...... 72730 796...... 72702 349...... 72730 1805...... 73887 Proposed Rules: 19 CFR Ch.III ...... 73652 360...... 72373
VerDate Aug 31 2005 18:12 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00001 Fmt 4712 Sfmt 4712 E:\FR\FM\14DECU.LOC 14DECU ii Federal Register / Vol. 70, No. 239/ Wednesday, December 14, 2005 / Reader Aids
20 CFR 30 CFR 41 CFR 217...... 73151 423...... 73135 204...... 72381 60-250...... 72148 223...... 73150 655...... 72556 225...... 73152, 73153 Proposed Rules: 31 CFR 42 CFR 226...... 73148 260...... 73175 Proposed Rules: 405...... 73623 252 ...... 73148, 73150, 73152, 73153 320...... 73175 1...... 72739 Proposed Rules: 9901...... 73423 341...... 73176 1001...... 73186 404...... 72411, 72416 32 CFR 9903...... 73423 416...... 72411, 72416 285...... 73378 44 CFR Proposed Rules: Ch. 2 ...... 73187 346...... 72917 64...... 72078 21 CFR 208...... 73187 Proposed Rules: 65...... 73634 Ch. I ...... 72074 635...... 73181 225...... 73189 Proposed Rules: 252...... 73187, 73189 172...... 72906 67...... 73677 520...... 73136 33 CFR 253...... 73187 524...... 73137 117...... 73380, 73937 45 CFR 610...... 72197 Proposed Rules: Proposed Rules: 49 CFR Proposed Rules: 100...... 72964 1180...... 73967 105...... 73156 310...... 73178 117...... 72419, 72967 106...... 73156 358...... 73178 47 CFR 107...... 73156 610...... 72257 36 CFR 73 ...... 72723, 73939, 73940, 110...... 73156 1011...... 73587 24 CFR 73941, 73942 171...... 73156 Proposed Rules: 172...... 73156 203...... 72696 37 CFR 73...... 72763, 73972 173...... 72930, 73156 941...... 72908 253...... 72077 76...... 73973 174...... 73156 Proposed Rules: 175...... 73156 38 CFR 3282...... 73966 48 CFR 176...... 73156 3...... 72211 26 CFR 1...... 73415 177...... 73156 20...... 72211 2...... 73415 178...... 73156 1 ...... 72376, 72908, 72914 4...... 73415 180...... 73156 602...... 72908, 72914 39 CFR 5...... 73415 234...... 72382 Proposed Rules: 111...... 72221 6...... 73415 236...... 72382 1 ...... 72260, 72952, 73393, 232...... 72078 7...... 73415 571...... 73383 73967 8...... 73415 1540...... 72930 40 CFR 54...... 72953 9...... 73415 Proposed Rules: 301...... 72954, 73393 52 ...... 72597, 72720, 73380 12...... 73415 229...... 73070 60...... 73138 27 CFR 13...... 73415 238...... 73070 61...... 73138, 73595 15...... 73415 9 ...... 72707, 72710, 72713, 63...... 73138, 73595 16...... 73415 50 CFR 72717 82...... 73604 17...... 73415 Proposed Rules: 86...... 72917 19...... 73415 17 ...... 73820, 74112, 74138 4...... 72731 420...... 73618 22...... 73415 300...... 73943 5...... 72731 Proposed Rules: 25...... 73415 622...... 73383 7...... 72731 51...... 72268 28...... 73415 635...... 72080, 72724 9...... 72733 52 ...... 72740, 72741, 72744, 30...... 73415 648...... 72082, 72934 73414 32...... 73415 660...... 72385 28 CFR 55...... 72094 36...... 73415 679...... 73389 16...... 72199 61...... 73183, 73675 42...... 73415 Proposed Rules: 905...... 73587 63 ...... 72330, 73098, 73183, 48...... 73415 17 ...... 72776, 72973, 73190, 73675 49...... 73415 73699 29 CFR 81...... 73183 50...... 73415 216...... 73426 4011...... 72074 86...... 72970 52...... 73415 223...... 72099 4022...... 72074 96...... 72268 53...... 73415 635...... 73980 4044 ...... 72076, 72205, 73330 112...... 73518, 73524 205...... 73148 648...... 72100 Proposed Rules: 122...... 73676 211...... 73150 660...... 72777 1611...... 73413 180...... 72757 216...... 73151 697...... 73717
VerDate Aug 31 2005 18:12 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00002 Fmt 4712 Sfmt 4712 E:\FR\FM\14DECU.LOC 14DECU Federal Register / Vol. 70, No. 239/ Wednesday, December 14, 2005 / Reader Aids iii
REMINDERS 05; published 10-24-05 published 11-18-05 [FR Ports and waterways safety; The items in this list were [FR 05-21169] 05-22891] regulated navigation areas, editorially compiled as an aid AGRICULTURE Michigan; comments due by safety zones, security to Federal Register users. DEPARTMENT 12-23-05; published 11- zones, etc.: Inclusion or exclusion from Food and Nutrition Service 23-05 [FR 05-23213] Narragansett Bay, RI and this list has no legal Food stamp program: Water pollution; effluent Mt. Hope Bay, MA; guidelines for point source Providence River significance. Quality control system; categories: regulated navigation area; comments due by 12-22- Meat and poultry products comments due by 12-21- 05; published 9-23-05 [FR 05; published 11-21-05 RULES GOING INTO 05-19020] processing facilities; Open EFFECT DECEMBER 14, for comments until further [FR 05-22951] DEFENSE DEPARTMENT 2005 notice; published 9-8-04 HOMELAND SECURITY Federal Acquisition Regulation [FR 04-12017] DEPARTMENT (FAR): AGRICULTURE FEDERAL Federal Emergency Central contractor COMMUNICATIONS Management Agency DEPARTMENT registration; taxpayer COMMISSION Disaster assistance: Animal and Plant Health identification number Common carrier services: Inspection Service validation; comments due Special Community Disaster Exportation and importation of by 12-19-05; published Wireless telecommunications Loans Program; animals and animal 10-19-05 [FR 05-20869] services— implementation; comments Wireless radio services; due by 12-19-05; products: ENVIRONMENTAL radiated power rules; published 10-18-05 [FR Whole cuts of boneless beef PROTECTION AGENCY comments due by 12- 05-20920] from— Air pollutants, hazardous; 19-05; published 10-19- HOUSING AND URBAN Japan; published 12-14-05 national emission standards: 05 [FR 05-20928] DEVELOPMENT ENVIRONMENTAL Electric utility steam GENERAL SERVICES DEPARTMENT PROTECTION AGENCY generating units and ADMINISTRATION removal of coal- and oil- Manufactured Housing Dispute Air quality implementation Federal Acquisition Regulation fired electric utility steam Resolution Program; plans; approval and (FAR): comments due by 12-19-05; promulgation; various generating units from Section 112(c) list Central contractor published 10-20-05 [FR 05- States: registration; taxpayer 20953] Reconsideration petitions; California; published 11-14- identification number comments due by 12- INTERIOR DEPARTMENT 05 validation; comments due 19-05; published 10-28- Fish and Wildlife Service by 12-19-05; published PERSONNEL MANAGEMENT 05 [FR 05-21456] 10-19-05 [FR 05-20869] Endangered and threatened OFFICE Air pollution control; new species: HEALTH AND HUMAN Prevailing rate systems; motor vehicles and engines: Critical habitat SERVICES DEPARTMENT published 11-14-05 Diesel fuel sulfur transition designations— Centers for Disease Control TRANSPORTATION provisions; highway and Alameda whipsnake; and Prevention DEPARTMENT nonroad diesel and Tier 2 comments due by 12- Possession, use and transfer Federal Aviation gasoline programs; 19-05; published 10-18- of select agents and toxins: Administration comments due by 12-22- 05 [FR 05-20145] 1918 pandemic influenza Airworthiness directives: 05; published 11-22-05 Findings on petitions, etc.— [FR 05-22806] virus; reconstructed Hamilton Sundstrand Power Mexican bobcat; Air pollution; standards of replication competent Systems; published 11-9- comments due by 12- performance for new forms; comments due by 05 23-05; published 11-23- stationary sources: 12-19-05; published 10- 20-05 [FR 05-20946] 05 [FR 05-23032] Electric utility steam NATIONAL AERONAUTICS COMMENTS DUE NEXT generating units; mercury HEALTH AND HUMAN WEEK SERVICES DEPARTMENT AND SPACE performance standards ADMINISTRATION Reconsideration petitions; Food and Drug Federal Acquisition Regulation comments due by 12- Administration AGRICULTURE (FAR): DEPARTMENT 19-05; published 10-28- Animal drugs, feeds, and 05 [FR 05-21457] related products: Central contractor Agricultural Marketing registration; taxpayer Air quality implementation Cattle brains and spinal Service identification number plans; approval and cords; prohibited use; Hass avocado promotion, validation; comments due promulgation; various comments due by 12-19- research, and information by 12-19-05; published States; air quality planning 05; published 10-6-05 [FR order; comments due by 12- 10-19-05 [FR 05-20869] purposes; designation of 05-20196] 20-05; published 10-21-05 ARTS AND HUMANITIES, [FR 05-21081] areas: Human drugs: Indiana; comments due by Positron emission NATIONAL FOUNDATION Nectarines and peaches 12-23-05; published 11- tomography drug National Foundation on the grown in— 23-05 [FR 05-23221] products; current good Arts and the Humanities California; comments due by Air quality implementation manufacturing practice; Privacy Act; implementation; 12-19-05; published 11- plans; approval and comments due by 12-19- comments due by 12-23-05; 29-05 [FR 05-23327] promulgation; various 05; published 9-20-05 [FR published 11-23-05 [FR 05- AGRICULTURE States: 05-18510] 23118] DEPARTMENT California; comments due by HOMELAND SECURITY SOCIAL SECURITY Animal and Plant Health 12-23-05; published 11- DEPARTMENT ADMINISTRATION Inspection Service 23-05 [FR 05-23089] Coast Guard Social security benefits and Plant-related quarantine, Hazardous waste program Drawbridge operations: supplemental security domestic: authorizations: Connecticut; comments due income: Asian longhorned beetle; Massachusetts; comments by 12-23-05; published Federal old age, survivors, comments due by 12-23- due by 12-19-05; 12-8-05 [FR 05-23752] and disability insurance,
VerDate Aug 31 2005 18:12 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00003 Fmt 4712 Sfmt 4711 E:\FR\FM\14DECU.LOC 14DECU iv Federal Register / Vol. 70, No. 239/ Wednesday, December 14, 2005 / Reader Aids
and aged, blind, and 19-05; published 11-18- session of Congress which other purposes. (Dec. 7, 2005; disabled— 05 [FR 05-22918] have become Federal laws. It 119 Stat. 2546) Work report receipts, Restricted areas; comments may be used in conjunction benefit payments for due by 12-19-05; published with ‘‘PLUS’’ (Public Laws H.R. 1101/P.L. 109–127 trial work period service 11-2-05 [FR 05-21878] Update Service) on 202–741– months after fraud TRANSPORTATION 6043. This list is also To revoke a Public Land conviction, student DEPARTMENT available online at http:// Order with respect to certain earned income Federal Railroad www.archives.gov/federal- lands erroneously included in exclusion, etc.; Administration register/laws.html. the Cibola National Wildlife comments due by 12- Track safety standards: Refuge, California. (Dec. 7, The text of laws is not 2005; 119 Stat. 2548) 19-05; published 10-18- Continuous welded rail; published in the Federal 05 [FR 05-20803] joints inspection; Register but may be ordered Last List December 7, 2005 TRANSPORTATION comments due by 12-19- in ‘‘slip law’’ (individual 05; published 11-2-05 [FR DEPARTMENT pamphlet) form from the 05-21845] Federal Aviation Superintendent of Documents, Administration TREASURY DEPARTMENT U.S. Government Printing Comptroller of the Currency Airworthiness directives: Office, Washington, DC 20402 Public Laws Electronic Practice and procedure: (phone, 202–512–1808). The Notification Service Boeing; Open for comments Fees assessment; until further notice; text will also be made (PENS) comments due by 12-19- available on the Internet from published 8-16-04 [FR 04- 05; published 11-17-05 18641] GPO Access at http:// [FR 05-22815] www.gpoaccess.gov/plaws/ Rolls-Royce Corp.; VETERANS AFFAIRS index.html. Some laws may PENS is a free electronic mail comments due by 12-19- DEPARTMENT not yet be available. notification service of newly 05; published 10-18-05 Compensation, pension, burial enacted public laws. To [FR 05-20779] and related benefits: H.R. 584/P.L. 109–125 subscribe, go to http:// Airworthiness standards: Dependency and indemnity Department of the Interior listserv.gsa.gov/archives/ Special conditions— compensation benefits; Volunteer Recruitment Act of publaws-l.html Garmin AT, Inc. Raytheon comments due by 12-20- 2005 (Dec. 7, 2005; 119 Stat. A36 airplanes; 05; published 10-21-05 2544) Note: This service is strictly comments due by 12- [FR 05-21026] H.R. 680/P.L. 109–126 for E-mail notification of new 19-05; published 11-18- To direct the Secretary of laws. The text of laws is not 05 [FR 05-22917] LIST OF PUBLIC LAWS Interior to convey certain land available through this service. Garmin AT, Inc. Raytheon held in trust for the Paiute PENS cannot respond to B58 airplanes; This is a continuing list of Indian Tribe of Utah to the specific inquiries sent to this comments due by 12- public bills from the current City of Richfield, Utah, and for address.
VerDate Aug 31 2005 18:12 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00004 Fmt 4712 Sfmt 4711 E:\FR\FM\14DECU.LOC 14DECU