7–7–05 Thursday Vol. 70 No. 129 July 7, 2005
Pages 39173–39410
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i II Federal Register / Vol. 70, No. 129 / Thursday, July 7, 2005
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Contents Federal Register Vol. 70, No. 129
Thursday, July 7, 2005
Administration on Aging See National Oceanic and Atmospheric Administration See Aging Administration Copyright Office, Library of Congress Aging Administration RULES NOTICES Copyright Arbitration Royalty Panel rules and procedures: Meetings: Secondary transmissions by satellite carriers; royalty fee 2005 White House Conference on Aging Policy adjustment, 39178–39180 Committee, 39275 NOTICES Copyright office and procedures: Agriculture Department Orphan works; ownership issues inquiry See Animal and Plant Health Inspection Service Public roundtables, 39341–39343 See Food Safety and Inspection Service Reports and guidance documents; availability, etc.: See Forest Service Satellite Home Viewer Extension and Reauthorization See Grain Inspection, Packers and Stockyards Act; first report to Congress; information request, Administration 39343–39345 Air Force Department Defense Base Closure and Realignment Commission NOTICES Meetings: NOTICES Air Force Academy Board of Visitors, 39249 Meetings; correction, 39241–39242 Animal and Plant Health Inspection Service Defense Department PROPOSED RULES See Air Force Department Plant-related quarantine, foreign: NOTICES Cut flowers from countries with chrysanthemum white Agency information collection activities; proposals, rust, 39194–39199 submissions, and approvals, 39242 Arms sales notification; transmittal letter, etc., 39242–39248 Antitrust Division Federal Acquisition Regulation (FAR): NOTICES Agency information collection activities; proposals, Competitive impact statements and proposed consent submissions, and approvals, 39248 judgments: Meetings: Eastern Mushroom Marketing Cooperative, Inc., 39336– Defense Acquisition Performance Assessment Project; 39338 correction, 39248–39249 National cooperative research notifications: Microcontaminant Reduction Venture, 39338 Education Department Mobile Enterprise Alliance, Inc., 39338 NOTICES National Center for Manufacturing Sciences, Inc., 39339 Agency information collection activities; proposals, NFC Forum, Inc., 39339 submissions, and approvals, 39249–39250 Portland Cement Association, 39339 Grants and cooperative agreements; availability, etc.: Southwest Research Institute, 39339–39340 Safe and Drug-Free Schools Programs— School-Based Student Drug-Testing Program, 39250– Arts and Humanities, National Foundation 39259 See National Foundation on the Arts and the Humanities Employment and Training Administration Broadcasting Board of Governors NOTICES NOTICES Organization, functions, and authority delegations: Meetings; Sunshine Act, 39234 Chief, Division of Foreign Labor Certification, 39386– Civil Rights Commission 39388 NOTICES Meetings; Sunshine Act, 39234–39235 Energy Department See Federal Energy Regulatory Commission Coast Guard RULES RULES Sales regulation: Ports and waterways safety; regulated navigation areas, Strategic Petroleum Reserve petroleum; price competitive safety zones, security zones, etc.: sale; standard sales provisions, 39364–39383 Port Lavaca-Point Comfort et al., TX, 39176–39178 NOTICES Environmental Protection Agency Agency information collection activities; proposals, RULES submissions, and approvals, 39323–39325 Superfund program: National oil and hazardous substances contingency Commerce Department plan— See International Trade Administration National priorities list update, 39180–39182
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PROPOSED RULES Viking Gas Transmission Co., 39263 Air quality planning purposes; designation of areas: New York, 39215–39217 Federal Mediation and Conciliation Service Superfund program: PROPOSED RULES National oil and hazardous substances contingency Arbitration services: plan— Arbitration policies, functions, and procedures; National priorities list update, 39217 amendments, 39209–39213 NOTICES Grants and cooperative agreements; availability, etc.: Federal Reserve System Hypoxia reduction in Gulf of Mexico; innovative NOTICES producer partnership initiatives, 39269–39273 Banks and bank holding companies: Meetings: Change in bank control, 39274–39275 Environmental Laboratory Advisory Board; teleconference, 39273–39274 Fish and Wildlife Service Superfund; response and remedial actions, proposed PROPOSED RULES settlements, etc.: Endangered and threatened species: Georgia-Pacific Hardwood Sawmill Site, NC, 39274 Critical habitat designations— Southwestern willow flycatcher, 39227–39231 Executive Office of the President NOTICES See Presidential Documents Endangered and threatened species: Black-footed ferret and pallid sturgeon; 5-year review, Federal Aviation Administration 39326–39327 RULES Valley elderberry longhorn beetle, etc.; 5-year review, Class E airspace, 39175–39176 39327–39329 Correction, 39175 PROPOSED RULES Food and Drug Administration Airworthiness directives: NOTICES SOCATA-Groupe AEROSPATIALE, 39204–39206 Memorandums of understanding: NOTICES Howard University; human and animal health and Advisory circulars; availability, etc.: medicine; integrated system of shared interest in Normal category rotorcraft certification changes and scientific progress, 39275–39286 transport category rotorcraft certification changes, South Carolina Health and Environmental Control 39354–39355 Department, Bureau of Radiological Health; mammography quality standards; State certifiers Federal Communications Commission program, 39286–39292 RULES University of Houston; human and animal health and Radio broadcasting: medicine; integrated system of shared interest in Low power radio service; creation, 39182–39186 scientific progress, 39292–39300 PROPOSED RULES Radio broadcasting: Food Safety and Inspection Service Low power radio service; creation, 39217–39227 NOTICES Meetings: Federal Election Commission Microbiological Criteria for Foods National Advisory NOTICES Committee, 39233–39234 Meetings; Sunshine Act, 39274 Forest Service Federal Energy Regulatory Commission NOTICES NOTICES Meetings: Complaints filed: Resource Advisory Committees— San Francisco, CA, et al., 39264 Tuolumne County, 39234 Electric rate and corporate regulation combined filings, 39264–39266 General Services Administration Environmental statements; notice of intent: NOTICES Sonora Pipeline, LLC; site visit meeting, 39266–39267 Federal Acquisition Regulation (FAR): Hydroelectric applications, 39267–39268 Agency information collection activities; proposals, Off-the-record communications, 39268–39269 submissions, and approvals, 39248 Applications, hearings, determinations, etc.: CenterPoint Energy-Mississippi River Transmission Corp., Grain Inspection, Packers and Stockyards Administration 39259 PROPOSED RULES Dauphin Island Gathering Partners, 39259–39260 Graded commodities; review inspection requirements, Duke Power, 39260 39199–39201 Duquesne Light Co., 39261 Energy Cooperative of New York, Inc., 39261 Health and Human Services Department Georgia Public Service Co., 39261–39262 See Aging Administration Midwestern Gas Transmission Co., 39262 See Food and Drug Administration Northbrook New York, LLC, et al., 39262 Questar Pipeline Co., 39262–39263 Homeland Security Department San Juan Mesa Wind Project, LLC, 39263 See Coast Guard
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See U.S. Citizenship and Immigration Services National Credit Union Administration NOTICES PROPOSED RULES Reports and guidance documents; availability, etc.: Credit unions: Privacy impact assessment; United States Visitor and Economic Growth and Regulatory Paperwork Reduction Immigrant Status Indicator Technology Program; Act of 1996; implementation— radio frequency identification, 39300–39323 Regulatory review for reduction of burden on federally- insured credit unions, 39202–39204 Interior Department See Fish and Wildlife Service See Minerals Management Service National Foundation on the Arts and the Humanities See National Park Service NOTICES Meetings: Internal Revenue Service Arts Advisory Panel, 39345–39346 NOTICES Agency information collection activities; proposals, submissions, and approvals, 39355–39362 National Oceanic and Atmospheric Administration Meetings: RULES Taxpayer Advocacy Panels, 39362 Fishery conservation and management: Caribbean, Gulf, and South Atlantic fisheries— International Trade Administration King and Spanish mackerel, 39187–39190 NOTICES Northeastern United States fisheries— Meetings: Emergency closure due to presence of toxin causing Exporters’ Textile Advisory Committee, 39235 paralytic shellfish poisoning; correction, 39192– 39193 International Trade Commission Georges Bank cod, haddock and yellowtail flounder, NOTICES 39190–39192 Import investigations: PROPOSED RULES Internal combustion industrial forklift trucks from— Endangered and threatened species: Japan, 39333–39334 Recovery plans— Purified carboxymethylcellulose from— Pacific salmon and steelhead; 16 evolutionary Various countries, 39334 significant units, 39231–39232 NOTICES Justice Department Environmental statements; notice of intent: See Antitrust Division Alaska Coastal Zone Management Program; correction, See Parole Commission 39235 PROPOSED RULES Marine mammals: Justice for All Act: Incidental taking; authorization letters, etc.— Crime victims’ rights obligation; compliance procedures, Monterey Bay National Marine Sanctuary, CA; coastal 39206–39209 NOTICES commercial fireworks displays, 39235–39240 Pollution control; consent judgments: Permits: Formosa Plastics Corp., Delaware, 39335 Scientific research, 39240–39241 Metal Masters Foodservice Equipment Co., Inc., 39335 Morton Int’l, Inc., 39335–39336 National Park Service NOTICES Labor Department National Register of Historic Places: See Employment and Training Administration Pending nominations, 39332–39333 NOTICES Agency information collection activities; proposals, submissions, and approvals, 39340–39341 National Science Foundation NOTICES Library of Congress Environmental statements; availability, etc.: See Copyright Office, Library of Congress Pacific Ocean activities, 39346 Maritime Administration NOTICES Nuclear Regulatory Commission Merchant Marine Act: NOTICES Title XI Loan Guarantee Program; remedies, 39355 Environmental statements; availability, etc.: Cabot Corp., 39347–39348 Minerals Management Service Meetings: NOTICES Nuclear Waste Advisory Committee, 39348 Outer Continental Shelf operations: Reactor Safeguards Advisory Committee, 39348 Western Gulf of Mexico— Meetings; Sunshine Act, 39348–39349 Oil and gas lease sales, 39329–39332 Applications, hearings, determinations, etc.: Exelon Generation Co., LLC, 39346–39347 National Aeronautics and Space Administration NOTICES Federal Acquisition Regulation (FAR): Parole Commission Agency information collection activities; proposals, NOTICES submissions, and approvals, 39248 Meetings; Sunshine Act, 39340
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Pension Benefit Guaranty Corporation Treasury Department NOTICES See Internal Revenue Service Employee Retirement Income Security Act: See Thrift Supervision Office Sale of assets by employer who contributes to multiemployer plan; bond/escrow requirement; U.S. Citizenship and Immigration Services exemption request, 39349–39350 NOTICES Temporary protected status program designations; Presidential Documents terminations, extensions, etc.: ADMINISTRATIVE ORDERS Honduras and Nicaragua, 39325–39326 Government agencies and employees: Office of Management and Budget; assignment of certain functions relating to telecommunications to the Veterans Affairs Department Director (Memorandum of June 29, 2005), 39173 PROPOSED RULES Adjudication; pensions, compensation, dependency, etc.: Securities and Exchange Commission Military retired pay and veterans disability compensation RULES for certain military retirees; full concurrent receipt Investment companies: phase-in, 39213–39215 Investment company governance practices, 39390–39410 NOTICES Agency information collection activities; proposals, Separate Parts In This Issue submissions, and approvals, 39350–39351 Self-regulatory organizations; proposed rule changes: Philadelphia Stock Exchange, Inc., 39351–39352 Part II Energy Department, 39364–39383 State Department NOTICES Part III Agency information collection activities; proposals, Labor Department, Employment and Training submissions, and approvals, 39352 Administration, 39386–39388 Arms Export Control Act: Commercial export licenses; congressional notification, Part IV 39352–39354 Securities and Exchange Commission, 39390–39410 Culturally significant objects imported for exhibition: Golden Age of Russian Icons: Novgorod the Great, 39354 Meetings: Shipping Coordinating Committee, 39354 Reader Aids Consult the Reader Aids section at the end of this issue for Thrift Supervision Office phone numbers, online resources, finding aids, reminders, NOTICES and notice of recently enacted public laws. Agency information collection activities; proposals, submissions, and approvals, 39362 To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http:// Transportation Department listserv.access.gpo.gov and select Online mailing list See Federal Aviation Administration archives, FEDREGTOC-L, Join or leave the list (or change See Maritime Administration settings); then follow the instructions.
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CFR PARTS AFFECTED IN THIS ISSUE
A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.
3 CFR Administrative Orders: Memorandums: Memorandum of June 29, 2005 ...... 39173 7 CFR Proposed Rules: 319...... 39194 868...... 39199 10 CFR 625...... 39364 12 CFR Proposed Rules: Ch. VII...... 39202 14 CFR 71 (2 documents) ...... 39175 Proposed Rules: 39...... 39204 17 CFR 270...... 39390 28 CFR Proposed Rules: 45...... 39206 29 CFR Proposed Rules: 1404...... 39209 33 CFR 165...... 39176 37 CFR 258...... 39178 38 CFR Proposed Rules: 3...... 39213 40 CFR 300...... 39180 Proposed Rules: 81...... 39215 300...... 39217 47 CFR 73...... 39182 Proposed Rules: 73...... 39217 50 CFR 622...... 39187 648 (2 documents) ...... 39190, 39192 Proposed Rules: 17...... 39227 223...... 39231 224...... 39231
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Federal Register Presidential Documents Vol. 70, No. 129
Thursday, July 7, 2005
Title 3— Memorandum of June 29, 2005
The President Assignment of Certain Functions Relating to Telecommunications
Memorandum for the Director of the Office of Management and Budget
By virtue of the authority vested in me by the Constitution and the laws of the United States, including section 301 of title 3, United States Code, I hereby assign to you the functions of the President under section 414 of the Transportation, Treasury, Independent Agencies, and General Govern- ment Appropriations Act, 2005 (Division H of Public Law 108–447), and the authority to issue regulations to which section 414 refers. You are authorized and directed to publish this memorandum in the Federal Register. W THE WHITE HOUSE, Washington, June 29, 2005.
[FR Doc. 05–13487 Filed 7–6–05; 8:45 am] Billing code 3110–01–P
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Rules and Regulations Federal Register Vol. 70, No. 129
Thursday, July 7, 2005
This section of the FEDERAL REGISTER March, 14, 2005 (70 FR 12414) is The Rule contains regulatory documents having general corrected as follows: applicability and legal effect, most of which This amendment to 14 CFR, part 71 On page 12414, correct the effective establishes Class E Surface Area at are keyed to and codified in the Code of date to read September 1, 2005. Federal Regulations, which is published under South Lake Tahoe, CA. 50 titles pursuant to 44 U.S.C. 1510. Issued in Jamaica, New York, on June 30, The FAA has determined that this 2005. regulation only involves an established The Code of Federal Regulations is sold by Diane L. Crean, body of technical regulations for which the Superintendent of Documents. Prices of Acting Area Staff Manager, Eastern Terminal frequent and routine amendments are new books are listed in the first FEDERAL Operations. necessary to keep them operationally REGISTER issue of each week. [FR Doc. 05–13366 Filed 7–6–05; 8:45 am] current. Therefore, this regulation: (1) Is BILLING CODE 4910–13–M not a ‘‘significant regulatory action’’ DEPARTMENT OF TRANSPORTATION under Executive Order 12866; (2) is not a ‘‘significant rule’’ under DOT Federal Aviation Administration DEPARTMENT OF TRANSPORTATION Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) Federal Aviation Administration 14 CFR Part 71 does not warrant preparation of a regulatory evaluation as the anticipated [Docket No. FAA–2004–19458; Airspace 14 CFR Part 71 impact is so minimal. Since this is a Docket No. 04–AEA–11] routine matter that will only affect air [Docket FAA 2005–21522; Airspace Docket traffic procedures and air navigation, it Establishment of Class E Airspace; No. 05–AWP–06] is certified that this rule, when Mifflintown, PA; Correction promulgated, will not have a significant Establishment of Class E Surface Area, economic impact on a substantial AGENCY: Federal Aviation South Lake Tahoe, CA Administration (FAA), DOT. number of small entities under the criteria of the Regulatory Flexibility Act. ACTION: Final Rule; correction. AGENCY: Federal Aviation Administration (FAA), DOT. List of Subjects in 14 CFR Part 71 SUMMARY: This action corrects a final ACTION: Final rule. rule published in the Federal Register Airspace, Incorporation by reference, on March 14, 2005 (70 FR 12414). In SUMMARY: This action establishes a Class Navigation (air). that rule, the effective date was E Surface Area to replace existing Class Adoption of the Amendment inadvertently published as September D airspace at South Lake Tahoe, CA. I 29, 2005. The correct effective date is DATES: Effective Date: 0901 UTC In consideration of the foregoing, the September 1, 2005. This action corrects September 1, 2005. Federal Aviation Administration amends 14 CFR part 71 as follows: that error. FOR FURTHER INFORMATION CONTACT: DATES: Effective 0901 UTC, September Larry Tonish, Air Traffic Division, PART 71—DESIGNATION OF CLASS A, 1, 2005. Airspace Specialist, AWP–520, Western- CLASS B, CLASS C, CLASS D, AND FOR FURTHER INFORMATION CONTACT: Mr. Pacific Region, Federal Aviation CLASS E AIRSPACE AREAS; ROUTES; Francis Jordan, Airspace Specialist, Administration, 15000 Aviation AND REPORTING POINTS. Airspace and Operations, ETSU–530, Boulevard, Lawndale, California 90261, Eastern Terminal Service Unit, Eastern telephone (310) 725–6539. I 1. The authority citation for 14 CFR, Region, Federal Aviation SUPPLEMENTARY INFORMATION: part 71 continues to read as follows: Administration, 1 Aviation Plaza, Authority: 49 U.S.C. 106(g), 40103, 40113, Jamaica, New York 11434–4809, History 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– telephone: (718) 553–4521. On January 20, 2005, the FAA 1963 Comp., p. 389. SUPPLEMENTARY INFORMATION: On March revoked Class D airspace at South Lake § 71.1 [Amended] 14, 2005, Docket No. FAA–2004–19438; Tahoe, CA due to the closure of the Airspace Docket 04–AEA–11 (70 FR Airport Traffic Control Tower. This I 2. The incorporation by reference in 14 12414), was published establishing action will establish Class E Surface CFR 71.1 of the Federal Aviation Class E airspace at Mifflintown, PA. In Area airspace at South Lake Tahoe, CA Administration Order 7400.9M, that rule, the effective date was to replace the Class D airspace, and to Airspace Designation and Reporting inadvertently published as September contain instrument procedures in Points, dated August 30, 2004, and 29, 2005. The correct effective date is controlled airspace. effective September 16, 2004, is September 1, 2005. This action corrects Class E Surface Area airspace is amended as follows: that error. published in Paragraph 6002 of FAA * * * * * Order 7400.9M dated August 30, 2004, Correction to Final Rule Paragraph 6002 Class E Airspace and effective September 16, 2004, which Designated as Surface Areas. Accordingly, pursuant to the is incorporated by reference in 14 CFR * * * * * authority delegated to me, the effective 71.1. The Class E Surface Area airspace date for Docket No. FAA–2004–19438; designation listed in this document AWP CA E2 South Lake Tahoe, CA Airspace docket No. 04–AEA–11, as would be published subsequently in [Established] published in the Federal Register on this Order. South Lake Tahoe Airport, CA
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(Lat. 38°53′38″ N., long. 122°59′44″ W.) Christi, TX’’ in the Federal Register (70 facility’s operations, and comply with Within a 4.3-mile radius of the South Lake FR 9263). As of March 28, 2005, we Maritime Security Levels. Under 33 CFR Tahoe Airport. have received five written comments on 105.115, the owners or operators of Issued in Los Angeles, California, on June that Notice of Proposed Rulemaking. No these facilities must have submitted to 28, 2005. public meeting was requested so one the Captain of the Port, by December 31, Leonard Mobley, was not held. 2003, a Facility Security Plan as As indicated in our ‘‘Discussion of Acting Area Director, Western Terminal described in Subpart D of 33 CFR 105, Operations. Comments and Changes’’ section below, or if intending to operate under an we have considered these comments in [FR Doc. 05–13365 Filed 7–6–05; 8:45 am] approved Alternative Security Program this final rule. as described in 33 CFR 101.130, a letter BILLING CODE 4910–13–M Discussion of Comments and Changes signed by the facility owner or operator stating which approved Alternative As of March 28, 2005, we received Security Program the owner or operator DEPARTMENT OF HOMELAND five written comments on the NPRM. intends to use. Section 105.115 of 33 SECURITY These comments focused generally on CFR part 105 also requires facility one concern, which is the increase in Coast Guard owners or operators to be in compliance maritime security risk due to with 33 CFR part 105 on or before July commercial and recreational boating. 33 CFR Part 165 1, 2004. Each section of this concern is Only a small number of waterfront [COTP Corpus Christi–04–006] discussed in more detail in the facilities exist within the area protected following paragraphs. RIN 1625–AA87 by the security zone. Each of these Increased Maritime Security Risk. All facilities submitted a comprehensive five comments express concern Security Zones; Port of Port Lavaca- facility security plan (FSP), which has regarding the increase in maritime Point Comfort, Point Comfort, TX and been thoroughly reviewed and approved security risk that would accompany the Port of Corpus Christi Inner Harbor, by the Coast Guard. Additionally, each removal of the Port of Port Lavaca-Point Corpus Christi, TX facility was examined for compliance Comfort Security Zone. Each comment with their FSP within the last twelve AGENCY: Coast Guard, DHS. states that the Port of Port Lavaca-Point months. All facilities were found to be ACTION: Final rule. Comfort has several shipping receiving in full compliance with their FSP. and storage terminals for a variety of Additionally, facilities subject to the SUMMARY: The Coast Guard is removing liquid chemicals, and it also has many MTSA must have the capability to an established security zone in the Port foreign flagged vessels arriving and continuously monitor, among other of Port Lavaca-Point Comfort. Under the departing the port every day. Further, things, the facility and its approaches on Maritime Transportation Security Act of the comments state that the prohibition land and water, and vessels at the 2002, owners or operators of local of commercial and recreational vessels facility and areas surrounding the facilities are required to take specific in the established security zone has vessels. action to improve facility security. As provided a much-needed additional tier Vessel Security. Each foreign flagged such, a security zone around local of security protection for these vessel greater than 300 gross tons that facilities will no longer be necessary terminals, as well as the vessel and intends to enter the Port of Port Lavaca- under normal conditions. This final rule cargo users. These comments state that Point Comfort must submit a notice of removes an established security zone. the removal of the established security arrival to the Coast Guard through the zone would create an increased DATES: This rule is effective on August National Vessel Movement Center in 8, 2005. maritime security risk for the port and accordance with 33 CFR part 160. As its users. part of this notification process, detailed ADDRESSES: Comments and material To address these comments, the Coast information regarding the times of received from the public, as well as Guard’s position regarding the following arrival and departure, on board cargo, documents indicated in this preamble as issues of waterfront facility security, crew, last five ports visited and other being available in the docket, are part of foreign flagged vessel security, and pertinent information must be supplied docket [COTP Corpus Christi 04–006], commercial and recreational vessel in advance of the vessel’s arrival. MSO and are available for inspection or security in the Port of Port Lavaca-Point Corpus Christi processes this arrival copying at Sector Corpus Christi Comfort will be explained separately. information, and using standard Coast Prevention Department, 555 N. Facility Security. Under the authority of Guard criteria, determines if a vessel Carancahua, Suite 500, Corpus Christi, the Maritime Transportation Security merits special consideration before TX 78478, between 7:30 a.m. 4 p.m., Act (MTSA) of 2002, the Coast Guard being allowed entry into the United Monday through Friday, except Federal published a final rule on October 22, States. Such vessels are characterized as holidays. 2003, entitled ‘‘Facility Security’’ in the high interest vessels (HIV). Those HIVs FOR FURTHER INFORMATION CONTACT: Federal Register (68 FR 60515) that are boarded offshore to verify the Ensign John Oscar, Marine Safety Office established 33 CFR part 105. That final integrity of the vessel’s security in order Corpus Christi, at (361) 888–3162, ext. rule became effective November 21, to ensure the protection of both the 534. 2003, and provides security measures vessel and the port. In all cases, no SUPPLEMENTARY INFORMATION: for certain facilities, including those vessel is allowed entry into any port facilities that exist on waterways in the unless all security concerns have been Regulatory Information Port of Port Lavaca-Point Comfort area. adequately addressed. On February 25, 2005, the Coast Section 105.200 of 33 CFR requires The Coast Guard calculated that for Guard published a Notice of Proposed owners or operators of these facilities to the past 5 years the average number of Rule Making and request for comments designate security officers for facilities, vessels arriving each year was 330. entitled ‘‘Security Zones; Port of Port develop security plans based on security Between April 1, 2004, and March 31, Lavaca-Point Comfort, TX and Port of assessments and surveys, implement 2005, a total of 364 vessel arrivals Corpus Christi Inner Harbor, Corpus security measures specific to the occurred. Of that, only 20 vessels, or 5.5
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percent, were designated as a HIV. In substantial layered defense mechanism Small Entities accordance with current policy, the against security threats. The Coast Under the Regulatory Flexibility Act Coast Guard has boarded all HIVs that Guard finds that removing the (5 U.S.C. 601–612), we have considered entered the Port of Port Lavaca-Point established security zone in the Port whether this rule would have a Comfort. Lavaca-Point Comfort area will not significant economic impact on a In order to address ship specific result in an unacceptable increase in the substantial number of small entities. security, all foreign flagged vessels level of maritime security risk. No The term ‘‘small entities’’ comprises exceeding 500 gross tons are subject to changes from the proposed rule have small businesses, not-for-profit International Ship and Port Facility been made except for grammatical organizations that are independently Security (ISPS) Code and must posses changes in paragraphs (a), (b)(1), and owned and operated and are not an International Ship Security (b)(2), of 33 CFR 165.809 to change dominant in their fields, and Certificate (ISSC). A vessel that references from security zones to governmental jurisdictions with possesses a valid ISSC has been found security zone. populations of less than 50,000. to have an acceptable level of security Background and Purpose The Coast Guard certifies under 5 as determined by the issuing authority. U.S.C. 605(b) that this proposed rule For every vessel that indicates it holds On October 17, 2002, the Coast Guard would not have a significant economic a valid ISSC, an initial verification exam published a final rule entitled ‘‘Security impact on a substantial number of small is conducted by the Coast Guard before Zones; Port of Port Lavaca-Point entities. allowing the vessel into the United Comfort, Point Comfort, TX and Port of States. Furthermore, the Coast Guard Corpus Christi Inner Harbor, Corpus Assistance for Small Entities verifies ISPS compliance through Christi, TX’’, in the Federal Register (67 Under section 213(a) of the Small regular port state control examinations, FR 64046). That final rule established Business Regulatory Enforcement which are conducted on foreign flagged two security zones that appear in 33 Fairness Act of 1996 (Public Law 104– vessels while in port. Vessels found not CFR 165.809. The first security zone is 121), we offered to assist small entities in compliance are either expelled from entitled ‘‘Port of Port Lavaca-Point in understanding the rule so that they port or detained until satisfactory Comfort’’ and included all waters can better evaluate its effects on them corrections have been made. between the Dredge Island Bridge at and participate in the rulemaking Commercial and Recreational Vessel 28°39′30″ N, 96°34′20″ W and a line process. Small businesses may send Security. Aside from commercial deep drawn between points 28°38′10″ N, comments on the actions of Federal draft shipping, commercial towing 96°33′15″ W and 28°38′10″ N, 96°34′45″ employees who enforce, or otherwise vessels, and barges that have legitimate W, including the Point Comfort turning determine compliance with, Federal business at the facilities in the existing basin and adjacent Alcoa Channel. The regulations to the Small Business and security zone, the only commercial second security zone is entitled ‘‘Port of Agriculture Regulatory Enforcement vessels of concern would be fishing Corpus Christi Inner Harbor’’ and Ombudsman and the Regional Small vessels. However, in April of 1988, the included all waters of the Corpus Christi Business Regulatory Fairness Boards. Texas Department of Health (TDH) Inner Harbor from the Inner Harbor The Ombudsman evaluates these issued a ‘‘closure order’’ for an area that Bridge (U.S. Hwy 181) to, and including actions annually and rates each agency’s includes the existing security zone that the Viola Turning Basin. responsiveness to small business. If you prohibits the taking of finfish and crabs wish to comment on actions by for consumption. This order is still As a result of the Maritime Transportation Security Act, the employees of the Coast Guard, call 1– effective. As such, commercial and 888–REG–FAIR (1–888–734–3247). The recreational fishing vessels should not International Ship and Port Facility Security Code, and current security Coast Guard will not retaliate against be present in the area of the facilities small entities that question or complain even after the security zone is removed. actions performed by the Coast Guard, state and local authorities, the Coast about this rule or any policy or action In order to maintain the security of of the Coast Guard. the port of Port Lavaca-Point Comfort, Guard finds that the existing security and to verify the intentions of vessels in zone for the Port of Port Lavaca-Point Collection of Information Comfort is no longer necessary under the port area, the Coast Guard conducts This rule calls for no new collection normal conditions. regular, highly visible waterborne of information under the Paperwork patrols using both Coast Guard and Regulatory Evaluation Reduction Act of 1995 (44 U.S.C. 3501– Coast Guard Auxiliary vessels, random 3520). shore side patrols to ensure facility This rule is not a ‘‘significant security is executed properly, and over- regulatory action’’ under section 3(f) of Federalism flights using Coast Guard aircraft. State Executive Order 12866, Regulatory A rule has implications for federalism and local authorities including Texas Planning and Review, and does not under Executive Order 13132, Parks and Wildlife, Jackson County require an assessment of potential costs Federalism, if it has a substantial direct Sheriff’s Office, and the Texas General and benefits under section 6(a)(3) of that effect on State or local governments and Land Office conduct other patrols. Order. The Office of Management and would either preempt State law or These agencies maintain close contact Budget has not reviewed it under that impose a substantial direct cost of with the Coast Guard while on patrol. Order. It is not ‘‘significant’’ under the compliance on them. We have analyzed Summary of response to comments. regulatory policies and procedures of this rule under that Order and have The Coast Guard contends that security the Department of Homeland Security. determined that it does not have measures implemented at facilities and We expect the economic impact of implications for federalism. on vessels as required by the MTSA and this rule to be so minimal that a full ISPS Code, the Coast Guard’s efforts to Regulatory Evaluation under the Unfunded Mandates Reform Act screen and board arriving foreign regulatory policies and procedures of The Unfunded Mandates Reform Act flagged vessels, and efforts to conduct DHS is unnecessary as this rule removes of 1995 (2 U.S.C. 1531–1538) requires highly visible patrols of the Port Lavaca- a portion of a regulation that is no Federal agencies to assess the effects of Point Comfort area, provide a longer necessary. their discretionary regulatory actions. In
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particular, the Act addresses actions Technical Standards I 2. In § 165.809, revise paragraphs (a), that may result in the expenditure by a (b)(1), and (b)(2) to read as follows: The National Technology Transfer State, local, or tribal government, in the and Advancement Act (NTTAA) (15 § 165.809 Security Zone; Port of Corpus aggregate, or by the private sector of U.S.C. 272 note) directs agencies to use Christi Inner Harbor, Corpus Christi, TX. $100,000,000 or more in any one year. voluntary consensus standards in their Though rule would not result in such (a) Location. The following area is regulatory activities unless the agency designated as a security zone: all waters expenditure, we do discuss the effects of provides Congress, through the Office of of the Corpus Christi Inner Harbor from this rule elsewhere in this preamble. Management and Budget, with an the Inner Harbor Bridge (U.S. Hwy 181) Taking of Private Property explanation of why using these to, and including the Viola Turning standards would be inconsistent with Basin. This rule will not affect a taking of applicable law or otherwise impractical. (b) Regulations. (1) No recreational private property or otherwise have Voluntary consensus standards are vessels, passenger vessels, or taking implications under Executive technical standards (e.g., specifications commercial fishing vessels may enter Order 12630, Governmental Actions and of materials, performance, design, or the security zone unless specifically Interference with Constitutionally operation; test methods; sampling authorized by the Captain of the Port Protected Property Rights. procedures; and related management Corpus Christi or a designated systems practices) that are developed or representative. Civil Justice Reform adopted by voluntary consensus (2) Recreational vessels, passenger This rule meets applicable standards standards bodies. vessels and commercial fishing vessels in sections 3(a) and 3(b)(2) of Executive This rule does not use technical requiring entry into the security zone Order 12988, Civil Justice Reform, to standards. Therefore, we did not must contact the Captain of the Port minimize litigation, eliminate consider the use of voluntary consensus Corpus Christi or a designated ambiguity, and reduce burden. standards. representative. The Captain of the Port may be contacted via VHF Channel 16 Protection of Children Environment or via telephone at (361) 888–3162 to We have analyzed this rule under seek permission to transit the area. If We have analyzed this rule under permission is granted, all persons and Executive Order 13045, Protection of Commandant Instruction M16475.1D, which guides the Coast Guard in vessels must comply with the Children from Environmental Health instructions of the Captain of the Port, Risks and Safety Risks. This proposed complying with the National Environmental Policy Act of 1969 Corpus Christi or a designated rule is not an economically significant representative. rule and will not create an (NEPA) (42 U.S.C. 4321–4370f), and have concluded that there are no factors * * * * * environmental risk to health or risk to in this case that would limit the use of safety that might disproportionately Dated: June 9, 2005. a categorical exclusion under section affect children. J. H. Korn, 2.B.2 of the Instruction. Therefore, this Captain, U.S. Coast Guard, Captain of the Indian Tribal Governments rule is categorically excluded, under Port Corpus Christi. figure 2–1, paragraph 34(g), of the [FR Doc. 05–13384 Filed 7–6–05; 8:45 am] This rule does not have tribal Instruction, from further environmental BILLING CODE 4910–15–P implications under Executive Order documentation because this rule is not 13175, Consultation and Coordination expected to result in any significant with Indian Tribal Governments, adverse environmental impact as LIBRARY OF CONGRESS because it would not have a substantial described in NEPA. direct effect on one or more Indian Under figure 2–1, paragraph (34)(g), of Copyright Office tribes, on the relationship between the the Instruction, an ‘‘Environmental Federal Government and Indian tribes, Analysis Check List’’ and a ‘‘Categorical 37 CFR Part 258 or on the distribution of power and Exclusion Determination’’ are not responsibilities between the Federal required for this rule. [Docket No. 2005–4 CARP SRA–Digital] Government and Indian tribes. List of Subjects in 33 CFR Part 165 Rate Adjustment for the Satellite Energy Effects Carrier Compulsory License Harbors, Marine safety, Navigation We have analyzed this rule under (water), Reporting and record keeping AGENCY: Copyright Office, Library of Executive Order 13211, Actions requirements, Security measures, Congress. Concerning Regulations That Waterways. ACTION: Final rule. Significantly Affect Energy Supply, I Distribution, or Use. We have For the reasons discussed in the SUMMARY: The Copyright Office of the determined that it is not a ‘‘significant preamble, the Coast Guard amends 33 Library of Congress is publishing the energy action’’ under that Order because CFR part 165 as follows: royalty rates for the retransmission of it is not a ‘‘significant regulatory action’’ digital over–the–air television broadcast PART 165—REGULATED NAVIGATION signals by satellite carriers under the under Executive Order 12866 and is not AREAS AND LIMITED ACCESS AREAS likely to have a significant adverse effect statutory license. on the supply, distribution, or use of I 1. The authority citation for part 165 EFFECTIVE DATE: January 1, 2005. energy. The Administrator of the Office continues to read as follows: FOR FURTHER INFORMATION CONTACT: of Information and Regulatory Affairs Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. David O. Carson, General Counsel, or has not designated it as a significant Chapter 701; 50 U.S.C. 191, 195; 33 CFR Tanya M. Sandros, Associate General energy action. Therefore, it does not 1.05–1(g), 6.04–1, 6.04–6, 160.5; Pub. L. 107– Counsel, Copyright Arbitration Royalty require a Statement of Energy Effects 295, 116 Stat. 2064; Department of Homeland Panel (CARP), P.O. Box 70977, under Executive Order 13211. Security Delegation No. 0170.1. Southwest Station, Washington, DC
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20024. Telephone: (202) 707–8380. superstations and network stations that § 258.4 Royalty fee for secondary Telefax: (202) 252–3423. are significantly viewed do not require transmission of digital signals of broadcast stations by satellite carriers. SUPPLEMENTARY INFORMATION: On a royalty payment, which is consistent December 8, 2004, the President signed with 17 U.S.C. 119(a)(3), as amended. In (a) Commencing January 1, 2005, the the Satellite Home Viewer Extension addition, the agreement proposed that, royalty rate for secondary transmission and Reauthorization Act (‘‘SHVERA’’), a in the case of multicasting of digital of digital signals of broadcast stations by part of the Consolidated Appropriations superstations and network stations, each satellite carriers shall be as follows: digital stream that is retransmitted by a (1) For private home viewing– Act of 2005, Pub. L. No. 108–447. (i) 20 cents per subscriber per month SHVERA extends for an additional five satellite carrier must be paid for at the prescribed rate but no royalty payment for distant superstations. years the statutory license for satellite (ii) 17 cents per subscriber per month carriers retransmitting over–the–air is due for any program–related material contained on the stream within the for distant network stations. television broadcast stations to their (2) For viewing in commercial meaning of WGN v. United Video, Inc., subscribers, 17 U.S.C. 119, as well as establishments, 40 cents per subscriber 693 F.2d 622, 626 (7th Cir. 1982) and making a number of amendments to the per month for distant superstations. license. One of the amendments to Second Report and Order and First (b) Commencing January 1, 2006, the section 119 sets forth a process, for the Order on Reconsideration in CS Doc. royalty rate for secondary transmission first time, for adjusting the royalty fees No. 98–120, FCC 05–27 at ¶ 44 & n.158 of digital signals of broadcast stations by paid by satellite carriers for the (February 23, 2005). satellite carriers shall be as follows: retransmission of digital broadcast The statute requires the Library to (1) For private home viewing– signals. 17 U.S.C. 119(c)(2). The law set ‘‘provide public notice of the royalty (i) 21.5 cents per subscriber per the initial rates as the rates set by the fees from the voluntary agreement and month for distant superstations. Librarian in 1997 for the retransmission afford parties an opportunity to state (ii) 20 cents per subscriber per month of analog broadcast signals, 37 CFR that they object to those fees.’’ 17 U.S.C. for distant network stations. 258.3(b)(1)&(2), reduced by 22.5 119(c)(1)(D)(ii)(II). The Library (2) For viewing in commercial percent. 17 U.S.C. 119(c)(2)(A). These published a Notice of Proposed establishments, 43 cents per subscriber rates are to be adjusted in accordance Rulemaking on May 17, 2005, to fulfill per month for distant superstations. with the procedures set forth in section this requirement. 70 FR 28231 (May 17, (c) Commencing January 1, 2007, the 119(c)(1) of the Copyright Act. 2005). The Office received no objections royalty rate for secondary transmission On March 8, 2005, the Copyright as a result of this notice. Consequently, of digital signals of broadcast stations by Office received a letter from EchoStar the Library is adopting the rates as set satellite carriers shall be as follows: Satellite, L.L.C., DirecTV, Inc., Program forth in the voluntary agreement as (1) For private home viewing– Suppliers, and the Joint Sports final. (i) 23 cents per subscriber per month Claimants requesting that the Office for distant superstations. List of Subjects in 37 CFR Part 258 begin the process of setting the rates for (ii) 23 cents per subscriber per month the retransmission of digital broadcast for distant network stations. Copyright, Satellite, Television. (2) For viewing in commercial signals by initiating a voluntary establishments, 46 cents per subscriber negotiation period so that rates for both Final Regulations per month for distant superstations. digital and analog signals ‘‘will be in I For the reasons set forth above, the (d) Commencing January 1, 2008, the place before the July 31, 2005 deadline Copyright Office amends 37 CFR chapter royalty rate for secondary transmission for satellite carriers to pay royalties for II as follows: of digital signals of broadcast stations by the first accounting period of 2005.’’ satellite carriers shall be as follows: Letter at 2. The Office granted the PART 258—ADJUSTMENT OF (1) For private home viewing– request and, pursuant to section ROYALTY FEE FOR SECONDARY (i) The 2007 rate per subscriber per 119(c)(1), published a notice in the TRANSMISSIONS BY SATELLITE month for distant superstations adjusted Federal Register initiating a voluntary CARRIERS for the amount of inflation as measured negotiation period and requesting that by the change in the Consumer Price any agreements reached during this I 1. The authority citation for part 258 is Index for all Urban Consumers from period be submitted no later than April revised to read as follows: January 2007 to January 2008. 25, 2005. See 70 FR 15368 (March 25, Authority: 17 U.S.C. 119, 702, 802. (ii) The 2007 rate per subscriber per 2005). month for distant network stations In accordance with the March 25 § 258.2 [Amended] adjusted for the amount of inflation as notice, the Office received one I 2. In § 258.2, paragraph (b) is amended measured by the change in the agreement, submitted jointly by the by removing ‘‘§ 258.3(b)’’ and adding Consumer Price Index for all Urban satellite carriers EchoStar Satellite ‘‘§ 258.3(a)’’ in its place. Consumers from January 2007 to L.L.C. and DirecTV, Inc., the copyright I January 2008. owners of motion pictures and 3. Section 258.3 is amended by (2) For viewing in commercial syndicated television series represented revising the section heading and in establishments, the 2007 rate per by the Motion Picture Association of paragraphs (a) through (h), by adding subscriber per month for viewing America, and the copyright owners of ‘‘analog signals of’’ before ‘‘broadcast distant superstations in commercial sports programming represented by the stations’’ each place it appears. establishments adjusted for the amount Office of the Commissioner of Baseball. The revisions to § 258.3 read as of inflation as measured by the change The agreement proposed rates for the follows: in the Consumer Price Index for all private home viewing of distant § 258.3 Royalty fee for secondary Urban Consumers from January 2007 to superstations and distant network transmission of analog signals of broadcast January 2008. stations for the 2005–2009 period, as stations by satellite carriers. (e) Commencing January 1, 2009, the well as the viewing of those signals for royalty rate for secondary transmission commercial establishments. The ***** of digital signals of broadcast stations by agreement specifies that distant I 4. Add a new § 258.4 to read as follows: satellite carriers shall be as follows:
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(1) For private home viewing– ACTION: Direct Final Deletion of the Manager, U.S. EPA Region 2, 290 (i) The 2008 rate per subscriber per Jones Sanitation Superfund Site from Broadway, 20th Floor, New York, New month for distant superstations adjusted the National Priorities List. York 10007–1866, (212) 637–4248; Fax for the amount of inflation as measured Number (212) 637–4284; Email address: by the change in the Consumer Price SUMMARY: The Environmental Protection [email protected]. Agency (EPA), Region 2, announces the Index for all Urban Consumers from SUPPLEMENTARY INFORMATION: January 2008 to January 2009. deletion of the Jones Sanitation (ii) The 2008 rate per subscriber per Superfund Site (Site), located in Hyde Table of Contents Park, New York, from the National month for distant network stations I. Introduction adjusted for the amount of inflation as Priorities List (NPL) and will consider II. NPL Deletion Criteria measured by the change in the public comment on this action. III. Deletion Procedures Consumer Price Index for all Urban The NPL is Appendix B of the IV. Basis for Site Deletion National Oil and Hazardous Substances Consumers from January 2008 to I. Introduction January 2009. Pollution Contingency Plan (NCP), 40 (2) For viewing in commercial CFR Part 300, which EPA promulgated EPA Region 2 announces the deletion establishments, the 2008 rate per pursuant to Section 105 of the of the Jones Sanitation Superfund Site subscriber per month for viewing Comprehensive Environmental from the NPL. The EPA maintains the distant superstations in commercial Response, Compensation, and Liability NPL as the list of those sites that appear establishments adjusted for the amount Act (CERCLA) of 1980, as amended. to present a significant risk to public of inflation as measured by the change This Direct Final Notice of Deletion is health, welfare, or the environment. in the Consumer Price Index for all being published by EPA with the Sites on the NPL can have remedial Urban Consumers from January 2008 to concurrence of the State of New York, actions financed by the Hazardous January 2009. through the Department of Substances Superfund Response Trust (f) For purposes of calculating the Environmental Conservation (NYSDEC). Fund. royalty rates for secondary transmission EPA and NYSDEC have determined that EPA considers this action to be of digital signals of broadcast stations by potentially responsible parties have noncontroversial and routine, and satellite carriers– implemented all appropriate response therefore, EPA is taking it without prior (1) In the case of digital multicasting, actions required. Moreover, EPA and publication of a Notice of Intent to the rates in paragraphs (a) through (e) of NYSDEC have determined that the Site Delete. This action will be effective this section apply to each digital stream poses no significant threat to public September 6, 2005 unless EPA receives that a satellite carrier or distributor health or the environment. significant adverse comments by August retransmits pursuant to section 119; DATES: This direct final deletion will be 8, 2005 on this action or the parallel provided, however that no additional effective September 6, 2005 unless EPA Notice of Intent to Delete published in royalty shall be paid for the carriage of receives significant adverse comments the Notice section of today’s Federal any material related to the programming by August 8, 2005. If significant adverse Register. If significant adverse on such stream; and comments are received, EPA will comments are received within the 30- (2) Satellite carriers and distributors publish a timely withdrawal of this day public comment period, EPA are not required to pay a section 119 direct final deletion in the Federal Region 2 will publish a timely royalty for the retransmission of a Register, informing the public that the withdrawal of this Direct Final Deletion digital signal to a subscriber who resides deletion will not take effect. before the effective date of the deletion in a community where that signal is ADDRESSES: Comments may be mailed and the deletion will not take effect. ‘‘significantly viewed,’’ within the to: Isabel Rodrigues, Remedial Project EPA will, if appropriate, prepare a meaning of 17 U.S.C. 119(a)(3) and Manager, Emergency and Remedial response to comments and continue (b)(1), as amended. Response Division, U.S. Environmental with the deletion process on the basis of Dated: June 21, 2005. Protection Agency, Region 2, 290 the Notice of Intent to Delete and the Broadway, 20th Floor, New York, New Marybeth Peters, comments already received. There will York 10007–1866. be no additional opportunity to Register of Copyrights. Information Repositories: comment. Approved by: Comprehensive information about the Section II explains the criteria for James H. Billington, Site is available for viewing and copying deleting sites from the NPL. Section III The Librarian of Congress. at the Site information repositories discusses procedures that EPA is using [FR Doc. 05–13331 Filed 7–6–05; 8:45 am] located at: for this action. Section IV discusses the BILLING CODE 1410–33–S U.S. Environmental Protection Agency, Jones Sanitation Superfund Site and Region 2, Superfund Records Center, demonstrates how it meets the deletion 290 Broadway, Room 1828, New criteria. York, New York 10007–1866, (212) II. NPL Deletion Criteria ENVIRONMENTAL PROTECTION 637–4308, Hours: 9 a.m. to 5 p.m., AGENCY Monday through Friday; By Section 300.425(e) of the NCP Appointment provides that Sites may be deleted from 40 CFR Part 300 and, the NPL where no further response is Hyde Park Free Public Library, 2 Main appropriate. In making this [FRL–7934–1] Street, Hyde Park, NY 12538, Hours: determination, EPA, in consultation 9 a.m. to 8 p.m., Monday and with the state, shall consider whether National Oil and Hazardous Tuesday, 12 to 8 p.m., Wednesday any of the following criteria have been Substances Pollution Contingency and Thursday, 9 a.m. to 2 p.m., met: Plan; National Priorities List Saturday; By Appointment. i. Responsible parties or other parties AGENCY: Environmental Protection FOR FURTHER INFORMATION CONTACT: Ms. have implemented all appropriate Agency. Isabel Rodrigues, Remedial Project response actions required;
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ii. All appropriate Fund-financed will publish a timely notice of 1987. At that time, EPA became the lead responses under CERCLA have been withdrawal of this Deletion before its agency for the Site with support from implemented, and no further action by effective date. EPA will prepare, if the NYSDEC. responsible parties is appropriate; or appropriate, a response to comments In March 1991, Theodore Losee and iii. The remedial investigation has and continue with the deletion process Alfa-Laval, Inc., signed an shown that the release poses no on the basis of the Notice of Intent to Administrative Order on Consent with significant threat to public health or the Delete and the comments already EPA in which they agreed to perform environment and, therefore, received. the Remedial Investigation/Feasibility implementing remedial measures is not Deletion of a site from the NPL does Study (RI/FS) for the Site. The RI Report appropriate. not itself create, alter, or revoke any was completed in 1995 and the FS EPA proposes to delete this Site individual’s rights or obligations. Report in July 1996. because potentially responsible parties Deletion of a site from the NPL does not On March 31,1997, EPA issued a have implemented all appropriate in any way alter EPA’s right to take Record of Decision (ROD) which response actions. If new information appropriate enforcement actions. The selected the following remedy: becomes available which indicates a NPL is the list of uncontrolled excavation of contaminated soils in need for further action, EPA may initiate hazardous substances releases in the outlying areas and placement of these such actions based upon Section United States that are priorities for long- soils in a central disposal area; 300.425(e)(3) of the NCP. Pursuant to term remedial evaluation and response. construction of a cap over the central disposal area; implementation of a Section 300.425(e)(3) of the NCP, a site IV. Basis For Site Deletion deleted from the NPL remains eligible groundwater monitoring program; and for remedial actions if conditions at the The following summary provides a implementation of institutional Site warrant such action. brief description and history of the controls. Jones Sanitation Superfund Site and In September 1997, Theodore Losee III. Deletion Procedures provides the Agency’s rationale for and Alfa Laval, Inc. signed a Consent The following procedures were used recommending deletion of the Site from Decree with the United States in which for the intended deletion of this Site: the NPL. they agreed to perform the remedy (1) The Site was listed on the NPL in The Jones Sanitation Site consists of outlined in the ROD. The Consent July 1987. a 57-acre parcel of land located Decree was entered by the Court on (2) In March 1991, Theodore Losee approximately one-half mile northeast February 4, 1998. and Alfa-Laval, Inc., signed an of the intersection of Crum Elbow Road The Final Design Report, which EPA Administrative Order on Consent with and Cardinal Road in Hyde Park, New approved in July 2000, established the EPA in which they agreed to perform York. The Maritje Kill flows from the design criteria and schedule for the the Remedial Investigation/Feasibility northeast to the southeast across the remediation including the requirements Study (RI/FS) for the Site. eastern side of the Site. Another for long-term groundwater monitoring (3) The RI Report was completed in unnamed stream enters the northern once construction activities were 1995, the FS Report in July 1996. side of the Site, flows into wetlands on completed. (4) On March 31, 1997, EPA issued a the northwestern side of the property, Construction activities at the Site Record of Decision which selected a and flows off-site to the west. started in June 2001. The Remedial remedy for the Site which included Freshwater wetlands surround the Action activities included: the engineered and institutional controls. northern, southern, and western excavation of soils in several trenches (5) On December 6, 2001, EPA portions of the Site. and the backfill of these areas with determined that the engineered controls The majority of the property is clean fill/topsoil and restoration of these had been constructed. heavily wooded, but a large cleared area areas; consolidation of soils from the (6) In September of 2004, institutional exists in the western-central portion of trenches into the central disposal area; controls were recorded with the the Site and extends to the northeast. and construction of a NYCRR Part 360 Dutchess County Register of Deeds. The Site is zoned residential but the cap in the central disposal area. The (7) The EPA consulted with the prior commercial use had been constructed cap is approximately 4.6 NYSDEC on the deletion of this Site and grandfathered. acres. The analytical results from post- NYSDEC concurred with the deletion of For 30 years, septage wastes were excavation soils samples collected from the Site from the NPL on March 1, 2005. treated and disposed at the Site from the excavated areas indicated that the (8) Concurrently with the publication homes, businesses, institutions, and remaining soils in excavated areas met of this Direct Final Deletion, a parallel industrial facilities. For approximately the cleanup levels required by the ROD. Notice of Intent to Delete has been 17 years, industrial wastewater was This work was conducted from June published today in the Notice section of treated and disposed at the Site. thru October 29, 2001. Seeding of the the Federal Register. Notices are also Beginning in 1970, NYSDEC and cap area was completed in November being published in local newspapers Dutchess County Health Department 2001. and appropriate notice is being conducted several investigations of the The total amount of contaminated provided to federal, state, and local Site including sampling of on-site soils, waste material excavated and placed government officials and other groundwater, surface water, and stream under the cap was 13,864 cubic yards interested parties. sediments. Some off-site private and (CY). The total volume of contaminated (9) The EPA placed copies of public wells were also sampled. Volatile waste material was significantly greater documents supporting the deletion in organic compounds (VOCs), semi- than the volume estimated in the ROD, the Site information repositories volatile organic compounds, which was 6,550 CY. This was mainly identified above. polynuclear aromatic hydrocarbon due to a greater than expected volume If no significant adverse comments are compounds, polychlorinated biphenols of contamination encountered during received, the Site will be deleted. If and metals were detected at varying excavation. significant adverse comments are concentrations in site media. Based on On October 12, 2001, EPA and the received within the 30-day public the results of these investigations, the State conducted a final inspection. The comment period on this action, EPA Site was placed on the NPL in July inspection found that the work was
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completed in accordance with the ROD above standards appear to be due to 1991 Comp., p. 351; E.O.12580, 52 FR 2923, and the Consent Decree including the naturally elevated levels of these 3 CFR, 1987 Comp., p. 193. construction of the cap and installation constituents in the bedrock aquifer. Appendix B—[Amended] of the fence. Information on the site Institutional controls consisting of an construction is contained in the easement and deed restriction limiting I 2. Table 1 of Appendix B to Part 300 Remedial Action Report dated access to the Site and preventing use of is amended under New York (NY) by September 2002. contaminated water as a drinking water removing the site name ‘‘Jones The long-term groundwater source were filed with the Dutchess Sanitation’’ and the corresponding city monitoring program began once the County Register of Deeds in September designation ‘‘Hyde Park’’ construction of the cap was completed. of 2004. [FR Doc. 05–13346 Filed 7–6–05; 8:45 am] The groundwater monitoring program Public participation activities for this BILLING CODE 6560–50–P includes 15 on-site monitoring wells Site have been satisfied as required by completed both in shallow and deeper CERCLA Section 113(k), 42 U.S.C. portions of the on-site aquifer. In 9613(k), and CERCLA Section 117,42 FEDERAL COMMUNICATIONS addition, ten off-site residential U.S.C. 9617. The RI/FS and the ROD COMMISSION drinking water supply wells in the were subject to a public review process. immediate vicinity of the site were All documents and information which 47 CFR Part 73 EPA relied on or considered in reaching included in the program. [MM Docket No. 99–25; FCC 05–75] The continuing operation and the conclusion that this site can be maintenance (O&M) activities at the site deleted from the NPL are available for Creation of a Low Power Radio Service are being performed by Lawler Matusky the public to review at the information & Skelly Consultants Inc. under contract repositories. AGENCY: Federal Communications to Alfa-Laval. EPA and NYSDEC The remedy implemented at this site Commission. approved an O&M Plan for the site results in contaminants remaining at the ACTION: Final rule. entitled ‘‘Long-Term Monitoring and site above levels that allow for O&M Plan’’ dated January 2002. O&M unlimited use and unrestricted SUMMARY: In this document, the activities include: groundwater exposure. In accordance with CERCLA Commission modifies its rules monitoring of ten nearby residential Section 121(c), EPA and/or NYSDEC governing minor changes to low power supply wells and 15 on-site monitoring will conduct a review of this remedy no FM (LPFM) authorized facilities and wells as well as gas monitoring and less often than every five years. The first minor technical amendments to LPFM routine inspections to insure that the Five-Year Review is expected to be applications. The Commission clarifies capped area is functioning as designed. completed before June 2006 which is the definition of locally originated Groundwater samples are analyzed by five years from the start of the on-site programming for purposes of resolving a New York State Department of Health construction. mutually exclusive LPFM applications. approved laboratory and all of the data One of the three criteria for Site The Commission also establishes are reviewed by an independent data deletion specifies that a site may be standards for waiver of the LPFM 18- validation service. The ten residential deleted from the NPL if ‘‘responsible month construction deadline and the wells that are in the long-term parties or other parties have prohibition on assignment of LPFM monitoring program were selected for implemented all appropriate response authorizations or transfer of control of inclusion in the sampling program actions required’’. 40 CFR 300.425(e)(1) LPFM permittees or licensees. The based on anticipated groundwater flow (ii). EPA, with concurrence of the State Commission imposes a six-month freeze directions, proximity to the site, and of New York, through the NYSDEC, on the grant of FM translator new from which aquifer the well was believes that this criteria for deletion station construction permits. drawing water. The groundwater results has been met and therefore, EPA is DATES: The rules in this document for the residential wells indicate that the deleting this Site from the NPL. contain information collection site does not impact the quality of off- requirements that have not been List of Subjects in 40 CFR Part 300 site groundwater in either the shallow approved by the Office of Management overburden or deeper bedrock aquifer Environmental protection, Air and Budget (OMB). The Commission found in the vicinity of the site. pollution control, Chemicals, Hazardous will publish a document in the Federal The objectives of the monitoring of waste, Hazardous substances, Register announcing the effective date the on-site monitoring wells are to Intergovernmental relations, Penalties, of these rules. evaluate and track groundwater flow Reporting and recordkeeping ADDRESSES: All filings must be patterns and chemistry and observe the requirements, Superfund, Water addressed to the Commission’s natural attenuation of groundwater pollution control, Water supply. Secretary, Office of the Secretary, contamination. Dated: June 6, 2005. Federal Communications Commission, On-site groundwater was found to be George Pavlou, 445 12th Street, SW., Room TW–A325, only minimally impacted by past site Acting Regional Administrator, U.S. EPA Washington, DC 20554. See activities. Comparing the results to the Region II. Supplementary Information for filing applicable NYSDEC Class GA instructions. In addition to filing I For the reasons set out in the preamble groundwater standards, only a few comments with the Office of the Part 300 Title 40 of Chapter I of the Code VOCs were detected above the standards Secretary, a copy of any comments on of Federal Regulations is amended as during the past rounds of sampling. A the Paperwork Reduction Act follows: total of ten individual metals were information collection requirements found above applicable standards. Of PART 300—[AMENDED] contained herein should be submitted to these, seven are believed to be site- Cathy Williams Federal related contaminants: arsenic, copper, I The authority citation for Part 300 Communications Commission, Room 1– antimony, thallium, chromium, nickel continues to read as follows: C804, 445 12th Street, SW., Washington, and lead. The concentrations of iron, Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. DC 20554, or via the Internet to manganese, and sodium which are 9601–9657; E.O. 12777, 56 FR 54757, 3 CFR, [email protected].
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FOR FURTHER INFORMATION CONTACT: For Commission might ‘‘further reduce the windows, each limited to an application additional information on this information collection burden for small group of ten states and at least one other proceeding, contact Natalie Roisman, business concerns with fewer than 25 U.S. jurisdiction, in order to ‘‘ensure the [email protected], of the Media employees.’’ expeditious implementation of the Bureau, Policy Division, (202) 418– LPFM service and to promote the Summary of the 2nd Reconsideration 2120. For additional information efficient use of Commission resources.’’ concerning the Paperwork Reduction I. Introduction See FCC Announces Five-Stage National Act information collection requirements 1. In January 2000, the Commission Filing Window for Low Power FM contained in this document, contact adopted a Report and Order establishing Broadcast Station Applications, DA 00– Cathy Williams, Federal the low power FM (LPFM) service, 621 (MMB rel. Mar. 17, 2000). The Communications Commission, 445 12th Creation of Low Power Radio Service, Commission conducted a lottery to St, SW., Room 1–C823, Washington, DC 65 FR 7616, February 15, 2000. The determine the order of the application 20554, or via the Internet to Commission authorized the LPFM groups, and the Mass Media Bureau [email protected]. service to provide opportunities for new announced that the first LPFM filing SUPPLEMENTARY INFORMATION: This is a voices to be heard, while at the same window would open on May 30, 2000. summary of the Federal time maintaining the integrity of Subsequent filing windows opened on Communications Commission’s Second existing FM radio service and August 28, 2000, January 16, 2001, and Order on Reconsideration (2nd preserving its ability to transition to a June 11, 2001. The fourth and fifth Reconsideration) FCC 05–75, adopted digital transmission mode. In the Report LPFM application groups were on March 16, 2005, and released on and Order, the Commission authorized consolidated into a single window in March 17, 2005. The full text of this two classes of LPFM service: The LP100 order to speed the filing process for document is available for public class, consisting of stations with a applicants in these states. inspection and copying during regular maximum power of 100 watts effective 4. On reconsideration in September business hours in the FCC Reference radiated power (ERP) at 30 meters 2000, the Commission issued some Center, Federal Communications antenna height above average terrain revisions and clarifications, but Commission, 445 12th Street, SW., CY– (HAAT), providing an FM service radius generally affirmed the decisions reached A257, Washington, DC 20554. These (1 mV/m or 60 dBu) of approximately in the Report and Order. See 65 FR documents will also be available via 3.5 miles (5.6 kilometers), and the LP10 67289 (MO&O). The Making ECFS (http://www.fcc.gov/cgb/ecfs/). class, consisting of stations with a Appropriations for the Government of (Documents will be available maximum power of 10 watts ERP at 30 the District of Columbia for FY 2001 Act electronically in ASCII, Word 97, and/ meters HAAT, providing an FM service (2001 DC Appropriations Act), Pub. L. or Adobe Acrobat.) The complete text radius of approximately one to two No. 106–553 632, required the may be purchased from the miles (1.6 to 3.2 kilometers). The Report Commission to modify its rules to Commission’s copy contractor, 445 12th and Order also imposed separation prescribe LPFM station third-adjacent Street, SW., Room CY–B402, requirements for LPFM with respect to channel spacing standards and to Washington, DC 20554. To request this full power stations. prohibit any applicant from obtaining document in accessible formats 2. In the Report and Order, the an LPFM station license if the applicant (computer diskettes, large print, audio Commission also established ownership previously had engaged in the recording, and Braille), send an e-mail and eligibility rules for the LPFM unlicensed operation of a station. As a to [email protected] or call the service. The Commission restricted result of rule revisions adopted Commission’s Consumer and LPFM service to noncommercial pursuant to the 2001 DC Appropriations Governmental Affairs Bureau at (202) educational (NCE) operation by non- Act, facilities proposed in a number of 418–0530 (voice), (202) 418–0432 profit entities and public safety radio otherwise technically sufficient (TTY). services. With certain narrow applications filed in the first two LPFM exceptions, the Commission restricted filing windows became short-spaced to Paperwork Reduction Act of 1995 ownership to entities with no existing full-power FM and/or FM Analysis attributable interest in any other translator stations, and were This 2nd Reconsideration contains broadcast station or other media subject subsequently dismissed. See 66 FR modified information collection to our ownership rules. The 23861, May 10, 2001 (2nd R&O). The requirements. The Commission, as part Commission prohibited the sale or 2001 DC Appropriations Act also of its continuing effort to reduce transfer of an LPFM station. For the first instructed the Commission to conduct paperwork burden, invites the general two years of the LPFM service, the an experimental program to evaluate public and the OMB to comment on the Commission prohibited multiple whether LPFM stations would interfere modified information collection ownership of LPFM stations and limited with existing FM stations if the LPFM requirements contained in this 2nd ownership to locally-based entities. To stations were not subject to the Reconsideration, as required by the resolve mutually exclusive applications, additional channel spacing Paperwork Reduction Act of 1995, Pub. the Commission established a point requirements, and to submit a report to L. 104–13. Written comments on the system that favors local ownership and Congress, including the Commission’s modified information collection locally-originated programming, with recommendations to Congress regarding requirements must be submitted by the time-sharing and successive license reduction or elimination of the public, the Office of Management and terms as tie-breakers. minimum separations for third-adjacent Budget (OMB), and other interested 3. The Report and Order directed the channels. The Commission selected an parties on or before September 6, 2005. Mass Media Bureau to announce by independent third party, the Mitre In addition, we note that, pursuant to public notice the opening of a national Corporation (Mitre), to conduct the field the Small Business Paperwork Relief filing window for LP100 applications. In tests. On February 19, 2004, the Act of 2002, Pub. L. 107–198, see 44 March 2000, the Mass Media Bureau Commission staff submitted the U.S.C. 3506(c)(4), we previously sought announced that it would accept LPFM required report to Congress and, based specific comment on how the applications in five separate filing on the Mitre study, recommended that
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Congress ‘‘modify the statute to locally originated programming is to a relocation of less than one kilometer eliminate the third-adjacent channel encourage licensees to maintain for an LP10 station. Minor change distant separation requirements for production facilities and a meaningful applications may also propose a change LPFM stations.’’ staff presence within the community to an adjacent or IF frequency or, upon 5. On February 8, 2005, the served by the station, a definition of a technical showing of reduced Commission held a forum on LPFM. local program origination as the interference, to any other frequency. As The forum was intended to inform the production of programming by the noted, new station and major Commission of achievements by LPFM licensee within 10 miles of the proposed modification applications may be stations and the challenges faced as the transmitting site is most appropriate. amended only during specified window service marks its fifth year. As of March The Commission clarified explicitly that filing periods. Only ‘‘minor 2005, more than 1,175 LPFM this rule does not necessarily preclude amendments’’ to such applications may construction permits have been granted. an applicant from claiming a point for be filed outside a filing window. In Of these 1,175 permits, approximately local origination based on coverage of a implementing the 2001 DC 590 stations are on the air, serving high school away game played more Appropriations Act in the 2nd R&O, the mostly mid-sized and smaller markets. than 10 miles away, so long as the Commission determined that it was 6. Since the LPFM service was production involves facilities located necessary to adopt a more restrictive created, the experiences of LPFM within a 10-mile radius of the antenna. approach for ‘‘minor amendments’’ to applicants, permittees, and licensees 9. The United Church of Christ, Office pending applications, compared with have demonstrated that the of Communication, Inc. (UCC) requests the approach adopted for ‘‘minor Commission’s LPFM rules may need that the Commission further clarify the changes’’ to authorized facilities, in some adjustment in order to ensure that definition of locally originated order to facilitate the expeditious the Commission maximizes the value of programming. UCC states that it is processing of the numerous applications the LPFM service without harming the concerned that certain LPFM applicants filed in the initial LPFM windows. interests of full-power FM stations or are construing this term liberally and Accordingly, the Commission barred other Commission licensees. The intend to time-shift programming channel change amendments outside Commission’s actions in this 2nd obtained via satellite and rebroadcast it window filing periods. The Commission Reconsideration, based in part on in an attempt to meet the local program concluded, however, that the goal of testimony received at the LPFM forum, origination pledge. The Commission promptly licensing LPFM stations are designed to increase the number of does not believe that there is any reason would not be compromised by LPFM stations on the air and strengthen for concern that the definition of locally permitting applicants to change the viability of those stations that are originated programming, as clarified on proposed station locations by small already operating. reconsideration, may be construed distances. Thus, in order to provide broadly enough to encompass II. Second Reconsideration Order ‘‘some flexibility for applicants that lose programming delivered by satellite. a proposed transmitter site or become Ownership and Eligibility Nevertheless, we will take this aware of a more desirable nearby site opportunity to re-emphasize that the 7. In the Report and Order, the after the close of a filing window,’’ the local origination selection criterion is Commission defined minor Commission established a point system intended to encourage licensees to for resolving mutual exclusivity among amendments to include transmitter site maintain production facilities and a relocations of less than two kilometers LPFM applicants. The point system meaningful staff presence within the for LP100 stations and relocations of includes three selection criteria for community served by the station. less than one kilometer for LP10 mutually exclusive applicants. First, Programming that is produced outside stations—identical to the transmitter applicants that have an established of the 10-mile radius and does not site relocation limits permissible in community presence of at least two involve any local production facilities applications seeking minor changes to years’ duration are awarded one point. does not serve this goal. Accordingly, authorized facilities. See 47 CFR Second, applicants that pledge to the Commission clarifies that such 73.871(c). operate at least 12 hours per day are programming, including time-shifted assigned one point. Finally, applicants programming obtained via satellite, may 11. In its petition for reconsideration that pledge to originate locally at least not be used to fulfill a locally originated of the 2nd R&O, UCC requests that the eight hours of programming per day are programming pledge made as part of the Commission amend the definition of assigned one point. The Commission mutually exclusive LPFM application minor change (i.e., an application that defined local origination for purposes of selection process. seeks modifications to authorized resolving mutual exclusivity in LPFM facilities and is permissibly filed applications as the production of Technical Rules outside a filing window) to include programming within 10 miles of the 10. In the Report and Order, the transmitter site relocation of up to 5.6 reference coordinates of the proposed Commission adopted a window filing kilometers for LP100 licensees and 3.2 transmitting antenna. process for applications for new LPFM kilometers for LP10 licensees. Although 8. On reconsideration in 2000, the stations and major modifications in the UCC does not explicitly request that the Commission considered a request to facilities of authorized LPFM stations. Commission also amend the definition broaden the definition of locally New station and major modification of minor amendment (i.e., an originated programming to include applications are accepted only during amendment to a pending new station or programming that ‘‘covers local persons window filing periods specified by the major modification application that is and/or their activities and/or local Commission. An application proposing permissibly filed outside a filing issues.’’ The Commission agreed that a ‘‘minor change’’ to authorized LPFM window) to parallel the requested clarification was warranted, but facilities, however, may be filed at any expansion of the definition of minor declined to adopt the proposed time. See 47 CFR 73.870. The Report change, the Commission interprets language. Instead, the Commission and Order defined a minor change as a UCC’s request to encompass both the explained that because the intent of transmitter site relocation of less than minor change and minor amendment awarding a point for a pledge to provide two kilometers for an LP100 station and definitions, both of which were
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addressed in the 2nd R&O. UCC claims settlement windows for closed LPFM 15. The FNPRM also proposes to that many LPFM applicants have not groups to permit applicants entering extend the LPFM construction period to been able to obtain local government into settlement agreements to file major three years, the same period afforded approval for their first choice change amendments specifying new FM other broadcast permittees, and seeks transmitter locations and must apply for channels. (In 2003, the Commission comment on this proposal. Some LPFM alternative sites. UCC states that the established a similar filing window construction permits are scheduled to practical experience of UCC, LPFM which successfully facilitated the rapid expire in the near future, while the applicants, and their technical advisors licensing of a number of LPFM stations). Commission is considering this issue, demonstrates that while a two kilometer For applications amended in such and other LPFM permittees with limit often precludes a workable windows, the Commission delegates expired permits have requests pending solution in such situations, a 5.6 authority to the Media Bureau to waive before the Media Bureau for additional kilometer limit will often provide the 47 CFR 73.871(a) on a case-by-case basis time to construct. The Commission necessary flexibility for applicants to upon a determination that such waiver adopts an interim waiver policy to relocate. will promote expeditious application increase the likelihood that these 12. The Commission recognizes that processing and maximize new LPFM LPFM licensees have faced a number of station licensing opportunities. Any permittees will complete construction legal and practical constraints in settlement agreement submitted under and commence operation. Although the identifying, securing, and retaining these procedures must be universal. rules do not generally permit waiver of broadcast construction permit transmitter sites. The Commission is 14. In the Further Notice of Proposed also aware that in some circumstances, deadlines, all other broadcast permittees Rulemaking (FNPRM) issued developments that occur during the concurrently with this 2nd are afforded 36 months to construct pendency of an application may make it Reconsideration, the Commission seeks facilities. Here, where the construction difficult or even impossible for an LPFM a comment on a number of technical period is half as long, the Commission applicant to use the site originally and ownership/eligibility issues relating believes that waivers generally are proposed. Permitting transmitter site to LPFM authorizations. Among other warranted to extend outstanding LPFM relocation of up to 5.6 kilometers for issues, the Commission seeks comment construction permits to three years. LP100 licensees and 3.2 kilometers for on whether to introduce some level of Pending Commission action on the LP10 licensees would provide needed transferability to the LPFM service. The FNPRM, the Commission delegates to flexibility. Accordingly, the the Media Bureau the authority to Commission amends 47 CFR 73.870 and Commission states that the current rule consider requests for waiver of the 73.871 to permit the filing of minor prohibiting the transfer of LPFM construction period even if the change applications and minor stations is hampering the LPFM service amendments requesting authority for by, for example, impeding routine requirements under the tolling rules are transmitter site relocation of up to 5.6 transitions to new governing boards and not met. The Media Bureau may kilometers for LP100 licensees and 3.2 limiting the ability of an LPFM licensee determine that a waiver is appropriate if kilometers for LP10 licensees. Minor to assign its license to a new, jointly- an LPFM permittee demonstrates that it amendments may be filed only to controlled entity composed of several cannot complete construction within applications that are currently pending. similarly focused organizations. The the allotted 18 months for reasons (UCC asserts that the 2001 DC Commission believes that delaying relief beyond its control, that it reasonably Appropriations Act, which required the to LPFM stations until the proceeding is expects to be able to complete Commission to establish third-adjacent completed will not serve the public construction within the additional 18 channel spacing requirements for LPFM, interest. Accordingly, the Commission months that the construction extension effectively reduced the number of delegates to the Media Bureau authority would provide, and that the public available frequencies and forced LPFM to consider, on a case-by-case basis, interest would be served by the applicants to seek new locations for requests for waivers of 47 CFR 73.865. extension. their transmitters; however, applications The Media Bureau may grant a waiver dismissed for any reason, including upon determination that such waiver III. Procedural Matters will maximize spectrum use for low pursuant to the third-adjacent channel Regulatory Flexibility Act spacing requirements adopted in the power FM operations. For example, 2nd R&O, may not be amended because waiver may be appropriate, assuming 16. This Final Regulatory Flexibility they are no longer pending). the public interest would be served, in Analysis (FRFA) conforms to the 13. Although the Commission certain circumstances: a sudden change Regulatory Flexibility Act of 1980, as expands the permissible distance for in the majority of a governing board amended, 5 U.S.C. 604. transmitter site relocation in an with no change in the organization’s amendment to a pending application, mission; development of a partnership Need for, and Objectives of, the Second the Commission continues to believe or cooperative effort between local Order on Reconsideration that efficient LPFM window application community groups, one of which is the processing requires a relatively fixed licensee; and transfer to another local 17. The Commission received database of technical proposals and, entity upon the inability of the current petitions for reconsideration of the 2nd therefore, that a narrow definition of licensee to continue operations. This is R&O that requested reconsideration of a ‘‘minor’’ amendment remains necessary. not an exhaustive list of circumstances variety of issues. This 2nd Thus, the Commission does not expand appropriate for waiver. However, until Reconsideration resolves those issues the definition of minor amendment to the Commission has further considered that were timely raised. We do not encompass channel changes. the transferability issue, waiver is not change most of the determinations made Nevertheless, it is in the public interest appropriate to permit the for-profit sale in the 2nd R&O. We do, however, to provide LPFM applicants as much of an LPFM station to any entity or the amend the definitions of minor change technical flexibility as possible. transfer of an LPFM station to a non- and minor amendment to permit greater Accordingly, the Commission delegates local entity or an entity that owns flexibility in transmitter site relocation authority to the Media Bureau to open another LPFM station. for LPFM authorizations.
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Description and Estimate of the Number renewals. We also require lower power List of Subjects in 47 CFR Part 73 of Small Entities to Which Rules Will radio stations to comply with some of Radio. Apply the reporting, recordkeeping, and other Federal Communications Commission. 18. The RFA directs the Commission compliance requirements as full power Marlene H. Dortch, to provide a description of and, where radio broadcasters. This 2nd feasible, an estimate of the number of Reconsideration amends the definitions Secretary. of minor change and minor amendment small entities that will be affected by the Final Rule Changes proposed rules, if adopted. See 5 U.S.C. to permit increased flexibility in transmitter site relocation for LPFM I 603(b)(3). The RFA generally defines the For the reasons discussed in the authorizations. In order to receive term ‘‘small entity’’ as having the same preamble, the FCC amends 47 CFR part authorization for such site relocation, meaning as the terms ‘‘small business,’’ 73 as follows: LPFM applicants, permittees, and small organization,’’ and ‘‘small licensees must file minor change PART 73—RADIO BROADCAST government jurisdiction.’’ 5 U.S.C. applications or minor amendments to SERVICES 601(6). In addition, the term ‘‘small pending applications. business’’ has the same meaning as the I 1. The citation authority for part 73 term ‘‘small business concern’’ under Steps Taken To Minimize Significant continues to read as follows: Economic Impact on Small Entities, and the SBA. A small business concern is Authority: 47 U.S.C. 154, 303, 334, 336, one which: (1) is independently owned Significant Alternatives Considered and 339. and operated; (2) is not dominant in its 22. The RFA requires an agency to I 2. Section 73.870 is amended by field of operation; and (3) satisfies any describe any significant alternatives that revising paragraph (a) to read as follows: additional criteria established by the it has considered in reaching its SBA. proposed approach, which may include § 73.870 Processing of LPFM broadcast 19. The Small Business the following four alternatives (among station applications. Administration (SBA) defines a radio others): (1) The establishment of (a) A minor change for an LP100 broadcasting station that has $5 million differing compliance or reporting station authorized under this subpart is or less in annual receipts as a small requirements or timetables that take into limited to transmitter site relocations of business. See 13 CFR 121.201. A radio account the resources available to small 5.6 kilometers or less. A minor change broadcasting station is an establishment entities; (2) the clarification, for an LP10 station authorized under primarily engaged in broadcasting aural consolidation, or simplification of this subpart is limited to transmitter site programs by radio to the public. compliance or reporting requirements relocations of 3.2 kilometers or less. Included in this industry are under the rule for small entities; (3) the Minor changes of LPFM stations may commercial, religious, educational, and use of performance, rather than design, include changes in frequency to other radio stations. The 1992 Census standards; and (4) an exemption from adjacent or IF frequencies or, upon a indicates that 96 percent (5,861 of coverage of the rule, or any part thereof, technical showing of reduced 6,127) of radio station establishments for small entities. See 5 U.S.C. interference, to any frequency. produced less than $5 million in 603(c)(1)–(c)(4). * * * * * revenue in 1992. 23. The LPFM service has created and I 20. The Commission’s LPFM rules will continue to create significant 3. Section 73.871 is amended by apply to a new category of FM radio opportunities for new small businesses. revising paragraph (c) to read as follows: broadcasting service. As of the date of In addition, the Commission generally § 73.871 Amendment of LPFM broadcast release of this FNPRM, the has taken steps to minimize the impact station applications. Commission’s records indicate that on existing small broadcasters. To the * * * * * more than 1,175 LPFM construction extent the 2nd Reconsideration imposes (c) Only minor amendments to new permits have been granted. Of these any burdens on small entities, the and major change applications will be 1,175 permits, approximately 590 Commission believes that the resulting accepted after the close of the pertinent stations are on the air, serving mostly impact on small entities is favorable filing window. Subject to the provisions mid-sized and smaller markets. It is not because the proposed rules, if adopted, of this section, such amendments may known how many entities ultimately would expand opportunities for LPFM be filed as a matter of right by the date may seek to obtain low power radio applicants, permittees, and licensees to specified in the FCC’s Public Notice licenses. Nor does the Commission commence broadcasting and stay on the announcing the acceptance of such know how many of these entities will be air. applications. For the purposes of this 24. The Commission will send a copy small entities. The Commission expects, section, minor amendments are limited of this 2nd Reconsideration in a report however, that due to the small size of to: to Congress and the Government low power FM stations, small entities (1) Site relocations of 3.2 kilometers Accountability Office pursuant to the would generally have a greater interest or less for LP10 stations; than large ones in acquiring them. Congressional Review Act, 5 U.S.C. (2) Site relocations of 5.6 kilometers 801(a)(1)(A). Description of Projected Reporting, 25. Accessibility Information. To or less for LP100 stations; Recordkeeping, and Other Compliance request information in accessible (3) Changes in ownership where the Requirements formats (computer diskettes, large print, original party or parties to an 21. Most of the provisions of the 2nd audio recording, and Braille), send an e- application retain more than a 50 R&O are unchanged by the 2nd mail to [email protected] or call the FCC’s percent ownership interest in the Reconsideration. Establishing the LPFM Consumer and Governmental Affairs application as originally filed; and service requires the collection of Bureau at (202) 418–0530 (voice), (202) (4) Other changes in general and/or information for the purposes of 418–0432 (TTY). This document can legal information. processing applications for (among also be downloaded in Word and * * * * * other things) initial construction Portable Document Format (PDF) at: [FR Doc. 05–13368 Filed 7–6–05; 8:45 am] permits, assignments and transfers, and http://www.fcc.gov. BILLING CODE 6712–01–P
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DEPARTMENT OF COMMERCE proposed rule (70 FR 13152, March 18, This final rule has been determined to 2005) to implement Amendment 15 and be not significant for purposes of National Oceanic and Atmospheric requested public comment on the Executive Order 12866. Administration proposed rule through May 2, 2005. The NMFS prepared a FRFA for this rationale for the measures in action. The FRFA incorporates the IRFA 50 CFR Part 622 Amendment 15 is provided in the and a summary of the analyses preamble to the proposed rule and is not completed to support the action. No [Docket No. 050309066–5164–02; I.D. comments were received in response to 030105D] repeated here. the IRFA. A copy of the FRFA is Comment and Response RIN 0648–AS53 available from NMFS (see ADDRESSES). Following is a summary of the Following is a summary of the analysis. Fisheries of the Caribbean, Gulf of comment NMFS received on This final rule will establish a limited Mexico, and South Atlantic; Coastal Amendment 15 and the associated access system for the commercial Migratory Pelagic Resources of the proposed rule, along with NMFS’ fishery for Gulf and Atlantic group king Gulf of Mexico and South Atlantic; response. mackerel and change the Atlantic Amendment 15 Comment: Do not change the Atlantic migratory group king and Spanish king mackerel fishing year to start mackerel fishing year to begin March 1 AGENCY: National Marine Fisheries March 1. At this time of year, the Gulf rather than the current April 1. The Service (NMFS), National Oceanic and stock king mackerel are still in the purpose of the rule is to provide Atmospheric Administration (NOAA), Florida Keys and along the east coast of stability in the Southeast commercial Commerce. Florida. A March 1 opening will king mackerel fishery as part of the ACTION: Final rule. incorrectly count Gulf stock king overall strategy to achieve optimum mackerel against the Atlantic stock yield and maximize the overall benefits SUMMARY: NMFS issues this final rule to quota. to the Nation provided by the fishery implement Amendment 15 to the Response: The change in the fishing and insure that the Atlantic group king Fishery Management Plan for the year for Atlantic groups of mackerel mackerel fishery is open in March. The Coastal Migratory Pelagic Resources of does not affect the manner in which the Magnuson-Stevens Act provides the the Gulf of Mexico and South Atlantic fishery is divided for management statutory basis for the rule. (FMP). This final rule establishes a purposes. For management purposes, No significant issues were raised by limited access system for the the Gulf migratory group of king the public comment about the IRFA or commercial fishery for Gulf and Atlantic mackerel is considered to seasonally the economic impacts of the rule. migratory group king mackerel by migrate out of the Gulf of Mexico Therefore, no changes were made in the capping participation at the current northward along the east coast of final rule as a result of such comments. level. The final rule also changes the Florida. From November 1 through No duplicative, overlapping, or fishing year for Atlantic migratory group March 31, king mackerel found in the conflicting Federal rules have been king and Spanish mackerel to March exclusive economic zone off the east identified. through February. The intended effects coast of Florida between the Miami- An estimated 1,740 vessels were of this final rule are to provide Dade/Monroe County boundary and the permitted to fish for commercial king economic and social stability in the Volusia/Flagler County boundary are mackerel in 2003, down from 2,172 in fishery by preventing speculative entry considered to be Gulf migratory group 1998. Approximately half of the vessels into the fishery and to mitigate adverse fish. King mackerel north of the with permits had logbook-reported impacts associated with potential quota Volusia/Flagler boundary are landings: 1,066 vessels in 1998 and 951 closures. considered to be Atlantic migratory vessels in 2003. The median annual DATES: This final rule is effective August group fish all year. gross revenue from all logbook-reported 8, 2005. The change of the fishing year for sales of finfish by these vessels ranged ADDRESSES: Copies of the Final Atlantic groups of king and Spanish from approximately $11,000 to $12,000 Regulatory Flexibility Analyses (FRFA) mackerel does not affect the times that during this period. The median may be obtained from the Southeast these subzone designations would percentage of gross revenues attributable Regional Office, NMFS, 263 13th change. From March 1 through March to king mackerel ranged from 22 percent Avenue South, St. Petersburg, FL 33701. 31, the fishing year change would only to 33 percent. Although participation in apply to Atlantic migratory group king the fishery has declined since 1998, this FOR FURTHER INFORMATION CONTACT: decline has been voluntary and Steve Branstetter; telephone: 727–551– mackerel caught north of the Volusia/ Flagler boundary. King mackerel caught presumed attributable to economic 5796; fax: 727–824–5308; e-mail: conditions in this fishery and fishing in [email protected]. south of the Volusia/Flagler boundary would still be considered Gulf migratory general and not due to regulatory SUPPLEMENTARY INFORMATION: The group fish. Beginning April 1, when the restrictions. Although a permit fisheries for coastal migratory pelagic subzones are redesignated, king moratorium has been in place in this resources are managed under the FMP. mackerel caught south of the Volusia/ fishery since 1998, permit transfer is not The FMP was prepared jointly by the Flagler boundary would also be counted restricted, and those seeking to enter the Gulf of Mexico Fishery Management as Atlantic migratory group fish. fishery can purchase a permit from Council and the South Atlantic Fishery permit holders. Such transfers in fact Management Council (Councils), Classification occur, and 309 of the 1,740 permits in approved by NMFS, and implemented The Administrator, Southeast Region, 2003 were permits that had been under the authority of the Magnuson- NMFS, has determined Amendment 15 transferred since 1998. Thus, entry into Stevens Fishery Conservation and is necessary for the conservation and the fishery occurs; however, total Management Act (Magnuson-Stevens management of the coastal migratory participation, in terms of both the Act) by regulations at 50 CFR part 622. pelagics fishery and is consistent with number of permits and the number of NMFS approved Amendment 15 on the national standards of the Magnuson- permitted vessels that land fish, has May 26, 2005. NMFS published a Stevens Act and other applicable laws. consistently declined since 1998,
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indicating that entry is not limited by a continues to decline, as has occurred the fishery is estimated to have lack of available permits. since 1998. Should the decline in generated $142,650 to $380,400 in This rule will affect all current participation cease, profits would be producer surplus. Assuming the participants in the fishery. The rule will expected to continue at current levels. increase in producer surplus mirrors the similarly affect all entities interested in Should the fishery revert to open access, rate of fleet contraction exhibited from entering the fishery. No estimate of this participation would be expected to 1998 through 2003 (2.2 percent), the number can be provided, though it is increase, and average profit per resultant estimates of producer surplus not expected to be substantial due to the participant would be expected to are approximately $166,000 to $443,000 decline in total participation in the decline, possibly to the point of by 2010, and $185,000 to $494,000 by fishery despite available entry elimination of all profits from this 2015. Each alternative would also opportunities. fishery. The specification of the fishing continue to provide for market-based This rule will not change current year is essentially an administrative compensation for vessels that exit the reporting, recordkeeping, and other action because no closures of either the fishery, and the permit market would compliance requirements under the Atlantic migratory group king or continue to provide an economically FMP. These requirements include Spanish mackerel fisheries are expected. rational basis for regulating the entry of qualification criteria for the commercial Thus, change of the start of the fishing vessels into the commercial king vessel permit and logbook landing year is not expected to have any effect mackerel fishery and allocating access reports. All of the information elements on profits of fishery participants. to fishery resources among competing required for these processes are This rule will continue the users in the commercial fisheries. standard elements essential to the requirement to have a vessel permit in Although the final rule may imply a successful operation of a fishing order to participate in the commercial more permanent system than the other business and should, therefore, already king mackerel fishery. The cost of the alternatives, the system established be collected and maintained as standard permit is $50, and renewal is required under any alternative could be operating practice by the business. The every other year (the permit is suspended at any time through requirements do not require automatically renewed the second year). appropriate regulatory action. professional skills. Because these Because this is a current requirement, Establishing an indefinite duration, compliance requirements are unchanged there will be no additional impacts on however, eliminates the need for action under this rule, the requirements are not participant profits as a result of this to continue the system at specific time deemed to be onerous. requirement. intervals, thereby eliminating the costs One general class of small business Three alternatives were considered to associated with the regulatory process. entities will be directly affected by this establishment of the limited access The administrative and development rule--commercial fishing vessels. The system defined by the final rule. The no cost of the current action is estimated to Small Business Administration defines action alternative would allow the be $200,000. Further, the final rule may a small business that engages in fishery to revert to open access. Open better address the Councils’ purpose of commercial fishing as a firm that is access conditions would be expected to providing stability in the commercial independently owned and operated, is lead to an increase in the number of and recreational fisheries for king not dominant in its field of operation, permitted vessels (1,740 vessels in mackerel, preventing speculative entry and has annual receipts up to $3.5 2003), or, at least, slow the rate of into the commercial fisheries, and million per year. Based on the revenue decline in participation that has achieving optimum yield. The status profiles provided above, all commercial occurred. Any increase in the number of quo alternative would not achieve the entities operating in the king mackerel vessels landing king mackerel would Councils’ objectives. fisheries are considered small entities. lead to an expected decrease in Three alternatives were considered for This rule will apply to all entities that producer surplus from that in 2003, the change in the fishing year for operate in the commercial king which was estimated at $142,650 to Atlantic migratory group king and mackerel fishery and those entities $380,400. Spanish mackerel. The status quo interested in or seeking to enter the Two alternatives would continue the alternative would maintain the current fishery. This rule will, therefore, affect current moratorium on issuing new king fishing year, April 1 through March 31, a substantial number of small entities. mackerel commercial permits for 5 years while a second alternative would Whether a rule has a ‘‘significant or 10 years, respectively, compared to establish a January 1 through December economic impact’’ can be ascertained by the final rule that will establish an 31 fishing year. The Councils’ objective examining two issues: indefinite limited access program. Thus, is to insure that the Atlantic group disproportionality and profitability. The the fishery would continue as a limited mackerel fisheries are open in March, disproportionality question is: Do the access fishery under each of these because other fishing opportunities are regulations place a substantial number alternatives. It is not possible to limited during this month. Both the of small entities at a significant distinguish these alternatives from the fishing year established by the final rule competitive disadvantage to large final rule empirically in terms of fishery and a January 1 opening would reduce entities? All the vessel operations behavior using available data. However, the potential of a March closure. affected by the rule are considered small it is reasonable to assume that fishermen However, only the final rule would entities, so the issue of believe that regardless of the duration of guarantee that the fishery is open in disproportionality does not arise in the the program specified, a precedent for March, absent a 0–lb (0–kg) quota. Thus, present case. indefinite use of private market the final rule best meets the Councils’ The profitability question is: Do the mechanisms to allow entry into the objectives. regulations significantly reduce profit fishery has been established, given the Section 212 of the Small Business for a substantial number of small history of successfully functioning Regulatory Enforcement Fairness Act of entities? This rule will continue the private markets for vessel permits. Thus, 1996 states that, for each rule or group limited access system in the fishery. the outcomes of these three alternatives of related rules for which an agency is Continuation of this system is expected are expected to be functionally required to prepare a FRFA, the agency to increase profitability for the entities equivalent. As stated previously, under shall publish one or more guides to remaining in the fishery if participation the current permit moratorium program, assist small entities in complying with
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the rule, and shall designate such paragraph (q) of this section regarding a to be not renewed when an application publications as ‘‘small entity limited access system applicable to for renewal is not received by the RA compliance guides.’’ As part of this commercial vessel permits for king within one year after the expiration date rulemaking process, NMFS prepared a mackerel, transfers of permits under the of the permit. fishery bulletin, which also serves as a limited access system, and limited * * * * * small entity compliance guide. The exceptions to the earned income or (q) Limited access system for fishery bulletin will be sent to all permit gross sales requirement for a permit. commercial vessel permits for king holders for the coastal migratory pelagic * * * * * mackerel. (1) No applications for fishery. (g) * * * additional commercial vessel permits List of Subjects in 50 CFR Part 622 (1) Vessel permits, licenses, and for king mackerel will be accepted. endorsements and dealer permits. A Existing vessel permits may be renewed, Fisheries, Fishing, Puerto Rico, vessel permit, license, or endorsement are subject to the restrictions on transfer Reporting and recordkeeping or a dealer permit issued under this or change in paragraphs (q)(2) through requirements, Virgin Islands. section is not transferable or assignable, (q)(5) of this section, and are subject to Dated: June 30, 2005. except as provided in paragraph (m) of the requirement for timely renewal in Rebecca Lent this section for a commercial vessel paragraph (q)(6) of this section. Deputy Assistant Administrator for permit for Gulf reef fish, in paragraph (2) An owner of a permitted vessel Regulatory Programs, National Marine (n) of this section for a fish trap may transfer the commercial vessel Fisheries Service. endorsement, in paragraph (o) of this permit for king mackerel issued under I For the reasons set out in the preamble, section for a king mackerel gillnet this limited access system to another 50 CFR part 622 is amended as follows: permit, in paragraph (p) of this section vessel owned by the same entity. for a red snapper license, in paragraph (3) An owner whose percentage of PART 622—FISHERIES OF THE (q) of this section for a commercial earned income or gross sales qualified CARIBBEAN, GULF, AND SOUTH vessel permit for king mackerel, in him/her for the commercial vessel ATLANTIC paragraph (r) of this section for a charter permit for king mackerel issued under vessel/headboat permit for Gulf coastal this limited access system may request I 1. The authority citation for part 622 migratory pelagic fish or Gulf reef fish, that NMFS transfer that permit to the continues to read as follows: in § 622.17(c) for a commercial vessel owner of another vessel, or to the new Authority: 16 U.S.C. 1801 et seq. permit for golden crab, in § 622.18(e) for owner when he or she transfers I 2. In § 622.4, paragraphs (a)(2)(ii), a commercial vessel permit for South ownership of the permitted vessel. Such (a)(2)(iii), (g)(1), (o), and (q) are revised Atlantic snapper-grouper, or in owner of another vessel, or new owner, to read as follows: § 622.19(e) for a commercial vessel may receive a commercial vessel permit permit for South Atlantic rock shrimp. for king mackerel for his or her vessel, § 622.4 Permits and fees. A person who acquires a vessel or and renew it through April 15 following (a) * * * dealership who desires to conduct the first full calendar year after (2) * * * activities for which a permit, license, or obtaining it, without meeting the (ii) Gillnets for king mackerel in the endorsement is required must apply for percentage of earned income or gross southern Florida west coast subzone. a permit, license, or endorsement in sales requirement of paragraph (a)(2)(iii) For a person aboard a vessel to use a accordance with the provisions of this of this section. However, to further run-around gillnet for king mackerel in section. If the acquired vessel or renew the commercial vessel permit, the the southern Florida west coast subzone dealership is currently permitted, the owner of the other vessel, or new owner, (see § 622.42(c)(1)(i)(A)(3)), a application must be accompanied by the must meet the earned income or gross commercial vessel permit for king original permit and a copy of a signed sales requirement not later than the first mackerel and a king mackerel gillnet bill of sale or equivalent acquisition full calendar year after the permit permit must have been issued to the papers. transfer takes place. vessel and must be on board. See * * * * * (4) An owner of a permitted vessel, paragraph (o) of this section regarding a (o) Limited access system for king the permit for which is based on an limited access system applicable to king mackerel gillnet permits applicable in operator’s earned income and, thus, is mackerel gillnet permits and restrictions the southern Florida west coast valid only when that person is the on transferability of king mackerel subzone. Except for applications for operator of the vessel, may request that gillnet permits. renewals of king mackerel gillnet NMFS transfer the permit to the income- (iii) King mackerel. For a person permits, no applications for king qualifying operator when such operator aboard a vessel to be eligible for mackerel gillnet permits will be becomes an owner of a vessel. exemption from the bag limits and to accepted. Application forms for permit (5) An owner of a permitted vessel, fish under a quota for king mackerel in renewal are available from the RA. the permit for which is based on an or from the Gulf, Mid-Atlantic, or South (1) An owner of a vessel with a king operator’s earned income and, thus, is Atlantic EEZ, a commercial vessel mackerel gillnet permit issued under valid only when that person is the permit for king mackerel must have this limited access system may transfer operator of the vessel, may have the been issued to the vessel and must be that permit upon a change of ownership operator qualification on the permit on board. To obtain or renew a of a permitted vessel with such permit removed, and renew it without such commercial vessel permit for king from one to another of the following: qualification through April 15 following mackerel, at least 25 percent of the Husband, wife, son, daughter, brother, the first full calendar year after applicant’s earned income, or at least sister, mother, or father. Such permit removing it, without meeting the earned $10,000, must have been derived from also may be transferred to another vessel income or gross sales requirement of commercial fishing (i.e., harvest and owned by the same entity. paragraph (a)(2)(iii) of this section. first sale of fish) or from charter fishing (2) A king mackerel gillnet permit that However, to further renew the during one of the three calendar years is not renewed or that is revoked will commercial vessel permit, the owner preceding the application. See not be reissued. A permit is considered must meet the earned income or gross
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sales requirement not later than the first (iii) King mackerel in or from the EEZ FOR FURTHER INFORMATION CONTACT: full calendar year after the operator harvested with gear other than run- Thomas Warren, Fishery Policy Analyst, qualification is removed. To have an around gillnet may not be retained on (978) 281–9347, fax (978) 281–9135, e- operator qualification removed from a board a vessel for which a commercial mail [email protected]. permit, the owner must return the vessel permit for king mackerel and a SUPPLEMENTARY INFORMATION: A original permit to the RA with an king mackerel gillnet permit have been proposed rule for this action was application for the changed permit. issued. published on April 14, 2005 (70 FR (6) NMFS will not reissue a * * * * * 19724), with public comments accepted commercial vessel permit for king [FR Doc. 05–13390 Filed 7–6–05; 8:45 am] through May 16, 2005. A detailed mackerel if the permit is revoked or if BILLING CODE 3510–22–S description of the administrative the RA does not receive an application process used to develop the TACs was for renewal within one year of the contained in the preamble of the permit’s expiration date. DEPARTMENT OF COMMERCE proposed rule and is not repeated here. * * * * * The Northeast (NE) Multispecies National Oceanic and Atmospheric I 3. In § 622.30, paragraph (b)(2) is Fishery Management Plan (FMP) Administration revised, and paragraph (b)(3) is added to specifies a procedure for setting annual read as follows: hard (i.e., the fishery or area closes 50 CFR Part 648 when a TAC is reached) TAC levels for § 622.30 Fishing years. [Docket No. 050331089–5172–02; I.D. GB cod, GB haddock, and GB yellowtail * * * * * 031005A] flounder. The regulations governing the (b) * * * RIN 0648–AS74 annual development of TACs (2) Gulf migratory group Spanish (§ 648.85(a)(2)) were implemented by mackerel—April through March. Fisheries of the Northeastern United Amendment 13 to the FMP (69 FR (3) South Atlantic migratory group States; Northeast Multispecies 22906; April 27, 2004) in order to be king and Spanish mackerel—March Fishery; Total Allowable Catches for consistent with the U.S./Canada through February. Georges Bank Cod, Haddock, and Resource Sharing Understanding * * * * * Yellowtail Flounder in the U.S./Canada (Understanding), which is an informal I 4. In § 622.44, paragraph (a)(2)(ii)(A) is Management Area for Fishing Year understanding between the United revised to read as follows: 2005 States and Canada that outlines a process for the management of the § 622.44 Commercial trip limits. AGENCY: National Marine Fisheries shared GB groundfish resources. The * * * * * Service (NMFS), National Oceanic and Understanding specifies an allocation of (a) * * * Atmospheric Administration (NOAA), TAC for these three stocks for each (2) * * * Commerce. country, based on a formula that (ii) * * * ACTION: Final rule. considers historical catch percentages (A) Gillnet gear. (1) In the southern and current resource distribution. The Florida west coast subzone, king SUMMARY: The following Total TACs apply to the shared GB groundfish mackerel in or from the EEZ may be Allowable Catches (TACs) in the U.S./ resources. The shared stocks of GB cod possessed on board or landed from a Canada Management Area are and haddock in U.S. waters represent vessel for which a commercial vessel implemented for the 2005 fishing year portions (subsets) of the stocks of GB permit for king mackerel and a king (FY): 260 mt of Georges Bank (GB) cod, cod and haddock managed in the U.S. mackerel gillnet permit have been 7,590 mt of GB haddock, and 4,260 mt Exclusive Economic Zone under the issued, as required under of yellowtail flounder. This action is FMP. The shared stock of GB yellowtail § 622.4(a)(2)(ii), in amounts not intended to meet the conservation and flounder in U.S. waters represents the exceeding 25,000 lb (11,340 kg) per day, management requirements of the entire stock of GB yellowtail flounder provided the gillnet fishery for Gulf Magnuson-Stevens Fishery managed by the FMP. group king mackerel is not closed under Conservation and Management Act. On September 16, 2004, the New § 622.34(p) or § 622.43(a). DATES: This rule is effective July 7, England Fishery Management Council (2) In the southern Florida west coast 2005, through April 30, 2006. recommended the following U.S. TACs subzone: ADDRESSES: Copies of the for FY 2005: 260 mt of GB cod, 7,590 mt (i) King mackerel in or from the EEZ Transboundary Management Guidance of GB haddock, and 4,260 mt of GB may be possessed on board or landed Committee’s (TMGC) 2004 Guidance yellowtail flounder. These 2005 TACs from a vessel that uses or has on board Document and copies of the are based upon stock assessments a run-around gillnet on a trip only when Environmental Assessment of the 2005 conducted in June 2004 by the such vessel has on board a commercial TACs (including the Regulatory Impact Transboundary Resource Assessment vessel permit for king mackerel and a Review and Regulatory Flexibility Committee (TRAC). The 2005 cod and king mackerel gillnet permit. Analysis (FRFA)) may be obtained from: yellowtail flounder TACs represent a (ii) King mackerel from the southern Sustainable Fisheries Division, National decrease from 2004 TAC levels, and the west coast subzone landed by a vessel Marine Fisheries Service, One 2005 haddock TAC represents an for which a commercial vessel permit Blackburn Drive, Gloucester, MA 01930; increase from the 2004 TAC. The for king mackerel and a king mackerel telephone (978) 281–9315. percentage shares of these stocks for gillnet permit have been issued will be NMFS prepared a summary of the 2004 and 2005 between the U.S. and counted against the run-around gillnet FRFA, which is contained in the Canada are presented in the following quota of § 622.42(c)(1)(i)(A)(2)(i). Classification section of this final rule. tables:
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2004 U.S./CANADA TACS (MT) AND PERCENTAGE SHARES (IN PARENTHESES)
GB Yellowtail GB Cod GB Haddock flounder
Total Shared TAC 1,300 15,000 7,900 U.S. TAC 300 (23) 5,100 (34) 6,000 (76) Canada TAC 1,000 (77) 9,900 (66) 1,900 (24)
2005 U.S./CANADA TACS (MT) AND PERCENTAGE SHARES (IN PARENTHESES)
GB Yellowtail GB Cod GB Haddock flounder
Total Shared TAC 1,000 23,000 6,000 U.S. TAC 260 (26) 7,590 (33) 4,260 (71) Canada TAC 740 (74) 15,410 (67) 1,740 (29)
The regulations implemented by NMFS prepared a FRFA, which vessels that choose to fish in the U.S./ Amendment 13, at § 648.85(a)(2)(ii), incorporates the IRFA, a summary of the Canada Management Area during FY state the following: ‘‘Any overages of the significant issues raised by the public 2005 will be similar to the number of GB cod, haddock, or yellowtail flounder comments in response to the IRFA, and vessels that fished in the U.S./Canada TACs that occur in a given fishing year a summary of the analyses completed to Management Area during FY 2004 (155 will be subtracted from the respective support the action. A copy of this different vessels). Preliminary NMFS TAC in the following fishing year.’’ analysis is available from NMFS (see monitoring data supports the assertion Therefore, should an analysis of the ADDRESSES) and is summarized as that similar numbers of vessels will fish catch of the shared stocks by U.S. follows: during the 2005 fishing year as fished vessels indicate that an overage The specification of hard TACs is during the 2004 fishing year. During the occurred during FY 2004 the pertinent necessary to ensure that the agreed upon time period from May through the third TACs will be adjusted downward in U.S./Canada fishing mortality levels for week of June (2004), 109 different order to be consistent with the FMP and these shared stocks of fish are achieved vessels had fished in the Eastern U.S./ the Understanding. If an adjustment to in the U.S./Canada Management Area Canada Area. This fishing year, the data one of the 2005 TACs for cod, haddock, (the geographic area on GB defined to indicates that for the period May 2005 or yellowtail flounder is necessary, the facilitate management of stocks of cod, through the third week of June, 108 public will be notified through a haddock, and yellowtail flounder that different vessels fished in this area. The Federal Register notice and through a are shared with Canada). A full total numbers of vessels fishing in the letter to permit holders. description of the objectives and legal U.S./Canada Management Area on a basis for the proposed TACs is fishing year basis, will likely be less Comments and Responses contained in the preamble of the than during the 2004 fishing year, due Three comments on the proposed rule proposed rule. No public comments to the fact that the Closed Area II were received by the close of business received specifically addressed the Yellowtail Flounder Special Access on May 16, 2005. IRFA or the potential economic impacts Program, which occurred in 2004, will Comment 1: Two commenters fully of the TACs. not be open this year (70 CFR 37057). supported the proposed FY 2005 TACs, Under the Small Business The economic impacts of the TACs one of whom felt that the TACs were Administration (SBA) size standards for are difficult to predict due to several appropriate because they were small fishing entities ($3.5 million in factors that affect the amount of catch, calculated by taking into account many gross receipts), all permitted and as well as the price of the fish. factors and represented a fair allocation. participating vessels in the groundfish Furthermore, the economic impacts are Response: NMFS has approved the fishery are considered to be small difficult to predict due to the newness TACs as proposed. entities and, therefore, there are no of these regulations (May 2004; Comment 2: One commenter believed disproportionate impacts between large Amendment 13 to the FMP). Therefore, that the proposed TACs were too high, and small entities caused by this action. there is relatively little historic data, and was concerned about the status of The maximum number of small entities and little is known about the specific the stocks. that will be affected by the FY 2005 fishing patterns or market impacts that Response: NMFS believes that the FY TACs is approximately 1,000 vessels, may be caused by this hard TAC 2005 TACs are set at the correct level, i.e., those vessels with limited access management system. based on the best available science, the NE multispecies days-at-sea (DAS) The amount of GB cod, haddock, and FMP, and the U.S./Canada permits, that have an allocation of yellowtail flounder landed and sold will Understanding, as explained in detail in Category A or B DAS. Realistically, not be equal to the sum of the TACs, but the preamble to the proposed rule. The however, the number of vessels that will be reduced as a result of discards TAC levels are consistent with stock choose to fish in the U.S./Canada (discards are counted against the hard rebuilding, as required by the FMP. Management Area, and that therefore TACs), and may be further reduced by will be subject to the associated limitations on access to stocks that may Classification restrictions, including hard TACs, will result from the associated rules. This final rule is required by 50 CFR be substantially less. Reductions to the value of the fish may part 648 and has been determined to be Because the regulatory regime in FY result from fishing derby behavior and not significant for purposes of Executive 2005 is similar to that in place in FY the potential impact on markets. The Order 12866. 2004, it is likely that the number of overall economic impact of the FY 2005
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U.S./Canada TACs will likely be similar catch rates of GB cod in the Eastern Authority: 16 U.S.C. 1801 et seq. to the economic impacts of the TACs U.S./Canada Area, it is crucial that the Dated: June 30, 2005. specified for the 2004 fishing year. TACs are implemented as soon as Rebecca Lent, A downward adjustment to the TACs possible in order to ensure that the Deputy Assistant Administrator for specified for FY 2005 could occur after fishing mortality objective for the shared Regulatory Programs, National Marine these TACs are implemented, if it is stock of cod is not exceeded. The Fisheries Service. determined that the U.S. catch of one or timeline for the development of the EA [FR Doc. 05–13356 Filed 7–1–05; 3:07 pm] more of the shared stocks during FY that analyzed the TACs and publication BILLING CODE 3510–22–S 2004 exceeded the relevant TACs of the proposed rule for the TACs, prior specified for FY 2004. to the 2005 fishing year, did not Three alternatives were considered for anticipate a high catch rate of cod DEPARTMENT OF COMMERCE FY 2005: The proposed TACs, the status during the 2005 fishing year (based quo TACs, and the no action alternative. upon the 2004 fishing year information). National Oceanic and Atmospheric No additional set of TACs was proposed The FMP provides authority to the Administration because the process involving the Regional Administrator to make TMGC and the Council yields only one modifications to various rules 50 CFR Part 648 proposed set of TACs. The implemented associated with the U.S./Canada TACs will have a similar economic Management Area, once 30 percent of impact as the status quo TACs. [Docket No.050629171–5171–01; I.D. any of the TACs has been harvested. If 070105A] Adoption of the status quo TACs, the delay is not waived it is highly however, would not be consistent with possible that the TAC for the most RIN 0648–AT51 the FMP because the status quo TACs depleted stock, GB cod, could be do not reflect the best available reached and exceeded during the 30 day Magnuson-Stevens Fishery scientific information. Although the no delay period, and the Regional Conservation and Management Act action alternative (no TACs) would not Administrator will be unable to take Provisions; Fisheries of the constrain catch in the U.S./Canada action to stop fishing on this stock. Management Area, and therefore would Northeastern United States; Haddock Failure to stop fishing on this stock Incidental Catch Allowance for the likely provide some additional fishing when the TAC is caught would severely opportunity, the no action alternative is 2005 Atlantic Herring Fishery; undermine the conservation objectives Emergency Fishery Closure Due to the not a reasonable alternative because it is of the groundfish FMP. Any resulting inconsistent with the FMP in both the Presence of the Toxin That Causes TAC overages are required to be Paralytic Shellfish Poisoning; short and long term. The FMP requires deducted from the following year’s specification of hard TACs in order to Correction TAC, which is already very small for GB limit catch of shared stocks to the cod. The consequences of any AGENCY: National Marine Fisheries appropriate fish mortality level (i.e., substantial overage that could occur if Service (NMFS), National Oceanic and consistent with the Understanding and the effectiveness of the implementation Atmospheric Administration (NOAA), the FMP). The appropriate fishing of the 2005 TACs is delayed could be Commerce. mortality enables consistent very severe for the industry in the 2006 management between the U.S. and ACTION: Final rule; correcting fishing year. The high catch rate of cod Canada and therefore the full benefits of amendment; extension of comment created the need for regulatory action U.S. conservation actions are more period. early in the fishing year, based on an likely to be realized. The no action SUMMARY: NMFS is clarifying emergency alternative would likely provide fewer implemented cod TAC. regulations that closed portions of economic benefits to the industry in the Section 212 of the Small Business Federal waters of the Gulf of Maine, long term than the implemented Regulatory Enforcement Fairness Act of Georges Bank, and southern New alternative, and likely result in fishing 1996 states that, for each rule or group England to the harvest of bivalve mortality levels that are inconsistent of related rules for which an agency is shellfish due to the presence of the with the fishing mortality levels of the required to prepare a FRFA, the agency toxin that causes Paralytic Shellfish Canadian portions of the shared stocks. shall publish one or more guides to Two of the three FY 2005 TACs (cod assist small entities in complying with Poisoning (PSP). This correction will and yellowtail flounder) represent the rule, and shall designate such allow for the collection and testing of reductions from the FY 2004 level and publications as ‘‘small entity samples for the toxin that causes PSP. could, under certain circumstances, compliance guides.’’ The agency shall In addition, this rule will correct the constrain fishing opportunity on explain the actions a small entity is effective date for the definition of a haddock (for which the TAC is required to take to comply with a rule ‘‘Category 1 herring vessel’’ and increasing). The FY 2005 TACs or group of rules. As part of this reinstate a prohibition on the sale of implemented by this final rule do not rulemaking process, a letter to permit certain haddock that was inadvertently modify any collection of information, holders that also serves as small entity overwritten by the emergency rule. reporting, or recordkeeping compliance guide (the guide) was DATES: Effective July 7, 2005, except for requirements. The FY 2005 TACs do not prepared. Copies of this final rule are the amendment to § 648.14(a)(166) duplicate, overlap, or conflict with any available from the Northeast Regional which is effective June 14, 2005, other Federal rules. Office, and the guide, i.e., permit holder through September 30, 2005, and the There is good cause under 5 U.S.C. letter, will be sent to all holders of amendment to § 648.14(a)(169) which is 553(d)(3), to waive the 30–day delay in limited access DAS permits for the NE effective June 13, 2005, through effective date because doing otherwise multispecies fishery. The guide and this December 10, 2005. may compromise full and effective final rule will be posted on the NMFS The comment period for the original management of the GB stocks of cod, NE Regional Office web site at http:// emergency action published at 70 FR haddock, and yellowtail flounder. www.nero.noaa.gov and will also be 35047, June 16, 2005, is extended from Because of recent unanticipated high available upon request. July 18, 2005, through August 1, 2005.
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ADDRESSES: Comments may be terms and conditions of the LOA. This Dated: June 30, 2005. submitted by any of the following collection will facilitate the testing of Rebecca Lent, methods: shellfish for the toxin that causes PSP Deputy Assistant Administrator for • E-mail: [email protected]. by the FDA and/or FDA-approved Regulatory Programs, National Marine Include in the subject line the following: laboratories. Fisheries Service. ‘‘Comments on the PSP Emergency In addition the rule reinstates the For reasons set out in the preamble, Rule.’’ 50 CFR part 648 is corrected by making • prohibition on the sale and purchase of Federal e-Rulemaking Portal: http:/ the following correcting amendments: www.regulations.gov. haddock for human consumption • Mail: Paper, disk, or CD-ROM landed by Category 1 herring vessels PART 648—FISHERIES OF THE comments should be sent to Patricia A. that was published in the Federal NORTHEASTERN UNITED STATES Kurkul, Regional Administrator, Register on June 13, 2005 (70 FR 34055), National Marine Fisheries Service, One and subsequently and inadvertently I 1. The authority citation for part 648 Blackburn Drive, Gloucester, MA 01930. overwritten by the PSP Temporary continues to read as follows: Emergency Closure on June 16, 2005 (70 Mark the outside of the envelope Authority: 16 U.S.C. 1801 et seq. ‘‘Comments on the PSP Emergency FR 35047). The definition for ‘‘Category Rule.’’ 1 herring vessel’’ is revised so it will I 2. In § 648.2, the definition for • Fax: (978) 281–9135.Copies of the become permanent without an ‘‘Category 1 herring vessel’’ is revised to emergency rule are available from the expiration date of December 10, 2005. read as follows: mailing address listed here. Classification § 648.2 Definitions. FOR FURTHER INFORMATION CONTACT: * * * * * Brian Hooker, Fishery Policy Analyst, This rule has been determined to be Category 1 herring vessel means a phone: (978) 281–9220, fax: (978) 281– not significant for the purposes of vessel issued a permit to fish for 9135. Executive Order (E.O.) 12866. Atlantic herring that is required to have SUPPLEMENTARY INFORMATION: The Assistant Administrator for an operable VMS unit installed on board Background Fisheries, NOAA (AA), finds good cause pursuant to § 648.205(b). under 5 U.S.C. 553(b)(B) and 553(d)(3), On June 10, 2005, the Food and Drug * * * * * respectively, to waive prior notice and Administration (FDA) requested that I 3. In § 648.14, paragraph (a) (166) was NMFS close an area of Federal waters the opportunity for public comment and added at 70 FR 35047, June 16, 2005. In off the coasts of New Hampshire and the delayed effectiveness period on this § 648.14, paragraph (a)(166) is revised Massachusetts to fishing for bivalve action. Providing an opportunity for and paragraph (a)(169) is added to read shellfish intended for human notice and public comment on this as follows: consumption. The reason for the request action would be contrary to the public is that shellfish testing has detected one interest. This rule clarifies the June 16, § 648.14 Prohibitions. of the largest toxic algal blooms (red 2005 (70 FR 35047) emergency rule (a) * * * tides) in history, which has moved in an prohibiting the possession of shellfish (166) Fish for, harvest, catch, possess, easterly direction from state waters into harvested from the PSP Temporary or attempt to fish for, harvest, catch, or Federal waters. On June 16, 2005, NMFS Closure Area by allowing the harvest of possess any bivalve shellfish, including published an emergency rule (70 FR shellfish by commercial fishing vessels Atlantic surfclams, ocean quahogs, and 35047) closing the area recommended working with NMFS and the FDA. Any mussels, with the exception of sea by the FDA, i.e. the PSP Temporary delay in implementing this rule could scallops harvested only for adductor Closure Area, through September 30, seriously jeopardize public health by muscles and shucked at sea, or a vessel 2005. However, the emergency rule did impeding the ability of the NMFS and issued and possessing on board a Letter not allow sufficient flexibility to allow the FDA from obtaining biological of Authorization from the Regional for the collection of biological samples samples from the PSP Temporary Administrator authorizing the collection of shellfish for testing PSP toxin levels Closure Area. Biological samples of shellfish for biological sampling and in the closure area by commercial obtained from the PSP Temporary operating under the terms and fishing vessels working cooperatively Closure Area are necessary to determine conditions of said Letter, in the area of with NMFS and the FDA. The if the level of contaminants in shellfish the U.S. Exclusive Economic Zone emergency rule was not intended to in a certain area remains a public health bound by the following coordinates in impede, in any manner, the collection of ° ′ ° ′ risk, or if the area is once again safe for the order stated: (1) 43 00 N. lat., 71 00 biological samples of shellfish from the ° ′ ° ′ the harvest of bivalve shellfish for W. long.; (2) 43 00 N. lat., 69 00 W. PSP Temporary Closure Area by ° ′ ° ′ human consumption. long.; (3) 40 00 N. lat., 69 00 W. long.; commercial fishing vessels. This rule (4) 40°00′ N. lat., 71°00′ W. long., and allows for the Administrator, Northeast The correcting amendments that are then ending at the first point. set forth in this rule are exempt from the Region, NMFS (Regional Administrator) * * * * * to issue a Letter of Authorization (LOA) procedures of the Regulatory Flexibility to commercial fishing vessels that are Act because the rule is issued without (169) Sell, purchase, receive, trade, barter, or transfer haddock, or attempt to working cooperatively with NMFS and opportunity for prior notice and sell, purchase, receive, trade, barter, or the FDA to collect biological samples of opportunity for public comment. shellfish for testing. The request for an transfer haddock for, or intended for, LOA would be from the FDA to the List of Subjects in 50 CFR Part 648 human consumption landed by a Regional Administrator. Vessels issued Category 1 herring vessel as defined in Fisheries, Fishing, Reporting and § 648.2. the LOA would be exempt from the recordkeeping requirements. prohibition on the possession of * * * * * shellfish harvested from the PSP [FR Doc. 05–13357 Filed 7–1–05; 3:07 pm] Temporary Closure Area, subject to the BILLING CODE 3510–22–S
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Proposed Rules Federal Register Vol. 70, No. 129
Thursday, July 7, 2005
This section of the FEDERAL REGISTER Please state that your comment refers to rapidly on infected imported cuttings contains notices to the public of the proposed Docket No. 03–016–1. and is now established in Europe, issuance of rules and regulations. The • Federal eRulemaking Portal: Go to Africa, Australia, Central America, purpose of these notices is to give interested http://www.regulations.gov and follow South America, and the Far East. persons an opportunity to participate in the the instructions for locating this docket CWR is not established in the United rule making prior to the adoption of the final and submitting comments. rules. States and is a regulated pest for the Reading Room: You may read any United States. This disease has the comments that we receive on this potential to be extremely damaging to DEPARTMENT OF AGRICULTURE docket in our reading room. The reading the commercial horticulture and florist room is located in room 1141 of the industries if it becomes established in Animal and Plant Health Inspection USDA South Building, 14th Street and greenhouses within the United States. Service Independence Avenue SW., Section 319.37–2 of the nursery stock Washington, DC. Normal reading room regulations prohibits the importation of 7 CFR Part 319 hours are 8 a.m. to 4:30 p.m., Monday CWR-susceptible plant species from through Friday, except holidays. To be [Docket No. 03–016–1] countries where the disease is sure someone is there to help you, established. Cut Flowers From Countries With please call (202) 690–2817 before CWR was detected and eradicated in Chrysanthemum White Rust coming. California in 1991; since then, there Other Information: You may view have been repeated incidents of CWR in AGENCY: Animal and Plant Health APHIS documents published in the several coastal California counties. Inspection Service, USDA. Federal Register and related There were also CWR outbreaks in ACTION: Proposed rule. information on the Internet at http:// commercial nurseries in New Jersey, www.aphis.usda.gov/ppd/rad/ Oregon, and Washington between 1995 SUMMARY: We are proposing to amend webrepor.html. and 1997 and in dooryard or hobbyist the cut flowers regulations to establish FOR FURTHER INFORMATION CONTACT: Ms. plantings in New York and New Jersey specific requirements for the Sharon Porsche, Import Specialist, in 1997. Whenever CWR has been importation of cut flowers that are hosts Commodity Import Analysis and detected in the United States, it has of chrysanthemum white rust (CWR) Operation, PPQ, APHIS, 4700 River been eradicated through immediate and from countries where the disease is Road Unit 133, Riverdale, MD 20737– cooperative action by Federal and State known to occur. We are also proposing 1231; (301) 734–5281. officials. to amend the nursery stock regulations SUPPLEMENTARY INFORMATION: Plants for planting as well as cut to update lists of countries where CWR flowers that are hosts can be a pathway is known to occur. We are proposing Background for the introduction of CWR. Detections these changes in order to make our cut The regulations in 7 CFR part 319 of CWR on cut flowers from Mexico and flowers and nursery stock regulations prohibit or restrict the importation of Venezuela, countries where the disease consistent. This action is necessary plants, plant parts, and related materials occurs, prompted APHIS to place because of numerous recent findings of to prevent the introduction of plant administrative restrictions on cut CWR on cut flowers from Europe that pests and noxious weeds into the flowers of CWR hosts from those pose a risk of introducing CWR in the United States. The regulations in countries because, in many cases, those United States. ‘‘Subpart-Nursery Stock, Plants, Roots, cut flowers had been determined to be DATES: We will consider all comments Bulbs, Seeds, and Other Plant the pathway for the incursion of CWR that we receive on or before September Products,’’ §§ 319.37 through 319.37–14 into the United States. These 6, 2005. (referred to below as the nursery stock restrictions are: (1) Cut flowers that are ADDRESSES: You may submit comments regulations) restrict, among other things, hosts of CWR are prohibited entry from by any of the following methods: the importation of living plants, plant Venezuela, (2) cut flowers that are hosts • EDOCKET: Go to http:// parts, and seeds for propagation. of CWR from Mexico are allowed entry www.epa.gov/feddocket to submit or Conditions governing the importation of into the United States if they are view public comments, access the index cut flowers into the United States are accompanied by a phytosanitary listing of the contents of the official contained in ‘‘Subpart—Cut Flowers’’ certificate issued by Mexico’s national public docket, and to access those (§§ 319.74–1 through 319.74–4, referred plant protection organization with an documents in the public docket that are to below as the cut flowers regulations). additional declaration that the shipment available electronically. Once you have Puccinia horiana Henn., a originated from an approved grower. entered EDOCKET, click on the ‘‘View filamentous fungus and obligate The boxes and/or paperwork Open APHIS Dockets’’ link to locate this parasite, is the causal agent of accompanying a shipment from Mexico document. chrysanthemum white rust (CWR). CWR must also be marked or stamped with • Postal Mail/Commercial Delivery: is a serious disease in nurseries, where the name of the approved grower. Please send four copies of your it may cause complete loss of glasshouse Numerous findings of CWR on cut comment (an original and three copies) chrysanthemum crops. The disease is flowers from the Netherlands in 2003 to Docket No. 03–016–1, Regulatory indigenous to Japan, where it was noted prompted us to place administrative Analysis and Development, PPD, in 1895, and it remained confined to restrictions on certain cut flowers from APHIS, Station 3C71, 4700 River Road China and Japan until 1963. However, the Netherlands also. These restrictions Unit 118, Riverdale, MD 20737–1238. since 1964, P. horiana has spread require cut flowers that are hosts of
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CWR from the Netherlands be allowed consignment have been inspected and requirements for cut chrysanthemums entry into the United States if they are found free of Puccinia horiana. from all regions where CWR is known accompanied by a phytosanitary Because of these findings from the to occur. certificate issued by the Netherlands. Netherlands and the risk of introducing Studies have shown that the following This certificate must contain an CWR posed from other countries where flowers are hosts of CWR (the studies additional declaration stating that the the disease is known to occur, we are cited are footnoted at the end of the place of production as well as the proposing to establish new entry table):
Accepted name of susceptible species Synonyms Common name
Chrysanthemum arcticum L.1 ...... Arctanthemum arcticum (L.) Tzvelev and Arctic chrysanthemum and arctic daisy. Dendranthema arcticum (L.) Tzvelev. Chrysanthemum boreale (Makino) Chrysanthemum indicum L. var. boreale Makino and Makino1,2. Dendranthema boreale (Makino) Ling ex Kitam. Chrysanthemum indicum L.1,2,3 ...... Dendranthema indicum (L.) Des Moul. Chrysanthemum japonense Nakai1,2 ...... Dendranthema japonense (Nakai) Kitam. and Nojigiku. Dendranthema occidentali-japonense Kitam. Chrysanthemum japonicum Makino1,2 ...... Chrysanthemum makinoi Matsum. & Nakai and Ryuno-giku. Dendranthema japonicum (Makino) Kitam. Chrysanthemum ×morifolium Ramat.2,4 ..... Anthemis grandiflorum Ramat., Anthemis stipulacea Florist’s chrysanthemum, chrysan- Moench, Chrysanthemum sinense Sabine ex Sweet, themum, and mum. Chrysanthemum stipulaceum (Moench) W. Wight, Dendranthema ×grandiflorum (Ramat.) Kitam., Dendranthema ×morifolium (Ramat.) Tzvelev, and Matricaria morifolia Ramat. Chrysanthemum pacificum Nakai1 ...... Ajania pacifica (Nakai) K. Bremer & Humphries and Iso-giku. Dendranthema pacificum (Nakai) Kitam. Chrysanthemum shiwogiku Kitam1 ...... Ajania shiwogiku (Kitam.) K. Bremer & Humphries and Shio-giku. Dendranthema shiwogiku (Kitam.) Kitam. Chrysanthemum yoshinaganthum Makino Dendranthema yoshinaganthum (Makino ex Kitam.) ex Kitam2. Kitam. Chrysanthemum zawadskii and Herbich Chrysanthemum arcticum subsp. maekawanum Kitam, subsp. yezoense (Maek.) Y. N. Lee1. Chrysanthemum arcticum var. yezoense Maek. [basionym], Chrysanthemum yezoense Maek. [basionym], Dendranthema yezoense (F. Maek.) D. J. N. Hind, and Leucanthemum yezoense (Maek.) A´ Lo¨ve & D. Lo¨ve. Chrysanthemum zawadskii and Herbich Chrysanthemum sibiricum Turca. ex DC., nom. inval., subsp. zawadskii 1. Dendranthema zawadskii (Herbich) Tzvelev, and Dendranthema zawadskii var. zawadskii. Leucanthemella serotina (L.) Tzvelev 3 ...... Chrysanthemum serotinum L., Chrysanthemum Giant daisy or high daisy. uliginosum (Waldst. & Kit. ex Willd.) Pers., and Pyre- thrum uliginosum (Waldst. & Kit. ex Willd.). Nipponanthemum nipponicum (Franch. ex Chrysanthemum nipponicum (Franch. ex Maxim.) Nippon daisy or Nippon-chrysanthemum. Maxim) Kitam 2. Matsum. and Leucanthemum nipponicum Franch. ex Maxim. 1 Water, J.K. ‘‘Chrysanthemum White Rust,’’ EPPO Bulletin, No. 11, pp. 239–242 (1981). 2 Hiratsuka, N. ‘‘Three species of Chrysanthemum rust in Japan and its neighboring districts,’’ Sydowia, Series 2, Supplement 1, pp. 34–44 (1957). 3 Dickens, J.K. kl., ‘‘The resistance of various cultivars and species of chrysanthemum to white rust (Puccinia horiana Henn.),’’ Plant Pathol, No. 17, pp. 19–22 (1968). 4 Yamada, S., ‘‘Experiments on the epidemiology and control of chrysanthemum white rust caused by Puccinia horiana,’’ Annals of the Phytopathological Society of Japan, No. 20, pp. 148–154 (1956).
We are proposing to amend the cut Bulgaria, Canary Islands, Chile, China, We propose to require that all flowers regulations to establish specific Colombia, Croatia, Hungary, Iceland, production sites in the regions where production and certification Japan, Korea, Latvia, Liechtenstein, CWR is known to occur be registered requirements that cut flowers of these Lithuania, Macedonia, Malaysia, with the national plant protection types would have to meet in order to be Mexico, Moldova, Monaco, New organization of the country in which the eligible for importation from a region Zealand, Peru, Poland, Republic of production site is located, and that the where CWR is known to occur. South Africa, Romania, Russia, San national plant protection organization According to the information available Marino, Slovakia, Slovenia, present APHIS with a list of registered to us,1,2 CWR is known to occur in the Switzerland, Taiwan, Thailand, Tunisia, production sites. Production sites would following regions: The countries of Uruguay, Venezuela, Yugoslavia; the be subject to inspections to verify the Andorra, Argentina, Australia, Belarus, European Union (Austria, Belgium, absence of Puccinia horiana, therefore Bosnia and Herzegovina, Brazil, Brunei, Denmark, Finland, France, Germany, we would require that APHIS- Greece, Ireland, Italy, Luxembourg, authorized inspectors and NPPO 1 CAB International Crop Protection Netherlands, Portugal, Spain, Sweden, inspectors be granted access to all Compendium, 2003 Edition. and United Kingdom); and all countries, production sites and other areas 2 Pests not known to occur in the United States territories, and possessions of countries necessary to monitor them. or of limited distribution, No. 57: Chrysanthemum ° white rust, prepared by K. Whittle, Biological located in part or entirely between 90 We would also require that cut Assessment Support Staff, PPQ, APHIS. and 180° East longitude. flowers that are hosts to CWR and
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imported from any of the countries Executive Order 12866 and Regulatory residence within a quarter mile to be where the disease is known to occur be Flexibility Act inspected for CWR.4 accompanied by a phytosanitary This proposed rule has been reviewed The fungicides most often certificate issued by the national plant recommended to fight the fungus protection organization of the country of under Executive Order 12866. The rule has been determined to be not Puccinia horiana Henn., which causes origin. The certificate would have to CWR, are Myclobutanil, Metam sodium, contain an additional declaration stating significant for the purposes of Executive Order 12866 and, therefore, has not Dazomet, Chloropicrin, and methyl that the place of production as well as bromide. The cost of fungicide been reviewed by the Office of the consignment have been inspected application varies, depending upon the Management and Budget. and found free of Puccinia horiana. In plant size and number of leaves. A addition, we would require that box We are proposing to amend the cut study by the National Agricultural labels and documents accompanying flowers regulations to establish specific Pesticide Impact Assessment Program each shipment identify the registered requirements for the importation of cut and the University of California production site. Cut flowers not meeting flowers that are hosts of CWR from estimated the cost of different chemical these requirements would be refused countries where the disease is known to treatments per acre of ornamental/ entry into the United States. occur. We are also proposing to amend nursery plants infected with fungus In addition, if any shipment of cut the nursery stock regulations to update diseases, including CWR, by State. For flowers is found to be infested with lists of countries where CWR is known field-grown nursery plants, all acreage CWR upon arrival to the United States, to occur. This action is necessary was treated with fungicides. The we would prohibit imports from the because of numerous recent findings of treatment entailed spraying the flower originating production site until such CWR on cut flowers from Europe that plants with metam sodium, which costs time as APHIS and the national plant pose a risk of introducing CWR in the $550 per acre, and then applying an protection organization of the exporting United States. herbicide at $200 per acre, totaling $750 country can agree that the eradication In 2002, U.S. floriculture and nursery per acre. For greenhouse plants, the measures taken have been effective and crop sales were close to $14 billion treatment costs to fight CWR or any the pest risk within the production site based on growers’ receipts. other fungus are higher.5 has been eliminated. Chrysanthemums were among the most In 1994, a property in California was We believe that these proposed profitable flowers for their growers. quarantined after it was found to have measures are necessary because of Total U.S. sales of chrysanthemums chrysanthemums infected with CWR. numerous recent findings of CWR on were estimated at $182.4 million in The State followed with a survey cut flowers from Europe. Currently, the 2002. Of this amount, $78.1 million around the affected residential area and administrative procedures for importing were attributed to florists’ cut found 70 more properties in the area cut flowers vary, depending on the chrysanthemums and the remaining with infected chrysanthemums. It cost originating country. These proposed $104.3 million to potted (i.e., hardy) $32,000, about $500 per residence, to measures are being applied chrysanthemums. Chrysanthemums eradicate the disease. A second survey administratively to cut flowers imported were not only one of the top four garden by the State conducted 8 weeks from Mexico and the Netherlands and plants in terms of sales in 2002, they following the first treatment process have proved effective in preventing the were also the garden plants with the found very few remaining infected introduction of CWR by cut flowers second fastest price gains since 1995.3 properties. However, the quarantine imported from these countries. lasted much longer the second time and Therefore, we are proposing to add In 2002, 11 percent ($63 million) of the money spent on imported cut the average cost per property reached these mitigation measures to the $7,000.6 regulations for all regions where CWR is flowers was for chrysanthemums. About known to exist. 76 percent of the cut flowers imported In 1995, chrysanthemum growers in into the United States originate in San Diego County, CA, spent, on This action would dispel the possible countries where, based on interceptions average, $5,000 per business appearance of disparity in mitigation by U.S. inspectors, CWR exists. establishment to fight a CWR measures for different countries by infestation. The infestation was consolidating all requirements for cut APHIS has prepared a national eradicated quickly and followed by an flowers imported from countries where management plan which describes 8-week host-free period. However, the CWR is known to occur. This action procedures in the event a nursery in the cost reached $100,000 for one would also remove the current United States is infected with CWR. The greenhouse that experienced repeated administrative prohibition on the plan calls for the nursery to be placed infestations and remained quarantined importation of cut flowers that are hosts into quarantine status. If there are very to CWR from Venezuela, provided they few infected chrysanthemum plants, the for 10 months. Between 1992 and 1997, meet the import requirements discussed grower has the option to use a fungicide direct and indirect losses from CWR in the previous paragraphs. to control the disease or to destroy the infestations to chrysanthemum growers crop by incineration. However, no plant in Santa Barbara County, CA, were In addition to the changes discussed should leave the nursery for 8 weeks or approximately $2 million. The county above, we would amend the entries for until the nursery has been inspected reported an annual value of Chrysanthemum spp. and and certified as being free from CWR. In Dendranthema spp. in the table in addition to these containment measures, 4 Rizvi, Anwar S., Roeland Elliston, and Philip § 319.37–2(a) of the nursery stock the plan calls for an inspection of every Bell, ‘‘Chrysanthemum White Rust: A National regulations to update the list of CWR- Management Plan for Exclusion and Eradication’’, chrysanthemum grower and every affected countries found in each of those June 2002. entries so that they match the list of 5 Exotic Pests and Diseases: Biology, Economics, 3 Floriculture and Nursery Crops Outlook/ Public Policy, 1999. Published by the Agricultural regions we would establish in the cut Electronic Outlook Report from the Economic Issues Center. University of California at Davis: pp. flowers regulations. This change would Research Service/ FLO–1/ September 12, 2002/ 76–86. ensure consistency in our regulations. Alberto Jerardo. 6 See footnote 5.
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chrysanthemum production of more have a significant economic impact on collection and recordkeeping than $10 million in 1997.7 a substantial number of small entities. requirements. These comments will help us: Potential Effects Executive Order 12988 (1) Evaluate whether the proposed The economic effects that could result This proposed rule has been reviewed information collection is necessary for from the proposed changes in the under Executive Order 12988, Civil the proper performance of our agency’s regulations are expected to be small for Justice Reform. If this proposed rule is functions, including whether the U.S. importers of cut chrysanthemums. adopted: (1) All State and local laws and information will have practical utility; The cost of the phytosanitary regulations that are inconsistent with (2) Evaluate the accuracy of our certification would be borne by the this rule will be preempted; (2) no estimate of the burden of the proposed exporters, who may pass those costs on retroactive effect will be given to this information collection, including the to U.S. importers. The expected benefit rule; and (3) administrative proceedings validity of the methodology and from the proposed change in import will not be required before parties may assumptions used; requirements for cut flowers from all file suit in court challenging this rule. (3) Enhance the quality, utility, and clarity of the information to be CWR-affected countries is the protection Paperwork Reduction Act of U.S. floriculture and nursery crop collected; and industries and the people they employ. In accordance with section 3507(d) of (4) Minimize the burden of the In 2002, these two industries the Paperwork Reduction Act of 1995 information collection on those who are contributed $14 billion in sales revenue (44 U.S.C. 3501 et seq.), the information to respond (such as through the use of to the U.S. economy. collection or recordkeeping appropriate automated, electronic, requirements included in this proposed mechanical, or other technological Potential Effects on Small Entities rule have been submitted for approval to collection techniques or other forms of The Regulatory Flexibility Act the Office of Management and Budget information technology; e.g., permitting requires that agencies specifically (OMB). Please send written comments electronic submission of responses). consider the economic effects their rules to the Office of Information and Estimate of burden: Public reporting on small entities. The Small Business Regulatory Affairs, OMB, Attention: burden for this collection of information Administration has established the size Desk Officer for APHIS, Washington, DC is estimated to average 0.2294914 hours standards based on the North American 20503. Please state that your comments per response. Respondents: Foreign national plant Industry Classification System (NAICS) refer to Docket No. 03–016–1. Please send a copy of your comments to: (1) protection organizations. for determining which economic Estimated annual number of entities meet the definition of a small Docket No. 03–016–1, Regulatory Analysis and Development, PPD, respondents: 43,722. firm. The small entity size standard for Estimated annual number of nursery and tree production (NAICS APHIS, Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737–1238, responses per respondent: 8.1428571. code 111421) is $750,000 or less in Estimated annual number of annual receipts. A total of 1,691 and (2) Clearance Officer, OCIO, USDA, room 404–W, 14th Street and responses: 356,022. floriculture operations out of 10,965 Estimated total annual burden on Independence Avenue SW., operations had sales of $500,000 or respondents: 81,704 hours. (Due to Washington, DC 20250. A comment to more. Thus, at least 85 percent of all averaging, the total annual burden hours OMB is best assured of having its full floriculture operations can be classified may not equal the product of the annual effect if OMB receives it within 30 days as small entities, and it is likely that an number of responses multiplied by the even higher percentage can be classified of publication of this proposed rule. reporting burden per response.) as small entities due to the $250,000 We are proposing to amend the cut Copies of this information collection discrepancy.8 flowers regulations to establish specific can be obtained from Mrs. Celeste This proposed rule would continue to requirements for the importation of cut Sickles, APHIS’ Information Collection allow imports of cut chrysanthemums flowers that are hosts of CWR from Coordinator, at (301) 734–7477. from CWR-affected countries, as long as countries where the disease is known to occur. We are also proposing to amend Government Paperwork Elimination the exporters from these countries Act Compliance comply with the proposed import the nursery stock regulations to update requirements. We do not know the cost lists of countries where CWR is known The Animal and Plant Health of certification in these countries to occur. We are proposing these Inspection Service is committed to compared to the average value of changes in order to make our compliance with the Government imported consignments of regulations consistent. This action is Paperwork Elimination Act (GPEA), chrysanthemums, but it is expected to necessary because of numerous recent which requires Government agencies in be minor. We do not expect that small findings of CWR on cut flowers from general to provide the public the option entities in the U.S. floriculture industry Europe that pose a risk of introducing of submitting information or transacting will be significantly affected. However, CWR in the United States. business electronically to the maximum We are proposing to require that each the proposed requirements would help extent possible. For information shipment of cut flowers must be safeguard the U.S. floriculture and pertinent to GPEA compliance related to accompanied by a phytosanitary nursery industries from additional this proposed rule, please contact Mrs. certificate issued by the national plant introductions of CWR. Celeste Sickles, APHIS’ Information protection organization of the country of Under these circumstances, the Collection Coordinator, at (301) 734– origin that contains an additional Administrator of the Animal and Plant 7477. declaration stating that the place of Health Inspection Service has production as well as the consignment List of Subjects in 7 CFR Part 319 determined that this action would not have been inspected and found free of Coffee, Cotton, Fruits, Honey, Puccinia horiana. Imports, Logs, Nursery stock, Plant 7 See footnote 5. 8 National Agricultural Statistics Service, We are soliciting comments from the diseases and pests, Quarantine, Agricultural Statistics Board, U.S. Department of public (as well as affected agencies) Reporting and recordkeeping Agriculture, 2001 Floriculture Crops. concerning our proposed information requirements, Rice, Vegetables
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Accordingly, we propose to amend 7 Authority: 7 U.S.C. 450 and 7701–7772; 21 spp. (chrysanthemum)’’ would be CFR part 319 as follows: U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and revised to read as follows: 371.3 PART 319—FOREIGN QUARANTINE § 319.37–2 Prohibited articles. NOTICES 2. In the table in § 319.37–2(a), the entries for ‘‘Chrysanthemum spp. (a) * * * 1. The authority citation for part 319 (chrysanthemum)’’ and ‘‘Dendranthema would continue to read as follows:
Plant pests existing in the Prohibited article (includes places named and capable seeds only if specifically Foreign places from which prohibited of being transported with mentioned) the prohibited article
******* Chrysanthemum spp. (chrys- Andorra, Argentina, Australia, Belarus, Bosnia and Herzegovina, Brazil, Brunei, Puccinia horiana P. Henn. anthemum). Bulgaria, Canary Islands, Chile, China, Colombia, Croatia, Hungary, Iceland, (white rust of chrysan- Japan, Korea, Latvia, Liechtenstein, Lithuania, Macedonia, Malaysia, Mexico, themum). Moldova, Monaco, New Zealand, Peru, Poland, Republic of South Africa, Roma- nia, Russia, San Marino, Slovakia, Slovenia, Switzerland, Taiwan, Thailand, Tu- nisia, Uruguay, Venezuela, Yugoslavia; the European Union (Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, Nether- lands, Portugal, Spain, Sweden, and United Kingdom); and all countries, terri- tories, and possessions of countries located in part or entirely between 90° and 180° East longitude.
******* Dendranthema spp. (chrys- Andorra, Argentina, Australia, Belarus, Bosnia and Herzegovina, Brazil, Brunei, Puccinia horiana P. Henn. anthemum). Bulgaria, Canary Islands, Chile, China, Colombia, Croatia, Hungary, Iceland, (white rust of chrysan- Japan, Korea, Latvia, Liechtenstein, Lithuania, Macedonia, Malaysia, Mexico, themum). Moldova, Monaco, New Zealand, Peru, Poland, Republic of South Africa, Roma- nia, Russia, San Marino, Slovakia, Slovenia, Switzerland, Taiwan, Thailand, Tu- nisia, Uruguay, Venezuela, Yugoslavia; the European Union (Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, Nether- lands, Portugal, Spain, Sweden, and United Kingdom); and all countries, terri- tories, and possessions of countries located in part or entirely between 90° and 180° East longitude.
*******
* * * * * § 319.74–2 Conditions governing the entry Leucanthemella, and Nipponanthemum 3. In § 319.74–2, paragraph (d) would of cut flowers. spp. are considered to be hosts of be redesignated as paragraph (e) and a * * * * * chrysanthemum white rust: new paragraph (d) would be added to (d) Chrysanthemum white rust hosts. read as follows: (1) The following Chrysanthemum,
Accepted name of susceptible species Synonyms Common name
Chrysanthemum arcticum L...... Arctanthemum arcticum (L.) Tzvelev and Arctic chrysanthemum and arctic daisy. Dendranthema arcticum (L.) Tzvelev. Chrysanthemum boreale (Makino) Makino Chrysanthemum indicum L. var. boreale Makino and Dendranthema boreale (Makino) Ling ex Kitam. Chrysanthemum indicum L...... Dendranthema indicum (L.) Des Moul. Chrysanthemum japonense Nakai ...... Dendranthema japonense (Nakai) Kitam and Nojigiku. Dendranthema occidentali-japonense Kitam. Chrysanthemum japonicum Makino ...... Chrysanthemum makinoi Matsum. & Nakai and Ryuno-giku. Dendranthema japonicum (Makino) Kitam. Chrysanthemum × morifolium Ramat ...... Anthemis grandiflorum Ramat., Anthemis stipulacea Florist’s chrysanthemum, chrysan- Moench, Chrysanthemum sinense Sabine ex Sweet, themum, and mum. Chrysanthemum stipulaceum (Moench) W. Wight, Dendranthema × grandiflorum (Ramat.) Kitam., Dendranthema × morifolium (Ramat.) Tzvelev, and Matricaria morifolia Ramat. Chrysanthemum pacificum Nakai ...... Ajania pacifica (Nakai) K. Bremer & Humphries and Iso-giku. Dendranthema pacificum (Nakai) Kitam. Chrysanthemum shiwogiku Kitam ...... Ajania shiwogiku (Kitam.) K. Bremer & Humphries and Shio-giku. Dendranthema shiwogiku (Kitam.) Kitam. Chrysanthemum yoshinaganthum Makino Dendranthema yoshinaganthum (Makino ex Kitam.) ex Kitam. Kitam.
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Accepted name of susceptible species Synonyms Common name
Chrysanthemum zawadskii and Herbich Chrysanthemum arcticum subsp. maekawanum Kitam, subsp. yezoense (Maek.) Y. N. Lee. Chrysanthemum arcticum var. yezoense Maek. [basionym], Chrysanthemum yezoense Maek. [basionym], Dendranthema yezoense (F. Maek.) D. J. N. Hind, and Leucanthemum yezoense (Maek.) A´ . Lo¨ve & D. Lo¨ve. Chrysanthemum zawadskii and Herbich Chrysanthemum sibiricum Turcz. ex DC., nom. inval., subsp. zawadskii. Dendranthema zawadskii (Herbich) Tzvelev, and Dendranthema zawadskii var. zawadskii. Leucanthemella serotina (L.) Tzvelev ...... Chrysanthemum serotinum L., Chrysanthemum Giant daisy or high daisy. uliginosum (Waldst. & Kit. ex Willd.) Pers., and Pyre- thrum uliginosum (Waldst. & Kit. ex Willd.). Nipponanthemum nipponicum (Franch. ex Chrysanthemum nipponicum (Franch. ex Maxim.) Nippon daisy or Nippon-chrysanthemum. Maxim.) Kitam. Matsum. and Leucanthemum nipponicum Franch. ex Maxim.
(2) Chrysanthemum white rust is (iv) APHIS-authorized inspectors amended, to allow interested persons to considered to exist in the following must also be allowed access to specify the quality factor(s) that would regions: Andorra, Argentina, Australia, production sites and other areas be redetermined during an appeal Belarus, Bosnia and Herzegovina, Brazil, necessary to monitor the inspection or a Board appeal inspection Brunei, Bulgaria, Canary Islands, Chile, chrysanthemum white rust-free status of for grade. Currently, both appeal and China, Colombia, Croatia, Cyprus, the production sites. Board appeal inspections for grade must Hungary, Iceland, Japan, Korea, Latvia, (4) Cut flowers not meeting these include a redetermination (i.e., a Liechtenstein, Lithuania, Macedonia, conditions will be refused entry into the complete review or examination) of all Malaysia, Mexico, Moldova, Monaco, United States. The detection of official factors that may determine the New Zealand, Norway, Peru, Poland, chrysanthemum white rust in a grade, as reported on the original Republic of South Africa, Romania, shipment of cut flowers from a certificate, or as required to be shown. Russia, San Marino, Slovakia, Slovenia, registered production site upon arrival Requiring that all quality factors be Switzerland, Taiwan, Thailand, Tunisia, in the United States will result in the completely reexamined during an Ukraine, Uruguay, Venezuela, prohibition of imports originating from appeal or Board appeal inspection for Yugoslavia; the European Union the production site until such time grade is not efficient, is time consuming, (Austria, Belgium, Denmark, Finland, when APHIS and the national plant and can be costly. Further, a detailed France, Germany, Greece, Ireland, Italy, protection organization of the exporting review of the preceding inspection Luxembourg, Netherlands, Portugal, country can agree that the eradication service is not always needed to confirm Spain, Sweden, and United Kingdom); measures taken have been effective and the quality of the commodity. This and all countries, territories, and that the pest risk within the production proposed action would allow interested possessions of countries located in part site has been eliminated. parties to specify which quality factor(s) or entirely between 90° and 180° East * * * * * should be redetermined during the longitude. Done in Washington, DC, this 30th day of appeal or Board appeal inspection (3) Cut flowers of any species listed in June 2005. service. paragraph (d)(1) of this section may be Elizabeth E. Gaston, DATES: Comments must be received on imported into the United States from Acting Administrator, Animal and Plant or before September 6, 2005. any region listed in paragraph (d)(2) of Health Inspection Service. ADDRESSES: We invite you to submit this section only under the following [FR Doc. 05–13313 Filed 7–6–05; 8:45 am] comments on this proposed rule. You conditions: BILLING CODE 3410–34–P may submit comments by any of the (i) The flowers must be grown in a following methods: production site that is registered with • E-mail: Send comments via the national plant protection DEPARTMENT OF AGRICULTURE electronic mail to organization of the country in which the [email protected]. production site is located and the Grain Inspection, Packers and • Stockyards Administration Mail: Send hard copy written national plant protection organization comments to Tess Butler, GIPSA, USDA, must provide a list of registered sites to 7 CFR Part 868 1400 Independence Avenue, SW., Room APHIS. 1647–S, Washington, DC 20250–3604. (ii) Each shipment of cut flowers must RIN 0580–AA89 • Fax: Send comment by facsimile be accompanied by a phytosanitary transmission to: (202) 690–2755. certificate issued by the national plant Review Inspection Requirements for • Hand Delivery or Courier: Deliver protection organization of the country of Graded Commodities comments to: Tess Butler, GIPSA, origin that contains an additional AGENCY: Grain Inspection, Packers and USDA, 1400 Independence Avenue, declaration stating that the place of Stockyards Administration, USDA. SW., Room 1647–S, Washington, DC production as well as the consignment ACTION: Proposed rule. 20250–3604. have been inspected and found free of • Federal eRulemaking Portal: Go to Puccinia horiana. SUMMARY: The Grain Inspection, Packers http://www.regulations.gov. Follow the (iii) Box labels and other documents and Stockyards Administration (GIPSA) online instructions for submitting accompanying shipments of cut flowers is proposing to revise the regulations comments. must be marked with the identity of the under the United States Agricultural Instructions: All comments should registered production site. Marketing Act of 1946 (AMA), as make reference to the date and page
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number of this issue of the Federal most commodities. As the percentage of inspection service when certificated Register. such factors increases, the numerical results are questionable. That is, if an Background Documents: Regulatory grade decreases. For example: U.S. No. interested party disagrees with the grade analyses and other documents relating 2 Long Grain Milled Rice may contain or factor results assigned to the graded to this action will be available for public not more than 1.5 percent red rice and commodity, they may request that the inspection in the above office during damaged kernels, U.S. No. 3 may GIPSA perform an appeal inspection. regular business hours. contain not more than 2.5 percent, and From the original inspection service Read Comments: All comments will U.S. No. 4 may contain not more than an interested person may obtain an be available for public inspection in the 4.0 percent. appeal inspection service, or a Board above office during regular business Non-grade determining factors appeal inspection service. The same hours (7 CFR 1.27(b)). include, but are not limited to, total oil inspection office that provided the FOR FURTHER INFORMATION CONTACT: John and free-fatty acid in rice, and seed original inspection service provides the C. Giler, Deputy Director, Field count and checked seed coats in beans. appeal inspection. GIPSA’s Board of Management Division: e-mail address These factors are only determined upon Appeals and Review (BAR) in Kansas [email protected], telephone: (202) request as additional information and City, Missouri, provides the Board 720–1748. do not affect the numerical grade appeal inspection service, the highest SUPPLEMENTARY INFORMATION: designation. level of inspection service available. After the sample has been analyzed The scope of the appeal or Board appeal Background for all factors, a grade is assigned to the inspection is limited to the scope of the Pursuant to the United States AMA, sample equal to the lowest grade original inspection. as amended, graded commodities have determined for any one of the factors. Section 868.60 of the regulations established standards which are used to For example, if all of the factors were currently require that appeal measure and describe the physical and determined to be at the U.S. No. 1 level, inspections for grade must include a biological properties of the commodities except for one factor that was at the U.S. complete review of all official factors at the time of inspection. The grade, No. 3 level, then the lot would be that: (1) May determine the grade; or (2) class, and condition that are reported on graded U.S. No. 3. are reported on the original certificate; the official inspection certificate are Therefore, the final grade assigned to and (3) are required to be shown. based on factors that are defined in a sample or lot is directly dependent on Consequently, even if the official these standards. There are three kinds of achieving accuracy (closeness to the inspector who is performing the appeal factors: Condition factors, grade true value) and precision (repeatability) inspection finds there is only one grade- determining factors, and non-grade in the values obtained for the various determining factor, all of the factors that determining factors. grading factors. Accuracy and precision were reported on the original certificate Condition factors include heating, are affected mainly by the type of must be redetermined. odor (musty, sour, and commercially sampling device, the sampling In most instances, the applicant for objectionable), infestation, special grade procedure, and the grading factors; i.e., service does not need a complete factors (e.g., smut and aromatic), and machine-determined values (objective), review. Even though not allowed, most distinctly low quality factors, such as human judgment values (subjective), applications currently request an appeal toxic seeds. When a graded commodity and sample homogeneity (inherent). The inspection of a specific factor. is found to contain an unacceptable sources of variation are highly Redetermining all official factors level of one or more of these condition interrelated; each is involved, to some requires significant time to complete. factors, the commodity is graded U.S. extent, in the final value ascribed to This increases inspection costs. Sample Grade or assigned a special each grading factor of a lot and to the The following table shows the total grade, such as Infested. grade designation of that lot. number of inspections versus number of Grade determining factors include, Due to inherent sampling and appeal and Board appeal inspections for but are not limited to, foreign material, inspection variability, users of the grade that have been determined during defects, damaged kernels, and other official inspection system have an the last four fiscal years for dry beans, classes. These factors are common to opportunity to obtain another peas, lentils, and rice.
Total inspections of beans, peas, Fiscal year lentils, and rice (FY) Original Appeal Board appeal inspections inspections inspections
FY 2001 ...... 104,730 345 13 FY 2002 ...... 61,270 322 19 FY 2003 ...... 62,784 455 33 FY 2004 ...... 57,182 314 21
Under provisions of the AMA (7 The cost savings of the proposed To provide effective and efficient U.S.C. 16210 et seq.), it is not action on the graded commodity official inspection services that better mandatory for rice and pulses (the industry could be very positive. meet industry needs, GIPSA proposes subject of this rule) to be officially Although it is impossible to estimate an that applicants for service be allowed to inspected. This proposed rule relieves exact dollar savings, the time spent specify the factor(s) that are to be regulatory requirements and improves waiting for appeal inspection results redetermined as part of an appeal or the efficiency of official inspection could be reduced by at least 50 percent Board appeal inspection service for services. and could, in certain circumstances, grade. However, appeal and Board exceed 90 percent. appeal inspections for grade may
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include a review of any pertinent designated/delegated states, and For reasons set out in the preamble, factor(s), as deemed necessary by cooperators. Inspections of graded 7 CFR part 868 is proposed to be official personnel. All official commodities are performed by eight amended as follows: inspections (original, appeal or Board GIPSA offices, one Federal/State office, appeal inspection) must be accurate. If and six designated States which operate PART 868—GENERAL REGULATIONS there is an indication that a factor (or under cooperative agreements and AND STANDARDS FOR CERTAIN factors) may have been misgraded or under GIPSA supervision. Under the AGRICULTURAL COMMODITIES overlooked on the previous inspection, provisions of the AMA, it is not 1. The authority citation for part 868 then the factor(s) in question will be mandatory for graded commodities to be continues to read as follows: redetermined. officially inspected. Further, most users On August 21, 2002, GIPSA proposed of the official inspection services and Authority: Secs. 202–208, 60 Stat. 1087, as amended (7 U.S.C. 1621, et seq.) this same action under the U.S. Grain those entities that perform these Standards Act (67 FR 54133). GIPSA services do not meet the requirement of 2. Section 868.1, paragraphs (b)(3), received seven comments regarding the small entities. Even though some users and (b)(6) are revised to read as follows: proposed action. All comments could be considered small entities, this § 868.1 Meaning of terms. supported the action. Accordingly, proposed rule relieves regulatory GIPSA amended the regulations to allow requirements and improves the * * * * * requests for a reinspection and an (b) * * * efficiency of official inspection services. (3) Appeal inspection service. A appeal inspection to one or more grade No additional cost is expected to result review by the Service of the result(s) of or condition factors. This final rule was from this action. an original inspection or retest published on October 28, 2003, in (68 Requiring all appeal inspections and inspection service. FR 61326). Board appeal inspections for grade to Two of the comments received from include a complete review of all official * * * * * the original proposal were from factors is not needed by applicants or (6) Board appeal inspection service. A associations involved with graded other parties to transactions, or by review by the Board of Appeals and commodities inspected under the official inspection personnel. Review of the result(s) of an original authority of the AMA, asking that Furthermore, this requirement often inspection or appeal inspection service GIPSA extend the action to include reduces the efficiency of providing on graded commodities. graded products (rice and pulses). official inspection services and * * * * * 3. Section 868.60, paragraph (b) and Proposed Action increases the costs. This proposed rule relieves regulatory the OMB citation at the end of the GIPSA proposes to revise §868.1 to requirements and improves the section are revised to read as follows: redefine the definitions of appeal and efficiency of official inspection services. § 868.60 Who may request appeal Board appeal inspection services, and Further the regulations are applied inspection service. §868.60 to revise the conditions for equally to all entities. requesting appeal and Board appeal * * * * * inspection services. Executive Order 12988 (b) Kind and scope of request. When Under Executive Order 12988, Civil the results for more than one kind of Executive Order 12866 Justice Reform, this action is not service are reported on a certificate, an This proposed rule has been intended to have a retroactive effect. appeal inspection or Board appeal determined to be non-significant for the This action will not preempt any State inspection service, as applicable, may purpose of Executive Order 12866 and, or local laws, regulations, or policies be requested on any or all kinds of therefore, has not been reviewed by the unless they present irreconcilable services reported on the certificate. The Office of Management and Budget conflict with this rule. There are no scope of an appeal inspection service (OMB). This action simplifies the administrative procedures that must be will be limited to the scope of the regulations concerning official exhausted prior to any judicial original inspection or, in the case of a requirements for commodity challenge to the provisions of this Board appeal inspection service, the inspections. This action reduces cost to notice. original or appeal inspection service. A the affected entities. request for appeal inspection of a retest Information Collection and inspection will be based upon the scope Regulatory Flexibility Act Certification Recordkeeping Requirements of the original inspection. If the request GIPSA has considered the economic In compliance with the Paperwork specifies a different scope, the request impact of this proposed rule on small Reduction Act of 1995 (44 U.S.C. 3501 shall be dismissed. Provided, however, entities and has determined that its et seq.), the information collection and that an applicant for service may request provision would not have a significant recordkeeping requirements in part 868 an appeal or Board appeal inspection of economic impact on a substantial have been previously approved by OMB a specific factor(s) or official grade and number of small entities, as defined in No. 0580–0013. factors. In addition, appeal and Board the Regulatory Flexibility Act (RFA) (5 GIPSA is committed to compliance appeal inspection for grade may include U.S.C. 601 et seq.). with the Government Paperwork a review of any pertinent factor(s), as The proposed rule will affect entities Elimination Act, which requires deemed necessary by official personnel. engaged in shipping graded Government agencies, in general, to (Approved by the Office of Management commodities to and from points within provide the public the option of and Budget under control number 0580– the United States and exporting graded submitting information or transacting 0013.) commodities from the United States. business electronically to the maximum GIPSA estimates there are extent possible. JoAnn Waterfield, approximately 2,500 rice mills, and Acting Administrator, Grain Inspection, bean, pea, and lentil processing plants List of Subjects in 7 CFR Part 868 Packers and Stockyards Administration. in the United States that could receive Administrative practice and [FR Doc. 05–13297 Filed 7–6–05; 8:45 am] official inspection services by GIPSA, procedure, Agricultural commodities. BILLING CODE 3410–EN–P
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NATIONAL CREDIT UNION Public Inspection: All public although there are differences. For ADMINISTRATION comments are available on the agency’s example, unlike the bank regulators, Web site at http://www.ncua.gov/ NCUA included Powers and Activities 12 CFR Chapter VII RegulationsOpinionsLaws/comments as of Credit Unions in an earlier notice, submitted, except as may not be and so this notice makes no reference to Request for Burden Reduction possible for technical reasons. Public that subject. Recommendation; Directors, Officers comments will not be edited to remove II. A. The EGRPRA Review and Employees and Rules of any identifying or contact information. Requirements and NCUA’s Proposed Procedure; Economic Growth and Paper copies of comments may be Plan Regulatory Paperwork Reduction Act inspected in NCUA’s law library, at of 1996 Review 1775 Duke Street, Alexandria, Virginia This notice is part of the regulatory AGENCY: National Credit Union 22314, by appointment weekdays review required by section 2222 of 1 Administration (NCUA). between 9 a.m. and 3 p.m. To make an EGRPRA. The NCUA described the review requirements in our initial ACTION: Notice of regulatory review; appointment, call (703) 518–6546 or Federal Register notice, published on request for comments. send an e-mail to [email protected]. FOR FURTHER INFORMATION CONTACT: Ross July 3, 2003 (68 FR 39863). As we noted SUMMARY: The NCUA Board is P. Kendall, Staff Attorney, Office of at that time, we anticipate that the continuing its review of its regulations General Counsel, at the above address or EGRPRA review’s overall focus on the to identify outdated, unnecessary, or telephone (703) 518–6562. ‘‘forest’’ of regulations will offer a new perspective in identifying opportunities unduly burdensome regulatory SUPPLEMENTARY INFORMATION: requirements imposed on federally- to reduce regulatory burden. We must, insured credit unions pursuant to the I. Introduction of course, assure that the effort to reduce Economic Growth and Regulatory NCUA seeks public comment and regulatory burden is consistent with Paperwork Reduction Act of 1996 suggestions on ways it can reduce applicable statutory mandates and (EGRPRA). Today, NCUA requests regulatory burdens consistent with our provides for the continued safety and comments and suggestions on ways to statutory obligations. Today, we request soundness of federally-insured credit reduce burden in regulations that input to help identify which unions and appropriate consumer govern directors, officers, and requirements in two regulatory protections. employees and that establish rules of categories—Directors, Officers and The EGRPRA review required that procedure, consistent with our statutory Employees and Rules of Procedure—are NCUA categorize our regulations by obligations. All comments are welcome. outdated, unnecessary, or unduly type. Our July 3, 2003, Federal Register We will analyze the comments burdensome. The rules in these publication identified ten broad received and propose burden reducing categories are listed in a chart at the end categories for our regulations. changes to our regulations where of this notice. The EGRPRA review The categories are: appropriate. Some suggestions for supplements and complements the 1. Applications and Reporting. burden reduction might require reviews of regulations that NCUA 2. Powers and Activities. 3. Agency Programs. legislative changes. Where legislative conducts under other laws and its 4. Capital. changes would be required, we will internal policies. 5. Consumer Protection. consider the suggestions in We specifically invite comment on 6. Corporate Credit Unions. recommending appropriate changes to the following issues: Whether statutory 7. Directors, Officers and Employees. Congress. changes are needed; whether the 8. Money Laundering. regulations contain requirements that DATES: Comment must be received on or 9. Rules of Procedure. before October 5, 2005. are not needed to serve the purposes of 10. Safety and Soundness. ADDRESSES: You may submit comments the statutes they implement; the extent To spread the work of commenting on by any of the following methods (Please to which the regulations may adversely and reviewing the categories of rules send comments by one method only): affect competition; the cost of over a reasonable period of time, we • Federal eRulemaking Portal: http:// compliance associated with reporting, proposed to publish one or more www.regulations.gov. Follow the recordkeeping, and disclosure categories of rules approximately every instructions for submitting comments. requirements, particularly on small six months between 2003 and 2006 and • NCUA Web site: http:// credit unions; whether any regulatory provide a 90-day comment period for www.ncua.gov/ requirements are inconsistent or each publication. We asked for RegulationsOpinionsLaws/ redundant; and whether any regulations comment on all aspects of our plan, _ _ proposed regs/proposed regs.html. are unclear. including: The categories, the rules in In drafting this notice, the NCUA Follow the instructions for submitting each category, and the order in which participated as part of the EGRPRA comments. we should review the categories. • planning process with the Office of the E-mail: Address to Because the NCUA was eager to begin Comptroller of the Currency, Board of [email protected]. Include ‘‘[Your reducing unnecessary burden where Governors of the Federal Reserve name] Comments on Fifth EGRPRA appropriate, our initial notice also System, Federal Deposit Insurance Notice’’ in the e-mail subject line. published the first two categories of • Corporation, and Office of Thrift Fax: (703) 518–6319. Use the rules for comment (Applications and Supervision (Agencies). Because of the subject line described above for e-mail. Reporting and Powers and Activities). • unique circumstances of federally- Mail: Address to Mary Rupp, NCUA published its second notice, insured credit unions and their Secretary of the Board, National Credit soliciting comment on consumer members, NCUA is issuing a separate Union Administration, 1775 Duke protection rules in the lending area, on Street, Alexandria, Virginia 22314– notice from the four bank regulatory
3428. agencies, which are issuing a joint 1 • Pub. L. No. 104–208, div. A, title II, section Hand Delivery/Courier: Same as notice. NCUA’s notice is consistent and 2222, 110 Stat. 3009–414; codified at 12 U.S.C. mail address. comparable with the joint notice, 3311.
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February 4, 2004 (69 FR 5300); its third III. Request for Comment on Directors, • Effect of the regulations on notice, relating to other consumer Officers and Employees and Rules of competition. Do any of the regulations protection rules, on July 8, 2004 (69 FR Procedure Categories in this category or the statutes 41202); and its fourth notice, relating to NCUA is asking the public to identify underlying them create competitive safety and soundness and anti-money the ways in which the rules in the disadvantages for credit unions laundering, on February 4, 2005 (70 FR category of Directors, Officers, and compared to another part of the 5946). All our covered categories of Employees and Rules of Procedure may financial services industry? rules must be published for comment be outdated, unnecessary, or unduly • Reporting, recordkeeping and and reviewed by the end of September burdensome. If the implementation of a disclosure requirements. Do any of the 2006. comment would require modifying a regulations in this category or the The EGRPRA review then requires the statute that underlies the regulation, the statutes underlying them impose Agencies to: (1) Publish a summary of comment should, if possible, identify particularly burdensome reporting, the comments we received, identifying the needed statutory change. We recordkeeping or disclosure and discussing the significant issues encourage comments that not only deal requirements? Are any of these raised in them; and (2) eliminate with individual rules or requirements requirements similar enough in purpose unnecessary regulatory requirements. but also pertain to certain product lines. and use so that they could be A product line approach is consistent Within 30 days after the Agencies consolidated? What, if any, of these with EGRPRA’s focus on how rules publish the comment summary and requirements could be fulfilled interact, and may be especially helpful discussion, the Federal Financial electronically to reduce their burden? in exposing redundant or potentially Are any of the reporting or Institutions Examination Council inconsistent regulatory requirements. (FFIEC), which is an interagency body recordkeeping requirements We recognize that commenters using a unnecessary to demonstrate compliance to which all of the Agencies belong, product line approach may want to with the law? must submit a report to Congress. This make recommendations about rules that report will summarize significant issues • Consistency and redundancy. Do are not in our current request for any of the regulations in this category raised by the public comments and the comment. They should do so since the impose inconsistent or redundant relative merits of those issues. It will EGRPRA categories are designed to regulatory requirements that are not also analyze whether the appropriate stimulate creative approaches rather warranted by the purposes of the Federal financial institution regulatory than limiting them. agency can address the burdens by Specific issues to consider. While all regulation? regulation, or whether the burdens must comments are welcome, NCUA • Clarity. Are the regulations in this be addressed by legislation. specifically invites comment on the category drafted in clear and easily following issues: understood language? B. Public Response and NCUA’s Current • Need for statutory change. Do any • Plan Burden on small insured of the statutory requirements underlying institutions. NCUA has a particular NCUA received eight comments in these regulations impose redundant, interest in minimizing burden on small response to its first notice, four conflicting or otherwise unduly insured credit unions (those with less comments in response to its second burdensome requirements? Are there than $10 million in assets). More than less burdensome alternatives? half of federally-insured credit unions notice, six in response to the third • Need and purpose of the notice and eleven in response to the are small—having $10 million in assets regulations. Are the regulations or less—as defined by NCUA in fourth notice. The comments have been consistent with the purposes of the posted on the interagency EGRPRA Web Interpretative Ruling and Policy statutes that they implement? Have Statement 03–2, Developing and site, http://www.EGRPRA.gov, and can circumstances changed so that the be viewed by clicking on ‘‘Comments.’’ Reviewing Government Regulations. regulation is no longer necessary? Do NCUA solicits comment on how any We are actively reviewing the feedback changes in the financial products and received about specific ways to reduce regulations in this category could be services offered to consumers suggest a changed to minimize any significant regulatory burden, as well as conducting need to revise certain regulations or our own analyses. Because the main economic impact on a substantial statutes? Do any of the regulations number of small credit unions. purpose of this notice is to request impose compliance burdens not comment on the next category of required by the statutes they NCUA appreciates the efforts of all regulations, we will not discuss specific implement? interested parties to help us eliminate recommendations that we have received • General approach/flexibility. outdated, unnecessary or unduly in response to our earlier notices here. Generally, is there a different approach burdensome regulatory requirements. However, as we develop initiatives to to regulating that NCUA could use that IV. Regulations About Which Burden reduce burden on specific subjects in would achieve statutory goals while Reduction Recommendations Are the future—whether through regulatory, imposing less burden? Do any of the Requested Currently legislative, or other channels—we will regulations in this category or the discuss the public’s recommendations statutes underlying them impose Directors, Officers, and Employees that relate to our proposed actions. unnecessarily inflexible requirements? and Rules of Procedure.
Code of Federal Regulations Subject (CFR) citation
Retirement Benefits for Employees ...... 12 CFR 701.19. Loans and Lines of Credit to Officials ...... 12 CFR 701.21(d). Reimbursement, Insurance and Indemnification of Officials and Employees ...... 12 CFR 701.33. Management Official Interlocks ...... 12 CFR part 711. Fidelity Bond and Insurance Coverage ...... 12 CFR part 713.
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Code of Federal Regulations Subject (CFR) citation
Liquidation (Involuntary and Voluntary) ...... 12 CFR parts 709 and 710. Uniform Rules of Practice and Procedure ...... 12 CFR part 747 subpart A. Local Rules of Practice and Procedure ...... 12 CFR part 747 subpart B.
By the National Credit Union • Mail: Docket Management Facility; Register published on April 11, 2000 Administration Board on June 30, 2005. U.S. Department of Transportation, 400 (65 FR 19477–78) or you may visit http:/ Mary F. Rupp, Seventh Street, SW., Nassif Building, /dms.dot.gov. Secretary of the Board. Room PL–401, Washington, DC 20590– Are there any specific portions of this [FR Doc. 05–13310 Filed 7–6–05; 8:45 am] 001. proposed AD I should pay attention to? • BILLING CODE 7535–01–P Fax: 1–202–493–2251. We specifically invite comments on the • Hand Delivery: Room PL–401 on overall regulatory, economic, the plaza level of the Nassif Building, environmental, and energy aspects of 400 Seventh Street, SW., Washington, DEPARTMENT OF TRANSPORTATION this proposed AD. If you contact us DC, between 9 a.m. and 5 p.m., Monday through a nonwritten communication through Friday, except Federal holidays. Federal Aviation Administration and that contact relates to a substantive To get the service information part of this proposed AD, we will identified in this proposed AD, contact summarize the contact and place the 14 CFR Part 39 EADS SOCATA Tarbes, Direction des summary in the docket. We will Services, 65921 Tarbes Cedex 9, France; [Docket No. FAA–2005–21464; Directorate consider all comments received by the telephone: 33 (0)5 62.41.73.00; Identifier 2005–CE–32–AD] closing date and may amend this facsimile: 33 (0)5 62.41.76.54; or proposed AD in light of those comments RIN 2120–AA64 SOCATA AIRCRAFT, North Perry and contacts. Airport, 7501 Pembroke Road, Airworthiness Directives; SOCATA— Pembroke Pines, Florida 33023. Docket Information Groupe AEROSPATIALE Model TBM To view the comments to this 700 Airplanes proposed AD, go to http://dms.dot.gov. Where can I go to view the docket This is docket number FAA–2005– information? You may view the AD AGENCY: Federal Aviation docket that contains the proposal, any Administration (FAA), DOT. 21464; Directorate Identifier 2005–CE– 32–AD. comments received, and any final ACTION: Notice of proposed rulemaking disposition in person at the DMS Docket FOR FURTHER INFORMATION CONTACT: (NPRM). Offices between 9 a.m. and 5 p.m. Peter L. Rouse, Aerospace Engineer, (eastern standard time), Monday SUMMARY: The FAA proposes to adopt a FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, through Friday, except Federal holidays. new airworthiness directive (AD) for The Docket Office (telephone 1–800– certain SOCATA—Groupe Missouri 64106; telephone: (816) 329– 4135; facsimile: (816) 329–4090. 647–5227) is located on the plaza level AEROSPATIALE (SOCATA) Model of the Department of Transportation SUPPLEMENTARY INFORMATION: TBM 700 airplanes. This proposed AD NASSIF Building at the street address would require you to inspect the Comments Invited stated in ADDRESSES. You may also view fuselage skin in the VHF1 antenna How do I comment on this proposed the AD docket on the Internet at mounting area for cracks and loose http://dms.dot.gov. The comments will rivets. This proposed AD would also AD? We invite you to submit any written relevant data, views, or be available in the AD docket shortly require you to modify the area if you after the DMS receives them. find cracks or loose rivets. This arguments regarding this proposal. Send proposed AD results from mandatory your comments to an address listed Discussion under ADDRESSES. Include the docket continuing airworthiness information What events have caused this (MCAI) issued by the airworthiness number, ‘‘FAA–2005–21464; Directorate Identifier 2005–CE–32–AD’’ at the proposed AD? The Direction Ge´ne´rale authority for France. We are issuing this de L’Aviation Civile (DGAC), which is proposed AD to detect and correct beginning of your comments. We will post all comments we receive, without the airworthiness authority for France, cracks in the fuselage skin, which could notified FAA that an unsafe condition result in loss of aircraft pressurization. change, to http://dms.dot.gov, including any personal information you provide. may exist on certain SOCATA Model Loss of aircraft pressurization could TBM 700 airplanes. The DGAC reports lead to flight crew incapacitation. We will also post a report summarizing each substantive verbal contact with cracks in the fuselage skin by the DATES: We must receive any comments FAA personnel concerning this passenger door on the affected on this proposed AD by August 19, proposed rulemaking. Using the search airplanes. These airplanes have a VHF1 2005. function of our docket Web site, anyone antenna mounted under the fuselage ADDRESSES: Use one of the following to can find and read the comments between frame C12 and C13 or C13 and submit comments on this proposed AD: received into any of our dockets, C13bis. • DOT Docket Web site: Go to including the name of the individual Investigations reveal that antenna http://dms.dot.gov and follow the who sent the comment (or signed the vibrations are causing the cracks. instructions for sending your comments comment on behalf of an association, What is the potential impact if FAA electronically. business, labor union, etc.). This is took no action? If not detected and • Government-wide rulemaking Web docket number FAA–2005–21464; corrected, cracks in the fuselage skin site: Go to http://www.regulations.gov Directorate Identifier 2005–CE–32–AD. could cause loss of aircraft and follow the instructions for sending You may review the DOT’s complete pressurization. Loss of pressurization your comments electronically. Privacy Act Statement in the Federal could lead to flight crew incapacitation.
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Is there service information that the continued airworthiness of these which could result in loss of aircraft applies to this subject? SOCATA has airplanes in France. pressurization. Loss of aircraft issued Mandatory Service Bulletin TBM Did the DGAC inform the United pressurization could lead to flight crew Aircraft, SB 70–103, Amendment 1, States under the bilateral airworthiness incapacitation. ATA No. 53, dated September 2003; and agreement? These SOCATA Model TBM What would this proposed AD Recommended Service Bulletin TBM 700 airplanes are manufactured in require? This proposed AD would Aircraft, SB 70–111, ATA No. 53, dated France and are type-certificated for require you to incorporate the actions in October 2003. operation in the United States under the the previously-referenced service What are the provisions of this service provisions of section 21.29 of the bulletins. information? These service bulletins Federal Aviation Regulations (14 CFR How does the revision to 14 CFR part include procedures for: 21.29) and the applicable bilateral 39 affect this proposed AD? On July 10, airworthiness agreement. 2002, we published a new version of 14 —Mandatory Service Bulletin TBM Under this bilateral airworthiness CFR part 39 (67 FR 47997, July 22, Aircraft, SB 70–103, Amendment 1, agreement, the DGAC has kept us 2002), which governs FAA’s AD system. ATA No. 53, dated September 2003: informed of the situation described This regulation now includes material inspecting the fuselage skin where the above. that relates to altered products, special VHF1 antenna mounts under the flight permits, and alternative methods fuselage between frame C12 and C13 FAA’s Determination and Requirements of compliance. This material previously or C13 and C13bis, for cracks and of This Proposed AD was included in each individual AD. loose rivets. What has FAA decided? We have Since this material is included in 14 —Recommended Service Bulletin TBM examined the DGAC’s findings, CFR part 39, we will not include it in Aircraft, SB 70–111, ATA No. 53, reviewed all available information, and future AD actions. dated October 2003: reinforcing the determined that AD action is necessary VHF1 antenna bracket between frame for products of this type design that are Costs of Compliance C12 and C13 and the VHF1 antenna certificated for operation in the United How many airplanes would this bracket between C13 and C13bis and States. proposed AD impact? We estimate that procedures for modifying the antenna Since the unsafe condition described this proposed AD affects 185 airplanes and fuselage interface. previously is likely to exist or develop in the U.S. registry. What action did the DGAC take? The on other SOCATA Model TBM 700 What would be the cost impact of this DGAC classified these service bulletins airplanes of the same type design that proposed AD on owners/operators of the as mandatory and issued French AD are registered in the United States, we affected airplanes? We estimate the Number F–2003–367 R1, Distribution A, are proposing AD action to detect and following costs to do the proposed Issue date: February 4, 2004, to ensure correct cracks in the fuselage skin, inspection:
Total cost Total cost on U.S. op- Labor cost Parts cost per airplane erators
1 work hour × $65 per hour = $65 ...... Not applicable ...... $65 $65 × 185 = $12,025.
We estimate the following costs to do the proposed modification.
Total cost per Labor cost Parts cost airplane
4 work hours × $65 per hour = $260 ...... $181 $441
Authority for This Rulemaking safety in air commerce. This regulation the reasons discussed above, I certify is within the scope of that authority that this proposed AD: What authority does FAA have for because it addresses an unsafe condition 1. Is not a ‘‘significant regulatory issuing this rulemaking action? Title 49 that is likely to exist or develop on action’’ under Executive Order 12866; of the United States Code specifies the products identified in this AD. 2. Is not a ‘‘significant rule’’ under the FAA’s authority to issue rules on DOT Regulatory Policies and Procedures aviation safety. Subtitle I, Section 106 Regulatory Findings (44 FR 11034, February 26, 1979); and describes the authority of the FAA Would this proposed AD impact 3. Will not have a significant Administrator. Subtitle VII, Aviation various entities? We have determined economic impact, positive or negative, Programs, describes in more detail the that this proposed AD would not have on a substantial number of small entities scope of the agency’s authority. federalism implications under Executive under the criteria of the Regulatory We are issuing this rulemaking under Order 13132. This proposed AD would Flexibility Act. the authority described in Subtitle VII, not have a substantial direct effect on We prepared a summary of the costs Part A, Subpart III, Section 44701, the States, on the relationship between to comply with this proposed AD and ‘‘General requirements.’’ Under that the National Government and the States, placed it in the AD Docket. You may get section, Congress charges the FAA with or on the distribution of power and a copy of this summary by sending a promoting safe flight of civil aircraft in responsibilities among the various request to us at the address listed under air commerce by prescribing regulations levels of government. ADDRESSES. Include ‘‘AD Docket FAA– for practices, methods, and procedures Would this proposed AD involve a 2005–21464; Directorate Identifier the Administrator finds necessary for significant rule or regulatory action? For 2005–CE–32–AD’’ in your request.
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List of Subjects in 14 CFR Part 39 SOCATA—Groupe AEROSPATIALE: Docket issued by the airworthiness authority for No. FAA–2005–21464; Directorate France. The actions specified in this AD are Air transportation, Aircraft, Aviation Identifier 2005–CE–32–AD. intended to detect and correct cracks in the fuselage skin, which could result in loss of safety, Safety. When Is the Last Date I Can Submit aircraft pressurization. Loss of aircraft Comments on This Proposed AD? The Proposed Amendment pressurization could lead to flight crew (a) We must receive comments on this incapacitation. Accordingly, under the authority proposed airworthiness directive (AD) by delegated to me by the Administrator, August 19, 2005. What Must I Do To Address This Problem? the Federal Aviation Administration What Other ADs Are Affected by This (e) To address this problem, you must do proposes to amend 14 CFR part 39 as Action? the following: follows: (b) None. Note: The EADS SOCATA Mandatory Service Bulletin TBM Aircraft, SB 70–103, PART 39—AIRWORTHINESS What Airplanes Are Affected by This AD? Amendment 1, ATA No. 53, dated September DIRECTIVES (c) This AD affects the following Model 2003, allows the pilot to perform the visual TBM 700 airplanes, serial numbers 1 through inspection of the fuselage skin in the VHF1 255; 257 through 267; and 270, that are: antenna mount area for cracks and loose 1. The authority citation for part 39 rivets. The Federal Aviation Regulations (14 continues to read as follows: (1) equipped with a VHF1 antenna mounted under the fuselage between frame CFR 43.3) only allow the pilot to perform Authority: 49 U.S.C. 106(g), 40113, 44701. C12 and C13 or C13 and C13bis; and preventive maintenance as described in 14 (2) certificated in any category. CFR part 43, App. A, paragraph (c). These § 39.13 [Amended] visual inspections are not considered What Is the Unsafe Condition Presented in preventive maintenance under 14 CFR part 2. The FAA amends § 39.13 by adding This AD? 43, App. A, paragraph (c). Therefore, an the following new airworthiness (d) This AD is the result of mandatory appropriately-rated mechanic must perform directive (AD): continuing airworthiness information (MCAI) all actions of this AD.
Actions Compliance Procedures
(1) Inspect the fuselage skin in the VHF1 an- Within the next 50 hours time-in-service (TIS) Follow EADS SOCATA Mandatory Service tenna mount area between frame C12 and after the effective date of this AD. Repet- Bulletin TBM Aircraft, SB 70–103, Amend- C13 or C13 and C13bis, for cracks and loose itively inspect thereafter at intervals not to ment 1, ATA No. 53, dated September rivets. exceed 50 hours TIS until the modification 2003. in paragraph (e)(2) of this AD is done. Modifying the VHF1 antenna bracket and interface area terminates the repetitive in- spection requirement of this AD. (2) Modify the VHF1 antenna bracket and the At whichever of the following that occurs first: Follow EADS SOCATA Recommended Serv- antenna/fuselage interface. (i) Before further flight anytime a crack or ice Bulletin TBM Aircraft, SB 70–111, ATA loose rivet is found during any inspection No. 53, dated October 2003, and the appli- required in paragraph (e)(1) of this AD. cable maintenance manual. (ii) Within 100 hours TIS or 12 months after the effective date of this AD, whichever oc- curs later.
May I Request an Alternative Method of 65921 Tarbes Cedex 9, France; telephone: 33 DEPARTMENT OF JUSTICE Compliance? (0)5 62.41.73.00; facsimile: 33 (0)5 (f) You may request a different method of 62.41.76.54; or SOCATA AIRCRAFT, North 28 CFR Part 45 compliance or a different compliance time Perry Airport, 7501 Pembroke Road, [OAG Docket No. 112; AG Order No. 2770– for this AD by following the procedures in 14 Pembroke Pines, Florida 33023. To view the 2005] CFR 39.19. Unless FAA authorizes otherwise, AD docket, go to the Docket Management send your request to your principal Facility; U.S. Department of Transportation, RIN 1105–AB11 inspector. The principal inspector may add 400 Seventh Street, SW., Nassif Building, comments and will send your request to the Room PL–401, Washington, DC, or on the Procedures To Promote Compliance Manager, Standards Office, Small Airplane With Crime Victims’ Rights Obligations Directorate, FAA. For information on any Internet at http://dms.dot.gov. This is docket already approved alternative methods of number FAA–2005–21464; Directorate AGENCY: Department of Justice. compliance, contact Peter L. Rouse, Identifier 2005–CE–32–AD. ACTION: Proposed rule. Aerospace Engineer, FAA, Small Airplane Issued in Kansas City, Missouri, on June Directorate, 901 Locust, Room 301, Kansas 28, 2005. SUMMARY: This proposed rule City, Missouri 64106; telephone: (816) 329– implements section 102(f) of the Justice 4135; facsimile: (816) 329–4090. David R. Showers, for All Act, establishing procedures to Acting Manager, Small Airplane Directorate, Is There Other Information That Relates to promote compliance with crime victims’ Aircraft Certification Service. This Subject? rights statutes by Department of Justice [FR Doc. 05–13333 Filed 7–6–05; 8:45 am] (g) French AD Number F–2003–367 R1, employees. Distribution A, Issue date: February 4, 2004, BILLING CODE 4910–13–P DATES: Written comments must be also addresses the subject of this AD. received on or before September 6, May I Get Copies of the Documents 2005. Referenced in This AD? ADDRESSES: Written comments may be (h) To get copies of the documents submitted to: Mary Beth Buchanan, referenced in this AD, contact EADS Director, Executive Office for United SOCATA Tarbes, Direction des Services, States Attorneys, United States
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Department of Justice, Washington, DC authorizes the VRO to designate points disciplinary matters for that office. The 20530; Attn: ‘‘OAG Docket No. 112.’’ of contact (POCs) in each office of the head of that office of the Department of E-mail comments may be Department to perform initial Justice, or the other official designated electronically submitted to http:// investigations and review of complaints, by Department of Justice regulations and www.regulations.gov by using the in order to allow for complaints to be procedures to take action on electronic comment form provided on addressed at the most local level. disciplinary matters for that office, shall that site or to [email protected]. For purposes of the new section, be the final decision-maker regarding Comments submitted electronically victims of crime are defined identically the disciplinary sanction to be imposed. must include ‘‘OAG Docket No. 112’’ or to the definition in the Justice for All Because of restrictions on the release ‘‘RIN 1105–AB11’’ in the subject line. Act, and victims’ rights are defined as of information regarding the status of You may also view an electronic version those established in the Act. Department employees and the need to of this rule at the http:// The proposed rule then establishes a balance the rights of the victim with the www.regulations.gov site. procedure for filing complaints, rights of the employee, the victim shall FOR FURTHER INFORMATION CONTACT: investigations of those complaints, and be notified of the results of the Mary Beth Buchanan, Director, imposition of disciplinary sanctions investigation only at the discretion of Executive Office for United States against employees where warranted. the VRO and in accordance with The proposed rule requires that a Attorneys, United States Department of relevant statutes and regulations complaint must be in writing and must Justice, Washington, DC 20530, (202) regarding privacy of Federal employees. contain sufficient information to enable 514–2121. Both the POC and the VRO are an investigation of the complaint by the SUPPLEMENTARY INFORMATION: Congress required to refer to the Office of the POC. Complaints must be filed within Inspector General (OIG) or the Office of enacted, and the President signed, the 30 days of the alleged violation of a Justice for All Act (‘‘Act’’), which Professional Responsibility (OPR) any victim’s rights, unless the victim matters that fall under those offices’ became effective October 30, 2004. demonstrates good cause for the delay. Section 102 of the Act, 18 U.S.C. 3771 jurisdictions that may come to light in The precise requirements for the the POC’s or the VRO’s investigation. (‘‘section 3771’’), codifies crime investigation will be established by An appendix listing the contact victims’’ rights, requires officers and internal Department policy guidance. At information for the VRO and the POCs employees of the Department of Justice the end of the investigation, the POC of each relevant office of the Department (‘‘Department’’) and other government will prepare a written report of the of Justice will be attached to the final departments and agencies to exercise results of the investigation, including a rule, when published. best efforts to accord victims those signed statement by the victim as to rights, establishes enforcement whether or not he is satisfied that his Regulatory Procedures measures for those rights, and requires complaint has been resolved. In either Regulatory Flexibility Act the Attorney General to promulgate case, however, the report will be regulations within one year of the Act’s forwarded to the VRO for review. The Because this proposed rule affects effective date to promote compliance by VRO will then decide whether (a) No only internal Department procedures, responsible Department of Justice further action is necessary; (b) further the Department states that this rule, if officials with their obligations regarding investigation, to be conducted by the promulgated as a final rule, will not victims’ rights. Section 3771(f) states VRO, is necessary; or (c) the employee have any effect on small businesses of that the regulations must: (a) Designate should be required to undergo training the type described in 5 U.S.C. 605. an administrative authority within the or be subject to disciplinary sanctions. Accordingly, the Department has not Department to receive and investigate The VRO’s determination will not be prepared an initial Regulatory complaints relating to the provision or dependent on the victim’s satisfaction, Flexibility Act analysis in accordance violation of the rights of a crime victim although it may be taken into account. with 5 U.S.C. 603. by Department employees; (b) require a The VRO will be the final arbiter of Executive Order 12866 course of training for Department whether the complaint has been employees and offices that fail to adequately addressed. The Department of Justice has comply with their obligations regarding If the VRO determines that no further reviewed this rule in light of Executive victims’ rights; (c) contain disciplinary action is necessary, the matter will be Order 12866, section 1(b), Principles of sanctions for willful and wanton failure closed. Regulation. The Department of Justice to comply with obligations regarding The VRO, upon either review of the has determined that this rule is a victims’ rights; and (d) provide that the POC’s investigation or his own further ‘‘significant regulatory action’’ under Attorney General or his designee shall investigation, may require an employee Executive Order 12866, section 3(f)(4), be the final arbiter of a complaint. to undergo training on the obligations of Regulatory Planning and Review. In order to implement this statutory Department employees regarding Accordingly, this rule has been directive, this proposed rule creates a victims’ rights. If, upon either review of reviewed by the Office of Management new section in part 45, Employee the POC’s investigation or his own and Budget. Responsibilities, of title 28, Judicial further investigation, the VRO In particular, the Department has Administration, of the Code of Federal determines that the employee has assessed both the costs and benefits of Regulations. Proposed § 45.10 creates willfully or wantonly violated a crime this rule as required by Executive Order the office of the Victims’ Rights victim’s rights, the VRO is authorized to 12866 section 1(b)(6) and has made a Ombudsman (VRO) within the recommend, in conformity with laws reasoned determination that the benefits Executive Office for United States and regulations regarding employee of this regulation justify its costs. The Attorneys (EOUSA) and designates the discipline, a range of disciplinary costs that the Department considered VRO as the administrative authority sanctions to the head of the office in included the costs to victims of within the Department to receive and which the employee is located, or to the submitting complaints to the POC and investigate complaints relating to the official who has been designated by VRO, the costs to the employees of provision or violation of the rights of a Department of Justice regulations and participating in the complaint and crime victim. The proposed rule procedures to take action on disciplinary process, and the costs to
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the Federal Government of creating and information, should be directed to employees to provide rights to crime maintaining the VRO office. The Brenda Dyer, Clearance Officer, Policy victims under 18 U.S.C. 3771. The benefits considered by the Department and Planning Staff, Justice Management official shall be called the Department of are that the purpose of the Act and of Division, Department of Justice, 601 D Justice Victims’ Rights Ombudsman these regulations is to protect victims’ Street, NW., Washington, DC 20530. (VRO). The VRO shall then designate, in rights. The Department believes that the consultation with each office of the List of Subjects in 28 CFR Part 45 costs imposed by these regulations are Department of Justice, an official in each justified by the benefits. Employee responsibilities; Victims’ office to serve as the initial point of rights. contact (POC) for complainants. Executive Order 13132 Accordingly, for the reasons stated in (c) Complaint process. (1) Complaints This regulation will not have the preamble, the Department of Justice must be submitted in writing to the POC substantial direct effects on the States, proposes to amend 28 CFR chapter I of the relevant office or offices of the on the relationship between the Federal part 45 as follows: Department of Justice. If a complaint Government and the States, or on the alleges a violation by the POC, the distribution of power and PART 45—EMPLOYEE complaint must be forwarded by the responsibilities among the various RESPONSIBILITIES POC to the VRO. levels of government. Therefore, in 1. The authority citation for part 45 is (2) Complaints shall contain: accordance with Executive Order 13132, revised to read as follows: (i) The name and personal contact it is determined that this rule does not information of the crime victim who have sufficient federalism implications Authority: 5 U.S.C. 301, 7301; 18 U.S.C. allegedly was denied one or more crime to warrant the preparation of a 207, 3771; 28 U.S.C. 503, 528; DOJ Order 1735.1. victims’ rights; Federalism Assessment. (ii) The name and contact information 2. Part 45 is amended by adding new Executive Order 12988 of the Department of Justice employee § 45.10 to read as follows: who is the subject of the complaint, or This regulation meets the applicable other identifying information if the standards set forth in sections 3(a) and § 45.10 Procedures to promote compliance with crime victims’ rights obligations. complainant is not able to provide the 3(b)(2) of Executive Order 12988, Civil name and contact information; Justice Reform. (a) Definitions. The following definitions shall apply with respect to (iii) The district court case number; Unfunded Mandates Reform Act of this section, which implements the (iv) The name of the defendant in the 1995 provisions of the Justice for All Act that case; This rule will not result in the relate to protection of the rights of crime (v) The right or rights listed in 18 expenditure by State, local and tribal victims. See 18 U.S.C. 3771. U.S.C. 3771 that the Department of governments, in the aggregate, or by the Crime victim means a person directly Justice employee is alleged to have private sector, of $100,000,000 or more and proximately harmed as a result of violated; and in any one year, and it will not the commission of a Federal offense or (vi) Specific information regarding the significantly or uniquely affect small an offense in the District of Columbia. circumstances of the alleged violation governments. Therefore, no actions were In the case of a crime victim who is sufficient to enable the POC to conduct deemed necessary under the provisions under 18 years of age, incompetent, an investigation, including, but not of the Unfunded Mandates Reform Act incapacitated, or deceased, the legal limited to: The date of the alleged of 1995. guardians of the crime victim or the violation; an explanation of how the representatives of the crime victim’s alleged violation occurred; whether the Small Business Regulatory Enforcement estate, family members, or any other complainant notified the Department of Fairness Act of 1996 persons appointed as suitable by the Justice employee of the alleged This rule is not a major rule as court, may assume the crime victim’s violation; how and when such defined by section 251 of the Small rights, but in no event shall the notification was provided to the Business Regulatory Enforcement defendant be named as such guardian or Department of Justice employee; and Fairness Act of 1996. 5 U.S.C. 804. This representative. actions taken by the Department of rule will not result in an annual effect Crime victims’ rights means those Justice employee in response to the on the economy of $100,000,000 or rights provided in 18 U.S.C. 3771. notification. more; a major increase in costs or prices; Employee of the Department of Justice (3) Complaints must be submitted or significant adverse effects on means an attorney, investigator, law within 30 days of the alleged violation, competition, employment, investment, enforcement officer, or other personnel unless the victim demonstrates good productivity, innovation, or on the employed by any division or office of cause for the delay. ability of United States-based the Department of Justice whose regular (4)(i) In response to a complaint that companies to compete with foreign- course of duties includes direct provides the information required under based companies in domestic and interaction with crime victims, not paragraph (c)(2) of this section and that export markets. including a contractor. makes a prima facie case of a violation Office of the Department of Justice of a right under 18 U.S.C. 3771, the POC Paperwork Reduction Act means a component of the Department shall investigate the allegation(s) in the This proposed rule is exempt from the of Justice whose employees directly complaint. requirements of the Paperwork interact with crime victims in the (ii) The POC shall send a written Reduction Act under 5 CFR 1320.4(1) regular course of their duties. report of the results of the investigation because it relates to the conduct of a (b) The Attorney General shall to the VRO, along with a statement by Federal criminal investigation or designate an official within the the victim as to whether or not the prosecution. Executive Office for United States victim is satisfied that the complaint has All comments and suggestions Attorneys (EOUSA) to receive and been resolved. The report shall not be relating to the Paperwork Reduction investigate complaints alleging the available for review by the complainant Act, or questions regarding additional failure of Department of Justice or the Department of Justice employee,
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unless required by other Federal include all sanctions provided under requesting arbitration lists and panels, personnel laws or regulations. the Department of Justice Human and the nomination of arbitrators. (5) Upon receipt of the POC’s report Resources Order, 1200.1, part 3, chapter Pursuant to 29 U.S.C. 171(b) and 29 of the investigation, the VRO shall 1. CFR part 1404, FMCS offers panels of determine whether to close the Dated: June 30, 2005. arbitrators for selection by labor and complaint without further action, management to resolve grievances and whether further investigation is Alberto R. Gonzales, disagreements arising under their warranted, or whether action in Attorney General. collective bargaining agreements and to accordance with paragraphs (d) or (e) of [FR Doc. 05–13322 Filed 7–6–05; 8:45 am] deal with the fact finding and interest this section is necessary. BILLING CODE 4410–19–P (6) Where the VRO concludes that arbitration issues as well. further investigation is warranted, he Title II of the Labor Management may conduct such further investigation. Relations Act of 1947 (Pub. L. 90–101) FEDERAL MEDIATION AND Upon conclusion of the investigation, as amended in 1959 (Pub. L. 86–257) CONCILIATION SERVICE the VRO may close the complaint if he and 1974 (Pub. L. 93–360), states that it determines that no further action is 29 CFR Part 1404 is the labor policy of the United States warranted or may take action under that ‘‘the settlement of issues between paragraph (d) or (e) of this section. Proposed Changes to Arbitration employers and employees through (7) The VRO shall be the final arbiter Policies, Functions, and Procedures collective bargaining may be advanced of the complaint. by making available full and adequate (8) A complainant may not seek AGENCY: Federal Mediation and governmental facilities for conciliation, judicial review of the VRO’s Conciliation Service. mediation, and voluntary arbitration to determination regarding the complaint. ACTION: Proposed rule. encourage employers and (9) To the extent permissible in representatives of their employees to SUMMARY: accordance with the Privacy Act and The Federal Mediation and reach and maintain agreements Conciliation Service (FMCS) is other relevant statutes and regulations concerning rates of pay, hours, and proposing to amend 29 CFR part 1404, regarding release of information by the working conditions, and to make all Arbitration Services. The amendments Federal Government, the VRO, in his reasonable efforts to settle their are intended to set forth the criteria and discretion, may notify the complainant differences by mutual agreement procedures for listing on the arbitration of the result of the investigation. reached through conferences and (10) The POC and the VRO shall refer roster, removal from the arbitration collective bargaining or by such to the Office of the Inspector General roster, and expedited arbitration methods as may be provided for in any and to the Office of Professional processing. Other changes include how applicable agreement for the settlement Responsibility any matters that fall parties may request arbitration lists or of disputes.’’ Under its regulations at 29 under those offices’ respective panels and fees associated with the CFR part 1404, FMCS has established jurisdictions that come to light in an arbitrators. The purpose of these policies and procedures for its investigation. changes is to facilitate the management arbitration function dealing with all (d) If the VRO deems it necessary in and administration of the arbitration arbitrators listed on the FMCS Roster of response to an investigation, he may roster. FMCS is soliciting comments on Arbitrators, all applicants for listing on require employees or offices of the the proposed changes described below. the Roster, and all person or parties Department of Justice to undergo DATES: Written comments must be seeking to obtain from FMCS either training on victims’ rights. submitted to the office listed in the (e) Disciplinary procedures. (1) If, names or panels of names of arbitrators address section below on or before listed on the Roster in connection with based on the investigation, the VRO August 8, 2005. determines that a Department of Justice disputes which are to be submitted to ADDRESSES: Submit comments to the employee has wantonly or willfully arbitration or fact-finding. FMCS strives Maria A. Fried, General Counsel, failed to provide the complainant with to maintain the highest quality of Federal Mediation and Conciliation a right listed in 18 U.S.C. 3771, the VRO dispute resolution experts on its roster. Service, 2100 K Street, NW., shall recommend, in conformity with FMCS now proposes to amend 29 CFR Washington, DC 20427. Comments may laws and regulations regarding part 1404 to update its procedures and be submitted also by fax at (202) 606– employee discipline, a range of facilitate the maintenance and 5345 or electronic mail (e-mail) to disciplinary sanctions to the head of the administration of its arbitration roster. [email protected]. All comments and office of the Department of Justice in data in electronic form must be Access to Information in Comments which the employee is located, or to the identified by the appropriate agency official who has been designated by Information submitted as a comment form number. Department of Justice regulations and concerning this document may be procedures to take action on FOR FURTHER INFORMATION CONTACT: claimed confidential by marking any disciplinary matters for that office. The Maria A. Fried, General Counsel and part or all of the information as ‘‘CBI.’’ head of that office of the Department of Federal Register Liaison, FMCS, 2100 K Information so marked will not be Justice, or the other official designated Street, NW., Washington, DC 20427. disclosed but a copy of the comment by Department of Justice regulations and Telephone (202) 606–5444, FAX (202) that does contain CBI must be submitted procedures to take action on 606–5345. for inclusion in the public record. FMCS disciplinary matters for that office, shall SUPPLEMENTARY INFORMATION: FMCS may disclose information not marked be the final decision-maker regarding proposes to amend 29 CFR part 1404. confidential without prior notice. All the disciplinary sanction to be imposed, The original regulation was issued in written comments will be available for in accordance with applicable laws and June 1997. The amendments set forth inspection in Room 704 at the regulations. procedures for the listing and removal Washington, DC address above from (2) Disciplinary sanctions available of arbitrators from the arbitration roster 8:30 a.m. to 4:30 p.m., Monday through under paragraph (e)(1) of this section maintained by FMCS, procedures for Friday, excluding legal holidays.
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Electronic Access and Filing PART 1404—ARBITRATION SERVICES provide names or panels of names for a fee. Procedures for obtaining these All comments and data in electronic Subpart A—Arbitration Policy: services are outlined in subpart C of this form must be identified by the Administration of Roster part. Neither the submission of a appropriate agency form number. No nomination or panel nor the confidential business information (CBI) 1. The authority citation for part 1404 continues to read as follows: appointment of an arbitrator constitutes should be submitted through e-mail. a determination by FMCS that an Authority: 29 U.S.C. 172 and 29 U.S.C. 173 Regulatory Flexibility Act agreement to arbitrate or enter fact- et. seq. finding proceedings exists; nor does The Director, in accordance with the 2. In § 1404.3, paragraph (c)(1)(iv) is such action constitute a ruling that the Regulatory Flexibility Act (5 U.S.C. revised and (v) is added to read as matter in controversy is arbitrable under 606(b)), has reviewed this regulation follows: any agreement. and by approving it certifies that this § 1404.3 Administrative responsibilities. * * * * * regulation will not have a significant 4. In § 1404.5, the section heading, the economic impact on a substantial * * * * * introductory text, paragraphs (a), (b), (c), number of small entities. The fees (c) Arbitrator Review Board. The (d) introductory text, (d)(5), (d)(6), assessed by FMCS for requests for Arbitrator Review Board (Board) shall (d)(7), (e) and (f) are revised to read as panels are nominal and should not consist of a chairperson and members follows: cause any significant economic effect on appointed by the Director who shall § 1404.5 Listing on the roster, criteria for small entities which may request serve at the Director’s pleasure. (1) Duties of the Board. The Board listing and removal, procedure for removal. arbitration panels. shall: Persons seeking to be listed on the Executive Order 12866 * * * * * Roster must complete and submit an (iv) At the request of the Director of application form that may be obtained This regulation has been deemed FMCS, or upon its own volition, review from OAS. Upon receipt of an executed significant under Section 3(f)(3) of E.O. arbitration policies and procedures, application, OAS will review the 12866 and as such has been submitted including all regulations and written application, assure that it is complete, to and reviewed by the Office of guidance regarding the use of the FMCS make such inquiries as are necessary, Management and Budget. arbitrators, and make recommendations and submit the application to the Board. Unfunded Mandates Reform Act of regarding such policies and procedures The Board will review the completed 1995 to the Director; and application under the criteria in (v) Review the qualifications of all paragraphs (a), (b) and (c) of this This rule will not result in the persons who request a review in section, and will forward to the FMCS expenditure by State, local and tribal anticipation of attending the FMCS- Director its recommendation as to governments, in the aggregate, or by the sponsored labor arbitrator training whether or not the applicant meets the private sector, of $100,000,000 or more course, interpreting and applying the criteria for listing on the Roster. The in any one year, and it will not criteria set forth in § 1404.5. Director shall make all final decisions as significantly or uniquely affect small * * * * * to whether an applicant may be listed governments. Therefore, no actions were on the Roster. Each applicant shall be deemed necessary under the provisions Subpart B—Roster of Arbitrators: notified in writing of the Director’s of the Unfunded Mandates Reform Act Admission and Retention decision and the reasons therefore. of 1995. (a) General Criteria. (1) Applicants 3. In § 1404.4, paragraphs (b) and (e) will be listed on the Roster upon a Small Business Regulatory Enforcement are revised to read as follows: determination that he or she: Fairness Act of 1996 § 1404.4 Roster and status of members. (i) Is experienced, competent and acceptable in decision-making roles in * * * * * This rule is not a major rule as the resolution of labor relations (b) Adherence of Standards and defined by section 804 of the Small disputes; or Business Regulatory Enforcement Requirements. Persons listed on the (ii) Has extensive and recent Fairness Act of 1996. This rule will not Roster shall comply with FMCS rules experience in relevant positions in result in an annual effect on the and regulations pertaining to arbitration collective bargaining; and economy of $100,000,000 or more; a and with such guidelines and (iii) Is capable of conducting an major increase in costs or prices; or procedures as may be issued by the OAS orderly hearing, can analyze testimony significant adverse effects on pursuant to Subpart C of this Part. and exhibits and can prepare clear and competition, employment, investment, Arbitrators shall conform to the ethical concise findings and awards within productivity, innovation, or on the standards and procedures set forth in reasonable time limits. ability of the United States-based the Code of Professional Responsibility (iv) For applicants who are companies to compete with Foreign for Arbitrators of Labor Management governmental employees, the following based companies in domestic and Disputes, as approved by the National criteria shall also apply: export markets. Academy of Arbitrators, Federal (A) Federal Employees: These Mediation and Conciliation Service, and applicants must provide the OAS with List of Subjects in 29 CFR Part 1404 the American Arbitration Association written permission from their employer (Code). Administrative practice and to work as an arbitrator. Federal procedure, Labor management relations. * * * * * employees will not be assigned to (e) Nominations and Panels. On panels involving the Federal For the reasons stated in the request of the parties to an agreement to Government. preamble, the Federal Mediation and arbitrate or engage in fact-finding, or (B) Governmental Employees other Conciliation Service proposes to amend where arbitration or fact-finding may be than Federal: These applicants must 29 CFR Part 1404 as follows: provided for by statute, OAS will provide the OAS with written
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permission from their employer to work indirectly associated with an advocate who has violated any of the criteria in as an arbitrator as well as a statement of in a business or professional paragraph (d) of this section. Arbitrators the jurisdiction(s) in which the relationship as, for example, partners or shall be promptly notified of a applicant is permitted to do this work. employees of a law firm. Individuals suspension. The arbitrator may appeal a (2) FMCS may identify certain engaged only in joint education or suspension to the Board, which shall positions relating to collective training or other non-adversarial make a recommendation to the Director bargaining that will substitute for the activities will not be deemed as of FMCS. The decision of the Director General Criteria. FMCS may also advocates. of FMCS shall constitute the final action identify periodic educational (d) Listing on Roster, Removal. Listing of the agency. requirements for remaining on the on the Roster shall be by decision of the 5. Section 1404.6 is revised to read as Roster. Director of FMCS based upon the follows: (b) Proof of Qualification. The recommendations of the Board or upon qualifications listed in paragraph (a) of the Director’s own initiative. The Board § 1404.6 Inactive status. this section are preferably demonstrated may recommend for removal, and the A member of the Roster who by the submission of five recent Director may remove, any person listed continues to meet the criteria for listing arbitration awards prepared by the on the Roster, for violation of this Part on the Roster may request that he or she applicant while serving as an impartial and/or the Code. The reasons for be put in an inactive status on a arbitrator of record chosen by the parties removal include whenever a member of temporary basis because of ill health, to labor relations disputes arising under the Roster: vacation, schedule, or other reasons. If collective bargaining agreements, or the * * * * * the inactive status lasts longer than two successful completion of the FMCS (5) Has been the subject of a (2) years and the arbitrator has not paid labor arbitrator training course plus complaint by parties who use FMCS the annual listing fee, the arbitrator will three awards as described above, and then be removed from the Roster. the submission of information services and the Board, after appropriate demonstrating extensive and recent inquiry, concludes that cause for Subpart C—Procedures for Arbitration experience in collective bargaining, removal has been shown; Services including at least the position or title (6) Is determined to be unacceptable held, duties or responsibilities, the to the parties who use FMCS arbitration 6. In § 1404.9, paragraphs (a), (b), (e) name and location of the company or services. Such a determination of and (f) are revised and paragraph (h) is organization, and the dates of unacceptability may be based on FMCS added to read as follows: employment. records which show the number of times the arbitrator’s name has been § 1404.9 Procedures for requesting (c) Advocacy. Any person who at the arbitration lists and panels. time of application is an advocate as proposed to the parties and the number (a) The Office of Arbitration Services defined in paragraph (c)(1) of this of times he or she has been selected. (OAS) has been delegated the section, must agree to cease such Such cases will be reviewed for responsibility for administering all activity before being recommended for extenuating circumstances, such as requests for arbitration services. listing on the Roster by the Board. length of time on the Roster or prior Except in the case of persons listed on history; Requests should be addressed to the the Roster as advocates before (7) Has been in an inactive status Federal Mediation and Conciliation November 17, 1976, any person who did pursuant to § 1404.6 for longer than two Service, Office of Arbitration Services, not divulge his or her advocacy at the years. 2100 K Street, NW., Washington, DC time of listing or who becomes an (e) Procedure for Removal. Prior to 20427. advocate while listed on the Roster and any recommendation by the Board to (b) The OAS will refer a panel of who did not request to be placed on remove an arbitrator from the Roster, the arbitrators to the parties upon request. inactive status pursuant to § 1404.6 Board shall conduct an inquiry into the The parties are encouraged to make joint prior to becoming an advocate, shall be facts of any such recommended requests. In the event, however, that the recommended for removal by the Board removal. When the Board recommends request is made by only one party, the after the fact of advocacy is revealed. removal of an arbitrator, it shall send OAS will submit a panel of arbitrators. (1) Definition of Advocacy. An the arbitrator a written notice. This However, the issuance of a panel— advocate is a person who represents notice shall inform the arbitrator of the pursuant to either joint or unilateral employers, labor organizations, or Board’s recommendation and the basis request—is nothing more than a individuals as an employee, attorney, or for it, and that he or she has 60 days response to a request. It does not signify consultant, in matters of labor relations from the date of such notice to submit the adoption of any position by the or employment relations, including but a written response or information FMCS regarding the arbitrability of any not limited to the subjects of union showing why the arbitrator should not dispute or the terms of the parties’ representation and recognition matters, be removed. When the Director removes contract. collective bargaining, arbitration, unfair an arbitrator from the Roster, he or she * * * * * labor practices, equal employment shall inform the arbitrator of this in (e) The parties are required to use the opportunity, and other areas generally writing, stating the effective date of the Request for Arbitration Panel (Form R– recognized as constituting labor or removal and the length of time of the 43), which has been prepared by the employment relations. The definition removal if it is not indefinite. An OAS and is available upon request to includes representatives of employers or arbitrator so removed may seek the Federal Mediation and Conciliation employees in individual cases or reinstatement to the Roster by making Service, Office of Arbitration Services, controversies involving worker’s written application to the Director no Washington, DC 20427, or by calling compensation, occupational health or earlier than two years after the effective (202) 606–5111. Form R–43 is also safety, minimum wage, or other labor date of his or her removal. available on the FMCS Internet Web standards matters. (f) Suspension. The director of OAS site, http://www.fmcs.gov. Requests that (2) This definition of advocate also may suspend for a period not to exceed do not contain all required information includes a person who is directly or 180 days any person listed on the Roster requested on Form R–43 in typewritten
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form or legible handwriting may be 8. In § 1404.12, paragraphs (a) and (c) sketch unless they mutually agree rejected. introductory text are revised to read as otherwise in writing. Arbitrators listed (f) Parties may submit requests for any follows: on the Roster may change the bases for their fees and expenses if they provide standard geographical arbitration panels § 1404.12 Selection by parties and electronically by accessing the agency’s appointments of arbitrators. them in writing to OAS at least 30 days in advance. Internet Web site, http://www.fmcs.gov, (a) After receiving a panel of names, (b) Dual Addresses. Arbitrators with and receive panels via e-mail, fax or the parties must notify the OAS of their dual business addresses must bill the mail. Panel requests that contain certain selection of an arbitrator or of the parties for expenses from the lesser special requirements may not be decision not to proceed with arbitration. expensive business address to the processed via the agency’s internet Upon notification of the selection of an hearing site. system. Parties must provide all arbitrator, the OAS will make a formal required information and must pay the appointment of the arbitrator. The (c) Additional Administrative Fee. In cost of such panels using methods of arbitrator, upon notification of cases involving unusual amounts of payment that are accepted by the appointment, shall communicate with time and expense relative to the pre- agency. the parties within 14 days to arrange for hearing and post-hearing administration * * * * * preliminary matters, such as the date of a particular case, the arbitrator may charge an administrative fee. This fee (h) The OAS will charge a fee for all and place of hearing. Should an shall be disclosed to the parties as soon requests for lists, panels, and other arbitrator be notified directly by the as it is foreseeable by the arbitrator. major services. Payments for these parties that he or she has been selected, services must be received with the the arbitrator must promptly notify the (d) Fee Disputes. The OAS requests request for services before the service is OAS of the selection and his or her that it be notified of an arbitrator’s delivered and may be paid by either willingness to serve. If the parties settle deviation from this Part. While the OAS labor or management or both. A a case prior to the hearing, the parties does not resolve individual fee disputes, schedule of fees is listed in the must inform the arbitrator as well as the repeated complaints concerning the fees appendix to this part. OAS. Consistent failure to follow these charged by an arbitrator will be brought to the attention of the Board for 7. In § 1404.11, paragraphs (c) procedures may lead to a denial of future OAS service. consideration. Similarly, complaints by introductory text, (c)(2) and (d) are arbitrators concerning non-payment of revised to read as follows: * * * * * fees by the parties may lead to the (c) Where the parties’ collective denial of services or other actions by the § 1404.11 Nominations of arbitrators. bargaining agreement is silent on the OAS. * * * * * manner of selecting arbitrators, the 11. In § 1404.16, paragraph (b) is (c) The OAS will provide a randomly parties may wish to consider any jointly revised to read as follows: selected panel of arbitrators located in determined or one of the following geographical areas in proximity of the methods for selection of an arbitrator § 1404.16 Reports and biographical hearing site. The parties may request from a panel: sketches. special qualification of arbitrators * * * * * * * * * * experienced in certain issues or 9. In § 1404.14, paragraph (c) is (b) The OAS will provide parties with industries or that possess certain revised to read as follows: biographical sketches for each arbitrator backgrounds. The OAS has no § 1404.14 Decision and award. on the Roster from information supplied obligation to put an individual on any by the arbitrator in conformance with given panel or on a minimum number * * * * * this section and § 1404.15. The OAS (c) Within 15 days after an award has of panels in any fixed period. In general: reserves the right to decide and approve been submitted to the parties, the * * * * * the format and content of biographical arbitrator shall submit an Arbitrator’s sketches. (2) If at any time both parties request Report and Fee Statement (Form R–19) that a name or names be included, or to OAS showing a breakdown of the fee Subpart D—Expedited Arbitration omitted, from a panel, such name or and expense charges for use in the event names will be included, or omitted, the OAS decides to review conformance 12. §1404.17 is revised to read as unless the number of names is with the basis for the arbitrator’s fees follows: excessive. These inclusions/exclusions and expenses as stated in the § 1404.17 Policy. may not discriminate against anyone biographical sketch. because of age, race, gender, national * * * * * In an effort to reduce the time and origin, disability, or religion. 10. Section 1404.15 is revised to read expense of some grievance arbitrations, (d) If the parties do not agree on an as follows: FMCS offers expedited procedures that arbitrator from the first panel, the OAS may be appropriate in certain non- will furnish second and third panels to § 1404.15 Fees and charges of arbitrators. precedential cases or those that do not the parties upon joint request, or upon (a) Fees to Parties. Prior to involve complex or unique issues. a unilateral request if authorized by the appointment, the parties should be Expedited arbitration is intended to be applicable collective bargaining aware of all significant aspects of the a mutually agreed-upon process agreement, and payment of additional bases for an arbitrator’s fees and whereby arbitrator appointments, fees. Requests for second or third panels expenses. Each arbitrator’s biographical hearings and awards are acted upon should be accompanied by a brief sketch shall include a statement of the quickly by the parties, FMCS, and the explanation as to why the previous bases for the arbitrator’s fees and arbitrators. Mandating short deadlines panel(s) was inadequate. In addition, if expenses, which shall conform to this and eliminating requirements for parties are unable to agree on a selection part and the Code. The parties and the transcripts, briefs and lengthy opinions after having received three panels, the arbitrator shall be bound by the streamline the process. OAS will make a direct appointment arbitrator’s statement of the bases for 13. In § 1404.18, paragraph (b) is upon joint request. fees and expenses in the biographical revised to read as follows:
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§ 1404.18 Procedures for requesting Room 1068, Washington, DC 20420; fax subsection (a) that certain veterans are expedited panels. to (202) 273–9026; e-mail to permitted to receive concurrent * * * * * [email protected]; or, through payment of military retired pay and (b) Upon receipt of a joint Request for http://www.Regulations.gov. Comments veterans’ disability compensation, Arbitration Panel (Form R–43) should indicate that they are submitted notwithstanding sections of the law that indicating that both parties desire in response to ‘‘RIN 2900–AM13.’’ All prohibit the duplication of benefits and expedited services, the OAS will refer a comments received will be available for require a waiver of military retired pay panel of arbitrators. public inspection in the Office of to receive disability compensation. (See * * * * * Regulation Policy and Management, 38 U.S.C. 5304, 5305.) Subject to the Room 1063B, between the hours of 8 exception for retirees receiving § 1404.20 [Removed] a.m. and 4:30 p.m., Monday through compensation for a disability rated as 14. Section 1404.20 is removed. Friday (except holidays). Please call 100 percent, from January 1, 2004, until (202) 273–9515 for an appointment. December 31, 2013, payment to § 1404.21 [Redesignated as § 1404.20] FOR FURTHER INFORMATION CONTACT: qualified retirees will be subject to a 15. Section 1404.21 is redesignated as Adrienne Foster, Consultant, mathematical formula for the phase-in § 1404.20. Compensation and Pension Service of full concurrent receipt. (See 10 U.S.C. Dated: June 27, 2005. (211), Veterans Benefits Administration, 1414(c).) Maria A. Fried, Department of Veterans Affairs, 810 Special provisions, administered by General Counsel and Federal Register Vermont Ave., NW., Washington, DC DoD, exist with respect to concurrent Contact. 20420, (202) 273–7051. receipt for Chapter 61 Disability [FR Doc. 05–13362 Filed 7–6–05; 8:45 am] Retirees. (See 10 U.S.C. 1201–1221.) A SUPPLEMENTARY INFORMATION: Section veteran, retired under Chapter 61 with BILLING CODE 6732–01–M 641 of the National Defense 20 or more years of service, must waive Authorization Act for Fiscal Year 2004 a portion of his or her disability retired (the Act), Public Law 108–136, amended pay to receive disability compensation. DEPARTMENT OF VETERANS section 1414 of title 10, United States Veterans retired under Chapter 61 with AFFAIRS Code. Section 641 permits certain less than 20 years of service are not veterans who are eligible for military entitled to this benefit. 38 CFR Part 3 retired pay and for veterans’ disability RIN 2900–AM13 compensation for a single service- Regulations Affected by the Amended connected disability rated at 50 percent Section 1414 Phase-In of Full Concurrent Receipt of or higher, or a combination of service- The Act amends 10 U.S.C. 1414, Military Retired Pay and Veterans connected disabilities rated 50 percent which affects 38 CFR 3.750. The title of Disability Compensation for Certain or higher, to receive concurrent § 3.750 is ‘‘Retirement pay.’’ We propose Military Retirees payment of both military retired pay to change the title of § 3.750 to and disability compensation. Public ‘‘Entitlement to concurrent receipt of AGENCY: Department of Veterans Affairs. Law 108–136 establishes a phase-in military retired pay and disability ACTION: Proposed rule. period from January 1, 2004, to compensation.’’ This title more clearly SUMMARY: The Department of Veterans December 31, 2013, during which the conveys the content of the revised Affairs (VA) is proposing to amend its monthly amount of military retired pay regulation. regulations concerning concurrent payable to a qualified retiree will Current § 3.750(a) prohibits receipt of military retired pay and gradually increase. Section 642 of the concurrent receipt of military retired veterans’ disability compensation. This Ronald W. Reagan National Defense pay and disability compensation. proposed rule implements section 641 Authorization Act for Fiscal Year 2005, Proposed paragraph (a) defines military of the National Defense Authorization Public Law 108–375, amended section retired pay. Act for Fiscal Year 2004 (Public Law 1414 of title 10, United States Code, by Current paragraph (b) provides for 108–136). This law permits certain eliminating the phase-in period for election between military retired pay veterans who are entitled to military retirees receiving compensation for a and disability compensation. We retired pay and are receiving disability disability rated as 100 percent. propose to move the information compensation for a service-connected This amendment concerns contained in current paragraph (b) to disability or disabilities rated at 50 entitlements administered by the proposed paragraph (d). We propose in percent or higher to receive disability Department of Defense (DoD) as well as paragraph (b)(1), consistent with compensation as well as their military VA. DoD must determine the phase-in amended 10 U.S.C. 1414(a), to state that retired pay. The intended effect of the amount for concurrent receipt. qualified veterans with a disability or proposed regulation is to clearly state Regulations pertinent to this calculation disabilities rated at 50 percent or higher who is eligible for concurrent receipt of or other matters specifically dealing are entitled to concurrent receipt of both disability compensation and military with the receipt of military retired pay military retired pay and disability retired pay, who must still waive are the responsibility of DoD and are compensation benefits. To comply with amended 10 U.S.C. military retired pay to receive disability outside the scope of this proposed 1414(b), we propose in paragraph (b)(2) compensation, and how to file such a rulemaking. Section 1414(c) provides to state that veterans who retire under waiver. for the phase-in until December 31, 2013. (See 10 U.S.C. 1414(c).) This 10 U.S.C. Chapter 61 with 20 or more DATES: Comments must be received on proposed rulemaking is solely related to years of creditable service must waive a or before September 6, 2005. the effect of this law on VA’s portion of their disability retired pay to ADDRESSES: Written comments may be compensation payments. receive disability compensation, but submitted by: mail or hand-delivery to only to the extent that disability retired Director, Regulations Management Background pay exceeds the amount of retired pay (00REG1), Department of Veterans Section 1414 of title 10, U.S.C., as they would have received had they Affairs, 810 Vermont Avenue, NW., amended by the Act, provides in retired based on length of service.
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We propose in paragraph (b)(3) to We have not included the provisions Approved: March 24, 2005. state that Chapter 61 disability retirees in § 3.750(d)(2) that state that recipients R. James Nicholson, who have less than 20 years of of old-law or section 306 pension must Secretary of Veterans Affairs. creditable service are not entitled to waive an equivalent amount of military For the reasons set forth in the concurrent receipt. retired pay. We propose to remove this preamble, 38 CFR part 3 is proposed to Proposed paragraph (b)(4) is a section because no one may elect to be amended as follows: restatement, in plain language, of the receive old-law or section 306 pension, rule in current paragraph (d) that and the number of individuals that PART 3—ADJUDICATION recipients of improved pension are currently receive such pensions because entitled to receive military retired pay at they waived retired pay is very small. Subpart A—Pension, Compensation, the same time, but that in determining This deletion would not effect the and Dependency and Indemnity entitlement to improved pension, entitlement of current beneficiaries. Compensation military retired pay will be treated as Should the occasion arise, VA will 1. The authority citation for part 3, countable income. adjudicate any new claim relying on subpart A continues to read as follows: Proposed paragraph (c) would amend existing statutory authority. the requirement that a veteran file a Authority: 38 U.S.C. 501(a), unless Paperwork Reduction Act otherwise noted. waiver of military retired pay in order to receive compensation benefits. All This document contains no provisions 2. Revise § 3.750 to read as follows: veterans eligible to receive military constituting a collection of information § 3.750 Entitlement to concurrent receipt retired pay and disability compensation, under the Paperwork Reduction Act (44 of military retired pay and disability but who are not qualified to receive U.S.C. 3501–3521). compensation. them at the same time, must file a Regulatory Flexibility Act (a) Definition of military retired pay. waiver of retired pay in order to receive For the purposes of this section, military compensation. Additionally, during the The Secretary hereby certifies that retired pay is payment received by a phase-in period, veterans must file a this proposed regulatory amendment veteran that is classified as military waiver even if they are eligible for would not have a significant economic retired pay by the Service Department, concurrent receipt. By waiving military impact on a substantial number of small including retainer pay, based on the retired pay, eligible veterans will entities as they are defined in the recipient’s service as a member of the receive full disability compensation Regulatory Flexibility Act, 5 U.S.C. 601– Armed Forces or as a commissioned payments plus the appropriate phase-in 612. This proposed amendment would officer of the Public Health Service, the amount of military retired pay from not directly affect any small entities. Coast and Geodetic Survey, the DoD. The phase-in period ends on Only VA beneficiaries could be directly Environmental Science Services December 31, 2013, and effective on affected. Therefore, pursuant to 5 U.S.C. Administration, or the National Oceanic January 1, 2014, a veteran eligible for 605(b), this proposed amendment is and Atmospheric Administration. concurrent receipt will no longer be exempt from the initial and final (b) Payment of both military retired required to file a waiver. regulatory flexibility analysis pay and disability compensation or We propose in paragraph (c) to state requirements of sections 603 and 604. improved pension—(1) Compensation. that a veteran may file the waiver with Executive Order 12866 Subject to paragraph (b)(2) of this VA rather than requiring the veteran to section, a veteran with 20 or more file it with the service department. This This document has been reviewed by creditable years of military service who reflects current VA practice, and we the Office of Management and Budget is entitled to military retired pay and believe it would be helpful to inform under Executive Order 12866. disability compensation for a service- veterans of this practice. The proposed Unfunded Mandates connected disability rated 50 percent or rule also describes what actions on the more, or a combination of service- part of a claimant will be construed as The Unfunded Mandates Reform Act connected disabilities rated at 50 a waiver of military retired pay. In of 1995 requires, at 2 U.S.C. 1532, that percent or more, under the schedule for paragraph (c)(1), we propose to describe agencies prepare an assessment of rating disabilities (38 CFR part 4, how one files a waiver of military anticipated costs and benefits before subpart B), is entitled to receive both retired pay. Paragraph (c)(2) would developing any rule that may result in payments subject to the phase-in period restate, in plain language, the rule in an expenditure by State, local, or tribal described in paragraph (c) of this current paragraph (c), that filing an governments, in the aggregate, or by the section. application for VA benefits constitutes private sector, of $100 million or more (2) Chapter 61 disability retirees an election to receive disability (adjusted annually for inflation) in any retiring with 20 or more years of service. compensation and a waiver of military given year. This proposed rule would Disability retired pay payable under 10 retired pay. have no such effect on State, local, or U.S.C. Chapter 61 to a veteran with 20 Proposed paragraph (d)(1) would tribal governments, or the private sector. or more years of creditable service may restate, in plain language, the rule in Catalog of Federal Domestic Assistance be paid concurrently with disability current paragraph (b), that the veteran Program Numbers compensation to a qualifying veteran. may reelect between receipt of military However, in addition to any waiver retired pay and disability compensation The Catalog of Federal Domestic required during the phase-in period and would make clear that this Assistance program numbers for this under paragraph (c)(1)(ii) of this section, reelection may be made at any time. proposed rule are 64.104, 64.105, and the veteran must waive his or her Proposed paragraph (d)(2) would restate 64.110. disability retired pay to receive the rule in current paragraph (b) disability compensation to the extent List of Subjects in 38 CFR Part 3 concerning an election filed within 1 that disability retired pay exceeds the year of the date of notification of VA Administrative practice and amount of retired pay the veteran would entitlement and that rule’s application procedure, Claims, Disability benefits, have received had the veteran retired to incompetent veterans. Pensions, Veterans. based on length of service.
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(3) Chapter 61 disability retirees purposes. See § 3.401(e)(1). If the Broadway, New York, New York 10007– retiring with less than 20 years of veteran is incompetent, the 1-year 1866. service. Veterans who receive disability period will begin on the date that 5. Hand Delivery or Courier. Deliver retired pay under 10 U.S.C. Chapter 61 notification is sent to the next friend or your comments to: EPA Region 2, Air with less than 20 years of creditable fiduciary. In initial determinations, Programs Branch, 290 Broadway, New service are not eligible for concurrent elections may be applied retroactively if York, New York 10007–1866. receipt. the claimant was not advised of his or Instructions: Direct your comments to (4) Improved Pension. A veteran may her right of election and its effect. RME ID Number R02–OAR–2005–NY– 0001. EPA’s policy is that all comments receive improved pension and military (Authority: 38 U.S.C. 5304(a), 5305) retired pay at the same time without received will be included in the public having to waive military retired pay. [FR Doc. 05–13396 Filed 7–6–05; 8:45 am] docket without change and may be However, in determining entitlement to BILLING CODE 8320–01–P made available online at http:// improved pension, VA will treat docket.epa.gov/rmepub, including any military retired pay in the same manner personal information provided, unless as countable income from other sources. ENVIRONMENTAL PROTECTION the comment includes information (c) Waiver—(1) When a waiver is AGENCY claimed to be Confidential Business necessary. (i) A waiver of military Information (CBI) or other information retired pay is necessary in order to 40 CFR Part 81 whose disclosure is restricted by statute. receive disability compensation when a [Region II Docket No. R02–OAR–2005–NY– Do not submit information that you veteran is eligible for both military 0001; FRL–7934–3] consider to be CBI or otherwise retired pay and disability compensation protected through RME, regulations.gov, but does not have a qualifying service- Air Quality Redesignation for the 8- or e-mail. The EPA RME website and connected disability or disabilities rated Hour Ozone National Ambient Air the Federal regulations.gov website are at 50 percent or more. Quality Standards; New York State ‘‘anonymous access’’ systems, which (ii) All veterans who are eligible to means EPA will not know your identity AGENCY: receive both military retired pay and Environmental Protection or contact information unless you disability compensation, except those Agency (EPA). provide it in the body of your comment. receiving compensation for a disability ACTION: Proposed rule. If you send an e-mail comment directly to EPA without going through RME or rated 100 percent, must file a waiver in SUMMARY: On April 15, 2004, we, the regulations.gov, your e-mail address order to receive the maximum allowable Environmental Protection Agency (EPA) amount of disability compensation will be automatically captured and announced nationwide designations included as part of the comment that is during the phase-in period. The phase- under the 8-hour ozone National in period ends on December 31, 2013. placed in the public docket and made Ambient Air Quality Standard available on the Internet. If you submit After December 31, 2013, veterans (NAAQS). That action designated retired under 10 U.S.C. chapter 61 who an electronic comment, EPA several counties in the Syracuse area as recommends that you include your are eligible for concurrent receipt must unclassifiable. The counties in the still file a waiver under the name and other contact information in Syracuse area included in the the body of your comment and with any circumstances described in paragraph designation were Onondaga, Madison, (b)(2) of this section. disk or CD–ROM you submit. If EPA Cayuga and Oswego in the State of New cannot read your comment due to (Authority: 10 U.S.C. 1414, 38 U.S.C. 5304, York. This action proposes to technical difficulties and cannot contact 5305) redesignate the above counties to you for clarification, EPA may not be (2) How to file a waiver of military attainment. We are soliciting comments able to consider your comment. retired pay. A veteran may request a on this proposed action. Electronic files should avoid the use of waiver of military retired pay in any DATES: Comments must be received on special characters, any form of written, signed statement, including a or before August 8, 2005. encryption, and be free of any defects or VA form, which reflects a desire to ADDRESSES: Submit your comments, viruses. waive all or some military retired pay. identified by Regional Material in Docket. All documents in the The statement must be submitted to VA EDocket (RME) ID Number R02–OAR– electronic docket are listed in the RME or to the Federal agency that pays the 2005–NY–0001, by one of the following index at http://docket.epa.gov/rmepub/. veteran’s military retired pay. VA will methods: Although listed in the index, some treat as a waiver an application for VA 1. Federal eRulemaking Portal: information is not publicly available, compensation filed by a veteran who is http://www.regulations.gov. Follow the i.e., CBI or other information whose entitled to military retired pay. on-line instructions for submitting disclosure is restricted by statute. (d) Elections and the right to reelect comments. Certain other material, such as either benefit. (1) A veteran who has 2. Agency Web site: http:// copyrighted material, is not placed on filed a waiver of military retired pay docket.epa.gov/rmepub/. RME, EPA’s the Internet and will be publicly under this section has elected to receive electronic public docket and comment available only in hard copy form. disability compensation. A veteran may system, is EPA’s preferred method for Publicly available docket materials are reelect between benefits covered by this receiving comments. Once in the available either electronically in RME or section at any time by submitting a system, select ‘‘quick search,’’ then key in hard copy at the Environmental written, signed statement to VA or to the in the appropriate RME Docket Protection Agency, Air Programs Federal agency that pays the veteran’s identification number. Follow the on- Branch, 290 Broadway, New York, New military retired pay. line instructions for submitting York. EPA requests that you contact the (2) An election filed within 1 year comments. person listed in the FOR FURTHER from the date of notification of 3. E-mail: [email protected]. INFORMATION CONTACT section to Department of Veterans Affairs 4. Mail: Raymond Werner, Chief, Air schedule your inspection. The entitlement will be considered as Programs Branch, Environmental interested persons wanting to examine ‘‘timely filed’’ for effective date Protection Agency Region 2, 290 these documents should make an
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appointment with the office at least 24 the purpose of this rulemaking, we Office of Management and Budget. For hours in advance. reviewed the ozone data from 2002 this reason, this action is also not FOR FURTHER INFORMATION CONTACT: through 2004. subject to Executive Order 13211, ‘‘Actions Concerning Regulations That Robert Kelly at 212 637 4249, or by e- What New Information Is Available mail at [email protected]. Significantly Affect Energy Supply, Regarding Air Quality in the Syracuse Distribution, or Use’’ (66 FR 28355, May SUPPLEMENTARY INFORMATION: This Metropolitan Area? section provides additional information 22, 2001). This action merely designates On December 14, 2004 the New York by addressing the following questions: an area for planning purposes based on State Department of Environmental air quality, and does not establish any What Is the Background for This Action? Conservation submitted the quality new regulations. Accordingly, the What are the statutory requirements for assured 8-hour ozone data for 2004, the Administrator certifies that this rule designations and redesignations and what are most recent ozone season; certified the will not have a significant economic EPA’s regulatory requirements and policy regarding redesignations? ozone data as correct, complete and impact on a substantial number of small What new information is available appropriate for regulatory use; and entities under the Regulatory Flexibility regarding air quality in the Syracuse requested that EPA redesignate the Act (5 U.S.C. 601 et seq.). The metropolitan area? Syracuse area from unclassifiable to redesignation is an action which affects What about Syracuse’s air quality in the attainment. The counties included in the status of a geographic area but does future? the redesignation request include not impose any new requirements on What action is EPA taking in regard to the Onondaga, Madison, Cayuga, and governmental entities or sources. designation of the Syracuse area? Oswego Counties. Therefore because it does not impose What Is the Background for This Consistent with 40 CFR part 50, any additional enforceable duty, it does Action? Appendix I, section 2.3, paragraph not contain any unfunded mandate or (d)(1), the 8-hour ozone standard is met significantly or uniquely affect small On April 15, 2004, the Administrator if the three year average value of the governments, as described in the of the EPA signed a final rule (69 FR annual fourth-highest daily maximum Unfunded Mandates Reform Act of 1995 23858; April 30, 2004) announcing the (the design value) is less than 0.085 (Pub. L. 104–4). designations under the 8-hour ozone parts per million (ppm). For the 2002– The Onondaga and Oneida Tribes are NAAQS. That action designated several 2004 time period, the design values at located within the Syracuse area. The counties in the Syracuse area as monitors in the Syracuse area are 0.079 redesignation of the Syracuse area from unclassifiable and provided that the ppm at East Syracuse and 0.077 ppm at unclassifiable to attainment will not designation was effective on June 15, Camp Georgetown, indicating that the 8- create any new or burdensome 2004. The Syracuse area designation hour ozone NAAQS has been attained at requirements upon the tribes. Therefore, was based on the review of ozone data all monitors in the Syracuse this redesignation does not have tribal from 2001 through 2003. The counties metropolitan area. implications because it will not have a in the Syracuse area designated as substantial direct effect on one or more unclassifiable are Onondaga, Madison, What About Syracuse’s Air Quality in Indian tribes, on the relationship Cayuga, and Oswego in New York State. the Future? between the Federal Government and In that action, we stated that we would The design value at the Syracuse Indian tribes, or on the distribution of review all available information and monitor was less than 0.085 ppm for ten power and responsibilities between the make an attainment or nonattainment years before 2003, so it is unlikely to Federal Government and Indian tribes, decision after reviewing the 2004 ozone violate the 8-hour standard in the as specified by Executive Order 13175 data. future. EPA and the State will continue (65 FR 67249, November 9, 2000). This What Are the Statutory Requirements to review air quality data for violations action also does not have Federalism for Designations and Redesignations of the 8-hour ozone standard. implications because it does not have and What Are EPA’s Regulatory substantial direct effects on the States, What Action Is EPA Taking in Regard on the relationship between the national Requirements and Policy Regarding to the Designation of the Syracuse Redesignations? government and the States, or on the Area? distribution of power and Section 107(d) of the Clean Air Act Based upon regulatory requirements responsibilities among the various (CAA) sets forth the criteria and process in 40 CFR part 50, Appendix I and levels of government, as specified in for designations and redesignations. An including monitoring data from the Executive Order 13132 (64 FR 43255, explanation of statutory requirements most recent ozone season, the monitors August 10, 1999). This action merely for the 8-hour ozone designations that in the Syracuse metropolitan area are in establishes the attainment status, and became effective on June 15, 2004, and attainment of the 8-hour ozone does not alter the relationship or the the actions EPA took to meet those standard. Thus, we are proposing to distribution of power and requirements can be found in the final redesignate Onondaga, Madison, responsibilities established in the CAA. rule that established the designations Cayuga, and Oswego Counties in New This rule also is not subject to Executive (69 FR 23858; April 30, 2004). In York as attainment for the 8-hour ozone Order 13045 ‘‘Protection of Children Section 107(d)(3), the CAA addresses standard. from Environmental Health Risks and redesignations and provides that the We are soliciting comments on this Safety Risks’’ (62 FR 19885, April 23, Administrator or the Governor of a state proposed action. Final rulemaking will 1997), because it is not economically may initiate the redesignation process. occur after consideration of any significant. One of the bases for redesignation under comments. In reviewing state redesignation that section is air quality data. requests, EPA’s role is to approve state To determine whether an area is Statutory and Executive Order Reviews choices, provided that they meet the attaining the 8-hour ozone NAAQS, we Under Executive Order 12866 (58 FR criteria of the CAA. In this context, in consider the most recent three 51735, October 4, 1993), this action is the absence of a prior existing consecutive years of data in accordance not a ‘‘significant regulatory action’’ and requirement for the State to use with 40 CFR part 50, Appendix I. For therefore is not subject to review by the voluntary consensus standards (VCS),
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EPA has no authority to disapprove a public health or the environment. In the FEDERAL COMMUNICATIONS redesignation request for failure to use ‘‘Rules and Regulations’’ Section of COMMISSION VCS. It would thus be inconsistent with today’s Federal Register, we are applicable law for EPA, when it reviews publishing a direct final notice of 47 CFR Part 73 a state recommendation, to use VCS in deletion for the Jones Sanitation place of a state request that otherwise Superfund Site without prior notice of [MM Docket No. 99–25; FCC 05–75] satisfies the provisions of the CAA. this action because we view this as a Thus, the requirements of section 12(d) noncontroversial revision and anticipate Creation of a Low Power Radio Service of the National Technology Transfer and no significant adverse comment. We AGENCY: Federal Communications Advancement Act of 1995 (15 U.S.C. have explained our reasons for this 272 note) do not apply. This rule does Commission. action in the preamble to the direct final ACTION: Proposed rule. not impose an information collection deletion. If we receive no significant burden under the provisions of the adverse comment(s) on this notice of SUMMARY: Paperwork Reduction Act of 1995 (44 In this document, the intent to delete or the direct final notice U.S.C. 3501 et seq.). Commission seeks comment on of deletion or other notices we may ownership and eligibility issues related List of Subjects in 40 CFR Part 81 issue, we will not take further action on to low power FM (LPFM) Environmental protection, Air this notice of intent to delete. If we authorizations, including: whether pollution control, National park, receive significant adverse comment(s), LPFM authorizations should be Wilderness area. we will withdraw the direct final notice transferable and, if so, whether of deletion and it will not take effect. transferability should be broadly Authority: 42 U.S.C. 7401 et seq. We will, as appropriate, address all permitted or limited to special Dated: June 27, 2005. public comments. If, after evaluating circumstances; whether to extend the George Pavlou, public comments, EPA decides to deadline for submission of a time-share Acting Regional Administrator, EPA Region proceed with deletion, we will do so in proposal after a mutually exclusive 2. a subsequent final deletion notice based group of LPFM applicants is announced; [FR Doc. 05–13344 Filed 7–6–05; 8:45 am] on this notice of intent to delete. Any whether to permit renewal of licenses granted under involuntary time-sharing, BILLING CODE 6560–50–P parties interested in commenting must successive license term procedures; do so at this time. For additional whether to permanently restrict information, see the direct final notice ENVIRONMENTAL PROTECTION ownership of LPFM stations to local AGENCY of deletion which is located in the Rules entities; and whether to permanently section of this Federal Register. prohibit multiple ownership of LPFM 40 CFR Part 300 DATES: Comments concerning this Site stations. The Commission also seeks [FRL–7933–9] must be received by August 8, 2005. comment on technical issues related to LPFM authorizations, including: National Oil and Hazardous ADDRESSES: Written comments should whether to extend the LPFM Substances Pollution Contingency be addressed to: Isabel Rodrigues, construction period to 36 months; Plan; National Priorities List Remedial Project Manager, Emergency whether to allow applicants submitting and Remedial Response Division, U.S. a time-share proposal to relocate the AGENCY: Environmental Protection Environmental Protection Agency, transmitter to a central location, Agency. Region 2, 290 Broadway, 20th Floor, notwithstanding the site relocation ACTION: Notice of intent to delete the New York, New York 10007–1866. limits for minor amendments; whether Jones Sanitation Superfund Site from and, if so, under what conditions LPFM FOR FURTHER INFORMATION CONTACT: Ms. the National Priorities List. applications should be treated as having Isabel Rodrigues at the address provided ‘‘primary’’ status with respect to prior- SUMMARY: The Environmental Protection above, or by telephone at (212) 637– filed FM translator applications and Agency (EPA) Region 2 office is issuing 4248, by Fax at (212) 637–4284 or via existing FM translator stations; and this notice of intent to delete the Jones e-mail at [email protected]. whether an LPFM station should be Sanitation Superfund Site (Site), located SUPPLEMENTARY INFORMATION: For permitted to continue to operate even in Hyde Park, New York from the when interference is predicted to occur National Priorities List (NPL) and additional information, see the Direct Final Notice of Deletion which is within the 70 dBu contour of a requests public comment on this action. subsequently-authorized second- or The NPL is Appendix B of the National located in the Rules section of this Federal Register. third-adjacent channel full service FM Oil and Hazardous Substances Pollution station. Contingency Plan (NCP), 40 CFR part Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 300, which EPA promulgated pursuant 9601–9675; E.O. 12777, 56 FR 54757, 3 CFR, DATES: Comments must be filed on or to section 105 of the Comprehensive 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, before August 8, 2005, and reply Environmental Response, 3 CFR, 1987 Comp., p. 193. comments must be filed on or before August 22, 2005. Written comments on Compensation, and Liability Act Dated: June 6, 2005. (CERCLA) of 1980, as amended. The the proposed information collection EPA and the State of New York, through George Pavlou, requirements contained in the the Department of Environmental Acting Regional Administrator, U.S. EPA, document must be submitted by the Conservation (NYSDEC), have Region II. public, the Office of Management and determined that potentially responsible [FR Doc. 05–13347 Filed 7–6–05; 8:45 am] Budget (OMB), and other interested parties have implemented all BILLING CODE 6560–50–P parties on or before September 6, 2005. appropriate response actions. Moreover, ADDRESSES: You may submit comments, EPA and NYSDEC have determined that identified by MM Docket No. 99–25, by the Site poses no significant threat to any of the following methods:
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• Federal eRulemaking Portal: http:// Initial Paperwork Reduction Act of Reconsideration and Further Notice of www.regulations.gov. Follow the 1995 Analysis Proposed Rulemaking (FNRPM), In the instructions for submitting comments. This FNPRM contains proposed Matter of the Creation of a Low Power • Federal Communications information collection requirements. It Radio Service, MM Docket No. 99–25, Commission’s Web Site: http:// will be submitted to the Office of FCC 05–75. The FNPRM proposes to www.fcc.gov/cgb/ecfs. Follow the Management and Budget (OMB) for permit the transfer and/or assignment of instructions for submitting comments. review under section 3507(d) of the Low Power FM (LPFM) authorizations. FCC Forms 314 and 315 have been • People with Disabilities: Contact Paperwork Reduction Act of 1995 (PRA), Pub. L. 104–13. The revised to encompass the assignment of the FCC to request reasonable Commission, as part of its continuing LPFM authorizations, as proposed in the accommodations (accessible format effort to reduce paperwork burdens, FNPRM, and to reflect the ownership documents, sign language interpreters, invites the general public and OMB to and eligibility restrictions applicable to CART, etc.) by e-mail: [email protected] comment on the proposed information LPFM permittees and licensees. or phone: 202–418–0530 or TTY: 202– collection requirements contained in FCC Form 314 and the applicable 418–0432. this FNPRM, as required by the PRA. exhibits/explanations are required to be For detailed instructions on Written comments on the PRA proposed filed when applying for consent for submitting comments and additional information collection requirements assignment of an AM, FM, TV or Low information on the rulemaking process, must be submitted by the public, OMB, Power FM (LPFM) broadcast station see the SUPPLEMENTARY INFORMATION and other interested parties on or before construction permit or license. In section of this document. September 6, 2005. Comments should addition, the applicant must notify the address: (a) Whether the proposed Commission when an approved FOR FURTHER INFORMATION CONTACT: For collection of information is necessary assignment of a broadcast station additional information on this for the proper performance of the construction permit or license has been proceeding, contact Natalie Roisman, functions of the Commission, including consummated. [email protected], of the Media whether the information shall have FCC Form 315 and applicable Bureau, Policy Division, (202) 418– practical utility; (b) the accuracy of the exhibits/explanations are required to be 2120. For additional information Commission’s burden estimates; (c) filed when applying for transfer of concerning the Paperwork Reduction ways to enhance the quality, utility, and control of an entity holding an AM, FM, Act information collection requirements clarity of the information collected; and TV or LPFM broadcast station contained in this document, contact (d) ways to minimize the burden of the construction permit or license. In Cathy Williams, Federal collection of information on the addition, the applicant must notify the Communications Commission, 445 12th respondents, including the use of Commission when an approved St., SW., Room 1–C823, Washington, DC automated collection techniques or assignment of a broadcast station 20554, or via the Internet to other forms of information technology. construction permit or license has been [email protected]. If you would In addition, pursuant to the Small consummated. like to obtain or view a copy of this Business Paperwork Relief Act of 2002, revised information collection, you may OMB Control Number: 3060–0009. Pub. L. 107–198, see 44 U.S.C. Title: Application for Consent to do so by visiting the FCC PRA Web page 3506(c)(4), we seek specific comment on at: http://www.fcc.gov/omd/pra. Assignment of Broadcast Station how we might ‘‘further reduce the Construction Permit or License or SUPPLEMENTARY INFORMATION: This is a information collection burden for small Transfer of Control of Corporation summary of the Federal business concerns with fewer than 25 Holding Broadcast Station Construction Communications Commission’s Further employees.’’ Permit or License. Notice of Proposed Rulemaking OMB Control Number: 3060–0031. Form Number: FCC Form 316. (FNPRM) FCC 05–75, adopted on March Title: Application for Consent to Type of Review: Revision of a 16, 2005, and released on March 17, Assignment of Broadcast Station currently approved collection. 2005. The full text of this document is Construction Permit or License; Respondents: Business or other for- available for public inspection and Application for Consent to Transfer profit entities; not-for-profit institutions; copying during regular business hours Control of Entity Holding Broadcast State, local or tribal government. in the FCC Reference Center, Federal Station Construction Permit or License; Number of Respondents: 730. Communications Commission, 445 12th Section 73.3580, Local Public Notice of Frequency of Response: On occasion Street, SW., CY–A257, Washington, DC Filing of Broadcast Applications. reporting requirement. 20554. These documents will also be Form Number: FCC Form 314 and Estimated Time Per Response: 1–4 available via ECFS (http://www.fcc.gov/ FCC Form 315. hours. cgb/ecfs/). (Documents will be available Type of Review: Revision of a Total Annual Burden: 775 hours. electronically in ASCII, Word 97, and/ currently approved collection. Total Annual Costs: $423,720. or Adobe Acrobat.) The complete text Respondents: Business or other for- Privacy Impact Assessment: No may be purchased from the profit entities; not-for-profit institutions. impact(s). Number of Respondents: 4,510. Commission’s copy contractor, 445 12th Frequency of Response: On occasion Needs and Uses: On March 16, 2005 Street, SW., Room CY–B402, reporting requirement; third party the Commission adopted a 2nd Order on Washington, DC 20554. To request this disclosure requirement. Reconsideration and Further Notice of document in accessible formats Estimated Time Per Response: 1 hour Proposed Rulemaking (FNRPM), In the (computer diskettes, large print, audio to 6 hours. Matter of the Creation of a Low Power recording, and Braille), send an e-mail Total Annual Burden: 15,890 hours. Radio Service, MM Docket No. 99–25, to [email protected] or call the Total Annual Costs: $33,349,150. FCC 05–75. The FNPRM proposes to Commission’s Consumer and Privacy Impact Assessment: No permit the assignment or transfer of Governmental Affairs Bureau at (202) impact(s). control of Low Power FM (LPFM) 418–0530 (voice), (202) 418–0432 Needs and Uses: On March 16, 2005 authorizations where there is a change (TTY). the Commission adopted a 2nd Order on in the governing board of the permittee
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or licensee or in other situations maximum power of 100 watts effective 4. On reconsideration in September analogous to ‘‘pro forma’’ assignments radiated power (ERP) at 30 meters 2000, the Commission issued some or transfers of control for other types of antenna height above average terrain revisions and clarifications, but broadcast authorizations. FCC Form has (HAAT), providing an FM service radius generally affirmed the decisions reached been revised to encompass the (1 mV/m or 60 dBu) of approximately in the Report and Order. See 65 FR assignment and transfer on control of 3.5 miles (5.6 kilometers), and the LP10 67289, November 9, 2000. The Making these LPFM authorizations. class, consisting of stations with a Appropriations for the Government of OMB Control Number: 3060–0920. maximum power of 10 watts ERP at 30 the District of Columbia for FY 2001 Act Title: Application for Construction meters HAAT, providing an FM service (2001 DC Appropriations Act), Pub. L. Permit for a Low Power FM Broadcast radius of approximately one to two 106–553 632, required the Commission Station; Report and Order in MM Docket miles (1.6 to 3.2 kilometers). The Report to modify its rules to prescribe LPFM No. 99–25 Creation of Low Power Radio and Order also imposed separation station third-adjacent channel spacing Service. requirements for LPFM with respect to standards and to prohibit any applicant Form Number: FCC Form 318. full power stations. from obtaining an LPFM station license Type of Review: Revision of a 2. In the Report and Order, the if the applicant previously had engaged currently approved collection. Commission also established ownership in the unlicensed operation of a station. Respondents: Not-for-profit and eligibility rules for the LPFM As a result of rule revisions adopted institutions; State, local or tribal service. The Commission restricted pursuant to the 2001 DC Appropriations government. LPFM service to noncommercial Act, facilities proposed in a number of Number of Respondents: 16,422. educational (NCE) operation by non- otherwise technically sufficient Frequency of Response: profit entities and public safety radio applications filed in the first two LPFM Recordkeeping requirement; on services. With certain narrow filing windows became short-spaced to occasion reporting requirement; third exceptions, the Commission restricted existing full-power FM and/or FM party disclosure requirement. ownership to entities with no translator stations, and were Estimated Time Per Response: 15 attributable interest in any other subsequently dismissed. The 2001 DC minutes–12 hours. broadcast station or other media subject Appropriations Act also instructed the Total Annual Burden: 33,866 hours. to our ownership rules. The Commission to conduct an experimental Total Annual Costs: $23,850. Commission prohibited the sale or program to evaluate whether LPFM Privacy Impact Assessment: No transfer of an LPFM station. For the first stations would interfere with existing impact(s). two years of the LPFM service, the FM stations if the LPFM stations were Needs and Uses: On March 16, 2005 Commission prohibited multiple not subject to the additional channel the Commission adopted a 2nd Order on ownership of LPFM stations and limited spacing requirements, and to submit a Reconsideration and Further Notice of ownership to locally-based entities. To report to Congress, including the Proposed Rulemaking (FNRPM), In the resolve mutually exclusive applications, Commission’s recommendations to Matter of the Creation of a Low Power the Commission established a point Congress regarding reduction or elimination of the minimum separations Radio Service, MM Docket No. 99–25, system that favors local ownership and for third-adjacent channels. The FCC 05–75. The FNPRM proposes to locally-originated programming, with Commission selected an independent amend 47 CFR 73.870 and 73.871 to time-sharing and successive license third party, the Mitre Corporation permit voluntary time-share applicants terms as tie-breakers. (Mitre), to conduct the field tests. On to relocate an LPFM transmitter to a 3. The Report and Order directed the central location by filing amendments to February 19, 2004, the Commission staff Mass Media Bureau to announce by submitted the required report to their pending FCC Form 318 public notice the opening of a national applications. Congress and, based on the Mitre study, filing window for LP100 applications. In recommended that Congress ‘‘modify FCC Form 318 is required to: (1) apply March 2000, the Mass Media Bureau for a construction permit for a new the statute to eliminate the third- announced that it would accept LPFM adjacent channel distant separation LPFM station, (2) to make changes in applications in five separate filing the existing facilities of such a station or requirements for LPFM stations.’’ windows, each limited to an application 5. On February 8, 2005, the (3) to amend a pending FCC Form 318 group of ten states and at least one other Commission held a forum on LPFM. application. U.S. jurisdiction, in order to ‘‘ensure the The forum was intended to inform the Summary of the Further Notice of expeditious implementation of the Commission of achievements by LPFM Proposed Rulemaking LPFM service and to promote the stations and the challenges faced as the efficient use of Commission resources.’’ I. Introduction service marks its fifth year. As of March See FCC Announces Five-Stage National 2005, more than 1,175 LPFM 1. In January 2000, the Commission Filing Window for Low Power FM construction permits have been granted. adopted a Report and Order establishing Broadcast Station Applications, DA 00– Of these 1,175 permits, approximately the low power FM (LPFM) service, 621 (MMB rel. Mar. 17, 2000). The 590 stations are on the air, serving Creation of Low Power Radio Service, Commission conducted a lottery to mostly mid-sized and smaller markets. 65 FR 7616, February 15, 2000. The determine the order of the application 6. Since the LPFM service was Commission authorized the LPFM groups, and the Mass Media Bureau created, the experiences of LPFM service to provide opportunities for new announced that the first LPFM filing applicants, permittees, and licensees voices to be heard, while at the same window would open on May 30, 2000. have demonstrated that the time maintaining the integrity of Subsequent filing windows opened on Commission’s LPFM rules may need existing FM radio service and August 28, 2000, January 16, 2001, and some adjustment in order to ensure that preserving its ability to transition to a June 11, 2001. The fourth and fifth the Commission maximize the value of digital transmission mode. In the Report LPFM application groups were the LPFM service without harming the and Order, the Commission authorized consolidated into a single window in interests of full-power FM stations or two classes of LPFM service: The LP100 order to speed the filing process for other Commission licensees. The class, consisting of stations with a applicants in these states. Commission’s actions in this FNPRM,
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based in part on testimony received at to ownership amendments to pending to permit the assignment of LPFM the LPFM forum, are designed to LPFM new and major change authorizations from the licensee to increase the number of LPFM stations applications. another entity. If LPFM authorizations on the air and strengthen the viability of 9. First, the Commission seeks may be assigned and control of LPFM those stations that are already operating. comment on whether to amend its rules licensees may be transferred, should the The Commission seeks comment on a to permit the transfer of control of LPFM Commission allow consideration for number of technical and ownership licensee entities. If the Commission these transactions? In short, should the issues related to LPFM. permits the transfer of control of LPFM Commission permit the sale of LPFM licensees, should any restrictions be stations? If so, should the Commission II. Further Notice of Proposed imposed on such transfers, beyond the establish a holding period during which Rulemaking requirement that the licensee entity a station may not be sold at all, or may 7. In ex parte meetings and filings and continue to meet the LPFM eligibility not be sold for more than the licensee’s at the recent LPFM forum hosted by the criteria? The Commission seek comment legitimate and prudent expenses? The Commission, members of the LPFM regarding the types of organizational Commission seeks comment below on community have urged the Commission structures utilized by LPFM licensees whether to permanently restrict to revise certain LPFM rules. Five years and how transfers of control of LPFM eligibility for LPFM authorizations to after the establishment of LPFM, the licensees, if permitted, would be local entities and/or permanently Commission believes it is now effectuated. For example, are LPFM prohibit multiple ownership of LPFM appropriate to assess the practical licensees likely to undergo transfers of stations and how any actions in that ramifications of the LPFM rules. The control by virtue of changes in regard should affect assignments and Commission believes that some of the governing boards, shifting composition transfers. of membership bodies, acquisition of a LPFM community’s proposals are 11. Finally, assuming that the licensee by another organization, or appropriate for further consideration, Commission amends the rules to permit other means? Because the question has and seeks comment on them as transfer and/or assignment of LPFM been raised frequently on the record, the discussed below. authorizations, what procedures should Commission seeks comment more be implemented to ensure the integrity Ownership and Eligibility specifically on whether and how to of the process and the promotion of amend our rules to permit the transfer A. Transferability local service? Can general guidelines be of control of an LPFM licensee in the 8. In the Report and Order, the case of a sudden change in the majority established for the transfer of control or Commission declined to allow the sale of a governing board. On assignment of LPFM stations, or should of LPFM stations. The Commission reconsideration in 2000, the the Commission delegate to the Media determined that a prohibition on Commission clarified that the gradual Bureau authority to review proposed transfers or assignments of construction change of a governing board or transfers and assignments on a case-by- permits and licenses for LPFM stations membership body to the point that a case basis? In particular, the would best promote the Commission’s majority of its members are new since Commission seeks comment on the interest in ensuring spectrum use for the authorization was granted will not, process by which LPFM permittees and low power operations as soon as by itself, constitute a prohibited transfer licensees may request approval for or possible, without the delay associated of control. The Commission’s rules, report transfers of control. For LPFM with license speculation. The however, do not permit a sudden licensees with a traditional corporate Commission concluded that the goals of change in the board or membership of organizational structure, should the the LPFM service would be best met if an LPFM licensee, which would Commission apply the rules governing unused permits and licenses were constitute an impermissible transfer of transfers of control of stock returned to the Commission. 47 CFR control. Several panelists at the recent corporations? (With respect to 73.865 provides that ‘‘[a]n LPFM LPFM forum testified that this traditional corporations, the authorization may not be transferred or restriction causes unnecessary Commission has developed general assigned except for a transfer or complications for LPFM licensees. The guidelines for determining where assignment that involves: (1) Less than Media Access Project (MAP) has control resides, what constitutes a a substantial change in ownership or requested that the Commission modify transfer of control, and how permittees control; or (2) An involuntary its rules so that typical board changes and licensees may seek approval of such assignment of license or transfer of on a non-profit board will be transfers). Given the non-profit nature of control.’’ Based on forum testimony, ex permissible under the Commission’s LPFM licensees, it is likely that many parte presentations, and requests for rules. Prometheus Radio Project LPFM authorizations are held by non- waiver of section 73.865 filed with the (Prometheus) argues that if the LPFM stock corporations. The Commission has Media Bureau’s Audio Division, the service is to be accessible to community never formally adopted a policy setting Commission now believes that the rule groups, its regulations must take into forth a clear standard for transfers of prohibiting transfer or assignment of account that changes in governing control by non-stock corporations. In LPFM construction permits or licenses boards are part of the nature of existence 1989, the Commission issued a notice of may be unduly restrictive and may of such groups. Based on the record, the inquiry (NOI) regarding transfers of non- hinder, rather than promote, LPFM Commission proposes to amend its rules stock corporations, but the proceeding service. The Commission therefore seeks to permit changes of more than 50 did not reach the rulemaking stage. comment on whether to permit the percent of the membership of governing Nevertheless, this notice of inquiry may transfer and/or assignment of LPFM boards that occur suddenly, in addition provide helpful guidance in establishing authorizations and, if so, whether to the gradual board changes that are the process by which the Commission transfer or assignment should be currently permitted under the rules. The will consider transfers of control of broadly permitted or limited to special Commission seeks comment on this LPFM licensees, if such transfers are circumstances. The Commission also proposal. permitted. In the NOI, the Commission seeks comment on the effect, if any, of 10. Similarly, the Commission seeks proposed that gradual changes in the a change in transferability with respect comment on whether to amend the rules governing boards of membership
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organizations and governmental B. Ownership and Eligibility 15. Now that more than two years has entities—even if the changes ultimately Limitations passed since the first set of LPFM filing resulted in the replacement of a majority 13. In the Report and Order, the windows, the Commission seeks of the original board members—would Commission placed certain restrictions comment regarding whether to amend not be considered transfers of control on LPFM ownership for the first two the rules to reinstate for a period of time within the meaning of the Act, and years after the opening of the first filing or make permanent the restrictions would need to be reported only as window for the LPFM service. First, for regarding local entities and multiple appropriate on the licensee’s ownership the first two years, no entity may own ownership. Would a continued reports. This approach is consistent more than one LPFM station. After the limitation on multiple ownership foster with the Commission’s clarification first two years, one entity may own up diversity of programming and viewpoint regarding LPFM stations on to five stations nationally, and after the or would it prevent LPFM licensees reconsideration in 2000. Under the first three years, an entity may own up from achieving economies of scale? proposal in the NOI, a sudden change in to ten stations nationwide. No entity Does an eligibility restriction for local a majority of the governing board of a may own more than 10 LPFM stations. entities ensure local service for listeners membership organization or Second, for the initial and subsequent or might it result in some communities losing LPFM service because no local governmental entity would be windows opened within two years of entity seeks to provide it? Should the considered an insubstantial transfer of the first filing window for LPFM, all Commission permanently restrict control, subject to a modified ‘‘short LPFM applicants were required to be eligibility to local entities but grant a form’’ consent procedure, including the based within 10 miles of the station they waiver of such restriction in cases in filing of an FCC Form 316. The sought to operate. Beginning two years after the first window for LPFM service which the applicant can demonstrate Commission seeks comment on whether that no local entity has sought to to adopt a similar approach for changes opened, non-local applicants were eligible to apply for LPFM stations. UCC provide service? The Commission in governing boards of LPFM licensees further seeks comment regarding the that are non-stock entities. requests that the Commission permanently prohibit multiple relationship between any such 12. As discussed in detail above, the ownership and either permanently restrictions and our consideration current rule prohibiting the transfer of restrict eligibility to local entities or regarding transferability of LPFM LPFM stations is hampering the LPFM extend the restriction for an additional stations. Specifically, if the Commission service by, for example, impeding period of time. makes permanent the local entity routine transitions to new governing 14. The Commission adopted these eligibility restriction and the prohibition boards and limiting the ability of an rules in order to foster diversity and to on multiple ownership, how should LPFM licensee to assign its license to a maximize the opportunities for such limitations be considered in the new, jointly-controlled entity composed applicants to obtain LPFM context of applications for assignment of several similarly focused authorizations by disallowing any or transfer of control of LPFM stations, organizations. Introducing some level of common ownership of LPFM stations discussed above? transferability to the LPFM service is during the start-up of the service. After C. Time-Sharing critical, and delaying relief to LPFM the start-up phase was over, however, stations until this proceeding is the Commission allowed the 16. In the Report and Order, the completed will not serve the public accumulation of additional stations Commission established a point system interest. Accordingly, the Commission where local applicants had not applied. for resolving mutual exclusivity among delegates to the Media Bureau authority The Commission stated in the Report LPFM applicants. If mutually exclusive to consider, on a case-by-case basis, and Order that, in addition to ensuring applicants have the same point total, requests for waivers of 47 CFR 73.865. the fullest use of LPFM spectrum in the any two or more of the tied applicants The Media Bureau may grant a waiver long term, this approach would balance may propose to share use of the upon determination that such waiver the interests of local entities, whom the frequency by submitting a time-share will maximize spectrum use for low Commission expected to be the first proposal within 30 days of the release power FM operations. For example, entrants in the service, and national of a public notice announcing the tie. NCE entities, which the Commission Such proposals are treated as waiver may be appropriate, assuming anticipated would be interested in amendments to the time-share the public interest would be served, in additional local outlets to increase their proponents’ applications and become certain circumstances: a sudden change reach and achieve certain efficiencies of part of the terms of the station’s license. in the majority of a governing board operation. Our intention was to make it MAP asserts that because LPFM with no change in the organization’s more likely that local entities would applicants have few resources, the 30- mission; development of a partnership operate this service, but to ensure that day deadline for the submission of a or cooperative effort between local if no local entities came forward, the time-share proposal is too short. MAP community groups, one of which is the available spectrum would not go has requested that the Commission licensee; and transfer to another local unused. On reconsideration, the extend the submission deadline to 90 entity upon the inability of the current Commission considered a request from days from the date a mutually exclusive licensee to continue operations. This is UCC to extend the two-year time group is announced. The Commission not an exhaustive list of circumstances periods for the community-based agrees that 30 days may not afford appropriate for waiver. However, until requirement and the national cap, and sufficient time for two or more small the Commission has further considered concluded that the Report and Order organizations to commence and the transferability issue, waiver is not struck an appropriate balance between complete negotiations and prepare a appropriate to permit the for-profit sale the interests of local groups and the time-share proposal for the of an LPFM station to any entity or the Commission’s interest in ensuring that Commission’s consideration. transfer of an LPFM station to a non- the LPFM service is used fully. Accordingly, the Commission proposes local entity or an entity that owns Accordingly, the Commission declined to extend the period to 90 days and another LPFM station. to modify these rules at that time. seeks comment on this proposal.
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17. If a tie among mutually exclusive construction deadline only with great demonstrates that it cannot complete applications is not resolved through difficulty, and that some have been construction within the allotted 18 time-sharing, the tied applications are unable to complete construction within months for reasons beyond its control, reviewed for acceptability and the 18-month period. MAP has that it reasonably expects to be able to applicants with tied, grantable requested that the Commission waive or complete construction within the applications are eligible for equal, extend construction deadlines to avoid additional 18 months that the successive, non-renewable license terms forfeit of LPFM construction permits for construction extension would provide, of no less than one year each for a total failure to construct. However, the and that the public interest would be combined term of eight years. In the Commission’s current policy regarding served by the extension. Report and Order, although LP100 and all broadcast station construction B. Technical Amendments LP10 licensees were provided with the deadlines is to extend such deadlines same license terms and renewal only in extremely limited situations that 20. In the Order on Reconsideration expectancy as full-power FM radio dictate the tolling of the construction accompanying this FNPRM, the stations, the Commission determined period: Acts of God; administrative or Commission amends 47 CFR 73.871 to not to extend a renewal expectancy to judicial review of a construction permit permit greater flexibility for applicants licenses granted under these final tie- grant; failure of a Commission-imposed to file minor amendments to relocate breaker procedures. The Commission condition precedent on the permit; or transmitter sites. However, the amended now believes that the public interest judicial action related to necessary rule will continue to preclude time- would be better served by permitting the local, state, or federal requirements. See sharing applicants from relocating the renewal of viable time-share 47 CFR 73.3598. Thus, although some transmitter to a central location, unless arrangements, rather than subjecting LPFM permittees may face delays that such location falls within the new operating stations to the uncertainty of are outside of their control, if such distance limits. UCC has requested that window filing schedules and the risks of delays do not qualify under the tolling the Commission amend its rules to the LPFM comparative process. rules, a permittee must either complete allow applicants that submit a time- Accordingly, the Commission construction or forfeit the permit. The share agreement to relocate the tentatively proposes to permit the policy regarding extension of broadcast transmitter to a central location, renewal of licenses granted under station construction deadlines generally provided one is available in the channel involuntary time-sharing successive serves the public interest. The finder. The Commission agrees that increasing flexibility for time-sharing license term procedures. The Commission recognizes, however, that applicants to relocate the transmitter Commission seeks comment on this the LPFM 18-month construction period will facilitate time-share arrangements proposal and the means of may be too short in some cases. The and expedite grant of LPFM licenses. implementing such renewal expectancy. Commission’s intention is to maximize Accordingly, the Commission proposes Should licenses be renewed in the same the likelihood that LPFM permittees to permit applicants that submit a time- order as they are granted, i.e., the will get on the air. Accordingly, the sharing proposal to file a minor sequence in which the parties file Commission proposes to extend the amendment proposing to relocate the applications for licenses to cover their LPFM construction period to three transmitter to a central location, construction permits? Increased years, the same period afforded other notwithstanding the site relocation flexibility in transferability of LPFM broadcast permittees, and seeks limits set forth in 47 CFR 73.871, and licenses, combined with a renewal comment on this proposal. seeks comment on this proposal. expectancy, may result in involuntary 19. Some LPFM construction permits time-sharing licensees modifying their are scheduled to expire in the near C. Interference Protection Requirements time-sharing arrangements prior to future, while the Commission is 21. As part of the overall plan to seeking renewal. The Commission seeks considering this issue, and other LPFM protect FM stations from interference comment on how best to accommodate permittees with expired permits have from new LPFM stations, the Report and such developments in the renewal requests pending before the Media Order adopted minimum distance process. Bureau for additional time to construct. separation requirements for LPFM Technical Rules The Commission adopts an interim stations. The Commission concluded waiver policy to increase the likelihood that minimum spacing rules would A. Construction Period that these permittees will complete provide the most efficient means to 18. In the Report and Order, the construction and commence operation. process a large number of applications Commission established an 18-month Although the rules do not generally while ensuring the overall technical construction period for both LP10 and permit waiver of broadcast construction integrity of the FM service. Because FM LP100 services. The Commission permit deadlines, all other broadcast translator and booster stations generally believed that most permittees would be permittees are afforded 36 months to do not have specific class limitations, able to and would have sufficient construct facilities. See 47 CFR 73.3598. LPFM–FM translator separation incentive to construct their low power Here, where the construction period is requirements were determined by stations in a much shorter time period half as long, the Commission finds that analyzing the 60 dBu contours of than other broadcast permittees, given waivers generally are warranted to authorized translator stations and the relative technical simplicity of such extend outstanding LPFM construction grouping them into three cohorts based stations. The Commission recognized, permits to three years. Pending on station power and height. The Report however, that zoning and permitting Commission action on this FNPRM, the and Order also amended certain part 74 processes could, in some cases, delay Commission delegates to the Media rules to require that FM translator and construction. Accordingly, the Bureau the authority to consider booster stations protect the 60 dBu Commission afforded permittees 18 requests for waiver of the construction contour of LP100 stations. On months to construct, and stated that the period even if the requirements under reconsideration, the Commission stated 18-month deadline would be strictly the tolling rules are not met. The Media that the interference protections ‘‘place enforced. The Commission is aware that Bureau may determine that a waiver is LPFM stations and FM translators on some LPFM permittees have met the appropriate if an LPFM permittee essentially equal footing’’ with respect
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to protecting each other from applications. Because LPFM and FM Commission sought comment on how interference. However, Commission translator stations are licensed under best to harmonize the licensing policy treats translators as a secondary fundamentally different technical rules, processes for FM translators and LPFM service and a ‘‘proper role of FM it is impossible to determine the precise stations to enhance localism. See 19 translators among aural services to the extent to which the 2003 window-filed FCC Rcd 12425. As the Commission public is to provide secondary service to FM translator applications have asked, ‘‘[r]ecognizing that both LPFM areas in which direct reception of impacted the potential licensing of new stations and translators provide valuable signals from FM broadcast stations is LPFM stations. In this regard, service, what licensing rule changes unsatisfactory due to distance or Prometheus’s contention that every new should the Commission adopt to resolve intervening terrain obstructions.’’ The translator ‘‘takes the place’’ of a competing demands by stations in these Commission declined on potential LPFM station is incorrect. two services for the same limited reconsideration to eliminate the Nonetheless, the Commission is spectrum?’’ The Commission seeks protections afforded to LP100 stations confident that these filings have had a comment on whether and, if so, under because such modifications would have significant preclusive impact on future what conditions LPFM applications rendered LPFM stations secondary to LPFM licensing opportunities based should be treated as having ‘‘primary’’ translators. solely on application volume. This status to prior-filed FM translator 22. LPFM advocates now request that impact is of particular concern because applications and authorized FM the Commission reassess the the 2000–2001 national LPFM window translator stations. Should all LPFM relationship between FM translators and filing process demonstrated that very applications have primary status LPFM stations for licensing purposes. few opportunities for LPFM stations because LPFM stations are permitted to Prometheus argues that because NCE remained in major markets at that time. originate local programming? Should translators may be fed by satellite, see Moreover, as Prometheus notes, many of primary status be limited to LPFM 47 CFR 74.1231(b), such translators the translator applications were filed by applicants that pledge to originate often are used to retransmit distant a relatively small number of non-local locally at least eight hours of signals, contrary to the intended filers without any apparent connection programming per day? Should the purpose of the translator service to to the communities specified in the Commission provide ‘‘grandfathered’’ merely extend the reach of local applications. protection rights to certain classes of FM stations. Prometheus contends that 24. On the other hand, ‘‘translator- translators? Possible class designations every new translator that does not based delivery of broadcast include currently licensed and expand the reach of a station originating programming is an important objective,’’ operating stations; stations licensed local programming takes the place of a and the Commission continues to prior to the adoption of the Report and potential LPFM station that will support this objective. Some FM Order; currently authorized translator originate local programming. In translators provide important aural stations, including the construction particular, Prometheus argues that the services to unserved and underserved permits issued to the 2003 window Commission’s March 2003 filing areas. Translators also are used to filers; and/or ‘‘fill-in’’ FM translators but window for translator applications deliver syndicated national not ‘‘other area’’ translator stations. opened in major cities before a full programming to well-served Should the Commission dismiss all LPFM filing window opened, thereby communities. The Commission’s rules pending applications for new FM eliminating virtually all opportunities impose strict ownership limits on translator stations and make potential for new LPFM stations in top-25 commercial translator licensees, see 47 refilings subject to the resolution of the markets. Prometheus also claims that CFR 74.1232(d), and require the use of licensing issues raised in this translator applications are being filed off-air signal delivery systems, see 47 proceeding? Should the Commission not by members of local communities, CFR 74.1231(b), for both commercial dismiss the pending mutually exclusive but by non-local organizations applying and NCE translators operating in the FM translator applications? As an for large numbers of translator licenses. non-reserved FM band. (The March interim measure while considering To overcome the preclusive impact of 2003 window was limited to proposals these important questions, the the 2003 translator window, Prometheus for non-reserved band stations, none of Commission directs the Media Bureau requests that the Commission give which may rebroadcast signals to stop granting FM translator new locally controlled and operated LPFM delivered direct to the station via stations priority over translators. satellite; thus, the Commission finds station construction permits for which 23. The Commission agrees that it is misplaced Prometheus’s attempt to link short-form applications were filed in the appropriate to reevaluate the current co- the ‘‘problem’’ of the 2003 window to 2003 window. This freeze is effective equal status of LPFM and FM translator the satellite delivery rules). These rules upon the release of this FNPRM and stations as a result of the extraordinary generally prohibit a commercial FM shall remain in effect for six months. volume of FM translator construction station from using translators to expand 26. In addition to requesting that the permit applications—more than service beyond its protected contour. In Commission grant LPFM stations 13,000—filed with the Commission contrast, an NCE licensee may own and priority with respect to FM translators, during the March 2003 filing window. operate translators that reach listeners some LPFM advocates have requested The Media Bureau’s Audio Division far beyond the service area of its co- that the Commission adopt more already has granted approximately 3,300 owned primary station. Thus, many flexible technical licensing rules for the new station construction permit NCE licensees use FM translators to LPFM service as a partial remedy to the applications from the singleton filings, a distribute programming throughout the preclusive impact of the FM translator number nearly equal to the total number country. Notwithstanding Prometheus’s filings and limited LPFM spectrum of FM translator stations licensed and complaint regarding non-local filers in availability in many large and medium- operating prior to the filing window. the March 2003 translator window, this sized communities. Specifically, they Approximately 8,000 applications is not a recent development in the FM have requested that LPFM applicants be remain on file. New LPFM station translator service. permitted to utilize the contour overlap applications must protect each of these 25. In a notice of inquiry in the interference protection approach, rather authorized facilities and pending broadcast localism proceeding, the than mileage separations. Adoption of a
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contour overlap approach is statutorily authorized broadcast station. (In adjacent channel full service station barred at this time. Congress has contrast, an LPFM station may continue within the full service station’s 70 dBu mandated the use of a distance to operate when it would cause contour. This rule requires an LPFM separation methodology to protect FM interference within the 60 dBu contour, station to cease operations if the LPFM stations from LPFM station interference but not 70 dBu contour, of a full service station cannot demonstrate that by directing the Commission to FM station; in addition, if an LPFM interference is unlikely to occur. prescribe co-, first-, second-, and third- station is predicted to cause interference 30. Although to date only one LPFM adjacent channel ‘‘minimum distance within a full service station’s 70 dBu station has been forced off the air separations’’ for LPFM stations. Thus, contour, it may continue to operate if it pursuant to this procedure, operating the Commission may not use the can show that actual interference would LPFM stations have expressed concerns fundamentally different contour be unlikely). This rule is a necessary about the potential impact of methodology to license LPFM stations. complement to the more flexible ‘‘encroaching’’ full-service stations. 27. Even if the Commission were not translator contour rule, essentially MAP has requested that the Commission statutorily prohibited from adopting a shifting to translator applicants, adopt a ‘‘processing policy’’ that would contour approach, significant policy permittees, and licensees the risk that a permit the denial of a full service FM considerations weigh in favor of translator must go off the air if station’s modification application if continuing to license LPFM stations in interference cannot be eliminated. The ‘‘grant of the application will deny a accordance with the minimum distance 47 CFR 73.1203(a) interference local community content by reducing separation methodology adopted in the complaint procedure regularly results in the coverage area available to LPFM Report and Order. This protection the cancellation of FM translator stations.’’ Such an ad hoc processing scheme is modeled on the certain ‘‘go- authorizations by the Media Bureau. policy would afford any degree of no go’’ predicted interference licensing The risks associated with a rule certainty to operating LPFM stations. methodology utilized for commercial prohibiting any interference, such as the Moreover, the Commission disagrees FM stations. Although this methodology rule applicable to translators, far with the basic thrust of this proposal, is more restrictive than the FM outweigh the potential benefit of which effectively would provide translator contour methodology, additional LPFM licensing primary status to LPFM stations with implementation of LPFM minimum opportunities that use of the contour respect to subsequently filed distance separation requirements has method might afford. The Commission applications for new or modified full proven to be simple and reliable, and believes that it would be inappropriate service station facilities. As stated in the therefore appropriate for the LPFM to expose community organizations Report and Order, ‘‘[w]e do not believe service. Because adoption of a contour with limited funds and little technical that an LPFM station should be given an methodology would require the and legal sophistication to this kind of interference protection right that would preparation of complex and costly uncertainty, particularly given the effort prevent a full-service station from engineering exhibits, such approach invested by organization members, seeking to modify its transmission would inevitably result in higher station management, and numerous facilities or upgrade to a higher service application error rates, extended volunteers. Given the high level of class. Nor should LPFM stations processing time frames, and licensing uncertainty associated with the more foreclose opportunities to seek new full- delays. The Media Bureau has processed flexible translator allocation scheme, service radio stations.’’ It would be over 3000 applications from the first adoption of this approach for LPFM useful, however, to consider whether to LPFM window. At this point, it is seems ill-advised in light of the interest limit the 47 CFR 73.809 interference abundantly clear that many LPFM expressed by many LPFM operators for procedures to situations involving co- applicants had significant problems greater ‘‘primary’’ status and for greater and first-adjacent channel predicted successfully preparing basic technical protection against ‘‘encroachments’’ interference, where the predicted showings, completing simplified from new full power stations and interference areas are substantially application forms, and responding to facility modifications by existing greater than for second- and third- staff requests for required amendments. stations. adjacent channel interference. Although Excluding the Congressionally the effective service area of an LPFM mandated dismissals of applications D. Protection From Subsequently station could be diminished as a result that failed to protect full service stations Authorized Full Service FM Stations of a second-or third-adjacent channel operating on third-adjacent channels, 29. Full-service FM stations, full service station ‘‘move-in,’’ the the staff dismissed approximately one- including subsequently authorized new predicted interference area to the full third of all applications for basic stations, facility modifications, and service station would be limited to a technical and legal defects. The upgrades, are not required to protect small area in the immediate vicinity of Commission believes that the more facilities specified in LPFM applications the LPFM station transmitter site. In complex contour methodology would or authorizations. In order to provide a these circumstances, the public interest create even more processing problems. measure of stability to operating LPFM may favor continued LPFM second- and In addition, the choice of a distance stations, however, the Commission third-adjacent channel operations over a separation methodology was critically concluded in the Report and Order that subsequently authorized upgrade or important in the Audio Division’s an LPFM station generally may continue new full service station. development of the extremely accessible to operate even if it is predicted to cause 31. The Commission seeks comment and successful LPFM channel finder interference within the protected service on whether to amend 47 CFR 73.809. tool utility. contour of a subsequently authorized Should an LPFM station be permitted to 28. An equally important policy FM service, including new stations and continue to operate even when consideration is that an integral part of facilities modifications or upgrades of interference is predicted to occur within the more flexible translator rules, 47 existing stations. Under 47 CFR 73.809, the 70 dBu contour of an ‘‘encroaching’’ CFR 74.1203(a), would be wholly LPFM stations are responsible for second-or third-adjacent channel full inappropriate for the LPFM service. resolving all allegations of actual service station? Should an LPFM station Under this rule, an FM translator may interference to the reception of a co- be permitted to remain on the air if the not cause any actual interference to any channel or first-, second-, or third- area of predicted interference does not
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receive service from the full service III. Procedural Matters business. See 13 CFR 121.201. A radio station prior to the grant of a broadcasting station is an establishment Regulatory Flexibility Act construction permit for a new station or primarily engaged in broadcasting aural facilities modification of an existing 33. As required by the Regulatory programs by radio to the public. station? Should the LPFM station be Flexibility Act, the Commission has Included in this industry are permitted to remain on the air if the full prepared an Initial Regulatory commercial, religious, educational, and service station’s community of license Flexibility Analysis (IRFA) of the other radio stations. The 1992 Census would not be subject to predicted possible significant economic impact on indicates that 96 percent (5,861 of interference? It is always the case that a substantial number of small entities of 6,127) of radio station establishments an ‘‘encroachment’’ issue involves the the proposals addressed in this FNPRM. produced less than $5 million in licensing of a subsequently filed full Written public comments are requested revenue in 1992. service station application. As such, on the IRFA. These comments must be 37. The Commission’s LPFM rules would an amendment to 47 CFR 73.809 filed in accordance with the same filing apply to a new category of FM radio be consistent with Congress’s directive deadlines for comments on the FNPRM, broadcasting service. As of the date of barring the reduction of third-adjacent and they should have a separate and release of this FNPRM, the channel distance separations for ‘‘low- distinct heading designating them as Commission’s records indicate that power FM radio stations’’? responses to the IRFA. The Commission more than 1,175 LPFM construction will send a copy of the FNPRM, permits have been granted. Of these Filing Windows including this IRFA, to the Chief 1,175 permits, approximately 590 Counsel for Advocacy of the Small stations are on the air, serving mostly 32. The Commission has not Business Administration (SBA). See 5 mid-sized and smaller markets. It is not announced any upcoming filing U.S.C. 603(a). known how many entities ultimately windows for new or major change LPFM may seek to obtain low power radio applications. MAP requests that the Need for, and Objectives of, the Second licenses. Nor does the Commission Commission establish ‘‘regular’’ filing Order on Reconsideration know how many of these entities will be windows for new LPFM stations. 34. Since the LPFM service was small entities. The Commission expects, Currently, all licensable aural services created in 2000, the experiences of however, that due to the small size of use some form of a window filing LPFM applicants, permittees, and low power FM stations, small entities process for new stations and for major licensees have demonstrated that the would generally have a greater interest modifications to authorized stations. As Commission’s LPFM rules may need than large ones in acquiring them. a general matter, the Commission agrees some adjustment in order to ensure that that windows should be scheduled at the Commission maximizes the value of Description of Projected Reporting, reasonable intervals for each of the aural the LPFM service without harming the Recordkeeping, and Other Compliance services. However, it would be interests of full-power FM stations or Requirements premature to schedule a window for the other Commission licensees. In this 38. The FNPRM seeks comment on a filing of LPFM new station and major FNPRM, the Commission seeks number of technical and ownership modification applications at this time. comment on a number of technical and issues related to LPFM. The potential First, it would be inefficient to open a ownership issues related to LPFM. The reporting requirements that could be window prior to the Commission Commission believes this proceeding adopted include: (i) applications to be completing consideration of the FM will result in an improved LPFM filed to seek authority for assignment of translator and other licensing issues service, while maintaining the integrity an LPFM station or transfer of control of raised in this FNPRM. Second, the of the FM service. an LPFM permittee or licensee; (ii) Media Bureau has recently begun the waiver requests for assignment of an process of awarding construction Description and Estimate of the Number LPFM station or transfer of control of an permits under the new NCE full-service of Small Entities to Which Rules Will LPFM permittee or licensee, pending comparative criteria. Following the Apply the Commission’s consideration of the resolution of the approximately 170 35. The RFA directs the Commission issues raised in the FNPRM; (iii) forms ‘‘closed’’ NCE groups (consisting of to provide a description of and, where to be filed by new applicants or approximately 870 applications), the feasible, an estimate of the number of proposed assignees or transferees to Commission will open a national filing small entities that will be affected by the demonstrate local eligibility and/or window for new NCE stations and for proposed rules, if adopted. See 5 U.S.C. compliance with a multiple ownership major changes in authorized NCE 603(b)(3). The RFA generally defines the prohibition; (iv) renewal applications to facilities, the first such filing term ‘‘small entity’’ as having the same be filed by involuntary time-share opportunity since April 21, 2000. meaning as the terms ‘‘small business,’’ licensees; (v) waiver requests for Although the Commission recognizes small organization,’’ and ‘‘small extension of an LPFM construction the critically valuable service that LPFM government jurisdiction.’’ 5 U.S.C. period; and (vi) applications to be filed stations can play in serving their 601(6). In addition, the term ‘‘small seeking approval to centrally relocate a communities, this NCE full service business’’ has the same meaning as the transmitter site in the case of a licensing process must remain a higher term ‘‘small business concern’’ under voluntary time share proposal. priority at this time. The Commission the SBA. A small business concern is intends to proceed in a manner that one which: (1) Is independently owned Steps Taken To Minimize Significant takes into account the limited staff and operated; (2) is not dominant in its Economic Impact on Small Entities, and resources that can be devoted to field of operation; and (3) satisfies any Significant Alternatives Considered processing applications for service in additional criteria established by the 39. The RFA requires an agency to the FM band. This approach will, in the SBA. describe any significant alternatives that long run, permit the more prompt 36. The Small Business it has considered in reaching its processing of applications filed in the Administration (SBA) defines a radio proposed approach, which may include next LPFM window, a goal endorsed by broadcasting station that has $5 million the following four alternatives (among numerous LPFM advocates. or less in annual receipts as a small others): (1) The establishment of
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differing compliance or reporting Federal Government’s eRulemaking Reduction Act information collection requirements or timetables that take into Portal, or (3) by filing paper copies. requirements contained herein should account the resources available to small 44. Electronic Filers: Comments may be submitted to Cathy Williams Federal entities; (2) the clarification, be filed electronically using the Internet Communications Commission, Room 1– consolidation, or simplification of by accessing the ECFS: http:// C804, 445 12th Street, SW., Washington, compliance or reporting requirements www.fcc.gov/cgb/ecfs/ or the Federal DC 20554, or via the Internet to under the rule for small entities; (3) the eRulemaking Portal: http:// [email protected], and to Kristy L. use of performance, rather than design, www.regulations.gov. Filers should LaLonde, OMB Desk Officer, Room standards; and (4) an exemption from follow the instructions provided on the 10234 NEOB, 725 17th Street, NW., coverage of the rule, or any part thereof, Web site for submitting comments. For Washington, DC 20503, via Internet to for small entities. See 5 U.S.C. ECFS filers, if multiple docket or [email protected], or via 603(c)(1)–(c)(4). rulemaking numbers appear in the fax at 202–395–5167. 40. The LPFM service has created and caption of this proceeding, filers must 47. Availability of Documents. will continue to create significant transmit one electronic copy of the Comments, reply comments, and ex opportunities for new small businesses. comments for each docket or parte submissions will be available for In addition, the Commission generally rulemaking number referenced in the public inspection during regular has taken steps to minimize the impact caption. In completing the transmittal business hours in the FCC Reference on existing small broadcasters. To the screen, filers should include their full Center, Federal Communications extent that rules proposed in the name, U.S. Postal Service mailing Commission, 445 12th Street, SW., CY- FNPRM would impose any burdens on address, and the applicable docket or A257, Washington, DC 20554. These small entities, the Commission believes rulemaking number. Parties may also documents will also be available via that the resulting impact on small submit an electronic comment by ECFS. Documents will be available entities would be favorable because the Internet e-mail. To get filing electronically in ASCII, Word 97, and/ proposed rules, if adopted, would instructions, filers should send an e- or Adobe Acrobat. expand opportunities for LPFM mail to [email protected], and include the 48. Accessibility Information. To applicants, permittees, and licensees to following words in the body of the request information in accessible commence broadcasting and stay on the message: ‘‘get form.’’ A sample form and formats (computer diskettes, large print, air. directions will be sent in response. audio recording, and Braille), send an e- 45. Paper Filers: Parties who choose 41. The Commission will send a copy mail to [email protected] or call the FCC’s to file by paper must file an original and of this FNPRM in a report to Congress Consumer and Governmental Affairs four copies of each filing. If more than and the Government Accountability Bureau at (202) 418–0530 (voice), (202) one docket or rulemaking number Office pursuant to the Congressional 418–0432 (TTY). This document can appears in the caption of this Review Act, 5 U.S.C. 801(a)(1)(A). also be downloaded in Word and proceeding, filers must submit two Portable Document Format (PDF) at: Ex Parte Rules additional copies for each additional http://www.fcc.gov. 42. Permit-But-Disclose. This docket or rulemaking number. Filings proceeding will be treated as a ‘‘permit- can be sent by hand or messenger List of Subjects in 47 CFR Part 73 but-disclose’’ proceeding subject to the delivery, by commercial overnight Radio. ‘‘permit-but-disclose’’ requirements courier, or by first-class or overnight under 47 CFR 1.1206(b). Ex parte U.S. Postal Service mail (although the Federal Communications Commission. presentations are permissible if Commission continues to experience Marlene H. Dortch, disclosed in accordance with delays in receiving U.S. Postal Service Secretary. Commission rules, except during the mail). All filings must be addressed to Proposed Rule Changes Sunshine Agenda period when the Commission’s Secretary, Office of presentations, ex parte or otherwise, are the Secretary, Federal Communications For the reasons discussed in the generally prohibited. Persons making Commission. preamble, the FCC proposes to amend oral ex parte presentations are reminded • The Commission’s contractor will 47 CFR part 73 as follows: that a memorandum summarizing a receive hand-delivered or messenger- presentation must contain a summary of delivered paper filings for the PART 73—RADIO BROADCAST the substance of the presentation and Commission’s Secretary at 236 SERVICES not merely a listing of the subjects Massachusetts Avenue, NE., Suite 110, 1. The citation authority for part 73 discussed. More than a one-or two- Washington, DC 20002. The filing hours continues to read as follows: sentence description of the views and at this location are 8 a.m. to 7 p.m. All arguments presented is generally hand deliveries must be held together Authority: 47 U.S.C. 154, 303, 334, 336, required. Additional rules pertaining to with rubber bands or fasteners. Any and 339. oral and written presentations are set envelopes must be disposed of before 2. Section 73.855 is revised to read as forth in 47 CFR 1.1206(b). entering the building. follows: • Commercial overnight mail (other Filing Requirements than U.S. Postal Service Express Mail § 73.855 Ownership limits. 43. Comments and Replies. Pursuant and Priority Mail) must be sent to 9300 (a) No authorization for an LPFM to 47 CFR 1.415 and 1.419, interested East Hampton Drive, Capitol Heights, station shall be granted to any party if parties may file comments and reply MD 20743. the grant of that authorization will comments on or before 30 days after • U.S. Postal Service first-class, result in any such party holding an publication in the Federal Register and Express, and Priority mail should be attributable interest in two LPFM reply comments on or before 45 days addressed to 445 12th Street, SW., stations. after publication in the Federal Washington DC 20554. (b) Not-for-profit organizations and Register. Comments may be filed using: 46. In addition to filing comments governmental entities with a public (1) The Commission’s Electronic with the Office of the Secretary, a copy safety purpose may be granted multiple Comment Filing System (ECFS), (2) the of any comments on the Paperwork licenses if:
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(1) One of the multiple applications is § 73.872 Selection procedure for mutually will be required, within 30 days of submitted as a priority application; and exclusive LPFM applications. written notification by Commission (2) The remaining non-priority * * * * * staff, to submit a written settlement applications do not face a mutually (c) Voluntary time-sharing. If agreement as to construction and license exclusive challenge. mutually exclusive applications have term sequence. Failure to submit such 3. Section 73.865 is revised to read as the same point total, any two or more of an agreement will result in the dismissal follows: the tied applicants may propose to share of the applications proposing same-site use of the frequency by submitting, facilities and the grant of the remaining, § 73.865 Assignment and transfer of LPFM within 90 days of the release of a public eligible applications. authorizations. notice announcing the tie, a time-share * * * * * A change in the name of an LPFM proposal. Such proposals shall be 7. Section 73.3598 is amended by licensee where no change in ownership treated as amendments to the time-share revising paragraph (a) to read as follows: or control is involved may be proponents’ applications and shall accomplished by written notification by become part of the terms of the station § 73.3598 Period of construction. the licensee to the Commission. license. Such proposals may include (a) Each original construction permit 4. Section 73.870 is amended by amendments to the applications for the construction of a new TV, AM, revising paragraph (a) to read as follows: proposing to relocate the transmitter to FM, or International Broadcast; low a central location between the proposed power TV; TV translator; TV booster; § 73.870 Processing of LPFM broadcast transmitter sites, notwithstanding the FM translator; FM booster; or LPFM station applications. site relocation limits set forth in station, or to make changes in such (a) Except as provided in § 73.872(c), §§ 73.870 and 73.871. Where such existing stations, shall specify a period a minor change for an LP100 station proposals include all of the tied of three years from the date of issuance authorized under this subpart is limited applications, all of the tied applications of the original construction permit to transmitter site relocations of 5.6 will be treated as tentative selectees; within which construction shall be kilometers or less. Except as provided in otherwise, time-share proponents’ completed and application for license § 73.872(c), a minor change for an LP10 points will be aggregated to determine filed. station authorized under this subpart is the tentative selectees. * * * * * limited to transmitter site relocations of (1) Time-share proposals shall be in [FR Doc. 05–13369 Filed 7–6–05; 8:45 am] 3.2 kilometers or less. Minor changes of writing and signed by each time-share BILLING CODE 6712–01–P LPFM stations may include changes in proponent, and shall satisfy the frequency to adjacent or IF frequencies following requirements: (i) The proposal must specify the or, upon a technical showing of reduced DEPARTMENT OF THE INTERIOR interference, to any frequency. proposed hours of operation of each * * * * * time-share proponent; Fish and Wildlife Service (ii) The proposal must not include 5. Section 73.871 is amended by simultaneous operation of the time- revising paragraph (c) to read as follows: 50 CFR Part 17 share proponents; § 73.871 Amendment of LPFM broadcast (iii) Each time-share proponent must RIN 1018–AT88 station applications. propose to operate for at least 10 hours Endangered and Threatened Wildlife * * * * * per week; and (iv) If the time-share proponents and Plants; Reopening of the (c) Only minor amendments to new Comment Period on Proposed and major change applications will be propose to relocate the transmitter site to a central location beyond the site Designation of Critical Habitat for the accepted after the close of the pertinent Southwestern Willow Flycatcher filing window. Subject to the provisions relocation limits set forth in § 73.871, of this section, such amendments may the proposal must demonstrate that the AGENCY: Fish and Wildlife Service, be filed as a matter of right by the date proposed transmitter site is centrally Interior. located. specified in the FCC’s Public Notice ACTION: Proposed rule; reopening of announcing the acceptance of such * * * * * public comment period. applications. For the purposes of this (d) * * * section, and except as provided in (1) If a tie among mutually exclusive SUMMARY: We, the U.S. Fish and § 73.872(c), minor amendments are applications is not resolved through Wildlife Service (Service), announce the limited to: time-sharing in accordance with reopening of the public comment period (1) Site relocations of 3.2 kilometers paragraph (c) of this section, the tied for the proposal to designate critical or less for LP10 stations; applications will be reviewed for habitat for the southwestern willow (2) Site relocations of 5.6 kilometers acceptability and applicants with tied, flycatcher (Empidonax traillii extimus) or less for LP100 stations; grantable applications will be eligible to allow all interested parties to for equal, successive license terms of no comment on the proposed critical (3) Changes in ownership where the less than one year each for a total habitat designation under the original party or parties to an combined term of eight years, in Endangered Species Act of 1973, as application retain more than a 50 accordance with § 73.873. Eligible amended (Act) (16 U.S.C. 1531 et seq.); percent ownership interest in the applications will be granted the draft economic analysis; draft application as originally filed; and simultaneously, and the sequence of the environmental assessment; and the (4) Other changes in general and/or applicants’ license terms will be associated required determinations legal information. determined by the sequence in which discussed below. * * * * * they file applications for licenses to Comments previously submitted on 6. Section 73.872 is amended by cover their construction permits based the October 12, 2004, proposed rule (69 revising paragraphs (c) introductory on the day of filing, except that eligible FR 60705), and the December 13, 2004 text, (c)(1), and (d)(1) to read as follows: applicants proposing same-site facilities (69 FR 72161), March 31, 2005 (70 FR
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16474), and April 28, 2005 (70 FR Biological Diversity, the U.S. District water supply benefits, and (4) tribal 21988), publications, need not be Court of New Mexico instructed us to lands. resubmitted as they have been propose critical habitat by September Pursuant to 50 CFR 424.16(c)(2), we incorporated into the public record and 30, 2004, and publish a final rule by may extend or reopen a comment period will be fully considered in preparation September 30, 2005. Additional upon finding that there is good cause to of the final rule. background information is available in do so. In our proposed rule, we DATES: We will consider all comments the October 12, 2004, proposal to withheld our determination of whether received from interested parties by July designate critical habitat. this designation would be in 18, 2005. Any comments received after Critical habitat identifies specific compliance with certain Executive the closing date may not be considered areas that are essential to the orders and statutes until we completed in the final determination on the conservation of a listed species and that our draft economic analysis of the proposal. may require special management proposed designation so that we would have the factual basis for our ADDRESSES: If you wish to comment, considerations or protection. If the determination. This notice serves to you may submit your comments and proposed rule is made final, section 7 of provide the factual basis for this materials by any one of several methods: the Act will prohibit adverse 1. You may submit written comments modification of critical habitat by any determination, as outlined below. We and information by mail or hand- activity funded, authorized, or carried deem this consideration as sufficient delivery to Steve Spangle, Field out by any Federal agency. Federal cause to reopen the comment period. We are required by court order to Supervisor, Arizona Ecological Services agencies proposing actions affecting complete the final designation of critical Field Office, 2321 W. Royal Palm Road, areas designated as critical habitat must habitat for the southwestern willow Suite 103, Phoenix, Arizona 85021. consult with us on the effects of their 2. Written comments may be sent by proposed actions, pursuant to section flycatcher by September 30, 2005. To facsimile to (602) 242–2513. 7(a)(2) of the Act. meet this date, all comments on or 3. You may send your comments by Section 4 of the Act requires that we proposed revisions to the proposed rule electronic mail (e-mail) to consider economic and other relevant need to be submitted to us by July 18, [email protected]. impacts prior to making a final decision 2005 (see DATES). You may obtain copies of the critical on what areas to designate as critical Our practice is to make comments, habitat proposal and supporting maps, habitat. We may revise the proposal, or including names and home addresses of draft economic analysis, and draft its supporting documents, to respondents, available for public review environmental assessment by mail by incorporate or address new information during regular business hours. contacting the person listed under FOR received during the comment period. In Individual respondents may request that FURTHER INFORMATION CONTACT, or by particular, we may exclude an area from we withhold their home address, which visiting our Web site at http:// critical habitat if we determine that the we will honor to the extent allowable by arizonaes.fws.gov/SWWF_PCH_Oct.htm. benefits of excluding the area outweigh law. If you wish us to withhold your You may review comments and the benefits of including the area as name or address, you must state this materials received, and review critical habitat, provided such exclusion request prominently at the beginning of supporting documentation used in will not result in the extinction of the your comments. However, we will not preparation of this proposed rule by species. During the comment period we consider anonymous comments. To the appointment, during normal business anticipate receiving Tribal conservation extent consistent with applicable law, hours, at the above address. plans and conservation plans from local we will make all submissions from organizations or businesses, and from FOR FURTHER INFORMATION CONTACT: government entities with authority over Steve Spangle, Field Supervisor, areas covered under the proposed individuals identifying themselves as Arizona Ecological Services Office designation. We note that areas covered representatives or officials of (telephone 602–242–0210, facsimile under such plans, received during the organizations or businesses, available 602–242–2513). comment period, will be considered for for public inspection in their entirety. SUPPLEMENTARY INFORMATION: exclusion in the final rule pursuant to Required Determinations—Amended section 4(b)(2) of the Act. Additionally, Background as noted in our proposal, we will Regulatory Planning and Review We proposed to designate for the consider excluding, pursuant to section In accordance with Executive Order southwestern willow flycatcher 4(b)(2) of the Act, (1) legally operative 12866, this document is a significant approximately 376,095 acres (ac) Habitat Conservation Plans (HCPs) that rule because it may raise novel legal and (152,124 hectares (ha)) [including cover the species and provide policy issues. However, based on our approximately 1,556 stream miles (2,508 assurances that the conservation draft economic analysis, it is not stream kilometers)] of critical habitat, measures for the species will be anticipated that the proposed which includes various stream segments implemented and effective, as well as designation of critical habitat for the and their associated riparian areas, not draft HCPs that cover the species, have southwestern willow flycatcher will exceeding the 100-year floodplain or undergone public review and comment, result in an annual effect on the flood-prone area, on a combination of and provide assurances that the economy of $100 million or more or Federal, State, tribal, and private lands conservation measures for the species affect the economy in a material way. in southern California, southern will be implemented and effective (i.e., Due to the timeline for publication in Nevada, southwestern Utah, south- pending HCPs), (2) National Wildlife the Federal Register, the Office of central Colorado, Arizona, and New Refuges with Comprehensive Management and Budget (OMB) has not Mexico. The proposed rule was Conservation Plans (CCPs) or formally reviewed the proposed rule or published in the Federal Register (69 conservation programs that provide accompanying economic analysis. FR 60705) on October 12, 2004, assurances that the conservation Further, Executive Order 12866 pursuant to a court order. measures for the species will be directs Federal Agencies promulgating On September 30, 2003, in response implemented and effective, (3) water regulations to evaluate regulatory to a complaint brought by the Center for systems that provide flood control or alternatives (Office of Management and
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Budget, Circular A–4, September 17, mining concerns with fewer than 500 Water Management and Water Supply 2003). Pursuant to Circular A–4, once it employees, wholesale trade entities Activities has been determined that the Federal with fewer than 100 employees, retail Under one scenario analyzed in the regulatory action is appropriate, then and service businesses with less than $5 draft economic analysis, water operators the agency will need to consider million in annual sales, general and are assumed to be required to change alternative regulatory approaches. Since heavy construction businesses with less their management regimes to avoid the determination of critical habitat is a than $27.5 million in annual business, adverse affects to southwestern willow statutory requirement pursuant to the special trade contractors doing less than flycatcher habitat, resulting in a loss of Endangered Species Act of 1973, as $11.5 million in annual business, and water for beneficial use (i.e. reservoir amended (Act) (16 U.S.C. 1531 et seq.), agricultural businesses with annual pools will be limited to current levels in we must then evaluate alternative sales less than $750,000. To determine order to avoid inundation of regulatory approaches, where feasible, if potential economic impacts to these southwestern willow flycatcher habitat). when promulgating a designation of small entities are significant, we Facilities assessed under this scenario critical habitat. considered the types of activities that include Lake Hodges, Cuyamaca In developing our designations of might trigger regulatory impacts under Reservoir, Vail Dam, Pleasant Valley critical habitat, we consider economic this designation as well as types of Reservoir, Isabella Dam, Hoover Dam, impacts, impacts to national security, project modifications that may result. In Parker Dam, Alamo Dam, Roosevelt and other relevant impacts pursuant to general, the term significant economic Dam, and Horseshoe Dam. Under this section 4(b)(2) of the Act. Based on the impact is meant to apply to a typical scenario, it is expected that this discretion allowable under this small business firm’s business provision, we may exclude any operations. economic cost will result in higher particular area from the designation of To determine if this proposed water prices to commercial and critical habitat providing that the designation of critical habitat for the residential users; however, we find that benefits of such exclusion outweighs the southwestern willow flycatcher would no small businesses are directly benefits of specifying the area as critical affect a substantial number of small impacted under this scenario. habitat and that such exclusion would entities, we considered the number of Some water users may be more not result in the extinction of the small entities affected within particular directly affected by changes in water species. As such, we believe that the types of economic activities (e.g., water supply that could occur as a result of evaluation of the inclusion or exclusion management and supply, livestock southwestern willow flycatcher of particular areas, or combination grazing, land development, recreation). conservation activities, specifically, thereof, in a designation constitutes our We considered each industry or agricultural users dependent on the regulatory alternative analysis. category individually to determine if drought reserves provided by these certification is appropriate. In systems. Appendix A of the draft Regulatory Flexibility Act (5 U.S.C. 601 estimating the numbers of small entities economic analysis provides a profile of et seq.) potentially affected, we also considered the agricultural users that are at greatest Under the Regulatory Flexibility Act whether their activities have any risk from direct losses in water supply (5 U.S.C. 601 et seq., as amended by the Federal involvement; some kinds of under this scenario. The four water SBREFA), whenever an agency is activities are unlikely to have any systems that provide water to required to publish a notice of Federal involvement and so will not be agricultural users include Lake Isabella rulemaking for any proposed or final affected by the designation of critical (including the North Kern Water Storage rule, it must prepare and make available habitat. Designation of critical habitat District, the Buena Vista Storage for public comment a regulatory only affects activities conducted, District, and the City of Bakersfield flexibility analysis that describes the funded, permitted or authorized by Water Resources Department); Roosevelt effect of the rule on small entities (i.e., Federal agencies; non-Federal activities and Horseshoe (the Salt River Project small businesses, small organizations, are not affected by the designation. operates six reservoirs and dams on the and small government jurisdictions). If this proposed critical habitat Salt and Verde Rivers); Coolidge Dam However, no regulatory flexibility designation is made final, Federal (San Carlos Irrigation Project); and analysis is required if the head of an agencies must consult with us if their Lower Colorado River (water from the agency certifies the rule will not have a activities may affect designated critical Colorado River is diverted to six States significant economic impact on a habitat. Consultations to avoid the and is used for every purpose, including substantial number of small entities. As destruction or adverse modification of agricultural uses). noted above, in our proposed rule we critical habitat would be incorporated Livestock Grazing Activities withheld our determination of whether into the existing consultation process. this designation would result in a In our economic analysis of this Impacts to livestock grazing include significant effect as defined under proposed designation we evaluated the an estimated reduction in the level of SBREFA until we completed our draft potential economic effects on small grazing effort within the proposed economic analysis of the proposed business entities and small governments designation of 89,300 AUM (animal unit designation so that we would have the resulting from conservation actions months), of which 1,300 are federally factual basis for our determination. related to the listing of this species and permitted, and 88,000 are on private According to the Small Business proposed designation of its critical lands. The AUM reduction could Administration (SBA), small entities habitat. We evaluated small business represent approximately 1 percent of include small organizations, such as entities in four categories: Water AUMs for each of 105 affected ranchers independent nonprofit organizations management and supply activities, holding Federal grazing permits in the and small governmental jurisdictions, livestock grazing, land development, proposed designation cumulatively over including school boards and city and and recreation. The following summary 20 years. On non-Federal lands, impacts town governments that serve fewer than of the information contained in on grazing efforts are more uncertain, 50,000 residents, as well as small Appendix A of the draft economic since maps describing the overlap of businesses (13 CFR 121.201). Small analysis provides the basis for our privately grazed lands and the businesses include manufacturing and determination. designation are not available. However,
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if each ranch affected is small, then 0 to regulatory action under E.O. 12866 due these entitlement programs were: 110 ranches cumulatively over 20 years to it potentially raising novel legal and Medicaid; AFDC work programs; Child could experience a total reduction in policy issues, but it is not expected to Nutrition; Food Stamps; Social Services private lands grazing effort. We believe significantly affect energy supplies, Block Grants; Vocational Rehabilitation that this would represent approximately distribution, or use. Appendix B of the State Grants; Foster Care, Adoption 0.3 percent of beef cow operations in draft economic analysis provides a Assistance, and Independent Living; affected States. However, we will detailed discussion and analysis of this Family Support Welfare Services; and continue to evaluate the potential determination. Specifically, two criteria Child Support Enforcement.) ‘‘Federal economic impacts by determining the were determined to be relevant to this private sector mandate’’ includes a number of AUMs per region and the analysis: (1) reductions in electricity regulation that ‘‘would impose an number of ranches per the region to production in excess of 1 billion enforceable duty upon the private determine if our assessment is accurate. kilowatt-hours per year or in excess of sector, except (i) a condition of Federal 500 megawatts of installed capacity, and assistance; or (ii) a duty arising from Land Development Activities (2) increases in the cost of energy participation in a voluntary Federal Impacts to development activities production in excess of 1 percent. The program.’’ within the proposed designation draft analysis finds that no net The designation of critical habitat include land value loss, other project reduction in electricity production is does not impose a legally binding duty modifications, California Environmental anticipated, and thus we do not on non-Federal Government entities or Quality Act costs, and project delay anticipate that the suggested OMB private parties. Under the Act, the only costs in the Mojave and Santa Ana threshold of 1 billion kilowatt hours regulatory effect is that Federal agencies Management Units in California. It was will be exceeded. In addition, total must ensure that their actions do not determined in the draft economic financial impacts related to destroy or adversely modify critical analysis that less than 1 percent of land southwestern willow flycatcher habitat under section 7. Non-Federal developers will be affected, and 0.02 conservation activities ($2.7 million entities that receive Federal funding, percent of annual revenues of small annually) represent 0.02 percent of the assistance, permits, or otherwise require land developers in this area may be lost. estimated annual baseline cost of approval or authorization from a Federal agency for an action, may be indirectly Recreation Activities regional energy production, and this is well below the 1 percent threshold impacted by the designation of critical Impacts to recreation activities suggested by OMB. Therefore, this habitat. However, the legally binding include limitations on vehicle use, fires, action is not a significant action, and no duty to avoid destruction or adverse and cigarette smoking in two areas near Statement of Energy Effects is required. modification of critical habitat rests Roosevelt Lake on the Tonto National squarely on the Federal agency. Forest, and fewer trips to the area for Unfunded Mandates Reform Act (2 Furthermore, to the extent that non- hunting and fishing for a total annual U.S.C. 1501 et seq.) Federal entities are indirectly impacted impact of approximately 0.25 percent of In accordance with the Unfunded because they receive Federal assistance annual small business revenues in Gila Mandates Reform Act (2 U.S.C. 1501), or participate in a voluntary Federal aid County. the Service makes the following program, the Unfunded Mandates Based on this data we have findings: Reform Act would not apply; nor would determined that this proposed (a) This rule will not produce a critical habitat shift the costs of the large designation would not affect a Federal mandate. In general, a Federal entitlement programs listed above on to substantial number of small businesses mandate is a provision in legislation, State governments. involved in or affected by water statute, or regulation that would impose (b) The economic analysis discusses management and supply activities, an enforceable duty upon State, local, or potential impacts of critical habitat livestock grazing, land development, tribal governments, or the private sector, designation for the southwestern willow and recreation. Further, we have and includes both ‘‘Federal flycatcher on water management determined that this proposed intergovernmental mandates’’ and activities, administrative costs, livestock designation would also not result in a ‘‘Federal private sector mandates.’’ grazing, residential and commercial significant effect to the annual sales of These terms are defined in 2 U.S.C. development activities, Tribes, those small businesses impacted by this 658(5)–(7). ‘‘Federal intergovernmental transportation activities, recreation proposed designation. As such, we are mandate’’ includes a regulation that activities, and fire management certifying that this proposed designation ‘‘would impose an enforceable duty activities. The analysis estimates that of critical habitat would not result in a upon State, local, or tribal annual costs of the rule could range significant economic impact on a governments,’’ with two exceptions. It from $29.2 to $39.5 million annually substantial number of small entities. excludes ‘‘a condition of federal using the most likely costs scenario. Please refer to Appendix A of our draft assistance.’’ It also excludes ‘‘a duty Impacts are largely anticipated to affect economic analysis of this designation arising from participation in a voluntary water operators and Federal and State for a more detailed discussion of Federal program,’’ unless the regulation agencies, with some effects on livestock potential economic impacts to small ‘‘relates to a then-existing Federal grazing operations, land development business entities. program under which $500,000,000 or activities, and recreation activities. more is provided annually to State, Impacts on small governments are not Executive Order 13211 local, and tribal governments under anticipated, or they are anticipated to be On May 18, 2001, the President issued entitlement authority,’’ if the provision passed through to consumers. For Executive Order (E.O.) 13211 on would ‘‘increase the stringency of example, costs to water operations regulations that significantly affect conditions of assistance’’ or ‘‘place caps would be expected to be passed on to energy supply, distribution, and use. upon, or otherwise decrease, the Federal consumers in the form of price changes. E.O. 13211 requires agencies to prepare Government’s responsibility to provide Consequently, for the reasons discussed Statements of Energy Effects when funding’’ and the State, local, or tribal above, we do not believe that the undertaking certain actions. This governments ‘‘lack authority’’ to adjust designation of critical habitat for the proposed rule is considered a significant accordingly. (At the time of enactment, southwestern willow flycatcher will
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significantly or uniquely affect small DATES: All information must be received Mabe, (phone: 208–378–5698), email government entities. As such, a Small no later than 5 p.m. Pacific Daylight address: [email protected]. Government Agency Plan is not Time on September 6, 2005. SUPPLEMENTARY INFORMATION: NMFS is required. ADDRESSES: Information may be charged with the recovery of Pacific Takings submitted by any of the following salmon and steelhead species listed methods: under the ESA. Recovery under the Act In accordance with Executive Order • E-mail: The mailbox address for means that listed species and their 12630 (‘‘Government Actions and submitting e-mail information for ecosystems are restored, and their future Interference with Constitutionally recovery planning is secured, so that the protections of the Protected Private Property Rights’’), we [email protected]. Please ESA are no longer necessary. have analyzed the potential takings include in the subject line of the e-mail There are 15 ‘‘distinct population implications of proposing critical comment the identifier ‘‘Information for segments’’ or ESUs of salmon and habitat for the southwestern willow ESA Recovery Planning, Attention: steelhead listed as threatened or flycatcher in a takings implications (insert name of appropriate NMFS endangered in Oregon, Washington, and assessment. The takings implications Recovery Coordinator)’’ and specify the Idaho: assessment concludes that this proposed recovery domain to which your Chinook Salmon (Oncorhynchus designation of critical habitat for the information applies (see FOR FURTHER tshawytscha): Upper Willamette River; southwestern willow flycatcher does not INFORMATION CONTACT). Lower Columbia River; Upper Columbia pose significant takings implications. • Federal e-rulemaking portal: http:// River Spring-run; Puget Sound; Snake Authority www.regulations.gov River Fall-run; and Snake River Spring/ • Mail: Submit written comments and Summer-run. The authority for this action is the information to Salmon Recovery Branch Chum Salmon (Oncorhynchus keta): Endangered Species Act of 1973 (16 Chief, NMFS, Salmon Recovery Hood Canal summer-run; Columbia U.S.C. 1531 et seq.). Division, 1201 NE Lloyd Boulevard, River. Dated: June 30, 2005. Suite 1100, Portland, Oregon, 97232– Sockeye Salmon (Oncorhynchus Craig Manson, 1274. Please identify information as nerka): Snake River; Ozette Lake. regarding the ‘‘Information for ESA Assistant Secretary for Fish and Wildlife and Steelhead Salmon (Oncorhynchus Parks. Recovery Planning.’’ mykiss): Upper Willamette River; Lower • Hand Delivery/Courier: NMFS, [FR Doc. 05–13402 Filed 7–6–05; 8:45 am] Columbia River; Middle Columbia Salmon Recovery Division, 1201 NE River; Upper Columbia River; Snake BILLING CODE 4310–55–P Lloyd Boulevard, Suite 1100, Portland, River Basin. Oregon, 97232–1274. You can hand- NMFS has proposed to list Oregon DEPARTMENT OF COMMERCE deliver written information to our office Coast coho and the Lower Columbia at the street address above. Business River coho ESUs as threatened (69 FR National Oceanic and Atmospheric hours are 8 a.m. to 5 p.m., Monday 33102; June 14, 2004). If these ESUs are Administration through Friday, except Federal holidays. listed, they will be included in the • Fax: 503–872–2737. Please identify Oregon Coast and Willamette/Lower 50 CFR Parts 223 and 224 the fax comment as regarding Columbia River recovery planning ‘‘Information for Recovery Plans’’ and efforts. Notice of recovery plans for the specify the recovery domain to which [I.D. 062005C] Southern Oregon/Northern California your information applies (see FOR Coast coho ESU will be announced Endangered and Threatened Species: FURTHER INFORMATION CONTACT). separately with other California ESUs. Recovery Plan Preparation for 16 FOR FURTHER INFORMATION CONTACT: The ESA requires that NMFS develop Evolutionarily Significant Units (ESUs) NMFS, Northwest Region, Salmon and implement recovery plans for the of Pacific Salmon and Steelhead Recovery Division, and contact the conservation and survival of endangered recovery coordinator listed below for and threatened species. These recovery AGENCY: National Marine Service the area in which you are interested. plans provide blueprints to determine (NMFS), National Oceanic and Additional salmon-related materials are priority recovery actions for funding Atmospheric Administration (NOAA), available on the Internet at and implementation. The ESA specifies Commerce. www.nwr.noaa.gov. that recovery plans must include: (1) a ACTION: Notice of intent; request for Puget Sound Recovery Domain: description of site-specific management information. Elizabeth Babcock, (phone: 206–526– actions as may be necessary to achieve 4505), email address: the plan’s goals for the conservation and SUMMARY: NMFS announces its intent to Elizabeth.Babcock@noaagov; Upper survival of the species; (2) objective, develop recovery plans for 16 ESUs of Columbia Recovery Domain: Lynn measurable criteria, which when met, Pacific salmon and steelhead in the Hatcher, (phone: 509–962–8911 x 223), would result in the species being Northwest listed as threatened or email address: [email protected]; removed from the list; and (3) estimates endangered under the Endangered Mid Columbia Recovery Domain: Paula of the time and costs required to achieve Species Act (ESA) and requests Burgess, (phone: 503–808–6525), email the plan’s goal and achieve intermediate information from the public. NMFS is address: [email protected]; steps toward that goal. NMFS will take required by the ESA to develop and Willamette/Lower Columbia Recovery into consideration information provided implement recovery plans for the Domain: Patty Dornbusch, (phone: 503– during this comment period to prepare conservation and survival of listed 230–5430), email address: draft recovery plans. species. NMFS is working with state, [email protected]; Oregon In order to develop recovery plans Federal, tribal and local entities in Coast Recovery Domain: Rosemary that address multiple species in an Washington, Oregon and Idaho to Furfey, (phone: 503–231–2149), email ecosystem context, NMFS organized the produce draft recovery plans by address: [email protected]; listed and proposed ESUs in the December 2005. Snake River Recovery Domain: David Northwest into six recovery areas or
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‘‘domains’’ (Puget Sound, Upper domains. Finally, NMFS has developed NMFS requests relevant information Columbia, Middle Columbia, Snake a schedule for producing draft recovery from the public that should be River, Oregon Coast, and Willamette/ plans in each recovery domain by addressed during preparation of draft Lower Columbia). Each domain will December 2005. Because draft recovery recovery plans. Such information have a recovery plan that addresses all plans will be based on local recovery should address: (1) criteria for removing listed salmon and steelhead ESUs planning efforts, the level of detail in the ESUs from the list of threatened and within that area. While each recovery these draft recovery plans completed by endangered species; (2) factors that are plan will meet the requirements of the December will vary. After further local presently limiting, or threaten to limit ESA and will utilize consistent public review by federal agencies, state survival of the ESUs; (3) actions to scientific principles, each plan also will and tribal co-managers, and interested address limiting factors and threats; (4) be unique because of conditions in that persons, NMFS will publish proposed estimates of time and cost to implement domain and because it will be based on recovery plans in the Federal Register recovery actions; and 5) research, local initiatives such as the State of and public comment will be sought for monitoring, and evaluation needs. Washington’s regional recovery boards, each proposed plan. the Northwest Power and Conservation As part of its recovery planning Authority: 16 U.S.C. 1531 et seq. Council’s subbasin plans and the State process, NMFS published a Notice of Dated: June 30, 2005. of Oregon’s Oregon Plan for Salmon and Availability of a Draft Interim Regional Watersheds’ Oregon Coast Coho Project. Recovery Plan for Portions of Three P. Michael Payne, To develop key technical products and ESUs of Salmon and Steelhead within Acting Division Chief, Endangered Species provide science support NMFS formed the Washington Lower Columbia Division, Office of Protected Resources, teams of scientists, called ‘‘Technical Management Unit (70 FR 20531; April National Marine Fisheries Service. Recovery Teams’’ for: Puget Sound, 20, 2005). Public comment is being [FR Doc. 05–13394 Filed 7–6–05; 8:45 am] Willamette/Lower Columbia, Interior sought until June 20, 2005, on this draft BILLING CODE 3510–22–S Columbia, and Oregon Coast recovery regional recovery plan.
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Notices Federal Register Vol. 70, No. 129
Thursday, July 7, 2005
This section of the FEDERAL REGISTER the FSIS Internet Web page http:// of the National Academy of Sciences for contains documents other than rules or www.fsis.usda.gov/News/ an interagency approach to proposed rules that are applicable to the Meeting_&_Events/. microbiological criteria for foods, and in public. Notices of hearings and investigations, Also, the official transcripts of the response to a recommendation of the committee meetings, agency decisions and July 2005 full Committee meeting, when U.S. House of Representatives rulings, delegations of authority, filing of petitions and applications and agency they become available, will be kept in Committee on Appropriations, as statements of organization and functions are the FSIS Docket Room at the above expressed in the Rural Development, examples of documents appearing in this address and will also be posted on Agriculture, and Related Agencies section. http://www.fsis.usda.gov/About/ Appropriation Bill for fiscal year 1988. NACMCF_Meetings/. The Charter for the NACMCF is FSIS invites interested persons to available for viewing on the FSIS DEPARTMENT OF AGRICULTURE submit comments on this notice. Internet Web page at http:// Comments may be submitted by any of www.fsis.usdas.gov/About/NACMCF Food Safety and Inspection Service the following methods: Charter/. • The NACMCF provides scientific [Docket No. 05–018N] Mail, including floppy disks or CD– ROM’s, and hand- or courier-delivered advice and recommendations to the National Advisory Committee on items: Send to Docket Clerk, United Secretary of Agriculture and the Microbiological Criteria for Foods States Department of Agriculture Secretary of Health and Human Services (USDA), Food Safety and Inspection on public health issues relative to the AGENCY: Food Safety and Inspection Service, 300 12th Street, SW., Room 102 safety and wholesomeness of the U.S. Service, USDA. Cotton Annex, Washington, DC 20250. food supply, including development of ACTION: Notice of public meeting; All submissions received must microbiological criteria and review and request for comments. include the Agency name and docket evaluation of epidemiological and risk number 05–018N. assessment data and methodologies for SUMMARY: This notice announces that All comments submitted in response assessing microbiological hazards in the National Advisory Committee on to this notice, as well as research and foods. The Committee also provides Microbiological Criteria for Foods background information used by FSIS in advice to the Centers for Disease Control (NACMCF) will hold public meetings of developing this document, will be and Prevention and the Departments of the full Committee and subcommittees available for public inspection in the Commerce and Defense. on July 12–15, 2005. The Committee FSIS Docket Room at the address listed Dr. Merle Pierson, Acting Under will discuss: above between 8:30 a.m. and 4:30 p.m., Secretary for Food Safety, USDA, is the (1) Analytical utility of Monday through Friday. The comments Committee Chair; Dr. Robert E. Brackett, Campylobacter methodologies, also will be posted on the Agency’s Web Director of Food and Drug (2) Determination of cooking site at http://www.fsis.usda.gov/ Administration’s Center for Food Safety parameters for safe seafood for regulations/2005_Notices_Index/. and Applied Nutrition (CFSAN), is the consumers, and See the disclaimer section below Vice-Chair; and Gerri Ransom, FSIS, is (3) Consumer guidelines for the safe regarding modifications that may be the Executive Secretariat. cooking of poultry products. necessary due to the presentation of the At the meetings the week of July 12– 15, 2005 the Committee will discuss: DATES: The full Committee and comments. • subcommittees will hold open meetings The mailing address for the contact The analytical utility of on Tuesday, July 12, 2005, from 10:45 person below, Karen Thomas, is: Food Campylobacter methodologies, • The determination of cooking a.m. to 5 p.m., Wednesday and Safety and Inspection Service, USDA, parameters for safe seafood for Thursday, July 13–14, 2005, from 8:30 Office of Public Health Science, consumers, and a.m. to 5 p.m., and Friday, July 15, 2005, Aerospace Center, Room 333, 1400 • Consumer guidelines for the safe from 8:30 a.m.–12 p.m. Independence Avenue, SW., cooking of poultry products. ADDRESSES: The meetings will be held at Washington, DC 20250–3700. the Washington Plaza Hotel, 10 Thomas FOR FURTHER INFORMATION CONTACT: Documents Reviewed by NACMCF Circle, NW., Washington, DC 20004; Persons interested in making a FSIS intends to make available to the telephone number 202–842–1300 or presentation, submitting technical public all materials that are reviewed 800–424–1140. All documents related to papers, or providing comments should and considered by NACMCF regarding full Committee meetings will be contact Karen Thomas, phone (202) its deliberations. Generally, these available for public inspection in the 690–6620, Fax (202) 690–6334, e-mail materials will be made available as soon Food Safety and Inspection Service address: [email protected], or as possible after the full Committee (FSIS) Docket Room between 8:30 a.m. at the mailing address above. Persons meeting. Further, FSIS intends to make and 4:30 p.m., Monday through Friday, requiring a sign language interpreter or these materials available in both as soon as they become available. The other special accommodations should electronic formats on the FSIS Web NACMCF documents will also be notify Ms. Thomas, by July 8, 2005. page, as well as in hard copy format in available on the Internet at http:// SUPPLEMENTARY INFORMATION: the FSIS Docket Room. Often, an www.fsis.usda.gov/regulations/ attempt is made to make the materials 2005_Notices_Index/. Background available at the start of the full FSIS will finalize an agenda on or The NACMCF was established in Committee meeting when sufficient before the meeting dates and post it on 1988, in response to a recommendation time is allowed in advance to do so.
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Disclaimer: For electronic copies, all customers to sign up for subscription BROADCASTING BOARD OF NACMCF documents and comments are options across eight categories. Options GOVERNORS electronic conversions from a variety of range from recalls to export information source formats into HTML that may to regulations, directives, and notices. Sunshine Act Meeting have resulted in character translation or Customers can add or delete format errors. Readers are cautioned not DATE AND TIME: Wednesday, July 13, subscriptions themselves and have the to rely on this HTML document. Minor 2005, 1–4 p.m. changes to materials in electronic format option to protect their accounts with PLACE: Cohen Building, Room 3321, 330 may be necessary in order to meet the passwords. Independence Ave., SW., Washington, electronic and information technology Done at Washington, DC on July 1, 2005. DC 20237. accessibility standards contained in Bryce Quick, CLOSED MEETING: The members of the Section 508 of the Rehabilitation Act in Acting Administrator. Broadcasting Board of Governors (BBG) which graphs, charts, and tables must be [FR Doc. 05–13330 Filed 7–6–05; 8:45 am] will meet in closed session to review accompanied by a text descriptor in and discuss a number of issues relating BILLING CODE 3410–DM–P order for the vision-impaired to be made to U.S. Government-funded non- aware of the content. FSIS will add military international broadcasting. these text descriptors along with a DEPARTMENT OF AGRICULTURE They will address internal procedural, qualifier that the text is a simplified budgetary, and personnel issues, as well interpretation of the graph, chart, or Forest Service as sensitive foreign policy issues table. Portable Document Format (PDF) relating to potential options in the U.S. and/or paper documents of the official Tuolumne County Resource Advisory international broadcasting field. This text, figures, and tables can be obtained Committee meeting is closed because if open it from the FSIS Docket Room. likely would either disclose matters that Copyrighted documents will not be AGENCY: Forest Service, USDA. would be properly classified to be kept posted on the FSIS web site, but will be secret in the interest of foreign policy available for inspection in the FSIS ACTION: Notice of meeting. under the appropriate executive order (5 Docket Room. U.S.C. 552b.(c)(1)) or would disclose Additional Public Notification SUMMARY: The Tuolumne County information the premature disclosure of Resource Advisory Committee will meet Public awareness of all segments of which would be likely to significantly on July 18, 2005, at the City of Sonora rulemaking and policy development is frustrate implementation of a proposed Fire Department, in Sonora, California. important. Consequently, in an effort to agency action. (5 U.S.C. 552b.(c)(9)(B)). ensure that the public, and in particular The purpose of the meeting is to review In addition, part of the discussion will minorities, women, and persons with 15 project submittals based on relate solely to the internal personnel disabilities are aware of this notice, presentation made by project and organizational issues of the BBG or FSIS will announce it on-line through proponents. the International Broadcasting Bureau. the FSIS Web page located at http:// (5 U.S.C. 552b.(c)(2) and (6)). DATES: The meetings will be held July www.fsis.usda.gov/regulations/ CONTACT PERSON FOR MORE INFORMATION: 18, 2005, from 12 p.m. to 3 p.m. 2005_Notices_Index/. Persons interested in obtaining more FSIS also will make copies of this ADDRESSES: The meeting will be held at information should contact either Federal Register publication available the City of Sonora Fire Department Brenda Hardnett or Carol Booker at through the FSIS Constituent Update, located at 201 South Shepherd Street, in (202) 203–4545. which is used to provide information Sonora, California (CA 95370). Dated: July 1, 2005. regarding FSIS policies, procedures, Carol Booker, regulations, Federal Register notices, FOR FURTHER INFORMATION CONTACT: Paul Legal Counsel. FSIS public meetings, recalls, and other Kaunert, Committee Coordinator, types of information that could affect or USDA, Stanislaus National Forest, [FR Doc. 05–13498 Filed 7–5–05; 1:52 pm] would be of interest to our constituents 19777 Greenley Road, Sonora, CA 95370 BILLING CODE 8230–01–M and stakeholders. The update is (209) 532–3671; e-mail communicated via Listserv, a free [email protected]. electronic mail subscription service for COMMISSION ON CIVIL RIGHTS industry, trade, and farm groups, SUPPLEMENTARY INFORMATION: Agenda consumer interest groups, allied health items to be covered include: (1) Sunshine Act; Meeting professionals, scientific professionals, Presentation of project submittals by and other individuals who have project proponents, with follow-up AGENCY: U.S. Commission on Civil requested to be included. The update question and answer sessions. Time Rights. also is available on the FSIS web page. allocation for each presentation and DATE AND TIME: Friday, July 15, 2005, Through Listserv and the web page, question/answer session is 10 minutes; 9:30 a.m. FSIS is able to provide information to a (2) public comments on meeting PLACE: Rayburn House Office Building, much broader, more diverse audience. proceeding. This meeting is open to the Room 2226, Washington, DC 20515. In addition, FSIS offers an electronic public. mail subscription service which STATUS: Dated: June 30, 2005. provides an automatic and customized Agenda notification when popular pages are Tom Quinn, updated, including Federal Register Forest Supervisor. Commission Briefing publications and related documents. [FR Doc. 05–13325 Filed 7–6–05; 8:45 am] I. Brief Plaque Presentation Ceremony This service is available at http:// BILLING CODE 3410–ED–M by the National Committee for Employer www.fsis.usda.gov/news_and_events/ Support of the Guard and Reserve to the email_subscription/ and allows FSIS Commission.
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II. Commission Briefing: Stagnation of announcing dates of the public scoping Dated: June 30, 2005. the Black Middle Class. meetings pursuant to the National Eldon Hout, CONTACT PERSON FOR FURTHER Environmental Policy Act (NEPA). The Director, Office of Ocean and Coastal INFORMATION: Kenneth L. Marcus, Staff document contained incorrect citations Resource Management, National Ocean Director, Press and Communications of Alaska State regulations, and the Service, National Ocean and Atmospheric (202) 376–7700. years when the regulatory and Administration. (Federal Domestic Assistance Catalog 11.419 Jenny Park, legislative changes were made, and misstated the type of information NOAA Coastal Zone Management Program Acting Deputy General Counsel. is seeking from the public in the first Administration) [FR Doc. 05–13512 Filed 7–5–05; 3:35 pm] sentence of DATES, and did not provide [FR Doc. 05–13323 Filed 7–6–05; 8:45 am] BILLING CODE 6335–01–M information regarding where the public BILLING CODE 3510–08–P could find a copy of the Alaska program change. DEPARTMENT OF COMMERCE DEPARTMENT OF COMMERCE FOR FURTHER INFORMATION CONTACT: International Trade Administration Helen Bass, 301–713–3155 extension National Oceanic and Atmospheric 175. Administration Exporters’ Textile Advisory [I.D. 040703H] Committee; Notice of Open Meeting Correction Small Takes of Marine Mammals A meeting of the Exporters’ Textile In the Federal Register of June 24, Incidental to Specified Activities; Advisory Committee will be held on 2005, in FR Doc. Volume 70, Number Coastal Commercial Fireworks July 20th at 10 a.m.–2 p.m. at the U.S. 121, on page 36565, correct the Department of Commerce 1401 Displays at Monterey Bay National SUMMARY, the first sentence of DATES, Marine Sanctuary, CA Constitution Ave. NW, Washington, DC and the first sentence of the 20230, Room: B841–B. The meeting will Supplementary Information, captions to AGENCY: National Marine Fisheries be closed from 12–2 p.m. Service (NMFS), National Oceanic and The Committee provides advice and read: Atmospheric Administration (NOAA), guidance to Department officials on the SUMMARY: NOAA announces its Commerce. identification and surmounting of intention to prepare an EIS in barriers to the expansion of textile accordance with the National ACTION: Notice of issuance of an exports, and on methods of encouraging Environmental Policy Act of 1969 for incidental harassment authorization. textile firms to participate in export the proposed approval of amendments SUMMARY: In accordance with the expansion. submitted by the State of Alaska to its provisions of the Marine Mammal The Committee functions solely as an Coastal Management Program. The State Protection Act (MMPA) as amended, advisory body in accordance with the has adopted statutory changes to Coastal notification is hereby given that NMFS provisions of the Federal Advisory Management Administration (AS 46.39) has issued an Incidental Harassment Committee Act. and The Alaska Coastal Management The meeting will be open to the Authorization (IHA) to Monterey Bay Program (AS 46.40), and regulatory public with a limited number of seats National Marine Sanctuary (MBNMS) to changes to Alaska Coastal Management available. For further information or take marine mammals by Level B Implementation (11 AAC 110), copies of the minutes, contact Rachel harassment incidental to permitting Alarid, telephone: (202) 482–5154. Statewide Standards of the Alaska professional fireworks displays within Coastal Management Program (11 AAC the Sanctuary in California waters. July 1, 2005. 112), and District Coastal Management DATES: Effective from July 4, 2005, James C. Leonard III, Plan Requirements (11 AAC 114). The through July 3, 2006. Chairman, Committee for Implementation of Program Change submission, statutory ADDRESSES: A copy of the IHA and the Textile Agreements. changes, and regulatory changes are application are available by writing to [FR Doc. E5–3591 Filed 7–6–05; 8:45 am] available for public review on the Steve Leathery, Chief, Permits, BILLING CODE 3510–DS–S Alaska Coastal Management Program’s Conservation, and Education Division, Web site at http:// Office of Protected Resources, National Marine Fisheries Service, 1315 East- DEPARTMENT OF COMMERCE www.alaskacoast.state.ak.us/OCRM/06– 02–05.htm. West Highway, Silver Spring, MD 20910–3225, or by telephoning the National Oceanic and Atmospheric DATES: Written comments on suggested Administration contact listed here. A copy of the alternatives and potential impacts of the application containing a list of Environmental Statements; Notice of proposed approval of the amendments references used in this document may Intent: Alaska Coastal Management submitted by the State of Alaska to its be obtained by writing to this address, Program; Scoping Meetings; Coastal Management Program will be by telephoning the contact listed here Correction accepted on or before August 5, 2005. (see FOR FURTHER INFORMATION CONTACT) or online at: http://www.nmfs.noaa.gov/ AGENCY: Office of Ocean and Coastal SUPPLEMENTARY INFORMATION: In 2003 and 2005, the State of Alaska adopted protlres/PR2/SmalllTake/ Resource Management (OCRM), smalltakelinfo.htm#applications. National Oceanic and Atmospheric legislation that made substantial revisions to its federally-approved Documents cited in this notice may be Administration (NOAA), Department of viewed, by appointment, during regular Coastal Management Program. In Commerce (DOC). business hours, at the aforementioned addition, regulatory changes ACTION: Notice; correction. address. implementing those legislative revisions SUMMARY: OCRM published a document were made in 2004 and 2005. FOR FURTHER INFORMATION CONTACT: Jolie in the Federal Register of June 24, 2005, Harrison, Office of Protected Resources,
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NMFS, (301) 713–2289, ext 166, or Summary of Request clauses (i) or (ii) are not being met.’’ Monica DeAngelis, NMFS, Southwest On May 10, 2002, NMFS received an Clause (i) states that ‘‘the Secretary shall Regional Office, (562) 980–3232.. application from the MBNMS requesting authorize...taking by harassment of SUPPLEMENTARY INFORMATION: a one-year IHA under section small numbers of marine mammals’’. 101(a)(5)(D) and regulations governing The taking of marine mammals by Background authorizations for a five-year period mortality is, therefore, not authorized Sections 101(a)(5)(A) and (D) of the under section 101(a)(5)(A) of the MMPA under an IHA. Clause (ii) states that MMPA (16 U.S.C. 1361 et seq.) direct for the possible harassment of Pacific ‘‘The authorization for such activity the Secretary of Commerce to allow, harbor seals (Phoca vitulina) and shall prescribe, where applicable-(I) upon request, the incidental, but not California sea lions (Zalophus permissible methods of taking by intentional taking of small numbers of californianus) incidental to coastal harassment pursuant to such activity.’’ marine mammals by U.S. citizens who fireworks displays resulting from The permissible methods of taking engage in a specified activity (other than permits issued to commercial described in this IHA include only commercial fishing) within a specified companies, by MBNMS, to hold Level B harassment, not serious injury. geographical region if certain findings firework events. Were serious injury or death to result from MBNMS’ fireworks displays, their are made and either regulations are Comments and Responses issued or, if the taking is limited to IHA would be modified, suspended, or harassment, notice of a proposed A notice of receipt of the MBNMS revoked. Take of marine mammals as a authorization is provided to the public application and proposed IHA was result of MBNMS’ fireworks displays for review. published in the Federal Register on would then not be covered under the MMPA unless the current IHA were Authorization for incidental takings May 27, 2003 (68 FR 28810). During the comment period, NMFS received modified to avoid injury or mortality, a may be granted if NMFS finds that the take authorization were issued under taking will have no more than a comments only from the Marine Mammal Commission (Commission). section 101(a)(5)(A), or MBNMS negligible impact on the species or reapplied for, and were issued, a new stock(s), will not have an unmitigable Comment 1: The Commission concurs with NMFS’ preliminary determinations IHA with measures included to prevent adverse impact on the availability of the further serious injury or mortality. species or stock(s) for subsistence uses, concerning the impacts of the proposed Comment 4: The Commission and that the permissible methods of activities on California sea lions and recommends that prior to issuing the taking and requirements pertaining to Pacific harbor seals. requested IHA, NMFS be satisfied that the monitoring and reporting of such Response: NMFS appreciates the MBNMS’ monitoring program is taking are set forth. Commission’s comment and is requiring implementation of all mitigation and sufficient to detect the effects of the NMFS has defined ‘‘negligible monitoring activities that have been proposed activities, including any impact’’ in 50 CFR 216.103 as: described in MBNMS’ application. mortality or serious injury that results an impact resulting from the specified Comment 2: The Commission states from startle responses, stampedes, or activity that cannot be reasonably expected that the May, 2003 Federal Register unexploded fireworks devices. to, and is not reasonably likely to, adversely notice did not clearly indicate whether Response: In addition to the affect the species or stock through effects on a separate harassment authorization comprehensive monitoring at the annual rates of recruitment or survival. would be needed from the U.S. Fish and Monterey breakwater proposed in the Subsection 101(a)(5)(D) of the MMPA Wildlife Service (USFWS) for take of application, NMFS has included in the established an expedited process by southern sea otters or if authorization IHA a post-event monitoring which citizens of the United States can for take of that species would be requirement at all permitted displays to apply for an authorization to included in this IHA or subsequently ensure that fireworks-related injuries or incidentally take small numbers of proposed regulations. mortalities are detected. marine mammals by harassment. Except Response: The USFWS has Background for certain categories of activities not determined that the MBNMS fireworks pertinent here, the MMPA defines displays will not result in take of the The MBNMS adjoins 276 mi (444 km) ‘‘harassment’’ as: southern sea otter and, therefore, no or 25 percent of the central California any act of pursuit, torment, or annoyance incidental take statement under the coastline, and encompasses ocean which (i) has the potential to injure a marine Endangered Species Act (ESA) or IHA waters from mean high tide to an mammal or marine mammal stock in the wild will be issued for the take of southern average of 25 mi (40 km) offshore [‘‘Level A harassment’’]; or (ii) has the sea otters. between Rocky Point in Marin County potential to disturb a marine mammal or Comment 3: The Commission and Cambria in San Luis Obispo marine mammal stock in the wild by causing recommends that any IHA issued to the County. Fireworks displays have been disruption of behavioral patterns, including, applicant specify that, if a mortality or conducted over current MBNMS waters but not limited to, migration, breathing, serious injury of a marine mammal for many years as part of national and nursing, breeding, feeding, or sheltering occurs that appears to be related to the community celebrations (such as [‘‘Level B harassment’’]. fireworks displays, further fireworks Independence Day and municipal Section 101(a)(5)(D) establishes a 45– events be suspended while NMFS anniversaries), and to foster public use day time limit for NMFS review of an determines whether steps can be taken and enjoyment of the marine application followed by a 30–day public to avoid further injuries or mortalities or environment. The marine venue for this notice and comment period on any until such taking can be authorized by activity is the preferred setting for proposed authorization for the regulations promulgated under Section fireworks in central California in order incidental harassment of small numbers 101(a)(5)(A) of the MMPA. to optimize public access and avoid the of marine mammals. Within 45 days of Response: Section 101(a)(5)(D)(iv) fire hazard associated with terrestrial the close of the comment period, NMFS states that ‘‘The Secretary shall modify, display sites. Many fireworks displays must either issue or deny issuance of suspend, or revoke an authorization if occur at the height of the dry season in the authorization. the Secretary finds that the provisions of central California, when area vegetation
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is particularly prone to ignition from within a 600–ft (183–m) radius of the application or in NMFS’ 2005 sparks or embers. launch site. Set piece fireworks are Environmental Assessment of the In 1992, the MBNMS was the first mostly static in nature and remain close Issuance of an Incidental Harassment national marine sanctuary (NMS) to be to the ground and are usually used in Authorization for Coastal Commercial designated along urban shorelines and concert with low-level effects or aerial Fireworks Displays Authorized Within has addressed many regulatory issues shells, typically employing bright flares, the Monterey Bay National Marine previously not encountered by the NMS sparkling effects, and limited sound Sanctuary, which are available upon program. Authorization of professional effects. These displays are designed to request (see ADDRESSES). firework displays has been an issue that produce effects between 0 and 50 ft (0 Description of Habitat and Marine has required a steady refinement of to 15 m) above ground level. Depending Mammals Affected by the Activity policies and procedures toward this on local conditions, fallout is generally activity as more has been learned about confined within a 300–ft (91–m) radius The Monterey Bay area is located in its impacts to the environment. of the launch site. the Oregonian province subdivision of The MBNMS has issued 64 permits the Eastern Pacific Boreal Region. The Specified Activities for professional fireworks displays since six types of habitats found in the bay Since 1993, the MBNMS, a 1993. Four fireworks display area are: (1) submarine canyon habitat, component of NOAA, has processed applications have been directed to areas (2) nearshore sublittoral habitat, (3) requests for the professional display of outside the Sanctuary, and 4 rocky intertidal habitat, (4) sandy beach commercial-grade fireworks in the applications are currently (as of June, intertidal habitat, (5) kelp forest habitat, atmosphere and at ground or sea level, 2005) being processed, with the and (6) estuarine/slough habitat. and these displays have impacts on outcome not yet determined. However, Monterey Bay supports a wide array of Sanctuary resources. Sponsors of MBNMS projects that as many as 20 temperate cold-water species with fireworks displays conducted in the coastal displays per year may be occasional influxes of warm-water MBNMS are required to obtain conducted in, or adjacent to, MBNMS species, and this species diversity is authorization from the MBNMS due to boundaries in the future. The number of directly related to the diversity of discharge of spent pyrotechnic materials displays will be limited to not more habitats. A description of MBNMS and into NMS waters and potential than 20 events per year in four specific its associated marine mammals can be disturbance to marine species (see 15 areas along 276 mi (444 km) of found in the MBNMS application and CFR 922.132). coastline. Fireworks displays will not Fireworks Assessment Report (2001), Professional pyrotechnic devices used exceed 30 minutes (with the exception which are available upon request (see in firework displays can be grouped into of up to two displays per year, not to ADDRESSES). three general categories: aerial shells, exceed 1 hour) in duration and will The species of marine mammals that low-level devices, and set piece occur with an average frequency of less may be present in a fireworks display displays. Aerial shells are launched than or equal to once every two months acute impact area (the area where from mortars using black powder within each of the four prescribed sound, light, and debris effects have charges to altitudes of 200 to 1000 ft (61 display areas. The vast majority (95 direct impacts on marine organisms and to 305 m) where they explode and ignite percent) of fireworks displays habitats) include the California sea lion, internal burst charges and incendiary authorized in the MBNMS between Pacific harbor seal, Southern sea otter chemicals. The largest commercial 1993 and 2003 have been aerial displays (Enhydra lutris neries) bottlenose aerial shells used within MBNMS reach that usually include simultaneous low- dolphin (Tursiops truncatus), harbor a maximum altitude of 1000 ft (305 m) level displays. An average large display porpoise (Phocoena phocoena), above ground level with a bursting will last 20 minutes and include 700 California gray whale (Eschrichtius radius of approximately 850 ft (260 m). aerial shells and 750 low-level effects. robustus), and rarely, the northern Most of the incendiary elements and An average smaller display lasts elephant seal (Mirounga angustirostris). part of the shell casing burn up in the approximately 7 minutes and includes Though the abovementioned atmosphere; however, portions of the 300 aerial shells and 550 low-level cetaceans are known to frequent casings and some internal structural effects. nearshore areas within the Sanctuary, components and chemical residue fall Initially, the MBNMS believed that it they have never been reported in the back to the ground or water, depending could minimize potential light, sound, vicinity of a fireworks display, nor have on wind conditions. The bulk of debris and debris impacts to the NMS and there been any reports to the MBNMS of will fall to the surface within a 0.5 marine mammals through permit strandings or injured/dead animals statute mile (0.8 km) radius of the conditions to limit the location, timing, discovered after any display. Since launch site. A unique type of aerial shell and composition of professional sound does not transmit well between is known as a ‘‘salute’’ shell, the fireworks events affecting the MBNMS. air and water, these animals would purpose of which is to produce a loud However, due to observations over the likely not encounter the effects of percussive audible effect which sounds past several years and through fireworks except when surfacing for air. similar to cannonfire when detonated. consultation with NMFS’ Southwest Past Sanctuary observations have not Low-level devices are similar to over- Region, it appears that some fireworks detected any disturbance to California the-counter fireworks, which produce a displays result in incidental take of sea otters as a result of the fireworks fountain effect of light as burning marine mammals by Level B displays; however, past observations particles shoot up out of a tube, harassment. NMFS believes that the have not included specific surveys for producing a ball or trail of sparkling nature of the incidental harassment will this species. Sea otters do frequent all light. These fireworks are designed to be the short-term flushing and general display areas. Sea otters and produce effects between 0 and 200 ft (0 evacuation of non-breeding haulout other species may temporarily depart to 61 m) above ground level, and some sites by California sea lions and Pacific the area prior to the beginning of the may emit pulsing light patterns and/or harbor seals. fireworks display due to increased sound effects. Some low-level devices A more detailed description of the human activities. Some sea otters in may project small casings into the air, fireworks displays permitted by Monterey harbor have become quite which will generally fall to the earth MBNMS may be found in the acclimated to very intense human
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activity, often continuing to feed migrating northward, populations peak changes in behavior, flight response, undisturbed as boats pass in the Monterey Bay area in fall and diving, evading, flushing, cessation of simultaneously on either side and winter and are at their lowest numbers feeding, and, less likely, physical within 20 feet of the otters. It is in spring and early summer. A impairment or mortality. therefore possible that select individual minimum of 12,000 California sea lions MBNMS staff have recovered otters may have a higher tolerance level are probably present at any given time uncharred casing remnants on ocean than others to fireworks displays. Otters in the MBNMS region. Ano Nuevo waters immediately after marine in residence within the Monterey harbor Island is the largest single haul-out site displays, including cardboard cylinders, display a greater tolerance for intensive in the Sanctuary, hosting as many as disks, paper, plastic pieces, aluminum human activity than their counterparts 9,000 California sea lions at times foil, cotton string, and even whole in more remote locations. The MBNMS (Weise, 2000; Lowry, 2001). unexploded shells (duds or misfires). consulted with the USFWS pursuant to The debris and chemical residue fallout Pacific Harbor Seals Section 7 of the Endangered Species Act area is determined by wind conditions, (ESA) regarding effects on southern sea Harbor seals are distributed weather, and other local variations. otters. The USFWS concluded in a throughout the west coast of the United MBNMS does not expect this debris to biological opinion that take of sea otters States, inhabiting near-shore coastal and impact marine mammals, because is not likely. estuarine areas from Baja California, permit conditions and mitigation The northern elephant seal is seen so Mexico, to the Pribilof Islands in measures proposed by the Sanctuary infrequently in the areas with fireworks Alaska. They generally do not migrate, will ensure that the debris resulting displays that they are not likely to be but have been known to travel extensive from fireworks displays will not alter impacted by fireworks displays. distances to find food or suitable ocean areas or haul-out sites used by Therefore, the only species likely to be breeding areas (Caretta et al., 2004). In California sea lions and harbor seals. harassed by the fireworks displays are California, approximately 400–500 The applicant requests an the California sea lion and the Pacific harbor seal haulout sites are widely authorization for incidental takes by harbor seal. distributed along the mainland and on Level B harassment of California sea offshore islands (Caretta et al., 2004). lions and Pacific harbor seals, which are California Sea Lions The harbor seal population in the only two marine mammal species The population of California sea lions California is healthy and growing at a under NMFS’ jurisdiction likely to be ranges from southern Mexico to current rate of 3.5 percent per year with impacted by fireworks displays within southwestern Canada (Caretta et al., an estimated ‘‘minimum’’ population the Sanctuary. The remaining species of 2004). In the United States, they breed (California) of 25,720 animals (Caretta et marine mammals, though they may be during July after pupping in late May to al., 2004). The California population is present in the acute impact area, are not June, primarily in the Channel Islands estimated at 27,863 animals. The likely to be taken by harassment or any of California. Most individuals of this population is not listed as ‘‘endangered’’ other type of take. species breed on the Channel Islands off or ‘‘threatened’’ under the ESA; nor is Past monitoring efforts by the southern California (100 mi (161 km) this species a ‘‘depleted’’ or a ‘‘strategic MBNMS staff have identified only a south of the MBNMS) and off Baja and stock’’ under the MMPA. short-term behavioral disturbance of mainland Mexico (Odell, 1981), Harbor seals are residents in the animals by fireworks displays, with the although a few pups have been born on MBNMS throughout the year, occurring primary causes of disturbance being Ano Nuevo Island (Keith et al., 1984). mainly near the coast. They haul out at sound effects and light flashes from Following the breeding season on the dozens of sites along the coast from exploding fireworks. Typical decibel Channel Islands, most adult and sub- Point Sur to Ano Nuevo. Within levels for displays containing no adult males migrate northward to MBNMS, tagged harbor seals have been ‘‘salute’’ effects range from 70 to 78 dB. central and northern California and to documented to move substantial Studies conducted at Vandenberg Air the Pacific Northwest, while most distances (10–20 km (3.9–7.8 mi)) to Force Base (VAFB) to determine females and young animals either foraging areas each night (Oxman, 1995; responses by California pinnipeds to the remain on or near the breeding grounds Trumble, 1995). The species does breed effects of periodic rocket launches throughout the year or move southward in the Sanctuary, and pupping within (which have light and sound effects or northward, as far as Monterey Bay. the Sanctuary occurs primarily during similar to that of pyrotechnic displays Since nearing extinction in the early March and April followed by a molt but with much greater intensity) have 1900’s, the California sea lion during May and June. Peak abundance demonstrated the temporary flushing of population has increased and is now on land within the Sanctuary is reached animals from haul out sites, their robust and growing at a current rate of in late spring and early summer when eventual return, and no detectable 5.4 to 6.1 percent per year (based on they haul out to breed, give birth to changes in the seals’ hearing sensitivity pup counts) with an estimated pups, and molt (MBNMS FEIS, 1992). as a result. Incidental takes of marine ‘‘minimum’’ population (U.S. west mammals by Level B harassment of coast) of 138,881 animals. The actual Potential Effects of Activities on Marine California sea lions and harbor seals population level may be as high as Mammals will consist of temporary evacuation of 237,000 to 244,000 animals. The Marine mammals can be impacted by usual and accustomed haul-out sites. population is not listed as ‘‘endangered’’ fireworks displays in three ways: light, Sea lions have been observed evacuating or ‘‘threatened’’ under the ESA, nor is sound, and debris. Pyrotechnic devices haul-out areas upon initial detonation of this species a ‘‘depleted’’ or a ‘‘strategic that operate at higher altitudes are more fireworks and returning to the haul-out stock’’ under the MMPA. likely to have a larger impact area (such sites within 4 to 15 hours following the In any season, California sea lions are as aerial shells), while ground and low- end of the fireworks display. Harbor the most abundant pinniped in the area level devices have more confined seals have been seen to remain in the (Bonnell et al., 1983), primarily using effects. Possible direct impacts to water after initial fireworks detonation the central California area to feed during marine mammals include, but are not around the haul-out site. Sea lions in the non-breeding season. After breeding limited to, immediate physical and general are more tolerant of noise and farther south along the coast and physiological impacts such as abrupt visual disturbances than harbor seals.
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Adult sea lions have most likely within each display area. Remote areas Monitoring habituated to many sources of and locations where professional Of all the past authorized fireworks disturbance and are, therefore, tolerant fireworks have not traditionally been display sites within the MBNMS, the of nearby human activities. For both conducted will not be considered for City of Monterey site has received the pinniped species, pups and juveniles fireworks approval. Fireworks displays highest level of monitoring effort. The are more likely to be harassed when will not exceed 30 minutes in duration, City of Monterey has hosted a marine exposed to disturbance than older with the exception of two longer fireworks display each July 4th since animals. Please refer to MBNMS displays per year not to exceed 1 hour 1988, which is the longest running and Fireworks Assessment Report (2001) in length, and will occur with an largest annual commercial fireworks and Fireworks Guidelines (2002) for average frequency of less than or equal display within the MBNMS. Because the information on quantitative survey to one display every two months within Monterey Breakwater and natural rock results, related research studies, and each of four prescribed display areas. formations near the display area serve as observations made by MBNMS staff as Please refer to the MBNMS Fireworks regular haul-out sites for California sea well as details on how exploding Assessment Report (2001) and lions and harbor seals, the Monterey site fireworks impact marine mammals and Fireworks Guidelines (2002) for general has been studied and censused by how animals respond (see ADDRESSES). information on frequency and duration Because of mitigation measures government and academic researchers of typical fireworks displays within the for over 20 years. Consequently, the proposed, the MBNMS expects that only Sanctuary, strategies for minimizing Level B harassment may occur Monterey site has the best background impacts, as well as maps and detailed data available for assessing status and incidental to authorized coastal descriptions of prohibited and fireworks displays and that these events trends of key marine mammal conditional display areas (see will result in no more than a negligible populations relative to annual fireworks ADDRESSES). impact on marine mammal species or displays. For this reason, the MBNMS their habitats. NMFS anticipates no In addition, there is an annual limit proposes that Monterey be monitored as impact on the availability of the species of 20 displays along the entire an indicator site to further determine or stocks for subsistence uses because Sanctuary coastline to prevent how local California sea lion and harbor there is no subsistence harvest of marine cumulative adverse environmental seal distribution and abundance are mammals in California. effects from fireworks. The MBNMS affected by an annual fireworks display. intends to institute a 5–year permit The MBNMS has monitored Mitigation system for displays that will occur commercial fireworks displays for The MBNMS has worked with the annually at a fixed location and in a potential impacts to marine life and USFWS and NMFS Southwest Region to consistent manner, such as municipal habitats since 1993. The Sanctuary will craft a set of permitting guidelines Independence Day shows. Also, conduct a visual census of the Monterey designed to minimize fireworks impacts MBNMS has established a seasonal Breakwater and rocks within Monterey in order to protect MBNMS resources, as prohibition to safeguard pinniped Harbor on July 4 and July 5 each year well as outline the locations, frequency, reproductive periods. Fireworks events to determine annual abundance, and conditions under which the will not be authorized between March 1 demographic response patterns, and MBNMS will authorize marine and June 30 of each year, since this departure and return rates for California fireworks displays. The MBNMS plans period is the primary reproductive sea lions and harbor seals relative to the to retain these permitting requirements season for many marine mammal July 4 fireworks display. Data will be and assess displays on a case-by-case species. After considering the factors collected by observers aboard kayaks or basis, implementing general and special within each display application, other small boats and from ground stations restrictions unique to each fireworks permit conditions that may be deemed (where appropriate), using binoculars, event as necessary. appropriate are to limit the number of counters, and data sheets to census The fireworks guidelines are designed aerial ‘‘salute’’ effects used, require the animals. The pre- and post- fireworks to prevent an incremental proliferation removal of plastic labels and wrappings, census data will be analyzed to identify of fireworks displays and disturbance and to require post-show reporting and any significant temporal changes in throughout the MBNMS and minimize cleanup. abundance and distribution that might area of impact by confining displays to be attributed to impacts from the annual primary traditional use areas. The MBNMS guidelines effectively fireworks display. The data will also be Traditional display areas are located remove fireworks impacts from 95 added to past research statistics on the adjacent to urban centers where wildlife percent of the Sanctuary’s coastal areas, abundance and distribution of stocks at has often acclimated to human place an annual quota and multiple Monterey Harbor. disturbances, such as low-flying aircraft, permit conditions on the displays Last, in addition to the emergency vehicles, unleashed pets, authorized within the remaining 5 comprehensive behavioral monitoring to beach combing, recreational and percent of the coast, and impose a be conducted at the Monterey Bay commercial fishing, surfing, swimming, seasonal prohibition on all fireworks Breakwater, MBNMS will require of its boating, and personal watercraft displays within the MBNMS. The applicants post-event monitoring in the operations. Future permitted fireworks guidelines were developed to minimize acute action area after all permitted displays will be confined to four the impacts of fireworks activities on fireworks locations to ensure that prescribed areas within the MBNMS protected species and habitats, and they injured or dead marine mammals are and prohibited from the remaining 95% have been well received by local detected. of coastal areas. The conditional display fireworks sponsors, who have pledged areas are located at Half Moon Bay, the their cooperation in protecting MBNMS Reporting Santa Cruz/Soquel area, the resources. Please refer to the MBNMS A draft final report must be submitted northeastern Monterey Peninsula, and Fireworks Guidelines (2002) for details to NMFS within 60 days after the Cambria (Santa Rosa Creek). An equal on permit conditions and regulations conclusion of the annual fireworks number of private and public displays (see http://www.mbnms.nos.noaa.gov/ permit season. A final report must be will be considered for authorization resourcepro/firework.html). submitted to the Regional Administrator
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within 30 days after receiving comments therefore issued neither an incidental DEPARTMENT OF COMMERCE from NMFS on the draft final report. If take statement nor an IHA. no comments are received from NMFS, National Oceanic and Atmospheric the draft final report will be considered National Environmental Policy Act Administration to be the final report. NOAA prepared a Final [I.D. 062105C] Numbers of Marine Mammals Expected Environmental Impact Statement and to be Harassed Master Plan for the MBNMS in June Endangered and Threatened Species; Take of Anadromous Fish The number of animals taken by Level 1992. Subsequent to MBNMS’ B harassment during fireworks displays application for an IHA, NMFS prepared AGENCY: National Marine Fisheries is expected to vary due to factors such an Environmental Assessment on the Service (NMFS), National Oceanic and as tidal stage, seasonal shifting prey Issuance of an Incidental Harassment Atmospheric Administration (NOAA), stocks, climatic phenomenon (such as el Authorization for Coastal Commercial Commerce. Nino events), and the number, timing, Fireworks Displays Authorized Within ACTION: Receipt of applications for two and location of future displays. At all the Monterey Bay National Marine scientific research/enhancement permits four designated display sites combined, Sanctuary. A Finding of No Significant (1534 and 1539) and request for twenty fireworks events per year could Impact was issued on June 30, 2005. comment. harass an average annual total of 2,630 SUMMARY: Notice is hereby given that California sea lions (6,170 maximum) Conclusions NMFS has received applications to grant and an average annual total of 302 NMFS has determined that the short- permits to (Permit 1534), Rowdy Creek harbor seals (1,065 maximum) within term impact of fireworks displays, as Fish Hatchery, Smith River, CA (Permit the MBNMS. These numbers are small described in this document and in the 1539), Siskiyou Resource Conservation relative to the population sizes of these application for an IHA, would result in District (RCD), Etna, CA. These permits species. Please refer to the MBNMS no more than Level B harassment of would affect Southern Oregon/Northern Fireworks Assessment Report (2001) for small numbers of California sea lions California Coast (SONCC) coho salmon further information regarding estimated and harbor seals. The effects of coastal (Oncorhynchus kisutch). This document incidental take numbers by display area fireworks displays will be limited to serves to notify the public of the and fireworks events (see ADDRESSES). short term and localized changes in availability of the permit application for Possible Effects of Activities on Marine behavior involving small numbers of review and comment before a final Mammal Habitat pinnipeds. Although sea lions and seals approval or disapproval is made by NMFS anticipates no loss or may modify their behavior, including NMFS. modification to the habitat used by temporarily vacating haulouts to avoid DATES: Written comments on the permit California sea lions or Pacific harbor the sight and sound of commercial application must be received at the seals that haul out in the MBNMS. The fireworks, these fireworks are expected appropriate address or fax number (see pinniped haul-out sites in MBNMS to have no more than a negligible ADDRESSES) no later than 5 p.m. where fireworks displays will occur are impact on these stocks. No take by Daylight Savings Time on August 8, not used as breeding, molting, or mating injury and/or death is anticipated, and 2005. sites during the fireworks displays; harassment takes will be at the lowest ADDRESSES: Written comments on any of therefore, it is not expected that the level practicable due to incorporation of these renewal and modification request covered activities will have any impact the mitigation measures mentioned should be sent to the appropriate office on the ability of California sea lions or previously in this document. as indicated here. Comments may also Pacific harbor seals in the area to Additionally, the MBNMS fireworks be sent via fax to the number indicated reproduce. Additionally, MBNMS displays will not have an unmitigable for the request. Comments will not be fireworks permit conditions include adverse impact on the availability of accepted if submitted via e-mail or the requirements for applicants to clean up marine mammal stocks for subsistence Internet. The applications and related debris subsequent to all displays. use, as there are no subsistence uses for documents are available for review in Possible Effects of Activities on California sea lions or Pacific harbor the indicated office, by appointment: Subsistence Needs seals in California waters. For Permits 1534 and 1539: Steve Liebhardt, Protected Species Division, There are no subsistence uses for Authorization Pacific harbor seals in California waters, NOAA Fisheries, 1655 Heindon Road, Arcata, CA 95521 (ph: 707–825–5186, and thus, there are no anticipated effects NMFS has issued a 1–year IHA to the fax: (707–825–4840). on subsistence needs. MBNMS for the take of California sea FOR FURTHER INFORMATION CONTACT: lions and Pacific harbor seals, by Endangered Species Act Steve Liebhardt at phone number (707– harassment, incidental to coastal The MBNMS consulted with the 825–5186), or e-mail: fireworks displays permitted within the USFWS pursuant to Section 7 of the [email protected] MBNMS, provided the previously ESA regarding impacts to southern sea mentioned mitigation, monitoring, and SUPPLEMENTARY INFORMATION: otters. The USFWS issued a biological opinion on June 22, 2005, which reporting requirements are incorporated. Authority concluded that the authorization of Dated: June 30, 2005. Issuance of permits, as required by the fireworks displays, as proposed, is not Michael Payne, Endangered Species Act of 1973 (16 likely to jeopardize the continued Acting Deputy Director, Office of Protected U.S.C. 1531–1543) (ESA), is based on a existence of southern sea otters or to Resources, National Marine Fisheries Service. finding that such permits/modifications: destroy or adversely modify any listed [FR Doc. 05–13389 Filed 7–6–05; 8:45 am] (1) are applied for in good faith; (2) critical habitat. The USFWS further would not operate to the disadvantage found that MBNMS would be unlikely BILLING CODE 3510–22–S of the listed species which are the to take any southern sea otters, and subject of the permits; and (3) are
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consistent with the purposes and DEFENSE BASE CLOSURE AND amended, available on the Commission policies set forth in section 2 of the REALIGNMENT COMMISSION Web site. Sections 2912 through 2914 of ESA. Authority to take listed species is that Act describe the criteria and many subject to conditions set forth in the Notice of the Defense Base Closure of the essential elements of the 2005 permits. Permits are issued in and Realignment Commission— BRAC process. For questions regarding accordance with and are subject to the Change to the Location of a Previously this announcement, contact Mr. Dan ESA and NMFS regulations governing Announced Open Meeting Cowhig, Deputy General Counsel and listed fish and wildlife permits (50 CFR (Washington, DC); Correction Designated Federal Officer, at the parts 222–226). AGENCY: Defense Base Closure and Commission’s mailing address or by Those individuals requesting a Realignment Commission. telephone at 703–699–2950 or 2708. hearing on an application listed in this ACTION: Notice; Defense Base Closure Correction notice should set out the specific and Realignment Commission—change reasons why a hearing on that to the location of a previously In the Federal Register of June 29, application would be appropriate (see announced open meeting (Washington, 2005, in FR Doc. 05–12772, on page ADDRESSES). The holding of such a DC); correction. 37333, in the first column, correct the hearing is at the discretion of the SUMMARY, DATES and ADDRESSES Assistant Administrator for Fisheries, SUMMARY: The Defense Base Closure and captions to read: NOAA. All statements and opinions Realignment Commission published a SUMMARY: Notice is hereby given that a contained in the permit action document in the Federal Register of delegation of Commissioners of the Defense summaries are those of the applicant June 29, 2005, concerning an open Base Closure and Realignment Commission and do not necessarily reflect the views meeting to receive comments from will hold an open meeting on July 7, 2005. of NMFS. Federal, State and local government The delegation will meet to receive comment representatives and the general public Species Covered in This Notice from Federal, State and local government on base realignment and closure actions representatives and the general public on This notice is relevant to the in the District of Columbia, base realignment and closure actions in the following threatened salmonid ESU: Pennsylvania and Virginia that have District of Columbia, Pennsylvania and SONCC coho salmon (Oncorhynchus been recommended by the Department Virginia that have been recommended by the kisutch). of Defense (DoD). The location of this Department of Defense (DoD). The portion of meeting has been changed. The portion the meeting that relates to the District of Permit Requests Received of the meeting that relates to the District Columbia and Pennsylvania will take place from 8:30 a.m. to 12:30 p.m. at the Canon Permit 1534 of Columbia and Pennsylvania will take Caucus Room, 345 Canon House Office place from 8:30 a.m. to 12:30 p.m. at the Siskiyou Resource Conservation Building, Washington DC 20515. The portion Canon Caucus Room, 345 Canon House District (RCD) has requested a Permit of the meeting that relates to Virginia will Office Building, Washington, DC 20515. 1534 for take of juvenile SONCC coho take place from 1:30 p.m. to 3:30 p.m. at the The portion of the meeting that relates salmon, to determine the timing of Sheraton National Hotel, Commonwealth to Virginia will take place from 1:30 salmonid migration from tributaries to Ballroom, 900 South Orme Street, Arlington, p.m. to 3:30 p.m. at the Sheraton Virginia 22204. The Commission requests the Scott River Mainstem for winter National Hotel, Commonwealth that the public consult the 2005 Defense Base rearing and/or out-migration. Ballroom, 900 South Orme Street, Closure and Realignment Commission Web Additionally, trapping will allow for the Arlington, Virginia 22204. site, http://www.brac.gov, for updates. The study of fish condition, population The delay of this change notice purpose of this regional meeting is to allow estimates, and participation in resulted from a recent change to the communities experiencing a base closure or cooperative studies with downstream location and the short time-frame major realignment action (defined as loss of trapping programs. RCD proposes to use established by statute for the operations 300 civilian positions or 400 military and in-stream trapping as the method of of the Defense Base Closure and civilian positions) an opportunity to voice their concerns, counter-arguments, and capture. RCD has requested non-lethal Realignment Commission. The take of 3,530 juvenile SONCC coho opinions in a live public forum. This meeting Commission requests that the public will be open to the public, subject to the salmon. Permit 1534 will expire August consult the 2005 Defense Base Closure 1, 2006. availability of space. Sign language and Realignment Commission Web site, interpretation will be provided. The Permit 1539 http://www.brac.gov, for updates. delegation will not render decisions FOR FURTHER INFORMATION CONTACT: regarding the DoD recommendations at this The Rowdy Creek Fish Hatchery has Please see the 2005 Defense Base meeting, but will gather information for later requested a Permit 1539 for take of Closure and Realignment Commission deliberations by the Commission as a whole. SONCC coho salmon, in the Klamath Web site, http://www.brac.gov. The DATES: Topic: District of Columbia and River (Rowdy Creek). The Rowdy Creek Commission invites the public to Pennsylvania, July 7, 2005, from 8:30 a.m. to Fish Hatchery proposes to capture adult provide direct comment by sending an 12:30 p.m. salmon and steelhead by an in-stream electronic message through the portal Topic: Virginia, July 7, 2005, from 1:30 weir. Rowdy Creek Fish Hatchery has provided on the Commission’s Web site p.m. to 3:30 p.m. requested non-lethal take of up to: 50 ADDRESSES or by mailing comments and supporting : Topic: District of Columbia and adult SONCC coho salmon. Permit 1539 Pennsylvania, July 7, 2005, from 8:30 a.m. to documents to the 2005 Defense Base will expire March 1, 2015. 12:30 p.m. Closure and Realignment Commission, Location: Canon Caucus Room, 345 Canon Dated: June 30, 2005. 2521 South Clark Street Suite 600, House Office Building, Washington DC P. Michael Payne, Arlington, Virginia 22202–3920. The 20515. Acting Division Chief, Endangered Species Commission requests that public Topic: Virginia, July 7, 2005, from 1:30 Division, Office of Protected Resources, comments be directed toward matters p.m. to 3:30 p.m. National Marine Fisheries Service. bearing on the decision criteria Location: Sheraton National Hotel, [FR Doc. 05–13393 Filed 7–6–05; 8:45 am] described in The Defense Base Closure Commonwealth Ballroom, 900 South Orme BILLING CODE 3510–22–S and Realignment Act of 1990, as Street, Arlington, Virginia 22204.
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Dated: July 5, 2005. FOR FURTHER INFORMATION CONTACT: To 2837 is used as the information Jeannette Owings-Ballard, request more information on the collection vehicle for that enrollment. Administrative Support Officer. continuation of the information The CHCBP is a legislatively mandated [FR Doc. 05–13476 Filed 7–5–05; 1:09 pm] collection, please write to the above program and it is anticipated the BILLING CODE 5001–06–P address or contract Lyn Bell by calling program will continue indefinitely. As (303) 676–3521 or e-mail at such, the need for collection [email protected]. information that will allow an Title, Associated Form and OMB individual to enroll in CHCBP continues DEPARTMENT OF DEFENSE Number: Continued Health Care Benefit and the Department of Defense is thus Office of the Secretary Program (CHCBP); DD Form 2837; OMB publishing this formal notice. Number 0704–0364. Dated: June 28, 2005. Continuing Collection; Comment Need and Uses: The continuing Patricia L. Toppings, Request information collection requirement is necessary for individuals to apply for Alternate OSD Federal Register Liaison AGENCY: Office of the Assistant enrollment in the Continued Health Officer, Department of Defense. Secretary of Defense (Health Affairs), Care Benefit Program (CHCBP). The [FR Doc. 05–13335 Filed 7–6–05; 8:45 am] DoD. CHCBP is a program of temporary health BILLING CODE 5001–06–M ACTION: Notice. care benefit coverage that is made available to eligible individuals who SUMMARY: In compliance with Section lose health care under the Military DEPARTMENT OF DEFENSE 3506(c)(2)(A) of the Paperwork Health System. Office of the Secretary Reduction Act of 1995, the Office of the Affected Public: Individuals or Assistant Secretary of Defense (Health households. Affairs) announces the extension of a Annual Burden Hours: 202. [Transmittal No. 05–23] currently approved collection and seeks Number of Respondents: 808. public comment on the provisions Responses Per Respondent: 1. 36(b)(1) Arms Sales Notification thereof. Comments are invited on: (a) Average Burden Per Response: 15 Whether the proposed collection of minutes. AGENCY: Department of Defense, Defense information is necessary for the proper Frequency: On occasion. Security Cooperation Agency. performance of the functions of the SUPPLEMENTARY INFORMATION: agency, including whether the ACTION: Notice. information shall have practical utility; Summary of Information Collection (b) the accuracy of the agency’s estimate SUMMARY: The Department of Defense is Respondents are individuals who are of the burden of the proposed publishing the unclassified text of a or were beneficiaries of the Military information collection; (c) ways to section 36(b)(1) arms sales notification. Health System (MHS) and who desire to enhance the quality, utility and clarity This is published to fulfill the enroll in the CHCBP following their loss of the information to be collected; and requirements of section 155 of Pub. L. of entitlement to health care coverage in (d) ways to minimize the burden of the 104–164 dated 21 July 1996. the MHS. These beneficiaries include information collection on respondents, the active duty service member or FOR FURTHER INFORMATION CONTACT: Ms. including the use of automated former service member (who for J. Hurd, DSCA/OPS–ADMIN, (703) 604– collection techniques or other forms of 6575. information technology. purposes of this notice shall be referred to as ‘‘service member’’), an DATES: Consideration will be given to all The following is a copy of a letter to unremarried former spouse of a service the Speaker of the House of comments received by September 6, member, an unmarried child of a service 2005. Representatives, Transmittal 05–23 with member who ceases to meet the attached transmittal, policy justification, ADDRESSES: Written comments and requirements for being considered a Sensitivity of Technology. recommendations on the continuing dependent, and a child placed for information collection should be sent to adoption or legal custody with the Dated: June 30, 2005. the TRICARE Management Activity, service member. Jeannette Owings-Ballard, CEB Office, Attn: Lyn Bell, 16401 East In order to be eligible for health care OSD Federal Register Liaison Officer, Centretech Parkway, Aurora, CO 80011– coverage under CHCBP, an individual Department of Defense. 9043. must first enroll in CHCBP. DD Form BILLING CODE 5001–06–M
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[FR Doc. 05–13336 Filed 7–6–05; 8:45 am] clarity of the information to be the General Services Administration, BILLING CODE 5001–06–C collected; and ways in which we can FAR Secretariat (VIR), Room 4035, minimize the burden of the collection of Washington, DC 20405, telephone (202) information on those who are to 501–4755. Please cite OMB Control No. DEPARTMENT OF DEFENSE respond, through the use of appropriate 9000–0141, Buy American Act— technological collection techniques or Construction (Grimberg Decision) in all GENERAL SERVICES other forms of information technology. correspondence. ADMINISTRATION DATES: Submit comments on or before Dated: June 30, 2005. August 8, 2005. NATIONAL AERONAUTICS AND Julia B. Wise, SPACE ADMINISTRATION FOR FURTHER INFORMATION CONTACT Ms. Director, Contract Policy Division. Kimberly Marshall, Contract Policy [FR Doc. 05–13375 Filed 7–6–05; 8:45 am] [OMB Control No. 9000–0141] Division, GSA, at (202) 219–0986. BILLING CODE 6820–EP–S ADDRESSES: Federal Acquisition Regulation; Submit comments regarding Submission for OMB Review; Buy this burden estimate or any other aspect DEPARTMENT OF DEFENSE American Act—Construction of this collection of information, including suggestions for reducing this AGENCIES: Department of Defense (DOD), burden to: FAR Desk Officer, OMB, Office of the Secretary General Services Administration (GSA), Room 10102, NEOB, Washington, DC Notice of the Defense Acquisition and National Aeronautics and 20503, and a copy to the General Performance Assessment Project— SpaceAdministration (NASA). Services Administration, FAR Open/Closed Meeting—Correction ACTION: Notice of request for comments Secretariat (VIR), 1800 F Street, NW, regarding an extension to an existing Room 4035, Washington, DC 20405. AGENCY: Department of Defense. OMB clearance (9000–0141). SUPPLEMENTARY INFORMATION: ACTION: Notice; correction.
SUMMARY: Under the provisions of the A. Purpose SUMMARY: The Defense Acquisition Paperwork Reduction Act of 1995 (44 The clauses at FAR 52.225–9, Buy Performance Assessment Project U.S.C. Chapter 35), the Federal American Act—Construction Materials, published an Open Meeting notice in Acquisition Regulation (FAR) and FAR 52.225–11, Buy American the Federal Register of June 23, 2005. Secretariat has submitted to the Office Act—Construction Materials under Notice is amended to reflect the of Management and Budget (OMB) a Trade Agreements, prove that offerors/ addition of a closed meeting session request to review and approve an contractors requesting to use foreign following the morning’s 9 a.m.–12 p.m. extension of a currently approved construction material, other than open meeting session on July 15, 2005. information requirement concerning construction material eligible under a The closed session will be held from 1 Buy American Act—Construction trade agreement shall provide adequate p.m.–5 p.m. In accordance with Federal (Grimberg Decision). A request for information for Government evaluation Advisory Committee Act of 1972, as public comments was published in the of the request. These regulations amended, it has been determined that Federal Register at 70 FR 22650, May 2, implement the Buy American Act for the Project’s meeting in the afternoon 2005. No comments were received. construction (41 U.S.C. 10a - 10d). concerns matters deemed confidential Public comments are particularly and/or proprietary in nature pursuant to invited on: Whether this collection of B. Annual Reporting Burden 5 U.S.C. 552b(c)(4) and will be closed to information is necessary for the proper Respondents: 500. the public. performance of functions of the FAR, Responses Per Respondent: 2. FOR FURTHER INFORMATION CONTACT: Lt and whether it will have practical Annual Responses: 1,000. Col Rene Bergeron, (703) 697–1361, utility; whether our estimate of the Hours Per Response: 2.5. [email protected]. public burden of this collection of Total Burden Hours: 2,500. information is accurate, and based on Obtaining Copies of Proposals: Correction valid assumptions and methodology; Requesters may obtain a copy of the In the Federal Register of June 23, ways to enhance the quality, utility, and information collection documents from 2005, page 36377, FR Doc. 05–12424, on
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page 36377, in the middle column, DEPARTMENT OF EDUCATION Dated: June 30, 2005. correct the DATES caption to read: Jeanne Van Vlandren, Director, Regulatory Notice of Proposed Information Information Management Services, Office of DATES: July 15, 2005 / 9 a.m.–12 p.m. the Chief Information Officer. (Open); 1 p.m.–5 p.m. (Closed). Collection Requests Office of Special Education and Dated: June 30, 2005. AGENCY: Department of Education. Rehabilitative Services Jeannette Owings-Ballard, SUMMARY: The Director, Regulatory Type of Review: New. OSD Federal Register Liaison Officer, Information Management Services, Title: A Study of the Addition of Department of Defense. Office of the Chief Information Officer, Literacy Services for Vocational [FR Doc. 05–13334 Filed 7–6–05; 8:45 am] invites comments on the proposed Rehabilitation Consumers. BILLING CODE 5001–06–P information collection requests as Frequency: Annually. required by the Paperwork Reduction Affected Public: Individuals or Act of 1995. household; State, local, or tribal gov’t, DEPARTMENT OF DEFENSE SEAs or LEAs. DATES: Interested persons are invited to Reporting and Recordkeeping Hour Department of the Air Force submit comments on or before Burden: September 6, 2005. Responses: 14,522. Meeting Notice for Air Force Academy Burden Hours: 6,835. Board of Visitors SUPPLEMENTARY INFORMATION: Section 3506 of the Paperwork Reduction Act of Abstract: This submission is for the 1995 (44 U.S.C. Chapter 35) requires collection of data for the ‘‘Evaluation of Pursuant to Section 9355, Title 10, Projects Demonstrating the Use of Adult that the Office of Management and United States Code, the U.S. Air Force Education Literacy Services by State Budget (OMB) provide interested Academy Board of Visitors will meet at Vocational Rehabilitation Agencies to the United States Air Force Academy Federal agencies and the public an early Improve Earnings of Individuals with (USAFA), CO, 15–16 July 2005. The opportunity to comment on information Disabilities.’’ The data collection to be purpose of the meeting is to consider collection requests. OMB may amend or approved includes standardized testing the morale and discipline, curriculum, waive the requirement for public instruments, case file summary forms, a instruction, physical equipment, fiscal consultation to the extent that public teacher rating form, a telephone affairs, academic methods, and other participation in the approval process interview form, and site visit interview matters relating to the Academy. would defeat the purpose of the and focus group guides. information collection, violate State or A portion of the meeting will be open Requests for copies of the proposed Federal law, or substantially interfere to the public while other portions will information collection request may be be closed to the public to discuss with any agency’s ability to perform its accessed from http://edicsweb.ed.gov, matters listed in Paragraphs (2), (6), and statutory obligations. The Director, by selecting the ‘‘Browse Pending Collections’’ link and by clicking on Subparagraph (9)(B) of Subsection (c) of Regulatory Information Management link number 2805. When you access the Section 552b, Title 5, United States Group, Office of the Chief Information information collection, click on Code. The determination to close certain Officer, publishes that notice containing ‘‘Download Attachments’’ to view. sessions is based on the consideration proposed information collection requests prior to submission of these Written requests for information should that portions of the briefings and be addressed to U.S. Department of discussion will relate solely to the requests to OMB. Each proposed information collection, grouped by Education, 400 Maryland Avenue, SW., internal personnel rules and practices of Potomac Center, 9th Floor, Washington, the Board of Visitors or the Academy; office, contains the following: (1) Type of review requested, e.g. new, revision, DC 20202–4700. Requests may also be involve information of a personal electronically mailed to the Internet nature, the disclosure of which would extension, existing or reinstatement; (2) _ title; (3) summary of the collection; (4) address OCIO [email protected] or faxed to constitute a clearly unwarranted 202–245–6621. Please specify the description of the need for, and invasion of personal privacy; or involve complete title of the information proposed use of, the information; (5) discussions of information the collection when making your request. premature disclosure of which would be respondents and frequency of Comments regarding burden and/or likely to frustrate implementation of collection; and (6) reporting and/or the collection activity requirements future agency action. Meeting sessions recordkeeping burden. OMB invites should be directed to Sheila Carey at her will be held in room 5A35, Fairchild public comment. e-mail address [email protected]. Hall at the United States Air Force The Department of Education is Individuals who use a Academy (USAFA), CO. especially interested in public comment telecommunications device for the deaf addressing the following issues: (1) Is (TDD) may call the Federal Information FOR FURTHER INFORMATION CONTACT: this collection necessary to the proper Relay Service (FIRS) at 1–800–877– Lieutenant Colonel Paul Price, Chief, 8339. USAFA & Commissioning Programs functions of the Department; (2) will Division, Directorate of Airman this information be processed and used Office of Special Education and Development & Sustainment, Deputy in a timely manner; (3) is the estimate Rehabilitative Services of burden accurate; (4) how might the Chief of Staff, Personnel, AF/DPDO, Type of Review: Extension. Department enhance the quality, utility, 1040 Air Force Pentagon, Washington, Title: Annual Report on Appeals and clarity of the information to be DC 20330–1040, (703) 695–9855. Process. collected; and (5) how might the Frequency: Annually. Bruno Leuyer, Department minimize the burden of this Affected Public: State, local, or tribal Air Force Federal Register Liaison Officer. collection on the respondents, including gov’t, SEAs or LEAs. [FR Doc. 05–13470 Filed 7–6–05; 8:45 am] through the use of information Reporting and Recordkeeping Hour BILLING CODE 5001–05–P technology. Burden:
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Responses: 80. which the grantee must comply. Section Estimated Number of Awards: 32. Burden Hours: 160. 509(f) of the Act specifies the Note: The Department is not bound by any Abstract: Form RSA–722 is needed to Assurances. There are 57 PAIR grantees. estimates in this notice. meet specific data collection All 57 grantees are required to be part requirements in subsections 102(c)(8)(A) of the protection and advocacy system Project Period: Up to 36 months. and (B) of the Rehab Act of 1973, as in each State established under the Full Text of Announcement amended on the number of requests for Developmental Disabilities Assistance I. Funding Opportunity Description mediation, hearings and reviews filed. and Bill of Rights Act of 2000 (42 U.S.C. The information collected is used to 6041 et seq.) Purpose of the Program: The School- evaluate the types of complaints made Requests for copies of the proposed Based Student Drug-Testing program by applicants for and eligible information collection request may be awards grants to LEAs and public and individuals of the vocational accessed from http://edicsweb.ed.gov, private entities to develop and rehabilitation program and the final by selecting the ‘‘Browse Pending implement, or expand, school-based resolution of appeals filed. Respondents Collections’’ link and by clicking on drug-testing programs for students. are State agencies that administer the link number 2810. When you access the Priorities: These priorities are from Federal/State Program for Vocational information collection, click on the notice of final eligibility and Rehabilitation. ‘‘Download Attachments’’ to view. application requirements, priorities, and Requests for copies of the proposed Written requests for information should selection criteria for this competition, information collection request may be be addressed to U.S. Department of published elsewhere in this issue of the accessed from http://edicsweb.ed.gov, Education, 400 Maryland Avenue, SW., Federal Register. by selecting the ‘‘Browse Pending Potomac Center, 9th Floor, Washington, Absolute Priority: For FY 2005 and Collections’’ link and by clicking on DC 20202–4700. Requests may also be any subsequent year in which we make link number 2811. When you access the electronically mailed to the Internet awards based on the list of unfunded information collection, click on address [email protected] or faxed to applications from this competition, this ‘‘Download Attachments’’ to view. 202–245–6621. Please specify the priority is an absolute priority. Under 34 Written requests for information should complete title of the information CFR 75.105(c)(3) we consider only be addressed to U.S. Department of collection when making your request. applications that meet this priority. Education, 400 Maryland Avenue, SW., Comments regarding burden and/or This priority is: Potomac Center, 9th Floor, Washington, the collection activity requirements Mandatory Random and Voluntary DC 20202–4700. Requests may also be should be directed to Sheila Carey at her Student Drug-Testing Programs. Under electronically mailed to the Internet e-mail address [email protected]. this priority, we will provide Federal address [email protected] or faxed to Individuals who use a financial assistance to eligible 202–245–6621. Please specify the telecommunications device for the deaf applicants to develop and implement, or complete title of the information (TDD) may call the Federal Information expand, school-based mandatory collection when making your request. Relay Service (FIRS) at 1–800–877– random or voluntary drug-testing Comments regarding burden and/or 8339. programs for students in one or more the collection activity requirements [FR Doc. 05–13318 Filed 7–6–05; 8:45 am] grades 6 through 12. Any drug-testing should be directed to Sheila Carey at her program conducted with funds awarded BILLING CODE 4000–01–P e-mail address [email protected]. under this priority must be limited to Individuals who use a one or more of the following: telecommunications device for the deaf DEPARTMENT OF EDUCATION (1) Students who participate in the (TDD) may call the Federal Information school’s athletic program; Relay Service (FIRS) at 1–800–877– Office of Safe and Drug-Free Schools; (2) Students who are engaged in 8339. Overview Information; School-Based competitive, extracurricular, school- Office of Special Education and Student Drug-Testing Programs; sponsored activities; and Rehabilitative Services Notice Inviting Applications for New (3) A voluntary drug-testing program Awards for Fiscal Year (FY) 2005 for students who, along with their Type of Review: Extension. parent or guardian, have provided Title: Annual Protection and Catalog of Federal Domestic Assistance written consent to participate in a (CFDA) Number: 84.184D. Advocacy of Individual Rights (PAIR) random drug-testing program. Program Assurances. Dates: Applications Available: July 7, Applicants that propose voluntary drug Frequency: On Occasion; once prior to 2005. testing for students who, along with FY 2007. Deadline for Transmittal of their parent or guardian, provide written Affected Public: Not-for-profit Applications: August 16, 2005. consent, must not prohibit students who institutions; State, local, or tribal gov’t, Deadline for Intergovernmental do not consent from participating in SEAs or LEAs. Review: September 15, 2005. school or extracurricular activities. Reporting and Recordkeeping Hour Eligible Applicants: Local educational Burden: agencies (LEAs) and public and private Note: Applicants are encouraged to ensure, Responses: 57. entities. to the extent feasible, that all students who Burden Hours: 9. Estimated Available Funds: participate in the drug-testing program Abstract: Section 509 of the $6,500,000. Contingent upon the remain in the random drug-testing pool for the entire academic year. Rehabilitation Act of 1973 as amended availability of funds, the Secretary may (Act), and its implementing Federal make additional awards in FY 2006 Competitive Preference Priority: Regulations at 34 CFR part 381, require from the list of unfunded applicants Within this absolute priority, we give the PAIR grantees to submit an from this competition. competitive preference to applications application to the RSA Commissioner in Estimated Range of Awards: that address the following priority. order to receive assistance under section $100,000–$300,000. For FY 2005 and any subsequent year 509 of the Act. The Act requires that the Estimated Average Size of Awards: in which we make awards based on the application contain Assurances to $200,000. list of unfunded applications from this
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competition, this priority is a (7) Agree to participate in the national (f) Provide written assurances of the competitive preference priority. Under evaluation and provide an assurance following: 34 CFR 75.105(C)(2)(i) we will award 10 that the applicant will cooperate with (i) That results of student drug tests additional points to applicants that the national evaluator in obtaining will not be disclosed to law enforcement propose mandatory random drug testing parental consent for student officials; in two or three schools and 15 participation in surveys that the (ii) That results of student drug tests additional points to applicants that national evaluator will administer in all will be destroyed when the student propose mandatory random drug testing the selected schools (control and graduates or otherwise leaves the LEA in four or more schools. Although experimental). or private school involved; students in grades from 6 through 8 may At the time of the grant award, the (iii) That all positive drug tests will be be drug tested under this priority, Department of Education’s evaluator reviewed by a certified medical review competitive preference points will only will randomly assign the schools either officer; be credited for applicants that propose, to receive the intervention (mandatory (iv) That legal counsel has reviewed at a minimum, drug testing of students random drug testing) or not receive the the proposed program and advised that in three or more grades from 9 through intervention (no mandatory random the program activities do not appear to 12. drug testing). The evaluator will collect violate established constitutional principles or State and Federal This priority is: outcome data in both sets of schools. requirements related to implementing a National Evaluation of Mandatory Application Requirements: The student drug-testing program; and Random Student Drug-Testing following requirements apply to all applications submitted under this (v) That all proposed activities will be Programs. Under this priority, we will carried out in accordance with the provide Federal financial assistance to program: (1) Applicants may not submit more requirements of the Family Educational eligible applicants to develop and than one application for an award under Rights and Privacy Act (FERPA) and the implement school-based mandatory this program. Protection of Pupil Rights Amendment random drug-testing programs for (2) Applicants may not have been the (PPRA). students in one or more grades from 6 recipient or beneficiary of a grant in Program Authority: 20 U.S.C. 7131. through 12. Any drug-testing program 2003 under the Department of conducted with funds awarded under Education Demonstration Grants for Applicable Regulations: (a) The this priority must be limited to one or Student Drug-Testing competition. Education Department General more of the following: (3) Non-LEA applicants must submit Administrative Regulations (EDGAR) in (1) All students who participate in the a letter of agreement to participate from 34 CFR parts 74, 75, 77, 79, 80, 81, 82, school’s athletic program; and an LEA. The letter must be signed by the 84, 85, 86, 97, 98, 99, and 299. (b) The (2) All students who are engaged in applicant and an authorized notice of final eligibility and application competitive, extracurricular, school- representative of the LEA. Letters of requirements, priorities, and selection sponsored activities. support are not acceptable as evidence criteria published elsewhere in this Applicants for this priority must of the required agreement. issue of the Federal Register. propose drug testing in two or more (4) Funds may not be used for the Note: The regulations in part 79 apply to schools within the same LEA that do not following purposes: all applicants except Federally recognized have an existing drug-testing program in (a) Student drug tests administered Indian tribes. operation. Drug testing must include, at under suspicion of drug use; a minimum, students in three or more (b) Incentives for students to Note: The regulations in part 86 apply to grades from 9 through 12. In addition, participate in programs; institutions of higher education only. applicants for this priority must: (c) Drug treatment; or (1) Not have a voluntary testing (d) Drug prevention curricula or other II. Award Information component proposed as part of their prevention programs. Type of Award: Discretionary grants. program; (5) Applicants must: Estimated Available Funds: (2) Provide an assurance that the (a) Identify a target population and $6,500,000. Contingent upon the demonstrate a significant need for drug schools randomly assigned to not begin availability of funds, the Secretary may testing within the target population; mandatory random drug testing will not make additional awards in FY 2006 (b) Explain how the proposed drug- from the list of unfunded applicants implement any drug-testing program for testing program will be part of an the duration of the national evaluation; from this competition. existing, comprehensive drug Estimated Range of Awards: (3) Agree to cooperate with all data prevention program in the schools to be collection activities that the national $100,000–$300,000. served; Estimated Average Size of Awards: evaluation will conduct in all the (c) Provide a comprehensive plan for schools; $200,000. referring students who are identified as Estimated Number of Awards: 32. (4) Develop and implement drug users through the testing program mandatory random drug-testing policies to a student assistance program, Note: The Department is not bound by any and procedures to be carried out counseling, or drug treatment if estimates in this notice. consistently in all schools selected to necessary; Project Period: Up to 36 months. implement drug testing; (d) Provide a plan to ensure the (5) Institute a policy of mandatory confidentiality of drug-testing results, III. Eligibility Information random drug-testing for the entire including a provision that prohibits the 1. Eligible Applicants: LEAs and academic year in the schools selected to party conducting drug tests from public and private entities. implement drug testing; disclosing to school officials any 2. Cost Sharing or Matching: This (6) Ensure that, to the extent feasible, information about a student’s use of competition does not involve cost all eligible students who participate in legal medications; sharing or matching. the drug-testing program remain in the (e) Limit the cost of site-based 3. Other: random drug testing pool for the entire evaluations to no more than 10 percent (a) Participation by Private School academic year; and of total funds requested; and Children and Teachers. Entities
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receiving a grant under the School- Individuals with disabilities may through the Department’s e-Grants Based obtain a copy of the application in an system, accessible through the e-Grants Student Drug-Testing program are alternative format (e.g., Braille, large portal page at: http://e-grants.ed.gov. required to provide for the equitable print, audiotape, or computer diskette) While completing your electronic participation of private school children by contacting the program contact application, you will be entering data and their teachers or other educational person listed in this section. online that will be saved into a personnel. In order to ensure that grant The public can also obtain database. You may not e-mail an program activities address the needs of applications directly from the program electronic copy of a grant application to private school children, timely and office: Robyn Disselkoen or Sigrid us. meaningful consultation with Melus, U.S. Department of Education, Please note the following: appropriate private school officials must 400 Maryland Avenue, SW., room • Your participation in e-Application occur during the design and 3E259, Washington, DC 20202–6450. is voluntary. development of the program. This Telephone: (202) 260–3954 or by e-mail: • You must complete the electronic consultation must take place before any [email protected]. submission of your grant application by decision is made that affects the If you use a telecommunications 4:30 p.m., Washington, DC time, on the opportunities of eligible private school device for the deaf (TDD), you may call application deadline date. The e- children, teachers, and other the Federal Relay Service (FRS) at 1– Application system will not accept an educational personnel to participate. 800–877–8339. application for this competition after Administrative direction and control 2. Content and Form of Application 4:30 p.m., Washington, DC time, on the over grant funds must remain with the Submission: See the Application application deadline date. Therefore, we grantee. See Section 9501, Participation Requirements section elsewhere in this strongly recommend that you do not by Private School Children and notice. Additional requirements wait until the application deadline date Teachers, of the Elementary and concerning the content of an to begin the application process. Secondary Education Act of 1965, as application, together with the forms you • The regular hours of operation of amended by the No Child Left Behind must submit, are in the application the e-Grants Web site are 6 a.m. Monday Act of 2001. package for this program. until 7 p.m. Wednesday; and 6 a.m. (b) Maintenance of Effort. 3. Submission Dates and Times: Thursday until midnight Saturday, An LEA may receive a grant under the Applications Available: July 7, 2005. Washington, DC time. Please note that School-Based Student Drug-Testing Deadline for Transmittal of the system is unavailable on Sundays, program only if the State educational Applications: August 16, 2005. and between 7 p.m. on Wednesdays and Applications for grants under this agency finds that the combined fiscal 6 a.m. on Thursdays, Washington, DC competition may be submitted efforts per student or the aggregate time, for maintenance. Any electronically using the Electronic Grant expenditures of the agency and the State modifications to these hours are posted Application System (e-Application) with respect to the provision of free on the e-Grants Web site. accessible through the Department’s e- public education by the agency for the • You will not receive additional Grants system, or in paper format by preceding fiscal year was not less than point value because you submit your mail or hand delivery. For information 90 percent of the combined fiscal effort application in electronic format, nor (including dates and times) about how or aggregate expenditures for the second will we penalize you if you submit your to submit your application preceding fiscal year. application in paper format. (c) Participation of Faith-based electronically, or by mail or hand • You must submit all documents Organizations. Faith-based delivery, please refer to section IV.6. electronically, including the organizations are eligible to apply for Other Submission Requirements in this Application for Federal Education grants under this competition provided notice. Assistance (ED 424), Budget they meet all statutory and regulatory We do not consider an application Information—Non-Construction requirements. that does not comply with the deadline requirements. Programs (ED 524), and all necessary IV. Application and Submission Deadline for Intergovernmental assurances and certifications. • Information Review: September 13, 2005. Any narrative sections of your 1. Address to Request Application 4. Intergovernmental Review: This application must be attached as files in Package: Education Publications Center competition is subject to Executive a .DOC (document), .RTF (rich text), or (ED Pubs), PO Box 1398, Jessup, Order 12372 and the regulations in 34 .PDF (Portable Document) format. • Maryland 20794–1398. Telephone (toll CFR Part 79. Information about Your electronic application must free): 1–877–433–7827. Fax: 301–470– Intergovernmental Review of Federal comply with any page limit 1244. If you use a telecommunications Programs under Executive Order 12372 requirements described in this notice. • device for the deaf (TDD), you may call is in the application package for this Prior to submitting your electronic (toll free): 1–877–576–7734. competition. application, you may wish to print a You may also contact Ed Pubs at its 5. Funding Restrictions: We reference copy of it for your records. Web site: http://www.ed.gov/pubs/ additional regulations outlining funding • After you electronically submit edpubs.html or you may contact ED restrictions in the Applicable your application, you will receive an Pubs at its e-mail address: Regulations section of this notice. automatic acknowledgement that will [email protected]. 6. Other Submission Requirements: include a PR/Award number (an If you request an application from ED Applications for grants under this identifying number unique to your Pubs be sure to identify this competition competition may be submitted application). as follows: CFDA number 84.184D. electronically or in paper format by mail • Within three working days after You may also download the or hand delivery. submitting your electronic application, application from the Department of a. Electronic Submission of fax a signed copy of the ED 424 to the Education’s Web site at: http:// Applications. If you choose to submit Application Control Center after www.ed.gov/fund/grant/apply/ your application to us electronically, following these steps: grantapps/index/html. you must use e-Application available (1) Print ED 424 from e-Application.
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(2) The applicant’s Authorizing before the application deadline date, to any—of the competition under which Representative must sign this form. the Department at the applicable you are submitting your application. (3) Place the PR/Award number in the following address: (2) The Application Control Center upper right hand corner of the hard- By mail through the U.S. Postal will mail a grant application receipt copy signature page of the ED 424. Service: U.S. Department of Education, acknowledgment to you. If you do not (4) Fax the signed ED 424 to the Application Control Center, Attention: receive the grant application receipt Application Control Center at (202) (CFDA Number 84.184D), 400 Maryland acknowledgment within 15 business 245–6272. Avenue, SW., Washington, DC 20202– days from the application deadline date, • We may request that you provide us 4260; or you should call the U.S. Department of original signatures on other forms at a By mail through a commercial carrier: Education Application Control Center at later date. U.S. Department of Education, (202) 245–6288. Application Deadline Date Extension Application Control Center—Stop 4260, V. Application Review Information in Case of System Unavailability: If you Attention: (CFDA Number 84.184D), are prevented from electronically 7100 Old Landover Road, Landover, MD Selection Criteria: The selection submitting your application on the 20785–1506. criteria for this competition are from the application deadline date because the Regardless of which address you use, notice of final eligibility and application e-Application system is unavailable, we you must show proof of mailing requirements, priorities, and selection will grant you an extension of one consisting of one of the following: criteria published elsewhere in this business day in order to transmit your (1) A legibly dated U.S. Postal Service issue of the Federal Register, and are application electronically, by mail, or by postmark, listed in the application package. hand delivery. We will grant this (2) A legible mail receipt with the VI. Award Administration Information extension if— date of mailing stamped by the U.S. (1) You are a registered user of Postal Service, 1. Award Notices: If your application e-Application and you have initiated an (3) A dated shipping label, invoice, or is successful, we notify your U.S. electronic application for this receipt from a commercial carrier, or Representative and U.S. Senators and competition; and (4) Any other proof of mailing send you a Grant Award Notification (2)(a) The e-Application system is acceptable to the Secretary of the U.S. (GAN). We may also notify you unavailable for 60 minutes or more Department of Education. informally. between the hours of 8:30 a.m. and 3:30 If you mail your application through If your application is not evaluated or p.m., Washington, DC time, on the the U.S. Postal Service, we do not not selected for funding, we notify you. application deadline date; or accept either of the following as proof 2. Administrative and National Policy (b) The e-Application system is of mailing: Requirements: We identify unavailable for any period of time (1) A private metered postmark, or administrative and national policy between 3:30 p.m. and 4:30 p.m., (2) A mail receipt that is not dated by requirements in the application package Washington, DC time, on the the U.S. Postal Service. and reference these and other application deadline date. If your application is postmarked after requirements in the Applicable We must acknowledge and confirm the application deadline date, we will Regulations section of this notice. these periods of unavailability before We reference the regulations outlining not consider your application. granting you an extension. To request the terms and conditions of an award in this extension or to confirm our Note: The U.S. Postal Service does not the Applicable Regulations section of acknowledgement of any system uniformly provide a dated postmark. Before this notice and include these and other unavailability, you may contact either relying on this method, you should check specific conditions in the GAN. The with your local post office. (1) the person listed elsewhere in this GAN also incorporates your approved notice under FOR FURTHER INFORMATION c. Submission of Paper Applications application as part of your binding CONTACT (see VII. Agency Contact) or (2) by Hand Delivery. If you submit your commitments under the grant. the e-Grants help desk at 1–888–336– application in paper format by hand 3. Reporting: At the end of your 8930. If the system is down and delivery, you (or a courier service) must project period, you must submit a final therefore the application deadline is deliver the original and two copies of performance report, including financial extended, an e-mail will be sent to all your application by hand, on or before information, as directed by the registered users who have initiated an the application deadline date, to the Secretary. If you receive a multi-year e-Application. Department at the following address: award, you must submit an annual Extensions referred to in this section U.S. Department of Education, performance report that provides the apply only to the unavailability of the Application Control Center, Attention: most current performance and financial Department’s e-Application system. If (CFDA Number 84.184D), 550 12th expenditure information as specified by the e-Application system is available, Street, SW., Room 7041, Potomac Center the Secretary in 34 CFR 75.118. and, for any reason, you are unable to Plaza, Washington, DC 20202–4260. 4. Performance Measure: The submit your application electronically The Application Control Center Department has established the or you do not receive an automatic accepts hand deliveries daily between 8 following GPRA performance measure acknowledgement of your submission, a.m. and 4:30 p.m., Washington, DC for the School-Based Student Drug- you may submit your application in time, except Saturdays, Sundays, and Testing program: The reduction of the paper format by mail or hand delivery Federal holidays. incidence of drug use in the past month in accordance with the instructions in Note for Mail or Hand Delivery of and past year. The Secretary has set an this notice. Paper Applications: If you mail or hand overall performance target that calls for b. Submission of Paper Applications deliver your application to the the prevalence of drug use by students by Mail. If you submit your application Department: in the target population to decline by in paper format by mail (through the (1) You must indicate on the envelope five percent annually. U.S. Postal Service or a commercial and—if not provided by the This measure constitutes the carrier), you must mail the original and Department—in Item 4 of the ED 424 the Department’s indicator of success for two copies of your application, on or CFDA number—and suffix letter, if this program. Consequently, applicants
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for a grant under this program are DEPARTMENT OF EDUCATION Analysis of Comments and Changes advised to give careful consideration to In response to our invitation in the Grants for School-Based Student this measure in conceptualizing the notice of proposed eligibility and approach and evaluation for their Drug-Testing Programs application requirements, priorities, and proposed project. If funded, applicants AGENCY: Office of Safe and Drug-Free selection criteria, nine parties submitted will be asked to collect and report data Schools, Department of Education. comments. Three other comments did in their annual performance and final not address the proposed eligibility and reports about progress toward this ACTION: Notice of final eligibility and application requirements, priorities, and measure. application requirements, priorities, and selection criteria and are not discussed selection criteria. here. An analysis of the comments and VII. Agency Contacts of any changes in the eligibility and SUMMARY: The Assistant Deputy application requirements, priorities, and FOR FURTHER INFORMATION CONTACT: Secretary for Safe and Drug-Free selection criteria since publication of Robyn Disselkoen or Sigrid Melus, U.S. Schools announces eligibility and the notice of proposed eligibility and Department of Education, 400 Maryland application requirements, priorities, and application requirements, priorities, and Avenue, SW., room 3E259, Washington, selection criteria for the School-Based selection criteria follows. DC 20202–6450. Telephone: (202) 260– Student Drug-Testing program. We may We group major issues according to 3954. E-mail address: use these requirements, priorities, and subject. Generally, we do not address [email protected]. selection criteria for competitions in technical and other minor changes and fiscal year 2005 and later years. We take suggested changes the law does not If you use a telecommunications this action to focus Federal financial device for the deaf (TDD), you may call authorize us to make under the assistance on an identified national applicable statutory authority. (toll free) 1–877–576–7734. need. We intend for these requirements, Individuals with disabilities may priorities, and selection criteria to Eligibility Requirements obtain this document in an alternative increase the use of drug testing as a Comment: One commenter suggested format (e.g., Braille, large print, means to deter student drug use. that State educational agencies be able audiotape, or computer diskette) on EFFECTIVE DATE: These requirements, to apply for grant funds. request to the contact person listed in priorities, and selection criteria are Discussion: Eligible applicants for this this section. effective August 8, 2005. competition include public and private entities. To the extent that a State VIII. Other Information FOR FURTHER INFORMATION CONTACT: educational agency meets the definition Robyn L. Disselkoen or Sigrid Melus, of a public entity and all other Electronic Access to This Document: U.S. Department of Education, 400 requirements of the competition, it may You may view this document, as well as Maryland Avenue, SW., Washington, apply. all other documents of this Department DC 20202–6450. Telephone: (202) 260– Change: None. published in the Federal Register, in 3954. E-mail: text or Adobe Portable Document [email protected]. Priority 1—Mandatory Random and Format (PDF) on the Internet at the If you use a telecommunications Voluntary Student Drug-Testing Programs following site: http://www.ed.gov/news/ device for the deaf (TDD), you may call fedregister. the Federal Relay Service (FRS) at 1– Comments: Two commenters expressed confusion over the wording To use PDF you must have Adobe 800–877–8339. Individuals with disabilities may in option 3 of Priority 1. In the second Acrobat Reader, which is available free paragraph, under option 3, we stated at this site. If you have questions about obtain this document in an alternative format (e.g., Braille, large print, that schools that proposed a voluntary using PDF, call the U.S. Government drug-testing program could not prohibit Printing Office (GPO), toll free, at audiotape, or computer diskette) on request to the contact person listed students who did not consent to be drug 1–888–293–6498; or in the Washington, under FOR FURTHER INFORMATION tested from participating in school or DC, area at (202) 512–1530. CONTACT. extracurricular activities. Both You may also view this document in commenters requested that we insert the text or PDF at the following site: SUPPLEMENTARY INFORMATION: Drug word ‘‘only’’ in the sentence as follows: http://www.ed.gov/programs/ abuse interferes with a student’s ability ‘‘applicants who propose only voluntary to learn and disrupts the orderly drugtesting/applicant.html. drug testing * * *’’ to clarify that the environment necessary for academic last paragraph of Priority 1 applies only Note: The official version of this document achievement. Although drug use among to option 3, regarding voluntary drug is the document published in the Federal America’s youth has declined in recent testing, and not to options 1 or 2, Register. Free Internet access to the official years, far too many young people mandatory random testing. edition of the Federal Register and the Code continue to use illegal drugs. The Discussion: We agree that the wording of Federal Regulations is available on GPO Department of Education, through these in the second paragraph under option 3 Access at: http://www.gpoaccess.gov/nara/ requirements, priorities, and selection could confuse some readers. We intend index.html. criteria, is encouraging schools and that the wording apply only to students communities to consider the use of Dated: July 5, 2005. in a voluntary testing program even mandatory random and voluntary when applicants propose projects that Deborah A. Price, student drug-testing programs as a tool combine voluntary and mandatory Assistant Deputy Secretary for Safe and Drug- to support other drug-prevention efforts. random components. Free Schools. We published a notice of proposed Change: We have merged the first and [FR Doc. 05–13494 Filed 7–6–05; 8:45 am] eligibility and application requirements, second paragraphs under option 3 to BILLING CODE 4000–01–P priorities, and selection criteria for this indicate clearly that the requirement program in the Federal Register on applies only to a voluntary drug-testing April 21, 2005 (70 FR 20739). program.
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Comment: One commenter stated that grantees that participate in the national requirements for statistical power it is unreasonable to limit a drug-testing evaluation must also agree to cooperate analysis and problems with ‘‘nesting’’ program to only one grade in a school fully in the contractor’s separate and differences from site to site. The with many grades. Institutional Review Board (IRB) commenter suggested that 75 to 100 Discussion: Priority 1 specifies that a requirements in order to comply with schools should be involved with this drug-testing program may be Department of Education regulations research design, following one cohort of implemented in one or more grades 6 and human research protection 9th- and 10th-graders over two years. through 12. Applicants are free to procedures. Discussion: We do not agree with the implement a drug-testing program in as Discussion: Grantees whose sites are basic premise that 75 to 100 schools are many grades from 6 through 12 as they selected for the national evaluation are needed in the research design because choose. not required to have IRB approval for we have designed the study to detect a Change: None. their activities in support of the national 10.2 percent reduction in the 30-day evaluation. The national evaluator prevalence of illicit drug use. In order Priority 2—National Evaluation of only—not the grantees—will conduct to detect this effect, we need 30 schools. Mandatory Random Student Drug- the research activities, including survey Our assumptions for the study design Testing Programs administration and obtaining parental are: (1) A two-tailed test at 80 percent Comments: Two commenters permission. The grantees will facilitate power and a 5 percent statistical questioned why Priority 2 does not communication between the national significance; (2) an R2 value of 0.50 permit applicants to have a program that evaluator and the parents and/or because of the use of prior student drug includes both mandatory random and students by, for example, providing use as a covariate; (3) a non-random voluntary drug testing. brochures and contact information for sample of 30 schools with random Discussion: We are establishing the the contractor, but they will not be assignment of 15 schools to receive the restrictions in Priority 2 as part of the involved in conducting the research or intervention and 15 schools to serve as national evaluation requirements. The speaking on behalf of the national controls; (4) a sample size of 200 goal of the national evaluation is to evaluator. students per school with an 80 percent study the effects of mandatory random Change: None. response rate, and (5) an intra-class drug testing on a sample of students. Comment: One commenter argued correlation coefficient of 0.05. We Students who volunteer to be drug that for the funded projects to constitute estimate that this design would generate tested may not be using drugs to the a valid research sample, there needs to minimum detectable effects (MDE) of same degree as those for whom drug be harmonization of policies and approximately 0.17 standard deviation testing is mandatory. Therefore, procedures, such as the number of tests for continuous outcomes, and 7.8 allowing schools in the evaluation to and frequency of testing for each percent for binary outcomes where the have both a voluntary and a mandatory student. control group mean is 30 percent. random program would likely make it Discussion: We do not think that Because the sample of schools is more difficult to identify the impact of policies and procedures need to be purposive, and statistically generalizing mandatory random programs. harmonized in order to produce a valid beyond this sample is not valid, we Change: None. research sample. Implementation of have calculated the power with a fixed- Comment: One commenter suggested modestly different mandatory random effects, rather than random effects, that the clear delineation of the effect of drug-testing programs by different framework. Under our assumptions, the mandatory random drug testing may be school districts will not affect the sample of 30 schools would be less than expected in the proposed validity of the study, provided that the sufficient to detect the reduction of 10.2 research design because of the evaluation is understood as estimating percent in the 30-day prevalence of use requirement that all applicants show the impact of the average program as of any illicit drug. If the true impact desire and commitment for a program implemented by the average school were smaller than the MDE, that would that will reduce drug use, regardless of district in the study. (Even if the not challenge the validity of the study, whether a program is implemented. The program model adopted were identical only its precision in detecting smaller commenter believes that schools that are across districts, the districts would impacts from drug-testing programs. committed to implementing drug testing almost certainly differ in some aspects Change: None. will always have a better result, of their implementation of the program, Comment: A commenter stated that regardless of the intervention, than a making complete harmonization of the statistical design of the evaluation school that knows it is always going to policies and procedures impossible.) raises serious issues of confidentiality be a control. Nonetheless, we are concerned that, for following from identification of specific Discussion: There may be a larger the treatment schools and control individuals for the evaluation difference in the incidence of substance schools to be comparable for the sake of component each year. The evaluation, use for schools that desire, and have the evaluation, the matched schools according to the commenter, will implemented, a mandatory random within each district will need to be require the development of separate lists drug-testing program compared to committed, prior to random assignment, of students eligible for the mandatory schools that are not interested in and to implementing the same policies and random drug-testing program and not implementing such a program. procedures with regard to drug testing. students who are not eligible, as well as However, that difference will reflect Change: We have added a lists of students in the corresponding both the true impact of implementing requirement to Priority 2 that applicants groups at the control school. the program and the selection bias of develop and implement mandatory Subsequently, in the commenter’s schools that choose to adopt those random student drug-testing policies example, for each of two programs; randomly assigning schools and procedures that are carried out implementation years, 100 students in that are similarly motivated better consistently in all schools selected to the random testing pool and 100 isolates the effect of the program. implement drug testing. students not in the pool, and 200 Change: None. Comment: One commenter stated that students at the control schools, will be Comment: One commenter wanted us two matched schools will be insufficient selected from the lists to respond to the to include the explicit statement that for a valid research sample due to evaluation questionnaire.
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Discussion: The national evaluator Change: We have added language that programs funded through this program. responsible for data collection will requires grantees under Priority 2 to These requirements represent the respect the confidentiality of all student institute a policy of mandatory random necessary components of a student records and take necessary measures to drug testing for the entire academic year drug-testing program with a drug testing ensure the security of the data. in the schools selected to implement policy, and LEAs should incorporate Surveying students during school hours drug testing, and to ensure, to the extent these components into their own drug- would not pose a problem because feasible, that all students who testing policy. We encourage LEAs to students’ responses to the survey would participate in the drug-testing program develop student drug-testing policies remain confidential. The fact that remain in the random drug-testing pool before beginning drug testing but do not students are voluntarily participating in for the entire academic year. require that an LEA have a policy as a the study would not necessarily be Application Requirements prerequisite for receiving a grant award. private, but this issue is present in all LEAs need time to develop a student of our studies involving sampling of Comment: One commenter noted that drug-testing policy that has been students for data collection in school the current language concerning reviewed and accepted by their school settings. Students subject to drug testing confidentiality of drug test results administrators and school boards before in Priority 2 will be athletes and indicating that a student is taking legal it can be implemented. students in competitive extracurricular medications would prohibit a medical Change: None. activities. The study will be carried out review officer from communicating Comments: Two commenters in accordance with the requirements of necessary information to authorized expressed concern about the ten percent the Family Educational Rights and school officials regarding a positive drug cap on the cost of site-based Privacy Act (FERPA) and the Protection test. evaluations. of Pupil Rights Amendment (PPRA). Discussion: As part of the general Discussion: We believe that the ten Change: We have added a application requirements, applicants percent cap on site-based evaluations requirement to the application must provide a written assurance that will provide grantees with sufficient requirements that all applicants must all positive drug tests will be reviewed funds to carry out their local evaluation. provide a written assurance that all by a certified medical review officer. We estimate the average size of an proposed activities will be carried out in Applicants must also provide a plan to award as $200,000, up to $20,000 of accordance with the requirements of ensure the confidentiality of drug- which could be used to carry out a local FERPA and PPRA. testing results, including a provision evaluation that reports on the Comment: One commenter stated that that prohibits the party conducting the Government Performance and Results schools need to assist in obtaining drug tests from disclosing to school Act (GPRA) performance measures and parental consent as part of their officials any information about a specific program goals and objectives. participation in the national evaluation. student’s use of legal medications. The Change: None. Discussion: In the notice of proposed medical review officer would confirm Selection Criteria: General eligibility and application requirements, with parents whether a student’s priorities, and selection criteria, we positive drug test resulted from a legal Comment: One commenter proposed a general requirement that medication. If so, the medical review recommended that the performance schools cooperate with the evaluation, officer would report the test result as a target of the reduction of drug use by which we believe would include negative for illegal drugs. five percent should only be tied to cooperating with the national evaluator Change: None. program implementation in years two to obtain parental consent. We agree, Comment: One commenter and three. however, that the requirement should recommended that we not exclude from Discussion: We understand that specifically include support by schools this competition recipients or progress in the first year may be of the evaluator’s efforts to obtain all beneficiaries of a prior grant in 2003 minimal while the grantee collects required parental consent. under the Department’s Demonstration baseline data. We think it important, Change: We are adding a requirement Grants for Student Drug-Testing however, for grantees to report annually in Priority 2 that applicants that agree competition. on progress in meeting the performance to participate in the national evaluation Discussion: Congress appropriated targets, as well as their project goals and provide an assurance that they will funds in FY 2005 to expand student objectives. This information is necessary cooperate with the national evaluator in drug-testing programs. It is our intent to to help us assess if grantees are making obtaining parental consent for student extend Federal funding for student progress and to determine technical participation in surveys the national drug-testing programs to as many new assistance needs. evaluator will administer in all of the school districts as possible. Allowing Change: None. selected schools (control and current grantees to compete for these Comment: One commenter experimental). funds would decrease the total number recommended that we award student Comment: One commenter suggested of school districts that could receive drug-testing grants on a first-come, first- that schools need to require mandatory Federal support to implement a student serve basis for applicants that use a random testing for the entire academic drug-testing grant. standard pre-approved, drug-testing year for all eligible students, not just Change: None. program. during one sports season, for example. Comment: One commenter Discussion: We cannot provide a Testing only during the season of sports recommended that we include text standard drug-testing program for all participation reduces the positive effects stating that the implementation of a applicants to use because each applicant of random student drug testing on mandatory random drug-testing or must design a program that best suits illegal drug use significantly. voluntary drug-testing program be the needs and requirements of its Discussion: We agree that testing of governed by already approved policies. individual community. Variations in athletes and students in extracurricular Discussion: The requirements in this State laws and local policies must be activities during the entire academic notice of final eligibility and application factored into each individual program. year is important to maintaining the requirements, priorities, and selection Moreover, each applicant must provide deterrent effects of drug testing. criteria will govern student drug-testing an assurance that legal counsel has
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reviewed the proposed program and Change: None. selecting an application that meets the advised the applicant that the program competitive priority over an application of Scope of Program activities do not appear to violate comparable merit that does not meet the established constitutional principles or Comment: Several commenters priority (34 CFR 75.105(c)(2)(ii)). Invitational priority: Under an invitational State and Federal requirements related suggested that we broaden the scope of the overall grant competition. One priority we are particularly interested in to implementing a student drug-testing applications that meet the invitational program. commenter asked us to ensure that priority. However, we do not give an Change: None. appropriate health and mental heath application that meets the invitational Comment: One commenter programs are in place before student priority a competitive or absolute preference recommended that LEAs funded drug testing takes place; one commenter over other applications (34 CFR 75.105(c)(1)). through this program be required to asked us to allow funds to be used for Eligibility Requirements have a strong evaluation design for their general drug prevention activities or local efforts. The commenter contended training in addition to drug testing; and We are limiting eligibility for grants to that grantees should commit to another asked us to expand the program local educational agencies (LEAs) and cooperating with a national evaluation so that students in co-curricular public and private entities. of the student drug-testing program, activities could be drug tested. Priorities which addresses such issues as: (1) The Discussion: We understand the reduction of the prevalence of drug use importance of providing assistance to Priority #1—Mandatory Random and among students, (2) the effectiveness of students who test positive for substance Voluntary Student Drug-Testing a random program compared to a abuse, which is why the program Programs voluntary program, (3) how other requires that applicants provide a Under this priority, we will provide coexisting strategies affect the reduction comprehensive plan for referring Federal financial assistance to eligible of drug use, and (4) if there are any students who are identified as drug applicants to develop and implement, or unintended consequences linked to users through the testing program to a expand, school-based mandatory drug testing. student assistance program, counseling, random or voluntary drug-testing Discussion: Under Priority 2 we will or drug treatment. The drug-testing programs for students in one or more carry out a national evaluation of program will be part of an existing, grades 6 through 12. Any drug-testing student-drug testing programs designed comprehensive drug prevention program conducted with funds awarded to measure the effectiveness of this program in the schools to be served. We under this priority must be limited to strategy across all implementation sites. want funds for this program to be used one or more of the following: We think that evaluating mandatory for drug testing and not for drug (1) Students who participate in the drug testing programs will yield better prevention curricula or other prevention school’s athletic program; information about drug testing as an programs that can be funded from other (2) Students who are engaged in effective deterrent than in comparing sources. The Safe and Drug Free Schools competitive, extracurricular, school- mandatory random to voluntary drug- and Communities Act State Grants, for sponsored activities; and testing programs. Priority 1 requires all example, provide funds to LEAs to (3) A voluntary drug-testing program grantees to conduct site-based implement prevention programs that are for students who, along with their evaluations on program effectiveness responsive to local needs. parent or guardian, have provided using objective performance measures We have limited the scope of the written consent to participate in a related to the outcomes of the project random drug-testing programs to random drug-testing program. and the Government Performance and students involved in athletics and Applicants that propose voluntary drug Results Act performance measure on the competitive, school-sponsored, testing for students who, along with incidence of drug use in the past month extracurricular activities because drug- their parent or guardian, provide written and past year. Issues such as a testing programs for these students consent, must not prohibit students who comparison of mandatory random to generally are consistent with established do not consent from participating in voluntary drug testing may be part of constitutional principles. Programs for school or extracurricular activities. local evaluations. students in co-curricular activities have Change: None. not yet received the same level of Priority #2—National Evaluation of Mandatory Random Student Drug- Selection Criteria: Project Personnel judicial scrutiny. Change: None. Testing Programs Comment: Two commenters asked Under this priority, we will provide whether a grantee under this program Note: This notice does not solicit applications. In any year in which we choose Federal financial assistance to eligible may hire specific project personnel such to use one or more of these eligibility and applicants to develop and implement as a social worker and a prevention application requirements, priorities, or school-based mandatory random drug- coordinator. selection criteria, we invite applications testing programs for students in one or Discussion: Grant funds may be used through a notice in the Federal Register. more grades 6 through 12. to pay for staff who implement and When inviting applications, we designate Any drug-testing program conducted carry out the drug-testing program. each priority as absolute, competitive with funds awarded under this priority When a student tests positive for drug preference, or invitational. The effect of each must be limited to one or more of the priority is as follows: use, staff may be paid for reasonable following: time spent counseling the student, Absolute priority: Under an absolute (1) All students who participate in the conducting a drug abuse assessment, priority we consider only applications that school’s athletic program; and and referring a student to drug treatment meet the priority (34 CFR 75.105(c)(3)). (2) All students who are engaged in services. No funds may be used to pay Competitive preference priority: Under a competitive, extracurricular, school- competitive preference priority we give for drug abuse treatment services. competitive preference to an application by sponsored activities. Within these parameters, we believe either (1) awarding additional points, Applicants for this priority must that decisions on specific staff to hire depending on how well or the extent to propose drug testing in two or more and to pay under the grant should be which the application meets the competitive schools within the same LEA that do not left to individual grantees. priority (34 CFR 75.105(c)(2)(i)); or (2) have an existing drug-testing program in
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operation. Drug testing must include, at (a) Student drug tests administered by the drug-testing program, including a minimum, students in three or more under suspicion of drug use; the nature, type, and frequency, if grades from 9 through 12. In addition, (b) Incentives for students to known, of drugs being used by students applicants for this priority must: participate in programs; in the target population; and (1) Not have a voluntary testing (c) Drug treatment; or (b) Other evidence of student drug component proposed as part of their (d) Drug prevention curricula or other use, such as reports from parents, program; prevention programs. students, school staff, or law (2) Provide an assurance that the (5) Applicants must: enforcement officials. schools randomly assigned to not begin (a) Identify a target population and (2) Significance. mandatory random drug testing will not demonstrate a significant need for drug (a) The extent to which the proposed implement any drug-testing program for testing within the target population; project includes a thorough, high- (b) Explain how the proposed drug- the duration of the national evaluation; quality review of Federal and State laws testing program will be part of an (3) Agree to cooperate with all data and relevant Supreme Court decisions existing, comprehensive drug collection activities that the national related to the proposed student drug- prevention program in the schools to be evaluation will conduct in all the testing program; served; (b) The extent to which the applicant schools; (c) Provide a comprehensive plan for demonstrates school and community (4) Develop and implement referring students who are identified as support for the student drug-testing mandatory random drug-testing policies drug users through the testing program program and has included a diversity of and procedures to be carried out to a student assistance program, perspectives such as those of parents, consistently in all schools selected to counseling, or drug treatment if counselors, teachers, and school board implement drug testing; necessary; members, in the development of the (5) Institute a policy of mandatory (d) Provide a plan to ensure the drug-testing program; and random drug-testing for the entire confidentiality of drug-testing results, (c) The importance or magnitude of academic year in the schools selected to including a provision that prohibits the the results or outcomes likely to be implement drug testing; party conducting drug tests from attained by the student drug-testing (6) Ensure that, to the extent feasible, disclosing to school officials any program. all students who participate in the drug- information about a student’s use of (3) Quality of Project Design. testing program remain in the random legal medications; (a) The extent to which the project drug-testing pool for the entire academic (e) Limit the cost of site-based will be based on up-to-date knowledge year; and evaluations to no more than 10 percent from research and effective practice, (7) Agree to participate in the national of total funds requested; including the methodology for the evaluation and provide an assurance (f) Provide written assurances of the random selection of students to be that the applicant will cooperate with following: tested and procedures outlining the the national evaluator in obtaining (i) That results of student drug tests collection, screening, confirmation, and parental consent for student will not be disclosed to law enforcement review of student drug tests by a participation in surveys that the officials; certified medical review officer; national evaluator will administer in all (ii) That results of student drug tests (b) The extent to which the applicant the selected schools (control and will be destroyed when the student identifies the drugs for which it plans to experimental). graduates or otherwise leaves the LEA test and includes a rationale for the type At the time of the grant award, the or private school involved; of testing device it plans to use for each Department of Education’s evaluator (iii) That all positive drug tests will be drug test; will randomly assign the schools either reviewed by a certified medical review (c) The quality of the applicant’s plan to receive the intervention (mandatory officer; to develop and implement a drug-testing random drug testing) or not receive the (iv) That legal counsel has reviewed program that includes— intervention (no mandatory random the proposed program and advised that (i) Detailed procedures for responding drug testing). The evaluator will collect the program activities do not appear to to a positive drug test, including outcome data in both sets of schools. violate established constitutional parental notification and referral to Application Requirements: The principles or State and Federal student assistance programs, drug following requirements apply to all requirements related to implementing a education, or formal drug treatment, if applications submitted under this student drug-testing program; and necessary; and program: (v) That all proposed activities will be (ii) Clear consequences for a positive drug test. (1) Applicants may not submit more carried out in accordance with the requirements of the Family Educational (4) Management Plan. than one application for an award under (a) The extent to which the applicant this program. Rights and Privacy Act (FERPA) and the Protection of Pupil Rights Amendment describes appropriate chain-of-custody (2) Applicants may not have been the procedures for test samples and recipient or beneficiary of a grant in (PPRA). Selection Criteria: The Secretary will demonstrates a commitment to use labs 2003 under the Department of certified by the Substance Abuse and Education Demonstration Grants for select from the following those criteria and factors that will be used to evaluate Mental Health Services Administration Student Drug-Testing competition. (SAMHSA) to process student drug (3) Non-LEA applicants must submit applications under any competition conducted under this program. tests; and a letter of agreement to participate from (b) The quality of the applicant’s plan an LEA. The letter must be signed by the Note: The maximum score for all of these to ensure confidentiality of drug test applicant and an authorized criteria is 100 points. The points or weights results, including limiting the number representative of the LEA. Letters of assigned to each criterion are in the of school officials who will have access support are not acceptable as evidence application package for this competition. to student drug-testing records. of the required agreement. (1) Need for Project. (5) Quality of Project Evaluation. (4) Funds may not be used for the (a) The documented magnitude of (a) The extent to which the methods following purposes: student drug use in schools to be served of evaluation include the use of
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objective performance measures that are documents published in the Federal appropriate. Such notices, motions, or clearly related to the intended outcomes Register, in text or Adobe Portable protests must be filed in accordance of the project; and Document Format (PDF) on the Internet with the provisions of Section 154.210 (b) The quality of the applicant’s plan at the following site: http://www.ed.gov/ of the Commission’s regulations (18 CFR to collect data on the Government news/fedregister. 154.210). Anyone filing an intervention Performance and Results Act (GPRA) To use PDF you must have Adobe or protest must serve a copy of that performance measure established by the Acrobat Reader, which is available free document on the Applicant. Anyone Department for this program and to at this site. If you have questions about filing an intervention or protest on or report these data to the Department. using PDF, call the U.S. Government before the intervention or protest date Note: The Department has established the Printing Office (GPO), toll free, at 1– need not serve motions to intervene or following GPRA performance measure for the 888–293–6498; or in the Washington, protests on persons other than the School-Based Student Drug Testing program: DC, area at (202) 512–1530. Applicant. the reduction of the incidence of drug use in The Commission encourages the past month and past year. The Secretary Note: The official version of this document is the document published in the Federal electronic submission of protests and has set an overall performance target that interventions in lieu of paper using the calls for the prevalence of drug use by Register. Free Internet access to the official students in the target population to decline edition of the Federal Register and the Code ‘‘eFiling’’ link at http://www.ferc.gov. by five percent annually. of Federal Regulations is available on GPO Persons unable to file electronically Access at: http://www.gpoaccess.gov/nara/ should submit an original and 14 copies Executive Order 12866 index.html. of the protest or intervention to the Federal Energy Regulatory Commission, This notice of final requirements, Program Authority: 20 U.S.C. 7131. 888 First Street, NE., Washington, DC priorities, and selection criteria has Dated: July 5, 2005. been reviewed in accordance with 20426. Deborah A. Price, Executive Order 12866. Under the terms This filing is accessible on-line at of the order, we have assessed the Assistant Deputy Secretary for Safe and Drug- http://www.ferc.gov, using the Free Schools. potential costs and benefits of this ‘‘eLibrary’’ link and is available for regulatory action. [FR Doc. 05–13495 Filed 7–6–05; 8:45 am] review in the Commission’s Public The potential costs associated with BILLING CODE 4000–01–P Reference Room in Washington, DC. the notice of final requirements, There is an ‘‘eSubscription’’ link on the priorities, and selection criteria are Web site that enables subscribers to those we have determined as necessary DEPARTMENT OF ENERGY receive e-mail notification when a for administering this program document is added to a subscribed effectively and efficiently. Federal Energy Regulatory docket(s). For assistance with any FERC In assessing the potential costs and Commission Online service, please e-mail benefits—both quantitative and [Docket No. RP05–398–000] [email protected], or call qualitative—of this notice of final (866) 208–3676 (toll free). For TTY, call requirements, priorities, and selection CenterPoint Energy-Mississippi River (202) 502–8659. criteria, we have determined that the Transmission Corporation; Notice of Magalie R. Salas, benefits of the final requirements, Proposed Changes in FERC Gas Tariff Secretary. priorities, and selection criteria justify the costs. June 29, 2005. [FR Doc. E5–3572 Filed 7–6–05; 8:45 am] We have also determined that this Take notice that on June 24, 2005, BILLING CODE 6717–01–P regulatory action does not unduly CenterPoint Energy-Mississippi River interfere with State, local, and tribal Transmission Corporation (MRT) governments in the exercise of their tendered for filing as part of its FERC DEPARTMENT OF ENERGY governmental functions. Gas Tariff, Third Revised Volume No. 1, Federal Energy Regulatory We summarized the costs and benefits the following tariff sheets to be effective Commission of this regulatory action in the notice of July 5, 2005. [Docket No. RP05–403–000] proposed eligibility and application Fifth Revised Sheet No. 250 requirements, priorities, and selection Fifth Revised Sheet No. 263 Dauphin Island Gathering Partners; criteria. Fifth Revised Sheet No. 288 Notice of Proposed Changes in FERC Intergovernmental Review Third Revised Sheet No. 292A Third Revised Sheet No. 330 Gas Tariff This program is subject to Executive Order 12372 and the regulations in 34 MRT states that the purpose of this June 29, 2005. CFR part 79. One of the objectives of the filing is to update its tariff with the new Take notice that on June 27, 2005, Executive order is to foster an mailing address for its office in St. Dauphin Island Gathering Partners intergovernmental partnership and a Louis, MO. (Dauphin Island) tendered for filing its strengthened federalism. The Executive Any person desiring to intervene or to cash out refund report for the period order relies on processes developed by protest this filing must file in May 1, 2004, through April 30, 2005. State and local governments for accordance with Rules 211 and 214 of Dauphin Island states that it has made coordination and review of proposed the Commission’s Rules of Practice and this refund to its customers based upon Federal financial assistance. Procedure (18 CFR 385.211 and its calculation method as set out in this This document provides early 385.214). Protests will be considered by report. notification of our specific plans and the Commission in determining the Dauphin Island states that copies of actions for this program. appropriate action to be taken, but will the filing are being served not serve to make protestants parties to contemporaneously on its customers Electronic Access to This Document the proceeding. Any person wishing to and other interested parties. You may view this document, as well become a party must file a notice of Any person desiring to intervene or to as all other Department of Education intervention or motion to intervene, as protest this filing must file in
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accordance with Rules 211 and 214 of b. Project No.: 2232–489. launch-and-retrieve area for dry storage the Commission’s Rules of Practice and c. Date Filed: June 6, 2005. of 100 boat storage spaces. d. Applicant: Duke Power, a division Procedure (18 CFR 385.211 and l. Location of the Application: This 385.214). Protests will be considered by of Duke Energy Corporation. e. Name of Project: Catawba-Wateree filing is available for review at the the Commission in determining the Commission or may be viewed on the appropriate action to be taken, but will Project. Commission’s Web site at http:// not serve to make protestants parties to f. Location: This project is located on www.ferc.gov, using the ‘‘eLibrary’’ link. the proceeding. Any person wishing to the Catawba and Wateree Rivers, in nine become a party must file a notice of counties in North Carolina (Burke, Enter the docket number excluding the intervention or motion to intervene, as Alexander, McDowell, Iredell, Caldwell, last three digits in the docket number appropriate. Such notices, motions, or Lincoln, Catawaba, Gaston, and field to access the document. For protests must be filed in accordance Mecklenburg Counties) and five assistance, contact FERC Online with the provisions of Section 154.210 counties in South Carolina (York, Support at of the Commission’s regulations (18 CFR Chester, Lancaster, Fairfield and [email protected] or toll- 154.210). Anyone filing an intervention Kershaw Counties). This project does free at (866) 208–3676, or for TTY, or protest must serve a copy of that not occupy any Tribal or federal lands. contact (202) 502–8659. document on the Applicant. Anyone g. Filed Pursuant to: Federal Power m. Individuals desiring to be included Act, 16 U.S.C. 791(a) 825(r) and 799 and filing an intervention or protest on or on the Commission’s mailing list should before the intervention or protest date 801. h. Applicant Contact: Mr. Joe Hall, so indicate by writing to the Secretary need not serve motions to intervene or of the Commission. protests on persons other than the Lake Management Representative; Duke Applicant. Energy Corporation; PO Box 1006; n. Comments, Protests, or Motions to The Commission encourages Charlotte, NC 28201–1006; 704–382– Intervene: Anyone may submit electronic submission of protests and 8576. comments, a protest, or a motion to interventions in lieu of paper using the i. FERC Contact: Any questions on intervene in accordance with the ‘‘eFiling’’ link at http://www.ferc.gov. this notice should be addressed to Kate requirements of Rules of Practice and Persons unable to file electronically DeBragga at (202) 502–8961, or by e- Procedure, 18 CFR 385.210, 385.211, should submit an original and 14 copies mail: [email protected]. 385.214. In determining the appropriate of the protest or intervention to the j. Deadline for filing comments and or action to take, the Commission will Federal Energy Regulatory Commission, motions: July 29, 2005. consider all protests or other comments 888 First Street, NE., Washington, DC All documents (original and eight filed, but only those who file a motion copies) should be filed with: Ms. 20426. to intervene in accordance with the Magalie R. Salas, Secretary, Federal This filing is accessible on-line at Commission’s Rules may become a Energy Regulatory Commission, 888 http://www.ferc.gov, using the party to the proceeding. Any comments, First Street, NE., Washington DC 20426. ‘‘eLibrary’’ link and is available for protests, or motions to intervene must Please include the project number (P– review in the Commission’s Public be received on or before the specified Reference Room in Washington, DC. 2232–489) on any comments or motions filed. Comments, protests, and comment date for the particular There is an ‘‘eSubscription’’ link on the application. Web site that enables subscribers to interventions may be filed electronically receive e-mail notification when a via the internet in lieu of paper. See, 18 o. Filing and Service of Responsive document is added to a subscribed CFR 385.2001(a)(1)(iii) and the Documents: Any filings must bear in all docket(s). For assistance with any FERC instructions on the Commission’s Web capital letters the title ‘‘COMMENTS’’, Online service, please e-mail site under the ‘‘e-Filing’’ link. The ‘‘RECOMMENDATIONS FOR TERMS [email protected], or call Commission strongly encourages e- AND CONDITIONS’’, ‘‘PROTEST’’, OR (866) 208–3676 (toll free). For TTY, call filings. ‘‘MOTION TO INTERVENE’’, as (202) 502–8659. k. Description of Request: Duke applicable, and the Project Number of Power, licensee for the Catawba-Wateree the particular application to which the Magalie R. Salas, Hydroelectric Project, requested filing refers. A copy of any motion to Secretary. Commission approval to lease 3.09 acres intervene must also be served upon each [FR Doc. E5–3564 Filed 7–6–05; 8:45 am] of project lands for non-project use on representative of the Applicant BILLING CODE 6717–01–P Lake Rhodhiss in Caldwell County, specified in the particular application. North Carolina. Duke Power proposes to lease these lands to O&S Enterprises, p. Agency Comments: Federal, state, DEPARTMENT OF ENERGY LLC, for the expansion of the Castle and local agencies are invited to file Bridge Marina. Additions to the comments on the described Federal Energy Regulatory commercial/nonresidential marina will applications. A copy of the applications Commission consist of 9 cluster docks with 59 may be obtained by agencies directly from the Applicant. If an agency does Notice of Application for Non-Project double boat slips (for a total of 118 slips), and 15 docking locations on the not file comments within the time Use of Project Lands and Waters and specified for filing comments, it will be Soliciting Comments, Motions To outside of the boat slip fingers. O&S presumed to have no comments. One Intervene, and Protests Enterprises previously replaced 65 existing docking locations (including 33 copy of an agency’s comments must also June 29, 2005. mooring sites and a gas dock facility) at be sent to the Applicant’s Take notice that the following the site that were in poor condition with representatives. application has been filed with the 65 new docking locations. The Magalie R. Salas, Commission and is available for public rebuilding and expansion of the marina inspection: will result in a total of 133 docking Secretary. a. Application Type: Non-Project Use locations, 1 gas docking facility, 1 [FR Doc. E5–3566 Filed 7–6–05; 8:45 am] of Project Lands and Waters. pump-out facility, 1 boat ramp, and 1 BILLING CODE 6717–01–P
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DEPARTMENT OF ENERGY DEPARTMENT OF ENERGY call (866) 208–3676 (toll free). For TTY, call (202) 502–8659. Federal Energy Regulatory Federal Energy Regulatory Comment Date: 5 p.m. on July 15, Commission Commission 2005. [Docket No. ES05–32–000] [Docket No. ER03–1294–002] Linda Mitry, Duquesne Light Company; Notice of Energy Cooperative of New York, Inc.; Deputy Secretary. Filing Notice of Filing [FR Doc. E5–3553 Filed 7–6–05; 8:45 am] BILLING CODE 6717–01–P June 29, 2005. June 29, 2005. Take notice that on June 24, 2005, Take notice that on June 23, 2005 Duquesne Light Company (Duquesne) Energy Cooperative of New York, Inc. DEPARTMENT OF ENERGY submitted an application pursuant to (ECNY) submitted an updated market section 204 of the Federal Power Act power analysis pursuant to the Federal Energy Regulatory seeking authorization to issue short- Commission’s order issued May 31, Commission term indebtedness in an amount not to 2005, 111 FERC ¶ 61,295 (2005). exceed $250 million. Any person desiring to intervene or to [Docket No. RP04–92–005] Any person desiring to intervene or to protest in the above proceeding must protest this filing must file in file in accordance with Rules 211 and Georgia Public Service Company; accordance with Rules 211 and 214 of 214 of the Commission’s Rules of Notice of Compliance Filing the Commission’s Rules of Practice and Practice and Procedure (18 CFR 385.211 Procedure (18 CFR 385.211 and and 385.214) on or before 5 p.m. eastern June 29, 2005. 385.214). Protests will be considered by time on the specified comment date. It Take notice that on June 3, 2005, the Commission in determining the is not necessary to separately intervene Atlanta Gas Light Company (AGLC) appropriate action to be taken, but will again in a subdocket related to a tendered for filing a revised Statement not serve to make protestants parties to compliance filing if you have previously of Operating Conditions containing the proceeding. Any person wishing to intervened in the same docket. Protests provisions related to the prearranged become a party must file a notice of will be considered by the Commission release of interstate capacity in intervention or motion to intervene, as in determining the appropriate action to compliance with the Commission’s appropriate. Such notices, motions, or be taken, but will not serve to make Order issued May 6, 2005, in Docket protests must be filed on or before the protestants parties to the proceeding. Nos. RP04–92–003 and RP04–92–004. comment date. Anyone filing a motion Anyone filing a motion to intervene or Any person desiring to protest this to intervene or protest must serve a copy protest must serve a copy of that filing must file in accordance with Rule of that document on the Applicant. On document on the Applicant. In reference 211 of the Commission’s Rules of or before the comment date, it is not to filings initiating a new proceeding, Practice and Procedure (18 CFR necessary to serve motions to intervene interventions or protests submitted on 385.211). Protests to this filing will be or protests on persons other than the or before the comment deadline need considered by the Commission in Applicant. not be served on persons other than the determining the appropriate action to be The Commission encourages applicant. taken, but will not serve to make electronic submission of protests and The Commission encourages protestants parties to the proceeding. interventions in lieu of paper using the electronic submission of protests and Such protests must be filed on or before ‘‘eFiling’’ link at http://www.ferc.gov. interventions in lieu of paper, using the the date as indicated below. Anyone Persons unable to file electronically FERC Online links at http:// filing a protest must serve a copy of that should submit an original and 14 copies www.ferc.gov. To facilitate electronic document on all the parties to the of the protest or intervention to the service, persons with Internet access proceeding. who will eFile a document and/or be Federal Energy Regulatory Commission, The Commission encourages 888 First Street, NE., Washington, DC listed as a contact for an intervenor must create and validate an electronic submission of protests in lieu 20426. of paper using the ‘‘eFiling’’ link at This filing is accessible on-line at eRegistration account using the http://www.ferc.gov. Persons unable to http://www.ferc.gov, using the eRegistration link. Select the eFiling file electronically should submit an ‘‘eLibrary’’ link and is available for link to log on and submit the original and 14 copies of the protest to review in the Commission’s Public intervention or protests. the Federal Energy Regulatory Reference Room in Washington, DC. Persons unable to file electronically Commission, 888 First Street, NE., There is an ‘‘eSubscription’’ link on the should submit an original and 14 copies Washington, DC 20426. Web site that enables subscribers to of the intervention or protest to the receive e-mail notification when a Federal Energy Regulatory Commission, This filing is accessible on-line at document is added to a subscribed 888 First Street, NE., Washington, DC http://www.ferc.gov, using the docket(s). For assistance with any FERC 20426. ‘‘eLibrary’’ link and is available for Online service, please e-mail The filing in the above proceeding is review in the Commission’s Public [email protected], or call accessible in the Commission’s eLibrary Reference Room in Washington, DC. (866) 208–3676 (toll free). For TTY, call system. It is also available for review in There is an ‘‘eSubscription’’ link on the (202) 502–8659. the Commission’s Public Reference Web site that enables subscribers to Comment Date: 5 p.m. Eastern Time Room in Washington, DC. There is an receive e-mail notification when a on July 20, 2005. eSubscription link on the Web site that document is added to a subscribed enables subscribers to receive e-mail docket(s). For assistance with any FERC Magalie R. Salas, notification when a document is added Online service, please e-mail Secretary. to a subscribed docket(s). For assistance [email protected], or call [FR Doc. E5–3575 Filed 7–6–05; 8:45 am] with any FERC Online service, please e- (866) 208–3676 (toll free). For TTY, call BILLING CODE 6717–01–P mail [email protected] or (202) 502–8659.
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Comment Date: 5 p.m. Eastern Time receive e-mail notification when a This filing is accessible on-line at on July 7, 2005. document is added to a subscribed http://www.ferc.gov, using the docket(s). For assistance with any FERC ‘‘eLibrary’’ link and is available for Magalie R. Salas, Online service, please e-mail review in the Commission’s Public Secretary. [email protected], or call Reference Room in Washington, DC. [FR Doc. E5–3570 Filed 7–6–05; 8:45 am] (866) 208–3676 (toll free). For TTY, call There is an ‘‘eSubscription’’ link on the BILLING CODE 6717–01–P (202) 502–8659. Web site that enables subscribers to receive email notification when a Magalie R. Salas, document is added to a subscribed DEPARTMENT OF ENERGY Secretary. docket(s). For assistance with any FERC [FR Doc. E5–3571 Filed 7–6–05; 8:45 am] Federal Energy Regulatory Online service, please e-mail: Commission BILLING CODE 6717–01–P [email protected], or call (866) 208–3676 (toll free). For TTY, call [Docket No. RP05–341–001] (202) 502–8659. DEPARTMENT OF ENERGY Comment Date: 5 p.m. Eastern Time Midwestern Gas Transmission on July 18, 2005. Company; Notice of Compliance Filing Federal Energy Regulatory Commission Magalie R. Salas, June 29, 2005. [Docket No. EC05–99–000] Secretary. Take notice that on June 24, 2005, [FR Doc. E5–3563 Filed 7–6–05; 8:45 am] Midwestern Gas Transmission Company Northbrook New York, LLC, NEO BILLING CODE 6717–01–P (Midwestern) tendered for filing to Corporation, Omega Energy II, LLC, become part of its FERC Gas Tariff, EIF Northbrook LLC; Notice of Filing Third Revised Volume No. 1, the DEPARTMENT OF ENERGY following tariff sheets to become June 30, 2005. effective June 12, 2005: Take notice that on June 27, 2005, Federal Energy Regulatory Substitute Second Revised Sheet No. 254 Northbrook New York, LLC Commission Substitute Second Revised Sheet No. 255 (Northbrook), NEO Corporation (NEO), [Docket No. RP05–401–000] Substitute Second Revised Sheet No. 257 Omega Energy II LLC (Omega), EIF Midwestern states that this filing is Northbrook LLC (EIF) (collectively, Questar Pipeline Company; Order on made to comply with Paragraph(s) 4, 6 Applicants) tendered for filing an Tariff Filing and 7 of the Commission’s Order issued application requesting all necessary June 29, 2005. on June 10, 2005 in Docket No. RP05– authorization under section 203 of the Take notice that on June 24, 2005, 341–000. Federal Power Act to permit EIF to Midwestern states that copies of this acquire all the membership interests in Questar Pipeline Company (Questar), filing have been sent to all parties of Northbrook held by NEO and Omega. tendered for filing as part of its FERC record in this proceeding. Applicants seek privileged treatment for Gas Tariff, First Revised Volume No. 1, Any person desiring to protest this Exhibit I to the Application. the following tariff sheets to be effective filing must file in accordance with Rule Any person desiring to intervene or to July 25, 2005. 211 of the Commission’s Rules of protect this filing must file in Second Revised Sheet No. 1C Practice and Procedure (18 CFR accordance with Rules 211 and 214 of Seventh Revised Sheet No. 164 385.211). Protests to this filing will be the Commission’s Rules of Practice and First Revised Sheet No. 179A considered by the Commission in Procedure (18 CFR 385.211 and Second Revised Sheet No. 179I determining the appropriate action to be 385.214). Protests will be considered by Questar states that copies of this filing taken, but will not serve to make the Commission in determining the were served upon Questar’s customers, protestants parties to the proceeding. appropriate action to be taken, but will the Public Service Commission of Utah Such protests must be filed in not serve to make protestants parties to and the Public Service Commission of accordance with the provisions of the proceeding. Any person wishing to Wyoming. Section 154.210 of the Commission’s become a party must file a notice of Any person desiring to intervene or to regulations (18 CFR 154.210). Anyone intervention or motion to intervene, as protest this filing must file in filing a protest must serve a copy of that appropriate. Such notices, motions, or accordance with Rules 211 and 214 of document on all the parties to the protests must be filed on or before the the Commission’s Rules of Practice and proceeding. comment date. Anyone filing a motion Procedure (18 CFR 385.211 and The Commission encourages to intervene or protest must serve a copy 385.214). Protests will be considered by electronic submission of protests in lieu of that document on the Applicant. On the Commission in determining the of paper using the ‘‘eFiling’’ link at or before the comment date, it is not appropriate action to be taken, but will http://www.ferc.gov. Persons unable to necessary to serve motions to intervene not serve to make protestants parties to file electronically should submit an or protests on persons other than the the proceeding. Any person wishing to original and 14 copies of the protest to Applicant. become a party must file a notice of the Federal Energy Regulatory The Commission encourages intervention or motion to intervene, as Commission, 888 First Street, NE., electronic submission of protests and appropriate. Such notices, motions, or Washington, DC 20426. interventions in lieu of paper using the protests must be filed in accordance This filing is accessible on-line at ‘‘eFiling’’ link at http://www.ferc.gov. with the provisions of Section 154.210 http://www.ferc.gov, using the Persons unable to file electronically of the Commission’s regulations (18 CFR ‘‘eLibrary’’ link and is available for should submit an original and 14 copies 154.210). Anyone filing an intervention review in the Commission’s Public of the protest or intervention to the or protest must serve a copy of that Reference Room in Washington, DC. Federal Energy Regulatory Commission, document on the Applicant. Anyone There is an ‘‘eSubscription’’ link on the 888 First Street, NE., Washington, DC filing an intervention or protest on or Web site that enables subscribers to 20426. before the intervention or protest date
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need not serve motions to intervene or will be considered by the Commission No. 87D, to become effective July 24, protests on persons other than the in determining the appropriate action to 2005. Applicant. be taken, but will not serve to make Viking states that this filing is being The Commission encourages protestants parties to the proceeding. made to amend subsection 29.1 of the electronic submission of protests and Anyone filing a motion to intervene or general terms and conditions of Viking’s interventions in lieu of paper using the protest must serve a copy of that tariff to change Viking’s OFO penalty ‘‘eFiling’’ link at http://www.ferc.gov. document on the Applicant. In reference from a fixed price to a formula based on Persons unable to file electronically to filings initiating a new proceeding, should submit an original and 14 copies interventions or protests submitted on a daily index price to more of the protest or intervention to the or before the comment deadline need appropriately reflect today’s volatile and Federal Energy Regulatory Commission, not be served on persons other than the increasing natural gas price 888 First Street, NE., Washington, DC applicant. environment. 20426. The Commission encourages Any person desiring to intervene or to This filing is accessible on-line at electronic submission of protests and protest this filing must file in http://www.ferc.gov, using the interventions in lieu of paper, using the accordance with Rules 211 and 214 of ‘‘eLibrary’’ link and is available for FERC Online links at http:// the Commission’s Rules of Practice and review in the Commission’s Public www.ferc.gov. To facilitate electronic Procedure (18 CFR 385.211 and Reference Room in Washington, DC. service, persons with Internet access 385.214). Protests will be considered by There is an ‘‘eSubscription’’ link on the who will eFile a document and/or be the Commission in determining the Web site that enables subscribers to listed as a contact for an intervenor appropriate action to be taken, but will receive e-mail notification when a must create and validate an not serve to make protestants parties to document is added to a subscribed eRegistration account using the the proceeding. Any person wishing to docket(s). For assistance with any FERC eRegistration link. Select the eFiling become a party must file a notice of Online service, please e-mail link to log on and submit the intervention or motion to intervene, as [email protected], or call intervention or protests. appropriate. Such notices, motions, or (866) 208–3676 (toll free). For TTY, call Persons unable to file electronically protests must be filed in accordance (202) 502–8659. should submit an original and 14 copies with the provisions of Section 154.210 Magalie R. Salas, of the intervention or protest to the Federal Energy Regulatory Commission, of the Commission’s regulations (18 CFR Secretary. 888 First Street, NE., Washington, DC 154.210). Anyone filing an intervention [FR Doc. E5–3574 Filed 7–6–05; 8:45 am] 20426. or protest must serve a copy of that BILLING CODE 6717–01–P The filing in the above proceeding is document on the Applicant. Anyone accessible in the Commission’s eLibrary filing an intervention or protest on or system. It is also available for review in before the intervention or protest date DEPARTMENT OF ENERGY the Commission’s Public Reference need not serve motions to intervene or Federal Energy Regulatory Room in Washington, DC. There is an protests on persons other than the Commission eSubscription link on the web site that Applicant. enables subscribers to receive e-mail The Commission encourages [Docket No. EG05–76–000] notification when a document is added electronic submission of protests and to a subscribed docket(s). For assistance San Juan Mesa Wind Project, LLC, interventions in lieu of paper using the with any FERC Online service, please e- Notice of Application for Commission ‘‘eFiling’’ link at http://www.ferc.gov. mail [email protected] or Determination of Exempt Wholesale Persons unable to file electronically call (866) 208–3676 (toll free). For TTY, Generator Status should submit an original and 14 copies call (202) 502–8659. of the protest or intervention to the Comment Date: 5 p.m. Eastern time June 30, 2005. Federal Energy Regulatory Commission, on July 19, 2005. Take notice on June 28, 2005, San 888 First Street, NE., Washington, DC Juan Mesa Wind Project, LLC (San Juan Magalie R. Salas, 20426. Mesa) filed with the Commission an Secretary. application for determination of exempt This filing is accessible on-line at [FR Doc. E5–3562 Filed 7–6–05; 8:45 am] wholesale generator status pursuant to http://www.ferc.gov, using the Part 365 of the Commission’s BILLING CODE 6717–01–P ‘‘eLibrary’’ link and is available for regulations. review in the Commission’s Public Reference Room in Washington, DC. San Juan Mesa states that a copy of DEPARTMENT OF ENERGY the application has been served on the There is an ‘‘eSubscription’’ link on the U.S. Securities and Exchange Federal Energy Regulatory Web site that enables subscribers to Commission and the New Mexico Commission receive e-mail notification when a Public Regulation Commission. document is added to a subscribed Any person desiring to intervene or to [Docket No. RP05–399–000] docket(s). For assistance with any FERC protest in the above proceeding must Online service, please e-mail file in accordance with Rules 211 and Viking Gas Transmission Company; [email protected], or call 214 of the Commission’s Rules of Notice of Tariff Filing (866) 208–3676 (toll free). For TTY, call Practice and Procedure (18 CFR 385.211 (202) 502–8659. and 385.214) on or before 5 p.m. Eastern June 29, 2005. time on the specified comment date. It Take notice that on June 24, Viking Magalie R. Salas, is not necessary to separately intervene Gas Transmission Company (Viking) Secretary. again in a subdocket related to a tendered for filing to become part of [FR Doc. E5–3573 Filed 7–6–05; 8:45 am] compliance filing if you have previously Viking’s FERC Gas Tariff, First Revised BILLING CODE 6717–01–P intervened in the same docket. Protests Volume No. 1, Second Revised Sheet
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DEPARTMENT OF ENERGY The Commission encourages Description: Cabazon Wind Partners, electronic submission of protests and LLC and Whitewater Hill Wind Federal Energy Regulatory interventions in lieu of paper using the Partners, LLC submit their consolidated Commission ‘‘eFiling’’ link at http://www.ferc.gov. triennial updated market analysis. [Docket No. EL05–133–000] Persons unable to file electronically Filed Date: 06/24/2005. should submit an original and 14 copies Accession Number: 20050628–0065. City and County of San Francisco of the protest or intervention to the Comment Date: 5 p.m. eastern time on Complainant v. Pacific Gas and Federal Energy Regulatory Commission, Friday, July 15, 2005. Electric Company, Respondent, Notice 888 First Street, NE., Washington, DC Docket Numbers: ER03–1368–002; of Complaint and Motion for Issuance 20426. ER03–1369–002; ER03–1371–002; of Show Cause Proceeding This filing is accessible on-line at ER03–1370–003; ER03–1372–003. http://www.ferc.gov, using the Applicants: Cleco Power LLC; Cleco June 30, 2005 ‘‘eLibrary’’ link and is available for Marketing & Trading LLC; Cleco Take notice that on June 29, 2005, the review in the Commission’s Public Evangeline LLC; Perryville Energy City and County of San Francisco (City) Reference Room in Washington, DC. Partners, LLC; Acadia Power Partners tendered for filing a Complaint and There is an ‘‘eSubscription’’ link on the LLC. Motion for Issuance of an Order to Show Web site that enables subscribers to Description: Cleco Companies submit Cause against Pacific Gas and Electric receive e-mail notification when a a compliance filing, pursuant to the Company (PG&E) pursuant to sections document is added to a subscribed Commission’s order issued 5/25/05, 111 205, 206, 306, 308, and 309 of the docket(s). For assistance with any FERC FERC ¶ 61,239 Federal Power Act, 16 U.S.C. 824d, Online service, please e-mail Filed Date: 06/24/2005. 824e, 825e, 825g, and 825h and Rules [email protected], or call Accession Number: 20050629–0265. 206 and 209 of the Rules of Practice and (866) 208–3676 (toll free). For TTY, call Comment Date: 5 p.m. eastern time on Procedure of the Commission (18 CFR (202) 502–8659. Friday, July 15, 2005. 385.206, 209). Comment Date: 5 p.m. Eastern time Docket Numbers: ER03–1383–003; In its Complaint, City alleges that in on July 20, 2005. ER01–1418–003; ER01–1238–003; June of 2004, PG&E improperly ER01–2928–006; ER01–1419–003; demanded that City pay PG&E $27.7 Magalie R. Salas, ER03–28–002; ER03–398–004. million for services rendered from July Secretary. Applicants: DeSoto County of 2000 through 2003 under a 1987 [FR Doc. E5–3561 Filed 7–6–05; 8:45 am] Generating Company, LLC; Effingham Interconnection Agreement, PG&E BILLING CODE 6717–01–P County Power, LLC; MPC Generating, Revised Rate Schedule FERC No. 114 LLC; Progress Ventures Inc.; Rowan (Agreement) between City and PG&E. County Power, LLC; Walton County City states that PG&E demanded this DEPARTMENT OF ENERGY Power, LLC; Washington County Power, amount in addition to the $47.2 million LLC. that City had already paid PG&E for Federal Energy Regulatory Description: DeSoto County service covering the same time period. Commission Generating Company, LLC; Effingham City further states that the Agreement Combined Notice of Filings #1 County Power, LLC; MPC Generating, makes no provision for such a LLC, Progress Ventures, Inc., Rowan retroactive bill. City states that the June 30, 2005. County Power, LLC, Walton County practices by which PG&E seeks to Take notice that the Commission Power, LLC, and Washington County recalculate its charges to City clearly do received the following electric rate Power, LLC submit a compliance filing not conform to the Agreement. City filings. pursuant to the Commission’s order further alleges that PG&E has Docket Numbers: ER01–2887–005; issued 5/25/05 in Docket Nos. PA04– improperly attempted to invoke the ER01–2688–007; ER99–2858–007; 10–000 and PA04–12–000 dispute resolution and arbitration ER02–1406–007. Filed Date: 06/24/2005. provisions of the Agreement. Applicants: South Point Energy Accession Number: 20050629–0231. City certifies that copies of the Center, LLC; Gilroy Energy Center, LLC; Comment Date: 5 p.m. eastern time on complaint were served on PG&E as MEP Pleasant Hill, LLC; Acadia Power Friday, July 15, 2005. listed on the Commission’s list of Partners, LLC. Docket Numbers: ER04–691–052. Corporate Officials. Description: South Point Energy Applicants: Midwest Independent Any person desiring to intervene or to Center, LLC, Gilroy Energy Center, LLC, Transmission System Operator, Inc. protest this filing must file in MEP Pleasant Hill, LLC, and Acadia Description: Midwest Independent accordance with Rules 211 and 214 of Power Partners, LLC, in compliance Transmission System Operator, Inc., the Commission’s Rules of Practice and with the Commission’s order issued 5/ pursuant to the Commission’s letter Procedure (18 CFR 385.211 and 26/05 (111 FERC ¶ 61,239 (2005)), order issued 6/15/05 in Docket No. 385.214). Protests will be considered by submit their respective revised market- ER04–691–039, et al., submits proposed the Commission in determining the based rate schedules to incorporate the revisions to section 1.30a of Module A appropriate action to be taken, but will change in status reporting requirement of the Midwest ISO’s Open. Access not serve to make protestants parties to pursuant to Order 652. Transmission & Energy Markets Tariff. the proceeding. Any person wishing to Filed Date: 06/24/2005. Filed Date: 06/23/2005. become a party must file a notice of Accession Number: 20050629–0221. Accession Number: 20050628–0070. intervention or motion to intervene, as Comment Date: 5 p.m. eastern time on Comment Date: 5 p.m. eastern time on appropriate. The Respondent’s answer Friday, July 15, 2005. Thursday, July 14, 2005. and all interventions, or protests must Docket Numbers: ER02–1695–003; Docket Numbers: ER05–1124–000. be filed on or before the comment date. ER02–2309–002. Applicants: Midwest Independent The Respondent’s answer, motions to Applicants: Cabazon Wind Partners, Transmission System Operator, Inc. intervene, and protest must be served on LLC; Whitewater Hill Wind Partners, Description: Midwest Independent the Complainants. LLC. Transmission System Operator, Inc.
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submits proposed revisions to Description: Midwest Independent & Gas Corporation; NYSEG Solutions, Attachment L (Credit Policy) of its open Transmission System Operator, Inc., Inc.; PEI Power II, LLC; South Glens access transmission energy markets pursuant to the Commission’s order Falls Energy, LLC. tariff Filed Date: 06/17/2005, as issued 5/26/05 (111 FERC ¶ 61,250), Description: Carthage Energy, LLC, supplemented 6/20/2005. submits proposed revisions to Energetix, Inc.; New York State Electric Accession Number: 20050621–0014. Attachment L of the Midwest ISO’s & Gas Corporation; NYSEG Solutions, Comment Date: 5 p.m. eastern time on Open Access Transmission & Energy Inc.; PEI Power II, LLC; and South Glens Friday, July 08, 2005. Tariff, FERC Electric Tariff, Third Falls Energy, LLC submit revised tariff Docket Numbers: ER05–1143–000. Revised Volume No. 1. sheets pursuant to the Commission’s Applicants: New England Power Filed Date: 06/23/2005. order issued 5/25/05, 111 FERC ¶ Company. Accession Number: 20050628–0071. 61,240 (2005). Description: New England Power Comment Date: 5 p.m. eastern time on Filed Date: 06/24/2005. Company, on behalf of the Rhode Thursday, July 14, 2005. Accession Number: 20050629–0250. Island, Eastern Massachusetts, Vermont Docket Numbers: ER05–893–002; Comment Date: 5 p.m. eastern time on Energy Control, submits an amended ER05–895–002. Friday, July 15, 2005. REMVEC II Agreement. Applicants: Dominion Retail, Inc.; Any person desiring to intervene or to Filed Date: 06/24/2005. Elwood Energy LLC. protest in any of the above proceedings Accession Number: 20050629–0263. Description: Dominion Retail Inc. and must file in accordance with Rules 211 Comment Date: 5 p.m. eastern time on Elwood Energy LLC submit and 214 of the Commission’s Rules of Friday, July 15, 2005. amendments to their 4/28/05 & 6/2/05 Practice and Procedure (18 CFR 385.211 filings under. and 385.214) on or before 5 p.m. eastern Docket Numbers: ER05–1144–000. Filed Date: 06/24/2005. time on the specified comment date. It Applicants: IDACORP Energy, L.P. Accession Number: 20050628–0069. Description: IDACORP Energy, L.P. Comment Date: 5 p.m. eastern time on is not necessary to separately intervene submits notice of cancellation of its Friday, July 15, 2005. again in a subdocket related to a compliance filing if you have previously FERC Electric Tariff, Original Volume 1. Docket Numbers: ER05–954–001. intervened in the same docket. Protests Filed Date: 06/24/2005. Applicants: USGen New England, Inc. Accession Number: 20050628–0064. Description: USGen New England, will be considered by the Commission Comment Date: 5 p.m. eastern time on Inc. submits an amendment to its 5/10/ in determining the appropriate action to Friday, July 15, 2005. 05 filing in Docket No. ER05–954–000, be taken, but will not serve to make Docket Numbers: ER05–1153–000. by requesting a cancellation date of 5/ protestants parties to the proceeding. Applicants: Mirant Delta, LLC. 11/05 for their FERC Electric Tariff, Anyone filing a motion to intervene or Description: Mirant Delta, LLC Original Volume No. 1. protest must serve a copy of that submits revisions to its must-run service Filed Date: 06/22/2005. document on the Applicant. In reference agreements with the California Accession Number: 20050629–0228. to filings initiating a new proceeding, Independent System Operator Comment Date: 5 p.m. eastern time on interventions or protests submitted on Corporation. Wednesday, July 13, 2005. or before the comment deadline need Filed Date: 06/20/2005. Docket Numbers: ER05–1014–001; not be served on persons other and the Accession Number: 20050629–0238. ER98–3184–009; ER00–494–002. Applicant. Comment Date: 5 p.m. eastern time on Applicants: TransAlta Energy The Commission encourages Monday, July 11, 2005. Marketing (U.S.) Inc.; TransAlta electronic submission of protests and interventions in lieu of paper, using the Docket Numbers: ER05–1158–000. Centralia Generation LLC. Description: TransAlta Energy FERC Online links at http:// Applicants: Lone Star Steel Sales www.ferc.gov. To facilitate electronic Company. Marketing (U.S.) Inc and TransAlta Centralia Generation, LLC submit service, persons with Internet access Description: Lone Star Steel Sales who will eFile a document and/or be Company submits a notice of revised tariff sheets amending their 5/ 24/2005 filing. listed as a contact for an intervenor cancellation of its market-based rate must create and validate an tariff. Filed Date: 06/24/2005. Accession Number: 20050629–0222. eRegistration account using the Filed Date: 06/23/2005. Comment Date: 5 p.m. eastern time on eRegistration link. Select the eFiling Accession Number: 20050629–0244. Friday, July 15, 2005. link to log on and submit the Comment Date: 5 p.m. eastern time on intervention or protests. Thursday, July 14, 2005. Docket Numbers: ER05–1097–001. Applicants: BJ Energy LLC. Persons unable to file electronically Docket Numbers: ER05–6–030; EL04– Description: BJ Energy LLC amends should submit an original and 14 copies 135–032; EL02–111–050; EL03–212–045 the information contained in the of the intervention or protest to the Applicants: Midwest Independent petition for acceptance of Initial Rate Federal Energy Regulatory Commission, Transmission System Operator, Inc. Schedule, Waivers & Blanket Authority 888 First St. NE., Washington, DC Description: PJM Interconnection, filed on 6/9/05 in Docket No. ER05– 20426. LLC submits an amendment to its 5/17/ 1097–000. The filings in the above proceedings 05 filing submitting revisions to Filed Date: 06/23/2005. are accessible in the Commission’s Schedule 12 of the PJM Open Access Accession Number: 20050628–0068. eLibrary system by clicking on the Transmission Tariff. Comment Date: 5 p.m. eastern time on appropriate link in the above list. They Filed Date: 06/24/2005. Thursday, July 14, 2005. are also available for review in the Accession Number: 20050628–0067. Docket Numbers: ER99–2541–007; Commission’s Public Reference Room in Comment Date: 5 p.m. eastern time on ER97–3556–015; ER99–221–010; ER99– Washington, DC. There is an Friday, July 15, 2005. 220–012; ER01–1764–004; ER00–262– eSubscription link on the Web site that Docket Numbers: ER05–809–001. 006. enables subscribers to receive e-mail Applicants: Midwest Independent Applicants: Carthage Energy, LLC; notification when a document is added Transmission System Operator, Inc. Energetix, Inc.; New York State Electric to a subscribed dockets(s). For
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assistance with any FERC Online the international boundary in the Rio public interest groups; Native American service, please e-mail Grande River near the city of Mission. tribes; affected landowners; other [email protected]. or call Sonora indicates that these facilities interested parties; local libraries and (866) 208–3676 (toll free). For TTY, call are needed to help alleviate the growing newspapers; and the FERC’s official (202) 502–8659. demand for natural gas in the Burgos service list for this proceeding. A 30-day Hub area of Mexico and in the longer comment period will be allotted for Linda Mitry, term, will help alleviate the demand for review of the EA. We will consider all Deputy Secretary. natural gas in the United States by comments submitted on the EA in any [FR Doc. E5–3554 Filed 7–6–05; 8:45 am] providing a means for liquefied natural Commission Order that is issued for the BILLING CODE 6717–01–P gas (LNG) from offshore Mexico to be project. imported. We are currently involved in Sonora anticipates filing an discussions with other jurisdictional DEPARTMENT OF ENERGY application with the FERC on or before agencies to identify their issues and the end of the summer. If approved, concerns. These agencies include the Federal Energy Regulatory Sonora would seek approval to begin U.S. Army Corps of Engineers, U.S. Fish Commission construction in March 2006. and Wildlife Service, Texas Parks and Location maps depicting Sonora’s Wildlife, and the Texas Historical [Docket No. Pf05–15–000] proposed facilities are provided in Commission. By this notice, we are Appendix 1.1 asking these and other federal, state, and Sonora Pipeline, LLC; Notice of Intent local agencies with jurisdiction and/or To Prepare an Environmental Currently Identified Environmental special expertise with respect to Assessment for the Proposed Burgos Issues environmental issues to formally Hub Export/Import Project, and Notice At this time no formal application has cooperate with us in the preparation of of Request for Comments on been filed with the FERC. For this the EA. Agencies that would like to Environmental Issues; Site Visit project, the FERC staff has initiated its request cooperating status should follow June 29, 2005. NEPA review prior to receiving the the instructions for filing comments application. The purpose of the provided below. The staff of the Federal Energy Commission’s Pre-Filing Process is to Public Participation Regulatory Commission (FERC or involve interested stakeholders early in Commission) will prepare an project planning and to identify and You can make a difference by environmental assessment (EA) that will resolve issues before an application is providing us with your specific discuss the environmental impacts of filed with the FERC. comments or concerns about the Sonora Pipeline, LLC’s (Sonora) proposals. Your comments should focus planned Burgos Hub Export/Import The EA Process on the potential environmental effects, Project located in Hidalgo County, The FERC will use the EA to consider reasonable alternatives and measures to Texas. This notice announces the the environmental impact that could avoid or lessen environmental impact. opening of the scoping process we will result if it issues Sonora a Certificate of The more specific your comments, the use to gather input from the public and Public Convenience and Necessity. more useful they will be. To ensure that interested agencies on the projects. Your This notice formally announces our your comments are timely and properly input will help the Commission staff preparation of the EA and the beginning recorded, please mail your comments so determine which issues need to be of the process referred to as ‘‘scoping.’’ that they will be received in evaluated in the EA. Please note that the We 2 are soliciting input from the public Washington, DC on or before August 1, scoping period will close on August 1, and interested agencies to help us focus 2005 and carefully follow these 2005. the analysis in the EA on the potentially instructions: This notice is being sent to affected significant environmental issues related • Send an original and two copies of landowners; federal, state, and local to the proposed action. your letter to: Magalie R. Salas, government representatives and Our independent analysis of the Secretary, Federal Energy Regulatory agencies; environmental and public issues will be included in an EA that Commission, 888 First St., NE., Room interest groups; Native American tribes; will be prepared for the project. Our 1A., Washington, DC 20426; other interested parties in this evaluation will also include possible • Label one copy of the comments for proceeding; and local libraries and alternatives to the proposed project or the attention of Gas Branch 1, DG2E; newspapers. We encourage government portions of the project, and we will and representatives to notify their make recommendations on how to • Reference Docket No. PF05–15–000 constituents of this planned project and lessen or avoid impacts on the various on the original and both copies. encourage them to comment on their resource areas of concern. Please note that the Commission areas of concern. The EA will be mailed to Federal, encourages electronic filing of comments. See 18 CFR Summary of the Proposed Project State, and local government agencies; elected officials; environmental and 385.2001(a)(1)(iii) and the instructions The project would consist of on the Commission’s Internet Web site construction of 31 miles of 30-inch- 1 The appendices referenced in this notice are not at http://www.ferc.gov under the diameter pipeline in two segments. The being printed in the Federal Register. Copies are ‘‘eFiling’’ link and the link to the User’s first segment would be 8 miles of available on the Commission’s Web site (excluding Guide. Prepare your submission in the maps) at the ‘‘eLibrary’’ link or from the pipeline that would commence at Commission’s Public Reference Room or call (202) same manner as you would if filing on Donna Station and extend southward to 502–8371. For instructions on connecting to paper and save it to a file on your hard the international boundary in the Rio eLibrary refer to the end of this notice. Copies of drive. Before you can file comments you Grande River near the city of Progresso. the appendices were sent to all those receiving this will need to create an account by notice in the mail. The second segment would be 23 miles 2 ‘‘We’’ ‘‘us,’’ and ‘‘our’’ refer to the clicking on ‘‘Login to File’’ and then of pipeline and would commence at the environmental staff of the Office of Energy Projects ‘‘New User Account.’’ You will be asked Gilmore Plant and extend southward to (OEP). to select the type of filing you are
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making. This filing is considered a allows you to keep track of all formal Energy Regulatory Commission, 888 ‘‘Comment on Filing.’’ issuances and submittals in specific First Street, NE., Washington DC 20426. When Sonora submits its application dockets. This can reduce the amount of Please include the project number (P– for authorization to construct and time you spend researching proceedings 2192–022) on any comments or motions operate the Burgos Hub Expansion by automatically providing you with filed. Comments, protests, and Project, the Commission will publish a notification of these filings, document interventions may be filed electronically Notice of Application in the Federal summaries, and direct links to the via the internet in lieu of paper. See 18 Register and will establish a deadline documents. To register for this service, CFR 385.2001(a)(1)(iii) and the for interested persons to intervene in the go to http://www.ferc.gov/ instructions on the Commission’s Web proceeding. Because the Commission’s esubscribenow.htm. site at http://www.ferc.gov under the ‘‘e- Pre-filing Process occurs before an Public meetings or site visits will be Filing’’ link. The Commission strongly application to begin a proceeding is posted on the Commission’s calendar encourages e-filings. officially filed, petitions to intervene located at http://www.ferc.gov/ l. Description of Request: The licensee during this process are premature and EventCalendar/EventsList.aspx along filed a request, pursuant to articles 408, will not be accepted by the Commission. with other related information. 409, 410, and 412 of its license, to You can also contact Mr. James exchange approximately 3.14 acres of Site Visit Blackwell, Sonora Representative by licensee-owned lands with 3,000 linear On July 14, 2005, the OEP staff will phone at (512) 930–2044 or by e-mail at feet of shoreline along the Biron conduct a pre-certification site visit of [email protected] with your flowage, for three different parcels of the planned Burgos Hub Export/Import specific concerns or comments land totaling approximately 205.213 Project. regarding this project. total acres. The first parcel has 830 We will view the proposed route and linear feet of river shoreline and variations that are being considered for Magalie R. Salas, consists of 47.546 acres. The second the planned pipeline. Examination will Secretary. parcel has 126 linear feet of river be by automobile and on foot. [FR Doc. E5–3568 Filed 7–6–05; 8:45 am] shoreline and consists of 2.960 acres, Representatives of Sonora will be BILLING CODE 6717–01–P abutting an existing licensee-owned accompanying the OEP staff. boat launch. The third parcel consists of All interested parties may attend. islands in the river, peninsulas, and a Those planning to attend must provide DEPARTMENT OF ENERGY roadside access totaling 154.84 acres their own transportation. Those (48.82 acres above water). These island interested in attending the site visit Federal Energy Regulatory perimeters, peninsulas, and the roadside should meet at 9 a.m. in parking lot of Commission access total 33,749 linear feet of the Renaissance Casa De Palmas Hotel, waterfront. The licensee intends to Notice of Application for Amendment 101 N. Main Street McAllen, Texas. You retain flowage rights over any of License and Soliciting Comments, may have also been notified by Sonora transferred lands and to retain said Motions To Intervene, and Protests that it plans on holding an Open House lands within the project boundary. that evening, at the Renaissance Casa De June 29, 2005. m. Location of the Application: This Palmas Hotel in McAllen, Texas at 6:30 Take notice that the following filing is available for review at the p.m. application has been filed with the Commission in the Public Reference For additional information, please Commission and is available for public Room 888 First Street, NE, Room 2A, contact the Commission’s Office of inspection: Washington, DC 20426 or may be External Affairs at 1–866–208–FERC a. Application Type: Change in viewed on the Commission’s Web site at (3372). Project Boundary, Transfer of Project http://www.ferc.gov using the ‘‘E- Library’’ link. Enter the docket number Availability of Additional Information Lands, and Acquisition of Lands. b. Project No.: 2192–022. excluding the last three digits in the Additional information about the c. Date Filed: May 24, 2005. docket number field to access the project is available from the d. Applicant: Consolidated Water document. For assistance, call toll-free Commission’s Office of External Affairs Power Company. 1–866–208–3676 or e-mail at 1–866–208 FERC (3372) or on the e. Name of Project: Biron. [email protected]. For TTY, FERC Internet Web site (http:// f. Location: The project is located on call (202) 502–8659. A copy is also www.ferc.gov). Using the ‘‘eLibrary’’ the Wisconsin River in Wood County, available for inspection and link, select ‘‘General Search’’ from the Wisconsin. reproduction at the address in item h eLibrary menu, enter the selected date g. Filed Pursuant to: Federal Power above. range and ‘‘Docket Number’’ (i.e., PF05– Act, 16 U.S.C. 791(a), 825(r) and 799 n. Individuals desiring to be included 15–000), and follow the instructions. and 801. on the Commission’s mailing list should Searches may also be done using the h. Applicant Contact: Mr. Mike so indicate by writing to the Secretary phrase ‘‘Burgos Hub Export/Import’’ in Scheirer, Consolidated Water Power of the Commission. the ‘‘Text Search’’ field. For assistance Company, PO Box 8050, Wisconsin o. Comments, Protests, or Motions to with access to eLibrary, the helpline can Rapids, Wisconsin 54495–8050. Phone: Intervene: Anyone may submit be reached at 1–866–208–3676, TTY 715/422–3927. comments, a protest, or a motion to (202) 502–8659, or at i. FERC Contact: Any questions on intervene in accordance with the [email protected]. The this notice should be addressed to Mrs. requirements of Rules of Practice and eLibrary link on the FERC Internet Web Patricia Grant at 312–596–4435, or e- Procedure, 18 CFR 385.210, 385.211, site also provides access to the texts of mail address: [email protected]. 385.214. In determining the appropriate formal documents issued by the j. Deadline for filing comments and or action to take, the Commission will Commission, such as orders, notices, motions: July 29, 2005. consider all protests or other comments and rule makings. k. All documents (original and eight filed, but only those who file a motion In addition, the FERC now offers a copies) should be filed with: Ms. to intervene in accordance with the free service called eSubscription that Magalie R. Salas, Secretary, Federal Commission’s Rules may become a
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party to the proceeding. Any comments, 241 Ralpy McGill Boulevard NE, Bin capital letters the title ‘‘COMMENTS’’, protests, or motions to intervene must 10151, Atlanta, GA 30308. ‘‘RECOMMENDATIONS FOR TERMS be received on or before the specified i. FERC Contact: Any questions on AND CONDITIONS’’, ‘‘PROTEST’’, OR comment date for the particular this notice should be addressed to Mr. ‘‘MOTION TO INTERVENE’’, as application. John K. Novak at (202) 502–6076, or e- applicable, and the Project Number of p. Filing and Service of Responsive mail address: [email protected]. the particular application to which the Documents: Any filings must bear in all j. Deadline for filing comments and or filing refers (P–2354–087). All capital letters the title ‘‘COMMENTS’’, motions: 30 days from date of issuance documents (original and eight copies) ‘‘RECOMMENDATIONS FOR TERMS of this notice. should be filed with: Magalie R. Salas, AND CONDITIONS’’, ‘‘PROTEST’’, OR k. Description of Request: Georgia Secretary, Federal Energy Regulatory ‘‘MOTION TO INTERVENE’’, as Power Company is requesting Commission, 888 First Street, NE., applicable, and the Project Number of Commission authorization to permit the Washington DC 20426. A copy of any the particular application to which the Authority to increase its water motion to intervene must also be served filing refers. A copy of any motion to withdrawal from Lake Rabun from 2.0 upon each representative of the intervene must also be served upon each mgd to 3.5 mgd to accommodate Applicant specified in the particular representative of the Applicant expected growth in the Authority’s application. specified in the particular application. service area. The proposal would p. Agency Comments: Federal, state, q. Agency Comments: Federal, state, involve the replacement of the existing and local agencies are invited to file and local agencies are invited to file 10-inch piping from the intake pumps to comments on the described application. comments on the described application. the distribution main with 16-inch A copy of the application may be A copy of the application may be piping. No significant construction obtained by agencies directly from the obtained by agencies directly from the activity would be required within the Applicant. If an agency does not file Applicant. If an agency does not file project boundary. comments within the time specified for l. Locations of the Application: A comments within the time specified for filing comments, it will be presumed to copy of the application is available for filing comments, it will be presumed to have no comments. One copy of an inspection and reproduction at the have no comments. One copy of an agency’s comments must also be sent to Commission’s Public Reference Room, agency’s comments must also be sent to the Applicant’s representatives. located at 888 First Street, NE., Room the Applicant’s representatives. q. Comments, protests and 2A, Washington, DC 20426, or by calling interventions may be filed electronically Magalie R. Salas, (202) 502–8371. This filing may also be via the Internet in lieu of paper. See, 18 Secretary. viewed on the Commission’s Web site at CFR 385.2001(a)(1)(iii) and the [FR Doc. E5–3565 Filed 7–6–05; 8:45 am] http://www.ferc.gov using the instructions on the Commission’s Web BILLING CODE 6717–01–P ‘‘eLibrary’’ link. Enter the docket site at http://www.ferc.gov under the ‘‘e- number excluding the last three digits in Filing’’ link. the docket number field to access the DEPARTMENT OF ENERGY document. You may also register online Magalie R. Salas, at http://www.ferc.gov/docs-filing/ Federal Energy Regulatory Secretary. esubscription.asp to be notified via Commission [FR Doc. E5–3567 Filed 7–6–05; 8:45 am] e-mail of new filings and issuances BILLING CODE 6717–01–P [Project No. 2354–087] related to this or other pending projects. For assistance, call 1–866–208–3676 or Georgia Power Company; Notice of e-mail [email protected], DEPARTMENT OF ENERGY Application for Amendment of License for TTY, call (202) 502–8659. A copy is and Soliciting Comments, Motions To also available for inspection and Federal Energy Regulatory Intervene, and Protests reproduction at the address in item (h) Commission June 29, 2005. above. [Docket No. RM98–1–000] m. Individuals desiring to be included Take notice that the following on the Commission’s mailing list should application has been filed with the Records Governing Off-the Record so indicate by writing to the Secretary Commission and is available for public Communications; Public Notice of the Commission. inspection. n. Comments, Protests, or Motions to June 29, 2005. a. Type of Application: Amendment Intervene: Anyone may submit This constitutes notice, in accordance of license that would allow the Clayton- comments, a protest, or a motion to with 18 CFR 385.2201(b), of the receipt Rabun County Water and Sewer intervene in accordance with the of prohibited and exempt off-the-record Authority (Authority) to increase its requirements of Rules of Practice and communications. water withdrawal from Lake Rabun for Procedure, 18 CFR 385.210, 385.211, Order No. 607 (64 FR 51222, municipal water supply from 2.0 385.214. In determining the appropriate September 22, 1999) requires million gallons per (mgd) to 3.5 mgd. b. Project Number: P–2354–087. action to take, the Commission will Commission decisional employees, who c. Date Filed: June 2, 2005. consider all protests or other comments make or receive a prohibited or exempt d. Applicant: Georgia Power filed, but only those who file a motion off-the-record communication relevant Company. to intervene in accordance with the to the merits of a contested proceeding, e. Name of Project: North Georgia Commission’s Rules may become a to deliver to the Secretary, a copy of the Project (FERC No. 2354). party to the proceeding. Any comments, communication, if written, or a f. Location: Lake Rabun on the protests, or motions to intervene must summary of the substance of any oral Tallulah River, Rabun County, Georgia. be received on or before the specified communication. g. Filed Pursuant to: Federal Power comment date for the particular Prohibited communications are Act, 16 U.S.C. 791(a), 825(r). application. included in a public, non-decisional file h. Applicant Contact: Mr. Scott o. Filing and Service of Responsive associated with, but not a part of, the Hendricks, Georgia Power Company, Documents: Any filings must bear in all decisional record of the proceeding.
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Unless the Commission determines that requires. Any person identified below as The communications listed are grouped the prohibited communication and any having made a prohibited off-the-record by docket numbers in ascending order. responses thereto should become a part communication shall serve the These filings are available for review at of the decisional record, the prohibited document on all parties listed on the the Commission in the Public Reference off-the-record communication will not official service list for the applicable Room or may be viewed on the be considered by the Commission in proceeding in accordance with Rule Commission’s Web site at http:// reaching its decision. Parties to a 2010, 18 CFR 385.2010. www.ferc.gov using the eLibrary proceeding may seek the opportunity to Exempt off-the-record (FERRIS) link. communications are included in the respond to any facts or contentions decisional record of the proceeding, Enter the docket number, excluding made in a prohibited off-the-record unless the communication was with a the last three digits, in the docket communication, and may request that cooperating agency as described by 40 number field to access the document. the Commission place the prohibited CFR 1501.6, made under 18 CFR For assistance, please contact FERC, communication and responses thereto 385.2201(e)(1)(v). Online Support at in the decisional record. The The following is a list of off-the- [email protected] or toll Commission will grant such a request record communications recently free at (866) 208–3676, or for TTY, only when it determines that fairness so received in the Office of the Secretary. contact (202) 502–8659.
Presenter or Docket No. Date filed requester
Prohibited: 1. EC05–43–000 ...... 6–22–05 Diane Beeney.1 2. ER03–563–030; EL04–102–000 ...... 6–15–05 Frieda Denenmark. Exempt: 1. CP04–36–000; CP04–41–000 ...... 6–16–05 Hon. Edward M. Lambert, Jr. 2. CP05–83–000 ...... 6–16–05 Laura Turner.2 3. CP05–83–000 ...... 6–22–05 Laura Turner.3 4. Project No. 12053–00 ...... 6–22–05 Jessica Jim; Brandy McDaniels; and Jolee George. 1 Record of phone call received from Ms. Beeney. 2 Record of conference call. 3 Record of phone call.
Magalie R. Salas, messages must use the subject line: http://www.epa.gov/gmpo and http:// Secretary. GMPO Request for Initial Proposal www.fedgrants.gov and announced in [FR Doc. E5–3569 Filed 7–6–05; 8:45 am] Submission. the Federal Register. All Initial BILLING CODE 6717–01–P FOR FURTHER INFORMATION CONTACT: Proposals must be submitted by the Esther Coblentz, Gulf of Mexico closing date and will not be accepted Program Office, at (228) 688–1281 or after that date. Funding Opportunity Description: An ENVIRONMENTAL PROTECTION [email protected]. estimated amount of $275,000 for one to AGENCY SUPPLEMENTARY INFORMATION: five cooperative agreements may be [FRL–7934–7] Overview Information awarded under this announcement for improving the health of the Gulf of Gulf of Mexico Program Office Funding Federal Agency Name: Environmental Mexico. Projects must actively involve Opportunity Protection Agency, Gulf of Mexico stakeholders and focus on the reduction Program Office. of nutrient loads to the lower Funding Opportunity Title: EPA Gulf AGENCY: Environmental Protection Mississippi River and its tributaries of Mexico Program Office Request for Agency (EPA). through innovative partnerships for Initial Proposals: Innovative Producer ACTION: Announcement of funding developing locally led non-point source Partnership Initiatives to Reduce opportunity. nutrient management solutions in the Hypoxia in the Gulf of Mexico. sub-basins of the Mississippi River Announcement Type: Initial SUMMARY: An estimated amount of Watershed. $275,000 for one to five cooperative Announcement. agreements may be awarded under this Funding Opportunity Number: I. Funding Opportunity Description GM2005–1. announcement. Projects must actively Background involve stakeholders and focus on the Catalog of Federal Domestic reduction of nutrient loads to the lower Assistance (CFDA) Number: 66.475. The Gulf of Mexico Program’s (GMP) Mississippi River and its tributaries Dates: For further information, see mission is to protect, restore, and through innovative partnerships for Section IV. The deadline for enhance the coastal and marine waters developing locally led non-point source submissions is 5 p.m., central time, of the Gulf and its natural habitats; to nutrient management solutions in the August 17, 2005. If you do not have the sustain living resources; to protect sub-basins of the Mississippi River capability to submit electronically, human health and the food supply; and Watershed. please contact Esther Coblentz (228) to ensure the long-term use of the Gulf 688–1281 or [email protected] shores, beaches, and waters. To carry DATES: Deadline for Submissions is 5 for information on how you may apply out the GMP mission, we must continue p.m., central time, August 17, 2005. under this announcement. Initial to develop and maintain a partnership ADDRESSES: Submissions should be sent proposals must be submitted by of State and Federal agencies, local electronically to [email protected] electronic mail. This announcement governments, academia, regional with the proposal attached. Electronic will be posted on the Web site at business and industry, agricultural and
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environmental organizations, and sub-basins of the Mississippi River stakeholders in the identification and individual citizens and communities Watershed which will reduce the size of selection of pilot microwatersheds. that effectively addresses the complex the hypoxic zone. For information on Output: Report on the progress of efforts ecological problems that cross State, the sub-basins see http://www.epa.gov/ to develop criteria for selection of Federal, and international jurisdictions msbasin/index.htm#intro. These microwatersheds. and boundaries. activities are intended to help support 5. Maintaining and building an the implementation of the Action Plan innovative agriculture leadership Linkage to EPA Strategic Plan/Expected for Reducing, Controlling, and Environmental Outcomes coalition to pilot a planned Mitigating Hypoxia in the Northern Gulf microwatershed approach to reduce The Gulf of Mexico Program Office of Mexico. http://www.epa.gov/ nutrient loads in six Mississippi River (GMPO) is announcing the availability msbasin/planintro.htm. Basin microwatersheds. Output: of funding and issuing this Request For Specific activities to be included are Develop nutrient reduction management Initial Proposals addressing one or more part of a strategy to achieve the plans in 6 microwatersheds; increase activities that are specifically focused environmental outcome of reduced the innovative leadership coalition by on the Mississippi River Basin and are nitrogen into the Gulf of Mexico thus 50 percent; annual report on the designed to achieve the environment reducing the size of the hypoxic zone to coalition building. outcome of reducing nutrient loading less than 5,000 square kilometers by 6. Building a comprehensive and ultimately the size of the Hypoxic 2015: awareness of nutrient reduction actions Zone in the Gulf of Mexico to less than 1. Conducting a workshop designed to within a training plan for a uniform 5,000 square kilometers by the year empower industry leaders to proactively approach to microwatersheds. Hypoxia 2015. identify effective approaches for Action Plan Item 6. Successful proposals must have clear addressing complex nutrient 7. Building a system of expert teams and measurable environmental results management challenges related to tasked with science-based planning, directly related to EPA’s Strategic Plan production agriculture. The workshop coordination and communication of Goal 4 (Healthy Communities and will be designed and conducted to outcomes including benchmarking, Ecosystems), Objective 3 (Ecosystems), develop a detailed plan to fulfill modeling, and interpretation of Subobjective 5 (Improve the Health of commitments for nutrient reductions monitoring efforts. (See Section III, the Gulf of Mexico). using Best Management Practices Eligibility Criteria) Hypoxia Action Plan In support of Subobjective 4.3.5, and (BMPs) and other measures in the 4, 5, and 10. consistent with EPA Order 5700.7 on Mississippi River Basin on a sub- environmental results, the consequences watershed or sub-basin basis in support II. Award Information of the awards issued pursuant to the of the Hypoxia Action Plan. Output: A respective topics will be the Funding Amounts and Number of detailed plan for commitment to Awards accomplishment of the environmental implement self-sustaining stakeholder- outcome of reducing nitrogen loading led, sub-watershed nutrient reduction Under this funding opportunity, we and thus the size of the hypoxic zone to strategies to achieve measurable expect to award an estimated $275,000 less than 5,000 square kilometers by environmental outcomes as indicated in depending on availability of funds. One year 2015. Each topic area includes a the Hypoxia Action Plan; a final report to five projects will be awarded. EPA description of some of the possible after the workshop. reserves the right to make no awards activities for that area, not all of which 2. Introducing and supporting under this announcement. We will would be achievable within an innovative nutrient reduction strategies reserve the right to offer partial funding assistance agreement funding period in three sub-basins in the Mississippi of a proposal by funding discrete and not all of which would necessarily River watershed. Key producer leaders activities, portions, or phases of the result from each project selected. will be placed on the sub-basin proposed project. If EPA decides to All proposals submitted will be committees to integrate this effort partially fund the proposed project, it reviewed for eligibility under Section through on-going collaboration with the will do so in a manner that does not 104 (b)(3) of the Clean Water Act. Upper Mississippi River and Lower prejudice any applicants or affect the Assistance Agreements are authorized Mississippi River sub-basin teams and basis upon which the proposed project, under this statutory authority to to help conduct specifically targeted or portion thereof, was evaluated and conduct and promote the coordination regional workshops to develop a multi- selected, and that maintains the and acceleration of research, state strategy to reduce nutrient loads to integrity of the competition and the investigations, experiments, training, the Gulf of Mexico. Output: selection/evaluation process. Additional demonstrations, surveys, and studies Development of nutrient reduction awards may be made if additional relating to the causes, effects, extent, strategies to achieve the environmental funding becomes available up to 4 prevention, reduction, and elimination outcome of reducing the size of the months after the original selection of pollution. This Federal financial hypoxic zone in the Gulf of Mexico: decisions are announced. The period of assistance program is identified in the placement of producers on sub-basin performance is from 0.5 years to two Catalog of Federal Domestic Assistance committees; and final report. Supports years. as CFDA 66.475, see http:// Hypoxia Action Plan Item 2. Type of Award www.cfda.gov. 3. Securing participation of model For this announcement, priority will research farms to ensure focused Successful applicants will be issued a be given to proposals that actively working relationships. Determine a joint cooperative agreement. Cooperative involve stakeholders and focus on the framework and agreement to support agreements require substantial EPA environmental outcome of achieving comprehensive Best Management involvement with the recipient in the reduction of nutrient loads to the lower Practices (BMPs) and water quality form of programmatic oversight and Mississippi River and its tributaries monitoring efforts. Supports Hypoxia review and comment on all agreement through innovative partnerships for Action Plan Items 3, 4 and 5. activities and products. When a developing locally led non-point source 4. Working collaboratively with EPA, cooperative agreement is awarded, nutrient management solutions in the NRCS, sub-basin committees, and other EPA’s involvement in carrying out the
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work with the applicant will be partnerships and leverage funding Examples From Previous Years described in a selection letter and which will be considered by reviewers When developing project identified in the terms and conditions of during evaluation. Nonfederal match is submissions, you may look at types of the award document. In general, strongly encouraged (at least 5%), and successful projects from previous years, cooperative agreements awarded will be may be provided in the form of cash or available at http://www.epa.gov/gmpo. one-time awards and recipients should in-kind services, such as staffing. use the funds within the period of Matching funds are considered to be Dates and Times performance (from 0.5 years to two cooperative agreement funds and may • Transmit electronically by 5 p.m. years). be used for reasonable and necessary Central Time, August 17, 2005. expenses of carrying out the project • III. Eligibility Information Initial proposals dated after this described in the Final Project Workplan. time will be disqualified. Eligible Applicants Any restrictions on the use of grant • Use an e-mail return receipt for funds, including project budget periods, State and local governments, verification of receipt if you want to also apply to the use of matching funds. interstate agencies, tribes, colleges and confirm delivery. All project expenditures, including both universities, individuals, and other Funding Restrictions: See Section III. the federal and nonfederal share, are Eligibility Information. public or nonprofit organizations. An subject to federal regulations governing applicant’s failure to meet eligibility the use of federal funds. Other federal Submission criterion by the time of any award will money cannot be used as match unless preclude EPA from making an award. Send electronic submittals to authorized by the statute governing the [email protected]/gmpo with the EPA/GMPO will require nonprofit award of the other federal funds. organizations selected for funding to initial proposal attached. Reductions to the amount of the match Electronic messages must use the provide verification of their nonprofit after a proposal is selected for funding status prior to the grant award. subject line: ‘‘GMPO Request for Initial may result in loss of funding. Proposal Submission.’’ Messages from Eligibility Criteria Ineligible Activities unknown senders without this subject line may be inadvertently deleted to Projects must be consistent with the Applicants must adhere closely to the avoid computer viruses. Clean Water Act Section 104(b)(3) types of projects authorized for funding For initial proposals submitted authority. All initial proposals under CWA § 104(b)(3) in developing electronically, electronic signatures are submitted will be reviewed for initial proposals. Unauthorized project not required at the time of submission. eligibility under Section 104(b)(3) of the types will be disqualified. Types of If GMPO selects the proposal for Clean Water Act (CWA). Water Quality projects that are ineligible for funding funding, the signature of an authorized Cooperative Agreements are authorized are routine construction projects, except off cial and any contributors of 3rd party under this statutory authority to to a limited degree to demonstrate in-kind match will be required when the conduct and promote the coordination innovation, prevention, or removal of and acceleration of research, pollution; land acquisition; or projects full proposal is submitted. We investigations, experiments, training, that are largely general education/ recommend that applicants use e-mail demonstrations, surveys, and studies outreach or conferences unless they return receipt that provides verification relating to the causes, effects, extent, meet a clear need to accomplish a of receipt if you wish to confirm that prevention, reduction, and elimination public purpose and not for the direct GMPO has received your project of pollution. benefit of EPA. In accordance with proposal. Projects that implement ‘‘Best Executive Order 12579, organizations Confidentiality Management Practices’’ or any type of that have been debarred or suspended In accordance with 40 CFR 2.203, construction activities must qualify as a from a program by any federal agency applicants may claim all or a portion of demonstration project under CWA will not be eligible to receive an award their application/proposal as § 104(b)(3). A demonstration project or subaward through this solicitation. must involve new or experimental confidential business information. EPA technologies, methods, or approaches, Threshold Eligibility Requirements will evaluate confidentiality claims in where the results of the project will be Initial Proposal packages that are accordance with 40 CFR part 2. disseminated so that others can benefit incomplete will be disqualified. Applicants must clearly mark from the knowledge gained in the Applicants must follow Initial Proposal applications/proposals or portions of demonstration project. A project that is Format in developing and submitting applications/proposals they claim as accomplished through the performance your proposal. confidential. If no claim of of routine, traditional, or established Applications which do not comply confidentiality is made, EPA is not practices, or a project that is simply with the administrative review required to make the inquiry to the intended to carry out a task rather than requirements contained in the applicant otherwise required by 40 CFR transfer information or advance the state Application and Submission of 2.204(c)(2) prior to disclosure. of knowledge is not a demonstration. Information Section (Part IV) will not be Other Considerations Projects must focus on reducing reviewed and those submissions will be Projects are subject to nutrient loads to the lower Mississippi returned to the applicant. Intergovernmental Review under River and its tributaries and nutrient IV. Application and Submission Executive Order 12372. management solutions in the sub-basins Information of the Mississippi River Watershed in Initial Proposal Format order to reduce the size of the hypoxic Content and Format of Project Applicant Information zone in the Gulf of Mexico. Preproposals • Follow the initial proposal format Applicant Information: Business Matching Requirements and instructions provided below. Mailing and Contact information, There is no matching requirement; • Use Microsoft Word or Adobe including e-mail address. DUNS number however, the evaluation criteria requires Acrobat for electronic submissions. if Applicant Organization has one.
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Type of Organization: State or local Environmental Results: Describe is not assured for subsequent years for government, interstate agency, tribe, anticipated environmental outputs and any project. college or university, individual, or outcomes and their linkages to the Other Sources of Funding other public or nonprofit organizations. problem statement. (See Outcomes/ Applicants must submit information Outputs described in Section 1 and Other Funding: If others are expected relating to the programmatic capability Environmental Results Order 5700.7 at: to contribute funds to your Project, list criteria to be evaluated under the http://www.epa.gov/ogd/grants/award/ Name(s) of providers, amount provided, ranking factor(s) in section V of the 5700.7.pdf). Specify affected pollutants, and commitments made by each. announcement. EPA will consider industry sectors, economic impacts, V. Application Review Information information from other sources habitats, and/or species as applicable for including Agency files. the topic, and proposed progress toward Criteria delisting, toward restoration of Project Summary Information Projects will be evaluated based on beneficial use impairments, and/or the Criteria specified as follows: Project Title. toward reducing nitrogen loading and Brief Project Description: Summarize the size of the hypoxic zone in the Gulf 1. Relevance/Rationale: (20 Points) the project. Do not use acronyms. of Mexico. Importance and/or relevance and Duration: Specify project period of Measuring Progress: Describe your applicability of the proposed approach performance, from 0.5 years up to 2 plan for tracking, measuring, and to the Hypoxia Action Plan and the years. reporting progress toward achieving level of support of long-term goals and Topic: Choose one: Identify by Tasks expected outputs and outcomes. Initial implementation actions. in Funding Announcement. Proposals must address the applicant’s There is intrinsic value in the Geographic Applicability past performance in documenting the proposed work and/or relevance to the achievement of expected outcomes/ Hypoxia Action Plan and Task Force Applicable Mississippi River Basin: activities. Refers to the likelihood that Mississippi River Basin(s) which would outputs including, if applicable, satisfactory explanations of why the approach proposed will make be most impacted by this project. substantial nutrient reductions or Applicable Geographic Location: If outcomes/outputs were not achieved. The applicant must describe the ability develop strategies leading to improved applicable, geographic locations which nutrient management within the basin. would be most impacted by this project, to specify and measure the expected include the Hydrologic Unit Code environmental outcomes/outputs and 2. Scientific/Professional Merit: (20 (HUC) for the Project location. HUCs performance measures to be Points) accomplished as a result of the project. can be found on EPA’s Surf Your The approach is technically sound See Environmental Results Order 5700.7 Watershed Web site at http:// and/or innovative; the methods, at http://www.epa.gov/ogd/grants/ www.epa.gov/surf/locate/index.cfm. approaches, concepts are appropriate; award/5700.7.pdf Project Location: As applicable, enter there are clear goals and objectives, and City, County, and State(s). Project Milestones there is a plan for tracking and measuring progress toward achieving Problem, Work, Results Milestones: Specify milestones and/or the expected outcomes/outputs final products and projected due dates, Problem Statement: Describe the issue identified. that will be addressed and its relevance including Project Start and End. 3. Programmatic Capability: (20 Points) to the Gulf of Mexico, particularly to Education needs and priorities in Sub-objective The technical capability of the 4.3.5 (Improve the Health of the Gulf of Education/Outreach Component: applicant to successfully carry out a Mexico Ecosystem) of EPA’s Strategic Identify whether project includes an project taking into account such factors Plan; addressing one or more activities education/outreach component. If as the applicant’s (1) past performance that are specifically focused on the applicable, describe the target audience in successfully completing projects Mississippi River Basin and are and how that group would be impacted similar in size, scope, and relevance to designed to achieve the environmental by the project. the proposed project, (2) history of outcome of reducing nutrient loading Collaboration meeting reporting requirements on prior and ultimately the size of the Hypoxic or current assistance agreements and Zone in the Gulf of Mexico. Projects Collaboration/Partnerships: Describe submitting acceptable final technical must actively involve stakeholders and plans and status of collaboration and reports and applicable closeout focus on reducing nutrient loads to the partnerships amongst the public, documentation, (3) organizational lower Mississippi River and its private, and independent sectors. experience and plan for timely and tributaries through innovative Project Budget successfully achieving the objectives of partnerships for developing locally led the project, and (4) staff expertise/ non-point source nutrient management Budget: Specify how the total of EPA qualifications, education, training, solutions in each of the sub-basins of funds and Applicant matching funds facilities, administrative resources, staff the Mississippi River Watershed. (For will be used for: Personnel/salaries, knowledge, and resources or the ability information on subbasins http:// fringe benefits, travel, equipment, to obtain them, to successfully achieve www.epa.gov/msbasin/ supplies, contract costs, and other costs. the goals of the project. (Refer also to index.htm#intro.) These activities are Include narrative descriptions for costs EPA Order 5700.8 http://www.epa.gov/ intended to implement the Action Plan you identify as ‘‘contract’’ or ‘‘other’’. ogd/grants/award/5700_8.pdf). for Reducing, Controlling, and You may include a separate line for Mitigating Hypoxia in the Northern Gulf indirect costs if your organization has in 4. Budget: (10 Points) of Mexico. place (or will negotiate) an ‘‘indirect The reasonableness and Proposed Work: Describe what will be cost rate.’’ Budget should represent the appropriateness of the proposed budget done and how. Many of the criteria will total which would be requested from for the level of work proposed and with be addressed here. EPA for the project’s duration. Funding the expected benefits to be achieved.
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5. Stakeholders: (20 Points) Pre-Award Review for Administrative VII. Agency Contact Information Capability The quality of proposed partnerships, Contacts may provide appropriate including the degree of broad Non-profit applicants that are assistance to help potential applicants participation within the Mississippi recommended for funding will be determine whether the applicant itself River Watershed and demonstration of subject to pre-award administrative or the applicant’s proposed project is significant partnering among the capability reviews consistent with eligible for funding, to assist with agricultural community that results in paragraphs 8.b, 8.c, and 9.d of EPA administrative issues relating to socio-economic merits and outreach and Order 5700.8 http://www.epa.gov/ogd/ submission, and to respond to requests _ education. Applications will also be grants/award/5700 8.pdf and may be for clarification of the announcement. evaluated on whether they provide a required to fill out and document an Applicants are solely responsible for the partnership with a focused and effective ‘‘Administrative Capability’’ form. content of their submissions. General education and outreach strategy Administrative and Reporting Gulf of Mexico Program Contact: Esther regarding the long-term commitment to Requirements Coblentz, 228–688–1281 or the proposed objectives of the Hypoxia [email protected]. The successful applicant will be Action Plan. required to adhere to the Federal grants VIII. Other Information 6. Leveraging Funding: (10 Points) requirements, particularly those found Funding amounts are estimates of the in applicable OMB circulars on Cost Ability of applicant to leverage other maximum amount that will be available, Principles (A–21, A–87, or A–122), based on our best available information. public or private funding to complete or Administrative Requirements (A–102 or complement the project. These amounts are subject to change 110), and Audit Requirements (A–133) without further notification, based on Review and Selection Process available from http:// the amount of federal funds actually www.whitehouse.gov/omb/grants/. This appropriated and allocated for these Evaluation and selection process will includes government-wide requirements include the following steps: programs. EPA reserves the right to pertaining to accounting standards, reject all proposals and make no awards. Screen for threshold eligibility. lobbying, minority or woman business Although an Application for Federal Review and score proposals against enterprise, publication, meetings, Assistance (Standard Form 424 and criteria (Reviewers/Panel). construction, and disposition of attachments) is not required when the Rank all proposals according to total property. EPA regulations governing initial proposal is submitted, we score. assistance programs and recipients are encourage you to review our grant Announce selections. codified in Title 40 of the Code of application package at http:// Contact Successful applicants and Federal Regulations. Those www.epa.gov/gmpo to become familiar request a detailed grant application and requirements, GMPO-specific with the information and certifications final workplan. requirements currently in effect, and the that will be required if your proposal is application materials that will be selected for funding. Final Applications/Workplans needed by applicants ultimately reviewed and ranked. selected in this process can be found at Dated: June 29, 2005. Approval Official determines Final http://www.epa.gov/gmpo. The Gloria D. Car, Projects. successful Federal applicant will be Deputy Director, Gulf of Mexico Program EPA employees as well as GMP required to comply with the OMB Office. reviewers and/or panel members who Circular and appropriate sections of [FR Doc. 05–13379 Filed 7–6–05; 8:45 am] score project proposals will be required Title 40 of the Code of Federal BILLING CODE 6560–50–P to sign a Conflict of Interest Disclosure Regulations determined applicable by Form and will not score any proposal in GMPO. This determination will be which they have a personal, familial, or embodied in the terms and conditions of ENVIRONMENTAL PROTECTION financial interest. If an individual has a an interagency agreement. AGENCY conflict of interest with respect to any Dispute Resolution Process [FRL–7934–2] proposal, then they cannot review any proposal. The Director of the Gulf of Assistance agreement competition- Environmental Laboratory Advisory Mexico Program will make the final related disputes involving any Board (ELAB) Meeting Dates, and selections. applicant, including Federal applicants, Agenda will be resolved in accordance with the Anticipated Announcement Date dispute resolution procedures published AGENCY: Environmental Protection GMPO will post a list of all initial in 70 FR (Federal Register) 3629, 3630 Agency. proposals selected for funding on or (January 26, 2005) which can be found ACTION: Notice of teleconference about September 15, 2005. The list will at http://a257.g.akamaitech.net/7/257/ meetings. be posted at the following site: http:// 2422/01jan20051800/ SUMMARY: The Environmental Protection www.epa.gov/gmpo. All applicants, edocket.access.gpo.gov/2005/05– Agency’s Environmental Laboratory including those who are not selected for 1371.htm. Advisory Board (ELAB), as previously funding will be notified by mail. Copies of these procedures may also be requested by contacting announced, will have teleconference VI. Award Administration Information [email protected]. meetings on July 20, 2005 at 1 p.m. e.t.; August 17, 2005 at 1 p.m. e.t.; Award Notices Please note that this is not a complete list of all regulations and policies that September 21, 2005 at 1 p.m. e.t.; EPA has 60 days to issue an award govern these funds. Our Grants October 19, 2005 at 1 p.m. e.t.; and following receipt of the complete, Management Office Web site at http:// November 16, 2005 at 1 p.m. e.t. to fundable Application Package. Final www.epa.gov/region4/grants/ discuss the ideas and views presented at funding decisions are based upon the regulations.html identifies other grant the previous ELAB meetings, as well as Application Packages. regulations that apply. new business. Items to be discussed by
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ELAB over these coming meetings Protection Agency (EPA) has offered a FOR FURTHER INFORMATION CONTACT: Mr. include: (1) Expanding the number of cost recovery settlement at the Georgia- Robert Biersack, Press Officer, laboratories seeking National Pacific Hardwood Sawmill Site located telephone: (202) 694–1220. Environmental Laboratory Accreditation in Plymouth, North Carolina. EPA will Conference (NELAC) accreditation; (2) consider comments until August 8, Mary W. Dove, homeland security issues affecting the 2005. EPA may withdraw from or Secretary of the Commission. laboratory community; (3) ELAB modify the proposed settlement should [FR Doc. 05–13505 Filed 7–5–05; 2:54 pm] support to the Agency’s Forum on such comments disclose facts or BILLING CODE 6715–01–M Environmental Measurements (FEM); (4) considerations which indicate the implementing the performance proposed settlement is inappropriate, approach; (5) increasing state improper, or inadequate. Copies of the participation in NELAC; and (6) follow- proposed settlement is available from: FEDERAL RESERVE SYSTEM up on some of ELAB’s past Ms. Paula V. Batchelor, U.S. recommendations and issues. In Environmental Protection Agency, Change in Bank Control Notices; addition to these teleconferences, ELAB Region 4, Superfund Enforcement and Acquisition of Shares of Bank or Bank will be hosting their next face-to-face Information Management Branch, Waste Holding Companies meeting on July 25, 2005 at the Management division, 61 Forsyth Street, Wyndham City Center Hotel in SW., Atlanta, Georgia 30303, (404) 562– The notificants listed below have Washington, DC from 8:30–11:30 a.m. 8887, [email protected]. applied under the Change in Bank e.t. and an open forum session on Written or e-mail comments may be Control Act (12 U.S.C. 1817(j)) and August 9, 2005 at the Sheraton Capital submitted to Paula V. Batchelor at the § 225.41 of the Board’s Regulation Y (12 Center in Raleigh, North Carolina at 5:30 above address within 30 days of the date CFR 225.41) to acquire a bank or bank p.m. e.t. of publication. holding company. The factors that are Written comments on laboratory considered in acting on the notices are Dated: June 23, 2005. accreditation issues and/or set forth in paragraph 7 of the Act (12 environmental monitoring issues are Rosalind H. Brown, U.S.C. 1817(j)(7)). Chief, Superfund Enforcement and encouraged and should be sent to Ms. The notices are available for Lara P. Autry, DFO, U.S. EPA (E243– Information Management Branch, Waste Management Division. immediate inspection at the Federal 05), 109 T. W. Alexander Drive, Reserve Bank indicated. The notices Research Triangle Park, NC 27709, faxed [FR Doc. 05–13343 Filed 7–6–05; 8:45 am] BILLING CODE 6560–50–P also will be available for inspection at to (919) 541–4261, or e-mailed to the office of the Board of Governors. [email protected]. Members of the Interested persons may express their public are invited to listen to the views in writing to the Reserve Bank teleconference calls, and time FEDERAL ELECTION COMMISSION indicated for that notice or to the offices permitting, will be allowed to comment of the Board of Governors. Comments on issues discussed during this and Sunshine Act Meetings must be received not later than July 19, previous ELAB meetings. Those persons 2005. interested in attending should call Lara DATE AND TIME: Tuesday, July 12, 2005, A. Federal Reserve Bank of Dallas P. Autry at (919) 541–5544 to obtain at 10 a.m. teleconference information. The number (W. Arthur Tribble, Vice President) 2200 of lines for the teleconferences, PLACE: 999 E Street, NW., Washington, North Pearl Street, Dallas, Texas 75201- however, are limited and will be DC. 2272: distributed on a first come, first serve STATUS: This meeting will be closed to 1. Randle W. Jones and Melanie basis. Preference will be given to a the public. Hynds Jones, Van Alstyne, Texas; to group wishing to attend over a request ITEMS TO BE DISCUSSED: Compliance retain voting shares of Val Alstyne from an individual. matters pursuant to 2 U.S.C. 437g. Financial Corporation, Van Alstyne, Elizabeth A. Wonkavich, Audits conducted pursuant to 2 U.S.C. Texas, and indirectly retain voting shares of Van Alstyne Nevada Financial Acting Assistant Administrator, Office of 437g, 438(b), and title 26, U.S.C. Matters Research and Development. concerning participation in civil actions Corporation, Reno, Nevada, and Texas Star Bank, Van Alstyne, Texas. [FR Doc. 05–13274 Filed 7–6–05; 8:45 am] or proceedings or arbitration. Internal BILLING CODE 6560–50–P personnel rules and procedures or 2. Richard L. Kinsel, Jr., and Janice L. matters affecting a particular employee. Kinsel, Friendswood, Texas, acting in DATE AND TIME: Thursday, July 14, 2005, concert, to acquire additional voting ENVIRONMENTAL PROTECTION at 10 a.m. shares of 1st Choice Bancorp, Inc., AGENCY Houston, Texas, and thereby indirectly PLACE: 999 E Street, NW., Washington, acquire additional voting shares of 1st [FRL–7934–5] DC (ninth floor). Choice Bank, Houston, Texas. Georgia-Pacific Hardwood Sawmill STATUS: This meeting will be open to the B. Federal Reserve Bank of San Site; Notice of Proposed Settlement public. Francisco (Tracy Basinger, Director, ITEMS TO BE DISCUSSED: Correction and Regional and Community Bank Group) AGENCY: Environmental Protection 101 Market Street, San Francisco, Agency. Approval of Minutes. Final Rules and Explanation and California 94105-1579: ACTION: Notice of proposed settlement. Justification for Payroll Deductions by 1. Michael J. Goldfarb, to retain voting SUMMARY: Under Section 122(h)(1) of the Member Corporations for Contributions shares of Foundation Bancorp, Inc., and Comprehensive Environmental to a Trade Association’s Separate thereby indirectly retain voting shares of Response Compensation and Liability Segregated Fund. Foundation Bank, all in Bellevue, Act (CERCLA), the Environmental Routine Administrative Matters. Washington.
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Board of Governors of the Federal Reserve the 2005 WHCoA event from October 23 DEPARTMENT OF HEALTH AND System, June 30, 2005. to 26, 2005 to December 11 to 14, 2005. HUMAN SERVICES Robert deV. Frierson, In order to accommodate the 1,200 Deputy Secretary of the Board. delegates and the large number of Food and Drug Administration [FR Doc. 05–13324 Filed 7–6–05; 8:45 am] potential exhibitors who will participate [FDA 225–03–8003] BILLING CODE 6210–01–S in the WHCoA, the event will be held at the Marriott Wardman Park Hotel, Memorandum of Understanding address above. Between the U.S. Food and Drug DEPARTMENT OF HEALTH AND The WHCoA is a decennial event Administration and Howard University, HUMAN SERVICES intended to produce resolutions and Washington, DC implementation strategies to be Administration on Aging AGENCY: Food and Drug Administration, presented to the President and Congress HHS. to help guide national aging policies for 2005 White House Conference on ACTION: Notice. Aging Policy Committee the next decade and beyond. The majority of the 1,200 delegates, selected SUMMARY: The Food and Drug AGENCY: Administration on Aging, HHS. by Governors of all 50 States, the U.S. Administration (FDA) is providing ACTION: Notice of meeting. Territories, Puerto Rico, the Mayor of notice of a memorandum of the District of Columbia, members of the understanding (MOU) between the U.S. SUMMARY: Pursuant to Section 10(a) of 109th Congress, and the National Food and Drug Administration and the Federal Advisory Committee Act as Congress of American Indians were Howard University, Washington, DC. amended (5 U.S.C. Appendix 2), notice announced on June 1, 2005. The balance The purpose is to implement an is hereby given that the Policy of the delegates, known as ‘‘At-Large integrated system of shared interest in Committee for the 2005 White House Delegates’’ will be selected by the scientific progress through an exchange Conference on Aging (WHCoA) voted to of scientific capital in the diverse fields change the date of the WHCoA event WHCoA Policy Committee and should of science that directly and indirectly from October 23 to 26, 2005 to be announced by late July 2005. These affect human and animal health and December 11 to 14, 2005. The 2005 delegates will represent national aging medicine. WHCoA will be held at the Marriott and other allied organizations, baby Wardman Park Hotel, 2660 Woodley boomers, academic institutions, DATES: The agreement became effective Road, NW., Washington, DC 20008. business and industry, disability, non- May 29, 2003. profit and veterans’ organizations and DATES: The meeting will be held FOR FURTHER INFORMATION CONTACT: Judy Sunday, December 11, 2005 to other representatives from the field of Blumenthal, Office of Science, Food and Wednesday, December 14, 2005. aging. Drug Administration, 200 Independence ADDRESSES: The meeting will be held at Dated: July 1, 2005. Ave. SW., Washington, DC 20201, 202– the Marriott Wardman Park Hotel, 2660 Edwin L. Walker, 260–0677. Woodley Road, NW., Washington, DC Deputy Assistant Secretary for Policy and SUPPLEMENTARY INFORMATION: In 20008. Programs. accordance with 21 CFR 20.108(c), FOR FURTHER INFORMATION CONTACT: [FR Doc. 05–13341 Filed 7–6–05; 8:45 am] which states that all written agreements and MOUs between FDA and others Remy Aronoff at (301) 443–2828, or e- BILLING CODE 4154–01–P mail at [email protected]. shall be published in the Federal Register, the agency is publishing notice SUPPLEMENTARY INFORMATION: Pursuant of this MOU. to the Older Americans Act Amendments of 2000 (Pub. L. 106–501, Dated: June 27, 2005. November 2000), the WHCoA Policy Jeffrey Shuren, Committee voted to change the date of Assistant Commissioner for Policy.
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[FR Doc. 05–13339 Filed 7–6–05; 8:45 am] SUMMARY: The Food and Drug FOR FURTHER INFORMATION CONTACT: BILLING CODE 4160–01–C Administration (FDA) is providing Joanne Choy, Center for Devices and notice of a memorandum of Radiological Health (HFZ–240), Food understanding (MOU) between FDA and and Drug Administration 1350 Piccard DEPARTMENT OF HEALTH AND the State of South Carolina, Department Dr., Rockville, MD 20850, 301–827– HUMAN SERVICES of Health and Environmental Control, 2963. Food and Drug Administration Bureau of Radiological Health. The purpose is to authorize the State of SUPPLEMENTARY INFORMATION: In [FDA 225–05–6002] South Carolina, through the South accordance with 21 CFR 20.108(c), Carolina Department of Health and which states that all written agreements Memorandum of Understanding Environmental Control (DHEC), to and MOUs between FDA and others Between the U.S. Food and Drug conduct a State as certifiers program in shall be published in the Federal Administration and the State of South South Carolina under the Register, the agency is publishing notice Carolina, Department of Health and Mammography Quality Standards Act of this MOU. Environmental Control, Bureau of Radiological Health (MQSA) as amended by the Dated: June 27, 2005. Mammography Quality Standards Jeffrey Shuren, AGENCY: Food and Drug Administration, Reauthorization Act of 1998 (MQSRA). Assistant Commissioner for Policy. HHS. DATES: The agreement became effective BILLING CODE 4160–01–S ACTION: Notice. April 29, 2005.
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[FR Doc. 05–13340 Filed 7–6–05; 8:45 am] ACTION: Notice. FOR FURTHER INFORMATION CONTACT: V. BILLING CODE 4160–01–C Michelle Chenault, Center for Devices SUMMARY: The Food and Drug and Radiological Health (HFZ–100), Administration (FDA) is providing Food and Drug Administration, 9200 DEPARTMENT OF HEALTH AND notice of a memorandum of Corporate Blvd., Rockville, MD 20850, HUMAN SERVICES understanding (MOU) between the Food 301–827–2889. and Drug Administration and the SUPPLEMENTARY INFORMATION: In Food and Drug Administration University of Houston (UH). The accordance with 21 CFR 20.108(c), purpose of the MOU is to implement an which states that all written agreements [FDA 225–03–6000] integrated system of shared interest in and MOUs between FDA and others scientific progress through an exchange shall be published in the Federal Memorandum of Understanding of scientific capital, in the diverse fields Register, the agency is publishing notice Between the Food and Drug of science that directly, and indirectly of this MOU. Administration and the University of affect human and animal health and Dated: June 27, 2005. Houston medicine. Jeffrey Shuren, AGENCY: Food and Drug Administration, DATES: The agreement became effective Assistant Commissioner for Policy. HHS. March 29, 2003. BILLING CODE 4160–01–S
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[FR Doc. 05–13337 Filed 7–6–05; 8:45 am] verify the utility of Radio Frequency was published on September 23, 2004 BILLING CODE 4160–01–C Identification technology to (69 FR 57036), and a notice about the automatically, passively, and remotely availability of the most recent revision record the entry and exit of covered made to the PIA was published in the DEPARTMENT OF HOMELAND individuals. In conjunction with this Federal Register on June 16, 2005 (70 SECURITY change, US–VISIT is again revising its FR 35110). Privacy Impact Assessment to discuss FOR FURTHER INFORMATION CONTACT: [DHS–2005–0049] the impact of this new technology on Steve Yonkers, Privacy Officer, US– privacy. The revised Privacy Impact VISIT, Department of Homeland United States Visitor and Immigrant Assessment also covers the Security, Washington, DC 20528, Status Indicator Technology Program; implementation of new technology and telephone (202) 298–5200, facsimile Privacy Impact Assessment processes for recording the exit of (202) 298–5201, e-mail: covered individuals from air and sea AGENCY: Department of Homeland [email protected]; Nuala O’Connor ports. It is being published here and also Security, United States Visitor and Kelly, Chief Privacy Officer, Department is available on the Web site of the Immigrant Status Indicator Technology of Homeland Security, Mail Stop 0550, Privacy Office of the Department of Program. 601 S. 12th Street, Arlington, VA Homeland Security, http:// ACTION: Notice of availability of Privacy 22202–4220; by telephone (571) 227– www.dhs.gov/privacy, and on the US– Impact Assessment. 4127 or facsimile (571) 227–4171. VISIT Web site, http://www.dhs.gov/ SUMMARY: The Department of Homeland usvisit. Dated: July 1, 2005. Security intends to modify the United The original US–VISIT PIA was Nuala O’Connor Kelly, States Visitor and Immigrant Status published in the Federal Register on Chief Privacy Officer, Department of Indicator Technology Program to January 16, 2004 (69 FR 2608); a revised Homeland Security. conduct a proof of concept in order to version reflecting subsequent changes BILLING CODE 4410–10–P
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US–VISIT Program Privacy Impact initial implementation of the program individuals at U.S. land border POEs Assessment and that the PIA be updated as using Radio Frequency Identification necessary to reflect future changes. (RFID)-enabled I–94 Arrival/Departure 1. Introduction The US–VISIT PIA was first Forms. The proof of concept of the United States Visitor and Immigrant published on January 4, 2004, in capability will begin in August 2005 Status Indicator Technology (US–VISIT) conjunction with the initial deployment and, if successful, will be deployed to is the program established by the of US–VISIT. The PIA was updated on the 50 busiest land ports by December Department of Homeland Security September 14, 2004,1 to reflect 31, 2007. (DHS) to implement an integrated entry inclusion of visa waiver program (VWP) and exit data system to record the entry travelers in US–VISIT, expansion of 2. Overview of US–VISIT into and exit out of the United States of US–VISIT to the 50 busiest land border Implementation covered individuals; verify identity; and ports of entry (POE) and changes in the Congress has directed DHS to confirm compliance with the terms of business processes used by DHS to establish an integrated and automated admission to the United States. share information with Federal law entry and exit system to record the The primary goals of US–VISIT are to: enforcement agencies. The PIA was arrival and departure of aliens, verify • Enhance the security of our citizens updated on June 15, 2005 to include the their identities, and authenticate their and visitors; Live Test to read ICAO-compliant travel documents through comparison of • Facilitate legitimate travel and biometrically enabled travel documents biometric identifiers. Implementation trade; by October 26, 2005. has proceeded in increments for a • Ensure the integrity of our This revision of the PIA is prompted immigration system; and by the: variety of policy and operational • Protect the privacy of our visitors. 1. Implementation of technology (Exit reasons. The incremental In accordance with the guidance devices) and processes for recording the implementation has been tied primarily issued by the Office of Management and exit of covered individuals from air and to the analysis of the best technology Budget (OMB) on September 26, 2003 sea ports by December 31, 2005; and available to accomplish the goals of the for implementing the E-Government Act 2. The proof of concept for technology program. The following timeline of 2002 and in an effort to make the and processes for automatically provides a high-level overview of the program transparent and address any recording the entry and exit of covered US–VISIT Increments, followed by a privacy concerns, DHS’s Chief Privacy narrative description of those Officer directed that a Privacy Impact 1 69 FR 57036, US–VISIT Privacy Impact increments. Assessment (PIA) be performed for the Assessment, September 23, 2004. BILLING CODE 4410–10–P
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Increment 1A—Entry at Air and Sea Enhanced Border Security and Visa at land POEs to capture biographic and Ports of Entry Entry Reform Act (Border Security Act) biometric information. The details of of 2002, as amended: Increment 2B were provided in the PIA Increment 1 was deployed on January • 5, 2004, by modifying pre-existing All VWP Countries must implement dated September 14, 2004. databases to accommodate the a program of issuing International Civil Aviation Organization (ICAO)- Increment 2C—RFID at Land Ports of collection and maintenance of Entry additional data fields and to establish compliant passports that are tamper- interfaces required to share data resistant and incorporate biometric and Increment 2C will provide the between DHS record systems documentation authentication capability to automatically, passively, identifiers by October 26, 2005 3 and remotely record the entry and exit concerning entry and exit at certain • POEs of covered individuals. Covered U.S. Ports of Entry must have the of covered individuals using Radio individuals were defined in Increment 1 capability to read VWP ICAO-compliant Frequency Identification (RFID) tags. as nonimmigrant visa holders and VWP biometrically enabled travel documents The RFID tag will be embedded in the entrants traveling through air, sea, and by October 26, 2005 I–94 Arrival/Departure Forms, and will As the next step in implementing land border POEs. Since use a unique ID number embedded in these legislative requirements, an implementation of Increment 1, DHS the tag to associate the I–94 holders has been collecting biometrics—two International Live Test will be with the tag. After the tag-enabled I–94 digital index fingerscans and a digital conducted. Australia, New Zealand, and is issued to an individual, the ID photograph—for each covered the U.S. are the participants in the number will be used as a pointer to the individual. The details of Increment 1 International Live Test that will be individual’s biographic information are provided in the PIA published on conducted from June to September at located in the TECS database January 4, 2004. the Los Angeles, CA Airport POE and at maintained by CBP. ADIS then receives the Sydney, Australia Airport POE. The and stores the crossing data from TECS. Increment 1B—Exit at Air and Sea Ports International Live Test will evaluate the When the individual passes through the of Entry operational impact of the new entry and exit lanes of a POE, the ID Increment 1 also involved the testing technology as well as the performance number will be read and used to retrieve of Exit devices to collect exit data. Three of the e-Passports and the reader the individual’s immigration alternatives to collect exit data—a kiosk, solutions being tested. However, the information for use in the entry and exit a mobile device, and a combination of International Live Test evaluation will inspection processes by CBP officers. the two devices that uses a specially- be limited in scope due to the fact that US–VISIT conducted an operational configured mobile device to validate the only two of the Visa Waiver Program alternatives assessment and determined receipt from the kiosk device 2—were countries’ passports will be tested. that passive RFID technology best tested from October 2004 through May Other Visa Waiver Program countries’ satisfied its requirements for this 2005. All were found to be useful in passports will have to be tested and increment of the program. A proof of different environments and will be evaluated as they begin the process of concept is being conducted for the variously implemented based on the issuing e-Passports to their nationals. Increment 2C capability to verify this operational characteristics of each air In conjunction with implementation assessment. The proof of concept will and sea port. The changes to systems to of Increment 2A, a Notice on Authority begin in August 2005. accommodate Increment 1B included: to Collect Biometric Data from A new DHS system of records, the 1. Development of the three Additional Travelers will be published Automated Identification Management alternative Exit devices to capture on June 30, 2005. DHS intends to solicit System (AIDMS), has been created to traveler biometric and biographic comments on a proposal to further link the unique and individually- information and forward it to the expand the population of ‘‘covered assigned RFID tag number to existing Automatic Biometric Identification individuals’’ to include all aliens under biographic information received from System (IDENT). US-VISIT, as required by statute. TECS and the entry and exit event 2. Modification to IDENT to accept Increment 2A development and information for each covered individual and store the Exit Tracking Request and implementation will be analyzed in a crossing the land border. AIDMS is a to search the US-VISIT biometric watch future update to this PIA. new system and is separate from TECS, list and verify the traveler’s identity Increment 2B—50 Busiest Land Ports of ADIS, IDENT and the other databases against an arrival record. Entry used in the US-VISIT process. AIDMS is 3. Modification to IDENT to forward undergoing the DHS certification and the Record of Departure to the Arrival The deployment of Increment 2B was completed by December 31, 2004. It accreditation process, which includes and Departure Information System having an approved detailed security (ADIS). provided the US-VISIT capability to collect information on entries at the 50 plan and a comprehensive technical 4. Modification to ADIS to accept the assessment of the risks of operating the Record of Departure from IDENT for use busiest land border POEs. In addition, it reduced the time required for the system. A System of Records Notice in confirmation on subsequent entry or (SORN) will be published at or about exit by the traveler. completion of I–94, Arrival/Departure Forms. Prior to Increment 2B, I–94 the time of publication of this PIA. Increment 2A—Biometric Verification of forms were hand written by the Changes to systems to accommodate VWP Passports and U.S.-Issued Travel travelers. Completion of the forms is Increment 2C include: Documents now done by CBP officers who enter the 1. Development of the AIDMS to Increment 2A provides the capability data electronically and then print the capture and store traveler border to biometrically compare and form. The changes made to these crossing events associated with RFID tag authenticate valid documents at all systems for Increment 2B included numbers and biographic information POEs. Under the requirements of the modification of secondary workstations maintained in TECS. 2. Development of the antenna and 2 This is referred to as the Validator Alternative 3 Congress extended the original implementation reader capability to capture RFID tag in US-VISIT documents. date of October 26, 2004 by one year. numbers and to transmit the unique tag
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number and associated event individually-assigned RFID tag number authority for all individual complaints information to AIDMS. for each traveler. and concerns about the program, 3. Modification of POE workstations Why Is the Information Being Collected? exercises comprehensive oversight of all to accept reads from RFID tag antennae phases of the program to ensure that and to process information from the Numerous statutes require an entry/ privacy concerns are respected RFID tag and associated information exit program to be put in place to verify throughout implementation. from AIDMS and from TECS. the identity of covered individuals who What Are the Intended Uses of the 4. Modification of TECS to enable enter or leave the United States. In keeping with expressed congressional direct interaction with AIDMS and pre- Information? intent, and in furtherance of the mission position information so that it can be of DHS, information is being collected DHS uses the information collected rapidly accessed on the POE about covered individuals to enhance and maintained by US–VISIT to carry workstations by CBP officers. national security while facilitating out its national security, law 5. Modification of ADIS to accept the legitimate travel and trade. In enforcement, and immigration control RFID tag number from AIDMS via TECS. accordance with this purpose, US– functions. Through the enhancement Increment 3—Remaining Land Ports of VISIT collects, maintains, and shares and integration of its database systems, Entry information in order to determine DHS is able to ensure the entry of whether the individual: legitimate travelers, identify, Increment 3 will extend the basic US– • Should be prohibited from entering investigate, apprehend and/or remove VISIT functionality introduced by the U.S.; individuals unlawfully entering or Increment 2B to the remaining land • Can receive, extend, change, or present in the United States beyond the border POEs. The changes to these adjust immigration status; lawful limitations of their visit, and systems for Increment 2B included • Has overstayed or otherwise prevent the entry of inadmissible modification of secondary workstations violated the terms of his or her individuals. US–VISIT will also help at land POEs to capture biographic and admission; biometric information. In order to • Should be apprehended or detained DHS prevent covered individuals from complete this rollout by December 31, for law enforcement action; or obtaining immigration benefits to which 2005, implementation at some POEs • Needs special protection/attention they are not entitled. DHS may share will begin as early as July 2005. No (e.g., Refugees). information obtained through US–VISIT with other federal, state, local, tribal, additional changes to the architecture What Opportunities Do Individuals are anticipated for this Increment. and foreign law enforcement partners to Have To Consent or Decline To Provide accomplish common goals through data 3. System Overview Information? sharing agreements that address privacy What Information Is To Be Collected? The admission into the United States and security concerns as well as of any covered individual is contingent operational requirements for sharing. All aliens are subject to the principal upon submission of the information data collection requirements and required by US–VISIT, including 4. System Architecture processes (including biometric biometric identifiers. A covered US–VISIT is a system of systems. US– collection, biographic collection, and individual who declines to provide VISIT accomplishes its goals primarily watch list checks) of the US–VISIT required biometrics is inadmissible.5 An through the integration and Program. Because US–VISIT has been individual who declines to provide modification of the capabilities of three implemented in increments, currently required biometrics may withdraw his pre-existing DHS systems and, with covered individuals consist of or her application for admission, or be Increment 2C, through the creation of a nonimmigrant visa holders and VWP subject to removal proceedings. The applicants for admission traveling biometric requirement may be modified new system, AIDMS. The pre-existing through all air, sea, and land border or waived at the discretion of the CBP DHS systems are: POEs where US–VISIT has been secondary officer for those applicants 1. The Arrival and Departure implemented.4 US–VISIT verifies the with physical limitations or mental Information System (ADIS).6 identity of these travelers and the incapacity that prevent the collection of 2. The Passenger Processing authenticity of their U.S.-issued travel biometrics. Component of the TECS.7 documents. The US–VISIT Program has its own The information to be collected from privacy officer to ensure that the privacy 6 System of Records Notice for Arrival and covered individuals includes complete of all covered individuals is respected Departure Information System (ADIS), DHS/ICE– name, date of birth, gender, country of and to respond to individual concerns CBP–001, 68 FR 69412–69414 (December 12, 2003). citizenship, passport number and raised about the collection of the 7 System of Records Notice for Treasury country of issuance, country of required information. Extensive Enforcement Communications System (TECS), TREASURY/CS.244, 63 FR 60809 (December 17, residence, travel document type (e.g., stakeholder outreach and information 1998). As indicated in the US–VISIT Increment 1 visa), number, date and country of dissemination activities have taken Functional Requirements Document (FRD), the issuance, complete U.S. destination place and will be continued as the Passenger Processing Component of TECS consists address, arrival and departure program is expanded. These activities of two systems, where ‘‘system’’ is used in the sense of the E-Government Act, 44 U.S.C. sec. 3502 (i.e., information, a digital photograph, are reviewed and adjusted on an ‘‘a discrete set of information resources organized digital fingerscans, and for travelers ongoing basis to ensure maximum for the collection, processing, maintenance, use, using land POEs after implementation of effectiveness. Further, the DHS Chief sharing, dissemination, or disposition of Increment 2C, a unique and Privacy Officer, who serves as the information.’’). The two systems, and the process relevant to US–VISIT that they support, are (1) administrative appellate review Interagency Border Inspection System (IBIS) 4 DHS intends to fully implement its statutory (including the Nonimmigrant visa (NIV) database), authority to cover all aliens, but it intends to afford 5 An individual may apply for a discretionary supporting the lookout process; and (2) Advance public notice and comment before determining the waiver of inadmissibility under Section 212(d)(3) of Passenger Information System (APIS), supporting most appropriate way to implement the relevant the Immigration and Nationality Act, 8 U.S.C. the entry/exit process by receiving airline passenger statutes. 1182(d)(3). manifest information.
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3. The Automated Biometric System (SEVIS) and the Computer US–VISIT interfaces with other, non- Identification System (IDENT).8 Linked Application Information DHS systems for relevant purposes, US–VISIT interfaces with other DHS Management System (CLAIMS 3). Some including watch list updates and checks. In particular, US–VISIT receives systems for relevant purposes, including of these systems, such as IDENT and the new AIDMS, are under the direct biographic and biometric information status updates and benefit adjudication. control of US–VISIT, while some from the Department of State’s (DOS) In particular, US–VISIT exchanges systems are under the control of other Consular Affairs Consolidated Database biographic information with the Student organizational entities within DHS, (CCD) as part of the visa application and Exchange Visitor Information including TECS and ADIS under CBP, process, and returns fingerscan SEVIS under Immigration and Customs information and watchlist changes. 8 System of Records Notice for Enforcement Operational Immigration Records (ENFORCE/ Enforcement (ICE), and CLAIMS 3 Figure 1 presents the data flows in the IDENT), DHS/ICE–CBP–CIS–001, 68 FR 69414– under United States Citizenship and context of the high-level system 69417 (December 12, 2003). Immigration Services (USCIS). architecture.
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5. Administrative Controls on Access to that will adhere to the DHS security mitigation measures that address those the Data requirements for new systems. risks. One aspect of the DHS comprehensive General privacy risks resulting from With Whom Will the Information Be program to provide information security the collection, use and disclosure, Shared? involves the establishment of strict rules processing, and retention and Employees of DHS components, of behavior for each major application, destruction of personal information are including CBP, ICE, and USCIS, and of including US–VISIT. The security mitigated by a privacy policy (available DOS access the personal information policy also requires that all users be at http://www.dhs.gov/us-visit) collected and maintained by US–VISIT adequately trained regarding the supported and enforced by a for immigration and border management security of their systems. The program comprehensive privacy program. This purposes. also requires a periodic assessment of program includes a separate Privacy The information may also be shared physical, technical, and administrative Officer for US–VISIT, mandatory with other agencies at the federal, state, controls to enhance accountability and privacy training for system operators, local, foreign, or tribal level, who are data integrity. All system users must appropriate safeguards for data handling lawfully engaged in collecting law participate in a security training in accordance with existing procedures enforcement information (whether civil program and contractors and and guidelines, and ongoing or criminal) and national security consultants must also sign a non- consultation with stakeholders and intelligence information and/or who are disclosure agreement. External representative organizations. investigating, prosecuting, enforcing, or connections must be documented and Additionally, US–VISIT conducts implementing civil and/or criminal approved with both parties signature in periodic strategic reviews to ensure that laws, related rules, regulations, or an interconnection security agreement the data collected are limited to that orders. The Privacy Act SORNs for the (ISA), which outlines controls in place which is necessary for US–VISIT systems on which US–VISIT draws to protect the confidentiality, integrity, purposes. provide notice as to the conditions of and availability of information being US–VISIT has implemented a disclosure and routine uses for the shared or processed. In addition, the comprehensive redress process to information collected by US–VISIT. Any comprehensive information technology facilitate the amendment or correction disclosure by DHS must be compatible security program already in effect for by individuals of data that are not with the purpose for which the each of the component systems on accurate, relevant, timely, or complete. information was collected. Additionally, which US–VISIT draws will be applied The full US–VISIT redress policy, any non-DHS agency granted direct to the program, adding an additional including request form, is available at access to this information must sign a layer of security protection. http://www.dhs.gov/us-visit. The US– data sharing agreement that will govern protection and usage of the information. 6. Information Life Cycle and Privacy VISIT Privacy Officer has set a goal of US–VISIT currently has data sharing Impacts processing redress requests within 20 business days. agreements in place with federal, state Overview and local agencies for each system, The following analysis is structured Increment 1B ‘‘Exit at Air and Sea Ports which are consistent with the US–VISIT according to the information life cycle. of Entry privacy policy and which require each For each life-cycle stage—collection, use Collection agency to coordinate with DHS before and disclosure, processing, and taking any further action based on the The use of mobile Exit devices retention and destruction—key issues presents the low potential security risk shared data. are assessed, privacy risks are that individuals might be persuaded by identified, and mitigation measures are How Will the Information Be Secured? someone masquerading as an authorized discussed. Risks are related to fair The US–VISIT Program secures official to allow their personal information principles—notice/ information and the systems on which information and fingerprints to be awareness, choice/consent, access/ that information resides by complying captured by a counterfeit device. This participation, integrity/security, and with the requirements of DHS risk is mitigated by workstation enforcement/redress—that form the information technology security policy, attendant (WSA) identification devices, basis of many statutes and codes and particularly the DHS Information appropriate training of airport staff, and which represent internationally Technology (IT) Security Program awareness measures aimed at covered accepted norms for the handling of Handbook for Sensitive Systems individuals (for example, signage that personal information.9 (Attachment A to DHS Management US–VISIT has its own set of privacy principles, which are describes the precise circumstances Directive 4300.1). This handbook based on the more well-known fair under which covered individuals would establishes a comprehensive program to information principles. Table E–1 in be expected to undergo data collection). provide complete information security, Appendix E provides an overview of the The physical size of the kiosks, along including directives on roles and kinds of privacy risks associated with with the physical security at air and sea responsibilities, management policies, US–VISIT and the general types of ports, which only allows ticketed operational policies, technical controls, passengers into the boarding area, and application rules, which are applied 9 Notice/awareness involves being informed of an makes it unlikely that someone could to component systems, communications entity’s information handling practices and requires successfully collect personal data using between component systems, and at all limitation of collection, use, disclosure, and a counterfeit device. interfaces between component systems retention to that which is consistent with stated purposes. Choice/consent requires that, to the Use and Disclosure and external systems. In addition, ADIS extent possible, options be provided regarding the (10/2003), TECS (2/2003), and IDENT collection and handling of personal information. US–VISIT conducted a privacy risk (5/2004) have been individually Access/participation involves the ability to view assessment of the privacy risks specific certified and accredited as satisfying and/or contest the data held about oneself. to the Exit pilot environment and the Integrity/security requires that steps be taken to applicable DHS security requirements. ensure that personal information is both accurate three alternative solutions that the Exit The new system, AIDMS, has a and protected. Enforcement/redress involves pilot was designed to evaluate. The risks certification plan under development compliance mechanisms. associated with issuing receipts that
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include biographic and biometric data make unauthorized decryption received from TECS and the entry and have been recognized and addressed by extremely difficult. US–VISIT will use exit event information for each covered minimizing the amount of human wired networks for the kiosks wherever individual crossing the land border. The readable information, minimizing practicable to lower the risk even RFID tag number will not contain or be biometric information, and encrypting further. derived from any personal information. machine readable biographic and Otherwise, the continued expansion of Retention and Destruction biometric information. US–VISIT capabilities to land border The Exit devices generate a receipt for Fingerscans and biographic POEs provides for the same data the covered individual to confirm that information are also temporarily stored collection as currently implemented at the exit process was successfully on the Exit devices. Under normal air, sea, and land POEs, with identical completed and, when a combination of operating conditions, this information is risks and mitigations, as discussed in kiosk and mobile device is used, to securely transmitted to a server upon previously published PIAs for US– verify that the individual boarding at completion of each transaction, at VISIT. the gate is the same individual who which time the information is deleted so completed the exit process at the kiosk. as to be unrecoverable. However, if an Use and Disclosure To enable this verification, the receipt Exit device encounters communication AIDMS is undergoing the DHS printed by the kiosk includes biographic problems, it will retain the information certification and accreditation process, information read from the machine- until it can be transmitted. To mitigate which includes having an approved readable zone (MRZ) of the individual’s the security risk inherent in this detailed security plan and a travel document and biometric data in situation, all personal information comprehensive technical assessment of the form of a low-resolution photograph stored on Exit devices is encrypted in a the risks of operating the system. The and the individual’s fingerscan. This FIPS-compliant manner using site- certification and accreditation process information is stored in an encrypted specific keys that change daily. Mobile will be completed before the proof of bar code on the receipt. Receipts printed Exit devices present additional security concept becomes operational. AIDMS is by mobile devices (when used alone) do risk by virtue of their potential for being a new system and is separate from not include this bar code. In all cases, lost or stolen. This risk is mitigated by TECS, ADIS, IDENT and the other receipts include a human-readable area authentication of device users and systems used by US–VISIT. A SORN with minimal personal information appropriate physical and procedural will be published at or about the time (name, date and time, departure port controls, in addition to the measures of publication of this PIA. and terminal) along with a unique described above. While RFID tag numbers are not receipt number. The personal The policies of the pre-existing encrypted and could be subject to information printed in the human- individual component systems, as stated interception, the RFID tag contains no readable area of the receipts is no in the SORNs, govern the retention of personal information and can only be greater than the information printed on personal information collected by US– used to obtain personal information other travel documents, including VISIT. Because the component systems when combined with other data within boarding passes. Therefore, the were created at different times for varied AIDMS. AIDMS is a secure database that existence of the human readable areas purposes, there are inconsistencies can only be accessed by authorized represents a minimal security risk if a across the SORNs with respect to data personnel signed into authorized receipt is lost or stolen. The bar codes retention periods. There is also some are encrypted in accordance with workstations that communicate with the duplication in the types of data AIDMS via a secure network. federal information processing collected by each system. These standards (FIPS) 140–2 using site- inconsistencies and duplication result Processing specific keys that are changed daily. in some heightened degree of integrity/ Moreover, the fingerscan templates on The unencrypted information on the security, access, and/or redress risk as I–94 RFID tags is even more minimal the receipt are one-way mathematical personal information could be deleted transformations of the actual fingerscans than that on the exit process receipts. In from one or more component systems this case, the only information that, even if obtainable, would be while being retained in others. In order extremely difficult to use for any contained and read is a unique to most appropriately and effectively identification number, which is linked purpose. These mitigations effectively mitigate these risks, a comprehensive address the security risks of the bar to the individual’s biographic assessment of retention requirements code. information retrieved from TECS. has been initiated. When complete, this AIDMS records the entry and exit data Processing assessment will be used to establish a automatically captured at U.S. land Data flows between US–VISIT uniform retention policy for personal border POEs for a particular RFID tag component systems and/or applications information collected by US–VISIT. rather than for a specific individual. It are encrypted using FIPS-compliant Increment 2C—RFID at Land Ports of is when this information on the RFID mechanisms. This includes the wireless Entry tag entries and exits along with the transmissions from some of the Exit biographic information from TECS is devices, in which the data itself is Collection sent to ADIS that the individual’s encrypted prior to transmission (rather Entry and exit data collected from the complete travel history is created. than relying on encryption of the Form I–94 at land border POEs are Over a covered individual’s lifetime connection). As with the receipts, site- transferred to a non-US–VISIT an individual may be issued more than specific keys are used and changed component of TECS. However, the one RFID-enabled I–94, each with a daily. This greatly mitigates the security unique ID number of the RFID tag unique ID number. Only in rare risks associated with wireless embedded in the I–94 forms will be circumstances where travelers request a transmission. Although it is possible retained in the AIDMS. This system has supplemental I–94 under a different that the encrypted transmissions could been created to link the unique and class of admission would more than one be intercepted, the data would remain individually-assigned RFID tag number RFID-enabled I–94 be valid at any given inaccessible and key variation would to existing biographic information time.
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Two potential privacy risks have been • Working with NIST to implement Departure documents and use a unique identified and are addressed here. If the biometric standard for identifying and ID number to associate the I–94 holders format or some other characteristic of verifying foreign nationals; with entry and exit data at U.S. land the RFID tag number renders it • Use of biometric identifiers in travel border POEs and link that information recognizable as a US–VISIT RFID tag, and entry documents issued to foreign with biographic information for CBP this would allow an unauthorized nationals, and the ability to read such officers to review. US–VISIT conducted reader to surreptitiously determine an documents at U.S. POEs; an operational alternatives assessment individual’s status (i.e., within US– • Integration of arrival/departure data and determined that passive RFID VISIT covered population). However, it on covered individuals, including data technology best satisfied the following is contemplated that the unencrypted from commercial carrier passenger defined criteria: RFID tag number will not be structured manifests; and • • Protect personal privacy by in such a way that it can be used to Integration with other law controlling the use of personal identify the individual as a non- enforcement and security systems. information outside of DHS systems and immigrant. There is also a low risk that Increment 1—Exit at Air and Sea Ports minimizing the surreptitious tracking of the RFID tag could be used to conduct of Entry travelers outside the port of entry. surreptitious locational surveillance of • Three alternatives were evaluated for The chosen technology and an individual; i.e., to use the presence recording exit information at air and sea business process should require no of the tag to follow an individual as he ports: kiosks, mobile devices, and a direct action on the part of the traveler, or she moves about in the U.S. However, combination of the two devices that driven by the need not to impede ensuring that RFID tag numbers do not uses a specially-configured mobile traveler movement across the border exhibit properties that can be readily device to validate the receipt from the while facilitating legitimate travel and attributed to US–VISIT and using a kiosk device. In some cases, constraints trade. limited radio frequency range effectively • on physical space rendered kiosks Manage traveler border crossings mitigates this risk. The design process is impractical. In other cases, boarding from a distance, driven by the need to also taking into account methods of area layouts were not conducive to the detect traveler departures while reducing eavesdropping and skimming use of mobile devices. The combination minimally impacting the unconstrained possibilities. POE setting. alternative was preferred for situations • Retention and Destruction characterized by heightened security No increase in wait times as a result of implementation. concerns. From a privacy perspective, • The Increment has the same retention the kiosk—particularly when using No degradation in level of service and destruction issues as discussed with for exit lanes. wired networks—introduces the fewest • Increment 1B. In order to most potential risks, followed by the mobile No significant degradation in traffic appropriately and effectively mitigate device (due to its portability), and patterns. • the associated privacy risks, a finally, the combination alternative. Chosen technology should be comprehensive assessment of retention Therefore, appropriate privacy risk currently commercially available and requirements has been initiated. When mitigations are being implemented in not require significant time or levels of complete, this assessment will be used order to successfully utilize all three research and development for to establish a uniform retention policy alternatives. Examples of privacy-risk deployment. • for personal information collected by mitigation efforts include strong access Chosen technology should support US–VISIT. controls to Exit devices, limited ease of use, be compact in size, and not 7. Design Choices (Including Whether a retention of data on the devices, privacy require any maintenance by the part of New System of Records Is Being training for Exit workstation attendants, the traveler. Created) and encryption. These efforts added A solution incorporating passive RFID greater costs and complexity, but technology would not increase wait US–VISIT was originally intended by enabled operational needs to be satisfied times, degrade the level of service at exit Congress to address concerns with visa in a privacy-protective manner. or degrade traffic patterns since the overstays, the number of illegal foreign passive RFID tag could be read nationals in the country, and overall Increment 2C—RFID at Land Ports of automatically with minimal need for border security issues. After September Entry traveler participation. Passive RFID, in 11, 2001, terrorism-related concerns The requirement to facilitate land this application, will also protect expanded the scope to include all aliens border traffic while capturing personal privacy by reading only a and added urgency to the development information about entries and exits has unique number from an embedded chip and deployment of this program. Many led to DHS developing a proof of in a new Form I–94 that will be issued of the characteristics of US–VISIT were concept for using RFID technology. In to travelers. The chip does not contain pre-determined because of legislation 10 addition, US–VISIT has developed a any information about the individual enacted both before and after the events new component system of records, the traveler—it contains only a unique code of September 11, 2001. These Automated Identification Management number linked to the specific Form I– characteristics include, among others: System (AIDMS), to enable the use of 94 for that specific traveler and the RFID tags for automatically recording entry/exit data recorded in DHS 10 The legislation includes: the Illegal entry and exit information at land systems. Passive RFID also minimizes Immigration Reform and Immigrant Responsibility border POEs. privacy impacts and significantly Act of 1996 (IIRIRA), Public Law 104–208; The Immigration and Naturalization Service Data Increment 2C will provide the reduces the chance of travelers being Management Improvement Act of 2000 (DMIA), capability to automatically, passively, surreptitiously tracked in that it does Public Law 106–215; The Visa Waiver Permanent and remotely record the entry and exit not constantly transmit information or Program Act of 2000 (VWPPA), Public Law 106– of RFID tags issued to covered beacon a signal. Passive RFID does not 396; The USA PATRIOT Act, Public Law 107–56; and The Enhanced Border Security and Visa Entry individuals. For purposes of the proof of require batteries or activation for use Reform Act (‘‘Border Security Act’’), Public Law concept, the RFID tags will be and does not cause undue burden or 107–173. embedded in the Forms I–94, Arrival/ inconvenience on the traveler.
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Other alternatives considered to track and assess privacy issues Information Technology Program consisted of Global Positioning System throughout the life of the US–VISIT Management Support, Draft, August 28, (GPS) devices and various forms of Program and will address those issues 2003. RFID. GPS and active forms of RFID, by adjusting existing and implementing Consolidated Interface Control Document, US–VISIT, Increment 1, Draft, August 28, which constantly transmit signals, were new privacy risk mitigations as 2003. eliminated on privacy grounds due to necessary. DHS/ICE Baseline Security Requirements for their ability to facilitate locational Appendix A: List of References Automated Information Systems, July 18, surveillance. This resulted in the 2003. decision to use the passive RFID option, 1 Statutory Authorities DHS Sensitive Systems Policy Directive 4300A, March 31, 2005. which transmits information only when 1.1 Statutory Authorities for Protection of DoS—Department of Homeland Security Visa activated by a reader as the preferred Information and of Information Systems alternative. While passive RFID is not Applicant—US–VISIT/IDENT Lookup 5 U.S.C. 552, Freedom of Information Act without privacy risks, it presents a Interface Control Document, Version 1.0, (FOIA) of 1966, as Amended by Public Law Department of State, October 31, 2003. lower level of risk that can be No. 104–231, 110 Stat. 3048 ePassport Reader Request for Proposal, substantially mitigated. Moreover, 5 U.S.C. 552a, Privacy Act of 1974, as March 16, 2005. capturing RFID tag identification Amended ICE Security Requirements, printed October numbers that do not contain any Public Law 100–503, Computer Matching 30, 2003. personal information presents fewer and Privacy Act of 1988 Increment 2C Operational Alternatives privacy (including security) risks than Public Law 107–347, E-Government Act of Assessment (Draft), US–VISIT, January 31, collecting biometrics in the relatively 2002, Section 208, Privacy Provisions, and 2005. Title III, Information Security (Federal open primary processing environment Increment 2C Preliminary Design Review, US Information Systems Management Act VISIT, March 28, 2005. of a land border POE. (FISMA)) Increment 2C Proof of Concept—Phase 1 A proof of concept is being conducted 1.2 Statutory Authorities for US–VISIT Functional Requirements Document, US for the Increment 2C capability and will VISIT, March 11, 2005. begin in August 2005. If the concept is Public Law 104–208, Illegal Immigration Increment 2C RFID Feasibility Study—Final proved to be successful, deployment to Reform and Immigrant Responsibility Act Report (Draft), US–VISIT, January 12, 2005. the 50 busiest land ports must be of 1996 Interagency Border Inspection System (IBIS) completed by December 31, 2007. Public Law 106–215, The Immigration and Security Features User Guide, Official Use Naturalization Service Data Management Only, October 2, 2003. 8. Summary and Conclusions Improvement Act of 2000 (DMIA) IT Security Program Handbook, Version 2.1, Public Law 106–396, The Visa Waiver This updated PIA focuses on changes Sensitive Systems, Department of Permanent Program Act of 2000 (VWPPA) Homeland Security, 4300A, July 26, 2004. to US–VISIT resulting principally from Public Law 107–56, The Uniting and Increment 1B implementation of Privacy Risk Assessment for US VISIT EXIT Strengthening America by Providing (Draft), Version 3.0, March 23, 2005. technology (Exit devices) and processes Appropriate Tools Required to Intercept Security Evaluation Report (SER) for the for recording the exit of covered and Obstruct Terrorism Act Automated Biometric Identification System individuals from air and sea ports; and Public Law 107–173, Enhanced Border (IDENT), SMI–0039–SID–214–RG–40391, the Increment 2C proof of concept for Security and Visa Entry Reform Act of March 10, 2003. 2002 (‘‘Border Security Act’’) technology and processes for Security Evaluation Report (SER) for the Visa automatically recording the entry and 1.3 Federal Register Notices and Rules Waiver Permanent Program Act Support exit of covered individuals at U.S. land Department of Homeland Security; System Arrival Departure Information border Ports of Entry (POEs) using Radio Implementation of the United States System (VWPPASS/ADIS), SMI–0039–SI– Frequency Identification (RFID)-enabled Visitor and Immigrant Status Indicator 214–DTR–50446, October 8, 2003. System of Records Notice for Arrival and I–94. Technology Program; Biometric Requirements, 69 FR 468 (January 5, 2004). Departure Information System (ADIS), As a result of this analysis, it is DHS/ICE–CBP–001, 68 FR 69412 concluded that: Department of Homeland Security; Border • and Transportation Security; Notice to (December 12, 2003). While most of the initial high-level System of Records Notice for Enforcement design choices for US–VISIT were Aliens Included in the United States Visitor and Immigrant Status Indicator Operational Immigration Records statutorily pre-determined, more recent Technology System, 69 FR 46556 (August (ENFORCE/IDENT), DHS/ICE–CBP–CIS– design choices have been made so that 3, 2004). 001, 68 FR 69414 (December 12, 2003). privacy risks are either avoided or Department of Homeland Security; United System of Records Notice for Nonimmigrant mitigated while meeting operational States Visitor and Immigrant Status Information System (NIIS), JUSTICE/INS– requirements; Indicator Technology Program; Authority 036, 68 FR 5048 (January 31, 2003). • US–VISIT creates a pool of to Collect Biometric Data From Additional System of Records Notice for Treasury individuals whose personal information Travelers and Expansion to the 50 Most Enforcement Communications System Highly Trafficked Land Border Ports of (TECS), TREASURY/CS.244, 63 FR 69865 is at risk (covered individuals), which is (December 17, 1998). effectively growing as a result of the Entry, 69 FR 53318 (August 31, 2004). Department of Homeland Security; United Treasury Enforcement Communications expanded functionality, data sharing, States Visitor and Immigrant Status System (TECS) Functional Security and implementation of US–VISIT; but Indicator Technology Program; Authority Requirements Document, United States • US–VISIT mitigates the specific to Collect Biometric Data From Additional Customs Service, February 20, 2003. privacy risks associated with its new Travelers and Expansion to the 50 Most The United States Visitor and Immigrant functionality and increased data sharing Highly Trafficked Land Border Ports of Status Indicator Technology (US–VISIT) through numerous mitigation efforts, Entry, 69 FR 64964 (November 9, 2004). Program Increment 1 Concept of including access controls, education Operations: Process Flows and Operational 2US–VISIT and Component Systems Scenarios, Draft, July 15, 2003. and training, encryption, minimizing Documentation US–VISIT Information Brochure, undated. collection and use of personal Arrival Departure Information System Data US–VISIT Privacy Policy, November, 2003. information; and • Elements Document (Sensitive but US–VISIT Program Overview (DHS briefing), US–VISIT through its Privacy Unclassified) (Draft), November 10, 2003. undated. Officer and in collaboration with the Consolidated Functional Requirements US–VISIT Q&As: Background Information, DHS Chief Privacy Officer will continue Document, US–VISIT, Increment 1, Draft REV, October 17, 2003.
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US–VISIT Redress Policy, April 15, 2004. IAFIS Integrated Automated Fingerscan Appendix C: Data Flows Detailed Identification System 3 Related Guidance and Supporting IBIS Interagency Border Inspection System Pursuant to section 202 of the Enhanced Documentation ICD Interface Control Document Border Security and Visa Entry Reform Act Federal Trade Commission, Privacy Online: ICE Immigration and Customs Enforcement of 2002, US–VISIT information will be A Report to Congress, June, 1998. ID Identifier integrated with other DHS databases and data OMB Guidance for Implementing the Privacy IDENT Automated Biometric Identification systems, and US–VISIT information systems Provisions of the E-Government Act of System will be interfaced with data systems of other 2002, Memorandum M–03–22, September IFR Interim Final Rule agencies US–VISIT exchanges data on a 26, 2003. IIRIRA Illegal Immigration Reform and routine basis with the Student and Exchange Risk Management Guide for Information Immigrant Responsibility Act Visitor Information System (SEVIS), the Technology Systems, NIST Special IT Information Technology Computer Linked Applications Information Publication 800–30, January 2002. LEO ED Law Enforcement Officer Exit Management System (CLAIMS 3), and the Roles for the National Institute of Standards Device State Department’s Consular Affairs and Technology (NIST) in Accelerating the LPR Lawful Permanent Resident Consolidated Database (CCD). However, US– Development of Critical Biometric MOU Memorandum of Understanding VISIT information is logically separated from Consensus Standards for U.S. Homeland NATO North Atlantic Treaty Organization other data and users on the component Security and the Prevention of ID Theft, NIST National Institute of Standards and NIST, March 11, 2003. Technology systems, which are not dedicated US–VISIT systems. Appendix B: List of Acronyms NIV Nonimmigrant Visa OMB Office of Management and Budget Tables C–1 through C–4 detail the flows of AIDMS Automated Identification PA Privacy Act personal information in US–VISIT. In Management System PIA Privacy Impact Assessment general, internally generated administrative ADIS Arrival and Departure Information PICS Password Issuance Control System information (other than identifiers) that is System POD Port of Departure associated with individuals is not included. APIS Advance Passenger Information POE Port of Entry However, information with special relevance System Pub. L. Public Law for the treatment of individuals (e.g., Class of BLSR Baseline Security Requirements RFID Radio Frequency Identification Admission) is included. Table C–1 defines CBP Customs and Border Protection SER Security Evaluation Report sets of data elements that are handled as CIS Citizenship and Immigration Services SEVIS Student and Exchange Visitor groups. To reduce complexity, the rest of the CLAIMS 3 Computer Linked Applications Information System data flow tables refer, when appropriate, to Information Management System SM/I Systems Management and Integration these groups rather than to individual data COA Class of Admission SOR System of Records elements. Table C–2 details the data flowing CCD Consular Affairs Consolidated SORN System of Records Notice into and out of US–VISIT breaking it down Database SSN Social Security Number by component system/application. Table C– CSRC Computer Security Resource Center STARS Service Technology Alliance 3 indicates what personal information CVT Candidate Verification Tool Resources individual US–VISIT processes are using and DHS Department of Homeland Security TBD To Be Determined which systems/applications are involved in DMIA Data Management Improvement Act TECS Treasury Enforcement those processes. Note that because the DoB Date of Birth Communications System contexts of primary and secondary inspection DocKey Document Key U.S.C. United States Code are different for air/sea POEs and land border DOS Department of State USCIS United States Citizenship and ED Exit Device Immigration Services POEs, Table C–3 refers instead to core and ENFORCE Enforcement Operational US–VISIT United States Visitor Immigrant extended inspection. Table C–4 charts the Immigration Records Status Indicator Technology flows of personal information between US– FBI Federal Bureau of Investigation VWP Visa Waiver Program VISIT systems/applications and directly FIN Fingerscan Identification Number VWPPA Visa Waiver Permanent Program between US–VISIT systems/applications and FIPS Federal Information Processing Act selected other systems. A comprehensive Standard (140–2) VWPPASS Visa Waiver Permanent Program assessment of external interfaces is FOIA Freedom of Information Act Act Support System underway. These tables facilitate analysis of FRD Functional Requirements Document WAN Wide Area Network the personal data requirements of US–VISIT GPS Global Positioning System W/S Workstation and identification of potentially unnecessary I&A Identification and Authentication WSA Workstation Attendant data collection or movement.
TABLE C–1.—DATA AGGREGATES
Aggregate name Data elements
DocKey ...... • Complete name. • Date of birth. • Citizenship. • Gender. • Travel document. Æ Type. Æ Number. Æ Date of issuance. Æ Country of issuance. • Fingerscan Identification Number (FIN). • Biographic and biometric watch list hit/match.1
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TABLE C–1.—DATA AGGREGATES—Continued
Aggregate name Data elements
RFID Tag Traveler Profile ...... • RFID Tag ID number. • US–VISIT ID number. • First name Middle name. • Last name. • Date of birth. • Travel document type. • Travel document ID number. • Travel document country of issuance. RFID Tag Read ...... • RFID Tag Location. • Timestamp. • RFID Tag status. RFID Tag Read Event ...... • RFID Tag ID number. • Event ID number. • Event type. • Timestamp. • Event location. • Transaction ID. • Equipment read ID numbers. • Crossing direction. Biometric Data ...... • Fingerscans. • Photograph. Admission data ...... • Class of admission. • Admit until date. Visa data ...... • First name. • Last name. • Visa. Æ Class. Æ Number. Æ Entry (multiple or one time entry). Æ Issuance date. Æ Expiration date. • Passport type. • Passport number. • Gender. • Date of birth. • Nationality. Travel document data ...... Dependent on document type but may include • Complete name. • Document. Æ Number. Æ Date of issuance. • Country of issuance. Passenger manifest ...... • Complete name. • Date of birth. • Gender. • Document. Æ Country of issuance. Æ Type. Æ Number. Æ Expiration date. Æ Issue date. • Nationality. • Carrier code, number. • Vessel seaport. • Vessel name. • PNR Number. • Arrival country, airport. • Departure country, airport. • Arrival date & time/Departure date. • U.S. destination address. • Passenger status, status code. I–94 data ...... • Complete name. • Date of birth. • Citizenship. • Gender. • Passport number. • Country of residence. • Departure city. • Visa city of issuance. • Visa data of issuance. • U.S. destination address.
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TABLE C–1.—DATA AGGREGATES—Continued
Aggregate name Data elements
Visa application ...... • State Department case ID. • Applicant ID. • Complete name. • Gender. • Date of birth. • Country of birth. • Nationality. • Passport. Æ Number. Æ Type. Æ Date of issuance. Æ Country of issuance. Æ City of issuance. Æ Expiration date. • Visa type. • Visa class. Encounter data ...... • Encounter date and time. • Encounter applicant ID. • Travel document. Æ Type. Æ Country of issuance. Æ Number. • Date of birth. • Eye color. • Hair color. • Height. • Complete name. • Nationality. • Country of birth. • Race. • Gender. • Weight. • State Department ID. Audit log ...... • User ID. • Date and time. • System actions. 1 This information is not retained in the event of a false positive.
TABLE C–2.—US–VISIT DATA IN/OUT BY SYSTEM/APPLICATION
System/application Data In Data Out
TECS ...... Passenger manifest, admission data, photo (NIV), visa Visa data (NIV), passenger manifest, DocKey (including data (NIV), DocKey, RFID tag Traveler Profile, RFIG biographic watch list hit/match), photo (NIV), admis- tag Event Read, RFID tag Read. sion data, audit log, RFID tag Traveler Profile, RFID tag Event Read, RFID tag Read. IDENT ...... DocKey, photo, fingerscans, biographic data (watch list DocKey (including watch list hit/match), fingerscans, updates). audit log. ADIS ...... Passenger manifest, admission data, DocKey, complete DocKey, complete name, DoB, gender, nationality, visa name, DoB, gender, country of birth, nationality, U.S. type, visa number, passport number, country of destination address, visa class, visa number, pass- issuance, POE, entry date, POD, departure date, port number, country of issuance, SSN 1, alien num- SEVIS ID, SEVIS status, status change date, audit ber, I–94 number, POE, entry date, POD, departure log. date, admission data, (current/requested), case sta- tus, SEVIS status change date, SEVIS ID (current/re- quested), RFID tag Traveler Profile, RFID tag Event Read, RFID tag Read. Workstation ...... Travel document data, visa data, passenger manifest, Updated passenger manifest, DocKey, photo, DocKey, (including biograhic and biometric watch list fingerscans, admission data, I–94 data. hit/match), photo, fingerscans, admission data, I–94 data. Exit Device ...... Travel document data, biometric ...... Travel document data data, biometric data. Law Enforcement Officer Travel document data, biometric data ...... Travel document data, biometric data, verification of Exit Device. identity, watch list hits. Candidate Verification Tool Candidate & subject fingerscans, FINs, photos, Verification decision. (CVT). verification history. Secondary Inspection Tool .. Encounter data, FIN (previous encounter). AIDMS ...... RFID tag Traveler profile, RFID tag Read, RFID tag RFID tag Traveler Profile, RFID tag Read, RFID tag Read Event. Read Event. 1 Received from CLAIMS 3 for non-immigrants authorized to work.
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TABLE C–3.—US–VISIT PROCESSES AND DATA USAGE
Process Subprocess System/application Data usage
Pre-Arrival ...... Visa application check ...... TECS, IDENT ...... Visa application, photo, fingerscans, FIN. Manifest data check ...... TECS ...... Passenger manifest. Biographical watchlist check ...... TECS ...... Passenger manifest. Visa data check ...... TECS ...... Passenger manifest, visa data (NIV). Passenger list analysis ...... TECS ...... Results of passenger manifest, bio- graphical watch list, and visa data checks. Arrival (core) ...... Biometric verification ...... IDENT, Workstation ...... DocKey, fingerscans. Biometric watch list check ...... IDENT, Workstation ...... DocKey, fingerscans. Document—visa comparison ...... TECS, Workstation ...... Travel document data, visa data (NIV), photo (NIV). Manifest/Admission update ...... TECS, ADIS Workstation ...... Passenger, manifest, admission data. I–94 data entry ...... Workstation ...... I–94 data. Arrival (extended) .... Queries ...... IDENT, Secondary Inspection Tool ..... Encounter data, complete name, gen- der, DoB, doc type, number, and country of issuance, FIN (previous encounter). Admission update ...... TECS, ADIS, Workstation ...... DocKey, admission data. Biometric comparison and document TECS, Workstation ...... Visa data (NIV), photo (NIV). authentication. Departure ...... Biometric verification ...... IDENT, Exit Device ...... DocKey, fingerscans. Biometric watch list check ...... IDENT, Exist Device ...... DocKey, fingerscans. Arrival/Departure Arrival/Departure correlation ...... ADIS ...... Passenger manifest, admission data. reconciliation. Change of status ...... ADIS ...... Complete name, DoB, gender, nation- ality, visa type, visa number, pass- port number, country of issuance, POE, entry data, POD, departure data, admission data, SEVIS ID, SEVIS status, status change date. Watch list hit/match ...... IDENT, Candidate Verification Tool Candidate & Subject fingerscans, verification. (CVT). FINs, photos, verification history. Audit log capture ...... TECS, IDENT, ADIS, AIDMS ...... User, data and time, system actions.
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Draft communications between component employed to counter the various threats to systems, and (3) at interfaces between the US–VISIT Program. Compliance of ADIS, Appendix D: Security Safeguards for component systems and external (i.e., non- the Passenger Processing Component of Privacy Protection Detailed US–VISIT) systems. Physical safeguards are TECS, IDENT, AIDMS, and the POE generally provided by the facilities in which workstations with ID–4300A, the BLSR, and NIST Special Publication 800–30, Risk component systems are housed. Management Guide for Information Administrative and procedural safeguards are the DHS Physical Security Handbook is Technology Systems (January 2002) identifies provided by rules of behavior, as discussed assumed. As reflected in the table, the same classes of safeguards for information system in Section 4 above. safeguards can mitigate many different security. Technical safeguards are applied (1) The table below provides greater detail on threats. within component systems, (2) to the various physical and electronic measures
TABLE D–1.—PRIVACY THREATS AND MITIGATION METHODS DETAILED
Architectural Nature of threat placement Safeguard Mechanism
Intentional physical threats from unau- ADIS ...... Physical protection ...... The ADIS database and application is maintained at a thorized external entities. Department of Justice Data Center. Physical con- trols of that facility (e.g., guards, locks) apply and prevent entry by unauthorized entities. Intentional physical threats from unau- Passenger Proc- Physical protection ...... The Passenger Processing Component of TECS is thorized external entities. essing Compo- maintained on a mainframe by CBP. Physical con- nent of TECS. trols of the TECS facility (e.g., guards, locks) apply and prevent entry by unauthorized entities. Intentional physical threats from unau- IDENT ...... Physical protection ...... IDENT is maintained on an IBM cluster at a Depart- thorized external entities. ment of Justice Data Center. Physical controls of the facility (e.g., guards, locks) apply and prevent entry by unauthorized entities. Intentional physical threats from unau- POE Workstation, Physical protection ...... Physical controls may be specific to each POE. As- thorized external entities. Exit Device. sumed to be in compliance with BLSR and DHS Handbook 4300A. Intentional physical threats from unau- AIDMS ...... Physical protection ...... Physical controls may be specific to each POE. The thorized external entities. AIDMS central server will be in a US–VISIT data center. All locations are assumed to be in compli- ance with BLSR and DHS Handbook 4300A. Intentional and unintentional electronic US–VISIT-wide ... Technical protection: Iden- User identifier and password, managed by the Pass- threats from authorized (internal tification and authentica- word Issuance Control System (PICS) and the and external) entities. tion (I&A). LDAP System. Role-based access schema and au- diting capabilities also in place. Issue to be addressed during system integration: De- fine procedures for correlation among different user identifiers (issued by PICS, LDAP and the legacy mechanisms in ADIS, the Passenger Processing Component of TECS, IDENT, and the POE workstations) to facilitate tracking and investigation of activities by individual users.13 Intentional and unintentional electronic ADIS ...... Technical protection: I&A .. User identifier and password in concert with role threats from authorized (internal based access control and audit mechanisms to re- and external) entities. spond appropriately as required. Intentional and unintentional electronic IDENT ...... Technical protection: I&A .. User identifier and password in concert with role threats from authorized (internal based access control and audit mechanisms to re- and external) entities. spond appropriately as required. Intentional and unintentional electronic Passenger Proc- Technical protection: I&A .. User identifier and password in concert with role threats from authorized (internal essing Compo- based access control and audit mechanisms to re- and external) entities. nent of TECS. spond appropriately as required. Intentional and unintentional physical POE Workstation Technical protection: I&A .. User identifier and password in concert with role and electronic threat from unauthor- based access control and audit mechanisms to re- ized external entities. spond appropriately as required. US–VISIT, Incre- ment 2 client software runs on Windows 2000 workstations connected to the DHS network, with associated policies and procedures. Intentional and unintentional electronic Exit Device...... Technical protection: I&A .. User identifier and password in concert with role threats from authorized (internal based access control and audit mechanisms to re- and external) entities. spond appropriately as required. Intentional and unintentional electronic AIDMS ...... Technical protection: I&A .. Role based access control and audit mechanisms to threats from authorized (internal respond appropriately as required. and external) entities. Intentional and unintentional electronic ADIS ...... Technical protection: Au- Enforced by database management system, via ADIS threats from authorized (internal thorization and access application interface. and external) entities. control. Intentional and unintentional electronic IDENT ...... Technical protection: Au- Enforced by database management system, via threat from authorized (internal and thorization and access IDENT application interface. external) entities. control.
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TABLE D–1.—PRIVACY THREATS AND MITIGATION METHODS DETAILED—Continued
Architectural Nature of threat placement Safeguard Mechanism
Intentional and unintentional electronic Passenger Proc- Technical protection: Au- Enforced by database management system via IBIS threat from authorized (internal and essing Compo- thorization and access application interface. external) entities. nent of TECS. control. Intentional and unintentional physical POE Workstation Technical protection: Au- Access to US–VISIT client applications is authorized, and electronic threat from unauthor- thorization and access given that access to the workstation is granted. Ac- ized external entities. control. cess controls to US–VISIT data on ADIS, TECS, and IDENT are enforced by the other component systems. Intentional and unintentional physical Exit Device ...... Technical protection: Au- Access to US–VISIT client applications is authorized, and electronic threat from unauthor- thorization and access given that access to the Exit devices is granted. ized external entities. control. Intentional and unintentional physical AIDMS ...... Technical protection: Au- Enforced by database management system. and electronic threat from unauthor- thorization and access ized external entities. control. Intentional electronic and physical ADIS, IDENT, Technical protection: Ob- Assumed to be in compliance with BLSR and DHS threat from internal entities. Passenger ject reuse (identified Handbook 4300A. Processing under system protec- Component of tions). TECS. Intentional electronic and physical POE Workstation, Technical protection: Re- Issue to be addressed during system integration: How threat from external entities. Exit Device. sidual information pro- to ensure residual information protection on the tection. POE Workstation for transient objects containing bi- ometric or biographic information. See Encryption, below. 14 Intentional electronic and physical Exit Device ...... Technical protection: Re- Since individual devices are projected to handle ap- threat from external entities. sidual information pro- proximately 500 transactions per day, in the case of tection. a breach or exposure of data, the number of af- fected records will be minimal. Information to be retained only until a transaction is complete, then immediate transmission of captured data to the appropriate server. Use of FIPS 140–2 compliant encryption of stored data on each device. Intentional electronic and physical Registered Trav- Technical protection ...... Daily changing of encryption keys along with NIST-ap- threat from external entities. eler receipt proved encryption to be utilized. from Exit De- vice. Intentional physical and electronic POE Workstation Technical protection: Issue to be addressed during system integration: How threats from external entities. Encryption. will encryption be used to protect transiently stored biometric and biographic information? Will encryption address the residual information con- cern? Intentional physical and electronic Exit Device ...... Technical protection: Daily changing of encryption keys along with NIST-ap- threats from external entities. Encryption. proved encryption to be utilized. Intentional electronic threat from au- US–VISIT internal Technical protection: Pro- Internal communications occur over the secured DHS thorized and unauthorized entities. communication tected communications WAN. The ICD states that exchange of data be- (between POE and transaction privacy. tween all systems will be accomplished by a mes- workstation, sage queuing service, using IBM Websphere Passenger MQSeries. Websphere SSL and/or PKI capabilities Processing are not currently used, but provide potential future Component of capability for additional protection of the privacy of TECS, ADIS, US–VISIT transactions. IDENT, and AIDMS). Intentional electronic threat from au- US–VISIT com- Technical protection: At times, communications may occur over non-gov- thorized and unauthorized entities. munication (be- Encryption. ernment-owned external networks. Two commu- tween POE nication paths exist within the server for data trans- workstation, mission. Encryption of data, utilizing a FIPS 140-2- and Passenger strength encryption schema for data passage pro- Processing vides data protection. Component of TECS, ADIS, IDENT, and AIDMS).
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TABLE D–1.—PRIVACY THREATS AND MITIGATION METHODS DETAILED—Continued
Architectural Nature of threat placement Safeguard Mechanism
Intentional and unintentional electronic US–VISIT-wide, Technical protection: Audit Any US–VISIT-specific audit trail requirements will be threat from authorized entities. Passenger determined and documented as part of the US– Processing VISIT, Increment 1 Release 2 requirements/design Component of phase. TECS, ADIS, Issue to be addressed during integration: Define pro- and IDENT. cedures for use of the auditing capabilities of the Passenger Processing Component of TECS, ADIS, and IDENT, as well as Websphere, to facilitate tracking and investigation of transactions that span component systems? Intentional and unintentional electronic Exit Device ...... Technical protection: Audit Identification and Authentication of authorized users threat from authorized entities. by individual mobile device is in place. Intentional and unintentional electronic POE Workstation Technical protection: Audit The US–VISIT, Increment 1 FRD requires that the threat from external and internal en- IDENT Client System capture the user ID of the tities. user collecting biometric and biographic information, and of the user submitting transactions to the En- forcement Integrated Database. Issues to be addressed during integration: • How will the captured data on the client be pro- tected against modification or deletion? • If this captured data is considered to be a local audit trail (rather than a component of a store-and- forward transaction, deleted when the transaction is submitted), how and on what system will audit data from multiple clients be aggregated? Intentional electronic threats from au- External inter- Technical protection: Not specified. For US–VISIT Increment 1, thorized and unauthorized external faces. Boundary protection • Passenger Processing Component of TECS inter- entities. (e.g., firewall, guard). faces is internal to US–VISIT. • ADIS interfaces with SEVIS and CLAIMS 3. • IDENT interfaces with IAFIS via the IDENT/IAFIS Gateway Server interface, Production IDENT, and the Department of State Consular Affairs Consoli- dated Database. Intentional electronic threats from au- Registered Trav- Technical protection ...... Human readable information is minimized for viewing. thorized and unauthorized external eler receipt Sub-optimal stores of biometric information are em- entities. generated from ployed. Non-human readable information is Exit Device. encrypted. Unintentional electronic and physical External inter- Administrative protection: Memoranda of Understanding with appropriate parties threats from authorized external en- faces. Routine use agreements. have been completed. Agreements currently exist tities. with the Department of State and the FBI. Intentional electronic threats from au- Exit Device ...... Administrative protection ... Warnings need to be posted in appropriate traveler lit- thorized and unauthorized external erature. entities. Intentional electronic threats from au- Exit Device ...... Administrative/Procedural Provision of training and awareness for Workstation thorized and unauthorized external protection. Attendants is required. entities. 13 Access to information on the system depends on, and accountability for user actions is ensured by, I&A of users. As indicated in the table, US–VISIT components provide user ID/password mechanisms. US–VISIT is moving to a single client with a single sign-on capability that will be controlled using role-based access with user IDs and complex passwords. Until that solution is implemented there are both role-based access controls and multiple logons to access various component systems. 14 Some Port of Entry (POE) workstations and Exit Devices will store various personal information, if only transiently. Accountability for user actions is ensured by audit mechanisms. ADIS, the Passenger Processing Component of TECS, and IDENT provide auditing. The US–VISIT, Increment 1 Functional Requirements Document (FRD) states two audit requirements on the IDENT Client: RTM 8.3–10 ‘‘The IDENT Client System shall capture the user ID of the user collecting store-and-forward biographic and biometric informa- tion.’’ RTM 8.3–20 ‘‘The IDENT Client System shall capture the user ID of the user submitting store-and-forward transactions to the EID.’’ Captured information is cached and retained in the workstation even after the encounter ends. It is not deleted until the authorized user logs out of the workstation. As a result of this approach, the risk arises that the captured user ID could be modified while stored on the workstation, thus impairing DHS’s ability to ensure compliance with rules of behavior and impose penalties for noncompliance.
Draft Appendix E: Privacy Threats and Mitigations
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TABLE E–1.—OVERVIEW OF PRIVACY THREATS AND MITIGATION MEASURES
Type of threat Description of threat Type of measures to counter/mitigate threat
Unintentional threats from in- Unintentional threats include gaps in the privacy policy; These threats are addressed by a privacy policy con- siders 15. mistakes in information system design, development, sistent with Fair Information Practices, laws, regula- integration, configuration, and operation; and errors tions, and OMB guidance; (b) defining appropriate made by custodians (i.e., personnel of organizations functional and interface requirements; development, with custody of the information). These threats can integrating, and configuring the system in accordance be physical (e.g., leaving documents in plain view) or with these requirements and best security practices; electronic in nature. These threats can result in insid- and testing and validating the system against those ers being granted access to information for which requirements; and (c) providing clear operating in- they are not authorized or not consistent with their structions and training to users and system adminis- responsibility. trators. Intentional threat from insid- Threat actions can be characterized as improper use of These threats are addressed by a combination of tech- ers. authorized capabilities (e.g., browsing, removing in- nical safeguards (e.g., access control, auditing, and formation from trash) and circumvention of controls to anomaly detection) and administrative safeguards take unauthorized actions (e.g., removing data from a (e.g., procedures, training). workstation that has been not been shut off).. Intentional and unintentional Intentional: Threats can be characterized as improper These threats are addressed by technical safeguards threats from authorized use of authorized capabilities (e.g., misuse of infor- (in particular, boundary controls such as firewalls) external entities 16. mation provided by (US–VISIT) and circumvention of and administrative safeguards in the form of periodic controls to take unauthorized actions (e.g., unauthor- privacy policy and practice compliance audits and ized access to system).. routine use agreements and memoranda of under- Unintentional: Flaws in privacy policy definition; mis- standing which require external entities (a) to con- takes in information system design, development, in- form with the rules of behavior and (b) to provide tegration, configuration, and operation; and errors safeguards consistent with, or more stringent than, made by custodians. those of the system or program. Intentional threats from ex- Threats actions can be characterized by mechanism: These threats are addressed by physical safeguards, ternal unauthorized enti- physical attack (e.g., theft of equipment), electronic boundary controls at external interfaces, technical ties. attack (e.g., hacking or other unauthorized access, safeguards (e.g., identification and authentication, interception of communications), and personnel at- encrypted communications), and clear operating in- tack (e.g., social engineering). structions and training for users and systems admin- istrators. 15 Here, the term ‘‘insider’’ is intended to include individuals acting under the authority of the system owner or program manager. These include users, system administrators, maintenance personnel, and others authorized for physical access to system components. 16 These include individuals and systems that are not under the authority of the system owner or program manager, but are authorized to re- ceive information from, provide information to, or interface electronically with the system.
[FR Doc. 05–13371 Filed 7–5–05; 8:45 am] Budget (OMB) for review and comment. above, to the attention of the Desk BILLING CODE 4410–10–C Our ICR describes the information we Officer for the Coast Guard. seek to collect from the public. Review (3) By fax to (a) the Facility at (202) and comment by OIRA ensures that we 493–2298 and (b) OIRA at (202) 395– DEPARTMENT OF HOMELAND impose only paperwork burdens 6566, or e-mail to OIRA at oira- SECURITY commensurate with our performance of [email protected] attention: Desk duties. Officer for the Coast Guard. Coast Guard (4)(a) Electronically through the Web DATES: Please submit comments on or site for the Docket Management System [USCG–2005–21004] before August 8, 2005. at http://dms.dot.gov. (b) OIRA does not Collection of Information Under ADDRESSES: To make sure that your have a Web site on which you can post Review by Office of Management and comments and related material do not your comments. Budget (OMB): 1625–0060, 1625–0081, reach the docket (USCG–2005–21004) or The Docket Management Facility and 1625–0083 OIRA more than once, please submit maintains the public docket for this them by only one of the following notice. Comments and material received AGENCY: Coast Guard, DHS. means: from the public, as well as documents ACTION: Request for comments. mentioned in this notice as being (1)(a) By mail to the Docket available in the docket, will become part SUMMARY: In compliance with the Management Facility, U.S. Department of this docket and will be available for Paperwork Reduction Act of 1995, this of Transportation (DOT), room PL–401, inspection or copying at room PL–401 request for comments announces that 400 Seventh Street, SW., Washington, on the Plaza level of the Nassif Building, the Coast Guard has forwarded three DC 20590–0001. (b) By mail to OIRA, 400 Seventh Street, SW., Washington, Information Collection Requests 725 17th St., NW., Washington, DC DC, between 9 a.m. and 5 p.m., Monday (ICRs)—(1) 1625–0060, Vapor Control 20503, to the attention of the Desk through Friday, except Federal holidays. Systems for Facilities and Tank Vessels; Officer for the Coast Guard. You may also find this docket on the (2) 1625–0081, Alternate Compliance (2)(a) By delivery to room PL–401 at Internet at http://dms.dot.gov. Program; and (3) 1625–0083, the address given in paragraph (1)(a) Copies of the complete ICRs are Operational Measures for Existing Tank above, between 9 a.m. and 5 p.m., available through this docket on the Vessels Without Double Hulls— Monday through Friday, except Federal Internet at http://dms.dot.gov, and also abstracted below, to the Office of holidays. The telephone number is (202) from Commandant (CG–611), U.S. Coast Information and Regulatory Affairs 366–9329. (b) By delivery to OIRA, at Guard Headquarters, room 6106 (Attn: (OIRA) of the Office of Management and the address given in paragraph (1)(b) Ms. Barbara Davis), 2100 Second Street
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SW., Washington, DC 20593–0001. The please enclose a stamped, self-addressed (COI) 1625–0083 is one of many telephone number is (202) 267–2326. postcard or envelope. collections related to environmental FOR FURTHER INFORMATION CONTACT: Ms. The Coast Guard and OIRA will protection and maritime security. The Barbara Davis, Office of Information consider all comments and material second comment relates to 1625–0060, Management, telephone (202) 267–2326 received during the comment period. Vapor Control Systems for Facilities and or fax (202) 267–4814, for questions on We may change the documents Tank Vessels. The commenter raises two these documents; or Ms. Andrea M. supporting this collection of points: Jenkins, Program Manager, Docket information or even the underlying • Alternative methods of inspection Operations, (202) 366–0271, for requirements in view of them. should be allowed, and; • questions on the docket. Viewing comments and documents: Our estimated hour burden is too To view comments, as well as SUPPLEMENTARY INFORMATION: low—commenter used an example of it The Coast documents mentioned in this notice as Guard invites comments on the taking 800 to 1200 man-hours per year being available in the docket, go to for one large facility to comply with 33 proposed collections of information to http://dms.dot.gov at any time and determine whether the collections are CFR 156.170(g)(3) requirements. conduct a simple search using the In response to the first point, the necessary for the proper performance of docket number. You may also visit the Coast Guard notes that 33 CFR part 156 the functions of the Department. In Docket Management Facility in room already has a provision for the Captain particular, the Coast Guard would PL–401 on the Plaza level of the Nassif of the Port (COTP) to consider and appreciate comments addressing: (1) Building, 400 Seventh Street, SW., approve alternatives in general. Section The practical utility of the collections; Washington, DC, between 9 a.m. and 5 156.107 of that part allows the COTP to (2) the accuracy of the estimated burden p.m., Monday through Friday, except consider and approve alternatives, of the collections; (3) ways to enhance Federal holidays. procedures, methods, or equipment the quality, utility, and clarity of the Privacy Act: Anyone can search the standards to be used by a vessel or information that is the subject of the electronic form of all comments facility operator in lieu of any collections; and (4) ways to minimize received in dockets by the name of the requirements in this part if certain the burden of collections on individual submitting the comment (or conditions are met. respondents, including the use of signing the comment, if submitted on In response to the second point, the automated collection techniques or behalf of an association, business, labor comments are beyond the scope of this other forms of information technology. union, etc.). You may review the notice. The equipment tests and Comments to DMS or OIRA must Privacy Act Statement of DOT in the inspections in 33 CFR 156.170 are contain the OMB Control Number of the Federal Register published on April 11, covered by a different collection of Information Collection Reports (ICRs) 2000 (65 FR 19477), or you may visit information: 1625–0095, Oil and addressed. Comments to DMS must http://dms.dot.gov. Hazardous Materials Pollution contain the docket number of this Prevention and Safety Records, request, (USCG 2005–21004). For your Previous Request for Comments Equivalents/Alternatives and comments to OIRA to be considered, it This request provides a 30-day Exemptions (see 1990 final rule entitled is best if OIRA receives them on or comment period required by OIRA. The ‘‘Marine Vapor Control Systems,’’ 55 FR before August 8, 2005. Coast Guard has already published the Public participation and request for 60-day notice required by 44 U.S.C. 25396, 25427, June 21, 1990). The 1625– comments: We encourage you to 3506(c)(2) (70 FR 21805, April 27, 0095 collection has been approved respond to this request for comments by 2005). That notice elicited two through March 2006. submitting comments and related comments. The first comment relates to Information Collection Request information collection 1625–0083. The materials. We will post all comments 1. Title: Vapor Control Systems for commenter states that the Coast Guard received, without change, to http:// Facilities and Tank Vessels. dms.dot.gov, and they will include any should not allow vessels carrying toxics, OMB Control Number: 1625–0060. personal information you have including oil, into the U.S. unless they Type of Request: Extension. provided. We have an agreement with have double hulls and suggests that we Affected Public: Owners and DOT to use their Docket Management discontinue the information collection. operators of facilities and tank vessels, Facility. Please see the paragraph on In general, the comment is beyond the and certifying entities. DOT’s ‘‘Privacy Act Policy’’ below. scope of this information collection. Forms: None. Submitting comments: If you submit a Summarily, information collection Abstract: The information is needed comment, please include your name and 1625–0083 requires the master, owner, to ensure compliance with U.S. address, identify the docket number for or operator of a tank vessel to record regulations for the design of facility and this request for comment (USCG–2005– and document information that is tank vessel vapor control systems (VCS). 21004), indicate the specific section of necessary for the safe operation of the The information is also needed to this document or the ICR to which each vessel and to manage operational determine the qualifications of a comment applies, and give the reason procedures, records, and licenses. The certifying entity. for each comment. You may submit recordkeeping requirements in this Burden Estimates: The estimated your comments and material by collection ensure that pilots are burden has increased from 1,073 hours electronic means, mail, fax, or delivery adequately informed of the vessel’s to 1,145 hours a year. to the Docket Management Facility at status, maneuvering capabilities, and 2. Title: Alternate Compliance the address under ADDRESSES, but under-keel clearance before beginning a Program. please submit them by only one means. transit. This collection aids the Coast OMB Control Number: 1625–0081. If you submit them by mail or delivery, Guard by allowing inspectors to Type of Request: Extension. submit them in an unbound format, no determine if a vessel is in compliance Affected Public: Recognized larger than 81⁄2 by 11 inches, suitable for with the requirements contained in 33 classification societies. copying and electronic filing. If you CFR part 157. The supporting statement Forms: CG–3752. submit them by mail and would like to in the docket contains details of this Abstract: This information is used by know that they reached the Facility, collection. Collection of Information the Coast Guard to assess vessels
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participating in the voluntary Alternate expiration date. Accordingly, USCIS has authorization extension to October 5, Compliance Program (ACP) before decided to extend the validity of EADs 2005. issuance of a Certificate of Inspection. issued to Honduran or Nicaraguan What Documents May a Qualified Burden Estimates: The estimated nationals (or aliens having no Individual Show to His or Her burden has increased from 150 hours to nationality who last habitually resided Employer as Proof of Employment 164 hours a year. in Honduras or Nicaragua) under the Authorization and Identity When 3. Title: Operational Measures for extension of the TPS designations for an Completing Form I–9, Employment Existing Tank Vessels Without Double additional 90 days, from July 5, 2005 Eligibility Verification? Hulls. until October 5, 2005. This Notice OMB Control Number: 1625–0083. announces that extension and also For completion of the Form I–9 at the Type of Request: Extension. explains how TPS beneficiaries and time of hire or re-verification, qualified Affected Public: Owners, operators their employers may determine which individuals who are receiving a three- and masters of certain tank vessels. EADs are automatically extended. month extension of their EADs by virtue Forms: None. DATES: The extension of EADs is of this Federal Register Notice may Abstract: The information is needed effective July 5, 2005. present to their employer a TPS-based EAD as proof of identity and to ensure compliance with U.S. FOR FURTHER INFORMATION CONTACT: regulations regarding operational Colleen Cook, Residence and Status employment authorization until October measures for certain tank vessels while Services, Office of Programs and 5, 2005. To minimize confusion over operating in the U.S. waters. Regulations Development, U.S. this extension at the time of hire or re- Burden Estimates: The estimated Citizenship and Immigration Services, verification, qualified individuals may burden has decreased from 18,006 hours Department of Homeland Security, 111 also present to their employer a copy of to 6,807. Massachusetts Avenue, NW., 3rd Floor, this Federal Register Notice regarding the automatic extension of employment Dated: June 30, 2005. Washington, DC 20529, telephone (202) 514–4754. authorization documentation to October Nathaniel S. Heiner, 5, 2005. In the alternative, any legally SUPPLEMENTARY INFORMATION: Acting, Assistant Commandant for acceptable document or combination of Command, Control, Communications, Why Is USCIS Automatically Extending documents listed in List A, List B, or Computers and Information Technology. the Validity of EADS for Honduran and List C of the Form I–9 may be presented [FR Doc. 05–13385 Filed 7–6–05; 8:45 am] Nicaraguan TPS Beneficiaries? as proof of identity and employment BILLING CODE 4910–15–P Considering the large number of eligibility; it is the choice of the applications, it is likely that many re- employee. DEPARTMENT OF HOMELAND registrants will receive their new EAD How May Employers Determine SECURITY after the expiration date of their current Whether an EAD Has Been EAD. In order to prevent a gap in Automatically Extended Through U.S. Citizenship and Immigration employment authorization for qualified October 5, 2005 and Is Therefore Services re-registrants, DHS is extending the Acceptable for Completion of the Form validity of applicable EADs to October I–9? [CIS No. 2359–05] 5, 2005. For purposes of verifying identity and RIN 1615–ZA27 Who Is Eligible To Receive an employment eligibility or re-verifying Automatic Extension of Employment Automatic Extension of His or Her employment eligibility on the Form I–9 Authorization Documentation for EAD? until October 5, 2005, employers of Honduran and Nicaraguan TPS To receive an automatic extension of Honduran and Nicaraguan TPS Beneficiaries his or her EAD, an individual must be beneficiaries whose EADs have been a national of Honduras or Nicaragua (or automatically extended by this Notice AGENCY: U.S. Citizenship and an alien having no nationality who last must accept such EAD if presented. An Immigration Services, DHS. habitually resided in Honduras or EAD that has been automatically ACTION: Notice. Nicaragua) who has applied for and extended by this notice to October 5, received an EAD under the TPS 2005 will actually contain an expiration SUMMARY: On November 3, 2004, U.S. designation of Honduras or Nicaragua. date of January 5, 2005, and must be Citizenship and Immigration Services This automatic extension is limited to either (1) a Form I–766 bearing the (USCIS) of the Department of Homeland EADs bearing an expiration date of notation ‘‘A–12’’ or ‘‘C–19’’ on the face Security (DHS) published two Notices January 5, 2005, that were issued on of the card under ‘‘Category,’’ or (2) a in the Federal Register extending the either Form I–766, Employment Form I–688B bearing the notation designations of Honduras and Nicaragua Authorization Document, or Form I– ‘‘274a.12(a)(12)’’ or ‘‘274a.12(c)(19)’’ on for Temporary Protected Status (TPS) 688B, Employment Authorization Card. the face of the card under ‘‘Provision of until July 5, 2006, and automatically The EAD must also be either (1) a Form Law.’’ New EADs or extension stickers extending employment authorization I–766 bearing the notation ‘‘A–12’’ or showing the October 5, 2005 expiration documents (EADs) for the beneficiaries ‘‘C–19’’ on the face of the card under date will not be issued. Employers of TPS for Honduras and Nicaragua for ‘‘Category,’’ or (2) a Form I–688B should not request proof of Honduran or six months, from January 5, 2005 until bearing the notation ‘‘274a.12(a)(12)’’ or Nicaraguan citizenship. Employers July 5, 2005. Beneficiaries of TPS for ‘‘274a.12(c)(19)’’ on the face of the card presented with an EAD that has been Honduras and Nicaragua are required to under ‘‘Provision of Law.’’ extended pursuant to this Federal re-register and obtain new EADs. Register Notice, if it appears to be However, because of the large number of Must Qualified Individuals Apply for genuine and appears to relate to the beneficiaries for TPS for Nicaragua and the Automatic Extension of Their TPS- employee, should accept the EAD as a Honduras, USCIS will not be able to Related EADs? valid ‘‘List A’’ document and should not process and re-issue new EADs for all No, qualified individuals do not have ask for additional Form I–9 such beneficiaries by the July 5, 2005 to apply for this automatic employment documentation. This action by USCIS
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through this Federal Register Notice each of these species, we must receive species in 1967 (32 FR 4001) and 1990 does not affect the right of an employee your information no later than (55 FR 36641), respectively. to present any legally acceptable September 6, 2005. However, we will Public Solicitation of New Information document as proof of identity and continue to accept new information eligibility for employment. about any listed species at any time. To ensure that the 5-year review is Employers are reminded that the laws complete and based on the best ADDRESSES: Submit information on prohibiting unfair immigration-related available scientific and commercial black-footed ferret to Pete Gober, South employment practices remain in full information, we are soliciting new Dakota Field Office, U.S. Fish and force. For questions, employers may call information from the public, concerned the USCIS Office of Business Liaison Wildlife Service, 420 S. Garfield governmental agencies, Tribes, the Employer Hotline at 1–800–357–2099 to Avenue, Suite 400, Pierre, South Dakota scientific community, industry, speak to a USCIS representative. Also, 57501. Submit information on pallid environmental entities, and any other employers may call the U.S. Department sturgeon to George Jordan, U.S. Fish and interested parties concerning the status of Justice Office of Special Counsel for Wildlife Service, 2900 4th Avenue of black-footed ferret and pallid Immigration Related Unfair North, Room 301, Billings, Montana sturgeon. Employment Practices (OSC) Employer 59101. Information received in response The 5-year review considers the best Hotline at 1–800–255–8155 or 1–800– to this notice and review will be scientific and commercial data and all 362–2735 (TDD). Employees or available for public inspection, by new information that has become applicants may call the OSC Employee appointment, during normal business available since the listing determination Hotline at 1–800–255–7688 or 1–800– hours, at the above addresses. or most recent status review of each 237–2515 (TDD) for information FOR FURTHER INFORMATION CONTACT: species. Categories of requested regarding the automatic extension. Black-footed ferret—Pete Gober, South information include—(A) species Additional information is available on Dakota Field Office Supervisor, at (605) biology, including but not limited to the OSC Web site at http:// 224–8693, extension 24. Pallid population trends, distribution, www.usdoj.gov/crt/osc/index.html. sturgeon—George Jordan, Pallid abundance, demographics, and genetics; (B) habitat conditions, including but not Dated: July 1, 2005. Sturgeon Recovery Coordinator, at (406) 247–7365. limited to amount, distribution, and Michael Petrucelli, suitability; (C) conservation measures Acting Director, U.S. Citizenship and SUPPLEMENTARY INFORMATION: Under the that have been implemented that benefit Immigration Services. ESA (16 U.S.C. 1531 et seq.), the Service the species; (D) threat status and trends; [FR Doc. 05–13401 Filed 7–1–05; 4:06 pm] maintains a list of endangered and and (E) other new information, data, or BILLING CODE 4410–10–P threatened wildlife and plant species at corrections, including but not limited to 50 CFR 17.11 (for animals) and 17.12 taxonomic or nomenclatural changes, (for plants). Section 4(c)(2)(A) of the identification of erroneous information DEPARTMENT OF THE INTERIOR ESA requires that we conduct a review contained in the List, and improved of listed species at least once every 5 analytical methods. Fish and Wildlife Service years. Then, based on such reviews, If you wish to provide information for under section 4(c)(2)(B), we determine one or both of these species for 5-year Endangered and Threatened Wildlife whether or not any species should be review, you may submit your comments and Plants; Initiation of a 5-Year removed from the List (delisted), or and materials regarding black-footed Review of Black-Footed Ferret reclassified from endangered to ferret to Pete Gober, South Dakota Field (Mustela nigripes) and Pallid Sturgeon threatened or from threatened to Office Supervisor (see ADDRESSES (Scaphirhynchus albus) endangered. Delisting a species must be section); or your comments and AGENCY: Fish and Wildlife Service, supported by the best scientific and materials regarding pallid sturgeon to Interior. commercial data available and George Jordan, Pallid Sturgeon Recovery ACTION: Notice. considered only if such data Coordinator (see ADDRESSES section). substantiate that the species is neither Our practice is to make comments, SUMMARY: The U.S. Fish and Wildlife endangered nor threatened for one or including names and home addresses of Service (Service) announces a 5-year more of the following reasons—(1) the respondents, available for public review review of black-footed ferret (Mustela species is considered extinct; (2) the during regular business hours. nigripes) and pallid sturgeon species is considered to be recovered; Respondents may request that we (Scaphirhynchus albus) under section and/or (3) the original data available withhold a respondent’s identity, as 4(c)(2)(A) of the Endangered Species Act when the species was listed, or the allowable by law. If you wish us to of 1973 (ESA). A 5-year review is a interpretation of such data, were in withhold your name or address, you periodic process conducted to ensure error. Any change in Federal must state this request prominently at that the listing classification of a species classification would require a separate the beginning of your comment. is accurate. A 5-year review is based on rulemaking process. The regulations in However, we will not consider the best scientific and commercial data 50 CFR 424.21 require that we publish anonymous comments. To the extent available at the time of the review; a notice in the Federal Register consistent with applicable law, we will therefore, we are requesting submission announcing those species currently make all submissions from of any such information on black-footed under active review. This notice organizations or businesses, and from ferret and pallid sturgeon that has announces our active review of the individuals identifying themselves as become available since their original Black-footed ferret and Pallid sturgeon, representatives or officials of listings as endangered species. Based on both of which are currently listed as organizations or businesses, available the results of this 5-year review, we will endangered. We request submission of for public inspection in their entirety. make the requisite findings under any new information on the black- Comments and materials received will section 4(c)(2)(B) of the ESA. footed ferret or the pallid sturgeon, or be available for public inspection, by DATES: To allow us adequate time to both, that has become available since appointment, during normal business conduct our reviews on the statuses of their original listings as endangered hours (see ADDRESSES section).
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Authority DEPARTMENT OF THE INTERIOR ACTION: Notice of review. This document is published under the Fish and Wildlife Service SUMMARY: We, the U.S. Fish and authority of the Endangered Species Act Wildlife Service, announce the Endangered and Threatened Wildlife of 1973, as amended (16 U.S.C. 1531 et initiation of 5-year reviews of 31 listed seq.). and Plants; Initiation of 5-Year Reviews of the Valley Elderberry Longhorn species in Table 1 below, under section Dated: June 16, 2005. Beetle, Smith’s Blue Butterfly, Delhi 4(c)(2)(A) of the Endangered Species Act Hannibal Bolton, Sands Flower-Loving Fly, Morro (Act). The purpose of a 5-year review is Acting Deputy Regional Director, Denver, Shoulderband Snail, Giant Garter to ensure that the classification of a Colorado. Snake, San Francisco Garter Snake, species as threatened or endangered on [FR Doc. 05–13327 Filed 7–6–05; 8:45 am] Island Night Lizard, California Least the List of Endangered and Threatened BILLING CODE 4310–55–P Tern, Least Bell’s Vireo, Chinese Camp Wildlife and Plants is accurate and Brodiaea, Mariposa Pussypaws, San based on the best scientific and Clemente Island Indian Paintbrush, commercial data available at the time of Spring-Loving Centaury, Springville the review. We are requesting Clarkia, San Clemente Island Larkspur, submission of any such information that Santa Barbara Island Dudleya, Ash has become available since the original Meadows Gumplant, San Clemente listing of each of these 31 species. Based Island Woodland Star, San Clemente on the results of these 5-year reviews, Island Lotus, San Clemente Island we will make the requisite findings Bush Mallow, Amargosa Niterwort, under section 4(c)(2)(B) of the Act. Eureka Valley Evening Primrose, Yreka Phlox, Hartweg’s Golden Sunburst, San Joaquin Adobe Sunburst, Santa Cruz Island Rock-Cress, Keck’s Checker-mallow, Eureka Dune Grass, Kneeland Prairie Pennycress, Hidden Lake Bluecurls, and Red Hills Vervain
AGENCY: Fish and Wildlife Service, Interior.
TABLE 1.—SUMMARY OF THE LISTING INFORMATION FOR THE FOLLOWING 31 SPECIES
Common name Scientific name Status Where listed Final listing rule
Valley elderberry longhorn beetle ...... Desmocerus californicus dimorphus ... Threatened ...... U.S.A. (CA) ...... 45 FR 52803 (8– AUG–80) Smith’s blue butterfly ...... Euphilotes enoptes smithi ...... Endangered ...... U.S.A. (CA) ...... 41 FR 22041 (1– JUN–76) Delhi Sands flower loving fly ...... Rhaphiomidas terminatus abdominalis Endangered ...... U.S.A. (CA) ...... 58 FR 49881 (23– SEP–93) Morro shoulderband snail ...... Helminthoglypta walkeriana ...... Endangered ...... U.S.A. (CA) ...... 59 FR 64613 (15– DEC–94) Giant garter snake ...... Thamnophis gigas ...... Threatened ...... U.S.A. (CA) ...... 58 FR 54053 (20– OCT–93) San Francisco garter snake ...... Thamnophis sirtalis tetrataenia ...... Endangered ...... U.S.A. (CA) ...... 32 FR 4001 (11– MAR–67) Island night lizard ...... Xantusia riversiana tetrataenia ...... Threatened ...... U.S.A. (CA) ...... 42 FR 40682 (11– AUG–77) California least tern ...... Sterna antillarum browni ...... Endangered ...... U.S.A. (CA) Mexico ... 35 FR 8491 (2– JUN–70) Least Bell’s vireo ...... Vireo bellii pusillus ...... Endangered ...... U.S.A. (CA) Mexico ... 1 FR 16474 (2– MAY–86) Chinese Camp brodiaea ...... Brodiaea pallida ...... Threatened ...... U.S.A. (CA) ...... 63 FR 49022 (14– SEP–98) Mariposa pussypaws ...... Calyptridium pulchellum ...... Threatened ...... U.S.A. (CA) ...... 63 FR 49022 (14– SEP–98) San Clemente Island Indian Paint- Castilleja grisea ...... Endangered ...... U.S.A. (CA) ...... 42 FR 40682 (11– brush. AUG–77) Spring-loving centaury ...... Centaurium namophilum ...... Threatened ...... U.S.A. (CA, NV) ...... 50 20777 (20– MAY–85) Springville clarkia ...... Clarkia springvillensis ...... Threatened ...... U.S.A. (CA) ...... 63 FR 49022 (14– SEP–98) San Clemente Island larkspur ...... Delphinium variegatum var. kinkiense Endangered ...... U.S.A. (CA) ...... 42 FR 40682 (11– AUG–77) Santa Barbara Island dudleya ...... Dudleya traskiae ...... Endangered ...... U.S.A. (CA) ...... 43 FR 17910 (26– APR–78) Ash meadows gumplant ...... Grindelia fraxino-pratensis ...... Threatened ...... U.S.A. (CA, NV) ...... 50 FR 20777 (20– MAY–85) San Clemente Island woodland star ... Lithophragma maximum ...... Endangered ...... U.S.A. (CA) ...... 62 FR 42692 (8– AUG–97)
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TABLE 1.—SUMMARY OF THE LISTING INFORMATION FOR THE FOLLOWING 31 SPECIES—Continued
Common name Scientific name Status Where listed Final listing rule
San Clemente Island lotus ...... Lotus dendroideus var. traskiae ...... Endangered ...... U.S.A. (CA) ...... 42 FR 40682 (11– AUG–77) San Clemente Island bush mallow ..... Malacothamnus clementinus ...... Endangered ...... U.S.A. (CA) ...... 42 FR 40682 (11– AUG–77) Amargosa niterwort ...... Nitrophila mohavensis ...... Endangered ...... U.S.A. (CA, NV) ...... 50 FR 20777 (20– MAY–85) Eureka Valley evening primrose ...... Oenothera californica ssp. eurekensis Endangered ...... U.S.A. (CA) ...... 43 FR 17910 (26– APR–78) Yreka phlox ...... Phlox hirsuta ...... Endangered ...... U.S.A. (CA) ...... 65 FR 5268 (3– FEB–00) Hartweg’s golden sunburst ...... Pseudobahia bahiifolia ...... Endangered ...... U.S.A. (CA) ...... 62 FR 5542 (6– FEB–97) San Joaquin adobe sunburst ...... Pseudobahia peirsonii ...... Threatened ...... U.S.A. (CA) ...... 62 FR 5542 (6– FEB–97) Santa Cruz Island rock-cress ...... Sibara filifolia ...... Endangered ...... U.S.A. (CA) ...... 62 FR 42692 (8– AUG–97) Keck’s checker-mallow ...... Sidalcea keckii ...... Endangered ...... U.S.A. (CA) ...... 65 FR (16–FEB–00) Eureka Dune grass ...... Swallenia alexandrae ...... Endangered ...... U.S.A. (CA) ...... 43 FR 17910 (26– APR–78) Kneeland Prairie pennycress ...... Thlaspi californicum ...... Endangered ...... U.S.A. (CA) ...... 65 FR 6332 (9– SEP–00) Hidden Lake bluecurls ...... Trichostema austromontanum ssp. Threatened ...... U.S.A. (CA) ...... 63 FR 49006 (14– compactum. SEP–98) Red Hills vervain ...... Verbena californica ...... Threatened ...... U.S.A. (CA) ...... 63 FR 49022 (14– SEP–98)
DATES: To allow us adequate time to garter snake, Chinese Camp brodiaea, Information received in response to conduct these reviews, we must receive Mariposa pussypaws, Springville this notice and these reviews will be your information no later than clarkia, Hartweg’s golden sunburst, San available for public inspection, by September 6, 2005. However, we will Joaquin adobe sunburst, Keck’s checker- appointment, during normal business continue to accept new information mallow, and Red Hills vervain, submit hours, at the appropriate above about any listed species at any time. comments to the Field Supervisor, addresses. ADDRESSES: Information may be Attention: 5-Year Review, U.S. Fish and FOR FURTHER INFORMATION CONTACT: For submitted to the following U.S. Fish and Wildlife Service, Sacramento Fish and the Delhi Sands flower-loving fly, island Wildlife Service’s Fish and Wildlife Wildlife Office, 2800 Cottage Way, night lizard, California least tern, least Offices: Room W–2605, Sacramento, California For the Delhi Sands flower-loving fly, 95825. Information may also be Bell’s vireo, San Clemente Island Indian island night lizard, California least tern, submitted electronically at paintbrush, San Clemente Island least Bell’s vireo, San Clemente Island [email protected]. larkspur, San Clemente Island woodland star, San Clemente Island Indian paintbrush, San Clemente Island For Ash Meadows gumplant, spring- larkspur, San Clemente Island lotus, San Clemente Island bush loving centaury, and Amargosa mallow, Santa Cruz Island rock-cress, or woodland star, San Clemente Island niterwort, submit comments to the Field lotus, San Clemente Island bush Hidden Lake bluecurls, contact Tannika Supervisor, Attention: 5-Year Review, Engelhard at the Carlsbad Fish and mallow, Santa Cruz Island rock-cress, U.S. Fish and Wildlife Service, Nevada and Hidden Lake bluecurls, submit Wildlife Office at (760) 431–9440. For Fish and Wildlife Office, 1340 Financial the Smith’s blue butterfly, Morro comments to the Field Supervisor, Blvd., Suite 234, Reno, NV 89502. Attention: 5-Year Review, U.S. Fish and shoulderband snail, Santa Barbara Information may also be submitted Island dudleya, Eureka Valley evening Wildlife Service, Carlsbad Fish and electronically at [email protected]. Wildlife Office, 6010 Hidden Valley primrose, or Eureka Dune grass, contact Road, Carlsbad, California 92009. For Kneeland Prairie pennycress, Mike McCrary at the Ventura Fish and Information may also be submitted submit comments to the Field Wildlife Office at (805) 644–1766. For electronically at [email protected]. Supervisor, Attention: 5-Year Review, the Valley elderberry longhorn beetle, For the Smith’s blue butterfly, Morro U.S. Fish and Wildlife Service, Arcata giant garter snake, San Francisco garter shoulderband snail, Santa Barbara Fish and Wildlife Office, 11655 snake, Chinese Camp brodiaea, Island dudleya, Eureka Valley evening Heindon Road, Arcata, California 95521. Mariposa pussypaws, Springville primrose, and Eureka Dune grass, Information may also be submitted clarkia, Hartweg’s golden sunburst, San submit comments to the Field electronically at Joaquin adobe sunburst, Keck’s checker- _ Supervisor, Attention: 5-Year Review, FWS1 [email protected]. mallow, and Red Hills vervain, contact U.S. Fish and Wildlife Service, Ventura For Yreka phlox, submit comments to Harry McQuillen at the Sacramento Fish Fish and Wildlife Office, 2493 Portola the Field Supervisor, Attention: 5-Year and Wildlife Office at (916) 414–6742. Road, Suite B, Ventura, California Review, U.S. Fish and Wildlife Service, For Ash Meadows gumplant, spring- 93003. Information may also be Yreka Fish and Wildlife Office, 1829 S. loving centaury, Amargosa niterwort, submitted electronically at Oregon Street, Yreka, California 96097. contact Steve Caicco at the Nevada Fish [email protected]. Information may also be submitted and Wildlife Office at (775) 861–6300. For the Valley elderberry longhorn electronically at For Kneeland Prairie pennycress, beetle, giant garter snake, San Francisco [email protected]. contact Dave Imper at the Arcata Fish
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and Wildlife Office at (707) 822–7201. contained in the List, and improved not consider anonymous comments, For Yreka phlox, contact Nadine Kanim analytical methods. however. To the extent consistent with at the Yreka Fish and Wildlife Office at applicable law, we will make all How Do We Determine Whether a (530) 842–5763. submissions from organizations or Species is Endangered or Threatened? SUPPLEMENTARY INFORMATION: businesses, and from individuals Section 4(a)(1) of the Act requires that identifying themselves as Why Is a 5-Year Review Conducted? we determine whether a species is representatives or officials of Under the Endangered Species Act endangered or threatened based on one organizations or businesses, available (Act) (16 U.S.C. 1531 et seq.) we or more of the five following factors: for public inspection in their entirety. maintain a List of Endangered and A. The present or threatened Comments and materials received will Threatened Wildlife and Plants at 50 destruction, modification, or be available for public inspection, by CFR 17.11 (for animals) and 17.12 (for curtailment of its habitat or range; appointment, during normal business plants). Section 4(c)(2)(A) of the Act B. Overutilization for commercial, hours (see ADDRESSES section). requires that we conduct a review of recreational, scientific, or educational purposes; Authority: This document is published listed species at least once every 5 years. under the authority of the Endangered Then, on the basis of such reviews, C. Disease or predation; Species Act of 1973, as amended (16 U.S.C. under section 4(c)(2)(B) we determine D. The inadequacy of existing 1531 et seq.). whether or not any species should be regulatory mechanisms; or Dated: June 16, 2005. removed from the List (delisted), or E. Other natural or manmade factors reclassified from endangered to affecting its continued existence. Paul Henson, threatened or from threatened to Our assessment of these factors is Acting Manager, California/Nevada endangered. Delisting a species must be required, under section 4(b)(1) of the Operations Office, U.S. Fish and Wildlife Service. supported by the best scientific and Act, to be based solely on the best commercial data available and only scientific and commercial data [FR Doc. 05–13328 Filed 7–6–05; 8:45 am] considered if such data substantiates available. BILLING CODE 4310–55–P that the species is neither endangered What Could Happen as a Result of This nor threatened for one or more of the Review? DEPARTMENT OF THE INTERIOR following reasons: (1) the species is If we find that there is information considered extinct; (2) the species is Minerals Management Service considered to be recovered; and/or (3) concerning the 31 species listed in Table 1 above indicating a change in the original data available when the Outer Continental Shelf (OCS) Western classification may be warranted, we may species was listed, or the interpretation Gulf of Mexico (GOM) Oil and Gas propose a new rule that could do one of of such data, were in error. Any change Lease Sale 196 in Federal classification would require a the following: (a) Reclassify the species separate rulemaking process. The from threatened to endangered; (b) AGENCY: Minerals Management Service, regulations in 50 CFR 424.21 require reclassify the species from endangered Interior. that we publish a notice in the Federal to threatened; or (c) remove the species ACTION: Final Notice of Sale (FNOS) 196. Register announcing those species from the List. If we find that a change currently under active review. This in classification is not warranted, the SUMMARY: On August 17, 2005, the MMS notice announces our active review of species will remain on the List under its will open and publicly announce bids 31 species listed in Table 1 above. current status. received for blocks offered in Western GOM Oil and Gas Lease Sale 196, Public Solicitation of New Information What Information Is Considered in the pursuant to the OCS Lands Act (43 Review? To ensure that these 5-year reviews U.S.C. 1331–1356, as amended), and the A 5-year review considers all new are complete and based on the best regulations issued thereunder (30 CFR information available at the time of the available scientific and commercial part 256). review. These reviews will consider the information, we are soliciting new The Final Notice of Sale 196 Package best scientific and commercial data that information from the public, concerned (FNOS 196 Package) contains has become available since the current governmental agencies, Tribes, the information essential to bidders, and listing determination or most recent scientific community, industry, bidders are charged with the knowledge status review, such as: environmental entities, and any other of the documents contained in the A. Species biology including, but not interested parties concerning the status Package. limited to, population trends, of the 31 species listed in Table 1 above. If you wish to provide information for DATES: Public bid reading will begin at distribution, abundance, demographics, 9 a.m., Wednesday, August 17, 2005, in and genetics; any species included in these 5-year reviews, you may submit your the Hyatt Regency Conference Center B. Habitat conditions including, but (Cabildo Rooms), 500 Poydras Plaza, not limited to, amount, distribution, and comments and materials to the Field Supervisors at the appropriate Fish and New Orleans, Louisiana. All times suitability; referred to in this document are local C. Conservation measures that have Wildlife Office in the ADDRESSES section New Orleans times, unless otherwise been implemented that benefit the above. Our practice is to make specified. species; comments, including names and home D. Threat status and trends (see five addresses of respondents, available for ADDRESSES: Bidders can obtain a FNOS factors under heading ‘‘How Do We public review during regular business 196 Package containing this Notice of Determine Whether a Species Is hours. Respondents may request that we Sale and several supporting and Endangered or Threatened?’’); and withhold a respondent’s identity, as essential documents referenced herein E. Other new information, data, or allowable by law. If you wish us to from the MMS Gulf of Mexico Region corrections including, but not limited withhold your name or address, you Public Information Unit, 1201 Elmwood to, taxonomic or nomenclatural changes, must state this request prominently at Park Boulevard, New Orleans, Louisiana identification of erroneous information the beginning of your comment. We will 70123–2394, (504) 736–2519 or (800)
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200–GULF, or via the MMS Internet TX2 North Padre Island Area (revised All blocks are shown on these Leasing Web site at http://www.mms.gov. November 1, 2000). Maps and Official Protraction Diagrams. Filing of Bids: Bidders must submit TX2A North Padre Island Area, East The available Federal acreage of all sealed bids to the Regional Director Addition (revised November 1, 2000). whole and partial blocks in this lease (RD), MMS Gulf of Mexico Region, 1201 TX3 Mustang Island Area (revised sale is shown in the document ‘‘List of Elmwood Park Boulevard, New Orleans, November 1, 2000). Blocks Available for Leasing in Lease Louisiana 70123–2394, between 8 a.m. TX3A Mustang Island Area, East Sale 196’’ included in the FNOS 196 and 4 p.m. on normal working days, and Addition (revised September 3, 2002). Package. Some of these blocks may be from 8 a.m. to the Bid Submission TX4 Matagorda Island Area (revised partially leased or deferred, or Deadline of 10 a.m. on Tuesday, August November 1, 2000). transected by administrative lines such TX5 Brazos Area (revised November 1, 16, 2005. If bids are mailed, please as the Federal/State jurisdictional line. 2000). A bid on a block must include all of the address the envelope containing all of TX5B Brazos Area, South Addition available Federal acreage of that block. the sealed bids as follows: (revised November 1, 2000). Attention: Supervisor, Sales and TX6 Galveston Area (revised Also, information on the unleased Support Unit (MS 5422), Leasing November 1, 2000). portions of such blocks is found in the Activities Section, MMS Gulf of Mexico TX6A Galveston Area, South Addition document ‘‘Western Gulf of Mexico Region, 1201 Elmwood Park Boulevard, (revised November 1, 2000). Lease Sale 196—Unleased Split Blocks New Orleans, Louisiana 70123–2394. TX7 High Island Area (revised and Available Unleased Acreage of Contains Sealed Bids for Oil and Gas November 1, 2000). Blocks with Aliquots and Irregular Lease Sale 196. Please Deliver to Ms. TX7A High Island Area, East Addition Portions Under Lease or Deferred,’’ Jane Burrell Johnson, Room 311, (revised November 1, 2000). included in the FNOS 196 Package. Immediately. TX7B High Island Area, South Areas Not Available for Leasing: The Please note: Bidders mailing their Addition (revised November 1, 2000). following whole and partial blocks are bid(s) are advised to call Ms. Jane TX7C High Island Area, East Addition, not offered for lease in this lease sale: Burrell Johnson (504) 736–2811 South Extension (revised November 1, Whole blocks and portions of blocks immediately after putting their bid(s) in 2000). which lie within the boundaries of the the mail. TX8 Sabine Pass Area (revised Flower Garden Banks National Marine If the RD receives bids later than the November 1, 2000). Sanctuary at the East and West Flower time and date specified above, he will Outer Continental Shelf Official Garden Banks and Stetson Bank (the return those bids unopened to bidders. Protraction Diagrams following list includes all blocks Bidders may not modify or withdraw affected by the Sanctuary boundaries): their bids unless the RD receives a (These 7 diagrams sell for $2.00 each.) High Island, East Addition, South written modification or written NG14–03 Corpus Christi (revised Extension (Area TX7C) withdrawal request prior to 10 a.m. on November 1, 2000). Whole Blocks: A–375, A–398. Tuesday, August 16, 2005. Should an NG14–06 Port Isabel (revised Portions of Blocks: A–366, A–367, A– unexpected event such as flooding or November 1, 2000). 374, A–383, A–384, A–385, A–388, NG15–01 East Breaks (revised travel restrictions be significantly A–389, A–397, A–399, A–401. November 1, 2000). disruptive to bid submission, the MMS High Island, South Addition (Area NG15–02 Garden Banks (revised Gulf of Mexico Region may extend the TX7B) November 1, 2000). Portions of Blocks: A–502, A–513. Bid Submission Deadline. Bidders may NG15–04 Alaminos Canyon (revised call (504) 736–0557 for information Garden Banks (Area NG15–02) November 1, 2000). Portions of Blocks: 134, 135. about the possible extension of the Bid NG15–05 Keathley Canyon (revised Submission Deadline due to such an November 1, 2000). Whole blocks and portions of blocks event. NG15–08 Sigsbee Escarpment (revised which lie within the 1.4 nautical mile Areas Offered for Leasing: The MMS November 1, 2000). buffer zone north of the continental is offering for leasing all blocks and Please note: A CD–ROM (in ARC/ shelf boundary between the United partial blocks listed in the document INFO and Acrobat (.pdf) format) States and Mexico: ‘‘Blocks Available for Leasing in containing all of the GOM Leasing Maps Keathley Canyon (Area NG15–05) Western GOM Oil and Gas Lease Sale and Official Protraction Diagrams, Portions of Blocks: 978 through 980. 196’’ included in the FNOS 196 except for those not yet converted to Sigsbee Escarpment (Area NG15–08) Package. All of these blocks are shown digital format, is available from the Whole Blocks: 11, 57, 103, 148, 149, on the following Leasing Maps and MMS Gulf of Mexico Region Public 194, 239, 284, 331 through 341. Official Protraction Diagrams (available Information Unit for a price of $15. For Portions of Blocks: 12 through 14, 58 for free online in .PDF and .GRA format the current status of all Western GOM through 60, 104 through 106, 150, at http://www.gomr.mms.gov/homepg/ Leasing Maps and Official Protraction 151, 195, 196, 240, 241, 285 through lsesale/map_arc.html or which may be Diagrams, please refer to 66 FR 28002 298, 342 through 349. purchased from the MMS Gulf of (published May 21, 2001) and 67 FR Statutes and Regulations: Each lease Mexico Region Public Information 60701 (published September 26, 2002). issued in this lease sale is subject to the Unit): In addition, Supplemental Official OCS OCS Lands Act of August 7, 1953, 67 Outer Continental Shelf Leasing Block Diagrams (SOBDs) for these Stat. 462; 43 U.S.C. 1331 et seq., as Maps—Texas Map Numbers 1 Through blocks are available for blocks which amended (92 Stat. 629), hereinafter 8 contain the ‘‘U.S. 200 Nautical Mile called ‘‘the Act’’; all regulations issued Limit’’ line and the ‘‘U.S.-Mexico pursuant to the Act and in existence (These 16 maps sell for $2.00 each.) Maritime Boundary’’ line. These SOBDs upon the Effective Date of the lease; all TX1 South Padre Island Area (revised are also available from the MMS Gulf of regulations issued pursuant to the November 1, 2000). Mexico Region Public Information Unit. statute in the future which provide for TX1A South Padre Island Area, East For additional information, please call the prevention of waste and Addition (revised November 1, 2000). Ms. Tara Montgomery (504) 736–5722. conservation of the natural resources of
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the OCS and the protection of royalty requirement, then no minimum cent amount above the whole dollar will correlative rights therein; and all other royalty payment is due; be ignored by the MMS. Details of the applicable statutes and regulations. Royalty Suspension Areas: Royalty information required on the bid(s) and Lease Terms and Conditions: Initial suspension, subject to deep gas price the bid envelope(s) are specified in the period, extensions of initial period, thresholds, will apply to blocks in water document ‘‘Bid Form and Envelope’’ minimum bonus bid amount, rental depths less than 200 meters where deep contained in the FNOS 196 Package. A rates, royalty rates, minimum royalty, gas (typically 15,000 feet or greater blank bid form, which is provided for and royalty suspension areas are shown subsea) is drilled and commences your convenience, may be copied and on the map ‘‘Lease Terms and Economic production before May 3, 2009. In filled in. Conditions, Lease Sale 196, Final’’ for addition, subject to both oil and gas The MMS published in the Federal leases resulting from this lease sale: price thresholds, royalty suspension Register a list of restricted joint bidders, Initial Period: 5 years for blocks in will apply in water depths of 400 meters which applies to this lease sale, at 70 FR water depths of less than 400 meters; 8 or deeper. See the map ‘‘Lease Terms 22900 on May 3, 2005. Bidders must years for blocks in water depths of 400 and Economic Conditions, Lease Sale execute all documents in conformance to less than 800 meters (pursuant to 30 196, Final’’ for specific areas and the with signatory authorizations on file in CFR 256.37, commencement of an ‘‘Royalty Suspension Provisions, Lease the MMS Gulf of Mexico Region exploratory well is required within the Sale 196, Final’’ document contained in Adjudication Unit. Partnerships also first 5 years of the initial 8-year term to the FNOS 196 Package for specific must submit or have on file a list of avoid lease cancellation); and 10 years details regarding royalty suspension signatories authorized to bind the for blocks in water depths of 800 meters eligibility, applicable price thresholds partnership. Bidders submitting joint or deeper; and implementation. bids must include on the bid form the Extensions of Initial Period: Lease Stipulations: The map proportionate interest of each Extensions may be granted for eligible ‘‘Stipulations and Deferred Blocks, participating bidder, stated as a leases on blocks in water depths of less Lease Sale 196, Final’’ depicts the percentage, using a maximum of five than 400 meters as specified in NTL No. blocks on which one or more of five decimal places, e.g., 33.33333 percent. 2000–G22; lease stipulations apply: (1) The MMS may require bidders to submit Minimum Bonus Bid Amount: A Topographic Features; (2) Military other documents in accordance with 30 bonus bid will not be considered for Areas; (3) Operations in the Naval Mine CFR 256.46. The MMS warns bidders acceptance unless it provides for a cash Warfare Area; (4) Law of the Sea against violation of 18 U.S.C. 1860 bonus in the amount of $25 or more per Convention Royalty Payment; and (5) prohibiting unlawful combination or acre or fraction thereof for blocks in Protected Species. The texts of the intimidation of bidders. Bidders are water depths of less than 400 meters or stipulations are contained in the advised that the MMS considers the $37.50 or more per acre or fraction document ‘‘Lease Stipulations for Oil signed bid to be a legally binding thereof for blocks in water depths of 400 and Gas Lease Sale 196, Final’’ included obligation on the part of the bidder(s) to meters or deeper; to confirm the exact in the FNOS 196 Package. In addition, comply with all applicable regulations, calculation of the minimum bonus bid the ‘‘List of Blocks Available for including payment of the one-fifth amount for each block, see ‘‘List of Leasing’’ contained in the FNOS 196 bonus bid amount on all high bids. A Blocks Available for Leasing’’ contained Package identifies for each block listed statement to this effect must be included in the FNOS 196 Package; the lease stipulations applicable to that on each bid (see the document ‘‘Bid Rental Rates: $6.25 per acre or block. Form and Envelope’’ contained in the fraction thereof for blocks in water Information to Lessees: The FNOS 196 FNOS 196 Package). depths of less than 200 meters and $9.50 Package contains an ‘‘Information to Rounding: The following procedure per acre or fraction thereof for blocks in Lessees’’ document which provides must be used to calculate the minimum water depths of 200 meters or deeper, to detailed information on certain specific bonus bid, annual rental, and minimum be paid on or before the first day of each issues pertaining to this oil and gas royalty: Round up to the next whole lease year until a discovery in paying lease sale. dollar amount if the calculation results quantities of oil or gas, then at the Method of Bidding: For each block bid in a decimal figure (see next paragraph). expiration of each lease year until the upon, a bidder must submit a separate Please note: The minimum bonus bid start of royalty-bearing production; signed bid in a sealed envelope labeled calculation, including all rounding, is Royalty Rates: 162⁄3 percent royalty ‘‘Sealed Bid for Oil and Gas Lease Sale shown in the document ‘‘List of Blocks rate for blocks in water depths of less 196, not to be opened until 9 a.m., Available for Leasing in Lease Sale 196’’ than 400 meters and a 121⁄2 percent Wednesday, August 17, 2005.’’ The included in the FNOS 196 Package. royalty rate for blocks in water depths submitting company’s name, its GOM Bonus Bid Deposit: Each bidder of 400 meters or deeper, except during Company number, the map area, map submitting an apparent high bid must periods of royalty suspension, to be paid number, and block number should be submit a bonus bid deposit to the MMS monthly on the last day of the month clearly identified on the outside of the equal to one-fifth of the bonus bid next following the month during which envelope. Please refer to the sample bid amount for each such bid. Under the the production is obtained; envelope included within the FNOS 196 authority granted by 30 CFR 256.46(b), Minimum Royalty: After the start of Package. Please also refer to the the MMS requires bidders to use royalty-bearing production: $6.25 per Telephone Numbers/Addresses of electronic funds transfer procedures for acre or fraction thereof per year for Bidders Form included within the payment of one-fifth bonus bid deposits blocks in water depths of less than 200 FNOS 196 Package. We are requesting for Lease Sale 196, following the meters and $9.50 per acre or fraction that you provide this information in the detailed instructions contained in the thereof per year for blocks in water format suggested for each lease sale. document ‘‘Instructions for Making EFT depths of 200 meters or deeper, to be Please provide this information prior to Bonus Payments’’ which can be found paid at the expiration of each lease year or at the time of bid submission. Do not on the MMS Web site at http:// with credit applied for actual royalty enclose this form inside the sealed bid www.gomr.mms.gov/homepg/lsesale/ paid during the lease year. If actual envelope. The total amount of the bid 196/wgom196.html. All payments must royalty paid exceeds the minimum must be in a whole dollar amount; any be electronically deposited into an
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interest-bearing account in the U.S. www.gomr.mms.gov/homepg/lsesale/ should identify only the most recent Treasury (account specified in the EFT bidadeq.html. data set used for block evaluations. instructions) by 1 p.m. Eastern Time the Successful Bidders: As required by The statement must also identify each day following bid reading. Such a the MMS, each company that has been block upon which a bidder participated deposit does not constitute and shall not awarded a lease must execute all copies in a bid but for which it does not be construed as acceptance of any bid of the lease (Form MMS–2005 (March possess or control such depth data and on behalf of the United States. If a lease 1986) as amended), pay by EFT the information. is awarded, however, MMS requests that balance of the bonus bid amount and Every bidder must submit a separate only one transaction be used for the first year’s rental for each lease Geophysical Data and Information payment of the four-fifths bonus bid issued in accordance with the Statement in a sealed envelope. The amount and the first year’s rental. requirements of 30 CFR 218.155, and envelope should be labeled Please note: Certain bid submitters satisfy the bonding requirements of 30 ‘‘Geophysical Data and Information (i.e., those that are NOT currently an CFR 256, subpart I, as amended. Statement for Oil and Gas Lease Sale OCS mineral lease record title holder or Also, in accordance with regulations 196’’ and the bidder’s name and designated operator OR those that have at 43 CFR, part 42, subpart C, the lessee qualification number must be clearly ever defaulted on a one-fifth bonus bid shall comply with the U.S. Department identified on the outside of the payment (EFT or otherwise)) are of the Interior’s nonprocurement envelope. This statement must be required to guarantee (secure) their one- debarment and suspension requirements submitted to the MMS at the Gulf of fifth bonus bid payment prior to the and agrees to communicate this Mexico Regional Office, Attention: submission of bids. For those who must requirement to comply with these Resource Evaluation (1201 Elmwood secure the EFT one-fifth bonus bid regulations to persons with whom the Park Boulevard, New Orleans, Louisiana payment, one of the following options lessee does business as it relates to this 70123–2394) by 10 a.m. on Tuesday, may be used: (1) Provide a third-party lease by including this term as a August 16, 2005. The statement may be guarantee; (2) amend development bond condition to enter into their contracts submitted in conjunction with the bids coverage; (3) provide a letter of credit; and other transactions. or separately. Do not include this or (4) provide a lump sum payment in Affirmative Action: The MMS statement in the same envelope advance via EFT. The EFT instructions requests that, prior to bidding, Equal containing a bid. These statements will specify the requirements for each Opportunity Affirmative Action not be opened until after the public bid option. Representation Form MMS 2032 (June reading at Lease Sale 196 and will be Withdrawal of Blocks: The United 1985) and Equal Opportunity kept confidential. An Example of States reserves the right to withdraw Compliance Report Certification Form Preferred Format for the Geophysical any block from this lease sale prior to MMS 2033 (June 1985) be on file in the Data and Information Statement is issuance of a written acceptance of a bid MMS Gulf of Mexico Region included in the FNOS 196 Package. for the block. Adjudication Unit. This certification is Please also refer to a sample of the Acceptance, Rejection, or Return of required by 41 CFR 60 and Executive Geophysical Envelope—Preferred Bids: The United States reserves the Order No. 11246 of September 24, 1965, Format included within the FNOS 196 right to reject any and all bids. In any as amended by Executive Order No. Package. Please refer to NTL No. 2003–G05 for case, no bid will be accepted, and no 11375 of October 13, 1967. In any event, more detail concerning submission of lease for any block will be awarded to prior to the execution of any lease the Geophysical Data and Information any bidder, unless the bidder has contract, both forms are required to be Statement, making the data available to complied with all requirements of this on file in the MMS Gulf of Mexico the MMS following the lease sale, Notice, including the documents Region Adjudication Unit. preferred format, reimbursement for contained in the associated FNOS 196 Geophysical Data and Information costs, and confidentiality. Package and applicable regulations; the Statement: Pursuant to 30 CFR 251.12, bid is the highest valid bid; and the the MMS has a right to access Dated: June 30, 2005. amount of the bid has been determined geophysical data and information R.M. ‘‘Johnnie’’ Burton, to be adequate by the authorized officer. collected under a permit in the OCS. Director, Minerals Management Service. Any bid submitted which does not Every bidder submitting a bid on a block [FR Doc. 05–13380 Filed 7–6–05; 8:45 am] conform to the requirements of this in Sale 196, or participating as a joint BILLING CODE 4310–MR–P Notice, the Act, and other applicable bidder in such a bid, must submit a regulations may be returned to the Geophysical Data and Information person submitting that bid by the RD Statement identifying any processed or DEPARTMENT OF THE INTERIOR and not considered for acceptance. The reprocessed pre- and post-stack depth Attorney General may also review the migrated geophysical data and National Park Service results of the lease sale prior to the information in its possession or control National Register of Historic Places; acceptance of bids and issuance of and used in the evaluation of that block. Notification of Pending Nominations leases. To ensure that the Government The existence, extent (i.e., number of and Related Actions receives a fair return for the conveyance line miles for 2D or number of blocks for of lease rights for this lease sale, high 3D) and type of such data and Nominations for the following bids will be evaluated in accordance information must be clearly identified. properties being considered for listing with MMS bid adequacy procedures. A The statement must include the name or related actions in the National copy of current procedures, and phone number of a contact person, Register were received by the National ‘‘Modifications to the Bid Adequacy and an alternate, knowledgeable about Park Service before June 11, 2005. Procedures’’ at 64 FR 37560 on July 12, the depth data sets (that were processed Pursuant to § 60.13 of 36 CFR part 60 1999, can be obtained from the MMS or reprocessed to correct for depth) used written comments concerning the Gulf of Mexico Region Public in evaluating the block. In the event significance of these properties under Information Unit or via the MMS such data and information includes data the National Register criteria for Internet Web site at http:// sets from different timeframes, you evaluation may be forwarded by United
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States Postal Service, to the National Fillmore County FOR FURTHER INFORMATION CONTACT: Register of Historic Places, National Ohiowa Public School, (School Buildings in Cynthia Trainor (202–205–3354), Office Park Service, 1849 C St. NW., 2280, Nebraska MPS) 202 S. Main St., Ohiowa, of Investigations, U.S. International Washington, DC 20240; by all other 05000725 Trade Commission, 500 E Street SW., carriers, National Register of Historic Howard County Washington, DC 20436. Hearing- Places, National Park Service,1201 Eye Columbia Hall, Jct. of NE 58 and W. Roger impaired persons can obtain St. NW., 8th floor, Washington, DC Wetsch Ave., Dannebrog, 05000724 information on this matter by contacting 20005; or by fax, (202) 371–6447. the Commission’s TDD terminal on 202– Written or faxed comments should be Otoe County 205–1810. Persons with mobility submitted by July 22, 2005. Harmony School, School District #53, impairments who will need special (School Buildings in Nebraska MPS) assistance in gaining access to the John W. Roberts, Address Restricted, Nebraska City, Commission should contact the Office 05000723 Acting Chief, National Register/National of the Secretary at 202–205–2000. Historic Landmarks Program. TENNESSEE General information concerning the IDAHO Knox County Commission may also be obtained by accessing its internet server (http:// Latah County Candoro Marble Company Showroom and Garage, 681 Maryville Pike, Knoxville, www.usitc.gov). The public record for Moscow Downtown Historic District, 05000709 this review may be viewed on the Generally bounded by 1st St., 6th St., Commission’s electronic docket (EDIS) Washington St., and the alley bet. Main Warren County at http://edis.usitc.gov. and Jackson, Moscow, 05000710 Martin—Miller Farm, (Historic Family Farms SUPPLEMENTARY INFORMATION: MICHIGAN in Middle Tennessee MPS) 1597 Old Rock Island Rd., Rowland Station, 05000727 Background. On June 6, 2005, the Marquette County A Request for removal has been made for Commission determined that responses the following resource: to its notice of institution of the subject Vista Theater, 218 Iron St., Megaunee, five-year review were such that a full 05000714 Iowa review pursuant to section 751(c)(5) of Oakland County Scott County the Act should proceed (70 F.R. 36657, Indian Lake Road Stone Arch Bridge, Indian Heinz, Bonaventura, House (First), June 24, 2005). A record of the Lake Rd., E of M24, Orion, 05000712 (Davenport MRA), 1128 W. 5th St., Commissioner’s votes, the Davenport, 84001435 Commission’s statement on adequacy, Sanilac County [FR Doc. 05–13308 Filed 7–6–05; 8:45 am] and any individual Commissioner’s Roach, W.R., Cannery Warehouse and Office BILLING CODE 4312–51–P statements are available from the Office Building, 89 E. Sanborn, Croswell, of the Secretary and at the 05000717 Commission’s web site. Washtenaw County INTERNATIONAL TRADE Participation in the review and public service list. Persons, including Sutherland, Langford and Lydia McMichael, COMMISSION Farmstead, 797 Textile Rd., Pittsfield industrial users of the subject [Investigation No. 731–TA–377 (Second Charter Township, 05000711 merchandise and, if the merchandise is Review)] sold at the retail level, representative Wayne County consumer organizations, wishing to Internal Combustion Industrial Forklift Alger Theater, 16451 E. Warren Ave., Detroit, participate in this review as parties Trucks From Japan 05000719 must file an entry of appearance with Detroit—Leland Hotel, 400 Bagley Ave., AGENCY: United States International the Secretary to the Commission, as Detroit, 05000718 Trade Commission. provided in section 201.11 of the General Motors Research Laboratory, 485– ACTION: Scheduling of a full five-year Commission’s rules, by 45 days after 495 Milwaukee, Detroit, 05000713 review concerning the antidumping publication of this notice. A party that Mellus Newspapers Building, 1661 Fort St., duty order on internal combustion filed a notice of appearance following Lincoln Park, 05000716 industrial forklift trucks from Japan. publication of the Commission’s notice Woodhouse, John T., House, 33 Old Brook of institution of the review need not file Ln., Grosse Pointe Farms, 05000715 SUMMARY: The Commission hereby gives an additional notice of appearance. The MONTANA notice of the scheduling of a full review Secretary will maintain a public service pursuant to section 751(c)(5) of the list containing the names and addresses Broadwater County Tariff Act of 1930 (19 U.S.C. 1675(c)(5)) of all persons, or their representatives, Toston Bridge, Spanning the Missouri R, on (the Act) to determine whether who are parties to the review. abandoned segment of old U.S. 287, at revocation of the antidumping duty Limited disclosure of business Toston, Toston, 05000720 order on internal combustion industrial proprietary information (BPI) under an NEBRASKA forklift trucks from Japan would be administrative protective order (APO) likely to lead to continuation or and BPI service list. Pursuant to section Adams County recurrence of material injury within a 207.7(a) of the Commission’s rules, the Hastings Municipal Airport Hangar— reasonably foreseeable time. For further Secretary will make BPI gathered in this Building No. 1, 3100 E. Twelfth St., information concerning the conduct of review available to authorized Hastings, 05000722 this review and rules of general applicants under the APO issued in the Douglas County application, consult the Commission’s review, provided that the application is Dundee—Happy Hollow Historic District, Rules of Practice and Procedure, part made by 45 days after publication of Roughly Hamilton on N. JE George and 201, subparts A through E (19 CFR part this notice. Authorized applicants must Happy Hollow on W. Leavemworth on S, 201), and part 207, subparts A, D, E, and represent interested parties, as defined 48th on E, Omaha, 05000726 F (19 CFR part 207). by 19 U.S.C. 1677(9), who are parties to Logan, The, 1804 Dodge, Omaha, 05000721 EFFECTIVE DATE: June 29, 2005. the review. A party granted access to
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BPI following publication of the information and must otherwise comply States International Trade Commission Commission’s notice of institution of with section 207.68 of the Commission’s (Commission) determines, pursuant to the review need not reapply for such rules. All written submissions must section 735(b) of the Tariff Act of 1930 access. A separate service list will be conform with the provisions of section (19 U.S.C. 1673d(b)) (the Act), that an maintained by the Secretary for those 201.8 of the Commission’s rules; any industry in the United States is parties authorized to receive BPI under submissions that contain BPI must also materially injured by reason of imports the APO. conform with the requirements of from Finland, Mexico, the Netherlands, Staff report. The prehearing staff sections 201.6, 207.3, and 207.7 of the and Sweden of purified report in the review will be placed in Commission’s rules. The Commission’s carboxymethylcellulose, provided for in the nonpublic record on October 12, rules do not authorize filing of subheading 3912.31.00 of the 2005, and a public version will be submissions with the Secretary by Harmonized Tariff Schedule of the issued thereafter, pursuant to section facsimile or electronic means, except to United States, that have been found by 207.64 of the Commission’s rules. the extent permitted by section 201.8 of the Department of Commerce Hearing. The Commission will hold a the Commission’s rules, as amended, 67 hearing in connection with the review (Commerce) to be sold in the United FR 68036 (November 8, 2002). Even States at less than fair value (LTFV).2 beginning at 9:30 a.m. on November 1, where electronic filing of a document is 2005, at the U.S. International Trade permitted, certain documents must also Background Commission Building. Requests to be filed in paper form, as specified in II appear at the hearing should be filed in (C) of the Commission’s Handbook on The Commission instituted these writing with the Secretary to the Electronic Filing Procedures, 67 FR investigations effective June 9, 2004, Commission on or before October 25, 68168, 68173 (November 8, 2002). following receipt of a petition filed with 2005. A nonparty who has testimony Additional written submissions to the the Commission and Commerce by that may aid the Commission’s Commission, including requests Aqualon Co., a division of Hercules, deliberations may request permission to pursuant to section 201.12 of the Inc., Wilmington, DE. The final phase of present a short statement at the hearing. Commission’s rules, shall not be these investigations was scheduled by All parties and nonparties desiring to accepted unless good cause is shown for the Commission following notification appear at the hearing and make oral accepting such submissions, or unless of a preliminary determination by presentations should attend a the submission is pursuant to a specific Commerce that imports of purified prehearing conference to be held at 9:30 request by a Commissioner or carboxymethylcellulose from Finland, a.m. on October 27, 2005, at the U.S. Commission staff. Mexico, the Netherlands, and Sweden International Trade Commission In accordance with sections 201.16(c) were being sold at LTFV within the Building. Oral testimony and written and 207.3 of the Commission’s rules, materials to be submitted at the public meaning of section 733(b) of the Act (19 each document filed by a party to the U.S.C. 1673b(b)). Notice of the hearing are governed by sections review must be served on all other 201.6(b)(2), 201.13(f), 207.24, and scheduling of the final phase of the parties to the review (as identified by Commission’s investigations and of a 207.66 of the Commission’s rules. either the public or BPI service list), and Parties must submit any request to public hearing to be held in connection a certificate of service must be timely therewith was given by posting copies present a portion of their hearing filed. The Secretary will not accept a testimony in camera no later than 7 of the notice in the Office of the document for filing without a certificate Secretary, U.S. International Trade days prior to the date of the hearing. of service. Written submissions. Each party to the Commission, Washington, DC, and by review may submit a prehearing brief to Authority: This review is being conducted publishing the notice in the Federal the Commission. Prehearing briefs must under authority of title VII of the Tariff Act Register of January 10, 2005 (70 FR conform with the provisions of section of 1930; this notice is published pursuant to 1740). The hearing was held in section 207.62 of the Commission’s rules. 207.65 of the Commission’s rules; the Washington, DC, on May 12, 2005, and deadline for filing is October 21, 2005. By order of the Commission. all persons who requested the Parties may also file written testimony Issued: July 1, 2005. opportunity were permitted to appear in in connection with their presentation at Marilyn R. Abbot, person or by counsel. the hearing, as provided in section Secretary to the Commission. The Commission transmitted its 207.24 of the Commission’s rules, and [FR Doc. 05–13397 Filed 7–6–05; 8:45 am] posthearing briefs, which must conform determinations in these investigations to BILLING CODE 7020–02–M with the provisions of section 207.67 of the Secretary of Commerce on June 30, the Commission’s rules. The deadline 2005. The views of the Commission are contained in USITC Publication 3787 for filing posthearing briefs is November INTERNATIONAL TRADE (June 2005), entitled Purified 10, 2005; witness testimony must be COMMISSION filed no later than three days before the Carboxymethylcellulose from Finland, hearing. In addition, any person who [Investigations Nos. 731–TA–1084–1087 Mexico, the Netherlands, and Sweden: has not entered an appearance as a party (Final)] Investigations Nos. 731–TA–1084–1087 (Final). to the review may submit a written Purified Carboxymethylcellulose From statement of information pertinent to Finland, Mexico, The Netherlands, and By order of the Commission. the subject of the review on or before Sweden Issued: June 30, 2005. November 10, 2005. On December 7, 2005, the Commission will make Determinations Marilyn R. Abbott, available to parties all information on Secretary to the Commission. On the basis of the record 1 developed which they have not had an opportunity [FR Doc. 05–13392 Filed 7–6–05; 8:45 am] in the subject investigations, the United to comment. Parties may submit final BILLING CODE 7020–02–P comments on this information on or 1 The record is defined in sec. 207.2(f) of the before December 9, 2005, but such final Commission’s Rules of Practice and Procedure (19 2 Commissioner Daniel R. Pearson made negative comments must not contain new factual CFR 207.2(f)). determinations with respect to all subject countries.
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DEPARTMENT OF JUSTICE of the amended decree may also be Department of Justice Web site, http:// obtained by mail from the Consent www.usdoj.gov/enrd/open.html. A copy Notice of Lodging of Consent Decree Decree Library, P.O. Box 7611, U.S. of the Consent Decree may also be Pursuant to the Clean Air Act, the Department of Justice, Washington, DC obtained by mail from the Consent Clean Water Act, the Resource 20044–7611 or by faxing or e-mailing a Decree Library, PO Box 7611, U.S. Conservation and Recovery Act, the request to Tonia Fleetwood Department of Justice, Washington, DC Emergency Planning and Community ([email protected]), fax No. 20044–7611 or by faxing or e-mailing a Right To Know Act, and the (202) 514–0097, phone confirmation request to Tonia Fleetwood Comprehensive Environmental number (202) 514–1547. In requesting a ([email protected]), fax no. Response, Compensation and Liability copy from the Consent Decree Library, (202) 514–0097, phone confirmation Act please enclose a check in the amount of number (202) 514–1547. In requesting a $13.75 (25 cents per page reproduction copy from the Consent Decree Library, Notice is hereby given that a consent cost) payable to the U.S. Treasury. please enclose a check in the amount of decree in United States and the State of $68.50 (25 cents per page reproduction Robert Brook, Delaware v. Formosa Plastics cost) payable to the U.S. Treasury. In Corporation, Delaware, Civil Action No. Assistant Chief, Environmental Enforcement requesting a copy exclusive of exhibits, 05–443 (D. Del.) was lodged with the Section, Environment and Natural Resources Division. please enclose a check in the amount of court on June 28, 2005. $5.75 (25 cents per page reproduction The proposed consent decree resolves [FR Doc. 05–13388 Filed 7–6–05; 8:45 am] cost) payable to the U.S. Treasury. alleged violations of the Clean Air Act, BILLING CODE 4410–15–M the Clean Water Act, the Resource Robert Brook, Conservation and Recovery Act, the Assistant Chief, Environmental Enforcement Emergency Planning and Community DEPARTMENT OF JUSTICE Section, Environment and Natural Resources Right to Know Act and the Division. Comprehensive Environmental Notice of Lodging of Consent Decree [FR Doc. 05–13387 Filed 7–6–05; 8:45 am] Under the Comprehensive Response, Compensation and Liability BILLING CODE 4410–15–M Act that occurred at Formosa’s Delaware Environmental Response, City, Delaware PVC manufacturing Compensation and Liability Act facility. It requires the defendant to pay Under 28 CFR 50.7 notice is hereby DEPARTMENT OF JUSTICE a civil penalty of $225,000 to the United given that on June 27, 2005, a proposed Notice of Lodging of Consent Decree States and $225,000 to the State; to meet Consent Decree in United States v. Pursuant to the Clean Air Act detailed requirements designed to Metal Masters Foodservice Equipment prevent future violations of each of the Company, Inc., Civil Action No. 05–430 Notice is hereby given that on June above statutes; to reduce emissions of was lodged with the United States 16, 2005, a proposed consent decree in vinyl chloride to the ambient Air to District Court for the District of United States v. Morton Int’l, Inc., Civil levels substantially below those Delaware. Action No. 05–3088 (DMC), was lodged otherwise allowed by law; and to carry In this action the United States sought with the United States District Court for out a supplemental environmental reimbursement of response costs the District of New Jersey. project that will protect against the incurred in connection with property The proposed consent decree will chance of an accidental release of vinyl known as the Tyler Site located at 655 settle the United States’ claims for chloride gas. Glenwood Avenue in Smyrna, failure to comply with the general duty The Department of Justice will Delaware. The Consent Decree provides clause of the Clean Air Act, 42 U.S.C. receive, for a period of thirty (30) days that the defendant pay $100,000 to the 7412(r)(l), on behalf of the from the date of this publication, EPA Hazardous Substance Superfund to Environmental Protection Agency comments relating to the proposed resolve its liability in connection with (‘‘EPA’’) against Morton International, consent decree. Comments should be its releases of hazardous substances at Inc. (‘‘Morton’’), relating to its violations addressed to the Assistant Attorney the Tyler Site. of regulations applicable at its former General, Environment and Natural The Department of Justice will receive facility in Patterson, New Jersey, which Resources Division, PO Box 7611, U.S. for a period of thirty (30) days from the occurred through April 1998. Pursuant Department of Justice, Washington, DC date of this publication comments to the proposed consent decree, Morton 2004, and should refer to United States relating to the Consent Decree. will pay $50,000.00 as a civil penalty and the State of Delaware v. Formosa Comments should be addressed to the and complete a Supplemental Plastics Corporation, Delaware, Civil Assistant Attorney General, Environmental Project (‘‘SEP’’) of up to Action No. 05–443 (D. Del.), DOJ Ref. # Environment and Natural Resources $200,000.00 by supplying Passaic 90–5–2–1–08297. Division, PO Box 7611, U.S. Department County Department of Health with The proposed consent decree may be of Justice, Washington, DC 20044–7611, equipment that is useful in identifying examined and copied at the Office of the and should refer to United States v. potentially dangerous circumstances United States Attorney, 1007 North Metal Masters Foodservice Equipment and in responding thereto. Should the Orange Street, Suite 700, Wilmington, Company, Inc., D.J. Ref. 90–11–3– SEP cost less than $200,000, the DE 19899–2046; or at the Region III 06700. difference between that amount and the Office of the Environmental Protection The Consent Decree may be examined actual cost of SEP will be paid as an Agency, c/o Joyce Howell, Senior at the Office of the United States additional civil penalty. Assistant Regional Counsel, 1650 Arch Attorney, District of Delaware, 1007 The Department of Justice will receive Street, Philadelphia, PA 19103. During Orange Street, Suite 700, Wilmington, for a period of thirty (30) days from the the public comment period, the Delaware 19801, and at U.S. EPA Region date of this publication accept amended consent decree may also be III, 1650 Arch Street, Philadelphia, comments relating to the proposed examined on the following Department Pennsylvania 19103. During the public consent decree. Comments should be of Justice Web site, http:// comment period, the Consent Decree addressed to the Assistant Attorney www.usdoj.gov/enrd/open.html. A copy may also be examined on the following General of the Environmental and
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Natural Resources Division, Department 1797. Copies of any of these materials taking an unfair advantage of the market of Justice, Washington, DC 20530, and may be obtained upon request and place. should refer to United States v. Morton payment of a copying fee. JUST SIT BACK AND ASK THE Int’l, Inc., Civil Action No. 05–3088 QUESTION OF HOW AND WHY THESE Dorothy B. Fountain, (DMC), D.J. Ref. 90–5–2–1–07513. PEOPLE ARE DOING THIS. PURE GREED Deputy Director of Operations, Antitrust The proposed consent decree may be Judge: Thomas N. O’Neill, Jr. Division. examined at the Office of the United States Attorney, District of New Jersey, 1/5/05 Response of the United States to Public 970 Broad Street, Newark, New Jersey Roger W. Fones, Comments on the Proposed Final 07102. During the public comment Chief, Transportation, Energy & Agriculture Judgment Section, U.S. Department of Justice, period, the proposed consent decree Antitrust Division, 325 7th Street, NW., Pursuant to the Antitrust Procedures may also be examined on the following Suite 500, Washington DC 20530 and Penalties Act, 15 U.S.C. 16(b) Department of Justice Web site, http:// Dear Mr. Fones: This letter is in response (‘‘Tunney Act’’), the United States of www.usdoj.gov/enrd/open.html. A copy to the investigation of the Eastern Mushroom America hereby files comments received of the proposed consent decree may also Marketing Cooperative (EMMC). These from a member of the public concerning be obtained by mail from the Consent grower packers have pulled the wool over the the proposed Final Judgment in this Decree Library, P.O. Box 7611, U.S. eyes of the customers, consumers, and the civil antitrust action and the Response Department of Justice, Washington, DC Department of Justice. This group has forced of the United States to those comments. 20044–7611 or by faxing or e-mailing a many members to be in the EMMC or they The United States continues to believe request to Tonia Fleetwood would not do business with them. In the community each company would sell fresh that the proposed Final Judgment will ([email protected]), fax no. mushrooms to each other to fill daily needs. provide an effective and appropriate (202) 514–0097, phone confirmation If you were not a member a great deal of number (202) 514–1547. If requesting a remedy for the antitrust violations pressure was put on these people. From not alleged in the Complaint. The United copy of the proposed consent decree, selling to overcharging and even trying to please so note and enclose a check in limit the picking containers they could pick States will move the Court for entry of the amount of $5.75 (25 cents per page in. Any one that tried to start to sell fresh the proposed Final Judgment after the reproduction cost) payable to the U.S. mushrooms in the new period of the EMMC public comment and Response have Treasury. were shut down in other means within the been published in the Federal Register, industry. This has not been an ethical pursuant to 15 U.S.C. 16(d). Ronald Gluck, business plan. Assistant Chief, Environmental Enforcement As far as the growing houses (Farms) what I. Factual Background Section, Environmental and Natural the U.S. Government has come up with is a token. These growing houses have been A. The Defendant, the Eastern Resources Division. Mushroom Marketing Cooperative [FR Doc. 05–13386 Filed 7–6–05; 8:45 am] pillaged stripped to no value to any one new that wants to purchase as a growing facility. (‘‘EMMC’’). BILLING CODE 4410–15–M The grower farmers are very smart and only will give information to the government that The EMMC was incorporated in the it wants them to know. No fault of the Commonwealth of Pennsylvania on DEPARTMENT OF JUSTICE government which would have no way of December 21, 2000, and began knowing anything about the growing operations in January 2001. At the time Antitrust Division facilities. the Complaint was filed in this case, the First this group purchased the growing [Civil No.: 04–CV–5829] EMMC had 15 members with a single farms. Threatened anyone that competed for staff person, an executive director. The Public Comment and Response on the facilities. The Group would go into the marketing area and give out low quotes on EMMC is made up of entities that grow, Proposed Final Judgment United fresh mushrooms even when they were buy, package, and ship Agaricus and States v. Eastern Mushroom Marketing raising the pricing in the home markets. specialty mushrooms to retail and food Cooperative, Inc. Second when they acquired these growing service outlets across the United States. farms they would go in and strip the houses The EMMC members each grow some of Pursuant to the Antitrust Procedures of anything useful to grow mushrooms and their own product, but they also buy and Penalties Act, 15 U.S.C. 16(b)–(h), just leave the walls. This was a guarantee no mushrooms from each other and from the United States of America hereby one would start these back up. This is the nonmembers. Shortly after it began publishes below the comment received insurance police on top of the restriction. operations, the EMMC adopted on the proposed Final Judgment in Growing of mushrooms is a specialized minimum prices at which its members United States v. Eastern Mushroom process. Not just planting in field. Must be could sell their mushrooms to Marketing Cooperative, Inc., Civil air conditioned and very sanitary. Compost customers in various geographic regions Action No.: 04–CV–5829 (TNO), which facilities with specialized equipment. Not something that is easy. This is why pulling was filed in the Untied States District throughout the United States. The the restrictions mean absolutely nothing. The minimum prices, with periodic Court for the Eastern District of damage is done when they take all the Pennsylvania, together with the United adjustments, were published regularly special equipment out. among members. States’s response to the comment. Currently this group is trying to purchase Copies of the comment and response the Money’s farms that are shutting down but According to the United States are available for inspection at the U.S. waiting for them to close. The plan is to Department of Agriculture, 844 million Department of Justice, Antitrust purchase these farms and pillage so they will pounds of mushrooms were produced Division, 325 7th Street, NW., Room never be able to grow mushrooms again. This nationwide during the 2001–2002 200, Washington, DC 20530, (telephone: is a way to get what they want and insult the growing season with an approximate U.S. Government. Think about it. Many value of $908 million. The EMMC (202) 514–2481), and at the Office of the businesses have suffered and many Clerk of the United States District Court consumers have overpaid for mushrooms. members’ estimated collective share of for the Eastern District of Pennsylvania, They have created a false market. If this was that national market was 60%, with 601 Market Street, Room 2609, not true how can people purchase for their share estimated to be higher in the Philadelphia, Pennsylvania 19106– millions and sit on them if they are not East region.
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B. The EMMC’s Real Estate Transactions properties in which it held an 7. The United States received one ownership or leasehold interest. comment from an anonymous member Shortly after instituting minimum of the public which is attached hereto C. Complaint price increases in all regions, the EMMC as Appendix A. The United States began acquiring mushroom farms. On December 16, 2004, the United hereby files this Response pursuant to Between May of 2001 and March of States filed a Complaint alleging that the 15 U.S.C. 16(b). 2002, the EMMC acquired one real estate transactions entered into by The United States will move this mushroom farm in Hillsboro, Texas, one the EMMC were intended to restrict, Court for entry of the proposed Final farm in Dublin, Georgia, and three in forestall and exclude competition from Judgment after the comment and the Pennsylvania. These five farms had the nonmember farmers in violation of Response are published in the Federal capacity to grow fresh mushrooms in Section 1 of the Sherman Act. The Register. competition with EMMC members’ Complaint further alleged that the II. Legal Standard Governing the farms even though none of the farms acreage and facilities available to Court’s Public Interest Determination was in operation at the time of its produce mushrooms for American respective purchase. Except for the consumers were artificially reduced and Upon the publication of the public Texas farm, the EMMC sold these consumers were deprived of the benefits comment and this Response, the United properties almost immediately after of competition. States will have fully complied with the purchasing them and filed deed Tunney Act and will move for entry of restrictions at the time of resale which D. The Proposed Settlement the proposed Final Judgment as being effectively prohibited in perpetuity the At the time the United States filed its ‘‘in the public interest.’’ 15 U.S.C. 16(e), conduct of any business related to the Complaint, it also filed a proposed Final as amended. In making the ‘‘public mushroom industry. Judgment, a Competitive Impact interest’’ determination, the Court In addition to the aforesaid purchases Statement (‘‘CIS’’), and a Stipulation should apply a deferential standard and and resales, the EMMC entered into signed by counsel for the parties. The should withhold its approval only lease option agreements for two more proposed Final Judgment is designed to under very limited conditions. See, e.g., mushroom farms, one in Ohio and the eliminate the anticompetitive effects of Mass. Sch. of Law at Andover, Inc. v. other in Pennsylvania, in 2002. The the EMMC’s real estate transactions by United States, 118 F.3d 776, 783 (D.C. EMMC never actually entered into removing the existing deed restrictions Cir. 1997). Specifically, the Court leases for these properties, but the on properties in which the EMMC has should review the proposed Final agreements gave it the right to file deed an ownership or leasehold interest and Judgment in light of the violations restrictions prohibiting the production preventing the filing of any similar deed charged in the complaint. Id. (quoting of mushrooms on the properties for ten restrictions in the future. United States v. Microsoft Corp. 56 F.3d years, and the EMMC exercised that 1448, 1462 (D.C. Cir. 1995)). E. Compliance with the Tunney Act right. It is not proper during a Tunney Act review to ‘‘reach beyond the complaint The combined production capacity of To date, the United States and the EMMC have complied with the to evaluate claims that the government the seven farms that were purchased/ did not make and to inquire as to why lease-optioned by the EMMC totaled provisions of the Tunney Act as follows: 1. The Complaint, proposed Final they were not made.’’ Microsoft 56 F.3d approximately 42–44 million pounds of at 1459; see also United States v. mushrooms annually. Judgment, CIS and Stipulation were all filed on December 16, 2004. Archer-Daniels-Midland Co., 272 F. The United States investigated the 2. The EMMC filed the statement Supp. 2d 1, 6–7 (D.D.C. 2003) (rejecting likelihood that the several land required by 15 U.S.C. 16(g) on May 11, argument that court should consider acquisitions and related transactions by 2005. effects in markets other than those the EMMC were entered into with the 3. A summary of the terms of the raised in the complaint); United States sole intent of removing productive proposed Final Judgment and CIS was v. Pearson PLC 55 F. Supp. 2d 43, 45 capacity from the market to avoid published in the Washington Post, a (D.D.C. 1999) (noting that a court should competition from nonmembers in newspaper of general circulation in the not ‘‘base its public interest violation of Section 1 of the Sherman District of Columbia, for seven days determination on antitrust concerns in Act (15 U.S.C. 1) as part of a conspiracy during the period February 5, 2005 markets other than those alleged in the to restrain trade in the East mushroom through February 11, 2005. government’s complaint’’). Because market. Upon the completion of the 4. A summary of the terms of the ‘‘[t]he court’s authority to review the investigation, the United States proposed Final Judgment and CIS was decree depends entirely on the concluded that the EMMC had violated published in the Philadelphia Inquirer, government’s exercising its Section 1 of the Sherman Act. a newspaper of general circulation in prosecutorial discretion by bringing a In or about November 2004, and the region surrounding Philadelphia, case in the first place’’ it follows that before the filing of the Complaint in this Pennsylvania, for seven days during the ‘‘the court is only authorized to review case, the United States and the EMMC period February 27, 2005 through March the decree itself,’’ and not to ‘‘effectively reached an agreement whereby the 5, 2005. redraft the complaint’’ to inquire into EMMC agreed to consent to the 5. The Complaint, CIS, and proposed other matters the United States might proposed Final Judgment filed with the Final Judgment were published in the have but did not pursue. Microsoft, 56 Complaint in this case. Pursuant to that Federal Register on February 10, 2005, F.3d at 1459–60; see also United States Final Judgment, the EMMC agreed to 70 FR 7120 (2005) The United States v. W. Elec. Co., 993 F.2d 1572, 1577 file all papers necessary to eliminate all also posted the Complaint, proposed (D.C. Cir. 1993) (noting that a Tunney deed restrictions previously filed on the Final Judgment and the CIS on its Web Act proceeding does not permit ‘‘de properties in which it held an site, http://www.usdoj.gov/atr/cases/ novo determination of facts and issues’’ ownership or leasehold interest and f206900/206919. because ‘‘[t]he balancing of competing agreed that, in the future, it would 6. The sixty-day comment period social and political interests affected by neither file nor seek to enforce any specified in 15 U.S.C. 16(b) expired on a proposed antitrust decree must be left, similar deed restrictions on any other May 5, 2005. in the first instance, to the discretion of
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the Attorney General’’ (citations demonstrate that the proposed Final The last notification was filed with omitted)). Judgment serves the public interest. the Department on June 15, 2004. A Moreover, the United States is Accordingly, after the publication of notice was published in the Federal entitled to ‘‘due respect’’ concerning its this Response in the Federal Register Register pursuant to section 69(b) of the ‘‘prediction as to the effect of proposed pursuant to 15 U.S.C. 16(b) and (d), the Act on July 14, 2004 (69 FR 42212). remedies, its perception of the market United States will move this Court to structure, and its view of the nature of enter the Final Judgment. Dorothy B. Fountain, the case.’’ Archer-Daniels-Midland Co., Respectfully submitted, Deputy Director of Operations, Antitrust 272 F. Supp. 2d at 6 (citing Microsoft, Division. 56 F.3d at 1461). C. Alexander Hewes, Tracey D. [FR Doc. 05–13353 Filed 7–6–05; 8:45 am] Chambers, David McDowell, III. Summary of Public Comment BILLING CODE 4410–11–M Trial Attorneys, United States Although it is unclear whether the Department of Justice, Antitrust author intended it as a comment in this Division, Transportation, Energy & DEPARTMENT OF JUSTICE proceeding, the United States received Agriculture Section, 325 7th Street, one anonymous letter related to this NW., Suite 500, Washington, DC 20530, Antitrust Division case during the relevant 30-day time Telephone: (202) 305–8519, Facsimile: period. The letter made a number of (202) 616–2441. Notice Pursuant to the National allegations about the conduct of Laura Heiser, Anne Spiegelman, Cooperative Research and Production Defendant EMMC and various Act of 1993—Mobile Enterprise Trial Attorneys, Antitrust Division, unidentified mushroom grower/packers. Alliance, Inc. These allegations are not comments on Philadelphia Field Office. the proposed Final Judgment and [FR Doc. 05–13354 Filed 7–6–05; 8:45 am] Notice is hereby given that, on June therefore are not relevant here. In any BILLING CODE 4410–11–M 13, 2005, pursuant to Section 6(a) of the event, the United States investigated National Cooperative Research and each of these or similar allegations and Production Act of 1993, 15 U.S.C. 4301 concluded that they were DEPARTMENT OF JUSTICE et seq. (‘‘the Act’’), Mobile Enterprise unsubstantiated or did not constitute Alliance, Inc. has filed written Antitrust Division violations of the Federal antitrust laws. notifications simultaneously with the The letter also commented on the Attorney General and the Federal Trade relief contained in the proposed Final Notice Pursuant to the National Commission disclosing changes in its Judgment, claiming that the EMMC had Cooperative Research and Production sold or removed specialized equipment Act of 1993—Microcontaminant membership. The notifications were from the farms, and questioned the Reduction Venture filed for the purpose of extending the Act’s provisions limiting the recovery of value of removing the deed restrictions Notice is hereby given that, on June 8, the EMMC had placed on the properties. antitrust plaintiffs to actual damages 2005, pursuant to Section 6(a) of the under specified circumstances. IV. The Response of the United States National Cooperative Research and Specifically, Appear Networks, to the Comment Production Act of 1993, 15 U.S.C. 4301 Stockholm, Sweden has been added as et seq. (‘‘the Act’’), Microcontaminant In filing this case, the United States a party to this venture. Reduction Venture (‘‘MRV’’) has filed was concerned that the EMMC had No other changes have been made in collectively removed 8 percent of the written notifications simultaneously with the Attorney General and the either the membership or planned mushroom production capacity in the activity of the group research project. East region of the United States. This Federal Trade Commission disclosing Membership in this group research was done primarily by placing deed changes in its project status. The project remains open, and Mobile restriction on former farms, restrictions notifications were filed for the purpose that erected an absolute barrier to new of extending the Act’s provisions Enterprise Alliance, Inc. intends to file entry on these farms. By removing these limiting the recovery of antitrust additional written notification restrictions, the proposed Final plaintiffs to actual damages under disclosing all changes in membership. Judgment assures that new entry can specified circumstances. The change in On June 24, 2004, Mobile Enterprise occur wherever economically justified. its project status is: The parties to MRV, Alliance, Inc. filed its original KMG–Bernuth, Inc., Houston, TX and There are a number of factors in notification pursuant to section 6(a) of Vulcan Materials Company, addition to the presence of specialized the Act. The Department of Justice Birmingham, AL, have extended the equipment that make a farm attractive to published a notice in the Federal potential mushroom entrants, including term of the venture from four to five years. Register pursuant to section 6(b) of the suitable buildings, an available trained Act on July 23, 2004 (69 FR 44062). labor force in the area, and existing No other changes have been made in zoning approvals. Specialized either the membership or planned The last notification was filed with equipment, though potentially valuable, activity of the group research project. the Department on March 17, 2005. A is not unique and can be replaced. Membership in this group research notice was published in the Federal Accordingly, the United States project remains open, and MRV intends Register pursuant to section 6(b) of the determined that the crucial element of to file additional written notification Act on April 1, 2005 (70 FR 16944). disclosing all changes in membership. relief was the removal of the deed Dorothy B. Fountain, restrictions. The proposed final On June 13, 2001, MRV filed its Deputy Director of Operations, Antitrust Judgment accomplishes this. original notification pursuant to Section 69(a) of the Act. The Department of Division. V. Conclusion Justice published a notice in the Federal [FR Doc. 05–13351 Filed 7–6–05; 8:45 am] The Competitive Impact Statement Register pursuant to Section 6(b) of the BILLING CODE 4410–11–M and this Response to Comments Act on July 19, 2001 (66 FR 37709).
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DEPARTMENT OF JUSTICE filed written notifications filed for the purpose of extending the simultaneously with the Attorney Act’s provisions limiting the recovery of Antitrust Division General and the Federal Trade antitrust plaintiffs to actual damages Commission disclosing (1) the name and under specified circumstances. Notice Pursuant to the National principal place of business of the Specifically, Lehigh White Cement Cooperative Research and Production standards development organization Company, Riverside, CA has been added Act of 1993—National Center for and (2) the nature and scope of its as a Member; Cadence Environmental Manufacturing Sciences, Inc. standards development activities. The Energy, Inc., Michigan City, MI has been Notice is hereby given that, on May notifications were filed for the purpose added as an Associate Member; and 31, 2005, pursuant to Section 6(a) of the of invoking the Act’s provisions limiting Puget Sound Concrete Specifications National Cooperative Research and the recovery of antitrust plaintiffs to Council, Des Moines, WA has been Production Act of 1993, 15 U.S.C. 4301 actual damages under specified added as an Affiliate Member. Also, et seq. (‘‘the Act’’), National Center for circumstances. RMC Pacific Materials, Pleasanton, CA Manufacturing Sciences, Inc. (‘‘NCMS’’) Pursuant to Section 6(b) of the Act, has changed its name to RMC–CEMEX. has filed written notifications the name and principal place of No other changes have been made in simultaneously with the Attorney business of the standards development either the membership or planned General and the Federal Trade organization is: NFC Forum, Inc., activity of the group research project. Commission disclosing changes in its Wakefield, MA. The nature and scope of Membership in this group research membership. The notifications were NFC Forum Inc.’s standards project remains open, and PCA intends filed for the purpose of extending the development activities are: (1) To to file additional written notification Act’s provisions limiting the recovery of promote the development and adoption disclosing all changes in membership. of open, accessible standards, antitrust plaintiffs to actual damages On January 7, 1985, PCA filed its specifications, recommendations and under specified circumstances. original notification pursuant to Section solutions relating to Near Field Specifically, Coherix, Inc., Ann Arbor, 6(a) of the Act. The Department of MI; and Star Cutter Company, Communication (collectively, ‘‘Specifications and Other Solutions’’); Justice published a notice in the Federal Farmington Hills, MI have been added Register pursuant to section 6(b) of the as parties to this venture. Also, General (2) to promote such Specifications and Other Solutions worldwide; (3) to Act on February 5, 1985 (50 FR 5015). Atomics, San Diego, CA; and Zagar The last notification was filed with Incorporated, Cleveland, OH have provide for testing and conformity assessment of implementations in order the Department on March 16, 2005. A withdrawn as parties to this venture. notice was published in the Federal No other changes have been made in to ensure and/or facilitate compliance Register pursuant to section 6(b) of the either the membership or planned with Specifications and Other Act on April 1, 2005 (70 FR 16844). activity of the group research project. Solutions; (4) to operate a branding Membership in this group research program based upon distinctive Dorothy B. Fountain, project remains open, and NCMS trademarks to create high customer Deputy Director of Operations, Antitrust intends to file additional written awareness of, demand for, and Division. notification disclosing all changes in confidence in products designed in [FR Doc. 05–13352 Filed 7–6–05; 8:45 am] membership. compliance with Specifications and BILLING CODE 4410–11–M On February 20, 1987, NCMS filed its Other Solutions; and (5) to undertake original notification pursuant to section such other activities as may from time 6(a) of the Act. The Department of to time be appropriate to further the DEPARTMENT OF JUSTICE Justice published a notice in the Federal purposes and achieve the goals set forth Register pursuant to section 6(b) of the above. Antitrust Division Act on March 17, 1987 (52 FR 8375). Dorothy B. Fountain, The last notification was filed with Notice Pursuant to the National the Department on February 1, 2005. A Deputy Director of Operations, Antitrust Cooperative Research and Production Division. notice was published in the Federal Act of 1993—Southwest Research Register pursuant to section 6(b) of the [FR Doc. 05–13348 Filed 7–6–05; 8:45 am] Institute: Cooperative Research Group Act on March 8, 2005 (70 FR 11271). BILLING CODE 4410–11–M on High Efficiency Durable Gasoline Engine Dorothy B. Fountain, Deputy Director of Operations, Antitrust DEPARTMENT OF JUSTICE Notice is hereby given that, on June Division. 10, 2005, pursuant to Section 6(a) of the [FR Doc. 05–13350 Filed 7–6–05; 8:45 am] Antitrust Division National Cooperative Research and BILLING CODE 4410–11–M Notice Pursuant to the National Production Act of 1993, 15 U.S.C. 4301 Cooperative Research and Production et seq. (‘‘the Act’’), Southwest Research Institute: Cooperative Research Group DEPARTMENT OF JUSTICE Act of 1993—Portland Cement Association on High Efficiency Durable Gasoline Engine (‘‘HEDGE’’) has filed written Antitrust Division Notice is hereby given that, on May notifications simultaneously with the Notice Pursuant to the National 31, 2005, pursuant to Section 6(a) of the Attorney General and the Federal Trade Cooperative Research and Production National Cooperative Research and Commission disclosing (1) The Act of 1993—NFC Forum, Inc. Production Act of 1993, 15 U.S.C. 4301 identities of the parties to the venture et seq. (‘‘the Act’’), Portland Cement and (2) the nature and objectives of the Notice is hereby given that, on June Association (‘‘PCA’’) has filed written venture. The notifications were filed for 10, 2005, pursuant to Section 6(a) of the notifications simultaneously with the the purpose of invoking the Act’s National Cooperative Research and Attorney General and the Federal Trade provisions limiting the recovery of Production Act of 1993, 15 U.S.C. 4301 Commission disclosing changes in its antitrust plaintiffs to actual damages et seq. (‘‘the Act’’), NFC Forum, Inc. has membership. The notifications were under specified circumstances.
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Pursuant to section 6(b) of the Act, the United States Parole Commission, (301) electronic, mechanical, or other identities of the parties to the venture 492–5990. technological collection techniques or are: Corning, Inc., Corning, NY; other forms of information technology, Correction Cummins Technical Center, Columbus, e.g., permitting electronic submission of OH; Hino Motors, Ltd., Tokyo, Japan; In the Federal Register of June 29, responses. John Deere Product Engineering Center, 2005, in FR Doc 05–12890, on pages Agency: Employment and Training Waterloo, IA; Peugeot Citroen 37433–37434, correct the TIME AND DATE Administration (ETA). Automobiles (the R&D Subsidiary), caption to read: Type of Review: Revision of a Cedex, France; Renault Vehicules TIME AND DATE: 2:30 p.m., Monday, July currently approved collection. Industries, Cedex, France; and 28, 2005. Title: Work Opportunity Tax Credit (WOTC) and Welfare-to-Work (WtW) Volkswagen of America, Inc., Auburn Dated: July 1, 2005. Hills, MI. The general area of HEDGE’s Tax Credit. Pamela A. Posch, planned activity is to develop and OMB Number: 1205–0371. demonstrate the various technologies Assistant General Counsel, U.S. Parole Frequency: Quarterly. Commission. required to produce gasoline fueled Affected Public: State, local, or tribal engines that are competitive with diesel [FR Doc. 05–13424 Filed 7–5–05; 11:01 am] government; individuals or households; engines, in terms of performance and BILLING CODE 4410–31–M business or other for-profit; Federal emissions levels, with a focus on the Government. efficiency and durability of gasoline Type of Response: Recordkeeping and fueled engines. Enabling technologies DEPARTMENT OF LABOR reporting. for efficiency improvement to be Number of Respondents: 990,520. utilized include: Variable valve Office of the Secretary Annual Responses: 2,421,028. actuation; variable compression ratio; Average Response time: 1.00 hours. Submission for OMB Review: high EGR tolerance; high BMEP Total Annual Burden Hours: 858,325. Comment Request Total Annualized Capital/Startup capability; aggressive knock mitigation; Costs: $0. and high boost. Durability targets will June 29, 2005. Total Annual Costs (operating/ be addressed through modeling and The Department of Labor (DOL) has maintaining systems or purchasing computations for improved head design, submitted the following public services): $0. improved thermal management, information collection request (ICR) to Description: Data and information application of high temperature the Office of Management and Budget provided by the states on these forms materials to valve, piston crowns, fire (OMB) for review and approval in are used for program planning, decks and turbochargers, and structural accordance with the Paperwork evaluation of Program performance and improvement for high firing pressures Reduction Act of 1995 (Pub. L. 104–13, outcomes through states’ quarterly and higher BMEPs. 44 U.S.C. Chapter 35). A copy of this report and for oversight/verification Membership in this group research ICR, with applicable supporting activities. project remains open, and HEDGE documentation, may be obtained by intends to file additional written calling the Department of Labor. To Ira L. Mills, notification disclosing all changes in obtain documentation contact Ira Mills Departmental Clearance Officer/Team membership or planned activities. on 202–693–4122 (this is not a toll-free Leader. [FR Doc. 05–13320 Filed 7–6–05; 8:45 am] Dorothy B. Fountain, number) or e-mail: Mills, [email protected]. BILLING CODE 4510–30–P Deputy Director of Operations, Antitrust Comments should be sent to Office of Division. Information and Regulatory Affairs, [FR Doc. 05–13349 Filed 7–6–05; 8:45 am] Attn: OMB Desk Officer for ETA, Office of Management and Budget, Room DEPARTMENT OF LABOR BILLING CODE 4410–11–M 10235, Washington, DC 20503, 202– Office of the Secretary 395–7316 (this is not a toll free number), DEPARTMENT OF JUSTICE within 30 days from the date of this Submission for OMB Review: publication in the Federal Register. Comment Request Parole Commission The OMB is particularly interested in comments which: June 28, 2005. Sunshine Act Public Announcement • Evaluate whether the proposed The Department of Labor (DOL) has Pursuant to the Government in the collection of information is necessary submitted the following public Sunshine Act (Pub. L. 94–409) (5 U.S.C. for the proper performance of the information collection request (ICR) to 552b) functions of the agency, including the Office of Management and Budget whether the information will have (OMB) for review and approval in AGENCY HOLDING MEETING: Department of practical utility; accordance with the Paperwork Justice, United States Parole • Evaluate the accuracy of the Reduction Act of 1995 (Pub. L. 104–13, Commission. agency’s estimate of the burden of the 44 U.S.C. Chapter 35). A copy of this ACTION: Notice; correction. proposed collection of information, ICR, with applicable supporting including the validity of the documentation, may be obtained by SUMMARY: The U.S. Parole Commission methodology and assumptions used; calling the Department of Labor. To published a document in the Federal • Enhance the quality, utility and obtain documentation contact Ira Mills Register of June 29, 2005, concerning an clarity of the information to be on 202–693–4122 (this is not a toll-free open meeting to be held on Tuesday, collected; and number) or e-mail: [email protected]. July 5, 2005. The document provides a • Minimize the burden of the Comments should be sent to Office of correction as to the date of the meeting. collection of information on those who Information and Regulatory Affairs, FOR FURTHER INFORMATION CONTACT: are to respond, including through the Attn: OMB Desk Officer for ETA, Office Thomas W. Hutchison, Chief of Staff, use of appropriate automated, of Management and Budget, Room
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10235, Washington, DC 20503, 202– LIBRARY OF CONGRESS wishing to participate in the discussions 395–7316 (this is not a toll free number), must submit a written request to the within 30 days from the date of this Copyright Office Copyright Office. The request to publication in the Federal Register. participate must include the following Orphan Works The OMB is particularly interested in information: (1) the name of the person comments which: AGENCY: Copyright Office, Library of desiring to participate; (2) the organization(s) represented by that • Evaluate whether the proposed Congress ACTION: Notice of public roundtables. person, if any; (3) contact information collection of information is necessary (address, telephone, telefax, and e– for the proper performance of the SUMMARY: The Copyright Office mail); and (4) a one–page summary of functions of the agency, including announces public roundtable the specific issues the participant (or his whether the information will have discussions regarding ‘‘orphan works,’’ or her organization) wishes to address. practical utility; i.e., copyrighted works whose owners The one–page summary must also • Evaluate the accuracy of the are difficult or even impossible to identify in which of the four general agency’s estimate of the burden of the identify or locate. The Office seeks to roundtable topic areas the person would proposed collection of information, address whether there are compelling most like to participate in order of including the validity of the concerns that merit a legislative, preference, along with the methodology and assumptions used; regulatory or other solution, and what corresponding date, time and location • Enhance the quality, utility and type of solution could effectively (see below for detail). Space and time clarity of the information to be address these concerns without constraints may require us to limit collected; and conflicting with the legitimate interests participation in one or more of the topic areas, and there is a chance that not all • Minimize the burden of the of authors and right holders. The Office requests to participate will be granted. collection of information on those who solicited and received written Identification of the desired topic areas are to respond, including through the comments on these issues pursuant to a in order of preference will help the use of appropriate automated, Notice of Inquiry issued earlier this Office to ensure that participants will be electronic, mechanical, or other year. See Notice of Inquiry, 70 FR 3739 heard in the area(s) of interest most technological collection techniques or (Jan. 26, 2005). The Office will now hold roundtable discussions to further critical to them. In addition, any person other forms of information technology, address the issues raised and solutions requesting participation in the e.g., permitting electronic submission of proposed in the written comments. roundtable who did not file a written responses. DATES: The public roundtable will first initial or reply comment in response to Agency: Employment and Training be held in Washington, D.C. on the Notice of Inquiry published on Administration (ETA). Tuesday, July 26, 2005, from 9:00 a.m. January 26, 2005, 70 FR 3739 (January Type of Review: Extension of a to 5:00 p.m. E.D.T., and on Wednesday, 26, 2005), must provide his or her currently approved collection. July 27, 2005, from 9:00 a.m. to 5:00 statement of interest in this proceeding Title: Attestation by Employers Using p.m. E.D.T. An additional roundtable in his or her one–page summary. The Crewmembers for Longshore Activities will be held in Berkeley, California on Office will notify each participant in at Locations in the State of Alaska. Tuesday, August 2, 2005, from 9:00 a.m. advance of his or her designated topic area(s), and the corresponding time(s) OMB Number: 1205–0352. to 5:00 p.m. P.D.T. Requests to participate in the roundtables must be and location(s). Frequency: On occasion. received by the Copyright Office by 5:00 Note also for those who wish to attend Affected Public: Business or other for- p.m. E.D.T. on July 15, 2005. but not participate in the roundtables that space is limited. Seats will be profit. ADDRESSES: The roundtable in available on a first–come, first–served Type of Response: Recordkeeping. Washington, D.C. will be held in the basis. However, all discussions will be Russell Senate Office Building, Room Number of Respondents: 100. transcribed, and transcripts 188, Washington, D.C. 20510, on July Annual Responses: 100. subsequently made available on the 26, 2005, and in the Rayburn House Average Response Time: 3 hours. Copyright Office website. Office Building, Room 2237, Requests to participate may be Total Annual Burden Hours: 300. Washington, D.C., 20515, on July 27, submitted to the Office by e–mail Total Annualized Capital/Startup 2005. The public roundtable in (preferred), by commercial courier, or by Costs: $0. Berkeley, California will be held at the hand delivery by a private party Total Annual Costs (Operating/ Boalt Hall School of Law, University of (submission by overnight service or Maintaining Systems or Purchasing California – Berkeley, Berkeley, regular mail will not be effective) as Services): $0. California 94720. Details on the precise follows: location in Berkeley, California will be 1. If by e–mail (preferred): Send to Description: The information provided in advance of the meeting on provided on this form by employers [email protected] a message the Copyright Office website, http:// containing the information required seeking to use alien crewmembers to www.copyright.gov. perform longshore activities in the State above. The one–page summary of issues of Alaska will permit the Department to FOR FURTHER INFORMATION CONTACT: may be included in the text of the meet Federal responsibilities for Oliver Metzger, Attorney–Advisor, message, or may be sent as a MIME program administration, management Office of Policy & International Affairs, attachment. If sent as a MIME and oversight. Email: [email protected]; Telephone (202) attachment, the summary must be in a 707–8350; Fax (202) 707–8366. single file in either: (1) Adobe Portable Ira L. Mills, SUPPLEMENTARY INFORMATION: Document File (PDF) format; (2) Departmental Clearance Officer/Team Procedure for Submitting Requests to Microsoft Word 2000 or earlier; (3) Leader. Participate WordPerfect 9.0 or earlier; (4) Rich Text [FR Doc. 05–13321 Filed 7–6–05; 8:45 am] The roundtable discussions will be File (RTF) format; or (5) ASCII text file BILLING CODE 4510–30–P open to the public. However, persons format.
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2. If by commercial, non–government The Copyright Office has reviewed into the public domain. The Copyright courier or messenger: Address to Jule L. the Initial and Reply Comments and Office seeks further information on the Sigall, Associate Register for Policy & seeks further information and following issues within this topic area: International Affairs, U.S. Copyright discussion on several issues raised by a. The ‘‘limitations on remedies’’ Office, Room LM–403, James Madison the Notice and this study. To help guide approach. Memorial Building, 101 Independence the discussion, the following b. The exemption and public domain Avenue, SE, Washington, DC 20559– Provisional Agenda will be followed in approaches. 6000, and deliver to the Congressional both the Washington, DC and Berkeley, c. Payment of fees or escrow by the Courier Acceptance Site (CCAS), 2nd CA roundtables: user. and D Streets, NE, Washington, DC d. Other conditions/obligations on the between 8:30 a.m. and 4:00 p.m., a cover Topic 1: Identification of Orphan Works user (e.g. time limits, notice, letter with the information required Washington, DC: Tuesday, July 26, registration). above, and include three copies of the morning session e. Reliance (or ‘‘piggybacking’’) on one–page summary of issues. (Note: the Berkeley, CA: Tuesday, August 2, previous searches by subsequent users. morning session Copyright Office will consider the date Topic 3: Reclaiming Orphan Works of receipt at CCAS as the date of receipt The Notice of Inquiry invited in the Copyright Office.) comments on how the term ‘‘orphan Washington, DC: Wednesday, July 27, 3. If by hand delivery by a private work’’ should be defined, or how morning session party: Address to Jule L. Sigall, orphan works might be designated. It Berkeley, CA: Tuesday, August 2, Associate Register for Policy & suggested two general approaches: (1) afternoon session International Affairs, U.S. Copyright an ‘‘ad hoc’’ or case–by–case approach, Once a work has been designated an Office, James Madison Memorial setting forth basic parameters of what orphan work, resulting in any of a Building, Room LM–401, 101 might constitute a sufficient search number of potential legal consequences, Independence Avenue, SE, Washington, under the circumstances; and (2) a a formerly unidentified or missing DC 20559–6000, and deliver to Room formal approach incorporating a registry copyright owner may reappear and LM–401 of the James Madison Memorial or registries in various forms and with attempt to assert rights in the work. This Building, a cover letter with the various effects. The Notice of Inquiry assertion of rights might occur during information required above, and include also invited comment on other any number of stages in the process of three copies of the one–page summary threshold issues, such as whether exploiting of the work, and after a user of issues. certain works should be categorically may have incurred costs in reliance on the continuing unavailability of the Background excluded from designation as ‘‘orphan works’’ because of age, publication original owner. The assertion of rights On January 26, 2005, the Copyright status, etc. While many comments may also occur in a variety of forms, Office published a Notice of Inquiry in addressed these issues in detail, the from informal communication between the Federal Register, 70 FR 3739 (Jan. Copyright Office seeks further the original owner and user, to formal 26, 2005), announcing its study of issues discussion on the following issues litigation over rights in the work. The surrounding ‘‘orphan works,’’ i.e., within this general area of concern: Copyright Office seeks further copyrighted works whose owners are a. The ‘‘due diligence’’/‘‘reasonable discussion of the following issues difficult or even impossible to identify efforts’’ search approach and standard. within this topic area: or locate. The study is a response to b. The role of registries of copyright a. The consequences of owner concerns that difficulty in identifying ownership information and/or uses of reappearance for uses in the process of and/or locating copyright owners can purported orphan works. being prepared for exploitation (whether create difficulties in obtaining c. Inclusion or exclusion of derivative uses or other uses in permission for subsequent creators and unpublished works. preparation), and for ongoing users to use works in socially d. Other threshold requirements, such exploitations. productive ways, such as by as age of works, types of works, types b. The burden of proof in litigation, incorporating these works in new of users, types of uses. on issues such as the reasonableness of creative efforts, or by making them a user’s search. Topic 2: Consequences of an ‘‘Orphan available to the public. Specifically the c. Statutory damages and attorneys Works’’ Designation Office seeks to address whether the fees. problems identified in the comments Washington, DC: Tuesday, July 26, d. Rights in derivative works based on merit a solution, and what type of afternoon session an orphan work. solution could effectively address these Berkeley, CA: Tuesday, August 2, problems without conflicting with the afternoon session Topic 4: International Issues legitimate interests of authors and right Assuming that a work is identified or Washington, DC: Wednesday, July 27, holders. designated as an orphan work, a wide afternoon session The original Notice of Inquiry invited range of legal consequences may Berkeley, CA: Tuesday, August 2, the public to submit written comments. potentially result. The Notice of Inquiry afternoon session Initial Comments were first submitted to summarized some of these The Notice of Inquiry specifically the Office during a 60–day period consequences, while others were asked how any proposed solution to following issuance of the Notice of suggested and addressed in the written orphan works problems might be Inquiry. Reply Comments were then comments. These consequences vary in reconciled with existing international submitted during an additional 45–day nature and degree, from limitations on obligations regarding copyright. These period. The Office received the remedies available to a reappearing obligations include the prohibition approximately 850 unique comments owner, to the payment of a mandatory against formalities in the Berne during these periods, all of which have fee by the user in a variety of forms, to Convention, as well as limitations on been posted on the Copyright Office a statutory exemption explicitly the nature of exceptions imposed by the website (http://www.copyright.gov/ authorizing various uses, to termination TRIPS Agreement. Several comments orphan). of all rights in the work through entry addressed these questions specifically,
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but also raised other concerns when the Memorial Building, 101 Independence household limitation for network international dimensions of orphan Avenue, SE, Washington, DC. If sent by stations contained in section 119 of title works problems are considered. The mail (including overnight delivery using 17, United States Code, has operated Copyright Office seeks further U.S. Postal Service Express Mail), an efficiently and effectively and has forwarded the goal of title 17, United information on the following issues original and five copies of a comment States Code, to protect copyright owners within this topic area: should be addressed to U.S. Copyright of over–the–air television programming, a. Compliance of various alternatives Office, Copyright GC/I&R, P.O. Box including what amendments, if any, are with the Berne Convention prohibition 70400, Southwest Station, Washington, necessary to effectively identify the against formalities. DC 20024. Comments may not be application of the limitation to b. Compliance of various alternatives delivered by means of overnight individual households to receive with TRIPS/Berne ‘‘three–step’’ test for delivery services such as Federal secondary transmissions of primary limitations or exceptions. Express, United Parcel Service, etc., due digital transmissions of network stations. c. Exclusion of foreign works from the to delays in processing receipt of such (2) The extent to which secondary orphan work definition. transmissions of primary transmissions deliveries. of network stations and superstations d. Gathering information on FOR FURTHER INFORMATION CONTACT: under section 119 of title 17, United experience in other countries with Tanya Sandros, Associate General States Code, harm copyright owners of orphan works issues. Counsel, Copyright GC/I&R, P.O. Box broadcast programming throughout the The roundtable might also take up 70400, Southwest Station, Washington, United States and the effect, if any, of the other issues not encompassed by the DC 20024. Telephone: (202) 707–8380. statutory license under section 122 of above agenda if time permits. Telefax: (202) 707–8366. title 17, United States Code, in reducing such harm. Dated: June 30, 2005 SUPPLEMENTARY INFORMATION: On Marybeth Peters, December 8, 2004, the President signed Pub. L. No. 108–447, 118 Stat. 3394, Register of Copyrights. the Satellite Home Viewer Extension 3408 (2004). [FR Doc. 05–13355 Filed 7–6–05; 8:45 am] and Reauthorization Act of 2004 Part One: The Unserved Household BILLING CODE 1410–30–S (‘‘SHVERA’’), a part of the Consolidated Appropriations Act of 2005. Pub. L. No. Limitation 108–447. SHVERA extends for an The statutory license set forth in LIBRARY OF CONGRESS additional five years the statutory section 119 of the Copyright Act enables license for satellite carriers satellite carriers to retransmit distant Copyright Office retransmitting over–the–air television over–the–air television broadcast [Docket No. RM 2005–7] broadcast stations to their subscribers, stations to their subscribers.1The license as well as making a number of has a significant restriction, however, Satellite Home Viewer Extension and amendments to the existing section 119 with respect to the retransmission of Reauthorization Act of 2004 of the Copyright Act. In addition to the network television stations. Satellite extension and the amendments, carriers may only retransmit distant AGENCY: Copyright Office, Library of SHVERA directs the Copyright Office to Congress. network stations to subscribers who conduct two studies and report its reside in ‘‘unserved households.’’ An ACTION: Notice of inquiry. findings to the Committee on the ‘‘unserved household,’’ with respect to Judiciary of the House of SUMMARY: The Copyright Office of the a particular television network, is Representatives and the Committee on Library of Congress is requesting defined in the law as: the Judiciary of the Senate. One study, information for the preparation of the due by June 30, 2008, requires the [A] household that– first report to the Congress required by Copyright Office to examine and (A) cannot receive, through the use of a the Satellite Home Viewer Extension compare the statutory licensing systems conventional, stationary, outdoor rooftop and Reauthorization Act of 2004. for the cable and satellite industries receiving antenna, an over–the–air signal DATES: Comments are due no later than under sections 111, 119 and 122 of the of a primary network station affiliated August 22, 2005. Reply comments are Copyright Act and recommend any with that network of Grade B intensity as due no later than September 12, 2005. defined by the Federal Communications necessary legislative changes. The other Commission under section 73.683(a) of ADDRESSES: If hand delivered by a study, due by December 31, 2005, title 47 of the Code of Federal private party, an original and five copies requires the Office to examine select Regulations, as in effect on January 1, of a comment should be brought to portions of the section 119 license and 1999; Room LM–401 of the James Madison to determine what, if any, impact (B) is subject to a waiver that meets the Memorial Building between 8:30 a.m. sections 119 and 122 have had on standards of subsection (a)(14) whether and 5 p.m. and the envelope should be copyright owners whose programming or not the waiver was granted before the addressed as follows: Office of the is retransmitted by satellite carriers. date of the enactment of the Satellite General Counsel, U.S. Copyright Office, That study is the subject of this Notice Home Viewer Extension and James Madison Memorial Building, Reauthorization Act of 2004; of Inquiry. (C) is a subscriber to whom subsection (e) Room LM–401, 101 Independence The SHVERA Study applies; Avenue, SE, Washington, DC 20559– (D) is a subscriber to whom subsection (a)(12) 6000. If delivered by a commercial Section 110 of SHVERA provides: applies; or courier, an original and five copies of a (E) is a subscriber to whom the exemption comment must be delivered to the No later than December 31, 2005, the Register under subsection (a)(2)(B)(iii) applies. Congressional Courier Acceptance Site of Copyrights shall report to the Committee on the Judiciary of the House 17 U.S.C. 119(d)(10). located at 2nd and D Streets, NE, of Representatives and the Committee on between 8:30 a.m. and 4 p.m. The the Judiciary of the Senate the Register’s 1 Section 122 of the Copyright Act permits envelope should be addressed as findings and recommendations on the satellite carriers to retransmit local over-the-air follows: Office of the General Counsel, following: television broadcast stations to their subscribers. Room LM–403, James Madison (1) The extent to which the unserved See 17 U.S.C. 122.
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As can be seen from the above, the violation of the limitation but were public comment in this Notice of unserved household limitation contains grandfathered in by the 1999 legislation Inquiry. With respect to whether the a number of involved and complex if they received the network signals after unserved household limitation has provisions. It was not always so. In the July 11, 1998, but before October 31, operated efficiently and effectively, the original law that created section 119, the 1999. 17 U.S.C. 119(e). Subparagraph Office is interested in public comments Satellite Home Viewer Act of 1988, the (D), also added by the 1999 legislation, directed to the following. Has the Grade unserved household limitation was provides that subscribers of satellite B signal intensity standard set forth in relatively straightforward. Because service for commercial trucks and 47 CFR 73.683(a) permitted members of satellite carriers lacked the recreational vehicles, subject to certain the public to receive adequate over–the– technological capability at that time to requirements, are also considered air television signals and is it the correct deliver local signals to their subscribers, unserved. And subsection (e) defines C– standard for determining when a the limitation was created to prevent band satellite subscribers as unserved subscriber resides in a television ‘‘white satellite carriers from bringing network regardless of whether they can receive area’’? Has the Grade B predictive model stations from distant television markets an over–the–air signal from the local developed by the FCC under section to subscribers and thereby decrease network stations. 339(c)(3) of the Communications Act, their incentive to watch the signals of The world of the unserved household title 37 of the United States Code, the local over–the–air network stations. limitation in the Copyright Act is about permitted effective identification of H.R. Rep. No. 100–887, pt. 1, at 18 to be complicated further. All of the white areas and promoted the quick and (August 18, 1988). If a satellite existing provisions and definitions were efficient determination of whether subscriber could receive the off–air crafted in the era of analog broadcast subscribers are eligible for receipt of signal of the local network station using television. Broadcasters are now distant network stations under section a conventional rooftop antenna, the switching their transmissions from 119? To what extent has the unserved satellite carrier could not provide the analog to digital, and it is anticipated household limitation been violated by subscriber with a distant network that the ‘‘digital transition’’ will soon be satellite carriers and what are the details station affiliated with the same network. completed. The Grade B signal intensity of enforcement actions taken against If a subscriber resided in a household standard, which has been the such violations? What improvements outside the reach of the signal of the centerpiece for defining when an and/or amendments could be local network station–a so–called individual household is unserved under implemented to improve the ‘‘white area’’–then the subscriber was section 119, does not apply to digital effectiveness and efficiency of the eligible for satellite service of a distant transmissions.3 However, section 204(b) unserved household limitation? station of the same network. The of SHVERA directs the FCC to complete With respect to whether the unserved unserved household limitation therefore a study within one year from date of household limitation has protected operated similarly to the network enactment to examine a number of copyright owners of over–the–air nonduplication rules of the Federal factors related to developing a digital television programming, the Copyright Communications Commission (‘‘FCC’’) signal intensity standard. The study is Office is interested in data and applicable to cable systems.2 expressly being done ‘‘for purposes of information that demonstrates what Unfortunately, satellite carriers largely identifying if a household is unserved impact the limitation has on copyright ignored the proscription of the unserved by an adequate digital signal under owners’ ability to charge a fair market household limitation in the years after section 119(d)(10) of title 17, United price from broadcasters that transmit 1988, resulting in revisions to the States Code.’’ 37 U.S.C. 339(c)(1)(A) their programming. If the limitation definition in the 1994 and 1999 (2005).4 Included in that study is a were removed from the law, what extensions of section 119 and a ‘‘beefing consideration of the development of a impact would that have on the price of up’’ of the enforcement provisions predictive model for digital broadcast programming? Does the limitation related to the limitation. As a result, the stations to facilitate application of the promote the interests of copyright limitation was defined with greater unserved household limitation in the owners more, less, or the same as it does precision. The FCC was directed in the Copyright Act. the interests of broadcasters? As to the second level of Part One of 1999 legislation to precisely define what Part One of the Copyright Office study the study, we seek comment as to the is meant by receiving a signal of Grade requires consideration of the unserved following. To what extent will the signal B intensity and to develop a test for household limitation on two levels. intensity standard for households determining it. See 47 CFR 73.683(a). In First, we must determine whether the receiving over–the–air digital network addition to lack of over–the–air receipt limitation has operated ‘‘efficiently and stations likely resemble the current of a network signal, other categories effectively’’ and whether it has standard for analog television? What are were added as demonstrating that a promoted the goal of protecting likely to be the technical and practical subscriber was unserved for purposes of copyright owners of over–the–air differences between the two standards section 119. Subparagraph (B) was television programming. To make these and how are they likely to affect satellite added to the unserved household determinations, the Office is soliciting subscribers’ receipt of over–the–air limitation to provide that even if a television stations? Are the coverage 3 The FCC does set forth the signal propagation subscriber could receive an over–the–air levels of a digital standard likely to be signal of Grade B intensity, if the areas, similar to Grade B contours, for digital television stations. See 47 CFR 73.622(e)(service sufficient to provide full–time receipt of subscriber obtained a waiver from the areas for channels 2 through 69). These rules do television signals? To prevent receipt of local network affiliate then he/she was not, however, permit determination of whether a distant signals by subscribers who can particular household receives an adequate signal considered unserved under section 119. receive an adequate local signal, what, Subparagraph (C) applies to subscribers with respect to a particular digital network station. 4 if any, amendments will be necessary to whose receipt of network signals was a The FCC has commenced the study with the recent publication of a Notice of Inquiry. See the unserved household definition with Technical Standards for Determining Eligibility for respect to satellite subscriber receipt of 2 The FCC has never regulated the satellite Satellite-Delivered Network Signals Pursuant to the industry in the same fashion as the cable industry. Satellite Home Viewer Extension and over–the–air digital television stations? Thus, there were no network nonduplication rules Reauthorization Act, ET Docket No. 05-182, Notice The Copyright Office encourages applicable to satellite for many years. of Inquiry (Released May 3, 2005). comments directed to these inquiries
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and welcomes additional comments and 119 license, and how would the broadcast retransmissions under section information related to the unserved licensing of that programming be 119? household limitation. handled (i.e. by the broadcasters, by Finally, Part Two of the study requires the Copyright Office to Part Two: Harm to Copyright Owners some type of collective rights organization, etc.)? In the 1997 consider the effect of the section 122 Part Two of the study is an inquiry as proceeding to adjust the section 119 license on harm caused to copyright to the extent to which satellite royalty rates, the CARP was required to owners by section 119 retransmissions. retransmissions of superstations and determine the fair market value of Section 122 is a royalty–free statutory network stations under the section 119 superstations and network stations license created during the 1999 license harm copyright owners of retransmitted by satellite carriers. In reauthorization of section 119 that broadcast programming in the United making this determination, the CARP permits satellite carriers to retransmit States and the effect, if any, of the examined data from parallel markets. superstations and network stations to section 122 license, which permits Specifically, the CARP considered the subscribers that reside within the local royalty–free retransmission of local amounts received by programmers of markets of those stations. 17 U.S.C. 122. stations, in ameliorating such harm. The Office is interested in data, ‘‘Harm’’ is generally understood to mean cable–originated networks (ESPN, A&E, and other cable channels that are similar information, and analysis that the difference in the price that copyright demonstrates changes in royalties paid owners would have been able to charge to broadcast channels) who operate in the free market without a statutory under section 119 before and after the satellite carriers for their programming adoption of section 122, and any other and the price they actually receive license as a proxy for the fair market value of broadcast programming. See 62 information demonstrating any impact under the fees established for section section 122 may have had on the section 5 FR 55742 (October 28, 1997). The 119. At one point in time, the 119 royalties or any other effect section Copyright Office seeks updated data Copyright Royalty Tribunal considered 122 has had on harm caused to similar to that submitted in the 1997 the extent to which different categories copyright owners by section 119 rate adjustment proceeding as a means of copyright owners (e.g. owners of retransmissions. movies and syndicated television series, of approximating what copyright Commenters are encouraged to sports programmers, owners of owners might have received in the provide not only the data, information, noncommercial broadcasting absence of the section 119 license, along and analyses requested in this Notice of programming, etc.) were harmed by the with analyses of that data that explain Inquiry but also any other data, existence of the section 111 cable how copyright owners have been information, and/or analyses they deem license in determining the share of harmed by being deprived of the ability relevant to the issues presented in royalties each programming category to license those works to satellite section 110 of SHVERA. The Copyright should receive. That approach was carriers in the open market. Data that Office welcomes the opportunity to altered by a Copyright Arbitration compares what satellite carriers would meet with representatives of satellite Royalty Panel (‘‘CARP’’) in 1996 in a have paid under approximate fair carriers, copyright owners, broadcasters, cable royalty distribution proceeding, market value scenarios to what was and other parties affected by sections and it is established precedent in the actually paid under the section 119 119 and 122 of the Copyright Act in context of cable royalty distribution license is helpful. In addition, the Office order to obtain additional relevant proceedings that copyright owners of all seeks information as to how the information and to hear their concerns. programming categories are harmed licensing of broadcast retransmissions equally by the existence of the section by satellite carriers might be handled in Dated: June 30, 2005. 111 license. See Distribution of 1990– the absence of section 119 and Marybeth Peters, 1992 Cable Royalties, Distribution approximations as to the costs Register of Copyrights. Order, 61 FR 55653, 55658–59 (October associated with collecting and [FR Doc. 05–13332 Filed 7–6–05; 8:45 am] 28, 1996). That precedent would distributing royalties. BILLING CODE 1410–30–S presumably apply to a contested distribution proceeding conducted In assessing the fair market value of under section 119 should one take broadcast programming, the Copyright Office recognizes that there may be NATIONAL FOUNDATION ON THE place. Nevertheless, the Copyright ARTS AND THE HUMANITIES Office is interested in data, information, factors beyond consideration of parallel and analysis that demonstrates whether markets. For example, FCC regulations National Endowment for the Arts; Arts and to what extent particular program governing satellite retransmissions can Advisory Panel categories are harmed by the section 119 ultimately have an effect on the price of license. programming protected by the copyright Pursuant to section 10(a)(2) of the Because virtually all over–the–air laws. The FCC’s syndicated exclusivity Federal Advisory Committee Act (Pub. television stations retransmitted by rules, sports blackout rules, and the L. 92–463), as amended, notice is hereby satellite carriers are licensed through network nonduplication rules may play given that four meetings of the Arts the section 119 license, it is difficult to some role in reducing harm to copyright Advisory Panel to the National Council speculate as to how the licensing of owners from section 119 on the Arts will be held at the Nancy broadcast programming would operate retransmissions. The Copyright Office Hanks Center, 1100 Pennsylvania in the absence of the license. In other requests information and analysis on Avenue, NW., Washington, DC 20506 as words, what would be the fair market this possibility. In addition, the Office follows: value of different types of broadcast notes that satellite broadcast Music (Access to Artistic Excellence, programming if there was no section retransmissions are exempt from the Panel B): July 25–27, 2005 in Room retransmission consent provisions of the 714. A portion of this meeting, from 5It is possible for copyright owners to be harmed communications law. See 37 U.S.C. 325. 3:30 p.m. to 4:30 p.m. on Wednesday, in other ways by distant signal retransmissions. The What impact, if any, does the July 27th, will be open to the public Copyright Office is interested in receiving comments and information regarding other types of retransmission consent exemption have for policy discussion. The remainder ‘‘harm.’’ on harm to copyright owners from of the meeting, from 9 a.m. to 6 p.m.
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on July 25th, from 9 a.m. to 5:30 p.m. NATIONAL SCIENCE FOUNDATION. to document the nature and extent of on July 26th, and from 9 a.m. to 3:30 any effects. Injurious impacts to marine p.m. and 4:30 p.m. to 5 p.m. on July Notice of the Availability of a Draft animal have not been proven to occur 27th, will be closed. Environmental Assessment near equipment proposed to be used in this research; however, the planned Music (Access to Artistic Excellence, AGENCY: National Science Foundation. monitoring and mitigation measures Panel C): July 28–29, 2005 in Room ACTION: Notice of availability of a draft would minimize the possibility of such 714. This meeting, from 9 a.m. to 6 Environmental Assessment for proposed effects should they otherwise occur. p.m. on July 28th and from 9 a.m. to activities in the Pacific Ocean. With the planned monitoring and 4:45 p.m. on July 29th, will be closed. mitigation measure, unavoidable SUMMARY: The National Science Opera (Access to Artistic Excellence, impacts in each of the species of marine Foundation gives notice of the mammal that might be encountered are Panel A): August 8–9, 2005 in Room availability of a draft Environmental expected to be limited to short term 716. A portion of this meeting, from Assessment for proposed activities in localized changes in behavior and 4:30 p.m. to 5:15 p.m. on Tuesday, the Pacific Ocean. distribution near the seismic vessel. At August 9th, will be open to the public The Division of Ocean Sciences in the most, such effects may be interpreted as for policy discussion. The remainder Directorate for Geosciences (GEO/OCE) falling within the Marine Mammal of the meeting, from 9 a.m. to 5:30 has prepared a draft Environmental Protection Act (MMPA) definition of p.m. on August 8th and from 9 a.m. Assessment for a marine geophysical ‘‘Level B Harassment’’ for those species to 4:30 p.m. and 5:15 p.m. to 5:45 survey by the Research Vessel Roger managed by NMFS. No long-term or p.m. on August 9th, will be closed. Revelle in the vicinity of Louisville significant effects are expected on Ridge in the Pacific Ocean, January– Opera (Access to Artistic Excellence, individual marine mammals, or the February 2006. The draft Environmental Panel B): August 10, 2005 in Room populations to which they belong, or Assessment is available for public 716. This meeting, from 9 a.m. to 4:15 their habitats. The agency is currently review for a 30-day period. p.m., will be closed. consulting with the National Marine DATES: Comments must be submitted on Fisheries Service regarding species The closed portions of meetings are or before August 8, 2005. for the purpose of Panel review, within their jurisdiction potentially ADDRESSES: Copies of the draft discussion, evaluation, and affected by this proposed activity. Environmental Assessment are available Copies of the draft Environmental recommendations on financial upon request from: Dr. Alexander Shor, Assessment, titled ‘‘Environmental assistance under the National National Science Foundation, Division Assessment of a Planned Low-Energy Foundation on the Arts and the of Ocean Sciences, 4201 Wilson Blvd., Marine Seismic Survey by the Scripps Humanities Act of 1965, as amended, Suite 725, Arlington, VA 22230. Institution of Oceanography on the including information given in Telephone: (703) 292–8583. The draft is Louisville Ridge in the Southwest confidence to the agency. In accordance also available on the agency’s Web site Pacific Ocean, January–February 2006’’, with the determination of the Chairman at http://www.nsf.gov/geo/oce/pubs/ are available upon request from: of April 8, 2005, these sessions will be scrippsllouisvillelridgelEA.pdf. Dr. Alexander Shor, National Science closed to the public pursuant to Foundation, Division of Ocean Sciences, SUPPLEMENTARY INFORMATION: The subsection (c)(6) of section 552b of Title Scripps Institution of Oceanography 4201 Wilson Blvd., Suite 725, Arlington, 5, United States Code. (SIO), with research funding from the VA 22230. Telephone: (703) 292–8583 Any person may observe meetings, or National Science Foundation (NSF), or at the agency’s Web site at: http:// www.nsf.gov/geo/oce/pubs/ portions thereof, of advisory panels that plans to conduct a marine survey on six _ _ _ are open to the public, and if time seamounts of the Louisville Ridge in the scripps louisville ridge EA.pdf. The allows, may be permitted to participate Southwest Pacific Ocean during National Science Foundation invites interested members of the public to in the panel’s discussions at the January–February, 2006. The proposed provide written comments on this draft discretion of the panel chairman. If you action is to conduct a planned scientific Environmental Assessment. need special accommodations due to a rock-dredging, magnetic, and seismic disability, please contact the Office of survey program to examine the eruptive Dated: June 30, 2005. AccessAbility, National Endowment for history of the submarine volcanoes Alexander Shor, the Arts, 1100 Pennsylvania Avenue, there, and to collect date needed to Program Director, Division of Ocean Sciences, NW., Washington, DC 20506, (202) 682– design an effective Integrated Ocean National Science Foundation. 5532, TDY–TDD (202) 682–5496, at least Drilling Program (IODP) study on [FR Doc. 05–13316 Filed 7–6–05; 8:45 am] seven (7) days prior to the meeting. carefully-selected seamounts. The BILLING CODE 7555–01–M research will be carried out entirely Further information with reference to within International Waters. this meeting can be obtained from Ms. Numerous species of cetaceans and NUCLEAR REGULATORY Kathy Plowitz-Worden, Office of sea turtles occur in the Southwest COMMISSION Guidelines & Panel Operations, National Pacific Ocean. Several of the species are Endowment for the Arts, Washington, listed as Endangered under the U.S. [Docket Nos. 50–277 and 50–278] DC 20506, or call (202) 682–5691. Endangered Species Act (ESA). The Exelon Generation Company, LLC, Dated: July 1, 2005. increased underwater noise from the PSEG Nuclear LLC; Peach Bottom research may result in avoidance Kathy Plowitz-Worden, Atomic Power Station, Units 2 and 3; behavior by some marine animals, and Notice of Withdrawal of Application for Panel Coordinator, Panel Operations, other forms of disturbance. An integral National Endowment for the Arts. Amendment to Renewed Facility part of the planned survey is a Operating Licenses [FR Doc. 05–13376 Filed 7–6–05; 8:45 am] monitoring and mitigation program to BILLING CODE 7537–01–P minimize impacts of the proposed The U.S. Nuclear Regulatory activities of marine species present, and Commission (the Commission) has
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granted the request of Exelon For the Nuclear Regulatory Commission. Specifically, the amendment will allow Generation Company, LLC (the George F. Wunder, the licensee to transfer filtercake, licensee), to withdraw its application of Project Manager, Section 2, Project containing very low levels of radioactive July 14, 2003, as supplemented on Directorate I, Division of Licensing Project contamination, to a cement kiln so it March 15, April 23, May 20, December Management, Office of Nuclear Reactor may be utilized rather than disposed of 8, and December 17, 2004, and January Regulation. in a landfill. 21, 2005, for proposed amendment to [FR Doc. E5–3559 Filed 7–6–05; 8:45 am] Cabot Supermetals (CSM) submitted, Renewed Facility Operating License BILLING CODE 7590–01–P by letter dated November 24, 2004, a Nos. DPR–44 and DPR–56 for the Peach license amendment request for Source Bottom Atomic Power Station, Units 2 Materials License No. SMB–920, to NUCLEAR REGULATORY allow recycling of waste water filtercake and 3, located in York County, COMMISSION Pennsylvania. produced at the Boyertown, [Docket No. 40–6940] Pennsylvania (PA) facility. The staff has The proposed amendment would prepared the EA in support of the have revised the Technical Notice of Availability of Environmental proposed license amendment. Within Specifications to allow the use of an Assessment and Finding of No the EA staff considered information alternate source term. Significant Impact for License related to the site (cultural resources, The Commission had previously Amendment for Cabot Corporation, demographics and socio-economics, issued a Notice of Consideration of Boyertown, PA hydrology, geology, meteorology, Issuance of Amendment published in ecology, air and water quality, and AGENCY: Nuclear Regulatory noise) most of which was detailed in the the Federal Register on October 14, Commission. 2003 (68 FR 59216). By letter dated May Environmental Assessment issued April ACTION: Notice of availability. 10, 2005, the licensee withdrew the 12, 2004, for the license renewal. The proposed change. proposed action was found to result in FOR FURTHER INFORMATION CONTACT: doses for all scenarios of less than 0.01 For further details with respect to this Michael Raddatz, Sr., Project Manager, milliSievert per year (mSv/yr) [1 action, see the application for Fuel Cycle Facilities Branch, Division of millirem/yr]. These doses are consistent amendment dated July 14, 2003, as Fuel Cycle Safety and Safeguards, Office with NRC’s policy on recycling of supplemented on March 15, April 23, of Nuclear Material Safety and material under 10 CFR 20.2002. The May 20, December 8, December 17, Safeguards, U.S. Nuclear Regulatory staff also reviewed the impacts from the 2004, and January 21, 2005, and the Commission, Washington, DC 20555– transportation and handling of the licensee’s letter dated May 10, 2005, 0001. Telephone: (301) 415–6334; fax filtercake and found that impacts were which withdrew the application for number: (301) 415–5955; e-mail: similar to, or below those already being license amendment. Documents may be [email protected]. measured when the filtercake is sent to examined, and/or copied for a fee, at the SUPPLEMENTARY INFORMATION: a landfill. NRC’s Public Document Room (PDR), I. Introduction III. Finding of No Significant Impact located at One White Flint North, Public File Area 01 F21, 11555 Rockville Pike The Nuclear Regulatory Commission On the basis of the EA, NRC has (first floor), Rockville, Maryland. (NRC) is issuing an amendment to concluded that there are no significant Publicly available records will be Materials License No. SMB–920 issued environmental impacts from the accessible electronically from the to Cabot Corporation (the licensee), to proposed amendment and has determined not to prepare an Agencywide Documents Access and authorize the recycling of waste water filtercake to be used as feed material at environmental impact statement. Management Systems (ADAMS) Public a cement kiln. NRC has prepared an Electronic Reading Room on the internet IV. Further Information Environmental Assessment (EA) in at the NRC Web site, http:// support of this amendment in Documents related to this action, www.nrc.gov/reading-rm/adams/html. accordance with the requirements of 10 including the application for Persons who do not have access to CFR part 51. Based on the EA, the NRC amendment and supporting ADAMS or who encounter problems in has concluded that a Finding of No documentation, are available accessing the documents located in Significant Impact (FONSI) is electronically at the NRC’s Electronic ADAMS should contact the NRC PDR appropriate. The amendment will be Reading Room at http://www.nrc.gov/ Reference staff by telephone at 1–800– issued following the publication of this reading-rm/adams.html. From this site, 397–4209, 301–415–4737, or by e-mail notice. you can access the NRC’s Agencywide to [email protected]. Document Access and Management II. EA Summary Dated in Rockville, Maryland, this 29th System (ADAMS), which provides text day of June 2005. The purpose of the proposed and image files of NRC’s public amendment is to authorize the recycling documents. The ADAMS accession of waste water filtercake so it may be numbers for the documents related to used as feed material at a cement kiln. this notice are as follows:
ADAMS acces- Document sion no. Date
Environmental Assessment for the Cabot Corporation License Renewal, SMB–920 (L52514) ...... ML041030379 .... 04/12/2004 Application to amend license SMB–920 to allow the recycling of filtercake to be used as cement kiln feed ... ML043350420 .... 11/18/2004 Request to amend license SMB–920 to allow the recycling of filtercake to be used as cement kiln feed ...... ML043350417 .... 11/24/2004 Supplemental information to the request to amend license SMB–920 to allow the recycling of filtercake to ML043350423 .... 11/24/2004 be used as cement kiln feed. Letter discussing the Agency’s position on conservation of natural resources ...... ML043640417 .... 12/22/2004
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ADAMS acces- Document sion no. Date
12/22/04 Ltr. To Mr. O’Neill (Cabot Corp.) From E. Brumett ...... ML043570238 .... 12/22/2004 Response to NRC Comments Dated 12/22/2004 ...... ML050330142 .... 1/28/2005 Draft Environmental Assessment for Recycling Amendment ...... ML050910456 .... 3/31/2005 E–Mail from R. Schoenfelder. Re: Amendment to allow Recycling of Filtercake ...... ML051510248 .... 5/19/2005 Final Environmental Assessment ...... ML051640062 .... 6/10/2005
If you do not have access to ADAMS Members of the public desiring to Dated: June 30, 2005. or if there are problems in accessing the provide oral statements and/or written Sharon A. Steele, documents located in ADAMS, contact comments should notify the Designated Acting Branch Chief, ACRS/ACNW. the NRC’s Public Document Room (PDR) Federal Official, Ms. Sharon A. Steele [FR Doc. E5–3557 Filed 7–6–05; 8:45 am] reference staff at 1–800–397–4209, 301– (Telephone: 301/415–6805) between 8 BILLING CODE 7590–01–P 415–4737, or by e-mail to [email protected]. a.m. and 5:15 p.m. (ET) five days prior These documents may also be viewed to the meeting, if possible, so that electronically on the public computers appropriate arrangements can be made. NUCLEAR REGULATORY located at the NRC’s PDR, O 1 F21, One Electronic recordings will be permitted COMMISSION White Flint North, 11555 Rockville only during those portions of the Sunshine Act Meeting Pike, Rockville, MD 20852. The PDR meeting that are open to the public. reproduction contractor will copy Further information regarding this DATE: Weeks of July 4, 11, 18, 25, documents for a fee. meeting can be obtained by contacting August 1, 8, 2005. Dated in Rockville, MD this 20th day of the Designated Federal Official between PLACE: Commissioners’ Conference June, 2005. 8:30 a.m. and 5:15 p.m. (ET). Persons Room, 11555 Rockville Pike, Rockville, For the Nuclear Regulatory Commission. planning to attend this meeting are Maryland. Michael G. Raddatz, Sr., urged to contact the above named STATUS: Public and closed. Project Manager, Uranium Processing individual at least two working days MATTERS TO BE CONSIDERED: Section, Fuel Cycle Facilities Branch, Division prior to the meeting to be advised of any of Fuel Cycle Safety and Safeguards, Office Week of July 4, 2005 of Nuclear Material Safety and Safeguards. potential changes in the agenda. There are no meetings scheduled for [FR Doc. E5–3560 Filed 7–6–05; 8:45 am] Dated: June 30, 2005. the week of July 4, 2005. BILLING CODE 7590–01–P Sharon A. Steele, Acting Branch Chief, ACRS/ACNW. Week of July 11, 2005—Tentative [FR Doc. E5–3558 Filed 7–6–05; 8:45 am] There are no meetings scheduled for NUCLEAR REGULATORY the week of July 11, 2005. COMMISSION BILLING CODE 7590–01–P Week of July 18, 2005—Tentative Advisory Committee on Nuclear NUCLEAR REGULATORY There are no meetings scheduled for Waste; Meeting on Planning and the week of July 18, 2005. Procedures; Notice of Meeting COMMISSION Week of July 25, 2005—Tentative The Advisory Committee on Nuclear Advisory Committee on Reactor Thursday, July 28, 2005. Waste (ACNW) will hold a Planning and Safeguards; Meeting of the Procedures meeting on July 19, 2005, Subcommittee on Reactor Fuels; 1:30 p.m. Discussion of Security Issues Room T–2B3, 11545 Rockville Pike, Revised (Closed—Ex. 1). Rockville, Maryland. The entire meeting Week of August 1, 2005—Tentative will be open to public attendance, with The agenda for the ACRS the exception of a portion that may be Subcommittee on Reactor Fuels There are no meetings scheduled for closed pursuant to 5 U.S.C. 552b(c)(2) scheduled to be held on July 27–28, the week of August 1, 2005. and (6) to discuss organizational and 2005 has been revised to extend the date Week of August 8, 2005—Tentative personnel matters that relate solely to to July 29, 2005, Room T–2B3, 11545 There are no meetings scheduled for internal personnel rules and practices of Rockville Pike, Rockville, Maryland. On the week of August 8, 2005. ACNW, and information the release of July 29, 2005, the Subcommittee will * The schedule for Commission which would constitute a clearly continue its discussion on the proposed meetings is subject to change on short unwarranted invasion of personal criteria for reactor fuel during LOCAs notice. To verify the status of meetings privacy. and reactivity insertion events, from call (recording)—(301) 415–1292. The agenda for the subject meeting 8:30 a.m., until 5:30 p.m. Contact person for more information: shall be as follows: The agenda for July 27–28, 2005 Michelle Schroll, (301) 415–1662. Tuesday, July 19, 2005—8:30 a.m.–10 remains the same as published in the ADDITIONAL INFORMATION: Affirmation of a.m. Federal Register on Wednesday, June item b. (1) Exelon Generation Company, The Committee will discuss proposed 29, 2005 (70 FR 37448). LLC (Early Site Permit for Clinton ESP ACNW activities and related matters. Site), Docket No. 52–007–ESP; (2) Further information regarding this The purpose of this meeting is to gather Dominion Nuclear North Anna, LLC information, analyze relevant issues and meeting can be obtained by contacting (Early Site Permit for North Anna ESP facts, and formulate proposed positions Mr. Ralph Caruso, Designated Federal Site), Docket No. 52–008–ESP; (3) and actions, as appropriate, for Official (telephone 301–415–8065) System Energy Resources, Inc. (Early deliberation by the full Committee. between 7:30 a.m. and 4:30 p.m. (ET). Site Permit for Grand Gulf ESP Site),
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Docket No. 52–009–ESP; (4) Louisiana Guaranty Corporation has received a a contributing employer to an unrelated Energy Services, LP. (National request from LA Team Co. LLC, for an party will not be considered a Enrichment Facility), Docket No. 70– exemption from the bond/escrow withdrawal if three conditions are met. 3103–ML; (5) USEC Inc. (American requirement of section 4204(a)(1)(B) of These conditions, enumerated in section Centrifuge Plant), Docket No. 70–7004, the Employee Retirement Income 4204(a)(1)(A)–(C), are that— Guidance on Mandatory Hearings, Security Act of 1974, as amended, with (A) the purchaser has an obligation to tentatively scheduled on Wednesday, respect to the Major League Baseball contribute to the plan with respect to June 29, 2005, at 9:25 a.m. was not held. Players Benefit Plan. Section 4204(a)(1) the operations for substantially the same By a vote of 5–0 on June 29, the provides that the sale of assets by an number of contributions base units for Commission determined pursuant to employer that contributes to a which the seller was obligated to U.S.C. 552b(e) and § 9.107(a) of the multiemployer pension plan will not contribute; Commission’s rules that ‘‘Discussion of constitute a complete or partial (B) the purchaser obtains a bond or Intergovernmental Issues (Closed—Ex. withdrawal from the plan if certain places an amount in escrow, for a period 9)’’ be held June 29, and on less than conditions are met. One of these of five plan years after the sale, an one week’s notice to the public. conditions is that the purchaser post a amount equal to the greater of the The NRC Commission Meeting bond or deposit money in escrow for the seller’s average required annual Schedule can be found on the Internet five-plan-year period beginning after the contribution to the plan for the three at: http://www.nrc.gov/what-we-do/ sale. The PBGC is authorized to grant plan years preceding the year in which policy-making/schedule.html. individual and class exemptions from the sale occurred or the seller’s required The NRC provides reasonable this requirement. Before granting an annual contribution for the plan year accommodation to individuals with exemption the PBGC is required to give preceding the year in which the sale disabilities where appropriate. If you interested persons an opportunity to occurred (the amount of the bond or need a reasonable accommodation to comment on the exemption request. The escrow is doubled if the plan is in participate in these public meetings, or purpose of this notice is to advise reorganization in the year in which the need this meeting notice or the interested persons of the exemption sale occurred); and (C) the contract of sale provides that transcript or other information from the request and solicit their views on it. if the purchaser withdraws from the public meetings in another format (e.g., DATES: Comments must be submitted on plan within the first five plan years braille, large print), please notify the or before August 22, 2005. beginning after the sale and fails to pay NRC’s Disability Program Coordinator, ADDRESSES: Comments may be mailed to any of its liability to the plan, the seller August Spector, at (301) 415–7080, the Office of the Chief Counsel, Pension shall be secondarily liable for the TDD: (301) 415–2100, or by e-mail at Benefit Guaranty Corporation, 1200 K liability it (the seller) would have had [email protected]. Determinations on Street, NW., Washington, DC 20005– but for section 4204. requests for reasonable accommodation 4026, or delivered to Suite 340 at the The bond or escrow described above will be made on a case-by-case basis. above address. Comments also may be would be paid to the plan if the This notice is distributed by mail to submitted electronically through the purchaser withdraws from the plan or several hundred subscribers. If you no PBGC’s Web site at http:// fails to make any required contributions longer with to receive it, or would like www.pbgc.gov/multis, or by fax to 202– to the plan within the first five plan to be added to the distribution, please 326–4112. The PBGC will make all years beginning after the sale. contact the Office of the Secretary, comments available on its Web site, Additionally, section 4204(b)(1) Washington, DC 20555 (301) 415–1969. http://www.pbgc.gov. Copies of the provides that if a sale of assets is In addition, distribution of this meeting comments and the non-confidential covered by section 4204, the purchaser notice over the Internet system is portions of the request may be obtained assumes by operation of law the available. If you are interested in by writing to the PBGC’s contribution record of the seller for the receiving this Commission meeting Communications and Public Affairs plan year in which the sale occurred schedule electronically, please send an Department at Suite 240 at the above and the preceding four plan years. electronic message to [email protected]. address or by visiting that office or Section 4204(c) of ERISA authorizes Dated: June 30, 2005. calling 202–326–4040 during normal the Pension Benefit Guaranty R. Michelle Schroll, business hours. (TTY and TDD users Corporation (‘‘PBGC’’) to grant Office of the Secretary. may call the Federal relay service toll- individual or class variances or free at 1–800–877–8339 and ask to be [FR Doc. 05–13419 Filed 7–5–05; 10:15 am] exemptions from the purchaser’s bond/ connected to 202–326–4040.) escrow requirement of section BILLING CODE 7590–01–M FOR FURTHER INFORMATION CONTACT: 4204(a)(1)(B) when warranted. The Gennice D. Brickhouse, Office of the legislative history of section 4204 Chief Counsel, Suite 340, 1200 K Street, indicates a Congressional intent that the PENSION BENEFIT GUARANTY NW., Washington, DC 20005–4026, 202– sales rules be administered in a manner CORPORATION 326–4020. (For TTY/TTD users, call the that assures protection of the plan with Pendency of Request for Exemption Federal relay service toll-free at 1–800– the least practicable intrusion into From the Bond/Escrow Requirement 877–8339 and ask to be connected to normal business transactions. Senate Relating to the Sale of Assets by an 202–326–4020.) Committee on Labor and Human Employer Who Contributes to a SUPPLEMENTARY INFORMATION: Resources, 96th Cong., 2nd Sess., Multiemployer Plan; LA Team Co. LLC S.1076, The Multiemployer Pension Background Plan Amendments Act of 1980: AGENCY: Pension Benefit Guaranty Section 4204 of the Employee Summary and Analysis of Corporation. Retirement Income Security Act of 1974, Considerations 16 (Comm. Print, April ACTION: Notice of pendency of request. as amended by the Multiemployer 1980); 128 Cong. Rec. S10117 (July 29, Pension Plan Amendments Act of 1980, 1980). The granting of an exemption or SUMMARY: This notice advises interested (‘‘ERISA’’ or ‘‘the Act’’), provides that a variance from the bond/escrow persons that the Pension Benefit bona fide arm’s-length sale of assets of requirement does not constitute a
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finding by the PBGC that a particular the Seller with respect to the operations Issued at Washington, DC, on this 30th of transaction satisfies the other subject to the sale could be as high as June, 2005. requirements of section 4204(a)(1). $32,300,000. Vincent K. Snowbarger, Under the PBGC’s regulation on 5. The amount of the bond/escrow Acting Executive Director. variances for sales of assets (29 CFR Part established under section 4204(a)(1)(B) [FR Doc. 05–13311 Filed 7–6–05; 8:45 am] 4204), a request for a variance or waiver is $2,466,666.67. BILLING CODE 7708–01–P of the bond/escrow requirement under any of the tests established in the 6. The Major League Baseball Clubs regulation (§ 4204.12 and 4204.13) is to (the ‘‘Clubs’’) have established the Major League Central Fund (the ‘‘Central SECURITIES AND EXCHANGE be made to the plan in question. The COMMISSION PBGC will consider waiver requests Fund’’) pursuant to the Major League only when the request is not based on Baseball Constitution. Under this Proposed Collection; Comment satisfaction of one of the four regulatory agreement, contributions to the Fund for Request tests or when the parties assert that the all participating employers are paid by financial information necessary to show the Office of the Commissioner of Upon Written Request, Copies Available satisfaction of one of the regulatory tests Baseball from the Central Fund on From: Securities and Exchange is privileged or confidential financial behalf of each participating employer in Commission, Office of Filings and information within the meaning of 5 satisfaction of the employer’s pension Information Services, Washington, DC U.S.C. 552(b)(4) (Freedom of liability under the Fund’s funding 20549. Information Act). agreement. The monies in the Central Extension: Under § 4204.22 of the regulation, the Fund are derived directly from (i) gate Rule 17a–19; SEC File No. 270–148; OMB PBGC shall approve a request for a receipts from All-Star games; (ii) radio Control No. 3235–0133. variance or exemption if it determines and television revenue from World Series, League Championship Series, Notice is hereby given that, pursuant that approval of the request is to the Paperwork Reduction Act of 1995 warranted, in that it— Division Series, All-Star Games, and (iii) certain other radio and television (44 U.S.C. 3501 et seq.), the Securities (1) Would more effectively or and Exchange Commission equitably carry out the purposes of Title revenue, including revenues from foreign broadcasts, regular, spring (‘‘Commission’’) is soliciting comments IV of the Act; and on the collection of information (2) Would not significantly increase training and exhibition games. summarized below. The Commission the risk of financial loss to the plan. 7. In support of the waiver request, plans to submit this existing collection Section 4204(c) of ERISA and section the requester asserts that: 4204.22(b) of the regulation require the of information to the Office of PBGC to publish a notice of the ‘‘The Fund is thus funded from revenues Management and Budget for extension pendency of a request for a variance or which are paid from the Central Fund and approval. directly to the Fund without passing through exemption in the Federal Register, and Rule 17a–19 requires National the hands of any of the Clubs. The revenues to provide interested parties with an Securities Exchanges and Registered of the Central Fund are therefore not National Securities Associations to file opportunity to comment on the exclusively or even largely dependent on the proposed variance or exemption. a Form X–17A–19 with the Commission financial viability of anyone Club. within 5 days of the initiation, The Request Furthermore, a change in ownership of a suspension or termination of a member Club does not affect the obligation of the in order to notify the Commission that The PBGC has received a request from Central Fund to fund the Fund out of the the LA Team Co. LLC (the ‘‘Buyer’’) for Revenue. Accordingly, the Fund enjoys a a change in designated examining an exemption from the bond/escrow substantial degree of security with respect to authority may be necessary. requirement of section 4204(a)(1)(B) contributions on behalf of the Clubs, and as It is anticipated that approximately with respect to its purchase of the Los such, approval of this exemption request eight National Securities Exchanges and Angeles Dodgers Baseball Team from would not significantly increase the risk of Registered National Securities Los Angeles Dodgers, Inc. (the ‘‘Seller’’) financial loss to the Fund.’’ Associations collectively will make on February 13, 2004. In the request, the 1,800 total annual filings pursuant to 8. A complete copy of the request was Buyer represents among other things Rule 17a–19 and that each filing will sent to the Fund and to the Major that: take approximately 15 minutes. The 1. The Seller was obligated to League Baseball Players Association by total burden is estimated to be contribute to the Major League Baseball certified mail, return receipt requested. approximately 450 total annual hours. Players Benefit Plan (the ‘‘Fund’’) for Comments Written comments are invited on: (a) certain employees of the sold Whether the proposed collection of operations. All interested persons are invited to information is necessary for the proper 2. The Buyer has agreed to assume the submit written comments on the performance of the functions of the obligation to contribute to the Fund for pending exemption request to the above agency, including whether the substantially the same number of address. All comments will be made a information shall have practical utility; contribution base units as the Seller. part of the record. The PBGC will make (b) the accuracy of the agency’s estimate 3. The Seller has agreed to be the comments received available on its of the burden of the proposed collection secondarily liable for any withdrawal Web site, http://www.pbgc.gov. Copies of information; (c) ways to enhance the liability it would have had with respect of the comments and the non- quality, utility, and clarity of the to the sold operations (if not for section confidential portions of the request may information to be collected; and (d) 4204) should the Buyer withdraw from be obtained by writing or visiting the ways to minimize the burden of the the Fund within the five plan years PBGC’s Communications and Public collection of information on following the sale and fail to pay its Affairs Department (CPAD) at Suite 240 respondents, including through the use withdrawal liability. at the above address or by visiting that of automated collection techniques or 4. The estimated amount of the office or calling 202–326–4040 during other forms of information technology. unfunded vested benefits allocated to normal business hours. Consideration will be given to
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comments and suggestions submitted in company the specialist is registered, objectives of Section 6(b)(5) of the Act 5 writing within 60 days of this except for business transactions in in particular, in that it removes an publication. goods and services on terms generally unnecessary restriction on specialists’ Written comments regarding the available to the public. activity which should result in above information should be directed to: (b) No Change. increased liquidity in the market, to the R. Corey Booth, Director/Chief * * * * * benefit of investors. Information Officer, Office of B. Self-Regulatory Organization’s Information Technology, Securities and II. Self-Regulatory Organization’s Statement on Burden on Competition Exchange Commission, 100 F Street, Statement of the Purpose of, and NE., Washington, DC 20549. Statutory Basis for, the Proposed Rule The Exchange does not believe that Change Dated: June 27, 2005. the proposed rule change will impose In its filing with the Commission, the any inappropriate burden on Margaret H. McFarland, Phlx included statements concerning competition. Deputy Secretary. the purpose of, and basis for, the C. Self-Regulatory Organization’s [FR Doc. E5–3556 Filed 7–6–05; 8:45 am] proposed rule change and discussed any Statement on Comments on the BILLING CODE 8010–01–P comments it received on the proposed Proposed Rule Change Received From rule change. The text of these statements Members, Participants or Others may be examined at the places specified SECURITIES AND EXCHANGE in Item IV below. The Phlx has prepared No written comments were either COMMISSION summaries, set forth in Sections A, B, solicited or received. [Release No. 34–51928; File No. SR–Phlx– and C below, of the most significant III. Date of Effectiveness of the 2005–036] aspects of such statements. Proposed Rule Change and Timing for Self-Regulatory Organizations; A. Self-Regulatory Organization’s Commission Action Philadelphia Stock Exchange, Inc.; Statement of the Purpose of, and Within 35 days of the date of Notice of Filing of Proposed Rule Statutory Basis for, the Proposed Rule publication of this notice in the Federal Change Relating to an Amendment of Change Register or within such longer period (i) Phlx Rule 1023 1. Purpose as the Commission may designate up to 90 days of such date if it finds such Phlx Rule 1023(a) generally prohibits June 28, 2005. longer period to be appropriate and options specialists from effecting any Pursuant to Section 19(b)(1) of the publishes its reasons for so finding or business transaction with the issuer of Securities Exchange Act of 1934 (the (ii) as to which Phlx consents, the 1 2 the stock underlying the option or ‘‘Act’’), and Rule 19b–4 thereunder, Commission shall: (a) By order approve related persons. The Exchange proposes notice is hereby given that on May 19, such proposed rule change, or (b) to add an exception for doing business 2005, the Philadelphia Stock Exchange, institute proceedings to determine in goods and services on terms generally Inc. (‘‘Phlx’’ or ‘‘Exchange’’) filed with whether the proposed rule change available to the public on the theory that the Securities and Exchange should be disapproved. Commission (‘‘Commission’’) the such transactions will not provide proposed rule change as described in access to material non-public IV. Solicitation of Comments Items I, II, and III below, which Items information relating to the issuer, nor Interested persons are invited to have been prepared by the Phlx. The would they give rise to any control submit written data, views, and Commission is publishing this notice to relationship between the issuer and the arguments concerning the foregoing, solicit comments on the proposed rule specialist. The prohibition against such including whether the proposed rule change from interested persons. transactions is therefore proposed to be change is consistent with the Act. eliminated in that it serves no useful I. Self-Regulatory Organization’s Comments may be submitted by any of purpose and imposes unnecessary the following methods: Statement of the Terms of Substance of restrictions upon options specialists.3 the Proposed Rule Change Electronic Comments 2. Statutory Basis The Phlx proposes to amend Phlx • Use the Commission’s Internet Rule 1023, ‘‘Specialist’s Transactions The Exchange believes that its comment form (http://www.sec.gov/ with Listed Company.’’ proposal is consistent with Section 6(b) 4 rules/sro.shtml); or The text of the proposed rule change of the Act in general, and furthers the • Send an e-mail to rule- is below. Proposed new language is in [email protected]. Please include File italics. 3 The Exchange has previously stated that certain business transactions enumerated in Phlx Rule No. SR–Phlx–2005–036 on the subject * * * * * 511(b)(ii) are not the types of business transactions line. contemplated under Phlx Rule 1023. For purposes Rule 1023. Specialist’s Transactions of Phlx Rule 511(b)(ii), Phlx Rule 1023 was deemed Paper Comments: With Listed Company by the Exchange to prohibit only business • Send paper comments in triplicate transactions which are material in value either to (a) No specialist or his member the issuer or the specialist, would provide access to Jonathan G. Katz, Secretary, organization, or any member, limited to material nonpublic information relating to the Securities and Exchange Commission, partner, officer, employee, approved issuer, or would give rise to a control relationship Station Place, 100 F Street, NE., between the issuer and the specialist unit. The Washington, DC 20549–9303. person or party approved shall directly Exchange also stated that the receipt of routine or indirectly, effect any business business services, goods, materials, insurance, on All submissions should refer to File transaction with a company or any terms that would be generally available would not Number SR–Phlx–2005–036. This file officer, director or 10% stockholder of a be deemed a business transaction for the purposes number should be included on the of Phlx Rule 1023. See Securities Exchange Act subject line if e-mail is used. To help the company in which options of such Release No. 46214 (July 16, 2002), 67 FR 48693 (July 25, 2002) (order approving File No. SR–Phlx– Commission process and review your 1 15 U.S.C. 78s(b)(1). 2001–63), at footnote 6. 2 17 CFR 240.19b–4. 4 15 U.S.C. 78f(b). 5 15 U.S.C. 78f(b)(5).
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comments more efficiently, please use • Originating Office: Foreign Service enroll in courses offered by the only one method. The Commission will Institute (FSI). Department of State’s Foreign Service post all comments on the Commission’s • Form Number: DS–3083. Institute. This includes information of a Internet Web site (http://www.sec.gov/ • Respondents: Respondents are non- personal and business nature, and credit rules/sro.shtml). Copies of the U.S. government persons and/or their card information so that the Department submission, all subsequent eligible family members, authorized by can receive reimbursement. amendments, all written statements Public Law 105–277 to receive training Methodology: This information will with respect to the proposed rule delivered by the Foreign Service be collected in hard copy format, which change that are filed with the Institute on a reimbursable or advance is either mailed or transmitted by Commission, and all written of funds basis. facsimile machine to the Foreign communications relating to the • Estimated Number of Respondents: Service Institute. proposed rule change between the 200. Dated: June 17, 2005. • Estimated Number of Responses: Commission and any person, other than Catherine J. Russell, 200. those that may be withheld from the Executive Director, Foreign Service Institute, public in accordance with the • Average Hours per Response: 0.5. • Department of State. provisions of 5 U.S.C. 552, will be Total Estimated Burden: 100. • [FR Doc. 05–13359 Filed 7–6–05; 8:45 am] available for inspection and copying in Frequency: On occasion. • BILLING CODE 4710–34–P the Commission’s Public Reference Obligation to Respond: Required to Room. Copies of such filing also will be obtain or retain a benefit. DATES: available for inspection and copying at The Department will accept DEPARTMENT OF STATE the principal office of the Phlx. comments from the public up to 60 days All comments received will be posted from July 7, 2005. [Public Notice 5128] without change; the Commission does ADDRESSES: You may submit comments Bureau of Political-Military Affairs: not edit personal identifying by any of the following methods: Directorate of Defense Trade Controls; information from submissions. You • E-mail: [email protected]. You Notifications to the Congress of should submit only information that must include the DS form number (if Proposed Commercial Export Licenses you wish to make available publicly. All applicable), information collection title, submissions should refer to File and OMB control number in the subject SUMMARY: Notice is hereby given that Number SR–Phlx–2005–036 and should line of your message. the Department of State has forwarded be submitted by July 28, 2005. • Mail (paper, disk, or CD-ROM the attached Notifications of Proposed For the Commission, by the Division of submissions): Foreign Service Institute, Export Licenses to the Congress on the Market Regulation, pursuant to delegated Office of Management, U.S. Department dates indicated pursuant to sections authority.6 of State, Washington, DC 20522–4201. 36(c) and 36(d) and in compliance with • Margaret H. McFarland, Fax: (703) 302–7227. section 36(f) of the Arms Export Control Deputy Secretary. FOR FURTHER INFORMATION CONTACT: Act (22 U.S.C. 2776). [FR Doc. E5–3555 Filed 7–6–05; 8:45 am] Direct requests for additional DATES: Effective Date: As shown on each information regarding the collection BILLING CODE 8010–01–P of the eight letters. listed in this notice, including requests FOR FURTHER INFORMATION CONTACT: Mr. for copies of the proposed information Peter J. Berry, Director, Office of Defense collection and supporting documents, to DEPARTMENT OF STATE Trade Controls Licensing, Directorate of Wayne A. Oshima, Foreign Service Defense Trade Controls, Bureau of [Public Notice: 5127] Institute, Office of Management, U.S. Political-Military Affairs, Department of Department of State, Washington, DC State (202) 663–2806. 60-Day Notice of Proposed Information 20522–4201, who may be reached on Collection: Form DS–3083, Training SUPPLEMENTARY INFORMATION: Section (703) 302–6730, or via e-mail address 36(f) of the Arms Export Control Act Registration (for Non-U.S. Government [email protected]. Persons), OMB Control No. 1405–0145 mandates that notifications to the SUPPLEMENTARY INFORMATION: We are Congress pursuant to sections 36(c) and ACTION: Notice of request for public soliciting public comments to permit 36(d) must be published in the Federal comments. the Department to: Register when they are transmitted to • Evaluate whether the proposed Congress or as soon thereafter as SUMMARY: The Department of State is information collection is necessary for practicable. seeking Office of Management and the proper performance of our March 22, 2005. Budget (OMB) approval for the functions. Hon. J. Dennis Hastert, Speaker of the House information collection described below. • Evaluate the accuracy of our of Representatives. The purpose of this notice is to allow 60 estimate of the burden of the proposed Dear Mr. Speaker: Pursuant to Section days for public comment in the Federal collection, including the validity of the 36(c) of the Arms Export Control Act, I am Register preceding submission to OMB. methodology and assumptions used. transmitting, herewith, certification of a We are conducting this process in • Enhance the quality, utility, and proposed license for the export of defense accordance with the Paperwork clarity of the information to be articles or defense services sold Reduction Act of 1995. collected. commercially under a contract in the amount • Title of Information Collection: • Minimize the reporting burden on of $50,000,000 or more. Training Registration (for Non-U.S. those who are to respond, including the The transaction contained in the attached use of automated collection techniques certification involves the export and launch Government Persons). of a commercial communications satellite, • OMB Control Number: 1405–0145. or other forms of technology. • and related support equipment, from Russia Type of Request: Extension of a Abstract of proposed collection: This and Kazakhstan. currently approved collection. data collection tool is to be used to The United States Government is prepared obtain information from non-U.S. to license the export of this item having taken 6 17 CFR 200.30–3(a)(12). Government persons so that they can into account political, military, economic,
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human rights and arms control May 10, 2005. The transaction described in the attached considerations. Hon. J. Dennis Hastert, Speaker of the House certification involves the transfer of technical More detailed information is contained in of Representatives. data, assistance, including training, and the formal collection which, though Dear Mr. Speaker: Pursuant to Section manufacturing know-how to Australia for the unclassified, contains business information 36(c) of the Arms Export Control Act, I am manufacture of RAN SEA 4000 Air Warfare submitted to the Department of State by the transmitting, herewith, certification of a Destroyer (AWD) for end-use in Australia. applicant, publication of which could cause proposed license for the export of defense The United States Government is prepared competitive harm to the United States firm articles or defense services sold to license the export of these items having concerned. commercially under a contract in the amount taken into account political, military, Sincerely, of $100,000,000 or more. economic, human rights and arms control James P. Terry, The transaction contained in the attached considerations. More detailed information is contained in Acting Assistant Secretary Legislative Affairs. certification involves the export of technical the formal certification which, though Enclosure: Transmittal No. DDTC 005–05. data, hardware and assistance for the unclassified, contains business information Upgrade of the New Zealand (RNZAF) P–3K April 25, 2005. submitted to the Department of State by the Orion Maritime Patrol Aircraft System. This Hon. J. Dennis Hastert, Speaker of the applicant, publication of which could cause House of Representatives. upgrade consists of the Data Management, competitive harm to the United States firm Dear Mr. Speaker: Pursuant to Section Radar, Electro-optic, Electronic Surveillance, concerned. 36(c) of the Arms Export Control Act, I am Communications and Navigation Systems. Sincerely, transmitting, herewith, certification of a The United States Government is prepared to license the export of these items having Matthew A. Reynolds, proposed license for the export of defense Acting Assistant Secretary Legislative Affairs. articles or defense services sold taken into account political, military, commercially under contract in the amount economic, human rights and arms control Enclosure: Transmittal No. DDTC 009–05. of $100,000,000 or more. considerations. June 14, 2005. The transaction contained in the attached More detailed information is contained in Hon. J. Dennis Hastert, Speaker of the certification involves the export of military the formal certification which, though House of Representatives. trucks and vehicles to the Ministry of unclassified, contains business information Dear Mr. Speaker: Pursuant to Section Defense (MOD) of Iraq. submitted to the Department of State by the 36(c) of the Arms Export Control Act, I am The United States Government is prepared applicant, publication of which could cause transmitting, herewith, certification of a to license the export of these items having competitive harm to the United States firm proposed license for the export of defense taken into account political, military, concerned. articles or defense services sold economic, human rights and arms control Sincerely, commercially under contract in the amount considerations. Matthew A. Reynolds, of $100,000,000 or more. More detailed information is contained in Acting Assistant Secretary Legislative Affairs. The transaction contained in the attached the formal certification which, though Enclosure: Transmittal No. DDTC 002–05. certification involves the export of technical unclassified, contains business information data and assistance to support the submitted to the Department of State by the June 7, 2005. cooperative development by Japan and the applicant, publication of which could cause Hon. J. Dennis Hastert, Speaker of the House United States of the Standard Missile—(SM– competitive harm to the United States firm of Representatives. 3) Block II missile for the AEGIS ballistic concerned. Dear Mr. Speaker: Pursuant to Section missile defense system. Sincerely, 36(c) of the Arms Export Control Act, I am The United States Government is prepared Matthew A. Reynolds, transmitting, herewith, certification of a to license the export of these items having Acting Assistant Secretary Legislative Affairs. proposed license for the export of defense taken into account political, military, Enclosure: Transmittal No. DDTC 001–05. articles or defense services sold economic, human rights and arms control commercially under a contract in the amount considerations. April 26, 2005. of $100,000,000 or more. More detailed information is contained in Hon. J. Dennis Hastert, Speaker of the House The transaction contained in the attached the formal certification which, though of Representatives. certification involves the export of spare unclassified, contains business information Dear Mr. Speaker: Pursuant to Section parts for the SH–2G(A) helicopter to submitted to the Department of State by the 36(c) of the Arms Export Control Act, I am Australia. applicant, publication of which could cause transmitting, herewith, certification of a The United States Government is prepared competitive harm to the United States firm proposed license for the export of defense to license the export of these items having concerned. articles or defense services sold taken into account political, military, Sincerely, commercially under a contract in the amount economic, human rights and arms control Matthew A. Reynolds, of $100,000,000 or more. considerations. Acting Assistant Secretary Legislative Affairs. The transaction contained in the attached More detailed information is contained in Enclosure: Transmittal No. DDTC 018–05. certification involves the export of Vertical the formal certification which, though Launch Anti-Submarine Rocket (VLA) unclassified, contains business information June 14, 2005. components to Japan for assembly and end- submitted to the Department of State by the Hon. J. Dennis Hastert, Speaker of the use by Japan. applicant, publication of which could cause House of Representatives. The United States Government is prepared competitive harm to the United States firm Dear Mr. Speaker: Pursuant to Section to license the export of these items having concerned. 36(c) and (d) of the Arms Export Control Act, taken into account political, military, Sincerely, I am transmitting, herewith, certification of a economic, human rights and arms control proposed manufacturing license agreement considerations. Matthew A. Reynolds, for the manufacture of significant military More detailed information is contained in Acting Assistant Secretary Legislative Affairs. equipment abroad and the export of defense the formal certification which, though Enclosure: Transmittal No. DDTC 007–05. articles or defense services in the amount of unclassified, contains business information June 9, 2005. $100,000,000 or more. submitted to the Department of State by the Hon. J. Dennis Hastert, Speaker of the House The transaction contained in the attached applicant, publication of which could cause of Representatives. certification involves the export of technical competitive harm to the United States firm Dear Mr. Speaker: Pursuant to Section data, defense services and hardware to Japan concerned. 36(d) of the Arms Export Control Act, I am for the manufacture of the AN/APG–63(V)1 Sincerely, transmitting, herewith, certification of a radar system retrofit kits for the Japanese Matthew A. Reynolds, proposed manufacturing license agreement Defense Agency. Acting Assistant Secretary Legislative Affairs. for the manufacture of significant military The United States Government is prepared Enclosure: Transmittal No. DTC 096–04. equipment abroad. to license the export of these items having
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taken into account political, military, Street, SW., Room 700, Washington, DC Dated: June 30, 2005. economic, human rights and arms control 20547–0001. Clayton Diamond, considerations. Dated: June 24, 2005. Executive Secretary, Shipping Coordinating More detailed information is contained in Committee, Department of State. the formal certification which, though C. Miller Crouch, unclassified, contains business information Principal Deputy Assistant Secretary for [FR Doc. 05–13358 Filed 7–6–05; 8:45 am] submitted to the Department of State by the Educational and Cultural Affairs, Department BILLING CODE 4710–09–P applicant, publication of which could cause of State. competitive harm to the United States firm [FR Doc. 05–13395 Filed 7–6–05; 8:45 am] concerned. BILLING CODE 4710–08–P DEPARTMENT OF TRANSPORTATION Sincerely, Matthew A. Reynolds, Federal Aviation Administration Acting Assistant Secretary Legislative Affairs. DEPARTMENT OF STATE Enclosure: Transmittal No. DDTC 022–05. Availability of Changes to Advisory Circular 27–1B, Certification of Normal Dated: June 29, 2005. [Public Notice 5100] Peter J. Berry, Category Rotorcraft, and Advisory Circular 29–2C, Certification of Director, Office of Defense Trade Controls Shipping Coordinating Committee; Licensing, Department of State. Notice of Meetings Transport Category Rotorcraft [FR Doc. 05–13360 Filed 7–6–05; 8:45 am] The Working Group on Radio AGENCY: Federal Aviation BILLING CODE 4710–25–P Communications and Search and Administration (FAA), DOT. Rescue of the Subcommittee on Safety ACTION: Notice of availability of Advisory Circular (AC) changes. DEPARTMENT OF STATE of Life at Sea will conduct open meetings at 1 p.m. on Thursday, August SUMMARY: 11, 2005, in room 3328. This notice announces the [Public Notice 5129] availability of changes to AC 27–1B, The meeting will be held at the Certification of Normal Category Department of Transportation Culturally Significant Objects Imported Rotocraft, and AC 29–2C, Certification Headquarters Building, 400 Seventh for Exhibition Determinations: ‘‘The of Transport Category Rotocraft for the Street, SW., Washington, DC 20950. The Golden Age of Russian Icons— following AC paragraphs: 27.672, purpose of this meeting is to prepare for Novgorod the Great’’ 27.683, 27.777, 27.1321, 27.1585, AC 27 the Tenth Session of the International MG 8, AC 27 Appendix A, AC 27 SUMMARY: Notice is hereby given of the Maritime Organization (IMO) Appendix B, 29.45, 29.59A, 29.75A, following determinations: Pursuant to Subcommittee on Radiocommunications 29.337, 29.631, 29.672, 29.683, 29.777, the authority vested in me by the Act of and Search and Rescue, which is 29.1321, 29.1333, 29.1351, 29.1585, AC October 19, 1965 (79 Stat. 985; 22 U.S.C. scheduled for the week of March 6–10, 29 MG 8, AC 29 Appendix A, and AC 2459), Executive Order 12047 of March 2006, at IMO headquarters in London, 29 Appendix B. These AC paragraphs 27, 1978, the Foreign Affairs Reform and England. are final and replace the existing AC Restructuring Act of 1998 (112 Stat. The primary matters to be considered paragraphs dated 9/30/99, as well as 2681, et seq.; 22 U.S.C. 6501 note, et are: seq.), Delegation of Authority No. 234 of replace any updates to any paragraphs —Maritime Safety Information for in Change 1 dated 2/12/03. AC 27.865B October 1, 1999, Delegation of Authority GMDSS. No. 236 of October 19, 1999, as and AC 29.865B, External Loads, are amended, and Delegation of Authority —Development of a procedure for revised and replace AC 27.865B and AC No. 257 of April 15, 2003 [68 FR 19875], recognition of mobile satellite 29.865B dated 9/30/99. AC paragraphs I hereby determine that the objects to be systems. 27.865B and 29.865B also replace and included in the exhibition ‘‘The Golden —Large passenger ship safety. cancel AC 27 MG 12 and AC 29 MG 12 Age of Russian Icons—Novgorod the —Emergency radiocommunications, dated 9/30/99, as well as any updates in Great,’’ imported from abroad for including false alerts and interference. Change 1 dated 2/12/03. Also, AC 27 temporary exhibition within the United —Issues related to maritime security. MG 18 and AC 29 MG 18, Helicopter States, are of cultural significance. The —Matters concerning Search and Terrain Awareness and Warning System objects are imported pursuant to loan Rescue. (HTAWS), are new AC paragraphs and agreements with the foreign owners or —Developments in maritime are now final. All of these AC custodians. I also determine that the radiocommunication systems and paragraphs will be included in the exhibition or display of the exhibit technology. upcoming Change 2 update. objects at the Walters Art Museum, —Planning for the 11th session of FOR FURTHER INFORMATION CONTACT: Baltimore, Maryland, from on or about COMSAR. Kathy L. Jones, Regulations Group, November 19, 2005 to on or about Members of the public may attend FAA, Rotocraft Directorate, Aircraft February 12, 2006, and at possible these meetings up to the seating Certification Service, Fort Worth, TX additional venues yet to be determined, capacity of the room. Interested persons 76193–0111; telephone (817) 222–5359; is in the national interest. Public Notice may seek information by writing: Mr. fax (817) 222–5961; e-mail: http:// of these Determinations is ordered to be Russell S. Levin, U.S. Coast Guard [email protected]. published in the Federal Register. Headquarters, Commandant (CG–622), SUPPLEMENTARY INFORMATION: This FOR FURTHER INFORMATION CONTACT: For Room 6611, 2100 Second Street, SW., notice announces the availability of AC further information, including a list of Washington, DC 20593–0001, by calling: changes. You can get electronic copies the exhibit objects, contact Wolodymyr (202) 267–1389, or by sending Internet of these changes from the FAA by R. Sulzynsky, the Office of the Legal electronic mail to logging on to http://www.faa.gov/ Adviser, Department of State, [email protected] and viewing aircraft/draft_doc/. If you do not have (telephone: 202/453–8050). The address http://www.navcen.uscg.gov/ access to the Internet, you may request is Department of State, SA–44, 301 4th marcomms/imo/meetings.htm. a copy by contacting the person named
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under the caption FOR FURTHER ADDRESSES: Direct all written comments quality, utility, and clarity of the INFORMATION CONTACT. to Glenn Kirkland, Internal Revenue information to be collected; (d) ways to Issued in Fort Worth, TX, on June 30, 2005. Service, room 6516, 1111 Constitution minimize the burden of the collection of David A. Downey, Avenue NW., Washington, DC 20224. information on respondents, including through the use of automated collection Manager, Rotorcraft Directorate, Aircraft FOR FURTHER INFORMATION CONTACT: Certification Service. Requests for additional information or techniques or other forms of information technology; and (e) estimates of capital [FR Doc. 05–13367 Filed 7–6–05; 8:45 am] copies of the form and instructions should be directed to Allan Hopkins, at or start-up costs and costs of operation, BILLING CODE 4910–13–M (202) 622–6665, or at Internal Revenue maintenance, and purchase of services Service, room 6516, 1111 Constitution to provide information. DEPARTMENT OF TRANSPORTATION Avenue NW., Washington, DC 20224, or Approved: June 15, 2005. through the Internet, at Glenn Kirkland, Maritime Administration [email protected]. IRS Reports Clearance Officer. [Docket No. MARAD–2005–21380] SUPPLEMENTARY INFORMATION: [FR Doc. E5–3576 Filed 7–6–05; 8:45 am] Title: Certain Gambling Winnings. BILLING CODE 4830–01–P Title XI Remedies OMB Number: 1545–0238. Form Number: Form W–2G. AGENCY: Maritime Administration, Abstract: Internal Revenue Code DEPARTMENT OF THE TREASURY Department of Transportation. sections 6041, 3402(q), and 3406 require ACTION: Notice of extension of comment payers of certain gambling winnings to Internal Revenue Service period. withhold tax and to report the winnings to the IRS. IRS uses the information to Proposed Collection; Comment SUMMARY: The Maritime Administration verify compliance with the reporting Request for Notice 210 is hereby giving notice that the closing rules and to verify that the winnings are date for filing comments on the Notice AGENCY: Internal Revenue Service (IRS), properly reported on the recipient’s tax Treasury. and Request for Comments on New Title return. ACTION: Notice and request for XI Remedies (Docket No. MARAD 2005– Current Actions: There are no changes comments. 21380) has been extended to the close being made to the form at this time. of business (5 p.m. e.d.t.) on August 8, Type of Review: Extension of a SUMMARY: 2005. The Notice and Request for The Department of the currently approved collection. Treasury, as part of its continuing effort Comments was published in the Federal Affected Public: Businesses or other Register on June 8, 2005 (70 FR 33581). to reduce paperwork and respondent for-profit organizations, state or local burden, invites the general public and By Order of the Maritime Administrator. governments, and non-profit other Federal agencies to take this Dated: July 1, 2005. institutions. opportunity to comment on proposed Joel C. Richard, Estimated Number of Responses: and/or continuing information Secretary, Maritime Administration. 4,104,771. collections, as required by the [FR Doc. 05–13364 Filed 7–6–05; 8:45 am] Estimated Time Per Response: 19 min. Paperwork Reduction Act of 1995, Estimated Total Annual Burden BILLING CODE 4910–81–P Public Law 104–13 (44 U.S.C. Hours: 1,272,479. 3506(c)(2)(A)). Currently, the IRS is The following paragraph applies to all soliciting comments concerning Notice of the collections of information covered DEPARTMENT OF THE TREASURY 210, Preparation Instructions for Media by this notice: Labels. An agency may not conduct or Internal Revenue Service DATES: Written comments should be sponsor, and a person is not required to received on or before September 6, 2005 respond to, a collection of information Proposed Collection; Comment to be assured of consideration. Request for Form W–2G unless the collection of information displays a valid OMB control number. ADDRESSES: Direct all written comments AGENCY: Internal Revenue Service (IRS), Books or records relating to a collection to Glenn P. Kirkland, Internal Revenue Treasury. of information must be retained as long Service, room 6516, 1111 Constitution ACTION: Notice and request for as their contents may become material Avenue NW., Washington, DC 20224. comments. in the administration of any internal FOR FURTHER INFORMATION CONTACT: revenue law. Generally, tax returns and Requests for additional information or SUMMARY: The Department of the tax return information are confidential, copies of notice should be directed to Treasury, as part of its continuing effort as required by 26 U.S.C. 6103. Allan Hopkins, at (202) 622–6665, or at to reduce paperwork and respondent Request for Comments: Comments Internal Revenue Service, room 6516, burden, invites the general public and submitted in response to this notice will 1111 Constitution Avenue NW., other Federal agencies to take this be summarized and/or included in the Washington, DC 20224, or through the opportunity to comment on proposed request for OMB approval. All internet, at [email protected]. and/or continuing information comments will become a matter of SUPPLEMENTARY INFORMATION: collections, as required by the public record. Comments are invited on: Title: Preparation Instructions for Paperwork Reduction Act of 1995, (a) Whether the collection of Media Labels. Public Law 104–13 (44 U.S.C. information is necessary for the proper OMB Number: 1545–0295. 3506(c)(2)(A)). Currently, the IRS is performance of the functions of the Notice Number: Notice 210. soliciting comments concerning Form agency, including whether the Abstract: Section 6011(e)(2)(A) of the W–2G, Certain Gambling Winnings. information shall have practical utility; Internal Revenue Code requires certain DATES: Written comments should be (b) the accuracy of the agency’s estimate filers of information returns to report on received on or before September 6, 2005 of the burden of the collection of magnetic media. Notice 210 instructs to be assured of consideration. information; (c) ways to enhance the the filers on how to prepare a pressure
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sensitive label that is affixed to the DEPARTMENT OF THE TREASURY An agency may not conduct or media informing the IRS as to what type sponsor, and a person is not required to of information is contained on the Internal Revenue Service respond to, a collection of information media being submitted. unless the collection of information Proposed Collection; Comment Current Actions: There are no changes displays a valid OMB control number. Request for Form 8453–P Books or records relating to a collection being made to the notice at this time. AGENCY: Internal Revenue Service (IRS), of information must be retained as long Type of Review: Extension of a Treasury. as their contents may become material currently approved collection. ACTION: Notice and request for in the administration of any internal Affected Public: Business or other for- comments. revenue law. Generally, tax returns and profit organizations, and not-for-profit tax return information are confidential, institutions. SUMMARY: The Department of the as required by 26 U.S.C. 6103. Treasury, as part of its continuing effort Request for Comments: Comments Estimated Number of Respondents: to reduce paperwork and respondent submitted in response to this notice will 150,000. burden, invites the general public and be summarized and/or included in the Estimated Average Time Per other Federal agencies to take this request for OMB approval. All Respondent: 5 min. opportunity to comment on proposed comments will become a matter of Estimated Total Annual Burden and/or continuing information public record. Comments are invited on: Hours: 12,765. collections, as required by the (a) Whether the collection of Paperwork Reduction Act of 1995, information is necessary for the proper The following paragraph applies to all Public Law 104–13 (44 U.S.C. performance of the functions of the of the collections of information covered 3506(c)(2)(A)). Currently, the IRS is agency, including whether the by this notice: soliciting comments concerning Form information shall have practical utility; An agency may not conduct or 8453–P, U.S. Partnership Declaration (b) the accuracy of the agency’s estimate sponsor, and a person is not required to and Signature for Electronic Filing. of the burden of the collection of respond to, a collection of information DATES: Written comments should be information; (c) ways to enhance the unless the collection of information received on or before September 6, 2005 quality, utility, and clarity of the displays a valid OMB control number. to be assured of consideration. information to be collected; (d) ways to minimize the burden of the collection of Books or records relating to a collection ADDRESSES: Direct all written comments of information must be retained as long to Glenn Kirkland, Internal Revenue information on respondents, including as their contents may become material Service, room 6516, 1111 Constitution through the use of automated collection in the administration of any internal Avenue NW., Washington, DC 20224. techniques or other forms of information technology; and (e) estimates of capital revenue law. Generally, tax returns and FOR FURTHER INFORMATION CONTACT: or start-up costs and costs of operation, tax return information are confidential, Requests for additional information or maintenance, and purchase of services as required by 26 U.S.C. 6103. copies of the form(s) and instructions to provide information. should be directed to Allan Hopkins, at Request for Comments: Comments Approved: June 20, 2005. submitted in response to this notice will (202) 622–6665, or at Internal Revenue Glenn Kirkland, be summarized and/or included in the Service, room 6516, 1111 Constitution Avenue NW., Washington, DC 20224, or IRS Reports Clearance Officer. request for OMB approval. All through the Internet, at [FR Doc. E5–3578 Filed 7–6–05; 8:45 am] comments will become a matter of [email protected]. BILLING CODE 4830–01–P public record. Comments are invited on: (a) Whether the collection of SUPPLEMENTARY INFORMATION: Title: U.S. Partnership Declaration information is necessary for the proper DEPARTMENT OF THE TREASURY performance of the functions of the and Signature for Electronic Filing. OMB Number: 1545–0970. agency, including whether the Internal Revenue Service Form Number: 8453–P. information shall have practical utility; Abstract: This form is used to secure (b) the accuracy of the agency’s estimate Proposed Collection; Comment the general partner’s signature and Request for Form 1120–PC of the burden of the collection of declaration in conjunction with the information; (c) ways to enhance the electronic filing of a partnership return AGENCY: Internal Revenue Service (IRS), quality, utility, and clarity of the (Form 1065). For 8453–P, together with Treasury. information to be collected; (d) ways to the electronic transmission, will ACTION: Notice and request for minimize the burden of the collection of comprise the partnership’s return. comments. information on respondents, including Current Actions: There are no changes through the use of automated collection being made to the form at this time. SUMMARY: The Department of the techniques or other forms of information Type of Review: Extension of a Treasury, as part of its continuing effort technology; and (e) estimates of capital currently approved collection. to reduce paperwork and respondent or start-up costs and costs of operation, Affected Public: Business or other for- burden, invites the general public and other Federal agencies to take this maintenance, and purchase of services profit organizations. opportunity to comment on proposed to provide information. Estimated Number of Respondents: 500. and/or continuing information Approved: June 16, 2005. Estimated Time Per Respondent: 49 collections, as required by the Glenn Kirkland, minutes. Paperwork Reduction Act of 1995, IRS Reports Clearance Officer. Estimated Total Annual Burden Public Law 104–13 (44 U.S.C. [FR Doc. E5–3577 Filed 7–6–05; 8:45 am] Hours: 405. 3506(c)(2)(A)). Currently, the IRS is The following paragraph applies to all soliciting comments concerning Form BILLING CODE 4830–01–P of the collections of information covered 1120–PC, U.S. Property and Casualty by this notice: Insurance Company Income Tax Return.
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DATES: Written comments should be quality, utility, and clarity of the OMB Number: 1545–1421. Regulation received on or before September 6, 2005 information to be collected; (d) ways to Project Number: IA–62–93. to be assured of consideration. minimize the burden of the collection of Abstract: These regulations ADDRESSES: Direct all written comments information on respondents, including established various elections enacted by to Glenn Kirkland, Internal Revenue through the use of automated collection the Omnibus Budget Reconciliation Act Service, room 6516, 1111 Constitution techniques or other forms of information of 1993 (OBRA) and provided Avenue NW., Washington, DC 20224. technology; and (e) estimates of capital immediate interim guidance of the time FOR FURTHER INFORMATION CONTACT: or start-up costs and costs of operation, and manner of making the elections. maintenance, and purchase of services Requests for additional information or These regulations enable taxpayers to to provide information. copies of the form and instructions take advantage of various benefits should be directed to Allan Hopkins, at Approved: June 23, 2005. provided by OBRA and the Internal (202) 622–6665, or at Internal Revenue Glenn Kirkland, Revenue Code. Service, room 6516, 1111 Constitution IRS Reports Clearance Officer. Current Actions: There is no change to Avenue NW., Washington, DC 20224, or [FR Doc. E5–3579 Filed 7–6–05; 8:45 am] this existing regulation. through the Internet, at BILLING CODE 4830–01–P [email protected]. Type of Review: Extension of a currently approved collection. SUPPLEMENTARY INFORMATION: Title: U.S. Property and Casualty DEPARTMENT OF THE TREASURY Affected Public: Individuals or Insurance Company Income Tax Return. households and business or other for- OMB Number: 1545–1027. Internal Revenue Service profit organizations, and farms. Form Number: Form 1120–PC. [IA–62–93] Estimated Number of Respondents: Abstract: Property and casualty 410,000. insurance companies are required to file Proposed Collection; Comment an annual return of income and pay the Request for Regulation Project Estimated Time Per Respondent: 30 tax due. The data is used to insure that minutes. companies have correctly reported AGENCY: Internal Revenue Service (IRS), Estimated Total Annual Burden income and paid the correct tax. Treasury. Hours: 202,500. ACTION: Current Actions: There are no changes Notice and request for The following paragraph applies to all being made to the form at this time. comments. of the collections of information covered Type of Review: Extension of a by this notice: currently approved collection. SUMMARY: The Department of the Affected Public: Business or other for- Treasury, as part of its continuing effort An agency may not conduct or profit organizations. to reduce paperwork and respondent sponsor, and a person is not required to Estimated Number of Respondents: burden, invites the general public and respond to, a collection of information 2,200. other Federal agencies to take this unless the collection of information Estimated Time Per Respondent: 212 opportunity to comment on proposed displays a valid OMB control number. hr., 22 min. and/or continuing information Books or records relating to a collection Estimated Total Annual Burden collections, as required by the of information must be retained as long Hours: 467,192. Paperwork Reduction Act of 1995, as their contents may become material The following paragraph applies to all Public Law 104–13 (44 U.S.C. in the administration of any internal of the collections of information covered 3506(c)(2)(A)). Currently, the IRS is revenue law. Generally, tax returns and by this notice: soliciting comments concerning existing tax return information are confidential, An agency may not conduct or final regulation, IA–62–93 (TD 8688), as required by 26 U.S.C. 6103. sponsor, and a person is not required to Certain Elections Under the Omnibus respond to, a collection of information Budget Reconciliation Act of 1993 Request for Comments: Comments unless the collection of information (§§ 1.108–5,1.163(d)–1,1.1044(a)–1, and submitted in response to this notice will displays a valid OMB control number. 1.6655(e)–1). be summarized and/or included in the request for OMB approval. All Books or records relating to a collection DATES: Written comments should be comments will become a matter of of information must be retained as long received on or before September 6, 2005 public record. Comments are invited on: as their contents may become material to be assured of consideration. in the administration of any internal (a) Whether the collection of ADDRESSES: Direct all written comments information is necessary for the proper revenue law. Generally, tax returns and to Glenn Kirkland, Internal Revenue tax return information are confidential, performance of the functions of the Service, room 6512, 1111 Constitution agency, including whether the as required by 26 U.S.C. 6103. Avenue, NW., Washington, DC 20224. Request for Comments: Comments information shall have practical utility; submitted in response to this notice will FOR FURTHER INFORMATION CONTACT: (b) the accuracy of the agency’s estimate be summarized and/or included in the Requests for additional information or of the burden of the collection of request for OMB approval. All copies of the regulations should be information; (c) ways to enhance the comments will become a matter of directed to Larnice Mack at Internal quality, utility, and clarity of the public record. Comments are invited on: Revenue Service, room 6512, 1111 information to be collected; (d) ways to (a) Whether the collection of Constitution Avenue NW., Washington, minimize the burden of the collection of information is necessary for the proper DC 20224, or at (202) 622–3179, or information on respondents, including performance of the functions of the through the Internet at through the use of automated collection agency, including whether the ([email protected]). techniques or other forms of information information shall have practical utility; SUPPLEMENTARY INFORMATION: technology; and (e) estimates of capital (b) the accuracy of the agency’s estimate Title: Certain Elections Under the or start-up costs and costs of operation, of the burden of the collection of Omnibus Budget Reconciliation Act of maintenance, and purchase of services information; (c) ways to enhance the 1993. to provide information.
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Approved: June 28, 2005. Affected Public: Individuals or burden, invites the general public and Glenn Kirkland, households. other Federal agencies to take this IRS Reports Clearance Officer. Estimated Number of Respondents: opportunity to comment on proposed [FR Doc. E5–3580 Filed 7–6–05; 8:45 am] 2,987,082. and/or continuing information BILLING CODE 4830–01–P Estimated Time Per Respondent: 45 collections, as required by the min. Paperwork Reduction Act of 1995, Estimated Total Annual Burden Public Law 104–13 (44 U.S.C. DEPARTMENT OF THE TREASURY Hours: 2,240,312. 3506(c)(2)(A)). Currently, the IRS is The following paragraph applies to all soliciting comments concerning Form Internal Revenue Service of the collections of information covered 1120–H, U.S. Income Tax Return for by this notice: Homeowners Associations. Proposed Collection; Comment An agency may not conduct or DATES: Written comments should be Request for Form 2688 sponsor, and a person is not required to received on or before September 6, 2005 respond to, a collection of information AGENCY: Internal Revenue Service (IRS), to be assured of consideration. unless the collection of information Treasury. ADDRESSES: displays a valid OMB control number. Direct all written comments ACTION: Notice and request for Books or records relating to a collection to Glenn Kirkland, Internal Revenue comments. of information must be retained as long Service, room 6516, 1111 Constitution Avenue NW., Washington, DC 20224. SUMMARY: The Department of the as their contents may become material FOR FURTHER INFORMATION CONTACT: Treasury, as part of its continuing effort in the administration of any internal revenue law. Generally, tax returns and Requests for additional information or to reduce paperwork and respondent copies of the form(s) and instructions burden, invites the general public and tax return information are confidential, as required by 26 U.S.C. 6103. should be directed to Allan Hopkins, at other Federal agencies to take this (202) 622–6665, or at Internal Revenue opportunity to comment on proposed Request for Comments: Comments submitted in response to this notice will Service, room 6516, 1111 Constitution and/or continuing information Avenue NW., Washington, DC 20224, or collections, as required by the be summarized and/or included in the request for OMB approval. All through the internet, at Paperwork Reduction Act of 1995, [email protected]. Public Law 104–13 (44 U.S.C. comments will become a matter of 3506(c)(2)(A)). Currently, the IRS is public record. Comments are invited on: SUPPLEMENTARY INFORMATION: soliciting comments concerning Form (a) Whether the collection of Title: U.S. Income Tax Return for 2688, Application for Additional information is necessary for the proper Homeowners Associations. Agencies Extension of Time To File U.S. performance of the functions of the Report of Noncompliance or Building Individual Income Tax Return. agency, including whether the Disposition. information shall have practical utility; OMB Number: 1545–0127. DATES: Written comments should be Form Number: 1120–H. received on or before September 6, 2005 (b) the accuracy of the agency’s estimate Abstract: Homeowners associations to be assured of consideration. of the burden of the collection of information; (c) ways to enhance the file Form 1120–H to report income, ADDRESSES: Direct all written comments quality, utility, and clarity of the deductions, and credits. The form is to Glenn Kirkland, Internal Revenue information to be collected; (d) ways to also used to report the income tax Service, room 6516, 1111 Constitution minimize the burden of the collection of liability of the homeowners association. Avenue NW., Washington, DC 20224. information on respondents, including The IRS uses Form 1120–H to determine FOR FURTHER INFORMATION CONTACT: through the use of automated collection if the income, deductions and credits Requests for additional information or techniques or other forms of information have been correctly computed. The form copies of the form and instructions technology; and (e) estimates of capital is also used for statistical purposes. should be directed to Allan Hopkins, at or start-up costs and costs of operation, Current Actions: There are no changes (202) 622–6665, or at Internal Revenue maintenance, and purchase of services being made to Form 1120–H at this Service, room 6516, 1111 Constitution to provide information. time. Avenue NW., Washington, DC 20224, or Type of Review: Extension of a Approved: June 14, 2005. through the internet, at currently approved collection. [email protected]. Glenn Kirkland, Affected Public: Business Time Per IRS Reports Clearance Officer. SUPPLEMENTARY INFORMATION: Respondent 32 hours, 10 minutes. Title: Application for Additional [FR Doc. E5–3581 Filed 7–6–05; 8:45 am] Estimated Number of Respondents: Extension of Time To File U.S. BILLING CODE 4830–01–P 112,311. Individual Tax Return. Estimated Time Per Respondent: 19 OMB Number: 1545–0066. hrs., 2 minutes. Form Number: 2688. DEPARTMENT OF THE TREASURY Estimated Total Annual Burden Abstract: Internal Revenue Code Hours: 3,638,877. section 6081 permits the Service to Internal Revenue Service The following paragraph applies to all of the collections of information covered grant a reasonable extension of time to Proposed Collection; Comment by this notice: file a return. Form 2688 allows Request for Form 1120–H individuals who need additional time to An agency may not conduct or file their U.S. income tax return to AGENCY: Internal Revenue Service (IRS), sponsor, and a person is not required to request an extension of time to file after Treasury. respond to, a collection of information the automatic 4 month extension period ACTION: Notice and request for unless the collection of information ends. comments. displays a valid OMB control number. Current Actions: There are no changes Books or records relating to a collection being made to the form at this time. SUMMARY: The Department of the of information must be retained as long Type of Review: Extension of a Treasury, as part of its continuing effort as their contents may become material currently approved collection. to reduce paperwork and respondent in the administration of any internal
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revenue law. Generally, tax returns and copies of the form and instructions through the use of automated collection tax return information are confidential, should be directed to Allan Hopkins, at techniques or other forms of information as required by 26 U.S.C. 6103. (202) 622–6665, or at Internal Revenue technology; and (e) estimates of capital Request for Comments: Comments Service, room 6516, 1111 Constitution or start-up costs and costs of operation, submitted in response to this notice will Avenue NW., Washington, DC 20224, or maintenance, and purchase of services be summarized and/or included in the through the Internet, at to provide information. request for OMB approval. All [email protected]. Approved: June 30, 2005. comments will become a matter of SUPPLEMENTARY INFORMATION: Glenn P. Kirkland, public record. Comments are invited on: Title: Nondeductible IRAs. IRS Reports Clearance Officer. (a) Whether the collection of OMB Number: 1545–1007. [FR Doc. E5–3583 Filed 7–6–05; 8:45 am] information is necessary for the proper Form Number: 8606. BILLING CODE 4830–01–P performance of the functions of the Abstract: Internal Revenue Code agency, including whether the Section 408(o) requires certain information shall have practical utility; information regarding nondeductible DEPARTMENT OF THE TREASURY (b) the accuracy of the agency’s estimate contributions to traditional IRAs. Code of the burden of the collection of section 408A requires information Internal Revenue Service information; (c) ways to enhance the regarding conversions from traditional [CO–25–96] quality, utility, and clarity of the IRAs to Roth IRAs and distributions information to be collected; (d) ways to from Roth IRAs. Code section 530 Proposed Collection; Comment minimize the burden of the collection of requires information regarding Request for Regulation Project information on respondents, including distributions from Education IRAs. AGENCY: through the use of automated collection Form 8606 is used to report the required Internal Revenue Service (IRS), techniques or other forms of information information. Treasury. technology; and (e) estimates of capital Current Actions: There are no changes ACTION: Notice and request for or start-up costs and costs of operation, being made to the form at this time. comments. maintenance, and purchase of services Type of Review: Extension of a to provide information. SUMMARY: The Department of the currently approved collection. Treasury, as part of its continuing effort Approved: June 15, 2005. Affected Public: Individuals or to reduce paperwork and respondent Glenn Kirkland, households. burden, invites the general public and IRS Reports Clearance Officer. Estimated Number of Respondents: other Federal agencies to take this [FR Doc. E5–3582 Filed 7–6–05; 8:45 am] 1,800,000. opportunity to comment on proposed Estimated Time Per Respondent: 1 BILLING CODE 4830–01–P and/or continuing information hour, 21 minutes. collections, as required by the Estimated Total Annual Burden Paperwork Reduction Act of 1995, DEPARTMENT OF THE TREASURY Hours: 2,428,170. Public Law 104–13 (44 U.S.C. The following paragraph applies to all 3506(c)(2)(A)). Currently, the IRS is Internal Revenue Service of the collections of information covered soliciting comments concerning an by this notice: existing final regulation, CO–25–96 (TD Proposed Collection; Comment An agency may not conduct or 8824), Limitations on Net Operating Request For Form 8606 sponsor, and a person is not required to Loss Carry-Forwards and Certain Built- respond to, a collection of information AGENCY: Internal Revenue Service (IRS), In Losses and Credit Following an unless the collection of information Treasury. Ownership Change of a Consolidated displays a valid OMB control number. Group. ACTION: Notice and request for Books or records relating to a collection DATES: comments. of information must be retained as long Written comments should be as their contents may become material received on or before September 6, 2005 SUMMARY: The Department of the to be assured of consideration. Treasury, as part of its continuing effort in the administration of any internal revenue law. Generally, tax returns and ADDRESSES: Direct all written comments to reduce paperwork and respondent to Glenn Kirkland, Internal Revenue burden, invites the general public and tax return information are confidential, as required by 26 U.S.C. 6103. Service, room 6516, 1111 Constitution other Federal agencies to take this Avenue NW., Washington, DC 20224. opportunity to comment on proposed Request for Comments: Comments FOR FURTHER INFORMATION CONTACT: and/or continuing information submitted in response to this notice will be summarized and/or included in the Requests for additional information or collections, as required by the copies of the regulation should be Paperwork Reduction Act of 1995, request for OMB approval. All comments will become a matter of directed to Allan Hopkins, at (202) 622– Public Law 104–13 (44 U.S.C. 6665, or at Internal Revenue Service, 3506(c)(2)(A)). Currently, the IRS is public record. Comments are invited on: (a) Whether the collection of room 6516, 1111 Constitution Avenue soliciting comments concerning Form NW., Washington, DC 20224, or through 8606, Nondeductible IRAs. information is necessary for the proper performance of the functions of the the Internet, at DATES: Written comments should be agency, including whether the [email protected]. received on or before September 6, 2005 information shall have practical utility; SUPPLEMENTARY INFORMATION: to be assured of consideration. (b) the accuracy of the agency’s estimate Title: Limitations on Net Operating ADDRESSES: Direct all written comments of the burden of the collection of Loss Carryforwards and Certain Built-in to Glenn P. Kirkland, Internal Revenue information; (c) ways to enhance the Losses and Credits Following an Service, room 6516, 1111 Constitution quality, utility, and clarity of the Ownership Change of a Consolidated Avenue NW., Washington, DC 20224. information to be collected; (d) ways to Group. FOR FURTHER INFORMATION CONTACT: minimize the burden of the collection of OMB Number: 1545–1218. Regulation Requests for additional information or information on respondents, including Project Number: CO–25–96.
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Abstract: Section 1502 provides for DEPARTMENT OF THE TREASURY Estimated Total Annual Burden the promulgation of regulations with Hours: 3,749,000. respect to corporations that file Internal Revenue Service The following paragraph applies to all consolidated income tax returns. of the collections of information covered Section 382 limits the amount of income Proposed Collection; Comment by this notice: that can be offset by loss carryovers and Request for Form 8810 An agency may not conduct or credits after an ownership change. AGENCY: Internal Revenue Service (IRS), sponsor, and a person is not required to These final regulations provide rules for Treasury. respond to, a collection of information unless the collection of information applying section 382 to groups of ACTION: Notice and request for displays a valid OMB control number. corporations that file a consolidated comments. return. Books or records relating to a collection Current Actions: There is no change to SUMMARY: The Department of the of information must be retained as long this existing regulation. Treasury, as part of its continuing effort as their contents may become material Type of Review: Extension of to reduce paperwork and respondent in the administration of any internal currently approved collection. burden, invites the general public and revenue law. Generally, tax returns and Affected Public: Business or other for- other Federal agencies to take this tax return information are confidential, profit. opportunity to comment on proposed as required by 26 U.S.C. 6103. Estimated Number of Respondents: and/or continuing information Request for Comments: Comments 12,054. collections, as required by the submitted in response to this notice will Estimated Time Per Respondent: 20 Paperwork Reduction Act of 1995, be summarized and/or included in the minutes. Public Law 104–13 (44 U.S.C. request for OMB approval. All Estimated Total Annual Burden 3506(c)(2)(A)). Currently, the IRS is comments will become a matter of Hours: 662. soliciting comments concerning Form public record. Comments are invited on: The following paragraph applies to all 8810, Corporate Passive Activity Loss (a) Whether the collection of of the collections of information covered and Credit Limitations. information is necessary for the proper by this notice: DATES: Written comments should be performance of the functions of the An agency may not conduct or agency, including whether the sponsor, and a person is not required to received on or before September 6, 2005 to be assured of consideration. information shall have practical utility; respond to, a collection of information (b) the accuracy of the agency’s estimate ADDRESSES: Direct all written comments unless the collection of information of the burden of the collection of to Glenn Kirkland, Internal Revenue displays a valid OMB control number. information; (c) ways to enhance the Service, room 6516, 1111 Constitution Books or records relating to a quality, utility, and clarity of the Avenue NW., Washington, DC 20224. collection of information must be information to be collected; (d) ways to retained as long as their contents may FOR FURTHER INFORMATION CONTACT: minimize the burden of the collection of become material in the administration Requests for additional information or information on respondents, including of any internal revenue law. Generally, copies of the form and instructions through the use of automated collection tax returns and tax return information should be directed to Allan Hopkins, at techniques or other forms of information are confidential, as required by 26 (202) 622–6665, or at Internal Revenue technology; and (e) estimates of capital U.S.C. 6103. Service, Room 6516, 1111 Constitution or start-up costs and costs of operation, Request for Comments: Comments Avenue NW., Washington, DC 20224, or maintenance, and purchase of services submitted in response to this notice will through the Internet, at to provide information. be summarized and/or included in the [email protected]. Approved: June 27, 2005. request for OMB approval. All SUPPLEMENTARY INFORMATION: Glenn Kirkland, comments will become a matter of Title: Corporate Passive Activity Loss public record. Comments are invited on: and Credit Limitations. IRS Reports Clearance Officer. (a) Whether the collection of OMB Number: 1545–1091. [FR Doc. E5–3586 Filed 7–6–05; 8:45 am] information is necessary for the proper Form Number: 8810. BILLING CODE 4830–01–P performance of the functions of the Abstract: Under Internal Revenue agency, including whether the Code section 469, losses and credits information shall have practical utility; from passive activities, to the extent DEPARTMENT OF THE TREASURY (b) the accuracy of the agency’s estimate they exceed passive income (or, in the Internal Revenue Service of the burden of the collection of case of credits, the tax attributable to net information; (c) ways to enhance the passive income), are not allowed. Form Proposed Collection; Comment quality, utility, and clarity of the 8810 is used by personal service Request for Form 990–EZ information to be collected; (d) ways to corporations and closely held minimize the burden of the collection of corporations to figure the passive AGENCY: Internal Revenue Service (IRS), information on respondents, including activity loss and credits allowed and the Treasury. through the use of automated collection amount of loss and credit to be reported ACTION: Notice and request for techniques or other forms of information on their tax return. comments. technology; and (e) estimates of capital Current Actions: There are no changes or start-up costs and costs of operation, being made to Form 8810 at this time. SUMMARY: The Department of the maintenance, and purchase of services Type of Review: Extension of a Treasury, as part of its continuing effort to provide information. currently approved collection. to reduce paperwork and respondent Affected Public: Business or other for- burden, invites the general public and Approved: June 30, 2005. profit organizations. other Federal agencies to take this Glenn Kirkland, Estimated Number of Responses: opportunity to comment on proposed PIRS Reports Clearance Officer. 100,000. and/or continuing information [FR Doc. E5–3584 Filed 7–6–05; 8:45 am] Estimated Time Per Response: 37 hrs., collections, as required by the BILLING CODE 4830–01–P 29 min. Paperwork Reduction Act of 1995,
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Public Law 104–13 (44 U.S.C. Request for Comments: Comments (202) 622–6665, or at Internal Revenue 3506(c)(2)(A)). Currently, the IRS is submitted in response to this notice will Service, Room 6516, 1111 Constitution soliciting comments concerning Form be summarized and/or included in the Avenue NW., Washington, DC 20224, or 990-EZ, Short Form Return of request for OMB approval. All through the Internet, at Organization Exempt from Income Tax. comments will become a matter of [email protected]. public record. Comments are invited on: DATES: Written comments should be SUPPLEMENTARY INFORMATION: received on or before September 6, 2005 (a) Whether the collection of Title: Distributions From an MSA or to be assured of consideration. information is necessary for the proper Medicare+Choice MSA. ADDRESSES: Direct all written comments performance of the functions of the OMB Number: 1545–1517. to Glenn Kirkland, Internal Revenue agency, including whether the Service, room 6516, 1111 Constitution information shall have practical utility; Form Number: 1099–SA. Avenue NW., Washington, DC 20224. (b) the accuracy of the agency’s estimate Abstract: This form is used to report of the burden of the collection of distributions from a medical savings FOR FURTHER INFORMATION CONTACT: information; (c) ways to enhance the account as required by Internal Revenue Requests for additional information or quality, utility, and clarity of the Code section 220(h). copies of the forms and instructions information to be collected; (d) ways to should be directed to Allan Hopkins, Current Actions: There are no changes minimize the burden of the collection of (202) 622–6665, or at Internal Revenue being made to the form at this time. information on respondents, including Service, room 6516, 1111 Constitution Type of Review: Extension of a through the use of automated collection Avenue NW., Washington, DC 20224, or currently approved collection. techniques or other forms of information through the Internet, at Affected Public: Business or other for- technology; and (e) estimates of capital [email protected]. profit organizations. or start-up costs and costs of operation, Estimated Number of Respondents: SUPPLEMENTARY INFORMATION: maintenance, and purchase of services 25,839. Title: Short Form Return of to provide information. Organization Exempt From Income Tax. Estimated Time Per Respondent: 8 OMB Number: 1545–1150. Approved: June 30, 2005. minutes. Form Number: 990–EZ. Glenn Kirkland, Estimated Total Annual Burden Abstract: An annual return is required IRS Reports Clearance Officer. Hours: 3,618. by Internal Revenue Code section 6033 [FR Doc. E5–3587 Filed 7–6–05; 8:45 am] The following paragraph applies to all for organizations exempt from income BILLING CODE 4830–01–P of the collections of information covered tax under Code section 501(a). Form by this notice: 990–EZ is used by tax exempt An agency may not conduct or DEPARTMENT OF THE TREASURY organizations and nonexempt charitable sponsor, and a person is not required to trusts whose gross receipts are less than Internal Revenue Service respond to, a collection of information $100,000 and whose total assets at the unless the collection of information end of the year are less than $250,000 Proposed Collection; Comment displays a valid OMB control number. to provide the IRS with the information Request for Form 1099–MSA Books or records relating to a collection required by Code section 6033. IRS uses of information must be retained as long the information from Form 990–EZ to AGENCY: Internal Revenue Service (IRS), as their contents may become material ensure that tax exempt organizations are Treasury. in the administration of any internal operating within the limitations of their ACTION: Notice and request for revenue law. Generally, tax returns and tax exemption. comments. tax return information are confidential, Current Actions: There are three line as required by 26 U.S.C. 6103. items being added to this form. SUMMARY: The Department of the Type of Review: Extension of a Request for Comments: Comments Treasury, as part of its continuing effort submitted in response to this notice will currently approved collection. to reduce paperwork and respondent Affected Public: Not-for-profit be summarized and/or included in the burden, invites the general public and request for OMB approval. All institutions. other Federal agencies to take this Estimated Number of Respondents: comments will become a matter of opportunity to comment on proposed public record. 124,184. and/or continuing information Estimated Time Per Respondent: 56 collections, as required by the Comments are invited on: (a) Whether hrs., 25 min. Paperwork Reduction Act of 1995, the collection of information is Estimated Total Annual Burden Public Law 104–13 (44 U.S.C. necessary for the proper performance of Hours: 7,005,220. 3506(c)(2)(A)). Currently, the IRS is the functions of the agency, including The following paragraph applies to all soliciting comments concerning Form whether the information shall have of the collections of information covered 1099–MSA, Distributions From an MSA practical utility; (b) the accuracy of the by this notice: or Medicare+Choice MSA. agency’s estimate of the burden of the An agency may not conduct or collection of information; (c) ways to sponsor, and a person is not required to DATES: Written comments should be enhance the quality, utility, and clarity respond to, a collection of information received on or before September 6, 2005 of the information to be collected; (d) unless the collection of information to be assured of consideration. ways to minimize the burden of the displays a valid OMB control number. ADDRESSES: Direct all written comments collection of information on Books or records relating to a collection to Glenn Kirkland, Internal Revenue respondents, including through the use of information must be retained as long Service, Room 6516, 1111 Constitution of automated collection techniques or as their contents may become material Avenue, NW., Washington, DC 20224. other forms of information technology; in the administration of any internal FOR FURTHER INFORMATION CONTACT: and (e) estimates of capital or start-up revenue law. Generally, tax returns and Requests for additional information or costs and costs of operation, tax return information are confidential, copies of the form and instructions maintenance, and purchase of services as required by 26 U.S.C. 6103. should be directed to Allan Hopkins, at to provide information.
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Approved: June 30, 2005. read ‘‘Pacific time to 9:30 a.m. Pacific FOR FURTHER INFORMATION CONTACT: To Glenn Kirkland, time via’’. obtain a copy of the submission to OMB, contact Marilyn K. Burton at IRS Reports Clearance Officer. Guy R. Traynor, [FR Doc. E5–3588 Filed 7–6–05; 8:45 am] [email protected], (202) Federal Register Liaison, Publications and 906–6467, or facsimile number (202) BILLING CODE 4830–01–P Regulations Branch, Legal Processing Division, Associate Chief Counsel (Procedures 906–6518, Regulations and Legislation and Administration). Division, Chief Counsel’s Office, Office DEPARTMENT OF THE TREASURY [FR Doc. E5–3585 Filed 7–6–05; 8:45 am] of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552. BILLING CODE 4830–01–P Internal Revenue Service SUPPLEMENTARY INFORMATION: OTS may not conduct or sponsor an information Open Meeting of the Area 6 Committee collection, and respondents are not of the Taxpayer Advocacy Panel DEPARTMENT OF THE TREASURY required to respond to an information (Including the States of Arizona, Office of Thrift Supervision collection, unless the information Colorado, Idaho, Montana, New collection displays a currently valid Mexico, North Dakota, Oregon, South Submission for OMB Review; OMB control number. As part of the Dakota, Utah, Washington and Comment Request—Application for approval process, we invite comments Wyoming); Correction Issuance of Subordinated Debt on the following information collection. Securities/Notice of Issuance of AGENCY: Internal Revenue Service (IRS), Title of Proposal: Application for Treasury. Subordinated Debt or Mandatorily Issuance of Subordinated Debt Redeemable Preferred Stock ACTION: Correction to notice of an open Securities/Notice of Issuance of meeting. AGENCY: Office of Thrift Supervision Subordinated Debt or Mandatorily (OTS), Treasury. Redeemable Preferred Stock. SUMMARY: This document contains a OMB Number: 1550–0030. ACTION: correction to a notice of an open Notice and request for comment. Form Number: OTS Forms 1344 and meeting which was published in the SUMMARY: The proposed information 1561. Federal Register on Tuesday, June 28, collection requirement described below Regulation requirement: 12 CFR 2005 (70 FR 37151). This notice relates has been submitted to the Office of 563.81. to the Taxpayer Advocacy Panel’s Management and Budget (OMB) for Description: The information solicitation of public comments, ideas, review, as required by the Paperwork provided to OTS is used to determine if and suggestions on improving customer Reduction Act of 1995. OTS is soliciting the proposed issuance of securities will service at the Internal Revenue Service. public comments on the proposal. benefit the thrift industry or create an The TAP will use citizen input to make unreasonable risk to the Savings recommendations to the Internal DATES: Submit written comments on or Association Insurance Fund. Revenue Service. before August 8, 2005. Type of Review: Reinstatement. FOR FURTHER INFORMATION CONTACT: ADDRESSES: Send comments, referring to Affected Public: Savings Associations. Dave Coffman at 1–888–912–1227, or the collection by title of the proposal or Estimated Number of Respondents: 4 206–220–6096. by OMB approval number, to OMB and (Standard—1; Expedited—3). SUPPLEMENTARY INFORMATION: OTS at these addresses: Mark D. Estimated Burden Hours per Menchik, Office of Information and Response: Standard—60 hours; Background Regulatory Affairs, Office of Expedited—1 hour. The notice of an open meeting that is Management and Budget, Room 10236, Estimated Frequency of Response: the subject of this correction is under New Executive Office Building, Event-generated. section 10(a)(2) of the Federal Advisory Washington, DC 20503, or e-mail to Estimated Total Burden: 63 hours Committee Act, 5 U.S.C. App. (1988). [email protected]; and (Standard—60 hours; Expedited—3 Information Collection Comments, Chief hours). Need for Correction Counsel’s Office, Office of Thrift Clearance Officer: Marilyn K. Burton, As published, the notice of an open Supervision, 1700 G Street, NW., (202) 906–6467, Office of Thrift meeting contains an error that may Washington, DC 20552, by fax to (202) Supervision, 1700 G Street, NW., prove to be misleading and is need of 906–6518, or by e-mail to Washington, DC 20552. clarification. [email protected]. OMB Reviewer: Mark D. Menchik, OTS will post comments and the related Correction of Publication (202) 395–3176, Office of Management index on the OTS Internet Site at and Budget, Room 10236, New Accordingly, the publication of the http://www.ots.treas.gov. In addition, Executive Office Building, Washington, open meeting of the Area 6 committee interested persons may inspect DC 20503. of the Taxpayer Advocacy Panel, which comments at the Public Reading Room, Dated: June 30, 2005. was the subject of FR Doc. E53365, is 1700 G Street, NW., by appointment. To corrected as follows: make an appointment, call (202) 906– By the Office of Thrift Supervision. On page 37151, column 3, under the 5922, send an e-mail to Richard M. Riccobono, caption, ‘‘SUPPLMENTARY INFORMATION:’’ [email protected], or send a Acting Director. line 8, the language ‘‘Pacific time to 9:30 facsimile transmission to (202) 906– [FR Doc. 05–13400 Filed 7–6–05; 8:45 am] p.m. Pacific time via’’ is corrected to 7755. BILLING CODE 6720–01–P
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Part II
Department of Energy 10 CFR Part 625 Price Competitive Sale of Strategic Petroleum Reserve Petroleum; Standard Sales Provisions; Final Rule
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DEPARTMENT OF ENERGY B. General Sales Procedures Register and the Code of Federal II. The Revised Standard Sales Provisions Regulations as an appendix to the rule 10 CFR Part 625 III. Procedural Requirements (10 CFR 625.4(a)). The rule also A. Review Under Executive Order 12866 provides for the periodic review and RIN 1901–AB15 B. Review Under Regulatory Flexibility Act C. Review Under the Paperwork Reduction republication of the SSPs in the Federal Price Competitive Sale of Strategic Act Register, including any revisions to Petroleum Reserve Petroleum; D. Review Under the National such provisions (10 CFR 625.4(b)). Standard Sales Provisions Environmental Policy Act Upon a Presidential decision to draw E. Review Under Executive Order 13132 down the SPR, DOE would issue a AGENCY: Department of Energy. F. Review Under Executive Order 12988 Notice of Sale, announcing the amounts ACTION: Final rule; revised appendix. G. Review Under the Unfunded Mandates and types of the SPR petroleum to be Reform Act of 1995 sold, the delivery locations and modes, SUMMARY: On December 21, 1983, the H. Review Under the Treasury and General and other pertinent information. The Department of Energy (DOE) published Government Appropriations Act, 1999 rule provides that the Secretary of in the Federal Register a final rule I. Review Under the Treasury and General Energy or the Secretary’s designee Government Appropriations Act, 2001 governing the price competitive sales of would specify in the Notice of Sale, by petroleum from the Strategic Petroleum J. Review Under Executive Order 13211 K. Congressional Notification referencing the latest version of the Reserve (SPR) in the event that the SPR SSPs, which of the terms and conditions is drawn down to respond to a severe I. Background in the SSPs would or would not apply energy supply interruption or to meet to a particular sale (10 CFR 625.3(a); obligations of the United States under A. The Strategic Petroleum Reserve Drawdown Plan and Sales Rule 625.4(c)). In addition, in the Notice of the Agreement on an International Sale, the Secretary could revise the Energy Program. The final rule provides The Strategic Petroleum Reserve terms and conditions, or add new ones for the publication and periodic update, (SPR) was established by the Energy applicable to that sale (10 CFR 625.3(a)). as an appendix to the rule, of Standard Policy and Conservation Act of 1975 The rule provides that no contract could Sales Provisions (SSPs) containing or (EPCA), Pub. L. 94–163, to store be awarded to an offeror who had not describing contract clauses, terms and petroleum to diminish the impact of unconditionally agreed to all provisions conditions of sale, and performance and disruptions on petroleum supplies and made applicable by the Notice of Sale financial responsibility measures, which to carry out the obligations of the United (10 CFR 625.3(c)). may be used for particular sales of SPR States under the International Energy petroleum. First published in interim Program. EPCA required the preparation B. General Sales Procedures final form on January 20, 1984, the SSPs of a ‘‘SPR Plan’’ detailing proposals for Under the SPR sales rule, the first step have since been updated several times, the development of the SPR. The SPR in the SPR competitive sales process is with the latest version published in the Plan was to include a Distribution Plan the issuance of a Notice of Sale which Federal Register on October 8, 1998 (63 setting forth the methods for drawing lists the volume, characteristics, and FR 54196). As provided in the rule, DOE down and distributing the SPR in the location of the petroleum for sale, is now issuing revised SSPs for use in event of an emergency. In 1979, a delivery dates and procedures for an SPR drawdown. detailed Distribution Plan was submitting offers, as well as measures EFFECTIVE DATE: As of July 7, 2005, these transmitted to Congress as Amendment for assuring performance and financial SSPs are adopted for use in the price No. 3 to the SPR Plan. This Distribution responsibility. competitive sale of SPR petroleum. Plan set out a number of alternative Over the course of a drawdown, FOR FURTHER INFORMATION CONTACT: distribution methods, ranging from several Notices of Sale may be issued, Nancy T. Marland, U.S. Department of allocation to price competitive sales. each covering a sales period of one to Energy, Strategic Petroleum Reserve, In the Energy Emergency two months. Offerors may have only FE–43, Room 3G–038, 1000 Preparedness Act of 1982, Pub. L. 97– five days from the date a Notice of Sale Independence Ave., SW., Washington, 229, Congress required a new is issued until offers are due, with DC 20585–0340, Phone: (202) 586– ‘‘Drawdown’’ (Distribution) Plan. The delivery of oil commencing no later 4691, Fax: (202) 586–0835 E-mail: new plan, SPR Plan Amendment No. 4, than thirty days after the Presidential [email protected]. was transmitted to Congress on direction to draw down the Reserve. Gary C. Landry, FE–4451, U.S. December 1, 1982, and provided that the Subsequent sales periods will Department of Energy, Strategic principal method of distributing SPR oil coordinate Notice of Sale issuance with Petroleum Reserve, Project would be price competitive sale. standard industry delivery periods. Management Office, 900 Commerce On March 16, 1983, DOE published a Because of the possible short initial Road East, New Orleans, LA 70123, notice of proposed rulemaking (48 FR lead-time, the Department maintains a Phone: (504) 734–4660, Fax: (504) 11125) to establish a framework for registry of prospective offerors who will 734–4947, E-mail: implementing the policies and receive electronic notification of all [email protected]. procedures set out in SPR Plan Notices of Sale. Diane J. Stubbs, U.S. Department of Amendment No. 4. The final SPR sales The next step in the sales process is Energy, Office of Assistant General rule (published at 48 FR 56538, for prospective purchasers to submit Counsel for Legislation and December 21, 1983), adopted after offers, as specified in the Notice of Sale. Regulatory Law, GC–71, Room 6E– consideration of public comments, Offerors must unconditionally accept all 042, 1000 Independence Ave., SW., provides for the establishment of terms and conditions in the Notice of Washington, DC 20585–0103, Phone: Standard Sales Provisions (SSPs), Sale, and submit an offer guarantee (202) 586–4297, Fax: (202) 586–0971, containing contract terms and based on potential contract value. After E-mail: [email protected]. conditions expected to be contained in submission, the offers are evaluated and SUPPLEMENTARY INFORMATION: contracts for the sale of SPR petroleum. ‘‘apparently successful offerors’’ are I. Background The final SPR sales rule is at 10 CFR selected. The offer evaluation process is A. The Strategic Petroleum Reserve part 625. The rule calls for the structured so that the offerors bidding Drawdown Plan and Sales Rule publication of the SSPs in the Federal the highest prices determine their
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method of delivery, up to the limits of program, the revised provisions provide SSP No. B.7 State of Hawaii Access to the distribution system, with specific an internet link to the latest assay files SPR Crude Oil delivery arrangements negotiated later for each of the eight SPR crude oil The provision summarizes the rights in the process. streams. of the State of Hawaii under its All apparently successful offerors are In accordance with subsection 161(j) authority to submit a binding offer to required, within five business days of of the Energy Policy and Conservation purchase SPR petroleum in accordance being notified, to provide a letter of Act (42 U.S.C. 6241(j)), the State of with subsection 161(j) of the Energy credit as a guarantee of performance and Hawaii, or a State-designated eligible Policy and Conservation Act (42 U.S.C. payment of amounts due under the entity authorized to act on the State’s 6241(j)). contract. Upon timely receipt of the behalf, may submit a ‘‘binding offer’’ for letters of credit, and a final the purchase of SPR petroleum. A new SSP No. B.12 Offer guarantee determination by the Contracting Officer sales provision C.7 summarizes the This provision specifies that the only that offers are responsive and offerors rights accorded to the State under that acceptable offer guarantee is an responsible, the DOE issues the Notices authority. irrevocable standby letter of credit, and of Award. Deliveries then commence to Finally, cash wire deposits and allows an offeror to fax a properly the purchasers, consistent with their electronic funds transfers to the account executed copy in advance of the original arrangements for commercial pipeline of the U.S. Treasury are no longer document. The issuing financial or marine vessel transportation. acceptable methods for submission of institution must be a participant in the Purchasers are invoiced following crude offer guarantees. An irrevocable standby Fedwire Deposit System Network funds oil deliveries. letter of credit is now the only transfer system. II. The Revised Standard Sales acceptable form of offer guarantee. SSP No. B.18 Notice of Sale line item Provisions Slightly revised irrevocable standby schedule—petroleum quantity, quality, letter of credit formats have been and delivery method A. Major Revisions provided for both the offer guarantee The SSPs are being revised as and the payment and performance This provision redefines marine contemplated by the SPR sales rule. The guarantee. The instructions for the delivery line items (tanker and barge) to revisions primarily relate to the return of cash wire deposit or funds be single 30-day delivery periods increased use of the internet as the transfer offer guarantees have been instead of the former three sequential primary means of providing SPR eliminated. 10-day delivery periods within a sales program information and conducting The following is a provision-by- cycle. business operations. The most provision discussion of the noteworthy SSP No. B.22 Procedures for significant of these revisions is the changes to the SSPs. Evaluation of Offers adoption by DOE of a web-based drawdown sales system for registering B. Revised Provisions This provision describes how DOE evaluates offers in relation to the and communicating with potential SSP No. A.1 List of abbreviations offerors, posting sales documents and Government’s estimates of the market receiving offers. The new system SSP No. A.5 Sales Notification List values for each SPR crude oil stream replaces the existing registration (SNL) offered for sale. database in its entirety, so any These provisions make clear that the SSP No. C.21 Payment and interested parties who had previously previous Sales Offeror Mailing List has Performance Letter of Credit registered on DOE’s Sales Offerors been totally replaced by the new on-line Mailing List must complete a new The requirement that the issuing Sales Notification List, and that new financial institution be a participant in registration in order to receive registration is required on the SNL. drawdown sales notifications and the Fedwire Deposit System Network participate in a sale. Also, due to the SSP No. A.2 Definitions funds transfer system also applies to transference of the sales process to the payment and performance irrevocable New subparagraph (e) is the definition standby letters of credit. internet, several former SSP exhibits, of an electronic signature, as recognized e.g., Exhibit A, ‘‘Strategic Petroleum for the internet-based sales program. III. Procedural Requirements Reserve Sales Offer Form,’’ have been eliminated as their functions have been SSP A.6 Publication of the Notice of A. Review Under Executive Order 12866 superseded by the on-line program. Sale The Office of Information and Other noteworthy revisions relate to This provision reinforces that such Regulatory Affairs of the Office of the crude oil streams and delivery publication will primarily be Management and Budget (OMB) has options offered during a sale. Maya accomplished by electronically determined that today’s regulatory crude oil is no longer stored as a notifying the SNL registrants and action is not a ‘‘significant regulatory separate segregation at the SPR, posting the document on identified action’’ under Executive Order 12866, resulting in the elimination of former Department of Energy websites. ‘‘Regulatory Planning and Review,’’ 58 Master Line Item 003, Bryan Mound FR 51735 (October 4, 1993). Maya. In addition, a change has been SSP No. B.1 Requirements for a valid Accordingly, this action was not subject made to the nominal definition of offer—caution to offerors to review under the Executive Order. marine delivery line items, wherein the SSP No. B.9 Submission of offers and three sequential 10-day periods within a B. Review Under the Regulatory modification of previously submitted Flexibility Act sales cycle for vessel or barge deliveries offers have been replaced by a single 30-day The Regulatory Flexibility Act (5 period which coincides with the cycle. These provisions stipulate that offers U.S.C. 601 et seq.) requires preparation Also, as the SPR crude oil stream assays to purchase SPR petroleum must be of an initial regulatory flexibility are periodically updated according to a submitted, modified or withdrawn using analysis for any rule that by law must long-term storage cavern sampling the internet-based sales system. be proposed for public comment, unless
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the agency certifies that the rule, if 14, 2000, DOE published a statement of or more (adjusted annually for promulgated, will not have a significant policy describing the intergovernmental inflation), section 202 of the Act economic impact on a substantial consultation process it will follow in the requires a Federal agency to publish number of small entities. As required by development of such regulations (65 FR estimates of the resulting costs, benefits, Executive Order 13272, ‘‘Proper 13735). DOE has examined today’s rule and other effects on the national Consideration of Small Entities in and has determined that it does not economy (2 U.S.C. 1532(a),(b)). The Act Agency Rulemaking,’’ 67 FR 53461 preempt State law and does not have a also requires a Federal agency to (August 16, 2002), DOE published substantial direct effect on the States, on develop an effective process to permit procedures and policies on February 19, the relationship between the national timely input by elected officers of State, 2003, to ensure that the potential government and the States, or on the local, and tribal governments on a impacts of its rules on small entities are distribution of power and proposed ‘‘significant intergovernmental properly considered during the responsibilities among the various mandate,’’ and requires an agency plan rulemaking process (68 FR 7990). DOE levels of government. No further action for giving notice and opportunity for has made its procedures and policies is required by Executive Order 13132. timely input to potentially affected available on the Office of General small governments before establishing F. Review Under Executive Order 12988 Counsel’s Web site: http:// any requirements that might www.gc.doe.gov. With respect to the review of existing significantly or uniquely affect small No statute or other law requires DOE regulations and the promulgation of governments. On March 18, 1997, DOE to propose today’s rule for public new regulations, section 3(a) of published a statement of policy on its comment. Accordingly, the Executive Order 12988, ‘‘Civil Justice process for intergovernmental requirements of the Regulatory Reform’’ (61 FR 4729, February 7, 1996), consultation under the Act (62 FR Flexibility Act do not apply to this imposes on Federal agencies the general 12820) (also available at http:// rulemaking. duty to adhere to the following www.gc.doe.gov). The rule published requirements: (1) Eliminate drafting today does not contain any Federal C. Review Under the Paperwork errors and ambiguity; (2) write mandate, so these requirements do not Reduction Act regulations to minimize litigation; and apply. This rulemaking will impose no new (3) provide a clear legal standard for information or record keeping affected conduct rather than a general H. Review Under the Treasury and requirements. Accordingly, OMB standard and promote simplification General Government Appropriations clearance is not required under the and burden reduction. Section 3(b) of Act, 1999 Paperwork Reduction Act (44 U.S.C. Executive Order 12988 specifically Section 654 of the Treasury and 3501 et seq.) requires that Executive agencies make General Government Appropriations every reasonable effort to ensure that the Act, 1999 (Pub. L. 105–277) requires D. Review Under the National regulation: (1) Clearly specifies the Federal agencies to issue a Family Environmental Policy Act preemptive effect, if any; (2) clearly Policymaking Assessment for any rule DOE has determined that this rule specifies any effect on existing Federal that may affect family well-being. This falls into a class of actions that are law or regulation; (3) provides a clear rule would not have any impact on the categorically excluded from review legal standard for affected conduct autonomy or integrity of the family as under the National Environmental while promoting simplification and an institution. Accordingly, DOE has Policy Act of 1969 (42 U.S.C. 4321 et burden reduction; (4) specifies the concluded that it is not necessary to seq.) and the Department’s retroactive effect, if any; (5) adequately prepare a Family Policymaking implementing regulations at 10 CFR part defines key terms; and (6) addresses Assessment. 1021. Specifically, this rule is strictly other important issues affecting clarity procedural, and, therefore, is covered by and general draftsmanship under any I. Review Under the Treasury and the Categorical Exclusion in paragraph guidelines issued by the Attorney General Government Appropriations A6 to subpart D, 10 CFR part 1021. General. Section 3(c) of Executive Order Act, 2001 Accordingly, neither an environmental 12988 requires Executive agencies to Section 515 of the Treasury and assessment nor an environmental review regulations in light of applicable General Government Appropriations impact statement is required. standards in section 3(a) and section Act, 2001 (44 U.S.C. 3516, note) 3(b) to determine whether they are met provides for agencies to review most E. Review Under Executive Order 13132 or it is unreasonable to meet one or disseminations of information to the Executive Order 13132, ‘‘Federalism,’’ more of them. DOE has completed the public under guidelines established by 64 FR 43255 (August 4, 1999) imposes required review and determined that, to each agency pursuant to general certain requirements on agencies the extent permitted by law, this rule guidelines issued by OMB. OMB’s formulating and implementing policies meets the relevant standards of guidelines were published at 67 FR or regulations that preempt State law or Executive Order 12988. 8452 (February 22, 2002), and DOE’s that have federalism implications. The guidelines were published at 67 FR G. Review Under the Unfunded Executive Order requires agencies to 62446 (October 7, 2002). DOE has Mandates Reform Act of 1995. examine the constitutional and statutory reviewed today’s notice under the OMB authority supporting any action that Title II of the Unfunded Mandates and DOE guidelines and has concluded would limit the policymaking discretion Reform Act of 1995 (Pub. L. 104–4) that it is consistent with applicable of the States and carefully assess the requires each Federal agency to assess policies in those guidelines. necessity for such actions. The the effects of Federal regulatory actions Executive Order also requires agencies on State, local, and tribal governments J. Review Under Executive Order 13211 to have an accountable process to and the private sector. With respect to Executive Order 13211, ‘‘Actions ensure meaningful and timely input by a proposed regulatory action that may Concerning Regulations That State and local officials in the result in the expenditure by State, local Significantly Affect Energy Supply, development of regulatory policies that and tribal governments, in the aggregate, Distribution, or Use,’’ 66 FR 28355 (May have federalism implications. On March or by the private sector of $100 million 22, 2001) requires Federal agencies to
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prepare and submit to the Office of A.3 Standard Sales Provisions (SSPs) C.16 Price adjustments for quality Information and Regulatory Affairs A.4 Periodic revisions of the Standard Sales differentials (OIRA), Office of Management and Provisions C.17 Determination of quality Budget, a Statement of Energy Effects for A.5 Sales Notification List (SNL) C.18 Determination of quantity A.6 Publication of the Notice of Sale any proposed significant energy action. C.19 Delivery documentation A.7 Penalty for false statements in offers to C.20 Contract amounts A ‘‘significant energy action’’ is defined buy SPR petroleum C.21 Payment and Performance Letter of as any action by an agency that Section B—Sales Solicitation Provisions Credit promulgated or is expected to lead to C.22 Billing and payment promulgation of a final rule, and that: B.1 Requirements for a valid offer—caution C.23 Method of payments (1) Is a significant regulatory action to offerors C.24 Interest under Executive Order 12866, or any B.2 Price indexing C.25 Termination successor order; and (2) is likely to have B.3 Certification of independent price C.26 Other Government remedies determination C.27 Liquidated damages a significant adverse effect on the B.4 Requirements for vessels—caution to supply, distribution, or use of energy, or C.28 Failure to perform under SPR offerors contracts (3) is designated by the Administrator of B.5 ‘‘Superfund’’ tax on SPR petroleum— C.29 Government options in case of OIRA as a significant energy action. For caution to offerors impossibility of performance any proposed significant energy action, B.6 Export limitations and licensing— C.30 Limitation of Government liability caution to offerors the agency must give a detailed C.31 Notices B.7 State of Hawaii access to SPR crude oil statement of any adverse effects on C.32 Disputes B.8 Issuance of the Notice of Sale energy supply, distribution, or use C.33 Assignment should the proposal be implemented, B.9 Submission of offers and modification of previously submitted offers C.34 Order of precedence and of reasonable alternatives to the B.10 Acknowledgment of amendments to a C.35 Gratuities action and their expected benefits on Notice of Sale Exhibits: energy supply, distribution, and use. B.11 Late offers, modifications of offers, and A—SPR Crude Oil Comprehensive Analysis Today’s regulatory action would not withdrawal of offers B—SPR Delivery Point Data have a significant adverse effect on the B.12 Offer guarantee C—Offer Standby Letter of Credit B.13 Explanation requests from offerors supply, distribution, or use of energy D—Payment and Performance Letter of Credit B.14 Currency for offers and, therefore, is not a significant E—Strategic Petroleum Reserve Crude Oil B.15 Language of offers and contracts energy action. Accordingly, DOE has not Delivery Report—SPRPMO–F–6110.2– prepared a Statement of Energy Effects. B.16 Proprietary data B.17 SPR crude oil streams and delivery 14b 1/87 REV.8/91 K. Congressional Notification points Section A—General Pre-Sale Information B.18 Notice of Sale line item schedule— A.1 List of Abbreviations As required by 5 U.S.C. 801, DOE will petroleum quantity, quality, and delivery report to Congress on the promulgation method (a) ASO: Apparently Successful Offeror of today’s rule prior to its effective date. B.19 Line item information to be provided (b) DLI: Delivery Line Item The report will state that it has been in the offer (c) DOE: U.S. Department of Energy determined that the rule is not a ‘‘major B.20 Mistake in offer (d) MLI: Master Line Item rule’’ as defined by 5 U.S.C. 804(2). B.21 Evaluation of offers (e) NA: Notice of Acceptance B.22 Procedures for evaluation of offers (f) NS: Notice of Sale List of Subjects in 10 CFR Part 625 B.23 Financial statements and other (g) SNL: Sales Notification List Government contracts, Oil and gas information (h) SSPs: Standard Sales Provisions reserves, Strategic and critical materials. B.24 Resolicitation procedures on unsold (i) SPR: Strategic Petroleum Reserve petroleum (j) SPRCODR: SPR Crude Oil Delivery Report Issued in Washington, DC on May 20, B.25 Offeror’s certification of acceptance (Exhibit E) 2005. B.26 Notification of Apparently Successful (k) SPR/PMO: Strategic Petroleum Reserve John D. Shages, Offeror Project Management Office Deputy Assistant Secretary, Petroleum B.27 Contract documents A.2 Definitions Reserves. B.28 [Reserved] B.29 Procedures for selling to other U.S. Affiliate. The term ‘‘affiliate’’ means I For the reasons set forth in the Government agencies associated business concerns or individuals preamble, 10 CFR Part 625 is amended if, directly or indirectly, (1) either one as follows: Section C—Sales Contract Provisions controls or can control the other, or (2) a C.1 Delivery of SPR petroleum third party controls or can control both. PART 625—PRICE COMPETITIVE C.2 Compliance with the ‘‘Jones Act’’ and Business Day. The term ‘‘business day’’ SALE OF STRATEGIC PETROLEUM the U.S. export control laws means any day except Saturday, Sunday or RESERVE PETROLEUM C.3 [Reserved] a U.S. Government holiday. C.4 Environmental compliance Contract. The term ‘‘contract’’ means the I 1. The authority citation for Part 625 C.5 Delivery and transportation scheduling contract under which DOE sells SPR continues to read as follows: C.6 Contract modification—alternate petroleum. It is composed of the NS, the NA, the successful offer, and the SSPs Authority: 15 U.S.C. 761; 42 U.S.C. 7101; delivery line items incorporated by reference. 42 U.S.C. 6201. C.7 Application procedures for ‘‘Jones Act’’ and Construction Differential Subsidy Contracting Officer. The term ‘‘Contracting I 2. Appendix A to 10 CFR part 625 is waivers Officer’’ means the person executing sales revised to read as follows: C.8 Vessel loading procedures contracts on behalf of the Government, and Appendix A To Part 625—Standard C.9 Vessel laytime and demurrage any other Government employee properly C.10 Vessel loading expedition options designated as Contracting Officer. The term Sales Provisions C.11 Purchaser liability for excessive berth includes the authorized representative of a Index time Contracting Officer acting within the limits of C.12 Pipeline delivery procedures his or her authority. Section A—General Pre-Sale Information C.13 Title and risk of loss Electronic signature or signature means a A.1 List of abbreviations C.14 Acceptance of crude oil method of signing an electronic message A.2 Definitions C.15 Delivery acceptance and verification that—
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(1) Identifies and authenticates a particular and sales contract clauses setting forth terms (b) Under 18 U.S.C. 3571, the maximum person as the source of the electronic and conditions of sale, including purchaser fine to which an individual or organization message; and financial and performance responsibility may be sentenced for violations of 18 U.S.C. (2) Indicates such person’s approval of the measures, or descriptions thereof, which may (including Section 1001) is set at $250,000 information contained in the electronic be applicable to price competitive sales of and $500,000 respectively, unless there is a message. petroleum from the SPR in accordance with greater amount specified in the statute setting Government. The term ‘‘Government’’, the SPR Sales Rule, 10 CFR Part 625. The NS out the offense, or the violation is subject to unless otherwise indicated in the text, means will specify which of these provisions shall special factors set out in Section 3571. The the United States Government. apply to a particular sale of such petroleum, United States Sentencing Guidelines also Head of the Contracting Activity. The term and it may specify any revisions therein and apply to violations of Section 1001, and ‘‘Head of the Contracting Activity’’ means any additional provisions which shall be offenders may be subject to a range of fines Project Manager, Strategic Petroleum Reserve applicable to that sale. under the guidelines up to and including the Project Management Office. (b) All offerors must, as part of their offers maximum amounts permitted by law. Notice of Acceptance (NA). The term for SPR petroleum in response to a NS, agree ‘‘Notice of Acceptance’’ means the document without exception to all sales provisions of Section B—Sales Solicitation Provisions that is sent by DOE to accept the purchaser’s that NS. B.1 Requirements for a Valid Offer— offer to create a contract. A.4 Periodic Revisions of the Standard Caution to Offerors Notification of Apparently Successful Sales Provisions (a) Offerors are advised that the submission Offeror (ASO). The term ‘‘notification of of an offer electronically is required. apparently successful offeror’’ means the DOE will review the SSPs periodically and republish them in the Federal Register, with Submission of an offer via the SPR’s notice, written or oral, by the Contracting specified on-line system will constitute a Officer to an offeror that it will be awarded any revisions. When an NS is issued, it will cite the Federal Register and the Code of legal, binding offer. The use of the a contract if it is determined to be combination of User Name and password to responsible. Federal Regulations (if any) in which the latest version of the SSPs was published. login and submit offers constitutes an Notice of Sale (NS). The term ‘‘Notice of electronic signature. Sale’’ means the document announcing the Offerors are cautioned that the Code of Federal Regulations may not contain the (b) A valid offer to purchase SPR sale of SPR petroleum, the amount, petroleum must meet the following characteristics and location of the petroleum latest version of the SSPs published in the Federal Register. Interested persons may conditions: being sold, the delivery period and the (1) The offer must be submitted via the procedures for submitting offers. The NS will view the current SSPs at http:// www.spr.doe.gov/reports/SSPs/ssp.htm. SPR’s on-line system as designated in the NS; specify what contractual provisions and (2) The offer must be received no later than financial and performance responsibility A.5 Sales Notification List (SNL) the date and time set for receipt of offers; measures are applicable to that particular (a) The SPR/PMO will maintain a Sales (3) The offer guarantee (see Provision B.12) sale of petroleum and provide other pertinent Notification List (SNL) of those potential must be received no later than the time set information. offerors who wish to receive notification of for the receipt of offers; Offeror. The term ‘‘offeror’’ means any an NS whenever one is issued. In order to (4) Any amendments to the NS that person or entity (including a government assure that prospective offerors will receive explicitly require acknowledgment of receipt agency) who submits an offer in response to such notification in a timely fashion, all must be properly acknowledged as specified a NS. potential offerors are encouraged to register in the NS; and Petroleum. The term ‘‘petroleum’’ means on the SNL as soon as possible. (5) Submission of an on-line offer in crude oil, residual fuel oil, or any refined (b) Any firm or individual may complete accordance with this provision constitutes product (including any natural gas liquid, the SNL on-line registration process at agreement without exception to all and any natural gas liquid product) owned or http://www.spr.doe.gov. provisions of the SSPs that the NS makes contracted for by DOE and in storage in any applicable to a particular sale, as well as to permanent SPR facility, or temporarily stored A.6 Publication of the Notice of Sale all provisions in the NS. in other storage facilities. (a) Notification of a NS will be sent via e- (c) At the discretion of the Contracting Project Management Office (SPR/PMO). mail to those who have registered on the SNL Officer, offers may be received by alternative The term ‘‘Project Management Office’’ referenced in Provision A.5. means if circumstances preclude use of the means the DOE personnel and DOE (b) The NS will be posted on the SPR web specified on-line system. contractors located in Louisiana and Texas page http://www.spr.doe.gov for public B.2 Price Indexing responsible for the operation of the SPR. viewing. In addition, the issuance of the NS Purchaser. The term ‘‘purchaser’’ means will be publicized on the Fossil Energy web The Government, at its discretion, may any person or entity (including a government page http://www.fe.doe.gov/programs/ make use of a price indexing mechanism to agency) who enters into a contract with DOE reserves/. effect contract price adjustments based on to purchase SPR petroleum. (c) A DOE press release, which will petroleum market conditions, e.g., crude oil Standard Sales Provisions (SSPs). The term include the salient features of the NS, will be market price changes between the times of ‘‘Standard Sales Provisions’’ means this set of made available to all news agencies. offer price submissions and physical terms and conditions of sale applicable to deliveries. The NS will set forth the price competitive sales of SPR petroleum. A.7 Penalty for False Statements in Offers provisions applicable to any such These SSPs constitute the ‘‘standard sales to Buy SPR Petroleum mechanism. agreement’’ referenced in the Strategic (a) Making false statements in an offer to B.3 Certification of Independent Price Petroleum Reserve ‘‘Drawdown’’ buy SPR petroleum may expose an offeror to Determination (Distribution) Plan, Amendment No. 4 a penalty under the False Statements Act, 18 (December 1, 1982, DOE/EP 0073) to the SPR U.S.C. 1001, which provides: (a) The offeror certifies that: Plan. (1) The prices in this offer have been Whoever, in any matter within the Strategic Petroleum Reserve (SPR). The arrived at independently, without, for the term ‘‘Strategic Petroleum Reserve’’ means jurisdiction of any department or agency of purposes of restricting competition, any that DOE program established by Title I, Part the United States knowingly and willfully consultation, communication, or agreement B, of the Energy Policy and Conservation Act, falsifies, conceals or covers up by any trick, with any other offeror or competitor relating 42 U.S.C. 6201, as amended. scheme, or device a material fact, or makes to: Vessel. The term ‘‘vessel’’ means a any false, fictitious or fraudulent (i) Those prices; tankship, an integrated tug-barge (ITB) statements or representations, or makes or (ii) The intention to submit an offer; or system, a self-propelled barge, or other barge. uses any false writing or document (iii) The methods or factors used to knowing the same to contain any false, calculate the prices offered. A.3 Standard Sales Provisions (SSPs) fictitious or fraudulent statement or entry, (2) The prices in this offer have not been (a) These SSPs contain pre-sale shall be fined under this title or and will not be knowingly disclosed by the information, sales solicitation provisions, imprisoned not more than 5 years, or both. offeror, directly or indirectly, to any other
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offeror or to any competitor before the time 73/78). These regulations prohibit any one-twelfth of the state’s annual import set for receipt of offers, unless otherwise oceangoing tankship, required to retain oil or quantity barrels. The price will be equal to required by law; and oily mixtures on-board while at sea, from the volumetrically weighted average price of (3) No attempt has been made or will be entering any port or terminal unless the port the successful competitive offers for the made by the offeror to induce any other or terminal has a valid Certificate of applicable Master Line Item. Furthermore, at concern to submit or not to submit an offer Adequacy as to its oil reception capabilities. the request of the Hawaii or its designated for the purpose of restricting competition. Marine terminals in support of the SPR (see eligible entity, the petroleum purchased will (b) Each submission of an offer is Exhibit B, SPR Delivery Point Data) have have first preference in its scheduling for considered to be a certification by the offeror Certificates of Adequacy; however, they may delivery. The State of Hawaii may also enter that the offeror: not have reception facilities for oily ballast, into exchange or processing agreements to (1) Is the person within the offeror’s vessel sludge or oily bilge water wastes. permit delivery of the purchased petroleum organization responsible for determining the Accordingly, tankships will be required to to other locations, if a petroleum product of prices being offered, and that the offeror has make arrangements for and be responsible for similar value or quantity is delivered to the not participated, and will not participate, in all costs associated with appropriate disposal State. any action contrary to paragraphs (a)(1) of such ballast, vessel sludge or oily bilge B.8 Issuance of the Notice of Sale through (a)(3) of this provision; or water waste or permission to load may be (2)(i) Has been authorized in writing to act denied. In the event petroleum is sold from the as agent for the persons responsible for such SPR, DOE will issue a NS containing all the B.5 ‘‘Superfund’’ Tax on SPR Petroleum— pertinent information necessary for the decision in certifying that such persons have Caution to Offerors not participated, and will not participate, in offeror to prepare a priced offer. A NS may any action contrary to (a)(1) through (a)(3) of (a) Sections 4611 and 4612 of the Internal be issued with a week or less allowed for the this provision; Revenue Code, provide for the imposition of receipt of offers. Offerors are expected to (ii) As their agent does hereby so certify; taxes on domestic and imported petroleum to examine the complete NS document, and to and support the Hazardous Substance Response become familiar with the SSPs cited therein. (iii) As their agent has not participated, Fund (the ‘‘Superfund’’) and the Oil Spill Failure to do so will be at the offeror’s risk. and will not participate, in any action Liability Trust Fund (‘‘Trust Fund’’). These B.9 Submission of Offers and Modification contrary to paragraphs (a)(1) through (a)(3) of taxes are not currently being collected. of Previously Submitted Offers (b) DOE has already paid the Superfund this provision. (a) Unless otherwise provided in the NS, and Trust Fund taxes on some of the oil B.4 Requirements for Vessels—Caution to offers must be submitted via SPR’s on-line imported and stored in the SPR. However, no Offerors system and received no later than the date Superfund or Trust Fund tax has been paid and time set for offer receipt as specified in (a) The ‘‘Jones Act’’, 46 U.S.C. 883, on any domestic oil stored in the SPR or on prohibits the transportation of any the NS. imported oil stored prior to the imposition of (b) Unless otherwise provided in the NS, merchandise, including SPR petroleum, by these taxes. Because domestic and imported water or land and water, on penalty of offers may be modified or withdrawn on-line, crude oil for which no Superfund and Trust provided that the modification or withdrawal forfeiture thereof, between points within the Fund taxes have been paid and crude oils for United States (including Puerto Rico, but is accomplished prior to the date and time which these taxes have been paid have been specified for receipt of offers. excluding the Virgin Islands) in vessels other commingled in the SPR, the Government than vessels built in and documented under (c) An offeror may withdraw an offer by retains records of the tax status of all SPR deleting the submission in accordance with laws of the United States, and owned by petroleum in storage. The NS will advise United States citizens, unless the prohibition the instructions provided for the SPR’s on- purchasers in the event these taxes are line system. has been waived by the Secretary of reimposed. Homeland Security. Further, certain U.S.-flag (d) An offeror may modify a previously vessels built with Construction Differential B.6 Export Limitations and Licensing— submitted offer by withdrawing the original Subsidies (CDS) are precluded by Section Caution to Offerors offer (see (c) above) and resubmitting the 506 of the Merchant Marine Act of 1936 (46 Offerors for SPR petroleum are put on replacement offer in its entirety no later than U.S.C. 1156) from participating in U.S. notice that export of SPR crude oil is subject the date and time set for offer receipt. coastwise trade, unless such prohibition has to U.S. export control laws implemented by (e) DOE will not release to the general been waived by the Secretary of the Department of Commerce Short Supply public the identities of the offerors, or their Transportation, the waiver being limited to a Controls, codified at 15 CFR part 754, offer quantities and prices, until the maximum of 6 months in any given year. § 754.2, Crude oil. Subsections of § 754.2 Apparently Successful Offerors have been CDS vessels may also receive Operating provide for the approval of applications to determined. DOE will inform simultaneously Differential Subsidies, requiring separate export crude oil from the SPR in connection all offerors and other interested parties of the successful and unsuccessful offerors and permission from the Secretary of with refining or exchange of SPR oil. their offer data by means of a public ‘‘offer Transportation for domestic operation, under Specifically, these subsections are posting.’’ The offer posting will normally Section 805(a) of the same statute. The NS §§ 754.2(b)(iii), and 754.2(f), Refining or occur within a week of receipt of offers and will advise offerors of any general waivers exchange of Strategic Petroleum Reserve Oil. will provide all interested parties access to allowing use of non-coastwise qualified These provisions implement the authority offer data as well as any DOE changes in the vessels or vessels built with Construction given to the President by 42 U.S.C. 6241(i) to petroleum quantities or quality to be sold. Differential Subsidies for a particular sale of permit the export of oil in the SPR for the DOE will announce the date, time, and SPR petroleum. If there is no general waiver, purpose of obtaining refined petroleum for location of the offer posting as soon as purchasers may request waivers in the U.S. market. In addition, the President practicable. accordance with Provision C.7, but remain could waive the requirement for an export obligated to complete performance under this license altogether. The NS will advise of any B.10 Acknowledgment of Amendments to a contract regardless of the outcome of that waivers under this Presidential authority. Notice of Sale waiver process. B.7 State of Hawaii Access to SPR crude oil When an amendment to a NS requires (b) The Department of Homeland Security’s acknowledgment of issuance, it must be regulations concerning Vessels Carrying Oil, Potential offerors are advised that pursuant acknowledged by an offeror in accordance Noxious Liquid Substances, Garbage, to subsection 161 (j) of the Energy Policy and with instructions provided in the NS. Such Municipal or Commercial Waste, and Ballast Conservation Act (42 U.S.C. 6241 (j)), the acknowledgment must be received as part of Water (33 CFR part 151) and Reception State of Hawaii, or a State-designated eligible a timely offer submission. Facilities For Oil, Noxious Liquid entity authorized to act on the State’s behalf, Substances, and Garbage (33 CFR part 158) may submit a ‘‘binding offer’’ for the B.11 Late Offers, Modifications of Offers, implement the requirements of the purchase of SPR petroleum. By submission of and Withdrawal of Offers International Convention for the Prevention a binding offer, the State of Hawaii is entitled (a) The date/time stamp affixed by the of Pollution from Ships, 1973, as modified by to purchase up to three percent of the SPR’s on-line system will be the sole the 1978 Protocol relating thereto (MARPOL quantity of SPR petroleum offered for sale or determinant of timely offer receipt. Any offer
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received after the date and time specified in any state of the United States or the District offeror 5 business days after expiration of the the NS for receipt will be considered only if of Columbia, and authorized to issue letters offeror’s acceptance period, and, except as (1) it is received before award is made; and of credit by the banking laws of the United provided in (i) of this provision, to a (2) the Contracting Officer determines that States or any state of the United States or the successful offeror upon receipt of a the late receipt was due solely to a failure of District of Columbia. The depository satisfactory payment and performance letter the Government’s electronic receiving institution must be an account holder with of credit. equipment, or the Federal Reserve Banking system and a (i) If an offeror defaults on its offer, DOE (3) it is the only offer received. participant (on line) in the Fed’s Fedwire will hold the offer guarantee so that damages (b) Any modification or withdrawal of an Deposit System Network funds transfer can be assessed against it. offer is subject to the same conditions as in system. The original of the letter of credit (a) of this provision. must be sent to the Contracting Officer at the B.13 Explanation Requests From Offerors (c) Notwithstanding (a) and (b) of this address specified in the NS. The issuing bank Offerors may request explanations provision, a late modification of an otherwise must provide documentation indicating that regarding meaning or interpretation of the NS successful offer that makes its terms more the person signing the letter of credit is from the individual at the telephone number authorized to do so, in the form of corporate favorable to the Government will be and/or e-mail address indicated in the NS. minutes, the Authorized Signature List, or considered at any time it is received and may On complex and/or significant questions, be accepted. the General Resolution of Signature Authority. DOE reserves the right to have the offeror put B.12 Offer Guarantee (e) The envelope containing the original the question in writing; explanation or (a) Each offeror must submit an acceptable letter of credit shall clearly be marked ‘‘RE: instructions regarding these questions will be offer guarantee for each offer submitted. Each NS # ____. OFFER STANDBY LETTER OF given as an amendment to the NS. offer guarantee must be received at the place CREDIT (Name of Company). Offerors are B.14 Currency for Offers specified in the NS no later than the date and cautioned that if they provide more than one Prices shall be stated and invoices shall be time set for receipt of offers. Offer Standby Letter of Credit for multiple (b) An offeror’s failure to submit a timely, offers and, due to the absence of clear paid in U.S. dollars. acceptable guarantee will result in rejection information from the offeror, the Government B.15 Language of Offers and Contracts of its offer. A properly executed copy of the is unable to identify which letter of credit All offers in response to the NS and all offer guarantee(s) may be faxed to the applies to which offer, the Contracting modifications of offers shall be in English. telephone numbers provided in the NS, with Officer in his sole discretion may assign the All correspondence between offerors or the original sent to the Contracting Officer as letters of credit to specific offers. provided in paragraph (d) of this provision. (f) The offeror shall be liable for any purchasers and DOE shall be in English. (c) The amount of each offer guarantee is amount lost by DOE due to the difference B.16 Proprietary Data $10 million or 5 percent of the maximum between the offer and the resale price, and Offer quantities and prices are not potential contract amount, whichever is less. for any additional resale costs incurred by considered proprietary information. If any The maximum potential contract amount is DOE in the event that the offeror: other information submitted in connection the sum of the products determined by (1) withdraws its offer within 10 days with a sale is considered proprietary, that multiplying the offer’s maximum purchase following the time set for receipt of offers; quantity for each master line item, times the (2) withdraws its offer after having agreed information shall be identified by e-mail to highest offer prices that the offeror would to extend its acceptance period; or the address indicated in the NS, and an have to pay for that master line item if the (3) having received a notification of ASO, explanation provided as to the reason such offer were to be successful. The SPR on-line fails to furnish an acceptable payment and data should be considered proprietary. Any system will perform this calculation performance letter of credit (see Provision final decision as to whether the material so automatically as offer information is entered. C.21) within the time limit specified by the identified is proprietary will be made by (d) For each offer, an offeror must submit Contracting Officer. DOE. DOE’s Freedom of Information Act an irrevocable standby letter of credit from a The offer guarantee shall be used toward regulations governing the release of U.S. depository institution containing the offsetting such price difference or additional proprietary data shall apply. substantive provisions set out in Exhibit C, resale costs. Use of the offer guarantee for B.17 SPR Crude Oil Streams and Delivery Offer Standby Letter of Credit, all letter of such recovery shall not preclude recovery by Points credit costs to be borne by the offeror. If the DOE of damages in excess of the amount of letter of credit contains any provisions at the offer guarantee caused by such failure of (a) The geographical locations of the variance with Exhibit C or fails to include the offeror. terminals, pipelines, and docks any provisions contained in Exhibit C, (g) Letters of credit furnished as offer interconnected with permanent SPR storage nonconforming provisions must be deleted guarantees must be valid for at least 60 locations, the SPR crude oil streams available and missing substantive provisions must be calendar days after the date set for the receipt at each location and the delivery points for added or the letter of credit will not be of offers. those streams are as follows, (See also Exhibit accepted. The depository institution must be (h) Offer guarantee letters of credit may be A, SPR Crude Oil Comprehensive Analysis, located in and authorized to do business in returned upon request to an unsuccessful and Exhibit B, SPR Delivery Point Data):
Geographical location Delivery points Crude oil stream
Freeport, Texas ...... Seaway Terminal or Seaway Pipeline Jones SPR Bryan Mound Sweet, SPR Bryan Mound Creek. Sour Texas City, Texas ...... Seaway Terminal or Local Pipelines ...... SPR Bryan Mound Sweet, SPR Bryan Mound Sour Nederland, Texas ...... Sunoco Logistics Partners, Nederland Ter- SPR West Hackberry Sweet, SPR West minal. Hackberry Sour, SPR Big Hill Sweet, SPR Big Hill Sour Lake Charles, Louisiana...... Shell 22-Inch/DOE Lake Charles Pipeline SPR West Hackberry Sweet, SPR West Connection. Hackberry Sour St. James, Louisiana...... Shell Sugarland Terminal connected to SPR Bayou Choctaw Sweet, SPR Bayou LOCAP and Capline. Choctaw Sour Beaumont, Texas ...... Unocal Terminal ...... SPR Big Hill Sweet, SPR Big Hill Sour Winnie, Texas ...... Shell 20-Inch Meter Station ...... SPR Big Hill Sweet, SPR Big Hill Sour
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(b) The NS may change delivery points and in fact, will be sold on that DLI. Rather, it during the delivery period specified. The it may also include additional crude oils, represents DOE’s best estimate of the quantity stated on a single DLI shall not terminals, temporary storage facilities or maximum amount of the particular SPR exceed the Maximum MLI Quantity for the systems utilized in connection with crude oil stream that can be moved by that MLI. The offeror shall designate a quantity on petroleum in transit to the SPR. transportation system over the delivery at least one DLI for the MLI, but may (c) The NS may contain additional period. The total DOE estimated DLI designate quantities on more than one DLI. information supplementing Exhibit B, SPR maximums may exceed the total number of If the offeror is willing to accept alternate Delivery Point Data. barrels to be sold on that MLI, as the NS DLI DLIs, the total of its desired DLI quantities B.18 Notice of Sale Line Item Schedule— estimates represent estimated transportation would exceed its Maximum MLI quantity; Petroleum Quantity, Quality, and Delivery capacity, not the amount of petroleum otherwise, the total of its desired DLI Method offered for sale. quantities should equal its Maximum MLI (f) The NS will not specify what portion of quantity. (a) Unless the NS provides otherwise, the the petroleum that DOE offers on a MLI will, (3) Price. The offer shall state the price per possible master line items (MLI) that may be in fact, be sold on any given DLI. Rather, the barrel for each DLI for which the offeror has offered are as identified in Provision B.17. highest priced offers received on the MLI will designated a Desired Qty. Where offers have Currently, there are eight MLIs, one for each determine the DLIs against which the offered indicated quantities on more than one DLI of the eight crude oil streams that the SPR petroleum is sold. with a different price on each, DOE will has in storage. The NS may not offer all the (g) DOE will not sell petroleum on a DLI award the highest priced DLI first. If the possible MLIs. in excess of the DLI maximum; however, offeror has the same price for two or more (b) Each MLI contains multiple delivery DOE reserves the right to revise its estimates DLIs, it may indicate its first choice, second line items (DLIs), each of which specifies an at any time and to award or modify contracts choice, etc., for award of those items; if the available delivery method and the nominal in accordance with its revised estimates. offeror does not indicate a preference, or delivery period. Offerors are cautioned that Offerors are cautioned that: DOE cannot indicates the same preference for more than the NS may alter the period of time covered guarantee that such transportation capacity is one DLI, DOE may select the DLIs to be by each DLI. The NS will specify which DLIs available; offerors should undertake their awarded at its discretion. Prices may be are offered for each MLI. own analyses of available transportation stated in hundredths of a cent ($0.000l). DOE (1) DLI–A covers petroleum to be capacity; and each purchaser is wholly shall drop from the offer and not consider transported by pipeline, either common responsible for arranging all transportation any numbers of less than one one-hundredth carrier or local. The nominal delivery period other than terminal arrangements at the of a cent. is one month. terminals listed in Provision B.17, which (4) Accept Minimum Quantity. The offeror (2) DLI–B covers petroleum to be shall be made in accordance with Provision must choose whether to accept only the transported by tankships. The nominal C.5. A purchaser against one DLI cannot Desired Qty (by deselecting the Accept Min delivery period is one month. change a transportation mode without prior Qty checkbox to indicate an unwillingness to (3) DLI–E covers petroleum to be written permission from DOE, although such accept less than the Desired Qty for that DLI) transported by barges (Note: These DLIs are permission will be given whenever possible, or, in the alternative, to accept any quantity usually only applicable to deliveries of West in accordance with Provision C.6. awarded between the offer’s Desired Qty and Hackberry and Big Hill Sweet and Sour crude (h) Exhibit A, SPR Crude Oil the minimum contract quantity for the DLI oil streams from Sun Docks). The nominal Comprehensive Analysis, contains nominal (by leaving the Accept Min Qty checkbox delivery period is one month. characteristics for each SPR crude oil stream. selected). However, DOE will award less than (4) Where the storage site is connected to Prospective offerors are cautioned that these the Desired Qty only if the quantity available more than one terminal or pipeline, data may change with SPR inventory to be awarded is less than the Desired Qty. additional DLIs will be offered. The changes. The NS will provide, to the B.20 Mistake in Offer additional DLIs will include DLI–H, covering maximum extent practicable, the latest data petroleum to be transported by pipeline over on each stream offered. (a) After receiving offers, the Contracting the period of a month; DLI–I, covering Officer shall examine all offers for mistakes. tankships, etc. The Notice of Sale will specify B.19 Line Item Information To Be Provided If the Contracting Officer discovers any any additional DLIs which may be in the Offer quantity discrepancies, he may obtain from applicable. (a) Each offeror, if determined to be an the offeror oral or written verification of the (c) The NS will state the total estimated ASO on a DLI, agrees to enter into a contract offer actually intended, but in any event, he number of barrels to be sold on each MLI. An under the terms of its offer for the purchase shall proceed with offer evaluation applying offeror may offer to buy all or part of the of petroleum in the offer and to take delivery the following procedures: petroleum offered on an MLI. In making of that petroleum (plus or minus 10 percent (1) In case of conflict between the awards, the Contracting Officer shall attempt as provided for in Provision C.20) in maximum MLI quantity and the stated DLI to achieve award of the exact quantities accordance with the terms of that contract. quantities (for example, if a single stated DLI offered by the NS, but may sell a quantity of (b) An offeror may submit an offer for any quantity exceeds the corresponding petroleum in excess of the quantity offered or all the MLIs offered by the NS. However, maximum MLI quantity), the lesser quantity for sale on a particular MLI in order to match offerors are cautioned that alternate offers on will govern in the evaluation of the offer. the DLI offers received. In addition, the different MLIs are not permitted. For (2) In the event that the offer fails to Contracting Officer may reduce the MLI example, an offeror may offer to purchase specify a maximum MLI quantity, the offer quantity available for award by any amount 1,000,000 barrels of SPR West Hackberry will be evaluated as though the largest stated and reject otherwise acceptable offers, if he Sweet and 1,000,000 barrels of SPR West DLI quantity is the offer’s maximum MLI determines, in his sole discretion after Hackberry Sour, but may not offer to quantity. consideration of the offers received on all of purchase, in the alternative, either 1,000,000 (b) In cases where the Contracting Officer the MLIs, that award of those quantities is barrels of sweet or 1,000,000 barrels of sour. has reason to believe a mistake not covered not in the best interest of the Government (c) An offeror may submit multiple offers. by the procedures set forth in paragraph (a) because the prices offered for them are not However, separate on-line offers and offer may have been made, he shall request from reasonable, or that, in light of market guarantees must be submitted and each offer the offeror a verification of the offer, calling conditions after offers are received, a lesser will be evaluated on an individual basis. attention to the suspected mistake. The quantity than that offered should be sold. (d) The following information will be Contracting Officer may telephone the offeror (d) The NS will specify a minimum provided to DOE by the offeror on the SPR and confirm the request by electronic means. contract quantity for each DLI. To be on-line offer form: The Contracting Officer may set a limit of as responsive, an offer on a DLI must be for at (1) Maximum MLI Quantity. The offer shall little as 6 hours for telephone response, with least that quantity. state the maximum quantity of each crude oil any required written documentation to be (e) The NS will specify the maximum stream that the offeror is willing to buy. received within 2 business days. If no quantity that could be sold on each of the (2) Desired Qty. The offer shall state the response is received, the Contracting Officer DLIs. The maximum quantity is not an number of barrels that the offeror will accept may determine that no error exists and indication of the amount of petroleum that, on each DLI, i.e., by the delivery mode and proceed with offer evaluation.
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(c) The Head of the Contracting Activity same time. In making the sales price Performance Letter of Credit) as specified in will make administrative determinations estimate, the Government will consider both Provision C.21, all letter of credit costs to be described in paragraphs (c)(1) and (c)(2) of the ‘‘Base Reference Price’’ as defined in the borne by the purchaser. this provision if an offeror alleges a mistake Notice of Sale and other available (9) Compliance with required payment and after receipt of offers and before award. information bearing on the issue. performance guarantees will effectively (1) The Head of the Contracting Activity (ii) For price offers at or above 95 percent assure a finding of responsibility of offerors, may refuse to permit the offeror to withdraw of the sales price estimate, the Contracting except where: an offer, but permit correction of the offer if Officer will determine price reasonableness, (i) An offeror is on either DOE’s or the clear and convincing evidence establishes considering offers received and prevailing Federal Government’s list of debarred, both the existence of a mistake and the offer market conditions. ineligible and suspended bidders; or actually intended. However, if such (iii) Price offers below 95 percent may be (ii) Evidence, with respect to an offeror, correction would result in displacing one or accepted only if the Contracting Officer comes to the attention of the Contracting more higher acceptable offers, the Head of determines such action is necessary to Officer of conduct or activity that represents the Contracting Activity shall not so achieve SPR crude oil supply objectives and a violation of law or regulation (including an determine unless the existence of the mistake such offered prices are reasonable. Executive Order); or and the offer actually intended are (4) The highest priced offers will be (iii) Evidence is brought to the attention of ascertainable substantially from the NS and reviewed for responsiveness to the NS. the Contracting Officer of past activity or offer itself. (5) In the event the highest priced offer conduct of an offeror that shows a lack of (2) The Head of the Contracting Activity does not take all the petroleum available on integrity (including actions inimical to the may determine that an offeror shall be the MLI, sequentially, the next highest priced welfare of the United States) or willingness permitted to withdraw an offer in whole, or offer will be selected until all of the to perform, so as to substantially diminish in part if only part of the offer is affected, petroleum offered on the MLI is awarded or the Contracting Officer’s confidence in the without penalty under the offer guarantee, there are no more acceptable offers. In the offeror’s performance under the proposed where the offeror requests permission to do event that acceptance of an offer against an contract. so and clear and convincing evidence MLI or a DLI would result in the sale of more B. 23 Financial Statements and Other establishes the existence of a mistake, but not petroleum on an MLI than DOE has offered Information the offer actually intended. or the sale of more petroleum on a DLI than (d) In all cases where the offeror is allowed DOE estimates can be delivered by the (a) As indicated in Provision B.22(b)(9), to make verbal corrections to the original specified delivery method, DOE will not compliance with the required payment and offer, confirmation of these corrections must award the full amount of the offer, but rather performance guarantee will in most instances be received in writing within the time set by the remaining MLI quantity or DLI capacity, effectively assure a finding of responsibility. the Contracting Officer or the original offer provided such portion exceeds DOE’s Therefore, DOE does not intend to ask for financial information from all offerors. will stand as submitted. minimum contract quantity. In the event that However, after receipt of offers, but prior to the quantity remaining is less than the offeror B.21 Evaluation of Offers making award, DOE reserves the right to ask is willing to accept, but more than DOE’s (a) The Contracting Officer will be the for the audited financial statements for an minimum contract quantity, the Contracting determining official as to whether an offer is offeror’s most recent fiscal year and Officer shall proceed to the next highest responsive to the SSPs and the NS. DOE unaudited financial statements for any priced offer. reserves the right to reject any or all offers subsequent quarters. These financial (6) In the event of tied offers and an and to waive minor informalities or statements must include a balance sheet and insufficient remaining quantity available on irregularities in offers received. profit and loss statement for each period the MLI or insufficient remaining capacity on (b) A minor informality or irregularity in covered thereby. A certification by a an offer is an inconsequential defect the the DLI to fully award all tied offers, the principal accounting officer that there have waiver or correction of which would not be Contracting Officer shall apply an objective been no material changes in financial prejudicial to other offerors. Such a defect or random methodology for allocating the condition since the date of the audited variation from the strict requirements of the remaining MLI quantity or DLI capacity statements, and that these present the true NS is inconsequential when its significance among the tied offers, taking into financial condition as of the date of the offer, as to price, quantity, quality or delivery is consideration the quantity the offeror is shall accompany the statements. If there has negligible. willing to accept as indicated in its offer. been a change, the amount and nature of the When making this allocation, the Contracting B.22 Procedures for Evaluation of Offers change must be specified and explained in Officer in his sole discretion may do one or the unaudited statements and a principal (a) Award on each DLI will be made to the more of the following: accounting officer shall certify that they are responsible offerors that submit the highest (i) Make an additional quantity or capacity accurate. The Contracting Officer shall set a priced offers responsive to the SSPs and the available; deadline for receipt of this information. NS and that have provided the required (ii) Contact an offeror to determine whether (b) DOE also reserves the right to require payment and performance guarantee as alternative delivery arrangements can be the submission of information from the required by Provision C.21. made; or offeror regarding its plans for use of the (b) DOE will array all offers on an MLI (iii) Not award all or part of the remaining petroleum, the status of requests for export from highest price to lowest price for award quantity of petroleum. licenses, plans for complying with the Jones evaluation regardless of DLI. However, DOE (7) The Contracting Officer may reduce the Act, and any other information relevant to will award against the DLIs and will not MLI quantity available for award by any the performance of the contract. The award a greater quantity on a DLI than DOE’s amount and reject otherwise acceptable offers Contracting Officer shall set a deadline for estimate (which is subject to change at any if in his sole discretion he determines, after receipt of this information. time) of the maximum quantity that can be consideration of the offers received on all of moved by the delivery method. Selection of the MLIs, that award of those quantities is B.4 Resolicitation Procedures on Unsold the apparently successful offers involves the not in the best interest of the Government Petroleum following steps: because the prices offered for them are not (a) In the event that petroleum offered on (1) Any offers below the minimum reasonable; or if the Government determines, an MLI remains unsold after evaluation of all acceptable price, if any minimum price has in light of market conditions after offers are offers, the Contracting Officer, at his option, been established for the sale, will be rejected received, to sell less than the overall quantity may issue an amendment to the NS, as nonresponsive. of SPR petroleum offered for sale. resoliciting offers from all interested parties. (2) All offers on each MLI will be arrayed (8) Determinations of ASO responsibility DOE reserves the right to alter the MLIs and/ from highest price to lowest price. will be made by the Contracting Officer or offer different MLIs in the resolicitation. (3) (i) Offers may be rejected if they are before each award. All ASOs will be notified (b) In the event that for any reason below 95 percent of the sales price, as and advised to provide to the Contracting petroleum that has been awarded or allotted estimated by the Government, of comparable Officer within five business days a letter of for award becomes available to DOE for crude oil being sold in the same area at the credit (See Exhibit D, Payment and resale, the following procedures will apply:
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(1) If priced offers remain valid in requirements governing transactions between Provision B.22 of the SSPs. Those purchasers accordance with Provision B.25, the agencies, and the U.S. Government agency may also be subject to proceedings to make petroleum may go to the next highest ranked will be responsible for complying with these them ineligible for future awards in offer. requirements within the time limits set by accordance with 10 CFR Part 625. (2) If offers have expired in accordance the Contracting Officer. C.3 [Reserved] with Provision B.25, the Contracting Officer (b) U.S. Government agencies are exempt at his option may offer the petroleum to the from all guarantee requirements, but must C.4 Environmental Compliance highest offeror for that MLI. The pertinent make all necessary arrangements to accept (a) SPR offerors must ensure that vessels offeror may, at its option, accept or reject that delivery of and transport SPR petroleum as used to transport SPR oil comply with all petroleum at the price it originally offered. If set out in Provision C.1. Failure by a U.S. applicable statutes, including, among others, that offeror rejects the petroleum, it may be Government agency to comply with any of the Ports and Waterways Safety Act of 1972; offered to the next highest offeror. This the requirements of these SSPs shall not the Port and Tanker Safety Act of 1978; the process may continue until all the remaining provide a basis for challenging a contract Act to Prevent Pollution from Ships of 1980 petroleum has been allotted for award. award to that agency. (implementing Annexes I, II, and V of (3) If the petroleum is not then resold, the Section C—Sales Contract Provisions MARPOL 73/78), and the Oil Pollution Act Contracting Officer may at his option proceed of 1990. Offerors also must ensure that to amend the NS to resolicit offers for that C.1 Delivery of SPR Petroleum vessels used to transport SPR oil comply petroleum or add the petroleum to the next (a) The purchaser, at its expense, shall with all applicable regulations, including 33 sales cycle. make all necessary arrangements to accept CFR parts 151, 153, 155, 157, 159, and 160– B.25 Offeror’s Certification of Acceptance delivery of and transport the SPR petroleum, 169, and 46 CFR chapter I, subchapter D. Period except for terminal arrangements which shall (b) To transport SPR oil, a purchaser or the (a) By submission of an offer, the offeror be coordinated with the SPR/PMO. The DOE purchaser’s subcontractors must use only certifies that its priced offer will remain valid will deliver and the purchaser will accept the those tank vessels for which the vessel’s for 10 calendar days after the date set for the petroleum at delivery points listed in the NS. owner, operator, or demise charter has made receipt of offers, and further that the The purchaser also shall be responsible for a showing of financial responsibility under successful line items of its offer will remain meeting any delivery requirements imposed 33 CFR part 138, Financial Responsibility for valid for an additional 30 calendar days at those points including complying with the Water Pollution (Vessels). should it receive a notification of ASO either rules, regulations, and procedures contained (c) Failure of the purchaser or purchaser’s by telephone or in writing during the initial in applicable port/terminal manuals, pipeline subcontractor to comply with all applicable 10-day period. tariffs or other applicable documents. statutes and regulations in the transportation (b) By mutual agreement of DOE and the (b) For petroleum in the SPR’s permanent of SPR petroleum will be considered a failure offeror, an individual offeror’s acceptance storage sites, DOE shall provide, at no cost to comply with the terms of any contract period may be extended for a longer period. to the purchaser, transportation by pipeline containing these SSPs, and may result in from the SPR to the supporting SPR termination for default, unless, in accordance B.26 Notification of Apparently Successful distribution terminal facility specified for the with Provision C.25, such failure was beyond Offeror MLI and, for vessel loadings, a safe berth and the control and without the fault or The following information concerning its loading facilities sufficient to deliver negligence of the purchaser, its affiliates, or offer will be provided to the apparently petroleum to the vessel’s permanent hose subcontractors. successful offeror by DOE in the notification connection. The purchaser agrees to assume C.5 Delivery and Transportation Scheduling of ASO: responsibility for, to pay for, and to (a) Identification of SPR crude oil streams indemnify and hold DOE harmless for any (a) Unless otherwise instructed in the to be awarded; other costs associated with terminal, port, notification of ASO, each purchaser shall (b) Total quantity to be awarded on each vessel and pipeline services necessary to submit a proposed vessel lifting program MLI and on each DLI; receive and transport the petroleum, and/or pipeline delivery schedule to the (c) Price in U.S. dollars per barrel for each including but not limited to demurrage SPR/PMO point of contact identified in the DLI; charges assessed by the terminal, ballast and NS, no later than the fifteenth day prior to (d) Extended total price offer for each DLI; oily waste reception services, mooring and the earliest delivery date offered by the NS. (e) Provisional contract number; line-handling services, tank storage charges The vessel lifting program shall specify the (f) Any other data necessary. and port charges incurred in the delivery of requested three-day loading window for each B.27 Contract Documents SPR petroleum to the purchaser. The tanker and the quantity to be lifted. The purchaser also agrees to assume pipeline schedule will specify the five day If an offeror is successful, DOE will make shipment ranges (i.e., day 1–5, 6–10, 11–15, award using an NA signed by the Contracting responsibility for, to pay for and to indemnify and hold DOE harmless for any etc.) for which deliveries are to be tendered Officer. The NA will identify the items, to the pipeline and the quantity to be quantities, prices and delivery method which liability, including consequential or other damages, incurred or occasioned by the tendered for each date. In the event DOE is accepting. The NS will be attached to conflicting requests are received, preference the NA. Provisions of the SSPs will be made purchaser, its agent, subcontractor at any tier, assignee or any subsequent purchaser, in will be given to such requests in descending applicable through incorporation by order, the highest offered price first. The reference in the NS. DOE may accept the connection with movement of petroleum sold under a contract incorporating this provision. SPR/PMO will respond to each purchaser no offeror’s offer by an electronic notice and the later than the tenth day prior to the start of contract award shall be effective upon C.2 Compliance With the ‘‘Jones Act’’ and deliveries, either confirming the schedule as issuance of such notice. The electronic notice the U.S. Export Control Laws originally submitted or proposing alterations. will be followed by a mailing of full Failure to comply with the ‘‘Jones Act,’’ 46 The purchaser shall be deemed to have documentation as described in Provision U.S.C. 883, regarding use of U.S.-flag vessels agreed to those alterations unless the B.26. in the transportation of oil between points purchaser requests the SPR/PMO to B.28 [Reserved] within the United States, and with any reconsider within two days after receipt of applicable U.S. export control laws affecting such alterations. The SPR/PMO will use its B.29 Procedures for Selling to Other U.S. the export of SPR petroleum will be best efforts to accommodate such requests, Government Agencies considered to be a failure to comply with the but its decision following any such (a) If a U.S. Government agency submits an terms of any contract containing these SSPs reconsideration shall be final and binding. offer for petroleum in a price competitive and may result in termination for default in (b) In order to expedite the scheduling sale, that offer will be arrayed for award accordance with Provision C.25. Purchasers process, at the time of submission of each consideration in accordance with Provision who have failed to comply with the ‘‘Jones vessel lifting program or pipeline delivery B.22. If a U.S. Government agency is an ASO, Act’’ or the export control laws in SPR sales schedule, each purchaser shall provide the award and payment will be made exclusively may be found to be non-responsible in the DOE Contracting Officer’s Representative in accordance with statutory and regulatory evaluation of offers in subsequent sales under with a written notice of the intended
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destination for each cargo scheduled, if such and a waiver may not be approved if it will C.8 Vessel Loading Procedures destination is known at that time. For result in unfair competition to any person, (a) After notification of ASO, each ASO pipeline deliveries, the purchaser shall also firm, or corporation operating exclusively in shall provide the SPR/PMO a proposed include, if known, the name of each pipeline the coastwise or intercoastal service. schedule of vessel loading windows in in the routing to the final destination. (c) Copies of the Jones Act or CDS waiver accordance with Provision C.5. (c) Notwithstanding paragraph (a) of this requests should also be sent, as appropriate, (b) The length of the scheduled loading provision, ASOs and purchasers may request to: window shall be 3 days. If the purchaser early deliveries, i.e., deliveries commencing (1) Associate Administrator for Port, schedules more than one window, the prior to the contractual delivery period. DOE Intermodal and Environmental Activities, average quantity to be lifted during any will use its best efforts to honor such Maritime Administration, U.S. Department single loading window will be no less than requests, unless unacceptable costs might be of Transportation, 400 7th Street, SW., DOE’s minimum lot quantity. incurred or SPR schedules might be Washington, DC 20590. (c) Tankships, ITBs, and self-propelled adversely affected or other circumstances (2) U.S. Department of Energy, ATTN: barges shall be capable of sustaining a make it unreasonable to honor such requests. Deputy Assistant Secretary for Petroleum minimum average load rate commensurate DOE’s decision following any such Reserves, FE–40, 1000 Independence with receiving an entire full cargo within consideration for a change shall be final and Avenue, SW., Washington, DC 20585. twenty-four (24) hours pumping time. Barges binding. Requests accepted by DOE will be (3) Contracting Officer, FE–4451, Strategic with a load rate of not less than 4,000 BPH handled on a first-come, first-served basis, Petroleum Reserve Project Management shall be permitted at the Sun Terminal barge except that where conflicting requests are Office, Acquisition and Sales Division, 900 docks. With the consent of the SPR/PMO, received on the same day, the highest-priced Commerce Road East, New Orleans, LA lower loading rates and the use of barges at offer will be given preference. Requests that 70123. suitably equipped tankship docks at other include both a change in delivery method (d) In addition to the addresses in terminals supporting the SPR may be and an early delivery date may also be paragraph (c), copies of the ‘‘Jones Act’’ permitted if such do not interfere with DOE’s accommodated subject to Provision C.6. DOE request should also be sent to: Office of the obligations to other parties. may not be able to confirm requests for early Under Secretary of Defense (Acquisition, (d) At least 7 days in advance of the deliveries until 24 hours prior to the delivery Technology and Logistics), U.S. Department beginning of the scheduled loading window, date. of Defense, Washington, DC 20301–3020. the purchaser shall furnish the SPR/PMO (d) Not withstanding paragraphs (a) and (c) (e) Any request for waiver should include with vessel nominations specifying: of this provision, in no event will schedules the following information: (i) Name and size of vessel or advice that be confirmed prior to award of contracts. (1) Name, address and telephone number the vessel is ‘‘To Be Nominated’’ at a later C.6 Contract Modification—Alternate of requestor; date (such date to be no later than 3 days Delivery Line Items (2) Purpose for which waiver is sought, before commencement of the loading e.g., to take delivery of so many barrels of (a) A purchaser may request a change in window); SPR crude oil, with reference to the SPR NS (ii) Estimated date of arrival (to be delivery method after the issuance of the NA. number and the provisional or assigned Such requests may be made either orally (to narrowed to a firm date not later than 72 contract number; hours prior to the first day of the vessel’s 3- be confirmed in writing within 24 hours) or (3) Name and flag of registry of vessel for in writing, but will require written day window, as provided in paragraph (f) of which waiver is sought, if known at the time this provision); modification of the contract by the of waiver request, and the scheduled 3-day Contracting Officer. Such modification shall (iii) Quantity to be loaded and contract delivery window(s), if available, or delivery number; and be permitted by DOE, provided, in the sole period applicable to the contract; judgment of DOE, the change is viewed as (iv) Other relevant information requested (4) The intended number of voyages, by the SPR/PMO including but not limited to reasonable and would not interfere with the including the ports for loading and delivery plans of other purchasers, and ship’s specifications, last three ports and discharging; cargoes, vessel owner/operator and flag, any further provided that the purchaser agrees to (5) Estimated period of time for which pay all increased costs incurred by DOE known deficiencies, and on board quantities vessel will be employed; and of cargo and slops. because of such modification. (6) Reason for not using qualified U.S.-flag (b) Changes in delivery method will only DOE will advise the purchaser, in writing, vessel, including documentary evidence of of the acceptance or rejection of the be considered after the initial confirmation of good faith effort to obtain suitable U.S.-flag schedules described in Provision C.5(a). nominated vessel within 24 hours of such vessel and responses received from that nomination. If no advice is furnished within C.7 Application Procedures for ‘‘Jones Act’’ effort. Such evidence would include copies 24 hours, the nomination will be firm. Once of correspondence and telephone and Construction Differential Subsidy established, changes in such nomination conversation summaries. Requests for Waivers details may be made only by mutual waivers by electronic transmittals may (a) Unless otherwise specified in the Notice agreement of the parties, to be confirmed by reference such documentary evidence, with of Sale, an ASO or purchaser seeking a DOE in writing. The purchaser shall be copies to be provided by mail, postmarked no waiver of the ‘‘Jones Act’’ should submit a more than one business day after the entitled to substitute another vessel of similar request by letter or electronic means to: U.S. transmission requesting the waiver. size for any vessel so nominated, subject to Bureau of Customs and Border Protection, (7) For waivers to use Construction DOE’s approval. DOE must be given at least Office of Regulations and Rulings, Chief, Differential Subsidy vessels, the request must 3 days’ notice prior to the first day of the 3- Entry Procedures and Carriers Branch, also contain a specific agreement for day loading window of any such Washington, DC 20229, Telephone: (202) Construction Differential Subsidies payback substitution. DOE shall make a reasonable 572–8724. pursuant to section 506 of the Merchant effort to accept any nomination for which (b) A purchaser seeking a waiver to use a Marine Act of 1936 and must be signed by notice has not been given in strict accordance vessel built with a Construction Differential an official of the vessel owner authorized to with this provision. Subsidy should have the vessel owner submit make a payback commitment. (e) In the event the purchaser intends to a waiver request by letter or electronic means (f) If there are shown to be ‘‘Jones Act’’ use more than one vessel to take delivery of to: Associate Administrator for Ship vessels available and in a position to meet the contract quantity scheduled to be Financial Assistance and Cargo Preference, the loading dates required, no waivers may delivered during a loading window, the Maritime Administration, U.S. Department of be approved. information in paragraphs (d) and (f) of this Transportation, 400 7th Street, SW., (g) The names of any vessel(s) to be provision shall be provided for each vessel. Washington, DC 20590. employed under a ‘‘Jones Act’’ waiver must (f) The vessel or purchaser shall notify the For speed and brevity, the request may be provided to the U.S. Bureau of Customs SPR/PMO of the expected day of arrival 72 incorporate by reference appropriate contents and Border Protection no later than 3 days hours before the beginning of his scheduled of any earlier ‘‘Jones Act’’ waiver request by prior to the beginning of the 3-day loading 3-day loading window. This notice the purchaser. Under 46 U.S.C. App. 1223, a window scheduled in accordance with establishes the firm agreed-upon date of hearing is also required for any intervenor, Provision C.5. arrival which is the 1-day window for the
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purposes of vessel demurrage (see Provision wastes or to moor multiple vessels Nominal Freight Scale ‘‘Worldscale’’ shall be C.9). If the purchaser fails to make sequentially into berth shall count as used used as appropriate, if less than the charter notification of the expected day of arrival, the berth time. party rate. For all foreign flag vessel loadings 1-day window will be deemed to be the (2) For all hours of berth time used by the that commence during a particular calendar middle day of the scheduled 3-day window. vessel in excess of allowable berth time as month, the applicable AFRA shall be the one The vessel shall also notify the SPR/PMO of provided for in this provision, the purchaser that is determined on the basis of freight the expected hour of arrival 72, 48 and 24 shall be liable for dock demurrage and also assessments for the period ended on the 15th hours in advance of arrival, and after the first shall be subject to the conditions of Provision day of the preceding month. The demurrage notice, to advise of any variation of more C.11. rate for barges will be the lesser of the hourly than 4 hours. With the first notification of the C.9 Vessel Laytime and Demurrage rate contained in the charter of a chartered hour of arrival, the Master shall advise the barge, or a rate determined by DOE as a fair SPR/PMO: (a) The laytime allowed DOE for handling rate under prevailing conditions. If (i) Cargo loading rate requested; of the purchaser’s vessel shall be 36 running demurrage is incurred because of breakdown (ii) Number, size, and material of vessel’s hours. For vessels with cargo quantities in of machinery or equipment of DOE or its manifold connections; and excess of 500,000 barrels, laytime shall be 36 contractors (other than the purchaser), the (iii) Defects in vessel or equipment running hours plus 1 hour for each 20,000 rate of demurrage shall be reduced to one- affecting performance or maneuverability. barrels of cargo to be loaded in excess of half the rate stipulated herein per running (g) Notice of Readiness shall be tendered 500,000 barrels. Vessel laytime shall hour and pro rata of such reduced rate for upon arrival at berth or at customary commence when the vessel is moored part of an hour for demurrage so incurred. anchorage which is deemed to be any alongside (all fast) the loading berth or 6 Demurrage payable by DOE, however, shall anchorage within 6 hours vessel time to the hours after receipt of a Notice of Readiness, in no event exceed the actual demurrage SPR dock. The preferred anchorages are whichever occurs first. It shall continue 24 expense incurred by the purchaser as the identified in Exhibit B. The Notice of hours per day, seven days per week without result of the delay. Readiness shall be confirmed promptly in interruption from its commencement until (d) In the event the purchaser is using more writing to the SPR/PMO and the terminal loading of the vessel is completed and cargo than one vessel to load the contract quantity responsible for coordination of crude oil hoses or loading arms are disconnected. Any scheduled to be delivered during a single delay to the vessel in reaching berth caused loading operations. Such notice shall be loading window, the terms of this provision by the fault or negligence of the vessel or effective only if given during customary port and the Government’s liability for demurrage purchaser, delay due to breakdown or operating hours. If notice is given after apply only to the first vessel presenting its inability of the vessel’s facilities to load, customary business hours of the port, it shall Notice of Readiness in accordance with (a) of decisions made by vessel owners or operators be effective as of the beginning of customary this provision. or by port authorities affecting loading business hours on the next business day. (e) The primary source document and operations, discharge of ballast or slops, (h) DOE shall use its best efforts to berth official record for demurrage calculations is customs and immigration clearance, weather, the purchaser’s vessel as soon as possible the SPRCODR (see Provision C.19). labor disputes, force majeure and the like after receipt of the Notice of Readiness. shall not count as used laytime. In addition, C.10 Vessel Loading Expedition Options (i) Standard hose and fittings (American movement in roads shall not count as used (a) Notwithstanding Provision C.8(j)(1), in Standard Association standard connections) laytime. order to avoid disruption in the SPR for loading shall be provided by DOE. (b) If the vessel is tendered for loading on distribution process, the Government may Purchasers must arrange for line handling, a date earlier than the firm agreed-upon limit berthing time for any vessel receiving deballasting, tug boat and pilot services, both arrival date, established in accordance with SPR petroleum to that period required for for arrival and departure, through the Provision C.8, and other vessels are loading loading operations and the physical berthing/ terminal or ship’s agent, and bear all costs or have already been scheduled for loading unberthing of the vessel. At the direction of associated with such services. prior to the purchaser’s vessel, the the Government, activities not associated (j) Tankships, ITBs, and self-propelled purchaser’s vessel shall await its turn and with the physical loading of the vessel (e.g., barges shall be allowed berth time of 36 vessel laytime shall not commence until the preparing documentation, gauging, sampling, hours. Barges shall be allowed berth time of vessel moors alongside (all fast), or at 0600 etc.) may be required to be accomplished three (3) hours plus the quotient determined hours local time on the firm agreed-upon away from the berth. Time consumed by by dividing the cargo size (gross standard date of arrival, whichever occurs first. If the these activities will not be for the volume barrels) by four thousand (4,000). vessel is tendered for loading later than 2400 Government’s account. If berthing time is to Vessels loading cargo quantities in excess of hours on the firm agreed-upon date of arrival, be restricted, the Government will so advise 500,000 barrels shall be allowed berth time DOE will use its best efforts to have the the vessel prior to berthing of the vessel. of 36 hours plus 1 hour for each 20,000 vessel loaded as soon as possible in its (b) In addition to paragraph (a) of this barrels to be loaded in excess of 500,000 proper turn with other scheduled vessels, provision, the Government may limit vessels barrels. Conditions of this provision under the circumstances prevailing at the calling at SPR terminals to a total of 24 hours excepted, however, the vessel shall not time. In such instances, vessel laytime shall for petroleum transfer operations. In such an remain at berth more than 6 hours after commence when the vessel moors alongside event, the loading will be considered completion of cargo loading unless hampered (all fast). completed if the vessel has loaded 95 percent by tide or weather. (c) For all hours or any part thereof of or more of the nominated quantity within a (1) Berth time shall commence with the vessel laytime that elapse in excess of the total of 24 hours. If the vessel has loaded less vessel’s first line ashore and shall continue allowed vessel laytime for loading provided than 95 percent of its nominated quantity, until loading of the vessel, or vessels in case for in this provision, demurrage shall be paid then Provision C.11 shall apply. more than one vessel is loaded, is completed by DOE, for U.S.-flag vessels, at the lesser of C.11 Purchaser Liability for Excessive Berth and the last line is off. In addition, allowable the demurrage rate in the tanker voyage or Time berth time will be increased by the amount charter party agreement, or the most recently of any delay occurring subsequent to the available United States Freight Rate Average The Government reserves the right to direct commencement of berth time and resulting (USFRA) for a hypothetical tanker with a a vessel loading SPR petroleum at a delivery from causes due to adverse weather, labor deadweight in long tons equal to the weight point specified in the NS, to vacate its SPR disputes, force majeure and the like, in long tons of the petroleum loaded, berth, and absorb all costs associated with decisions made by port authorities affecting multiplied by the most recent edition of the this movement, should such vessel, through loading operations, actions of DOE, its American Tanker Rate Schedule rate for such its operational inability to receive oil at the contractors and agents resulting in delay of hypothetical tanker and voyage. For foreign average rates provided for in Provision C.8, loading operations (providing this action flag vessels, demurrage shall be as cause the berth to be unavailable for an does not arise through the fault of the determined in this provision, except that the already scheduled follow-on vessel. purchaser or purchaser’s agent), and customs London Tanker Brokers’ Panel Average Furthermore, should a breakdown of the and immigration clearance. The time Freight Rate Assessment (AFRA) and most vessel’s propulsion system prevent its getting required by the vessel to discharge oily recent edition of the New Worldwide Tanker under way on its own power, the
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Government may cause the vessel to be crude oil stream, or 0.50 percent if a sweet Measurement Standards, Chapter 8.1, Manual removed from the berth with all costs to be crude oil stream, and, in addition, has an API Sampling of Petroleum and Petroleum borne by the purchaser. gravity less than 28°API if a sour crude oil Products (ASTM D4057), latest edition; or ° C.12 Pipeline Delivery Procedures stream, or 32 API if a sweet crude oil stream, from a representative sample collected by an the purchaser shall accept the crude oil automatic sampler whose performance has (a) The purchaser shall nominate his delivered and either pay the contract price been proven in accordance with the API delivery requirements to the pipeline carrier, adjusted in accordance with Provision C.16, Manual of Petroleum Measurement to include the total quantity to be moved and or request negotiation of the contract price. Standards, Chapter 8.2, Automatic Sampling his preferred five-day shipment range(s) as Unless the purchaser submits a written of Petroleum and Petroleum Products (ASTM specified in C.5. The purchaser shall provide request for negotiation of the contract price D4177), latest edition. Preference will be confirmation of the carrier’s acceptance of to the Contracting Officer within 10 days given to samples collected by means of an the nominated quantity (in thousands of from the date of invoice, the purchaser shall automatic sampler when such a system is barrels per day) and shipment ranges to the be deemed to have accepted the adjustment available and operational. Tests to be SPR/PMO no later than the last day of the of the price in accordance with Provision performed by DOE or its authorized month preceding the month of delivery. The C.16. Should the purchaser request a contractor are: purchaser shall also furnish the SPR/PMO negotiation of the price and the parties be (1) Sediment and Water with the name, telephone number, and e-mail unable to agree as to that price, the dispute address of the pipeline point of contact with shall be settled in accordance with Provision Primary methods: API Manual of whom the SPR/PMO should coordinate the C.32. Petroleum Measurement Standards, Chapter delivery. 10.1, Determination of Sediment in Crude (b) The SPR/PMO will ensure oil is made C.15 Delivery Acceptance and Verification Oils and Fuel Oils by the Extraction Method available to the carrier within the shipment (a) The purchaser shall provide written (ASTM D473) (IP53), latest edition; or API date range(s) established in accordance with confirmation to SPR/PMO, no later than 72 Manual of Petroleum Measurement Provision C.5. Once established, the pipeline hours prior to the scheduled date of the first Standards, Chapter 10.8, Sediment in Crude delivery schedule can only be changed with delivery under the contract, the name(s) of Oil by Membrane Filtration (ASTM D4807), SPR/PMO’s prior written consent. Should the the authorized agent(s) given signature latest edition; and API Manual of Petroleum schedule established in accordance with (a) authority to sign/endorse the delivery Measurement Standards, Chapter 10.2, of this provision vary from the original documentation (CODR, etc.) on the Determination of Water in Crude Oil by schedule established in accordance with purchaser’s behalf. Any changes to this Distillation (ASTM D4006) (IP358), latest Provision C.5, the Government will provide listing of names must be provided to the edition; or API Manual of Petroleum its best efforts to accommodate this revised SPR/PMO in writing no later than 72 hours Measurement Standards, Chapter 10.9, Water schedule but will incur no liability for failure before the first delivery to which such change in Crude Oil by Coulometric Karl Fischer to provide delivery on the dates requested. applies. In the event that an independent Titration (ASTM D4928) (IP 386), latest (c) Three days prior to the beginning of any surveyor (separate from the authorized edition. five-day shipping range in which the signatory agent) is appointed by the Alternate methods: API Manual of purchaser is to receive delivery, the purchaser to witness the delivery operation Petroleum Measurement Standards, Chapter purchaser shall furnish the SPR/PMO the (gauging, sampling, testing, etc.), written 10.3, Determination of Water and Sediment firm date within that range on which the notification must be provided to SPR/PMO, in Crude Oil by the Centrifuge Method movement is to commence, the quantity to be no later than 72 hours prior to the scheduled (Laboratory Procedure) (ASTM D4007) (IP moved, and the contract number. date of each applicable cargo delivery. 359), latest edition. (d) The date of delivery, which will be (b) Absence of the provision of the name(s) (2) Sulfur recorded on the CODR (see Provision C.19), of bona fide agent(s) and the signature of is the date delivery commenced to the such agent on the delivery documentation Primary method: ASTM D4294, Sulfur in custody transfer point, as identified in the constitutes acceptance of the delivery Petroleum Products by Energy-Dispersive X- NS. quantity and quality as determined by DOE ray Fluorescence Spectrometry, latest (e) The purchaser shall receive pipeline and/or its agents. edition. deliveries at a minimum average rate of Alternate method: ASTM D2622, Sulfur in C.16 Price Adjustments for Quality Petroleum Products by Wavelength 100,000 barrels per day. The purchaser is Differentials solely responsible for making the necessary Dispersive X-ray Fluorescence Spectrometry. arrangements with pipeline carriers, (a) The NS will specify quality price (3) API Gravity adjustments applicable to the crude oil including storage, to achieve the stated Primary methods: API Manual of minimum. streams offered for sale. Unless otherwise specified by the NS, quality price Petroleum Measurement Standards, Chapter C.13 Title and Risk of Loss adjustments will be applied only to the 9.1, Density, Relative Density (Specific Unless otherwise provided in the NS, title amount of variation by which the API gravity Gravity), or API Gravity of Crude Petroleum to and risk of loss for SPR petroleum will of the crude oil delivered differs by more and Liquid Petroleum Products by pass to the purchaser at the delivery point as than plus or minus five-tenths of one degree Hydrometer Method (ASTM D1298) (IP 160), follows: API (+/-0.5°API) from the API gravity of the latest edition; or Density and Relative (a) For vessel shipment—when the crude oil stream contracted for as published Density of Crude Oils by Digital Density petroleum passes from the dock loading in the NS. Analyzer (ASTM D5002), latest edition. equipment connections to the vessel’s (b) Price adjustments for SPR crude oil are Alternate method: API Gravity of Crude permanent hose connection. expected to be similar to one or more Petroleum and Petroleum Products (b) For pipeline shipment—as identified in commercial crude oil postings for equivalent (Hydrometer Method) (ASTM D287), latest the NS. quality crude oil. The contract price per edition. To the maximum extent practicable, the C.14 Acceptance of Crude Oil barrel shall be increased by that amount if the API gravity of the crude oil delivered primary methods will be used for (a) When practical, the NS shall update the exceeds the published API gravity by more determination of SPR crude oil quality SPR crude oil stream characteristics shown than 0.5°API and decreased by that amount characteristics. However, because of in Exhibit A, SPR Crude Oil Comprehensive if the API gravity of the crude oil delivered conditions prevailing at the time of delivery, Analysis. However, the purchaser shall falls below the published API gravity by it may be necessary to use alternate methods accept the crude oil delivered regardless of more than 0.5°API. of test for one or more of the quality characteristics. Except as provided in this characteristics. The Government’s test results provision, DOE assumes no responsibility for C.17 Determination of Quality will be binding in any dispute over quality deviations in quality. (a) The quality of the crude oil delivered characteristics of SPR petroleum. (b) In the event that the crude oil stream to the purchaser will be determined from (b) The purchaser or his representative may delivered both has a total sulfur content (by samples taken from the delivery tanks in arrange to witness and verify testing weight) in excess of 2.0 percent if a sour accordance with API Manual of Petroleum simultaneously with the U.S. government
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representative. Such services, however, will unit price is subject to adjustment due to being notified by the Contracting Officer by be for the account of the purchaser. Any variation in the API gravity from the express mail or electronic means. The disputes will be settled in accordance with published characteristics, changes in delivery purchaser is deemed to have received such Provision C.32. Should the purchaser opt not mode and price index values, if applicable. notification the next business day after its to witness the testing, then the Government In addition, due to conditions of vessel dispatch. If such modification is not made findings will be binding on the purchaser. loading and shipping or pipeline within two days after purchaser is deemed to C.18 Determination of Quantity transmission, the quantity actually delivered have received the notice, the Contracting may vary by +/¥10 percent for each Officer may, on the 3rd business day, without (a) The quantity of crude oil delivered to shipment. However, a purchaser is not prior notice to the purchaser, withhold the purchaser will be determined by opening required to engage additional transportation deliveries in whole or in part under the and closing tank gauges with adjustment for capacity if sufficient capacity to take delivery contract and/or terminate the contract in opening and closing free water and sediment of at least 90 percent of the contract quantity whole or in part under Provision C.25. and water as determined from shore tank has been engaged. (e) Within 30 calendar days after final samples where an automatic sampler is not payment under the contract, the Contracting available, or delivery meter reports. All C.21 Payment and Performance Letter of Officer shall authorize the cancellation of the volumetric measurements will be corrected Credit letter of credit and shall return it to the bank to net standard volume in barrels at 60 °F, (a) Within five business days of receipt of or financial institution issuing the letter of using the API Manual of Petroleum notification of Apparently Successful Offeror, credit. A copy of the notice of cancellation Measurement Standards, Chapter 11.1, the Purchaser must provide to the will be provided to the purchaser. Volume 1, Volume Correction Factors (ASTM Contracting Officer an ‘‘Irrevocable Standby D1250) (IP 200); Table 5A—Generalized Letter of Credit’’ established in favor of the C.22 Billing and Payment Crude Oils, Correction of Observed API United States Department of Energy equal to (a) The Government will invoice the ° Gravity to API Gravity at 60 F; Table 6A— 100 percent of the contract awarded value Purchaser at the conclusion of each delivery. Generalized Crude Oils, Correction of and containing the substantive provisions set (b) Payment is due in full on the 20th of ° ° Volume to 60 F Against API Gravity at 60 F, out in Exhibit D. The purchaser must furnish the month following each delivery month. latest edition, and by deducting the tanks’ an acceptable letter of credit before DOE will Should the 20th of the month fall on a free water, and the entrained sediment and execute the NA. The letter of credit MUST Saturday, Sunday, or Federal holiday, water as determined by the testing of NOT VARY IN SUBSTANCE from the sample payment will be due and payable in full on composite all-levels samples taken from the at Exhibit D. If the letter of credit contains the last business day preceding the 20th of delivery tanks; or by deducting the sediment any provisions at variance with Exhibit D or the month. and water as determined by testing a fails to include any provisions contained in (c) If an invoice is not paid in full, the representative portion of the sample Exhibit D, nonconforming provisions must be Government may provide the Purchaser oral collected by a certified automatic sampler, deleted and missing substantive provisions or written notification that Purchaser is and also corrected by the applicable pressure must be added or the letter of credit will not delinquent in its payments; draw against the correction factor and meter factor. be accepted. The letter of credit must be letter of credit for all quantities for which (b) The quantity measurements shall be effective on or before the first delivery under unpaid invoices are outstanding; withhold all performed and certified by the DOE the contract and remain in effect for a period or any part of future deliveries under the contractor responsible for delivery of 120 days, must permit multiple partial contract; and/or terminate the contract, in operations, and witnessed by the U.S. drawings, and must contain the contract whole or in part, in accordance with government representative at the delivery number. The original of the letter of credit Provision C.25. point. The purchaser shall have the right to must be sent to the Contracting Officer. (d) In the event that the bank refuses to have representatives present at the gauging/ (b) The letter of credit must be issued by honor the draft against the letter of credit, the metering, sampling, and testing. Should the a depository institution located in and purchaser shall be responsible for paying the purchaser arrange for additional inspection authorized to do business in any state of the principal and any interest due (see Provision services, such services will be for the account United States or the District of Columbia, and C.24) from the due date. of the purchaser. Any disputes shall be authorized to issue letters of credit by the C.23 Method of Payments settled in accordance with Provision C.32. banking laws of the United States or any state Should the purchaser not arrange for of the United States or the District of (a) All amounts payable by the purchaser additional services, then DOE’s quantity Columbia. The depository institution must be shall be paid by either: determination shall be binding on the an account holder with the Federal Reserve (1) Deposit to the account of the U.S. purchaser. Banking system and a participant (on-line) in Treasury by wire transfer of funds over the C.19 Delivery Documentation the Fed’s Fedwire Deposit System Network Fedwire Deposit System Network. The funds transfer system. The issuing bank must information to be included in each wire The quantity and quality determination transfer will be provided in the NS. shall be documented on the SPR/PMO Crude provide documentation indicating that the person signing the letter of credit is (2) Electronic funds transfer through the Oil Delivery Report (SPRCODR), SPRPMO– Automated Clearing House (ACH) network, F–6110.2–14b (Rev 8/91) (see Exhibit E for authorized to do so, in the form of corporate using the Federal Remittance Express copy of this form). The SPRCODR will be minutes, the Authorized Signature List, or Program. The information to be included in signed by the purchaser’s agent to the General Resolution of Signature each transfer will be provided in the NS. acknowledge receipt of the quantity and Authority. All wire deposit electronic funds transfer quality of crude oil indicated. In addition, for (c) All letter of credit costs will be borne costs will be borne by the purchaser. vessel deliveries, the time statement on the by the purchaser. (b) If the purchaser disagrees with the SPRCODR will be signed by the vessel’s (d) The letter of credit must be maintained amounts invoiced by the Government, the Master when loading is complete. Copies of at 100 percent of the contract value of the purchaser shall immediately pay the amount the completed SPRCODR, with applicable petroleum remaining to be delivered as well invoiced, and notify the Contracting Officer supporting documentation (i.e., metering or as delivered quantities for which payment tank gauging tickets and appropriate has not been remitted, plus any other charges of the basis for its disagreement. The calculation worksheets), will be furnished to owed to the Government under the contract. Contracting Officer will receive and act upon the purchaser and/or the purchaser’s In the event the letter of credit falls below the any such objection. Failure to agree to any authorized representative after completion of level specified, or at the discretion of the adjustment shall be a dispute, and a delivery. They will serve as the basis for Contracting Officer must be increased purchaser shall file a claim promptly in invoicing and/or reconciliation invoicing for because of the effect of the price indexing accordance with Provision C.32. the sale of petroleum as well as for any mechanism provided for in Provision B.2, (c) DOE may designate another place, associated services that may be provided. DOE reserves the right to demand the different timing, or another method of purchaser modify the letter of credit to a payment after reasonable written notice to C.20 Contract Amounts level deemed sufficient by the Contracting the purchaser. The contract quantities and dollar value Officer. The purchaser shall make such (d) Notwithstanding any other contract stated in the NA are estimates. The per barrel modification within two business days of provision, DOE may via a draft message
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request a wire transfer of funds against the terminate the contract in whole or in part for failure to perform was excused in accordance standby letter of credit at any time for purchaser default, without liability of DOE, with paragraphs (2) and (3), the rights and payment of monies due under the contract by written notice to the purchaser, effective obligations of the parties shall be the same and remaining unpaid in violation of the upon its being deposited in the U.S. Postal as if such termination was a termination for terms of the contract. These would include System, addressed to the purchaser as convenience without liability of the but not be limited to interest, liquidated provided in Provision C.31 in the event that: Government under paragraph (c). damages, demurrage, amounts owing for any (i) The Government does not receive (c) Termination for convenience. services provided under the contract, and the payment in accordance with any payment (1) In addition to any other right or remedy difference between the contract price and provision of the contract; provided for in the contract, the Government price received on the resale of undelivered (ii) The purchaser fails to accept delivery may terminate this contract at any time in petroleum as defined in Provision C.25. If the of petroleum in accordance with the terms of whole or in part whenever the Contracting invoice is for delinquent payments, interest the contract; or Officer shall determine that such termination shall accrue from the payment due date. (iii) The purchaser fails to comply with any is in the best interest of the Government. (e) No payment due DOE hereunder shall other term or condition of the contract within Such termination shall be without liability of be subject to reduction or set-off for any 5 business days after the purchaser is deemed the Government if such termination arises claim of any kind against the United States to have received written notice of such out of causes specified in paragraphs (a)(1) or arising independently of the contract. failure from the Contracting Officer. (b)(1) of this provision, acts of the C.24 Interest (2) Except with respect to defaults of Government in its sovereign capacity, or subcontractors, the purchaser shall not be causes beyond the control and without the (a) Amounts due and payable by the determined to be in default or be charged fault or negligence of the Government, its purchaser or its bank that are not paid in with any liability to DOE under contractors (other than the purchaser of SPR accordance with the provisions governing such payments shall bear interest from the circumstances which prevent the purchaser’s crude oil under this contract) and agents. For date due until the date payment is received acceptance of delivery hereunder due to any other termination for convenience, the by the Government. causes beyond the control and without the Government shall be liable for such (b) Interest shall be computed on a daily fault or negligence of the purchaser as reasonable costs incurred by the purchaser in basis. The interest rate shall be in accordance determined by the Contracting Officer. Such preparing to perform the contract, but under with the Current Value of Funds rate as causes shall include but are not limited to: no circumstances shall the Government be established by the Department of the (i) Acts of God or the public enemy; liable for consequential damages or lost Treasury in accordance with the Debt (ii) Acts of the Government acting in its profits as the result of such termination. Collection Improvement Act of 1997 and sovereign or contractual capacity; (2) The purchaser will be given immediate published periodically in Bulletins to the (iii) Fires, floods, earthquakes, explosions, written notice of any decrease of petroleum Treasury Fiscal Requirements Manual and in unusually severe weather, or other deliveries greater than 10 percent, or of the Federal Register. catastrophes; or termination, under this paragraph (c). The (iv) Strikes. termination or reduction shall be effective C.25 Termination (3) If the failure to perform is caused by the upon its notice being deposited in the U.S. (a) Immediate termination. default of a subcontractor, the purchaser Postal System unless otherwise specified in (1) The Contracting Officer may terminate shall not be determined to be in default or the notice. The purchaser is deemed to have this contract in whole or in part, without to be liable for any excess costs for failure to received a mailed notice on the second day liability of DOE, by written notice to the perform, unless the supplies or services to be after its dispatch and an electronic or express purchaser effective upon its being deposited furnished by the subcontractor were mail notice on the day after dispatch. in the U.S. Postal System addressed to the obtainable from other sources in sufficient (3) Termination for the convenience of the purchaser as provided in Provision C.31 in time to permit the purchaser to meet the Government shall not excuse the purchaser the event that the purchaser either notifies delivery schedule, if: from liquidated damages accruing prior to the Contracting Officer that it will not be able (i) Such default arises out of causes beyond the effective date of the termination. to accept, or fails to accept, any delivery line the control of the purchaser and its (d) Nothing herein contained shall limit item in accordance with the terms of the subcontractor, and without the fault or the Government in the enforcement of any contract. Such notice shall invite the negligence of either of them; or legal or equitable remedy that it might purchaser to submit information to the (ii) Such default arises out of causes within otherwise have, and a waiver of any Contracting Officer as to the reasons for the the control of a transportation subcontractor, particular cause for termination shall not failure to accept the delivery line item in not an affiliate of the purchaser, hired to prevent termination for the same cause accordance with the terms of the contract. transport the purchaser’s petroleum by vessel occurring at any other time or for any other (2) Within 10 business days after the issuance of the notice of termination, the or pipeline, and such causes are beyond the cause. Contracting Officer may determine that such purchaser’s control, without the fault or (e) In the event that the Government termination was a termination for default negligence of the purchaser, and exercises its right of termination, as provided under paragraph (b)(1)(ii) of this provision. In notwithstanding the best efforts of the in paragraphs (a), (b), or (c)(1) of this the absence of information which persuades purchaser to avoid default. provision, the Contracting Officer may sell the Contracting Officer that the purchaser’s (4) In the event that the contract is any undelivered petroleum under such terms failure to accept the delivery line item was terminated in whole or in part for default, the and conditions as he deems appropriate. excusable, the fact of such failure may be the purchaser shall be liable to DOE for: (f) DOE’s ability to deliver petroleum on basis for the Contracting Officer determining (i) The difference between the contract the date on which the defaulted purchaser the purchaser to be in default, without first price on the contract termination date and was scheduled to accept delivery, under determining under paragraphs (b)(2) and any lesser price the Contracting Officer another contract awarded prior to the date of (b)(3) whether such failure was excusable obtained upon resale of the petroleum; and the contractor’s default, shall not excuse a under the terms of the contract. The (ii) Liquidated damages as specified in purchaser that has been terminated for Contracting Officer shall promptly give the Provision C.27 as fixed, agreed, liquidated default from either liquidated damages or the purchaser written notice of such damages for each day of delay until the difference between the contract price and any determination. petroleum is delivered to a purchaser under lesser price obtained on resale. (3) Any immediate termination other than either a resolicitation for the sale of the (g) Any disagreement with respect to the one determined to be a termination for quantities of oil defaulted on, or an NS amount due the Government for either resale default in accordance with paragraph (a)(2) issued after the date of default that specifies costs or liquidated damages shall be deemed and paragraph (b) of this provision shall be that it is for the sale of quantities of oil to be a dispute and will be decided by the a termination for the convenience of DOE defaulted on. In no event shall liquidated Contracting Officer pursuant to Provision without liability of the Government. damages be assessed for more than 30 days. C.32. (b) Termination for Default. (5) In the event that the Government (h) The term ‘‘subcontractor’’ or (1) Subject to the provisions of paragraphs exercises its right of termination for default, ‘‘subcontractors’’ includes subcontractors at (b)(2) and (b)(3), the Contracting Officer may and it is later determined that the purchaser’s any tier.
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C.26 Other Government Remedies C.28 Failure To Perform Under SPR Department of Energy, Strategic Petroleum (a) The Government’s rights under this Contracts Reserve, Project Management Office, provision are in addition to any other right In addition to the usual debarment Acquisition and Sales Division, Mail Stop or remedy available to it by law or by virtue procedures, 10 CFR 625.3 provides FE–4451, 900 Commerce Road East, New of this contract. procedures to make purchasers that fail to Orleans, Louisiana 70123. (b) The Government may, without liability perform in accordance with these provisions C.32 Disputes ineligible for future SPR contracts. on its part, withhold deliveries of petroleum (a) This contract is subject to the Contract under this contract or any other contract the C.29 Government Options in Case of Disputes Act of 1978 (41 U.S.C. 601 et seq.). purchaser may have with DOE if payment is Impossibility of Performance If a dispute arises relating to the contract, the not made in accordance with this contract. (a) In the event that DOE is unable to purchaser may submit a claim to the (c) If the purchaser fails to take delivery of deliver petroleum contracted for to the Contracting Officer, who shall issue a written petroleum in accordance with the delivery purchaser due either to events beyond the decision on the dispute in the manner schedule developed under the terms of the control of the Government, including actions specified in 48 CFR 1–33.211. contract, and such tardiness is not excused of the purchaser, or to acts of the (b) ‘‘Claim’’ means: under the terms of Provision C.25, but the Government, its agents, its contractors or (1) A written request submitted to the Government does not elect to terminate that subcontractors at any tier, the Government at Contracting Officer; item for default, the purchaser nonetheless its option may do either of the following: (2) For payment of money, adjustment of shall be liable to the Government for (1) Terminate for the convenience of the contract terms, or other relief; liquidated damages in the amount Government under Provision C.25; or (3) Which is in dispute or remains established by Provision C.27 for each (2) Offer different SPR crude oil streams or unresolved after a reasonable time for its calendar day of delay or fraction thereof until delivery times to the purchaser in review and disposition by the Government; such time as it accepts delivery of the substitution for those specified in the petroleum. In no event shall such damages be contract. and assessed for longer than 30 days. No (b) In the event that a different SPR crude (4) For which a Contracting Officer’s purchaser that fails to perform in accordance oil stream than originally contracted for is decision is demanded. with the terms of the contract shall be offered to the purchaser, the contract price (c) In the case of dispute requests or excused from liability for liquidated damages will be negotiated between the parties. In no amendments to such requests for payment by virtue of the fact that DOE is able to event shall the negotiated price be less than exceeding $50,000, the purchaser shall deliver petroleum on the date on which the the minimum acceptable price established for certify at the time of submission as a claim, non-performing purchaser was scheduled to the same or similar crude oil streams at the as follows: accept delivery, under another contract time of contract award. I certify that the claim is made in good awarded prior to the date of default. (c) DOE’s obligation in such circumstances faith, that the supporting data are current, is to use its best efforts, and DOE under no C.27 Liquidated Damages accurate and complete to the best of my circumstances shall be liable to the purchaser knowledge and belief and that the amount (a) In case of failure on the part of the for damages arising from DOE’s failure to requested accurately reflects the contract purchaser to perform within the time fixed in offer alternate SPR crude oil streams or adjustment for which the purchaser believes the contract or any extension thereof, the delivery times. the Government is liable. purchaser shall pay to the Government (d) If the parties are unable to reach Purchaser’s Name liquidated damages in the amount of 1 agreement as to price, crude oil streams or Signature percent of the contract price of the delivery times, DOE may terminate the Title undelivered petroleum per calendar day of contract for the convenience of the delay or fraction thereof in accordance with Government under Provision C.25. (d) The Government shall pay to the Provision C.25(b) and Provision C.26(c). C.30 Limitation of Government liability purchaser interest on the amount found due to the purchaser on claims submitted under (b) As provided in (a) of this provision, DOE’s obligation under these SSPs and any this provision at the rate established by the liquidated damages will be assessed for each resultant contract is to use its best efforts to day or fraction thereof a purchaser is late in perform in accordance therewith. The Department of the Treasury from the date the accepting delivery of petroleum in Government under no circumstances shall be amount is due until the Government makes accordance with this contract, unless such liable thereunder to the purchaser for the payment. The Contract Disputes Act of 1978 tardiness is excused under Provision C.25. conduct of the Government’s contractors or and the Prompt Payment Act adopt the For petroleum to be lifted by vessel, damages subcontractors or for indirect, consequential, interest rate established by the Secretary of will be assessed in the event that the vessel or special damages arising from its conduct, the Treasury under the Renegotiation Act as has not commenced loading by 11:59 p.m. on except as provided herein; neither shall the the basis for computing interest on money the second day following the last day of the Government be liable thereunder to the owed by the Government. This rate is 3-day delivery window established under purchaser for any damages due in whole or published semi-annually in the Federal Provision C.5, unless the vessel has arrived in part to causes beyond the control and Register. in roads and its Master has presented a notice without the fault or negligence of the (e) The purchaser shall pay to DOE interest of readiness to the Government or its agents. Government, including but not restricted to, on the amount found due to the Government Liquidated damages shall continue until the acts of God or public enemy, acts of the and unpaid on claims submitted under this vessel presents its notice of readiness. For Government acting in its sovereign capacity, provision at the rate specified in Provision petroleum to be moved by pipeline, if fires, floods, earthquakes, explosions, C.24 from the date the amount is due until delivery arrangements have not been made unusually severe weather, other catastrophes, the purchaser makes payment. by the last day of the month prior to delivery, or strikes. (f) The decision of the Contracting Officer liquidated damages shall commence on the C.31 Notices shall be final and conclusive and shall not be 3rd day of the delivery month until such (a) Any notices required to be given by one subject to review by any forum, tribunal, or delivery arrangements are completed; if party to the contract to the other in writing Government agency unless an appeal or delivery arrangements have been made, then shall be forwarded to the addressee, prepaid, action is commenced within the times liquidated damages shall begin on the 3rd by U.S. registered, return receipt requested specified by the Contract Disputes Act of day after the scheduled delivery date if mail, express mail, or electronic means as l978. delivery is not commenced and shall provided in the NS. Parties shall give each (g) The purchaser shall comply with any continue until delivery is commenced. other written notice of address changes. decision of the Contracting Officer and at the (c) Any disagreement with respect to the (b) Notices to the purchaser shall be direction of the Contracting Officer shall amount of liquidated damages due the forwarded to the purchaser’s address as it proceed diligently with performance of this Government will be deemed to be a dispute appears in the offer and in the contract. contract pending final resolution of any and will be decided by the Contracting (c) Notices to the Contracting Officer shall request for relief, claim, appeal, or action Officer pursuant to Provision C.32. be forwarded to the following address: U.S. related to this contract.
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C.33 Assignment C—Offer Standby Letter of Credit MAXIMUM AIR DRAFT: None. The purchaser shall not make or attempt to D—Payment and Performance Letter of Credit MAXIMUM DEADWEIGHT TONS (DWT): make any assignment of a contract that E—Strategic Petroleum Reserve Crude Oil 150,000 DWT each. Terminal permission is incorporates these SSPs or any interest Delivery Report—SPRPMO–F–6110.2– required for less than 30,000 DWT or greater therein contrary to the provisions of Federal 14b 1/87 REV. 8/91 than 150,000 DWT. Vessels larger than 120,000 DWT are restricted to daylight law, including the Anti-Assignment Act (4l EXHIBIT B—SPR DELIVERY POINT DATA U.S.C. 15), which provides: transit. Purchasers are cautioned that varying No contract or order, or any interest SEAWAY FREEPORT TERMINAL harbor and channel physical constraints are therein, shall be transferred by the party to (Formerly Phillips Terminal) the controlling factors as to vessel size, and whom such contract or order is given to any they are responsible for confirming that LOCATION: Brazoria County, Texas (three other party, and any such transfer shall cause proposed vessels can be accommodated. miles southwest of Freeport, Texas on the the annulment of the contract or order BARGE LOADING CAPABILITY: None. Old Brazos River, four miles from the sea transferred, so far as the United States is OILY WASTE RECEPTION FACILITIES: buoy) concerned. All rights of action, however, for Facilities are available for oily bilge water CRUDE OIL STREAMS: Bryan Mound any breach of such contract by the and sludge wastes. Purchasers are Sweet and Bryan Mound Sour. contracting parties, are reserved to the United responsible for making arrangements with DELIVERY POINTS: Seaway Terminal States. marine dock facility number 2. the terminal and for bearing all costs C.34 Order of Precedence MARINE DOCK FACILITIES AND VESSEL associated with such arrangements. RESTRICTIONS: CUSTOMARY ANCHORAGE: Bolivar In the event of an inconsistency between Roads (breakwater) or Galveston sea-buoy. the terms of the various parts of this contract, TANKSHIP DOCKS: 2 Docks: Nos. 2 and 3. the inconsistency shall be resolved by giving MAXIMUM LENGTH SUNOCO LOGISTICS TERMINAL precedence in the following order: OVERALL (LOA): Docks 2 and 3—820 feet LOCATION: Nederland, Texas (on the (a) The NA and written modifications (up to 900 feet with pilot approval) during Neches River at Smiths Bluff in southwest thereto; daylight and 615 feet during hours of Texas, 47.6 nautical miles from the bar). (b) The NS; darkness. CRUDE OIL STREAMS: West Hackberry (c) Those provisions of the SSPs made MAXIMUM BEAM: Docks 2 and 3—145 Sweet and West Hackberry Sour. applicable to the contract by the NS; feet. DELIVERY POINTS: Sun Terminal marine (d) Instructions provided in the Crude Oil MAXIMUM DRAFT: Docks 2 and 3—42 feet dock facility and Sun Terminal connections Sales Offer Program; and salt water; subject to change due to weather to local commercial pipelines. (e) The successful offer. and silting conditions. MARINE DOCK FACILITIES AND VESSEL C.35 Gratuities MAXIMUM AIR DRAFT: None. RESTRICTIONS: (a) The Government, by written notice to MAXIMUM DEADWEIGHT TONS (DWT): TANKSHIP DOCKS: 5 Docks: Nos. 1, 2, 3, the purchaser, may terminate the right of the Dock Nos. 2 and 3 can accommodate up to 4 and 5. purchaser to proceed under this contract if it 120,000 DWT if they meet other port MAXIMUM LENGTH is found, after notice and hearing, by the restrictions. Maximum DWT is theoretical Secretary of Energy or his duly authorized berth handling capability; however, OVERALL (LOA): 1000 feet. representative, that gratuities (in the form of purchasers are cautioned that varying harbor MAXIMUM BEAM: 150 feet. entertainment, gifts, or otherwise) were and channel physical constraints are the MAXIMUM DRAFT: 40 feet fresh water. offered by or given by the purchaser, or any controlling factors as to vessel size, and they MAXIMUM AIR DRAFT: 136 feet. agent or representative of the purchaser, to are responsible for confirming that proposed MAXIMUM DEADWEIGHT TONS (DWT): any officer or employee of the Government vessels can be accommodated. Maximum DWT at Dock No. 1 is 85,000 with a view toward securing a contract or BARGE LOADING CAPABILITY: None. DWT. Dock Nos. 2, 3, 4 and 5 can securing favorable treatment with respect to OILY WASTE RECEPTION FACILITIES: accommodate up to 150,000 DWT. Vessels the awarding, amending, or making of any Facilities are available for oily bilge water larger than 85,000 DWT, 875 feet LOA, or 125 determinations with respect to the and sludge wastes. Purchasers are feet beam are restricted to daylight transit. performing of such contract; provided, that responsible for making arrangements with Maximum DWT is theoretical berth handling the existence of the facts upon which the the terminal and for bearing costs associated capability; however, purchasers are Secretary of Energy or his duly authorized with such arrangements. cautioned that varying harbor and channel representative makes such findings shall be CUSTOMARY ANCHORAGE: Freeport physical constraints are the controlling in issue and may be reviewed in any Harbor sea-buoy approximately 4.5 miles factors as to vessel size, and they are competent court. from the terminal. responsible for confirming that proposed (b) In the event that this contract is vessels can be accommodated. terminated as provided in paragraph (a) SEAWAY TEXAS CITY TERMINAL BARGE LOADING CAPABILITY: 3 Barge hereof, the Government shall be entitled (1) (Formerly ARCO Texas City) Docks: A, B and C. Each is capable of to pursue the same remedies against the LOCATION: Docks 11 and 12, Texas City handling barges up to 25,000 barrels purchaser as it could pursue in the event of Harbor, Galveston County, Texas. capacity. a breach of the contract by purchaser, and (2) CRUDE OIL STREAMS: Bryan Mound OILY WASTE RECEPTION FACILITIES: as a penalty in addition to any other damages Sweet and Bryan Mound Sour. Facilities are available for oily bilge water to which it may be entitled by law, to DELIVERY POINTS: Marine Docks (11 and and sludge wastes. Purchasers are exemplary damages in an amount (as 12) and connections to local commercial responsible for making arrangements with determined by the Secretary of Energy or his pipelines. the terminal and for bearing costs associated duly authorized representative) which shall MARINE DOCK FACILITIES AND VESSEL with such arrangements. not be less than three nor more than 10 times RESTRICTIONS: CUSTOMARY ANCHORAGE: South of the cost incurred by the purchaser in TANKSHIP DOCKS: 2 Docks: Nos. 11 and Sabine Bar-Buoy. There is an additional providing any such gratuities to any such 12. anchorage at the Sabine Bar for vessels with officer or employee. draft of 39 feet of less. MAXIMUM LENGTH (c) The rights and remedies of the SHELL 22-INCH/DOE LAKE CHARLES Government provided in this clause shall not OVERALL (LOA): 1,020 feet. Maximum PIPELINE CONNECTION be exclusive and are in addition to any other bow to manifold centerline distance is 468 rights and remedies provided by law or feet. LOCATION: Lake Charles Upper Junction, under this contract. MAXIMUM BEAM: Dock 11—180 feet; located in Section 36, Township 10 South, Dock 12—220 feet. Range 10 West, Calcasieu Parish, (Lake Exhibits: MAXIMUM DRAFT: 39.5 feet brackish Charles) Louisiana. A—SPR Crude Oil Comprehensive Analysis water; subject to change due to weather and CRUDE OIL STREAMS: West Hackberry B—SPR Delivery Point Data silting conditions. Sweet and West Hackberry Sour.
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DELIVERY POINT: Shell 22-Inch/DOE BARGE LOADING CAPABILITY: None. llllllllll, INCLUDING ANY Lake Charles Pipeline Connection. OILY WASTE RECEPTION FACILITIES: AMENDMENTS THERETO.’’ MARINE DISTRIBUTION Facilities are available for oily bilge water Drafts must be presented for payment on or FACILITIES: None. and sludge wastes. Purchasers are before the expiration date of this Letter of responsible for making arrangements with SHELL SUGARLAND TERMINAL Credit at our bank. The Government may the terminal and for bearing costs associated LOCATION: St. James Parish, Louisiana (30 with such arrangements. make multiple drafts against this Letter of miles southwest of Baton Rouge on the west CUSTOMARY ANCHORAGE: South of Credit. bank of the Mississippi River at mile-marker Sabine Bar-Buoy. There is an additional Upon receipt of the U.S. Department of 158.3). anchorage at the Sabine Bar for vessels with Energy’s demand by hand, mail express CRUDE OIL STREAMS: Bayou Choctaw draft of 39 feet or less. delivery, or other means, at our office located Sweet and Bayou Choctaw Sour. at llllllllll, we will honor the SHELL 20-INCH PIPELINE (SPL) DELIVERY POINTS: Sugarland Terminal demand and make payment, by 3 p.m. marine dock facility and LOCAP and Capline LOCATION: Jefferson County, Texas, Eastern Time of the next business day Terminals (connections to Capline interstate Seven miles west and one mile north of FM following receipt of the demand, by either pipeline system and local commercial 365 and Old West Port Arthur Road. wire transfer of funds as a deposit to the pipelines). CRUDE OIL STREAMS: Big Hill Sweet and account of the U.S. Treasury over the MARINE DOCK FACILITIES AND VESSEL Big Hill Sour. RESTRICTIONS: DELIVERY POINT: SPL East Houston Fedwire Deposit System Network, or by TANKSHIP DOCKS: 2 Docks: Nos. 1 and 2. Terminal, Exxon Junction (Channelview), Oil electronic funds transfer through the MAXIMUM LENGTH Tanking Junction. Automated Clearing House Network, using MARINE DISTRIBUTION FACILITIES: the Federal Remittance Express Program. The OVERALL (LOA): 940 feet. information to be included in each transfer MAXIMUM BEAM: None. None. will be as provided in the above referenced MAXIMUM DRAFT: 45 feet fresh water. EXHIBIT C MAXIMUM AIR DRAFT: 153 feet less the Notice of Sale. river stage. SAMPLE—OFFER GUARANTEE STANDBY This Letter of Credit is subject to the MAXIMUM DEADWEIGHT TONS (DWT): LETTER OF CREDIT Uniform Customs and Practice for 100,000 DWT. Maximum DWT is theoretical BANK LETTERHEAD Documentary Credits (1993 Revision, berth handling capability; however, International Chamber of Commerce purchasers are cautioned that varying harbor IRREVOCABLE STANDBY LETTER OF Publication no. 500) and except as may be CREDIT and channel physical constraints are the inconsistent therewith, to the Uniform controlling factors as to vessel size, and they Date: llllllllllllllllll Commercial Code in effect on the date of are responsible for confirming that proposed To: Acquisition and Sales Division, Mail issuance of this Letter of Credit in the state vessels can be accommodated. Stop FE–4451, Strategic Petroleum in which the issuer’s head office within the BARGE LOADING CAPABILITY: Dock 1. Reserve, Project Management Office, U.S. United States is located. OILY WASTE RECEPTION FACILITIES: Department of Energy, 900 Commerce Road We hereby agree with the drawers, Facilities are available for oily bilge water East, New Orleans, LA 70123 and sludge wastes. Purchasers are endorsers and bona fide holders that all llll responsible for making arrangements and for AMOUNT OF LETTER OF CREDIT: drafts drawn under and in compliance with bearing all costs associated with such U.S. $ (lllllllllllllllll) the terms of this Letter of Credit will be duly arrangements. Terminal can provide suitable CONTRACTOR: lllllllllllll honored upon presentation and delivery of llllllllll contacts. NOTICE OF SALE NO: the above documents for payment at our bank LETTER OF CREDIT NO: lllllllll CUSTOMARY ANCHORAGE: Grandview on or before the expiration date. EXPIRATION DATE: lllllllllll Reach approximately 11 miles from the Address all communications regarding this terminal. AMERICAN BANKERS ASSOCIATION (ABA) NO: lllllllllllllll Letter of Credit to (name and phone number). Very truly yours, UNOCAL BEAUMONT TERMINAL Gentlemen: lllllllllllllllllllll LOCATION: Beaumont Terminal, located We hereby establish in the U.S. downstream south bank of the Neches River, Department of Energy’s favor our irrevocable (Authorized Signature) approximately 8 miles SE of Beaumont, standby Letter of Credit effective lllllllllllllllllllll Texas. immediately for the account of our customer (Typed Name and Title) CRUDE OIL STREAMS: Big Hill Sweet and in response to the above U.S. Department of Big Hill Sour. Energy’s Notice of Sale, including any Instructions for Offer Letter of Credit DELIVERY POINTS: Unocal Beaumont amendments thereto, for the sale of Strategic 1. The depository institution must be an Terminal No. 2 Crude Dock and connections Petroleum Reserve petroleum. This Letter of account holder with the Federal Reserve to local commercial pipelines. Credit expires 60 days from the date set for Banking System and a participant (on line) in MARINE DOCK FACILITIES AND VESSEL receipt of offers. the Fed’s Fedwire Deposit System Network RESTRICTIONS: This letter of credit is available by your funds transfer system. TANKSHIP DOCKS: 1 Dock (No. 2). draft/s at sight, drawn on us and 2. Letter of Credit must not vary in MAXIMUM LENGTH accompanied by a manually signed statement substance from this attachment. Provide a that the signer is an authorized representative OVERALL (LOA): 1,020 feet. copy of this attachment to your bank. of the Department of Energy, and the MAXIMUM BEAM: 150 feet. 3. Banks shall fill in blanks except those following statement: MAXIMUM DRAFT: 40 feet fresh water. in the drawing statement. The drawing MAXIMUM AIR DRAFT: 136 feet. ‘‘THIS DRAWING OF U.S. statement is in bold print with double $llllllllll MAXIMUM DEADWEIGHT TONS (DWT): underlines for the blanks. Do not fill in (llllllllll) AGAINST YOUR Maximum DWT at Dock No. 2 is 150,000 double underlined blanks. DWT. Vessels larger than 85,000 DWT, 875 LETTER OF CREDIT NUMBERED 4. The information to be included and feet LOA, or 125 feet beam are restricted to llllllllll, DATED format to be used either for a wire transfer daylight transit. Maximum DWT is llllllllll, IS DUE THE U.S. theoretical berth handling capability; GOVERNMENT BECAUSE OF THE FAILURE as a deposit over the Fedwire Deposit System however, purchasers are cautioned that OF (CONTRACTOR) TO HONOR ITS OFFER Network or electronic funds transfer through varying harbor and channel physical TO ENTER INTO A CONTRACT FOR THE the Automated Clearing House network, constraints are the controlling factors as to PURCHASE OF PETROLEUM FROM THE using the Federal Remittance Express vessel size and they are responsible for STRATEGIC PETROLEUM RESERVE, IN Program, will be provided in the Contract. confirming that proposed vessels can be ACCORDANCE WITH THE U.S. 5. Type name and title under authorized accommodated. GOVERNMENT’S NOTICE OF SALE NO. signature.
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EXHIBIT D THE TERMS OF THAT CONTRACT, AND We hereby agree with the drawers, AS A RESULT OWES THE U.S. endorsers and bona fide holders that all SAMPLE—PAYMENT AND PERFORMANCE GOVERNMENT drafts drawn under and in compliance with LETTER OF CREDIT U.S. $ llllllllll.’’ the terms of this Letter of Credit will be duly BANK LETTERHEAD b. ‘‘I HEREBY CERTIFY THAT honored upon presentation and delivery of IRREVOCABLE STANDBY LETTER OF (CONTRACTOR) HAS FAILED TO TAKE the above documents for payment at our bank DELIVERY OF CRUDE OIL UNDER THE CREDIT on or before the expiration date. TERMS OF CONTRACT NUMBER Address all communications regarding this Date: llllllllllllllllll llllllllll, AND AS A RESULT Letter of Credit to (name and phone number). To: Acquisition and Sales Division, Mail OWES THE U.S. GOVERNMENT Very truly yours, Stop FE–4451, Strategic Petroleum U.S. $ llllllllll.’’ lllllllllllllllllllll Reserve, Project Management Office, U.S. Drafts must be presented for payment on or (Authorized Signature) Department of Energy, 900 Commerce Road before the expiration date of this Letter of East, New Orleans, LA 70123 Credit at our bank. The Government may lllllllllllllllllllll AMOUNT OF LETTER OF CREDIT U.S. $: l make multiple drafts against this Letter of (Typed Name and Title) (lllllllllllllllll) Credit. Instructions for Payment and Performance CONTRACTOR: lllllllllllll Upon receipt of the U.S. Department of CONTRACT NO: llllllllllll Energy’s demand by hand, mail express Letter of Credit LETTER OF CREDIT NO: lllllllll delivery, or other means, at our office located 1. The depository institution must be an llllllllll EXPIRATION DATE: lllllllllll at , we will honor the account holder with the Federal Reserve demand and make payment, by 3 p.m. AMERICAN BANKERS ASSOCIATION Banking system and a participant (on line) in Eastern Time of the next business day (ABA) NO: lllllllllllllll the Fed’s Fedwire Deposit System Network following receipt of the demand, by either Gentlemen: funds transfer system. wire transfer of funds as a deposit to the We hereby establish in the U.S. 2. Letter of Credit must not vary in account of the U.S. Treasury over the Department of Energy’s favor our irrevocable substance from this attachment. Provide a Fedwire Deposit System Network, or by standby Letter of Credit effective copy of this attachment to your bank. immediately for the account of our electronic funds transfer through the Automated Clearing House Network, using 3. Banks shall fill in blanks except those customer’s above contract with the U.S. in the drawing statements. The drawing Department of Energy for the sale of Strategic the Federal Remittance Express Program. The statements are in bold print with double Petroleum Reserve petroleum. information to be included in each transfer underlines for the blanks. Do not fill in This letter of credit is available by your will be as provided in the above referenced double underlined blanks. draft/s at sight, drawn on us and contract. accompanied by a manually signed statement This Letter of Credit is subject to the 4. The information to be included and that the signer is an authorized representative Uniform Customs and Practice for format to be used either for a wire transfer of the Department of Energy, and one or both Documentary Credits (1993 Revision, as a deposit over the Fedwire Deposit System of the following statements: International Chamber of Commerce Network or electronic funds transfer through a. ‘‘I HEREBY CERTIFY THAT THE Publication no. 500) and except as may be the Automated Clearing House network, UNITED STATES GOVERNMENT HAS inconsistent therewith, to the Uniform using the Federal Remittance Express DELIVERED CRUDE OIL UNDER THE Commercial Code in effect on the date of Program, will be provided in the Contract. TERMS OF CONTRACT NUMBER issuance of this Letter of Credit in the state 5. Type name and title under authorized llllllllll AND THAT in which the issuer’s head office within the signature. (CONTRACTOR) HAS NOT PAID UNDER United States is located. BILLING CODE 6450–01–P
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[FR Doc. 05–12906 Filed 7–6–05; 8:45 am] BILLING CODE 6450–01–C
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Part III
Department of Labor Employment and Training Administration
Reassignment and Delegation of Functions Under 20 CFR Parts 655 and 656 From the Regional Administrators, Employment and Training Administration, and the Director, United States Employment Service, to the Chief, Division of Foreign Labor Certification; Notice
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DEPARTMENT OF LABOR Training Administration (ETA) and the organization, procedures and practice Director of the United States within ETA and does not affect the Employment and Training Employment Service under 20 CFR rights of individuals or the public. Good Administration parts 655 and 656 (in effect through cause exists to make these changes March 27, 2005) to the Chief, Division immediately effective in order to Reassignment and Delegation of of Foreign Labor Certification. These effectively administer the regulations Functions Under 20 CFR Parts 655 and functions relate to labor certifications described above. The standards for 656 From the Regional Administrators, for temporary and permanent making determinations under these Employment and Training employment of immigrant and regulations remain unchanged. Administration, and the Director, nonimmigrant aliens in the United Signed in Washington, DC, this 30th day of United States Employment Service, to States. The reassignment of functions the Chief, Division of Foreign Labor June 2005. was made by Employment and Training Emily Stover DeRocco, Certification Order Number 2–05, which is published Assistant Secretary, Employment and The Assistant Secretary for below in the Federal Register in order Training Administration. Employment and Training has to inform the public. reassigned all functions of the Regional This reassignment and transfer of Attachment Administrators of the Employment and functions affects only agency BILLING CODE 4510–30–P
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[FR Doc. 05–13319 Filed 7–6–05; 8:45 am] BILLING CODE 4510–30–C
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Part IV
Securities and Exchange Commission 17 CFR Part 270 Investment Company Governance; Final Rule
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SECURITIES AND EXCHANGE amendments to the Exemptive Rules promote efficiency, competition and COMMISSION require no modification. capital formation, we did not adequately consider costs associated with the 75 I. Background 17 CFR Part 270 percent independent board and the On July 27, 2004, the Commission [Release No. IC–26985; File No. S7–03–04] independent chairman conditions. adopted amendments to the Exemptive Second, the Court stated that we did not RIN 3235–AJ05 Rules under the Investment Company give adequate consideration to an Act to require funds that rely on one or alternative discussed by the two Investment Company Governance more of those rules to adopt certain Commissioners who dissented from the 3 AGENCY: Securities and Exchange governance practices. Among other adoption of the rules (‘‘disclosure Commission. things, the amendments added two alternative’’). The Court did not vacate ACTION: Commission response to remand conditions for relying on the Exemptive the rule amendments, however, and by court of appeals. Rules. The amendments require that, if they remain in effect.9 a fund relies on at least one of the II. Introduction SUMMARY: The Commission has Exemptive Rules to engage in certain considered further its adoption of transactions otherwise prohibited by the In this Release, we further consider amendments to rules under the Act, the fund must have a board of and address the two issues raised by the Investment Company Act of 1940 to directors with (i) no less than 75 percent Court’s remand order. As a threshold require investment companies (‘‘funds’’) independent directors,4 and (ii) a matter, we consider whether it is that rely on certain exemptive rules to chairman who is an independent necessary to engage in additional fact- adopt certain governance practices. The director. We adopted the amendments gathering to implement the Court’s reconsideration responds to a decision in the wake of a troubling series of remand order, or otherwise engage in by the United States Court of Appeals enforcement actions involving late further notice and comment for the District of Columbia Circuit trading, inappropriate market timing procedures.10 The existing record, remanding to us for further activities, and misuse of nonpublic which was before the Commission at the consideration two issues raised by the information about fund portfolios.5 time the amendments were adopted, rulemaking. The two new conditions were was developed through full notice and comment procedures. The notice FOR FURTHER INFORMATION CONTACT: challenged by the Chamber of initiating those procedures and Penelope Saltzman, Branch Chief, or C. Commerce, which submitted a petition soliciting public comment proposed two Hunter Jones, Assistant Director, Office for review to the United States Court of conditions for exemption that were of Regulatory Policy, (202) 551–6792, Appeals for the District of Columbia substantially identical to the conditions Division of Investment Management, Circuit. In that case, the Chamber of that we adopted and that are supported Securities and Exchange Commission, Commerce asserted that the Commission by our additional discussion in this 100 F Street, NE., Washington, DC (i) lacked authority to adopt the Release. Although the Court held that 20549. amendments, and (ii) violated the Administrative Procedure Act we ultimately failed in our Adopting SUPPLEMENTARY INFORMATION: In (‘‘APA’’).6 Release adequately to address the issues Chamber of Commerce of the United On June 21, 2005, the Court of identified by the Court in its opinion, States of America v. Securities and Appeals issued its decision that ‘‘the we had specifically sought and received Exchange Commission, the United Commission did not exceed its statutory comment on the costs associated with States Court of Appeals for the District authority in adopting the two the two conditions and had considered of Columbia Circuit remanded to us, in conditions, and the Commission’s those costs at the time of the initial part, for additional consideration certain rationales for the two conditions satisfy rulemaking. We further note that the amendments we adopted last year to ten the APA.’’ 7 The Court noted the broad original notice solicited comment on rules under the Investment Company authority granted to the Commission to Act of 1940 (‘‘Investment Company Act’’ exempt transactions ‘‘subject only to the 9 See id. at 19 (ordering the matter ‘‘remanded’’ or ‘‘Act’’).1 The amendments are public interest and the purposes of the and citing Fox Television Stations, Inc. v. FCC, 280 applicable to funds that rely on any of 8 F.3d 1027, 1048–49 (D.C. Cir. 2002) (explaining [Act].’’ In addition, the Court found reasons for remanding a rulemaking without ten exemptive rules the Commission has that our actions were reasonable in light vacating) and Allied Signal, Inc. v. U.S. Nuclear adopted under the Investment Company of the significant problems we identified Regulatory Comm’n, 988 F.2d 146, 150–51 (D.C. Cir. Act (‘‘Exemptive Rules’’).2 The with mutual funds that have arisen as a 1993) (same)). 10 amendments were designed to enhance result of serious conflicts of interest. Where, as here, a court does not specify a the independence and effectiveness of required procedure, the agency is free on remand The Court, however, remanded to the to determine whether supplemental fact-gathering fund boards and to improve their ability Commission for our consideration two is necessary. Furthermore, if the existing record is to protect the interests of the funds and deficiencies that it identified in the a sufficient base on which to address on remand the fund shareholders they serve. As the rulemaking. First, the Court held that, in court-identified deficiencies, additional notice and Court directed, the Commission has comment procedures are not required. See Sierra connection with our statutory obligation Club v. EPA, 325 F.3d 374, 382 (D.C. Cir. 2003) carefully considered the issues to consider whether the conditions will (following the ‘‘usual rule’’ by remanding ‘‘for identified by the Court in remanding further explanation, though not necessarily for this matter to us. We have determined, 3 Adopting Release, supra note 2. further notice-and-comment rulemaking’’); National Grain and Feed Ass’n, Inc. v. OSHA, 903 F.2d 308, in light of that consideration, that the 4 In this Release, we are using ‘‘independent 310–11 (5th Cir. 1990) (leaving ‘‘the agency free on director’’ to refer to a director who is not an remand to determine whether supplemental fact- ‘‘interested person’’ of the fund, as defined by the 1 Chamber of Commerce of the United States of gathering is necessary for correction of the Act. See section 2(a)(19) of the Act [15 U.S.C. 80a– America v. SEC, No. 04–1300, slip op. (D.C. Cir. perceived error or deficiency.’’). See also AT&T 2(a)(19)]. June 21, 2005) (‘‘Slip Opinion’’). Wireless Servs., Inc. v. FCC, 365 F.3d 1095, 1103 5 2 Investment Company Governance, Investment See Adopting Release, supra note 2, at nn.5–6 (D.C. Cir. 2004) (upholding after remand additional Company Act Release No. 26520 (July 27, 2004) [69 and accompanying text. explanation of prior FCC decision where FCC found FR 46378 (Aug. 2, 2004)] (‘‘Adopting Release’’). The 6 5 U.S.C. 551 et seq. on remand that ‘‘the existing record was ‘a Exemptive Rules are listed in the Adopting Release 7 Slip Opinion, supra note 1, at 2. sufficiently adequate base on which to rest the at footnote 9. 8 Id. at 7. Commission’s decision * * *’’).
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whether there were alternatives that important that we avoid postponement this time, moreover, risks the creation of would serve the same or similar of the compliance date and the significant uncertainties and potential purposes, and elicited comment on the attendant potential harm to investors harm to investors that would not, in our disclosure alternative.11 We find that and the market that would result.13 judgment, be in the public interest.14 the information in the existing record, Because Chairman Donaldson was III. Discussion together with publicly available scheduled to leave the Commission on information upon which we may rely, is June 30, 2005, and his replacement, A. Costs Resulting From Exemptive Rule a sufficient base on which to rest the although announced by the President, Amendments Commission’s consideration of the had not been formally nominated by In the release proposing the deficiencies identified by the Court. him or confirmed by the Senate, we amendments to the Exemptive Rules, we Thus, our consideration and discussion considered it important to act on this discussed and solicited comment on the in this Release of the two issues relies important matter no later than the time costs and benefits of those rule upon that record and previously of our open meeting scheduled for June amendments, and whether they would available public information, and we 29, 2005. In adopting the amendments promote efficiency, competition and have determined that it is not necessary to the Exemptive Rules, we carefully capital formation.15 In the Adopting to engage in further notice and comment considered the issues presented by the Release, we again discussed the costs procedures in order to follow the rulemaking and reviewed the extensive and benefits of the amendments, and Court’s direction on remand. record before the Commission. This is whether they would promote efficiency, Moreover, engaging in further notice the last opportunity to bring the competition and capital formation.16 and comment procedures is not only collective judgment and learning of all In this Release, we reexamine the unnecessary, it risks significant harm to of us, who have spent the last year and costs of the Exemptive Rule investors without significant a half thinking about the issues raised amendments in the two areas identified corresponding benefits, given the in this rulemaking, to bear on the by the Court: (i) The costs to funds of adequacy of the information currently important questions presented to us by complying with the condition that at available upon which we may rely. The the Court. Given our unique familiarity least 75 percent of a fund’s directors be amendments to the Exemptive Rules are with these matters, we think it is both independent; and (ii) the costs to funds the centerpiece of a broader regulatory important and appropriate for the same of complying with the condition that the effort to restore investor confidence in five of us to consider the issues raised chairman be an independent director, the mutual fund industry in the wake of by the Court on remand, especially particularly the costs of possible the discovery of serious wrongdoing at given the potential harm that may result many of the nation’s largest fund additional staff that the independent from delay in resolving this matter. 17 complexes and by officials at the highest We take very seriously and act with chairman might hire. levels of those complexes. Fund the utmost respect for the Court of 1. Board Composition managers acted in their own interests Appeals’ admonition that we failed The amendments will impose rather than in the interests of fund adequately to consider the costs additional costs on funds that rely on investors (which they are required to imposed upon funds by the two any of the Exemptive Rules by requiring do), resulting in substantial investor challenged conditions, and failed to that independent directors constitute at losses that were well documented at the consider the disclosure alternative. Our least 75 percent of the fund board or, if time we adopted the amendments. determination to act promptly in no way the fund board has only three directors, Further, subsequent events, although diminishes our obligation to make a that all but one director be independent. they do not form the basis of our action, deliberate and careful consideration of As discussed in the Adopting Release, have shown that the level of the issues raised by the Court. We have we have estimated that nearly 60 wrongdoing, and the corresponding undertaken to address those issues upon percent of all funds currently meet the investor losses, were in fact significantly remand promptly because we are 75 percent condition.18 A fund that does greater than was known at that time. By convinced that we can do so with the not already meet this condition may acting promptly, we hope to bolster thoroughness and careful consideration come into compliance with the 75 investor confidence, resolve any required by the Court’s direction to us, percent condition by: (i) Decreasing the uncertainties associated with the and without the sacrifice to investor size of its board and allowing some remand, and ensure that investors protection that delay would risk. receive the protections afforded by the Because we have previously sought and amendments without delay.12 It is 14 Even prior to our having issued this Release, received comment, the Commission has there have been reports that additional legal proceedings may result from our action today. 11 a significant foundation from which to See Investment Company Governance, consider the issues remanded by the Accordingly, we are instructing our Office of the Investment Company Act Release No. 26323 (Jan. General Counsel to take such action as it considers 15, 2004) [69 FR 3472 (Jan. 23, 2004)] (‘‘Proposing Court. In light of that experience, and appropriate to respond to any proceedings relating Release’’), at text preceding n.32; see also Comment because the existing record and other to this rulemaking. Letter of the Financial Services Roundtable, File publicly available information allow us 15 Proposing Release, supra note 11, at Sections No. S7–03–04 (Mar. 10, 2004) (‘‘[I]nvestors will be V and VII. able to express their views on this [independent to undertake the additional 16 chairman] issue, given clear and appropriate consideration required, we have Adopting Release, supra note 2, at Sections VI disclosure. * * * Investors for whom this issue is determined that we can fully discharge and VIII. As the Court noted, section 2(c) of the a priority can direct their investments to those Investment Company Act [15 U.S.C. 80a–2(c)] funds.’’); Comment Letter of Greenspring Fund, our responsibilities within the time requires the Commission, when engaging in Incorporated, File No. S7–03–04 (June 17, 2004) necessary to allow participation by the rulemaking that requires it to consider or determine (‘‘Greater disclosure of relevant information would same group of Commissioners that whether an action is necessary or appropriate in the allow shareholders to make better informed adopted the amendments to the public interest, to consider whether the action will decisions. If an independent Chairman is desirable promote efficiency, competition and capital in the eyes of some investors, then make that Exemptive Rules. Our failure to act at formation. Slip Opinion, supra note 1, at 12–13. information readily accessible.’’). 17 In preparing estimates in this Release, we rely 12 As noted above, the Court, while remanding a 13 See Adopting Release, supra note 2, at Section where appropriate on data that can be obtained or portion of the rulemaking for our consideration, did IV (funds relying on Exemptive Rules must begin confirmed through publicly available filings under not vacate the rule amendments. See Slip Opinion, complying with the Exemptive Rule amendments the Federal securities laws. supra note 1, at 19. after January 15, 2006). 18 See Adopting Release, supra note 2, at n.78.
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interested directors to resign; (ii) increase the size of the board. Funds However, we received one comment appointing new independent directors that choose simply to replace interested from a fund with five directors that either to replace interested directors directors with independent directors or stated it would not want to reduce the (maintaining the current size of its that add additional independent number of interested directors, and board) or to increase the current size of directors and are able to appoint the therefore would have to add three new its board; 19 or (iii) electing new new independent directors may incur independent directors in order to meet independent directors either to replace three kinds of costs. First, funds may the 75 percent condition.27 In light of interested directors (maintaining the incur initial and periodic costs of this comment, and acting conservatively current size of its board) or to increase finding qualified candidates. Second, so as not to underestimate costs, we the current size of its board.20 In order funds will incur annual compensation have estimated for purposes of this to provide funds with maximum costs for the new independent directors. discussion that a fund would appoint flexibility, we did not specify which Third, funds could incur additional three new independent directors. option they must select. annual costs if new independent Based on data from a 2004 survey of In the Adopting Release, we stated directors use additional services of mutual fund directors’ compensation,28 that ‘‘our staff has no reliable basis for independent legal counsel.23 Because we estimate that the median annual determining how funds would choose to smaller fund groups typically provide salary for directors ranges from satisfy this requirement and therefore it less compensation (for overseeing fewer $111,500 (for boards that oversee a large is difficult to determine the costs funds) than larger fund groups (for number of funds 29) down to $12,500 associated with electing independent overseeing more funds), our (for boards that oversee from 1 to 6 directors.’’ 21 The Court of Appeals compensation estimates are based on a funds). Consistent with the approach noted, however, that ‘‘[t]hat particular range of potential costs. suggested by the Court with respect to difficulty may mean the Commission We understand that a majority of the hiring of additional staff in can determine only the range within funds have eight or fewer directors.24 connection with the independent which a fund’s cost of compliance will Accordingly, we conclude that most chairman condition, we make the 22 fall,’’ and directed that the funds could appoint one or two estimates based upon the potential costs Commission determine as best it can the independent directors in order to to an individual fund. Thus, we 25 economic implications of the rule. comply with the 75 percent condition. estimate the annual compensation cost Based on the record in this matter, as For example, a board with eight per fund for appointing one well as our review of publicly available directors could comply with the independent director could range from information, we have concluded that we condition by replacing one interested $1593 (for boards that oversee a large 26 do in fact have a reliable basis upon director with an independent director. number of funds) to $12,500 (for boards which to consider the range of costs that oversee only one fund).30 23 associated with each of the different We also considered whether funds might incur Accordingly, if a fund were to appoint ways in which funds may choose to additional costs as a result of additional premiums for directors’ liability insurance. Most policies three independent directors, we comply with the 75 percent condition, covering mutual fund directors’ liability are priced as the Court directed. based principally on the level of risk estimated by 27 See Comment Letter of the Disinterested the insurer, on the amount of assets under a. Adding Independent Directors Directors of ICAP Funds, Inc., File No. S7–03–04 management, and on the maximum aggregate limit (Mar. 4, 2004). of liability covered, rather than on the number of Funds that elect to add independent 28 See April 2004 MPI Bulletin, supra note 24. directors. Given our expectation that The information provided in the Bulletin directors in order to meet the 75 percent implementation of the rule amendments, with their ‘‘summarizes 2003/4 findings of the Mutual Fund condition have two options. They may effect of strengthening independent oversight of Directors’’ Compensation and Governance Practices replace some interested directors with conflicts of interest, will reduce the risk of misconduct and ensuing investor losses, the cost of survey with data drawn from public documents of independent directors, or they may insuring against such risk should, if anything, be 290 complexes, representing 1,620 directors/ reduced. In any event, we have concluded that an trustees and the confidential responses of 19 Under some circumstances a vacancy on the increased cost of coverage associated with the two participating complexes.’’ Thus, the survey may board may be filled by the board of directors. See conditions, if any, will be minimal and will be include compensation information concerning both section 16(a) of the Investment Company Act [15 adequately covered by the allowances for overhead independent and interested directors. Because U.S.C. 80a–16(a)] (board vacancy may be filled by and the cushions we have used in considering interested directors generally are compensated by any legal manner if immediately after filling the costs. the adviser, not the fund, we have assumed for vacancy at least two-thirds of directors have been 24 See Management Practice Inc. Bulletin: Fund purposes of the estimates that the compensation elected by fund shareholders). Directors’ Pay Increases 17% in Smaller Complexes, reflects annual compensation of independent 20 Our description of the three options available 8% in Larger (June 2003) (‘‘Boards are getting directors. This survey is a widely used industry to funds differs slightly from the description in the smaller with 60% having 8 directors or less.’’) survey, an earlier version of which was cited by the Adopting Release. As discussed in greater detail (available at: http://www.mfgovern.com/); dissenting Commissioners in their statement below, funds will incur costs to add new Management Practice Inc. Bulletin: More Meetings attached to the Adopting Release. See Adopting independent directors regardless of whether those Means More Pay for Fund Directors (Apr. 2004) Release, supra note 2, Dissent of Commissioners new independent directors replace interested (‘‘April 2004 MPI Bulletin’’) (‘‘Boards are staying Cynthia A. Glassman and Paul S. Atkins, at n.24. directors or increase the size of the board. Funds’ about the same overall size, with a slight decrease 29 For purposes of these estimates, we define costs will differ, however, depending on whether in the number of interested directors, which boards that oversee a ‘‘large number’’ of funds as the board can appoint the new independent facilitates a new 75% independent requirement.’’). boards that oversee 70 or more funds. The per fund directors under section 16(a) of the Act or whether 25 A fund that currently relies on any of the estimates we discuss related to these boards are the fund’s shareholders must approve the new Exemptive Rules would already have a majority of calculated by basing per fund costs on a board that independent directors. Unlike funds whose boards independent directors on the board. See Role of oversees 70 funds, which yields greater per fund can appoint new independent directors, funds that Independent Directors of Investment Companies, costs than using a higher number would. must obtain shareholder approval for new Investment Company Act Release No. 24816 (Jan. 2, 30 These annual estimates of the cost of one independent directors will incur proxy solicitation 2001) [66 FR 3734 (Jan. 16, 2001)]. independent director are based on the following expenses. 26 An 8 member board of a fund that relies on at calculations: ($111,500 ÷ 70 funds = $1593); 21 See Adopting Release, supra note 2, at text least one Exemptive Rule currently must have at ($12,500 ÷ 1 fund = $12,500). In considering the accompanying n.80. least 5 independent directors. By replacing an range of costs per fund, we divided the median 22 Slip Opinion, supra note 1, at 15–16 (‘‘That interested director with an independent director, 6 salary for a director overseeing a large number of particular difficulty [of determining aggregate costs] out of 8 (75%) would be independent. By replacing funds (70 or more) by 70 funds, and the median may mean the Commission can determine only the two interested directors with two independent salary for a director overseeing a small number of range within which a fund’s cost of compliance will directors on a 7 member board (which must have funds (1 to 6) by 1 fund. The range of funds was fall, depending upon how it responds to the at least 4 independent directors), 6 out of 7 (86%) based on data provided in the April 2004 MPI condition * * .’’). would be independent. Bulletin, supra note 24.
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estimate that these annual $9000 annually, per board. Thus, the We have also estimated increased compensation costs could range, on a range of costs for additional costs to funds to reflect the increased per fund basis, from $4779 (for boards independent counsel services could responsibilities that independent that oversee a large number of funds) to range from $9000 per fund (for a board directors may take on as a result of the $37,500 (for boards that oversee one that oversees one fund) to $129 per fund 75 percent condition. To reflect this and fund).31 (for a board that oversees a large number other possible cost increases (including We further estimate that the costs to of funds).37 proxy cost increases), we have estimated recruit an independent director may Estimated total costs per fund. Based that costs of complying with the equal the independent director’s first on this data, we estimate that the total condition may today have increased by year salary.32 This cost may be incurred costs in the first year, for funds that as much as 20 percent.43 Accordingly, initially when the independent directors appoint three new independent we have estimated current first year are first appointed, and periodically directors, could range from $9687 per costs of the condition for funds in thereafter when, from time to time, an fund (for boards that oversee a large which the board appoints three new independent director is replaced. In our number of funds) to $84,000 per fund independent directors. These costs judgment, we conservatively estimate (for boards that oversee one fund).38 could range from $11,624 per fund (for that the need to replace a director will, Annual costs in subsequent years would boards that oversee a large number of on average, occur no more often than decrease to a range of $5864 per fund funds) to $100,800 per fund (for boards once every five years.33 Thus, the initial (for boards that oversee a large number that oversee one fund).44 We have per fund cost for recruiting services for of funds) to $54,000 per fund (for boards further estimated that the current first three independent directors could range that oversee only one fund).39 year cost for funds that elect three new from $4779 (for boards that oversee a Funds that must obtain shareholder independent directors could range from large number of funds) to $37,500 (for approval for new independent directors $101,624 per fund (for boards that boards that oversee one fund).34 Based (whether to replace interested directors oversee a large number of funds) to on turnover every five years, the annual or to increase the size of the board) will $190,800 per fund (for boards that cost per fund thereafter to replace incur additional costs of soliciting oversee one fund).45 Whether the new independent directors could range from proxies from shareholders. We estimate independent directors are appointed or 35 $956 to $7500. the average costs of soliciting proxies as elected, ongoing costs could range from We expect that funds will incur $75,000 per fund.40 If a fund must $7037 per fund (for boards that oversee additional costs because of increased obtain shareholder approval for three a large number of funds) to $64,800 per reliance by new independent directors new independent directors, the initial fund (for boards that oversee one on the services of independent legal costs to add the directors could range fund).46 counsel. Based upon our experience, we from $84,687 per fund (for boards that estimate that, on average, the new oversee a large number of funds) to b. Decreasing Interested Directors independent directors will use an $159,000 per fund (for boards that Finally, funds that simply decrease additional 30 hours annually of oversee one fund).41 And as discussed the size of their boards and allow some independent legal counsel services. We above, costs would decrease in have estimated that the average hourly interested directors to resign are likely subsequent years to a range of $5864 per to incur, at most, only minimal direct rate for an independent counsel is fund (for boards that oversee a large $300,36 which yields a total cost of costs. The decision to reduce the size of number of funds) to $54,000 per fund the board and eliminate one or more (for boards that oversee only one 31 interested directors from the board These annual estimates of the cost per fund are fund).42 based on the following calculations: ($1593 × 3 would likely be made at a previously directors = $4779); ($12,500 × 3 directors = scheduled board meeting.47 Because $37,500). Holders and Boards of Directors, Securities Act We note that commenters’ estimated costs of Release No. 8340 (Nov. 24, 2003) [68 FR 69204 this option is the simplest of the three paying new independent directors ranged from (Dec. 11, 2003)] at n.149. options and imposes the lowest direct $4000 to $20,000, which are roughly comparable 37 These estimates are based on the following costs, it is likely that many, if not most, with and do not exceed our estimated range. See calculations: ($9000 ÷ 1 = $9000); ($9000 ÷ 70 = funds will choose to comply with the 75 Comment Letter of New Alternatives Fund, Inc., $129). percent condition by using this File No. S7–03–04 (Feb. 9, 2004); Comment Letter 38 These estimates are based on the following of Independent Directors of Flaherty & Crumrine calculations: ($4779 (first year compensation) + Preferred Income Opportunity Fund Inc., File No. $4779 (recruiting costs) + $129 (independent 43 As to director compensation, the conservative S7–03–04 (Feb. 23, 2004). counsel costs) = $9687); ($37,500 (first year nature of this estimate is confirmed by publicly 32 See, e.g., Andrea Felsted, Headhunters Feel the compensation) + $37,500 (recruiting costs) + $9000 available information indicating that in 2004, Heat in Quality Quest: Shareholder Reaction to (independent counsel costs) = $84,000). directors’ compensation increased by 13 percent. Sainsbury’s Choice of a Chairman-Designate has 39 These estimates are based on the following See Management Practice Inc. Bulletin: More Shed a Harsh Light on a Secretive World, calculations: ($4779 (annual compensation) + $956 Meetings, More Pay: Fund Directors’ Compensation FINANCIAL TIMES, Feb. 21, 2004, at 5. This one- (recruiting costs) + $129 (independent counsel Increases 13% as Workload Grows (Apr. 2005) time cost would be shared among the funds that the costs) = $5864); ($37,500 (annual compensation) + (available at http://www.mfgovern.com). director oversees. $7500 (recruiting costs) + $9000 (independent 44 These estimates are based on the following 33 See, e.g., Management Practice Inc. Bulletin: counsel costs) = $54,000). calculations: ($9687 × 1.2 = $11,624); ($84,000 × 1.2 Mutual Fund Directors’ Compensation Increases 40 See Investment Company Mergers, Investment = $100,800). 9% in a Turbulent Year (last modified Oct. 30, Company Act Release No. 25666 (July 18, 2002) [67 45 These estimates are based on the following 2001) (available at http://www.mfgovern.com/) FR 48512 (July 24, 2002)], at Section V. That cost calculations: ($84,687 × 1.2 = $101,624); ($159,000 (noting that, based on a 2000 survey, ‘‘[s]erving could be substantially diminished if a proxy vote × 1.2 = $190,800). trustees have a median age of 62 with a median of were scheduled to be held during the period on 46 These estimates are based on the following 10 years of service.’’). other matters. calculations: ($5864 × 1.2 = $7037); ($54,000 × 1.2 34 See supra note 31. 41 These estimates are based on the following = $64,800). 35 These estimates are based on the following calculations: ($9687 (first year compensation, 47 In the unusual circumstances in which the calculations: ($4779 ÷ 5 = $956); ($37,500 ÷ 5 = recruiting and independent legal counsel costs) + interested directors are compensated by the fund $7500). $75,000 (proxy costs) = $84,687); ($84,000 (first rather than by the fund’s adviser, the termination 36 The $300 per hour estimated billing rate is one year compensation, recruiting and independent of the interested directors could result in a cost we have used in recent rulemakings. See, e.g., legal counsel costs) + $75,000 (proxy costs) = savings for the fund. We understand, however, that Disclosure Regarding Nominating Committee $159,000). in most cases the fund’s adviser compensates the Functions and Communications Between Security 42 See supra note 39. interested directors directly.
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option.48 There is the possible non- Court directed. This estimate also to hire no more than two staff monetary cost of the loss of experience includes possible increased employees, consisting of one full-time on the board. In other words, having compensation to independent chairs to senior business analyst and one full- fewer interested directors on the board reflect their additional responsibilities. time executive assistant. We believe that might decrease the expertise of the In addition to the monetary costs we these costs will be borne primarily by board. As we discussed in the Adopting discuss below, some have raised, as a larger fund complexes, and that Release, however, nothing in the possible non-monetary cost, the loss of independent chairmen at smaller Exemptive Rule amendments would experience on the board if the interested complexes will rarely choose to hire prohibit interested persons from chairman were to resign from the board. additional staff. We have estimated the participating in board meetings, if the The interested chairman, however, costs of retaining these personnel based directors decide to include them in typically is one of the most senior on salary surveys conducted by the those meetings.49 Thus we believe that officers of the fund’s investment Securities Industry Association (‘‘SIA’’), the reduction in the number of adviser, which has a direct interest in a source on which we commonly rely in interested directors will likely result, at the operations of the fund. Therefore, our rulemakings.57 The SIA found the most, in only minimal direct costs.50 we anticipate that the interested average salary (including bonus) of a chairman is unlikely to resign from the senior business analyst to be 2. Independent Chairman fund’s board, and will likely continue to $136,671.58 Adjusting this salary The Exemptive Rule amendments also participate actively in board meetings upwards by 50 percent to reflect require that a fund relying on an even though he no longer functions as possible overhead costs and employee Exemptive Rule have an independent the chairman.53 benefits, this salary amounts to director serve as chairman of the board. A. Additional Staff $205,007. The SIA found the average As we noted in the Adopting Release, salary of an executive assistant there may be costs associated with the Several commenters suggested that an (including bonus) to be $73,088.59 independent chairman condition, such independent chairman might decide to Adjusting this salary upwards by 50 as the costs of hiring staff to assist the hire staff to help fulfill his or her percent to reflect possible overhead chairman in carrying out his or her responsibilities.54 Although we cannot costs and employee benefits, this salary responsibilities.51 However, we said determine how many independent amounts to $109,632. Thus, the hiring of that we had no reliable basis for chairmen would require the hiring of both a full-time senior business analyst estimating those costs. The Court of additional staff to support them,55 we and a full-time executive assistant for an Appeals noted that ‘‘[a]lthough the have estimated the costs that fund independent chairman would total Commission may not have been able to boards may incur as a result of hiring approximately $314,639 for each board. estimate the aggregate cost to the mutual additional staff.56 This cost can be expressed on a per fund fund industry of additional staff because In our judgment, in most cases, basis, which we calculate to be it did not know what percentage of independent chairmen will be expected $42,519.60 funds with [an] independent chairman Some commenters suggested that would incur that cost, it readily could 53 Even in the unlikely case that the chairman another cost of the amendments could have estimated the cost to an individual resigns from the board, we believe that the resignation would have minimal costs because, as result from increased reliance by the 52 fund.’’ Based on the record in this discussed above and in the Adopting Release, independent chairman on the services matter, as well as a review of publicly nothing in the Exemptive Rule amendments would of independent legal counsel.61 Based available information, we have prohibit the former chairman from participating in board meetings if the directors decide to include 57 concluded that we do in fact have a him or her in those meetings. See supra note 49 and See, e.g., Disclosure Regarding Approval of reliable basis for estimating the costs to accompanying text. Investment Advisory Contracts by Directors of Investment Companies, Investment Company Act an individual fund associated with the 54 See, e.g., Comment Letter of Disinterested Release No. 26486 (June 23, 2004) [69 FR 39798 Trustees of EQ Advisors Trust, File No. S7–03–04 independent chairman condition, as the (June 30, 2004)] at n.55. (Mar. 4, 2004) (‘‘[A] fund group would need to 58 compensate the [independent] chair commensurate See Securities Industry Association, REPORT 48 See, e.g., April 2004 MPI Bulletin, supra note with his or her additional responsibility and time ON MANAGEMENT & PROFESSIONAL EARNINGS 24 (‘‘Boards stayed about the same size, but the commitment and would need to hire additional IN THE SECURITIES INDUSTRY (2004). This number of affilaited directors declined as the support for that individual.’’); Comment Letter of estimate is for a New York salary. The SIA also preferred method of achieving the required 75% New Alternatives Fund, Inc., File No. S7–03–04 estimates non-New York salaries, which are lower. independent.’’); Comment Letter of the Directors’ (Feb. 9, 2004) (estimating a $25,000 cost of ‘‘aids The estimates in this section use the higher figure. Committee of the Investment Company Institute, to directors’’); Comment Letter of Sullivan & 59 See Securities Industry Association, REPORT File No. S7–03–04 (Mar. 10, 2004) (‘‘While it is our Cromwell LLP, File No. S7–03–04 (Mar. 9, 2004) ON OFFICE SALARIES IN THE SECURITIES expectation that most funds would reach this (‘‘[W]e believe that mandating an independent INDUSTRY (2004). percentage by asking an interested director to step chairman will effectively mandate the retention of 60 This estimate is based on the following down from the board, there are some boards that an independent staff and/or enhanced participation calculation: ($314,639 ÷ 7.4 funds per board = will do so by adding an independent director.’’); by independent counsel in fund complexes both $42,519 per fund). We estimate that there are, on Comment Letter of New Alternatives Fund, Inc., large and small.’’). The [chief compliance officer] average, 7.4 funds per board. There were 8126 File No. S7–03–04 (Feb. 9, 2004) (‘‘[I]t is difficult and independent counsel were viewed as the funds in 2003. See Investment Company Institute, to find competent directors. An alternative is for the logical persons to interface regularly with the Chair 2004 MUTUAL FUND FACT BOOK (May 2004). We undersigned founder to resign as a director while and their involvement may alleviate the need for estimate that there are approximately two boards of remaining a manager. We could then reach the 75% permanent staff to the board or Chair. The directors per fund complex. We also estimate that requirement.’’). management company typically provides the bulk in 2003 there were 550 fund complexes, yielding a 49 See Adopting Release, supra note 2, at text of the secretarial and clerical support for most total of 1100 fund boards. Therefore, there are following n.50 and at text preceding and following boards.’’). Despite the lack of consensus on whether approximately 7.4 funds per board (8126 funds ÷ n.60. an independent chairman is likely to hire any 1100 boards). 50 It would be impracticable to quantify the additional staff, the estimate discussed in this This estimate exceeds an estimate provided by a indirect costs of choosing this option. Of course, if section—to avoid any underestimate of costs— commenter. See Comment Letter of New those indirect costs (plus the insignificant direct assumes the hiring of two additional staff members. Alternatives Fund, Inc., File No. S7–03–04 (Feb. 9, costs) of this option were to exceed the total direct 55 Adopting Release, supra note 2, at n.81. 2004) (estimating a $25,000 cost of ‘‘aids to and indirect costs associated with either of the 56 These costs are for additional staff. An directors’’). other two options, then the fund could choose to independent chair, like a management affiliated 61 See, e.g., Comment Letter of Sullivan & use one of those other, lower-cost options. chair, will continue to have available the services Cromwell, LLP, File No. S7–03–04 (Mar. 9, 2004) 51 See Adopting Release, supra note 2, at n.81. of the existing staff of the fund management (‘‘[W]e believe that mandating an independent 52 Slip Opinion, supra note 1, at 16–17. company. chairman will effectively mandate the retention of
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upon our experience, we estimate that, assets for which fund boards are additional independent legal counsel, on average, the independent chairman responsible, and are also small relative the total is only $329,639,72 which will use independent legal counsel a to the expected benefits of the two would be divided among the number of total of 50 hours a year more under the conditions. We expect that the minimal funds overseen by the independent amendments. We have estimated that added expense of compliance with these chairman. And the additional per fund the average hourly rate for an conditions will have little, if any, compensation received by the independent counsel is $300,62 which adverse effect on efficiency, competition independent chairman could range from yields a total cost of $15,000 annually, and capital formation. Indeed, we $9000 for an independent chairman per board. This amounts to $2027 per anticipate that compliance with the two who oversees a single fund, down to fund.63 conditions by funds that rely upon the $1147 for an independent chairman Exemptive Rules will help increase who oversees a large number of funds. B. Increased Compensation for an investor confidence, which may lead to Even using the highest additional Independent Chairman increased efficiency and compensation figure, the average fund We estimate that compensation for an competitiveness of the U.S. capital will incur a total cost for staff, legal independent chairman may be from 25 markets. We also anticipate that this counsel and additional compensation of to 50 percent higher than the increased market efficiency and investor only $47,220.73 compensation of other directors.64 In confidence may encourage more Whether the two conditions are order to calculate maximum likely costs efficient capital formation. viewed separately or together, even at and avoid understating those costs, the With respect to the 75 percent the high end of the ranges, the costs of estimate in this section will use the condition, even for funds that elect to compliance are minimal.74 We also note assumption of the higher end of the add independent directors and are that the ranges of costs considered range, i.e., a 50 percent premium, and required to solicit proxies, the costs are above represent the high range of takes into account the 20 percent minor compared to the amount of assets potential cost of compliance for any increase reflecting possible increased under management. For funds that individual fund. The average cost per compensation costs.65 Therefore, based choose to comply with the 75 percent fund to the industry as a whole will on the estimates discussed above condition simply by decreasing the size likely be much lower.75 At the time we regarding compensation for fund of the board, the costs are insignificant. adopted the rule amendments, 60 independent directors,66 we estimate For funds that appoint three new percent of funds already complied with that the additional ongoing independent directors, using the data the 75 percent condition and will incur compensation cost, and other cost from the 2004 survey and adding a 20 no additional cost as a result of the increases, of appointing an independent percent cushion as discussed above, the implementation of that condition. director as chairman could range from ongoing annual costs range from Moreover, we expect few boards to $1147 to $9000 each year, per fund.67 $64,800 per fund, for boards that appoint or elect as many as three new 3. Promotion of Efficiency, Competition oversee only one fund, down to $7037 independent directors. Most are likely and Capital Formation per fund, for boards that oversee a large to decrease the size of their board or add number of funds.68 Start-up costs in the one or two new directors. Our highest As noted by the Court, we must first year are somewhat more per fund: cost estimates are for boards that consider the impact of the costs of from $100,800 per fund for boards that oversee only a single fund, which is an compliance with the two conditions, oversee only one fund, to $11,624 per atypical situation. We think it unlikely both quantitative and qualitative, on fund for boards that oversee a large that such a board would choose the funds’ efficiency, competition and number of funds.69 For funds that capital formation. We find that the costs cannot appoint the new directors and 72 Two full-time staff ($314,639) plus 50 hours of of the 75 percent condition and of the must solicit proxies, the first year costs independent counsel ($15,000) equals $329,639. 73 independent chairman condition are per fund increase to $190,800 for boards Two full-time staff per fund ($42,519, see supra extremely small relative to the fund text accompanying note 60) plus 50 hours of legal that oversee only one fund, and to counsel per fund ($2027, see supra text $101,624 for boards that oversee a large accompanying note 63) plus $2674 (increased an independent staff and/or enhanced participation number of funds.70 Using any of the compensation and recruiting costs for an by independent counsel in fund complexes both independent chairman) equals $47,220. The large and small.’’). options, the costs per fund will be no increased compensation and recruiting costs for the 62 See supra note 36. more than a very small fraction of the independent chairman was calculated based on a 63 This estimate is based on the following fund assets for which the fund boards board that oversees 7.4 funds. See supra 60. The calculation: ($15,000 ÷ 7.4 funds per board = $2027 are responsible.71 estimate of $2674 is based on the following per fund). The costs of the independent calculation: ((($27,480 median compensation for a 64 See Beagan Wilcox, ‘‘Wanted: Independent director that oversees 7 to 19 funds ÷ 7.4 funds) + Chairmen,’’ Board IQ, July 6, 2004 (citing estimate chairman condition are likewise small. $743 recruiting costs) × 1.2 20% cost increase × .5 of Meyrick Payne, senior partner, Management Even if the independent chairman hires = $2674). The median salary for a board overseeing Practice Inc.). two full-time staff (at New York 7 to 19 funds was based on data provided in the 65 See supra text accompanying note 44. salaries), and uses 50 hours of April 2004 MPI Bulletin, supra note 24. 66 See supra Section III.A.1. 74 These costs represent our best estimates of the 67 ranges. We recognize that there may be ancillary These estimates are based on the following 68 calculations: (($4779 + $956) × 1.2 ÷ 3 × .5 = $1147); See supra note 46. costs, but we expect them to be minor and such (($37,500 + $7500) × 1.2 ÷ 3 x .5 = $9000). Funds 69 See supra note 44. costs should be covered by the generous cushion we that already have 75% independent directors would 70 See supra note 45. have built into our estimates and by our use of the only incur costs for the additional pay when one 71 We estimate that average fund assets in 2003 high end of the cost ranges. Moreover, in light of of these directors is appointed chairman. The costs were $912 million based on a total of assets in 2003 the benefits, we believe that even if the costs were for funds that must appoint or elect new of $7.414 trillion and a total of 8,126 mutual funds several times higher, they would continue to be independent directors is discussed in the previous (excluding funds that invest in other mutual funds). minimal and the rule amendments would still be section. We expect that almost all funds that do not See Investment Company Institute, 2004 MUTUAL justified. have an independent chairman would select one of FUND FACT BOOK, at 113. Fund expenses are 75 While the high-end costs may be applicable to the current independent directors to be the typically measured as a percentage of assets under a given fund, the high-end costs clearly will not be chairman. If a fund chooses to recruit an management and are required to be disclosed to applicable to all funds or even most funds. It would independent chairman, however, the fund would investors in this manner. See Item 3 of Form N–1A. be incorrect, and indeed misleading, to take the incur recruiting costs in the first year equal to the We believe that comparison to net assets is the most highest possible cost for a single fund and independent chairman’s first year salary. helpful for investors. extrapolate for the entire industry.
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more costly options of adding as many the amendments to the Exemptive Rules whether it has an inside or an as three new directors and hiring two to have a significant adverse effect on independent chairman and thereby full-time staff to assist the independent efficiency, competition or capital allow investors to make an informed chairman.76 formation because the costs associated choice.’’79 As discussed below, we do Moreover, these costs are slight in with the amendments are minimal and not believe this proposal—to provide relation to the very important benefits of many funds have already adopted the information to enable an informed the two conditions, as more fully required practices.77 To the extent that investment decision—would adequately discussed in the Adopting Release. The these amendments do affect competition protect fund investors from the potential 75 percent condition is intended to or capital formation, we said we abuses inherent in the conflict-of- promote strong fund boards that believed, and we continue to believe, interest transactions permitted under effectively perform their oversight role. that the effect would be positive. Among the Exemptive Rules. We reach this Enhanced oversight by a strong, other things, we believe the 75 percent conclusion in light of the nature of effective and independent fund board and independent chairman conditions investment companies and the purposes will serve to protect funds and their would enhance the quality and of the statutory prohibitions to which shareholders from abuses that can occur accountability of the fund governance the Exemptive Rules apply. when funds engage in the conflict-of- process. The estimates discussed in this As we explained in the release interest transactions permitted under release of the costs associated with proposing the 2001 amendments to the the Exemptive Rules. This will increase compliance with the 75 percent Exemptive Rules, funds are unique in investor confidence in fund condition and the independent that they are organized and operated by management and promote investment in chairman condition, and our further people whose primary loyalty and funds. While these benefits are not consideration of the effect of those costs pecuniary interest lie outside the easily quantifiable in terms of dollars, on efficiency, competition and capital enterprise.80 This ‘‘external we believe they are substantial, formation, do not alter this conclusion. management’’ structure presents particularly in comparison to the We believe that a more robust system of inherent conflicts of interest and estimated cost of compliance. The checks and balances on fund boards potential for abuses. The investment independent chairman condition will should raise investors’ expectations adviser firms that manage the funds provide similar benefits. The chairman regarding the governance of these have interests in their own profits that of a fund board can have a substantial funds.78 By promoting investor may conflict with the interests of the influence on the fund board agenda and confidence in the fairness and integrity funds they manage. And in many cases, on the fund boardroom’s culture. An of the individuals that monitor as we noted in the Adopting Release, independent chairman will advance investment companies, we promote fund boards continue to be dominated meaningful dialogue between the fund investor confidence in the fairness and by their management companies.81 adviser and independent directors and integrity of our markets. Investors will It was to address these conflicts of will support the role of the independent likely be more willing to effect interest that Congress in 1940 enacted directors in overseeing the fund adviser. transactions in those markets, which in the Investment Company Act, including Moreover, an independent board led by turn will help to increase liquidity and the statutory prohibitions to which the an independent chairman is more likely to foster the capital formation process. Exemptive Rules apply.82 Congress to vigorously represent investor Increased investor confidence in the found that the disclosure regimes of the interests when negotiating with the fund integrity of mutual funds also will lead Securities Act of 1933 and the Securities adviser on matters such as fees and to increased efficiency and Exchange Act of 1934 were inadequate expenses. We find that these cumulative competitiveness of the U.S. capital benefits fully justify the costs associated markets. 79 Slip Opinion, supra note 1, at 17. In their dissent to the adoption of the rule amendments, with the rule amendments. Further, it is B. Consideration of the Disclosure Commissioners Glassman and Atkins said: ‘‘We our judgment that, in the future, each of Alternative were hopeful when these board governance the proposed amendments is likely, amendments were proposed that alternative when taken together with other The Court of Appeals also stated that measures would be considered. Requiring a fund to disclose prominently whether or not it had an Commission reforms, to have a the Commission did not give adequate consideration to an alternative to the independent chairperson, for example, would allow significant potential prophylactic shareholders to decide whether that matters to them benefit in preventing harm from independent chairman condition, or not.’’ Adopting Release, supra note 2, Dissent of conflict-of-interest transactions—itself a discussed by the two dissenting Commissioners Cynthia A. Glassman and Paul S. Atkins, at text following n.46. benefit sufficient to justify these costs. Commissioners, that ‘‘each fund be required prominently to disclose 80 See Role of Independent Directors of Consistent with our view expressed in Investment Companies, Investment Company Act the Adopting Release, we do not expect Release No. 24082 (Oct. 14, 1999) [64 FR 59826 77 See Adopting Release, supra note 2, at Section (Nov. 3, 1999)], at n.9 and accompanying text. VIII. The costs for any fund are sufficiently small 76 81 Adopting Release, supra note 2, at text Because we find the adoption of the two that we think any adverse effect on competition will preceding n.8. conditions to be appropriate even looking at the continue to be minimal and will be justified by the 82 high end of the range of costs, we would reach the benefits of the rule, especially given our judgment See, e.g., S. Rep. No. 1775, 76th Cong., 3d Sess. decision not to modify the rule amendments even that small funds will choose options for compliance 7 (1940): apart from our discussion of the rest of the range with the conditions at cost levels that do not The representatives of the investment trust of costs. However, we consider that range pertinent approach the upper end of the range. industry were of the unanimous opinion that ‘‘self- and helpful in reinforcing our determination. Our 78 See, e.g., Comment Letter of Morningstar, Inc., dealing’’—that is, transactions between officers, use of the high end of the range also offsets any File No. S7–03–04 (Mar. 10, 2004) (‘‘Overall, we directors, and similar persons and the investment potential benefit from seeking information as to support the proposal, which should be beneficial in companies with which they are associated— costs incurred by funds that have come into early restoring the system of checks and balances that is presented opportunities for gross abuse by compliance with the two conditions since the date essential to ensuring that the interests of fund unscrupulous persons, through unloading of of our original adopting release (which funds are shareholders are represented.’’); Comment Letter of securities upon the companies, unfair purchases likely to constitute an evolving subset that may, in Joseph J. Kearns, File No. S7–03–04 (June 3, 2004) from the companies, the obtaining of unsecured or any event, not be representative of funds more (‘‘Having an independent chairman is in my inadequately secured loans from the companies, generally). As we have previously noted, engaging opinion the most important governance regulation etc. The industry recognized that, even for the most in further notice and comment procedures to obtain needed. * * * The shareholders need to see that conscientious managements, transactions between additional information would create a risk of boards are truly independent including their these affiliated persons and the investment significant harm to investors. leadership.’’). companies present many difficulties.
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to cope with the type of conflicts and investors’ interests. Under these independent directors that is critical for abuses that pervaded the investment circumstances, we do not believe that healthy fund governance.’’ 90 company industry.83 The Investment disclosure alone is sufficient to Meaningful dialogue is particularly Company Act, with its prohibitions adequately protect a fund investor important where the board is evaluating against transactions involving conflicts against the serious risk that the the types of transactions permitted by of interest and its detailed prescriptions managers of his or her investment will the Exemptive Rules. A board can most for the organization and governance of engage in self-dealing.86 effectively manage the conflicts of investment companies—particularly the Moreover, even if we assume that interest inherent in these transactions setting of standards for independent meaningful disclosure would be an where the board culture encourages directors, and their role as ‘‘watchdogs’’ adequate alternative to a requirement of rather than stifles open and frank for the interests of fund shareholders— an independent chair, there are discussion of what is in the best interest played a crucial role in restoring obstacles to making disclosure that of the fund. This is especially true in confidence in investment companies as would be meaningful. We doubt the connection with the conflicts of interest a regulated medium for investor savings. sufficiency of merely disclosing that a presented by these transactions because In the case of ordinary business fund does not have such a chair.87 For the best interest of the fund frequently corporations, the Federal securities laws prospectus disclosure to be meaningful, is different from the best interest of the protect investors by providing investors considering a fund would fund’s management company. Similarly, disclosure to enable them to make an have to be informed of the conflicts of we stated that the chairman of a fund informed investment decision.84 Even interest faced by fund advisers, the board ‘‘is in a unique position to set the with respect to conflicts of interest on complex role of the fund board in tone of meetings and to encourage open the part of managers of investment managing those conflicts, and the dialogue and healthy skepticism.’’ 91 An companies, disclosure in some cases can potential consequences to investors of independent chairman is better provide important protections. In the the failure of fund boards to protect equipped to serve in this role. An context of the subject of this against conflicts. It would be difficult to independent chairman also can play an rulemaking, for example, disclosure provide meaningful disclosure of these important role in serving as a may enable fund investors to decide matters. counterbalance to the fund’s whether to invest in a fund that does not In addition, we did not adopt the management company by providing have an independent chair. But the independent chairman provision in board leadership that focuses on the utility of such disclosure is limited. isolation. We adopted it as part of a long-term interests of investors. Disclosure concerning conflicts of larger package of regulatory reforms that None of these benefits can be interest on the part of fund managers should lead to enhanced compliance by 88 achieved merely by disclosure. We and the potential for self-dealing by funds that have independent chairs. continue to find that it is necessary and The independent chairman will be in a them does not prevent the managers appropriate in the public interest and position to receive reports from the from putting their interests ahead of consistent with the protection of fund’s compliance personnel. Under investors’ interests. Disclosure does not investors to condition a fund’s reliance rules we adopted in December 2003, prevent them from engaging in self- upon any of the Exemptive Rules upon each fund is required to have a chief dealing. While this is also true in the its having an independent chairman. case of managers of ordinary companies, compliance officer who is responsible investment companies are different in for, among other things, keeping the IV. Response to Comments of Dissenting this regard because of the structure and fund’s board of directors apprised of Commissioners at Open Meeting purposes of the Investment Company significant compliance events at the At the Commission’s open meeting in Act. That Act prohibits certain fund or its service providers and for this matter, the dissenting advising the board of needed changes in transactions that involve conflicts of Commissioners 92 raised various the fund’s compliance program.89 interest and the resulting potential for objections to our response to the Court We also observed that the chairman self-dealing. Indeed, protection against of Appeals. The dissenters, echoing can play an important role ‘‘in harm from self-dealing is one of the requests made by others, claim (i) that establishing a boardroom culture that express purposes of the Investment we are acting too quickly, which 85 can foster the type of meaningful Company Act. We believe the prevents further notice and comment dialogue between fund management and objectives of these conflict-of-interest procedures that are either required or prohibitions of the Act will best be desirable, and which prevents sufficient served by strengthening—through 86 The disclosure alternative would benefit consideration by the staff and enhanced independent oversight— prospective or future investors to a greater degree than existing investors in a fund. Existing investors, Commission, (ii) that our action is investor confidence that those charged once they receive disclosure of the independence of inconsistent with certain aspects of the with managing their fund will act in the the board’s chairman, may not be able to redeem without incurring costs, due to deferred sales loads, Court’s opinion, (iii) that we did not seek comments on the costs associated 83 See, e.g., H.R. Rep. No. 2639, 76th Cong., 3d redemption fees, taxes, or other transaction costs. Sess. 10 (1940): See Payment of Asset-Based Sales Loads by with the independent chair condition at The Securities Act of 1933 and the Securities Registered Open-End Management Investment the time of the initial rulemaking, and Exchange Act of 1934 have not acted as deterrents Companies, Investment Company Act Release No. (iv) that acting so quickly is to the continuous occurrence of abuses in the 16431 (June 13, 1988) [53 FR 23258 (June 21, 1988)] organization and operation of investment at text following n.188 (noting the restrictions on companies. Generally these acts provide only for the ability of existing investors to ‘‘vote with their 90 See Adopting Release, supra note note 2, at text publicity. The record is clear that publicity alone feet’’). preceding n.47. is insufficient to eliminate malpractices in 87 Indeed, most funds already disclose in their 91 Id. at text following n. 50. investment companies. public filings whether the chairman of the board is 92 Commissioners Cynthia A. Glassman and Paul 84 Even in the context of ordinary business independent. S. Atkins (‘‘dissenters’’) voted against this Response corporations, the federal securities laws do not rely 88 See Adopting Release, supra note 2, at text to Remand by Court of Appeals. Although exclusively on disclosure. See, e.g., section 13(k) of accompanying nn. 5–6. Commissioner Glassman provided a written copy of the Securities Exchange Act of 1934, 15 U.S.C. 89 Compliance Programs of Investment her oral remarks made at the meeting, the 78m(k) (prohibition on personal loans to Companies and Investment Advisers, Investment dissenting Commissioners did not otherwise executives). Company Act Release No. 26299 (Dec. 17, 2003) [68 provide us with copies of their written dissents 85 See Section 1 of the Act, 15 U.S.C. 80a-1. FR 74714 (Dec. 24, 2003)]. prior to the completion of this Release.
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unprecedented and unjustified. We indeed, the Court observed that part of Dated: June 30, 2005. disagree. our task on remand could be Margaret H. McFarland, We have largely addressed these accomplished ‘‘readily.’’ 97 Deputy Secretary. concerns, which are inter-related in With respect to suggestions by the many respects, previously in this Concurring Views of Chairman dissenters that our response to the Release. We have discussed the reasons Donaldson at Open Commission disclosure alternative is inconsistent that further notice and comment Meeting Commission Response To with the Court’s opinion, we note that procedures are not required, finding that Remand by Court of Appeals our discussion sets out the reasons why the existing record, together with other the Commission does not believe that The last item on our agenda is a information on which the Commission the disclosure alternative is superior for recommendation from the Division of may rely, is a sufficient basis for our Investment Management relating to decision on remand.93 We also have achieving the objectives of the Act, including those of the specific conflict- rules we adopted last year to enhance explained why, although they are not the governance practices of mutual required, we should not under the of-interest provisions that are addressed by the Exemptive Rules.98 funds. As a condition to a mutual fund circumstances engage in further notice engaging in certain transactions and comment procedures.94 Finally, we note that it is in the best involving conflicts of interest with the We have furthermore explained the tradition of this institution, and not at fund’s management company, the rules need to act promptly in this matter, all unusual, for the Commission to act require that the fund have a board with noting, among other things, the swiftly on important initiatives in at least 75 percent independent importance of avoiding a postponement response to market developments and directors and an independent chairman. of the compliance date and the other factors. The Commission has done The Commission voted to approve attendant potential harm to investors so on many occasions previously. In this 95 these fund governance rules in June and the market that would result. We matter, the staff and the Commission 2004, and we are acting today as a result find that any further delay or ambiguity have a strong foundation of experience of a recent decision by the District of surrounding implementation of the with the fund governance rules, and that Columbia Circuit Court of Appeals in a rules would disadvantage not only experience has enabled us to address case brought by the Chamber of investors but also fund boards and the issues raised by the Court within a Commerce. In that case, the Court management companies, most of which relatively short period of time, with the agreed with the Commission on two have already begun the process of assistance and extraordinary efforts of central points: first, that the coming into compliance with the rules. our staff. Commission had the statutory authority By acting swiftly and deliberately to under the Investment Company Act to respond to the Court’s remand order, the V. Conclusion adopt the fund governance rules; and Commission will reduce uncertainty, second, that the Commission’s facilitate better decision-making by We believe that this release fully funds, and ultimately serve the interests addresses the two issues remanded to us underlying policy rationale for adopting of fund shareholders. We also note that for our further consideration and the rules was reasonable. the issues remanded to us by the Court explication. The Commission However, the Court remanded two are discrete and clearly defined; 96 commends the efforts of the issues for our consideration. The Court Commission staff in this matter. The instructed the Commission to further 93 See supra Section II. As noted in our Adopting staff worked with great diligence, care consider certain potential costs of the Release, we received nearly 200 comments from and tirelessness, as well as with its new rules, and to consider a potential fund investors, management companies, usual even-handedness in the treatment alternative to the independent chair independent directors to mutual funds, as well as rule. Today’s recommendation members of Congress; and we also received several of all Commissioners. We further comments from organizations that had a more commend the staff for maintaining this addresses the Court’s concerns, which general interest in corporate governance issues. See high degree of professionalism in the we take quite seriously. Adopting Release, supra note 2, at Section I. face of a sharply divided Commission, Before turning to the specific issues Commissioner Glassman disputed that we sought comments in the Proposing Release on the costs and against the backdrop of a campaign raised by the Court, I would like to associated with the independent chairman’s hiring of unwarranted public attacks on the briefly put this rulemaking in of additional staff. In support of this, she cited Commission and its processes perspective and highlight some of the language in the Proposing Release which, she very important benefits that I believe it argues, requested comments on certain other costs apparently orchestrated by some outside but ‘‘expressly declined’’ to request comments on the Commission. will bring to investors and to the mutual fund industry. the cost of the independent chairman’s hiring of Upon our further consideration of the additional staff. This is incorrect. In fact, the When Congress enacted the costs and of the disclosure alternative, Proposing Release expressly sought comments on Investment Company Act in 1940, it ‘‘the costs’’ of the condition requiring ‘‘[a]n we have concluded that the benefits of recognized that conflicts of interest in independent director to be chairman of the board.’’ the 75 percent independent director the mutual fund industry pose serious See Proposing Release, supra note 11, at Section condition and the independent V.B. In addition, the Proposing Release included a risks to fund shareholders. Funds are chairman condition far outweigh their general request for comments on the potential costs organized and operated by people and benefits of the rule. See id., at Section V.C. costs, and that the disclosure alternative whose primary economic interests lie 94 See supra Section II & note 76. Commissioner does not afford adequate protection to outside the enterprise, and, without Glassman argues that we are using estimates rather fund investors. Accordingly, we have than ‘‘actual data’’ when ‘‘actual costs’’ are appropriate checks and balances, this determined not to modify the available, now that funds have started to come into structure can readily lead to abuse. To compliance with the rule amendments. As amendments. discussed above, however, the estimates are based address the conflicts, Congress on actual data previously available to us; and, for * * * * * established minimum governance reasons stated above, we have determined that it is By the Commission. requirements under the Act, based on its unnecessary to supplement that data with determination that a fund’s board of information about funds that have come into early compliance. See supra note 76. 97 Id. at 16. directors, particularly its independent 95 See supra Section II. 98 See supra Section III.B. (Consideration of the directors, should serve as watchdogs to 96 See Slip Opinion, supra note 1, at 2, 15–17. Disclosure Alternative). protect the interests of investors.
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Congress also prohibited funds from represent the interests of fund investors the potential impact of these costs. I will engaging in certain types of affiliate in the boardroom while also serving as leave it to the staff to explain the transactions and other transactions that executives of the fund’s adviser. But numbers in greater detail, but suffice it are most susceptible to abuse, while at they undeniably face a central conflict to say that our analysis strongly the same time granting the Commission of interest. When the CEO of a mutual confirms the conclusion that the broad authority to provide exemptions fund’s adviser is simultaneously serving potential costs to mutual funds of when in the public interest. Since 1940, as the chairman of the mutual fund appointing independent chairmen, and the Commission has adopted a variety of itself, this person is in the untenable ensuring that 75 percent of their exemptive rules that permit otherwise position of having to serve two masters. directors are independent, are minimal prohibited transactions, but only under On the one hand, he or she owes a duty when compared to the substantial certain carefully tailored conditions, of loyalty and care to the mutual fund; benefits that these governance rules can which include active oversight by on the other hand, the person owes a bring in terms of reducing conflicts of independent directors. separate duty to the shareholders of the interest and protecting investors. Beginning in 2003, a series of fund’s investment adviser. It is easy to Second, with respect to alternatives, scandals were uncovered in the mutual see that these two duties are often in the Court asked the Commission to give fund industry involving truly egregious, conflict, particularly when it comes to further consideration to an alternative to illegal and unethical behavior on the setting the level of fees the fund will the independent chair condition that part of fund advisers. Advisers in a host pay the adviser. would require funds simply to disclose of different fund complexes knowingly The independent chair condition is whether or not they have independent endorsed, among other abuses, late the capstone of our series of mutual chairmen. This is an issue on which we trading, market timing (including some fund governance reforms that will help received comment prior to adopting the advisers timing their own funds), foster a culture in fund boardrooms independent chair rule last year, and directed brokerage, and selective based on transparency, arm’s length today’s proposal explains our reasons disclosure to favored investors. The dealing, and, above all, protection of the for rejecting the disclosure alterative. scandals resulted in enormous losses for interests of fund shareholders. The rules While many of our other rules are based investors, and revealed systemic will also, I believe, help to strengthen on disclosure requirements, there are breakdowns in compliance systems, the compliance function at mutual important reasons for taking a stronger, weaknesses in fund governance funds by providing a truly independent more substantive approach in the structures and a significant betrayal of body to which the chief compliance context of mutual fund governance. As investors’ trust. officer can report. I noted a few moments ago, the very The Commission responded to the Before turning to today’s proposals, I structure of the typical mutual fund scandals in a swift and comprehensive would like to underscore an important gives rise to serious conflicts of interest manner. We have brought numerous point. The recent opinion of the Court between the adviser and the enforcement cases and obtained over of Appeals upheld the validity of the shareholders, and this is the reason that $2.2 billion in disgorgement and fundamental rationale underlying the Congress established flat prohibitions penalties, which can be used to Commission’s fund governance rules. on certain types of fund transactions. compensate harmed investors. In The Court agreed with the Commission For the Commission to grant exemptions addition, in the last year and a half, the that strengthening the role of from these prohibitions, we must see to Commission has adopted a number of independent fund directors was a it that investors are given assurances rules designed to ensure better reasonable response to the risks of that their interests will be protected. As compliance by funds and advisers with further abuse in the mutual fund adopted, the independent chair the Federal securities laws, promote the industry. Moreover, as I noted a moment condition will go a long way toward accountability of fund officers and ago, the Court found that the governance providing those assurances. Relying directors, and enhance disclosure to rules fall within the Commission’s solely on disclosure, on the other hand, investors. statutory authority under the Investment would allow a flawed governance The fund governance rules are a Company Act and, specifically, that the structure to continue in many funds to critical component of the Commission’s emphasis on independent directors is the detriment of fund shareholders. reform efforts. By strengthening the role consistent with the structure and Concern has been raised about the of the independent directors, the rules purpose of the Act. timing of the Commission’s actions enhance the ability of fund boards to The Court identified two specific today. The Commission’s actions today provide badly needed oversight of the issues that required further are fully consistent with the opinion of activities of their advisers and monitor consideration by the Commission. First, the Court of Appeals and with the other conflicts of interest. The independent with respect to costs, the Court stated legal requirements applicable to chair condition allows individuals who that the Commission should give further Commission rulemaking. The issues are truly free from conflict to exercise consideration to the potential costs of raised by the Court are clearly defined, leadership in the boardroom. This point the 75 percent independent director and the existing rulemaking record and was underscored in a comment letter condition and the independent chair other publicly available materials have submitted by all seven of the living condition. Prior to adopting the fund permitted the Commission to address former Chairmen of the Commission, governance rules, the Commission them in the manner contemplated by who wrote: ‘‘An independent mutual sought and received comment on the the Court without further notice and fund board chairman would provide costs associated with these conditions, comment. Indeed, by not vacating the necessary support and direction for and we concluded that the costs were governance rules, but instead remanding independent fund directors in fulfilling minimal in relation to the benefits. As them to the Commission without their duties by setting the board’s instructed by the Court, today’s ordering any particular procedures, the agenda, controlling the conduct of proposal provides a detailed estimate of Court contemplated that any meetings, and enhancing meaningful these potential costs, based on a variety deficiencies in the initial rulemaking dialogue with the adviser.’’ of different possible approaches of could be cured without unnecessarily The Commission recognizes that there complying with the new rules, and the reversing course or restarting the are fund chairmen who strive to Commission has carefully considered rulemaking process.
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Moreover, there are compelling policy staff has worked on it. It is a very The mutual fund business is based on reasons for the Commission to act serious cost analysis. investor trust, and, after the grievous expeditiously on these matters. As I Let me begin a more serious breaches of trust disclosed by the have stated, the governance rules are a discussion by making clear what the mutual fund scandals, it is of great critical component of our reform efforts, D.C. Circuit Court did—and did not importance to continue to bolster and any further delay or ambiguity do—on June 21st. investor confidence in the governance of surrounding their implementation First, the Court expressly upheld our funds. would disadvantage not only investors statutory authority to require mutual This Commission has spent nearly but fund boards and management funds to have a board consisting of no two years considering mutual fund companies, most of which have already less that 75% independent directors and disclosure, governance, and other rules. begun the process of coming into an independent chair. In the face of As was true of our action today on compliance with the rules. By acting claims of ‘‘regulatory overreach,’’ the ‘‘securities offering reform,’’ we have swiftly and deliberately to respond to Court held that the ‘‘Commission did labored too hard—and the governance the Court’s concerns, the Commission not exceed its statutory authority’’ in provisions are too important—for us not will facilitate better decision-making adopting the two governance to act in the public interest. As and ultimately serve the interests of conditions. Chairman Donaldson put it, ‘‘failure to fund shareholders. Second, there were challenges to the act would have a severe detrimental wisdom and effectiveness of our mutual I would also point out that it is in the effect’’ on investors. Of course, as we fund governance provisions. I have best tradition of this institution, and not have just done with respect to securities stated often that given the fundamental at all unusual, for the Commission to act offering reform, a future Commission need for directors to deal with the swiftly on important initiatives in would be able to modify or reverse inherent conflicts of investment response to market developments and anything we do today that the new managers, a critical mix of at least 75% other factors. In this case, the staff and Commission concludes is of independent directors makes this Commission have a strong counterproductive. compelling policy sense. The Supreme Let me now address briefly the foundation of experience with the fund Court has described mutual fund crocodile tears being shed about the governance rules, and that experience independent directors as necessary need to not move forward out of respect has enabled us to address the issues ‘‘watchdogs’’ to police mutual fund for the Court of Appeals. I believe that raised by the Court within a relatively conflicts of interest. Similarly, an the release we will approve today fully short period of time, albeit with the independent chair helps to ensure responds to the Court’s concerns. I have assistance of truly Herculean efforts on proper information flows, establish great respect for our panel of three the part of our staff. sensible board priorities and agendas, strong, highly intelligent and talented There is another important reason for and encourage candid and thorough judges. This matter will quickly be back us to act today. Our failure to act would, discussions in the boardroom. before those judges. If we are wrong I fear, throw the future of this The D.C. Circuit Court recognized our about being fully responsive, the Court rulemaking into an uncertain limbo prudence in ‘‘strengthening the role of will certainly tell us so. But, if we are until a new Chairman is confirmed and independent directors in relation to right about being fully responsive, we the new Chairman is able to familiarize exemptive transactions as a will have ensured an enormously better himself with the rulemaking record and prophylactic measure * * * .’’ The day for investors in mutual funds. As the policy considerations weighing for Court held that our policy rationales for the Circuit Court recognized, our two and against the decision that we made the two new governance provisions governance rules are designed to last year. Today, however, we have were justified. strengthen the independence and intact the full complement of Third, the Court then remanded in the effectiveness of fund boards, and Commissioners who have spent the last two deficiency areas that have been thereby, protect shareholders from year-and-a-half thinking about the identified , and asked us to address serious conflicts of interest. issues raised in this rulemaking, and them. Obviously, for me, in an $8 trillion with my imminent departure from the An initial issue for us was whether it industry, the benefits of the two new Commission, today is the last was necessary to engage in additional governance provisions plainly and opportunity to bring the collective fact-gathering or further notice and overwhelmingly outweigh their costs. judgment and learning of we five comment procedures. We concluded A full discussion of the ‘‘disclosure Commissioners to bear on the important that the information in the existing alternative’’ to the independent chair questions presented to us by the Court. record (which had involved an provision is contained in our release. Concurring Views of Commissioner extensive notice and comment process) For now, let me just emphasize again Harvey J. Goldschmid at Open provided a more than sufficient basis to that the interrelation between Commission Meeting Commission address the deficiencies. The Circuit investment advisers and mutual funds Response To Remand by Court of Court could, of course, have required us presents complex and pervasive Appeals to do new fact-gathering, but did not do conflict-of-interest issues. so. The dynamics of a mutual fund As has just been demonstrated by Given what we believe is the boardroom—including what may be the Commissioner Glassman, emotions have adequacy of the information available in dominance of the chair (who often run extremely high in this area. There the record, there would be large costs to controls information flows, board has been too much confusion and new fact-gathering. By acting promptly agendas, etc.)—is extremely difficult to hyperbole—‘‘hyperbole’’ is the most we avoid the cost of new fact gathering, disclose in a meaningful way. It is gentle word that I can use. Among avoid what could be a substantial period similarly difficult for the 90-plus others, I found her statement about the of uncertainty for mutual fund million shareholders of mutual funds to staff’s cost analysis being ‘‘back of the governance, and ensure that fund digest and evaluate. But those of us who envelope’’ quite extraordinary. I shareholders will receive the critical have spent most of our professional reviewed the cost analysis with great protections afforded by the new lives working on issues of corporate care, and everyone knows how hard the governance rules without further delay. governance—and have witnessed the
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failings of mutual fund governance Generals revealed that dozens of well ahead of the interests of the mutual demonstrated by nearly two years of known mutual fund families had turned funds it had a duty to serve. In this case enforcement actions—fear that large profits at the expense of mutual the adviser recommended that the permitting investment managers to fund investors. Looking only at the top mutual funds contract with an affiliate continue to chair mutual fund boards nine fund families, billions of dollars of the adviser to serve as transfer agent would significantly increase the danger were literally stolen from mutual fund without fully disclosing to the mutual of future abuse. investors by executives who placed funds’ boards that most of the actual I think the same reasoning convinced their personal gain above the interests of work was to be done under a Congress in 1940, in enacting the their investors whom they were sworn subcontract arrangement that had been Investment Company Act, to go well to protect. It became clear that many negotiated with the mutual funds’ beyond disclosure and provide both fund executives participated in existing third-party transfer agent at Exemptive Rules (prohibitions against sweetheart schemes in which privileged transactions involving conflicts of third parties such as hedge funds were steeply discounted rates. Rather than interest) and detailed prescriptions for allowed to market time mutual funds passing the substantial fee discount on the organization and governance of and to engage in late trading, siphoning to the mutual funds, the adviser, mutual funds. As we said in our July off billions of dollars of fund value at through the newly created affiliated 2004 Adopting Release: ‘‘[the chair of a the expense of unknowing and transfer agent took most of the benefit of fund board] is in a unique position to unsuspecting mutual fund investors. the discount for themselves, reaping set the tone of meetings and to Indeed the scandal and harm was so nearly $100 million in profit at the encourage open dialogue and healthy egregious that Republican Congressman funds’ expense over a five year period. skepticism.’’ An independent chair can Mike Oxley, who of course authored The funds did not have an independent both help to counterbalance the fund’s with Senator Paul Sarbanes the famed Chairman. Citigroup and Smith Barney investment adviser and provide Sarbanes-Oxley Act, decided to study paid over $200 million in disgorgement leadership that makes paramount the the situation. Long a champion of and penalties. interests of fund investors. Put bluntly, protecting investors, Congressman the disclosure alternative does not Oxley did his homework and wrote II. The Agency’s Objective Has Been afford adequate protection to fund several strong letters of support for the Investor Protection and To Restore shareholders. In this area, it is simply an SEC’s subsequent independent Confidence Chairman rulemaking that is the subject unrealistic idea. In response to this explosion of Finally, this is Chairman Donaldson’s of the Court’s Remand. In his letter to mutual fund fraud and theft by adviser final public meeting. I must express my the Commission dated May 20, 2004, deep sadness—both on a personal level Congressman Oxley noted that he had executives, the Agency moved promptly and for all decent participants in our been closely following the debate to protect investors. It designed a financial markets—at his leaving. Bill, regarding the SEC’s proposal to require combination of new governance and you have played a major role in independent fund Board Chairman. compliance rules. One of these rules restoring investor faith in the integrity After reviewing publicly available mandates that advisers establish chief and fairness of the nation’s financial information, the Congressman stated in compliance officers who report directly markets. You have also restored the his letter that ‘‘The statistics I to the mutual fund board. The capstone public’s faith in the SEC. Your uncovered are startling. Eighty-four however of the SEC’s effort to protect leadership, honesty, and courage will percent of the mutual fund families investors and deal with a serious long be celebrated, and you will be implicated in the market timing and late breakdown in management controls greatly missed. trading scandals (sixteen of the nineteen were the two conditions adopted on July The Commission staff has done a mutual funds) have had management- 27, 2004 that are the subject of this splendid job on this release. Mike affiliated chairmen [non-independent] Remand, that fund boards have at least Eisenberg, Bob Plaze, Giovanni at some point during the alleged or 75% independent directors and an Prezioso, Jonathan Sokobin, and all the admitted violations.’’ He noted the independent chairman. rest of you, thanks for your terrific SEC’s actions against Invesco Funds, The Agency’s purpose in proposing effort. Franklin Templeton Funds, Janus, I have no questions. Putnam, Strong Funds, and MFS Funds the conditions was to protect investors in particular, which collectively settled from serious harm and from a Concurring Views of Commissioner for a total of over $700 million in breakdown in funds’ existing controls Roel C. Campos at Open Commission disgorgement and penalties. Urging the and structure. In addition to investor Meeting Commission Response To Commission to adopt the proposed rule protection, I and the other majority Remand by Court of Appeals without amendment, Congressman Commissioners were also very Thank you Chairman Donaldson. I Oxley went on to say, ‘‘I believe the concerned that the mutual fund have a short statement to make about Commission’s independent chairman industry as a whole was under siege by this action regarding our Agency’s proposal would eradicate the self- the acts of a greedy few. Investor mutual fund governance rulemaking dealing by interested, management- confidence in the integrity of mutual and the Response to the Remand by the affiliated chairmen and its harmful funds was damaged and needed to be Court. effect on mutual fund shareholders.’’ restored. Our mission also to protect the Unfortunately, threats to mutual fund integrity of the financial sector was I. American Mutual Fund Investors investors continue to be uncovered by being challenged. It is worth noting that Have Been Under Attack our Agency. On May 31, 2005, for Beginning about two years ago the example, the Commission announced a the industry association the Mutual American public and this Agency settlement with Citigroup Global Fund Directors Forum also supports the became suddenly aware that American Markets, Inc and Smith Barney Fund rules because of their concern for the mutual fund investors were under Management. The Commission’s Order overall health of the industry, even attack. In quick order, investigations by noted that the investment adviser though a significant fund family was this Agency and other State Attorney placed its interest in making a profit against the rule.
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III. The Court of Appeals Upheld the statutory obligation to consider whether directions to expressly consider the SEC’s Authority To Enact the Rules and the conditions will promote efficiency, alternative is accomplished in a full and Approved of the Rationale competition and capital formation, the adequate manner in the Commission’s The two new conditions adopted by Commission did not adequately response. consider costs associated with both the the SEC were challenged by the V. Dispatch, Focus, and Diligence Does 75 percent independent board and the Chamber of Commerce, which Not Equate to Inattentiveness or Failure submitted a petition for review to the independent chairman conditions. Secondly, the Court stated that the to Analyze Carefully U.S. court of Appeals of the District of Commission did not give adequate Columbia Circuit. On June 25, 2005, the There has been a consistent reporting consideration to an alternative called Court of Appeals issued its decision. in the press that advocates for the the ‘‘disclosure alternative.’’ Chamber’s position claim that any The decision has been regularly been The Commission in its Response to mischaracterized in the press. action in response to the Court’s remand the Court’s Remand has carefully that does not include a new notice and The DC Circuit Court stated on page considered the adequacy of the existing 2 of its opinion, ‘‘We hold that the comment period is somehow improper record and the need for further fact and disrespectful to the Court of Commission did not exceed its authority finding to properly consider and to in adopting the two conditions, and the Appeals. Quite simply, that contention follow the Court’s direction on remand. is absurd on its face. Immediate Commission’s rationales for the two Given that the Commission labored for conditions satisfy the Administrative attention and diligence and a focusing over one year in studying the matter, it of staff resources to respond to the Procedures Act.’’ The decision is is not surprising that the existing record, meaningful because it clarifies the Court’s Remand shows the utmost in developed through full notice and respect and in placing the matter at the Commission’s authority to regulate the comment procedures, is vast and ample. corporate governance of mutual funds highest level of priority. Specifically the Commission had also Quite frankly, this Agency prides under section 6(c) of the Investment previously sought and received Company Act and dispels the notion itself in meeting impossible deadlines comment on the costs of the two and turning around prodigious amounts that such issues are left entirely to state conditions and had further elicited law. of work in short time frames. Examples comment on the disclosure alternative. are innumerable. However, one clear As the Court holds on page 12 of its It is clear under Circuit cases that the opinion, ‘‘The Commission reasonably example occurred during the last days agency is free on remand to determine of former Chairman Pitt’s tenure from concluded that raising the minimum whether supplemental fact-gathering is January 22, 2003 to January 31, 2003. In percentage of independent directors necessary and sufficient to address on a ten day period, the Commission (with from 50% to 75% would strengthen the remand the court-identified the same four Commissioners that hand of the independent directors when deficiencies. Accordingly, after careful enacted the rule in question, except for dealing with fund management, and review, the Commission has determined Chairman Donaldson), enacted no less may assure that independent directors that the existing record and information than ten rulemakings, several on a twice maintain control of the board and its publicly available at the time of the a day schedule, and several being final agenda.’’ The Court also upheld the original adoption is a sufficient base on rules or comments. The day after Commission’s conclusion that an which to consider and follow the WorldCom filed a surprise restatement, independent chairman provides ‘‘a Court’s directions on remand. check on the adviser, in negotiating the The proof of the sufficiency of the this Agency had filed a lengthy best deal for shareholders * * * and in existing record is in the careful complaint to move swiftly to protect providing leadership to the board that estimates of costs and calculations assets for victims of fraud. This Agency focuses on long-term interests of performed in the Commission’s never missed a deadline in fulfilling investors.’’ Response. The estimates and ranges Congress’ mandates to implement the In considering both the 75% rule and track exactly the directions in the requirements of Sarbanes Oxley, the independent chairman requirement, Court’s Opinion for formulating the resulting in more rulemakings in one the Court held, on page 12 of the estimates for the costs of the two year alone, during 2003, than in any opinion, ‘‘In sum, the Chamber points to conditions. Conservative estimates have other decade in its history. nothing in the Investment Company Act been made and cushions to cover all The ultimate refutation of the that suggest the Congress restricted the possible costs have been added to accusation to a rush to judgment is the authority of the Commission to make calculations. ostensible high quality of the ‘precautionary or prophylactic The key conclusion is that under the Commission’s Response and the responses to perceived risks’ and the most conservative estimates of costs for analysis therein. Commission’s effort to prevent future implementing the conditions, the total VI. There Is an Absolute Urgency in abuses * * * was NOT arbitrary, costs are minimal under any measure. Moving Forward To Implement the capricious, or in any way an abuse of its As such, there is no reasonable basis for Protections Judged Necessary by This discretion. * * *’’ believing that any additional fact Agency finding would alter in any way this IV. The Commission Has Carefully conclusion. Indeed, as allowed for This Commission has concluded that Followed the Directions of the Remand consideration under Circuit cases, the serious threats exist to mutual fund With Respect to the Finding That the Commission’s Response cites recent investors. The Commission’s judgment Commission Did Not Adequately studies subsequent to the original is that extra prophylactic measures in Consider the Costs Imposed Upon the adoption that confirm the original the two conditions involving the 75% Funds by the Two Challenged information. (See Response, FN 69) independent board and the independent Conditions The Commission also reanalyzes and Chair will add significant benefits to The Court remanded to the discusses why the notice alternative is investor protection to combat the types Commission two deficiencies that it deficient. As explained, this alternative of fraud that have been uncovered. The identified in the rule making. First, the was previously considered and Court in its Opinion stated that such Court held that, in connection with the implicitly rejected. The Court’s conclusions were reasonable and that
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there exists ‘‘no basis upon which to I vote in favor of the proposed hold today’s meeting was made just second guess that judgment.’’ response to the Court’s Remand and I hours after the issuance of the Court’s The Commission therefore has a support all of the substantive contents decision further demonstrates the binding obligation to implement as in the proposed response. cursory nature of the ‘‘review.’’ It does not require a clairvoyant to discern the expeditiously as possible the subject Dissent of Commissioner Cyntha A. real reason for the rush to judgment— rule to protect investors and also to aid Glassman to the Commission Response indeed, much to my surprise, the sustaining investor confidence resulting To Remand by Court of Appeals proposed release openly states it—the in protecting the integrity of the Investment Company Governance markets. Quite simply, a variation of an Chairman has announced his old adage applies in this context: I disagree with this rush to respond to resignation effective tomorrow and ‘‘Investor protection delayed is investor the Court’s remand of the ‘‘independent therefore this meeting must be held protection denied.’’ To not move chair’’ rulemaking in the strongest today. What is not expressly stated in quickly would be a violation of the duty possible terms. Last fall, the Chamber of the release, but is equally clear, is the of the Agency to protect investors and Commerce of the United States of majority’s fear that in the absence of the the markets. America challenged two provisions in Chairman’s participation, the rule will There have been accusations that the the Commission’s mutual fund not be implemented. This concern, Commission is doing something for that, governance rule, adopted over my and whether real or imagined, does not for lack of a better term, is ‘‘sneaky’’ or Commissioner Atkins’ dissent, in July justify ignoring the Commission’s devious in responding to the Court 2004, namely, the requirements that obligation to address properly the APA within the last days of this particularly investment companies relying on our deficiencies found by the Court. constituted Commission. Again, this exemptive rules have an independent Before addressing some of the accusation is patently absurd. The chair of the board of directors and a substantive problems with the proposed board composed of at least 75 percent Commission is not doing anything release, it is important for the public to independent directors. Last Tuesday, ‘‘under the cover of darkness.’’ The understand the procedural deficiencies June 21st, the United States Court of Commission acknowledges the fact that surrounding this proceeding. To begin, Appeals for the District of Columbia Chairman Donaldson is at the end of his the procedure employed by the Circuit granted the Chamber’s petition service. This fact only adds to the Chairman in placing this matter on the requesting the Court to set these urgency in that the full Commission that agenda today was unusual. The Code of requirements aside and prohibit the has thoroughly studied the issue should Federal Regulations requires that we Commission from implementing and be the one to deal if possible with provide a ‘‘sunshine notice’’ of an open enforcing them. In its unanimous proper care with the Court’s instructions meeting. An individual Commissioner decision, the Court held that the on Remand. known at the ‘‘duty officer’’ typically Commission violated the Administrative signs this notice. The designation of There is also another clear set of facts Procedures Act, or the APA, by failing duty officer rotates weekly among the that the Commission must deal with. If adequately to consider the costs mutual Commissioners, but not the Chairman. it did not act expeditiously in funds would incur in order to comply Last week, I was the designated ‘‘duty responding carefully and fully to the with the conditions and failing officer.’’ Nonetheless, I did not learn Court’s Remand, a state of limbo will adequately to consider at least one until the next day that the Chairman occur as to this rulemaking. There can reasonable proposed alternative to the had instead opted to serve as the duty be no prediction when the new independent chair condition. The Court officer for this matter and ‘‘sign off’’ on Chairman and possibly other therefore remanded the proceeding to the notice. To the best of my knowledge, Commissioners will be nominated by the Commission to address the the Chairman has never previously the President and confirmed by the deficiencies identified by the Court. served as duty officer during his tenure Senate. What is certain is that many In my view, a prudent response to the and his decision to do so—in this matter mutual funds that are in the midst of Court’s mandate would be for the only—is without precedent. implementing the new rules will be Commission to seek public comment on A claimed rationale for proceeding on ‘‘left hanging’’ and may have to incur the issues identified by the Court as the matter today is that it is ‘‘important unnecessary or additional costs as they violating the APA. Instead, if this action and appropriate for the same five of us await finality on these rules. is approved, the agency, through a to address the issued raised by the Court Ultimately, if the Commission were chairman who is resigning effective on remand’’ because of our ‘‘unique not to have acted with speed and tomorrow, will have elevated form over familiarity with these matters.’’ This is dispatch in responding to the Court’s substance once again. ludicrous—I do not believe and I Remand, investor protection and On the same day that the Court issued challenge the majority to find any integrity of the markets will not be its decision, I received an e-mail support for the notion that only those served. message from the Chairman’s chief of involved in a particular rulemaking I for one must support the protection staff informing me, without prior have enough knowledge to effect any of investors and our markets. consultation, that the staff had reviewed changes to it. Indeed, if this observation Therefore, I conclude that the the Court’s opinion and ‘‘concluded that were true, the agency’s regulations Commission had no choice but to act the court’s concerns can be addressed would be set in stone and could never expeditiously and quickly in responding on the basis of the record already before be modified once there was a change in to the Court’s Remand. The Commission the Commission.’’ As such, the the Commission’s constitution. was also in a position to prepare a Chairman determined that this matter More disturbing is the statement in thoughtful and quality response in short would be on today’s open meeting the action memorandum circulated with order. agenda—a mere week following the the proposed release ‘‘request[ing] that Indeed, anyone who supports another Court’s remand. While the Commission any concurring or dissenting statements course of action by the Commission has an excellent and hardworking staff, be circulated prior to the meeting’’ risks hampering investor protection and it is simply not possible to conduct a today. This is yet another new places other interests above investors thorough review ‘‘of the record’’ in this procedure unique to this proposal. The and the overall health of the markets. time frame. The fact that the decision to stated basis for this request is to allow
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any such statement to be published the April 2005 staff report submitted to actual costs are readily available and contemporaneously with the release, the Congress which submission was can easily be obtained through a request because it is contemplated that the mandated by the Consolidated for public comment. release will be adopted today and Appropriations Act of 2005. It strains all Likewise, the Commission cannot on published before the Chairman’s credibility to believe that the the basis of the record before it address departure. What this really shows is that Commission, professing for the past year the alternative proposal identified by the issues have been ‘‘pre-judged,’’ and a half its lack of a reliable basis, has the Court that each fund be required which is a violation of our duty as mystically within the past week been prominently to disclose whether it has Commissioners and yet another reason able conclusively to estimate costs an inside or an independent chair and to believe that this matter will not associated with the rule. thereby allow investors to make an survive a legal challenge. In any event, More fundamentally, the Commission informed choice. When the Commission as a practical matter, no ‘‘advance copy’’ cannot address the costs associated with initially sought comment at the proposal of a dissent was possible given the the independent chair’s hiring of staff stage, it did not seek specific comment compressed time frame for this meeting and experts because it expressly on whether disclosure was a viable and the fact that the staff continued to declined to ask for comment on this alternative. Rather, the Commission revise the proposed release up until and issue. Specifically, in part V.B. of the only asked generally for comment on including yesterday evening. I request proposing release, published in January alternatives, followed by a series of that this statement accompany the 2004, the Commission recited that the specific alternatives that did not include release and serve as my dissent pending proposed release would require: (1) An disclosure. Nonetheless, today’s an opportunity to provide a more formal independent director to be chair; (2) proposed release attempts to suggest dissent after I have had an opportunity directors to perform an annual that robust comment on a disclosure to review the release as adopted. evaluation of the board; (3) independent alternative was solicited, citing two Turning to the proposed release, on directors to meet in executive session at comment letters that briefly mention— Friday evening, June 24, the staff least quarterly; and (4) independent and I might add support—disclosure as circulated a 27-page draft of it. This directors be given specific authority to an alternative. It is noteworthy that the draft, produced a mere three days after hire employees. Immediately thereafter, staff, in compiling for us a summary of the Court’s opinion, contains what can the release states: ‘‘We request comment the 200 plus comment letters to this only be described as a back of the on the costs of the first three items rulemaking, did not include any envelope calculation of costs that rest above, and on whether boards would reference to disclosure as alternative. largely on the staff’s ‘‘estimates’’ and choose to hire employees.’’ Although This is because this issue simply was ‘‘judgment’’—two buzzwords used the last version of the proposed release not addressed in more than a handful of repeatedly in the release. Subsequent I received last night continues to state these letters. drafts were circulated late Monday and that we ‘‘specifically sought and As the Commission conceded in its Tuesday evening. Numerous revisions received comment’’ on this cost, it is brief to the Court, the truth of the matter were made to each draft to which I have indisputable that we have never is that the Commission did not consider not been afforded adequate opportunity solicited comment on the costs ‘‘all’’ alternatives in adopting the rule to review. I have no way of determining associated with the hiring of staff—one because, in the majority’s view, the whether there is any validity for the cost of the very issues that the Court has now Commission was not required to do so. analysis and the context for these costs. directed the Commission to address on Implicit in the single paragraph in the For example, how do these costs relate remand. Commission’s brief devoted to this as a percentage of a fund’s total In an apparent effort to bolster the significant issue is the expenses? argument that the Commission had, in acknowledgement that no consideration I need not dwell on the failings of the fact, considered costs based on the was given to a disclosure alternative, proposed release. It is sufficient to state record before it, the proposed release even though this alternative provides that the release is an assembly of false indicates that information ‘‘publicly the Commission with a rule-making statements, unsupported assumptions, available at the time we originally option that, as the Court observed, is flawed analysis, and misinterpretations. adopted the amendments’’ is sufficient ‘‘neither frivolous nor out of bounds.’’ However, one often-repeated statement to base the Commission’s current The proposing release rejects in the release—that the Commission can discussion of costs. The latest version of disclosure as an inadequate alternative address the Court’s concerns on the the release now also includes a passing on the basis that it would not protect basis of the record already before the reference to ‘‘supplementary public investors from the ‘‘potential abuses Commission—must be corrected. To be information’’ without elaboration. It is inherent in the conflict-of-interest clear, the Commission cannot address curious indeed that in proposing this transactions permitted under the the Court’s concerns on the basis of the release the Commission has forgone exemptive rules.’’ In its remand opinion record already before the Commission. It examining subsequent data of real costs however, the Court dismisses this cannot address the costs because, that mutual funds have incurred since argument as irrelevant, finding instead contrary to whatever representations the the adoption of this rule last year as that the fact the Congress in the staff makes today, the Commission has these funds prepare for the rule’s Investment Company Act required more repeatedly and consistently represented implementation date. It is even more than disclosure with respect to some to the Court, to Congress and to the curious that the purported basis to matters governed by that statute does public that it has ‘‘no reliable basis for exclude actual data rests on the theory not mean that Congress deemed estimating’’ the costs. This statement, that our estimate of costs is on the ‘‘high disclosure insufficient with respect to both in connection with the costs end of the range’’ rendering an all matters. Without soliciting comment associated with electing independent examination of actual data unnecessary. on this issue, we have no basis to directors, and with the costs incurred by This logic is backwards—it is the actual discern whether the public would or an independent chair hiring staff, data which makes estimates would not find disclosure meaningful. appears repeatedly in the proposing and unnecessary. As an economist, I cannot Nonetheless, the release concludes that adopting release, in the Commission’s accept estimates and ‘‘best judgments’’ disclosure would not be meaningful, brief to the Court, and most recently, in to support a cost/benefit analysis when citing a recent speech in which I
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questioned the length of fund these letters in our release, it is my days after the United States Court of prospectuses. Not only does this understanding that the letters will not Appeals for the District of Columbia argument misinterpret what I said, but be posted to our Web site for public Circuit (the ‘‘Court’’) remanded the it leads to the illogical conclusion that review. rulemaking to the Commission.2 I once a prospectus reaches a certain Accordingly, for all the foregoing dissented from the majority’s action. length, it is full and therefore no reasons, I am compelled to vote against Although I have substantive objections additional information can be added. the proposal. In closing, I would like to to the rule amendments that the The proposed release indicates that a take this opportunity to apologize. First, majority reaffirmed,3 my concerns about reason for proceeding today is because to the Court, for the agency’s failure to today’s actions of the majority run much expedited consideration is necessary in respond appropriately to the Court’s deeper. The majority’s action is the order to protect investors. For the directive to undertake a meaningful product of a gravely flawed process, reasons stated above, this statement is review. Second, to those staff members which is far from the informed completely disingenuous. The case has who were uncomfortable having to deliberation that should have preceded never been made to my satisfaction that participate in this exercise. And third, any final action in response to the the benefits of this rule are more than to the public, which must continue to Court’s remand. My concerns are set cosmetic. In this regard, the Chairman’s live with the uncertainty surrounding forth below. reference to market timing scandals at the legality of a rule that was adopted Background mutual funds with an interested chair as in violation of the APA and, after having warranting the rule is misplaced. The already been stricken by a Court, will Last year, the Commission, in a split share of these scandals at funds with most certainly be challenged again as a vote, adopted amendments to ten interested chairs versus independent result of our action today. widely relied-upon exemptive rules in chairs was proportionate to their share I have one question. The most recent order to mandate a uniform corporate of funds. In any event, in my view, version of the release has added a new governance structure for all investment 4 protection of investors compels that we footnote 15 which states that: ‘‘Even companies. The three commissioners carefully consider the costs and prior to our having issued this Release, who voted in favor of the amendments alternatives before rushing to judgment. there have been reports that additional last year are now reaffirming the To allow this open meeting to proceed legal proceedings may result from our adoption of these amendments. In the as if the Commission can simply fill in action today. Accordingly, we are interim, the Chamber of Commerce of the blanks for APA deficiencies, without instructing our Office of the General the United States of America (the requesting public comment on these Counsel to take such action as it ‘‘Chamber’’) petitioned the Court for a 5 significant issues, makes a mockery of considers appropriate to respond to any review of two of the amendments. On the process. Today’s action is nothing proceedings relating to this the morning of Tuesday, June 21, 2005 more than window-dressing. It violates rulemaking.’’ I have never seen this the Court granted, in part, the the spirit, if not the letter of the Court’s before. Chamber’s petition and remanded the opinion, which in directing the • Have we ever done this before? matter to the Commission to address Commission to address the deficiencies, • What does it mean? two violations of the Administrative clearly contemplated that the • What is the effect? Procedure Act (‘‘APA’’)6 that the Court Commission would do so by applying identified in the process by which the ‘‘its expertise and its best judgment’’ to Addedum June 30, 2005 Commission had approved the rules. bear. Rather than attempt in good faith These dissenting remarks are based on Specifically, the court held that the to respond appropriately to the Court’s the draft release circulated Tuesday Commission had (i) ‘‘violated its direction, the Chairman has hastily evening, June 28, 2005 for the open obligation under 15 U.S.C. 80a–2(c), and scheduled this meeting designed to give meeting held at 10 a.m. on June 29, therefore the APA, in failing adequately the appearance that the Commission has 2005. The final post-meeting release has to consider the costs imposed upon judiciously considered its prior APA been changed by the majority funds by the two challenged deficiencies, but in reality, is simply an apparently in reaction to some of the conditions,’’ and (ii) violated the APA attempt to obtain the same result procedural deficiencies noted in my by failing to consider a disclosure based without any serious examination of the dissent. These changes do not cure costs associated with the rule and the those deficiencies, however they may (‘‘Remand Release’’). Because at the time of this alternatives available. make some of my references at the writing (2:30 p.m. on June 30, 2005) I do not yet have a final version of the release, this dissent refers One additional point is worth meeting to statements in the release mentioning. While the Chairman has to the draft release circulated on June 27, 2005. appear inapposite. As an aside, footnote 2 Chamber of Commerce of the United States of refused to allow a public comment 15, which the general counsel refused to America v. Securities and Exchange Commission, period for this proceeding, the public explain in response to my questioning at No. 04–1300, slip op. (D.C. Cir. June 21, 2005) has not been silent in the past week. the open meeting, has now been (‘‘Slip Opinion’’). The Commission has received letters 3 These concerns are set forth in the dissent that renumbered footnote 14. Commissioner Glassman and I filed when the rules and statements from former were adopted. See Dissent of Commissioners Commissioners (including at least one Dissent of Commissioner Paul S. Atkins Cynthia A. Glassman and Paul S. Atkins to Chairman), former staff, and trade to the Commission Response To Investment Company Governance (July 27, 2004) associations, and there has also been Remand by Court of Appeals [69 FR 46390 (Aug. 2, 2004)] (available at: http:// much media coverage. Many of these Investment Company Governance www.sec.gov/rules/final/ic-26520.htm#dissent) (‘‘Adoption Dissent’’). public comments voice their opposition On June 29, 2005, three of the five 4 Investment Company Governance, Investment to the manner in which this proceeding commissioners (the ‘‘majority’’) of the Company Act Release No. 26520 (July 28, 2004) [69 has been conducted. They question the U.S. Securities and Exchange FR 46378 (Aug. 2, 2004)] (‘‘Adopting Release’’). timing of this proceeding, the lack of 5 The amendments require that, if a fund relies on Commission (‘‘SEC’’ or ‘‘Commission’’) one of the exemptive rules, the fund must have a public input into the process, and the 1 voted to reaffirm a rulemaking eight board of directors with (i) no less than 75 percent likely long-term damage that will result independent directors, and (ii) a chairman who is to the agency as a result of operating in 1 Investment Company Governance, Investment an independent director. this fashion. While we are responding to Company Act Release No. 26985 (June 30, 2005) 6 5 U.S.C. 551 et seq.
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alternative to the independent chairman following day.11 On Tuesday, after the Commissioner Glassman’s and my condition.7 close of business, we received the draft objections,16 continued to insist that A summary of the events that of the release that would be considered costs were ‘‘minimal,’’ ‘‘speculative,’’ or followed the issuance of the Court’s at the Commission meeting the next could not be estimated.17 opinion provides a window into the morning. The order of an unanimous court nature of the deliberation that preceded Thus, before the ink on the Court’s should have chastened the Commission, the majority’s reaffirmation of the rule opinion was even dry, the die was cast but the majority’s Remand Release only amendments.8 On Tuesday evening, less for the predetermined result of the perpetuates the cavalier attitude with than twelve hours after the Court had Commission’s deliberations. There was which we have approached our issued its opinion, the Chairman of the never a serious attempt made to solicit obligations in this rulemaking.18 While Commission scheduled the matter for a my views or incorporate them into the the Court, appreciating the difficulty of vote on June 29, 2005. The Chairman’s Commission’s release. The procedural estimating costs in this area, did not chief of staff explained in an e-mail that flaws that characterized this process did demand perfection, it did direct us to do the staff had ‘‘concluded that the court’s not mitigate, but rather compounded, the best we can.19 I respectfully submit concerns can be addressed on the basis the flaws in the adoption process that that our eight-day reconsideration of the of the record already before the were identified by the Court. This rule does not meet this standard.20 Commission.’’ That same evening, the peculiar sequence of events is a very Chairman displaced the designated duty fitting capstone on this rulemaking 16 See Letter from Commissioners Cynthia A. officer for the week to authorize process in which the majority’s self- Glassman and Paul S. Atkins to the Honorable Thad Cochran, Chairman, Senate Committee on unilaterally the issuance of a public described ‘‘logic and experience and Appropriations (Apr. 29, 2005) (available at: http:/ notice of the meeting.9 This ‘‘sunshine anecdotal evidence’’ 12 has counted /www.sec.gov/news/speech/spch050205cagpsa.htm. act notice’’ was issued the next more than anything else. 17 Staff Report, supra note 15, at 60–61. morning.10 18 Arguably, the Commission should already have On Friday evening, less than eighty Analysis of Costs been chastened by embarrassing miscalculations of cost in connection with earlier rulemakings. In hours after the Court’s decision, the After protesting repeatedly over the connection with the adoption of regulations to staff, recommending against additional past year and a half about the implement Section 404 of the Sarbanes-Oxley Act, fact-gathering, provided the Commission’s inability to conduct an for example, ‘‘we estimated the aggregate annual Commissioners with a 27-page draft analysis of costs, the majority claims to costs of implementing Section 404(a) of the Sarbanes-Oxley Act to be around $1.24 billion (or release that purported to analyze the have done just that in about a week. $91,000 per company).’’ Management’s Reports on issues remanded by the court. The staff When the majority adopted the rule, it Internal Control Over Financial Reporting and typically provides their described the costs as minimal, Certification of Disclosure in Exchange Act Periodic explained that our staff had no ‘‘reliable Reports, Securities Act Release No. 8238 (June 5, recommendations to the Commission at 2003) [68 FR 36636 (June 18, 2003)] at Section V.A. least two weeks (and often thirty days) basis’’ for estimating costs, and A subsequent industry report found the before the meeting at which they are complained that doing so would be implementation costs to be ‘‘more than 20 times scheduled for consideration. On ‘‘difficult.’’ 13 After the rule’s adoption, greater than our 2003 estimates.’’ Alex Davern, et Congress directed the Commission to al., SARBANES–OXLEY SECTION 404: THE Monday evening, shortly after asking ‘‘SECTION’’ OF UNINTENDED CONSEQUENCES 14 the Chairman to remove the item from submit a report justifying the rule. The AND ITS IMPACT ON SMALL BUSINESS (Feb. the Commission’s calendar in order to staff report,15 which the majority 2005), at 2 (available at: http://www.aeanet.org/ seek additional comment, a submitted in April 2005 over governmentaffairs/AeASOXPaperFinal021005.asp). See also Financial Executives International, Press substantially revised draft of the release Release: Sarbanes-Oxley Costs Exceed Estimates 11 was distributed. We were instructed by Because I had not yet seen the final pre-meeting (Mar. 21, 2005), at 1 (available at: http:// the Chairman’s staff to submit any version of the release, I was unable to comply. www.fei.org/files/spacer.cfm?file_id=1498) (based 12 dissenting statements by noon the Open Meeting to Consider Investment on a survey of 217 public companies with average Company Governance Amendments (Jan. 14, 2004) revenues of $5 billion, FEI found that ‘‘[t]heir total (Webcast available at: http://www.sec.gov/news/ cost of compliance averaged $1.34 million for 7 Slip Opinion, supra note 2, at 17. openmeetings.shtml) (statement of Commissioner internal costs, $1.72 million for external costs and 8 A timeline laying out the events of the past week Harvey Goldschmid) (‘‘there are moments where $1.30 million for auditor fees’’). Additionally, is attached to this dissent. See Exhibit A. Even logic and experience and anecdotal evidence Congress has reprimanded the Commission in the under normal circumstances, the Commission could compels your conclusions and this for me is one of past for its failure to conduct the type of analysis not conduct a meaningful analysis within eight those areas . . .’’). that the Court found flawed. See Gramm-Leach- days, as the majority claims it has done. During the 13 See Adopting Release, supra note 4, at VI.B Bliley Conference Report (Nov. 1, 1999) (available eight day period at issue, the commissioners and (‘‘Costs’’). In addition, the ‘‘Consideration of at: http://banking.senate.gov/conf/somfinal.htm), at their staffs moved to a new headquarters building, Promotion of Efficiency, Competition and Capital Title II.A) (‘‘In addition, during the rulemaking which meant that they had no access to office space Formation’’ section of the adopting release, which process, the SEC must also make a number of or computers for more than two of the eight days. the Court found to be deficient (Slip Opinion, supra findings. When considering whether such an action In addition, the Chairman and two commissioners note 2, at 17), contained only two sentences of is in the public interest, the SEC must also consider were out of the country for much of this period. analysis. See Adopting Release, supra note 4, at whether the action will promote efficiency, 9 The Commission’s Rules of Practice provide for Section VIII. This is peculiar given the majority’s competition and capital formation * * * The the delegation of certain matters to a ‘‘duty officer.’’ belief that these amendments will have a profound Conferees note that the SEC’s record in See 17 CFR 200.43. ‘‘To the extent feasible, the effect on the market. See, e.g., Remand Release, implementing section 3(f) has failed to meet designation of a duty officer shall rotate, under the supra note 1, at text accompanying note 13 (‘‘It is Congressional intent. The Conferees expect that the administration of the [Commission’s] Secretary, on important that we avoid postponement of the SEC will improve in this area.’’). a regular weekly basis among the members of the compliance date [of the investment company 19 The Court stated specifically that the difficulty Commission other than the Chairman.’’ 17 CFR governance amendments] and the attendant of the task ‘‘does not excuse the Commission from 200.43 (a)(2) (emphasis added). I can recall only one potential harm to investors and the market that its statutory obligation to determine as best it can other instance from my years as a Commissioner would result.’’). the economic implications of the rule.’’ Slip and, before that, on the Commission staff, when a 14 See Consolidated Appropriations Act, 2005, Opinion, supra note 2, at 15. Commission chairman has taken the place of the Pub. L. No. 108–447, 118 Stat. 2809, 2910 (2004). 20 I cannot, without more information and more designated duty officer to authorize Commission 15 Staff Report, EXEMPTIVE RULE time, take a position on the quality of particular action. I am not contending that the Chairman’s AMENDMENTS OF 2004: THE INDEPENDENT estimates in the majority’s cost-benefit analysis, but acting as duty officer was illegal, simply that it was CHAIR CONDITION: A REPORT IN ACCORDANCE the majority’s estimates may not be conservative. irregular and evidenced the hurried and prejudged WITH THE CONSOLIDATED APPROPRIATIONS For example, how would the majority’s estimates nature of the process. ACT, 2005 (April 2005) (available at: http:// change if it used average instead of median salary 10 Available at: http://www.sec.gov/news/ www.sec.gov/news/studies/indchair.pdf) (‘‘Staff information to calculate the cost of new openmeetings/ssacmtg062905.htm. Report’’). independent directors? See Remand Release, supra
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The Remand Release purports to a sort of ‘‘judicial notice’’ of the newly- public record. In any case, before undertake a consideration of the discovered information by treating it as relying so heavily on this summary, the deficiencies identified by the Court on irrefutable fact and uses it to ratify its majority should have included this the basis of information in the existing prior decision.25 summary in the comment file to alert record and information that was The majority’s primary discovery to the public of its intention to rely upon publicly available at the time of supplement the flawed rulemaking it. The public then could have reacted adoption.21 This approach is record was a two-page newsletter, to it. The Commission’s economists problematic on several fronts. First, and which summarizes the results of a should have evaluated the underlying most importantly, some funds have nonpublic survey about director data. The information presented in the already begun to comply with the fund compensation conducted by a private summary may inform any decision that governance rules. Instead of relying on consulting firm.26 Incidentally, the we make,27 but it should not do so in estimates, the Commission could easily Commission staff did not obtain a copy isolation. Others who are not conduct a survey asking questions about of the underlying nonpublic survey, consultants to independent directors, as actual costs to comply with the rules. apparently because doing so would the author of this summary is, might Why would we not seize on this contradict the majority’s intention to have supplemented or contradicted the fortuitous opportunity to utilize current, rely only on the purportedly adequate data.28 Of course, this process could not relevant data? 22 In this regard, just two possibly have occurred within the eight- days ago, the ICI volunteered to assist Sierra Club v. EPA, 325 F.3d 374, 382 (D.C. Cir. day period the majority allowed itself. 2003); National Grain and Feed Ass’n v. OSHA, 903 Therefore, after having forced the the Commission with obtaining this F.2d 308, 310–11 (5th Cir. 1990); AT&T Wireless information from its widespread and Servs., Inc. v. FCC, 365 F.3d 1095, 1103 (D.C. Cir. Commission to act within an impossibly representative membership.23 2004). Each of these cases is also distinguishable on short timeframe, the majority cannot Second, the Remand Release the grounds that there was no dissent within the claim to have not done the ‘‘best it can,’’ implicitly acknowledges that the decisionmaker. Both the Environmental Protection as the Court directed the Commission to Agency and the Occupational Safety and Health 29 rulemaking record contained critical Administration are led by a single administrator do. gaps regarding costs. Recognizing this and the action at issue in the third case was reached Disclosure Alternative flaw, the majority haphazardly searches by the decision of an unanimous Federal for additional information that Communications Commission. The instant matter is In addition to finding fault with the distinguishable; the Commission’s action is the Commission’s analysis of costs, the happened to be publicly available at the product of a divided Commission, two members of time of the rule’s adoption to attempt to which have continually expressed concerns about Court took issue with our consideration justify its actions.24 The majority takes the process by which the determination on how to of alternatives. Specifically, the Court proceed was reached. stated that the Commission should have 25 The majority also relies heavily on its own considered the disclosure alternative note 1, at text following note 28. Do the salary experience for specific estimates that are central to figures cited include additional costs of expenses its cost-benefit analysis. See, e.g., Remand Release, that Commissioner Glassman and I related to traveling to board meetings? supra note 1, at text preceding note 36 (‘‘Based suggested as an alternative to the 21 See Remand Release, supra note 1, at text upon our experience, we estimate that, on average, independent chairman requirement.30 preceding note 11. The majority purports to look at the new independent directors will use additional The Commission’s failure to do so ‘‘supplementary public information available independent legal counsel services a total of 30 violated the APA 31 because, as the subsequent to our original adoption of the hours a year.’’); Remand Release, supra note 1, at amendments’’ only to ‘‘confirm[] the information text following note 56 (‘‘In our judgment, Court said, ‘‘the disclosure alternative available at the time of our original adoption.’’ See independent chairmen will hire no more than, on was neither frivolous nor out of Remand Release, supra note 1, at note 11. In several average, two staff employees, consisting of one full bounds.’’ 32 Accordingly, the Court instances, however, the majority appears to rely time senior business analyst and one full time directed the Commission to ‘‘bring[] its only on post-adoption sources for cost estimates. executive assistant.’’); Remand Release, supra note See Remand Release, supra note 1, at note 32 (for 1, at text following note 61 (‘‘Based upon our expertise and its best judgment to bear’’ cost of recruiting an independent director, citing J. experience, we estimate that, on average, the to consider the disclosure alternative.33 Bel Bruno, ‘‘Recruiter Picked for HP Search,’’ THE independent chairman will use independent legal Oddly, neither the majority nor the staff PHILADELPHIA INQUIRER, Feb. 18, 2005, at C03); counsel a total of 50 hours a year more under the solicited our views on the disclosure Remand Release, supra note 1, at note 43 (for amendments.’’). The use of the Commission’s percentage increase in director compensation judgment and experience is appropriate, but where, during 2004, citing MPI Bulletin, ‘‘More Meetings, as here, the Commission’s judgment and experience 27 As the Draft Release notes, Commissioner More Pay: Fund Directors’’ Compensation Increases are the source of the basic elements of its cost Glassman and I cited an earlier version of the data 13% as Workload Grows’’ (Apr. 2005) (available at analysis, members of the public should have the in our dissent. Remand Release, supra note 1, at http://www.mfgovern.com)). opportunity to counter with estimates from their note 28 and Adoption Dissent, supra note 3, at note 22 The majority cited post-adoption materials own judgment and experience and with empirical 24. when doing so served its purposes. See, e.g., data. 28 A recent e-mail from C. Meyrick Payne, a senior Remand Release, supra note 1, at note 69 (citing, 26 Management Practice Inc., ‘‘More Meetings partner at Management Practice Inc. (‘‘MPI’’), the for proposition that ‘‘[r]ecently industry experts Means More Pay for Fund Directors’’ (Apr. 2004) author of the summary, suggests that MPI might have similarly noted that the quantitative effect of (‘‘April 2004 MPI Bulletin’’). The Remand Release have an interest in perpetuating this rulemaking. the independent chairman condition will be cites to this or one of three other MPI Bulletins See E-mail from C. Meyrick Payne to Various modest,’’ Kathleen Pender, ‘‘SEC’s Fund Rule, approximately seven times. The Remand Release Recipients (June 26, 2005) (attachment to Letter Revisited,’’ San Francisco Chron., June 23, 2005, at also cites two newspaper articles that quote from from Cory J. Skolnick of Gibson, Dunn & Crutcher LLP to Jonathan G. Katz, Secretary of the SEC (June C1 (quoting fund governance analyst Meyrick Payne Meyrick Payne, a senior partner of MPI. See 28, 2005) (in the email, Mr. Payne stated that, in as estimating ‘‘that the industry-wide cost of having Remand Release, supra note 1, at note 64 (citing advance of the Commission’s open meeting, people independent chairs, ‘at an absolute maximum, is Beagan Wilcox, ‘‘Wanted: Independent Chairmen,’’ might want to express their support for the $18 million’ a year, which is ‘a drop in the bucket’ Board IQ, July 6, 2004 (citing estimate of Meyrick independent chairman provision: ‘‘If you, or your for an industry with $8 trillion in assets.’’). Payne, senior partner, Management Practice, Inc.)); board, feel that an independent chair is an 23 See Letter from Elizabeth R. Krentzman, Remand Release, supra note 1, at note 69 (citing appropriate response to the recent mutual fund General Counsel, Investment Company Institute, to Kathleen Pender, ‘‘SEC’s Fund Rule, Revisited,’’ scandals you might like to write to SEC or your Jonathan G. Katz, Secretary, SEC (June 27, 2005) San Francisco Chron., June 23, 2005, at C1 (quoting favorite newspaper on Monday or Tuesday so that (‘‘ICI Letter’’), at 2. fund governance analyst Meyrick Payne as your opinion can be influential.’’). 24 Given that the majority supplements the record, estimating ‘‘that the industry-wide cost of having 29 Slip Opinion, supra note 2, at 15. it is not clear why they cite cases that stand for the independent chairs, ‘at an absolute maximum, is 30 proposition that ‘‘if the existing record is a $18 million’ a year, which is ‘a drop in the bucket’ Slip Opinion, supra note 2, at 17. sufficient base on which to address on remand the for an industry with $8 trillion in assets.’’)). Before 31 Slip Opinion, supra note 2, at 17. court-identified deficiencies, additional notice and relying so heavily on the data from Management 32 Slip Opinion, supra note 2, at 18 (citation comment procedures are not required.’’ See Practice Inc., the majority should have analyzed omitted). Remand Release, supra note 1, at note 9 (citing whether the data are robust and representative. 33 Slip Opinion, supra note 2, at 19.
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alternative before (or after) circulating a adoption, it is hard to understand how In the Remand Release, the majority draft that concluded that the disclosure the pre-adoption rulemaking record can boldly states that taking more than eight alternative was without merit. Thus, the now be relied upon to form the basis for days to reflect on this issue ‘‘risks majority’s action cannot be said to a full and fair discussion of this significant harm to investors.’’ 43 The embody the expertise and best judgment alternative. majority does not elaborate on how of the Commission. delaying action on the remand for the The Remand Release largely reiterates Plea for a Deliberative Approach short time that it would take to do a an argument, already dismissed by the Commissioner Glassman and I have thorough study would endanger Court as unconvincing,34 namely that both called for a more deliberate investors.44 When circumstances have the Investment Company Act always response to the Court. We could, for required it, the Commission has delayed favors a prescriptive approach over a example, conduct a formal, unbiased other actions that it has deemed to be of disclosure approach.35 As the court survey, host a roundtable, or solicit great importance to investors.45 The explained, ‘‘that the Congress required additional public comment on the urgency of forcing funds to change their more than disclosure with respect to issues raised by the Court. Many others governance structures seems to be more some matters governed by the ICA does have made similar pleas for a more closely tied to the imminent departures not mean it deemed disclosure deliberate approach than that pursued of Chairman William Donaldson 46 and insufficient with respect to all such by the majority.41 Because the failures Commissioner Harvey Goldschmid 47 matters.’’ 36 The release ignores that we identified by the Court relate to issues than to legitimate concerns about the have found disclosure rather than that were not fully aired during the well-being of the shareholders in the presciptive, one-size-fits-all solutions to notice-and-comment process, one many fund groups that do not have be sufficient in other contexts.37 logical approach would seem to be to do independent chairmen. The majority claims that the so now. As the Court explained, The Remand Release admits that the proposing release elicited comment on ‘‘uncertainty may limit what the timing of this action is personnel- the disclosure alternative. Although the Commission can do, but it does not driven. It explains that the Commission proposing release did ask whether the excuse the Commission from its needs to act expeditiously to marshal Commission should consider any statutory obligation to do what it can to ‘‘the collective judgment and learning’’ alternatives to the proposal, disclosure apprise itself—and hence the public and of the five commissioners that originally was not specifically mentioned.38 As the the Congress—of the economic considered the rule.48 It does not note majority notes, a few commenters 39sua consequences of a proposed regulation the significant procedural and sponte raised the possibility of allowing before it decides whether to adopt the substantive objections that investors to choose among funds based measure.’’ 42 Commissioner Glassman and I raised on clear disclosure about the before the rule was originally adopted. 40 independence of their chairman. 41 See, e.g., ICI Letter, supra note 23, at 1 (‘‘In It does not note our futile pleas that the These comments were ignored and the light of the court’s decision, we recommend that the Commission obtain more empirical staff’s summary of comments, which Commission invite additional public comment and collect additional data to assure a thoughtful and was provided to the Commission prior 43 Remand Release, supra note 1, at text following deliberative process.’’); Letter from Eight Senators note 11. to adoption, did not discuss them. to Commission (June 22, 2005), at 1 (‘‘[W]e are 44 Commissioner Glassman’s and my asking that the Commission defer final action on The majority’s claimed interest in certainty for this controversial and complex matter until the funds rings hollow because, by taking this hasty attempts to find a disclosure-based action, they have virtually ensured further litigation compromise were also ignored. In light Commission’s new chairman is in office and the full Commission can make a deliberate decision.’’); over this matter. See Remand Release, supra note of the failure of the majority to consider Letter from Joseph A. Grundfest, W.A. Franke 1, at note 15 (‘‘Even prior to our having issued this the disclosure alternative prior to Professor of Law and Business, Stanford Law Release, there have been reports that additional School, to Commission (June 23, 2005), at 3 (‘‘The legal proceedings may result from our action today. Accordingly, we are instructing our Office of the 34 Slip Opinion, supra note 2, at 18. inescapable concern is that this sequence of events supports the inference that the matter has been General Counsel to take such action as it considers 35 Remand Release, supra note 1, at text prejudged and that any additional consideration of appropriate to respond to any proceedings relating accompanying notes 76–82. the record is being conducted more as a procedural to this rulemaking’’). 36 Slip Opinion, supra note 2, at 18. fig leaf than as a professional and good faith 45 See, e.g., Amendment to Rule 4–01(a) of 37 See, e.g., Disclosure Regarding Approval of inquiry.’’); Letter from Bevis Longstreth to the Regulation S–X Regarding the Compliance Date for Investment Advisory Contracts by Directors of Commission (June 24, 2005) (‘‘Input on these issues Statement of Financial Accounting Standards No. Investment Companies, Investment Company Act from both the industry and its client base must be 123 (Revised 2004), Share-Based Payment, Release No. 26486 (June 23, 2004) [69 FR 39798 obtained, and this evidence-gathering cannot be Securities Act Release No. 8568 (Apr. 15, 2005) [70 (June 30, 2004)] (requiring investment companies to done in a week’s time.’’); Letter from Harvey L. Pitt, FR 20717 (Apr. 21, 2005)] (allowing companies to provide disclosure to shareholders regarding Kalorama Partners LLC, to Commission (June 23, delay implementation of accounting standard determinations that formed the basis for the board’s 2005) (writing, as one of the seven ‘‘living former governing employee stock options); Management’s approval of advisory contracts). SEC Chairmen’’ who supported the rulemaking Report on Internal Control over Financial Reporting 38 See also Staff Report, supra note 15, at 59–60 prior to adoption, to recommend a more and Certification of Disclosure in Exchange Act (a section entitled ‘‘Alternatives Were Considered’’ deliberative approach); Letter from Eugene Scalia, Periodic Reports of Non-Accelerated Filers and makes no mention of disclosure as an alternative). Gibson, Dunn & Crutcher LLP, to Giovanni P. Foreign Private Issuers; Extension of Compliance 39 See Comment Letter of the Financial Services Prezioso, General Counsel, SEC (June 23, 2005) Dates, Securities Act Release 8545 (Mar. 11, 2005) Roundtable, File No. S7–03–04 (Mar. 10, 2004) (writing on behalf of the Chamber of Commerce to [70 FR 13328 (Mar. 18, 2005)] (extending a rule (‘‘[I]nvestors will be able to express their views on urge the Commission to ‘‘engage in a thorough, implementing Section 404 of the Sarbanes-Oxley this [independent chairman] issue, given clear and rigorous, and deliberate process’’); Letter from Act, which was a direct statutory mandate). appropriate disclosure. * * * Investors for whom Walter B. Stahr to Commission (June 24, 2005), at 46 SEC Chairman William H. Donaldson to Step this issue is a priority can direct their investments 1 (urging the Commission to reconsider its plan ‘‘to Down on June 30, SEC Press Release 2005–82 (June to those funds.’’); Comment Letter of Charles K. re-issue the same rules, presumably on the basis of 1, 2005) (http://www.sec.gov/news/press/2005– Carlson, President, Greenspring Fund Incorporated, a quick analysis of the costs and alternatives’’); 82.htm). File No. S7–03–04 (June 17, 2004) (‘‘Greater Letter from Richard M. Whiting, Executive Director 47 Robert Schmidt and Otis Bilodeau, SEC’s disclosure of relevant information would allow and General Counsel, The Financial Services Nazareth is Democrats’ Choice for Commissioner, shareholders to make better informed decisions. If Roundtable, to Jonathan Katz, Secretary, SEC (June BLOOMBERG (May 18, 2005) (reporting an independent Chairman is desirable in the eyes 27, 2005), at 1 (requesting that ‘‘no final action on ‘‘Goldschmid’s plan to retire from the SEC by of some investors, then make that information the Rule be taken prior to the conclusion of [a] new August and return to teach at Columbia’s law readily accessible.’’). public comment and fact-finding process’’). school’’). 40 Remand Release, supra note 1, at note 10 and 42 Slip Opinion, supra note 2, at 17 (emphasis 48 Remand Release, supra note 1, at text preceding accompanying text. added). note 14.
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evidence. More importantly, though, if they remain in effect.’’ 49 The Court comply with the Administrative the Commission adopts a meritorious specifically identified two statutory Procedure Act and the Investment rule under lawful procedures, then the violations in the process by which the Company Act as the Court has directed composition of the Commission that majority adopted these rules. Until these us to do and which today’s action does adopted it is irrelevant. The rule should statutory violations are remedied, the not do. be able to weather the inevitable rule is not in effect, because the The Court gave the Commission a personnel changes at the Commission Commission has not satisfied the chance to redeem itself. It told us what and stand on its own without the statutory predicate for legitimacy and we needed to do to fulfill our legal support of the three commissioners that enforceability of our rules. The only obligation. Unfortunately, the majority originally voted for it. way for us to cure these fatal flaws is to has squandered this opportunity. For Lastly, I question the majority’s the reasons stated above, I dissent. conclusion that ‘‘[t]he Court did not 49 Remand Release, supra note 1, at text preceding vacate the rule amendments * * * and Section II (‘‘Introduction’’). BILLING CODE 8010–01–P
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[FR Doc. 05–13314 Filed 7–6–05; 8:45 am] BILLING CODE 8010–01–C
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Reader Aids Federal Register Vol. 70, No. 129 Thursday, July 7, 2005
CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING JULY
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. 122...... 38637 Presidential Documents 3 CFR Executive orders and proclamations 741–6000 Executive Orders: 20 CFR The United States Government Manual 741–6000 12735 (See EO 404...... 38582 13382) ...... 38567 Other Services 12938 (Amended by 26 CFR Electronic and on-line services (voice) 741–6020 EO 13382)...... 38567 Proposed Rules: Privacy Act Compilation 741–6064 13094 (See EO 1...... 38057 Public Laws Update Service (numbers, dates, etc.) 741–6043 13382) ...... 38567 31...... 38057 TTY for the deaf-and-hard-of-hearing 741–6086 13382...... 38567 Administrative Orders: 27 CFR ELECTRONIC RESEARCH Memorandums: 9 ...... 37998, 38002, 38004 Memorandum of June Proposed Rules: World Wide Web 29, 2005 ...... 39173 4...... 38058 Full text of the daily Federal Register, CFR and other publications is located at: http://www.gpoaccess.gov/nara/index.html 7 CFR 28 CFR Federal Register information and research tools, including Public 4274...... 38571 Proposed Rules: Inspection List, indexes, and links to GPO Access are located at: Proposed Rules: 45...... 39206 319...... 39194 http://www.archives.gov/federallregister/ 29 CFR 868...... 39199 E-mail 2902...... 38612 Proposed Rules: FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 1404...... 39209 an open e-mail service that provides subscribers with a digital 10 CFR 1610...... 38060 form of the Federal Register Table of Contents. The digital form 110...... 37985 30 CFR of the Federal Register Table of Contents includes HTML and 625...... 39364 PDF links to the full text of each document. Proposed Rules: 12 CFR 934...... 38639 To join or leave, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list Proposed Rules: 31 CFR Ch. VII...... 39202 (or change settings); then follow the instructions. Ch. V...... 38256 PENS (Public Law Electronic Notification Service) is an e-mail 14 CFR service that notifies subscribers of recently enacted laws. 32 CFR 23...... 37994 321...... 38009 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 36...... 38742 and select Join or leave the list (or change settings); then follow 39 ...... 38573, 38575, 38578, 33 CFR the instructions. 38580, 38751, 38753, 38755 100...... 38010 71 ...... 37997, 38740, 39175 FEDREGTOC-L and PENS are mailing lists only. We cannot 117...... 38593, 38594 73...... 38740 respond to specific inquiries. 165 ...... 38013, 38015, 39176 91...... 38742 Reference questions. Send questions and comments about the Proposed Rules: Proposed Rules: Federal Register system to: [email protected] 167...... 38061 39 ...... 38625, 38627, 38630, The Federal Register staff cannot interpret specific documents or 38632, 38636, 38817, 38819, 34 CFR regulations. 38821, 38823, 39204 230...... 38017 71 ...... 38053, 38055, 38056, FEDERAL REGISTER PAGES AND DATE, JULY 38826 36 CFR 37985–38570...... 1 15 CFR 7...... 38759 38571–38750...... 5 Proposed Rules: 37 CFR 38751–39172...... 6 303...... 38828 2...... 38768 39173–39410...... 7 16 CFR 7...... 38768 201...... 38022 Proposed Rules: 251...... 38022 23...... 38834 252...... 38022 257...... 38022 17 CFR 258...... 39178 270...... 39390 259...... 38022 18 CFR 38 CFR 35...... 38757 Proposed Rules: 3...... 39213 19 CFR Proposed Rules: 40 CFR 101...... 38637 51...... 39104
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REMINDERS Jet routes; published 5-6-05 published 5-10-05 [FR Test procedures and The items in this list were VOR Federal Airways; 05-09332] efficiency standards— editorially compiled as an aid published 4-29-05 Caribbean, Gulf, and South Commercial packaged to Federal Register users. Atlantic fisheries— boilers; Open for Inclusion or exclusion from COMMENTS DUE NEXT Red snapper; comments comments until further notice; published 10-21- this list has no legal WEEK due by 7-11-05; significance. published 5-12-05 [FR 04 [FR 04-17730] 05-09517] ENERGY DEPARTMENT AGRICULTURE South Atlantic shrimp; DEPARTMENT Federal Energy Regulatory RULES GOING INTO comments due by 7-11- Commission EFFECT JULY 7, 2005 Agricultural Marketing 05; published 5-27-05 Service Electric rate and corporate [FR 05-10671] regulation filings: COMMERCE DEPARTMENT Cotton classing, testing and Northeastern United States standards: Virginia Electric & Power National Oceanic and fisheries— Co. et al.; Open for Classification services to Atmospheric Administration Atlantic mackerel, squid, comments until further growers; 2004 user fees; Fishery conservation and and butterfish; notice; published 10-1-03 Open for comments until management: comments due by 7-11- [FR 03-24818] further notice; published 05; published 6-9-05 Atlantic highly migratory 5-28-04 [FR 04-12138] ENVIRONMENTAL species— [FR 05-11462] Kiwifruit grown in— PROTECTION AGENCY Atlantic bluefin tuna; Haddock; comments due California; comments due by Air programs: published 6-7-05 by 7-13-05; published 7-12-05; published 6-22- 6-13-05 [FR 05-11593] Stratospheric ozone Northeastern United States 05 [FR 05-12254] protection— fisheries— International fisheries AGRICULTURE regulations: Essential Class I ozone Emergency closure due to DEPARTMENT Pacific halibut— depleting substances; presence of toxin extension of global Food Safety and Inspection Catch sharing plan; causing paralytic laboratory and analytical Service comments due by 7-11- shellfish poisoning; use exemption; 05; published 6-24-05 correction; published 7- Meat and poultry inspection: comments due by 7-12- [FR 05-12585] 7-05 Meat and meat product 05; published 5-13-05 Georges Bank cod, exportation to United COURT SERVICES AND [FR 05-09589] haddock and yellowtail States; eligible countries; OFFENDER SUPERVISION Air programs; approval and flounder; published 7-7- addition— AGENCY FOR THE promulgation; State plans 05 Chile; comments due by DISTRICT OF COLUMBIA for designated facilities and ENERGY DEPARTMENT 7-11-05; published 5-10- Semi-annual agenda; Open for pollutants: 05 [FR 05-09279] comments until further Sales regulation: Pennsylvania; comments AGRICULTURE notice; published 12-22-03 due by 7-11-05; published Strategic Petroleum Reserve [FR 03-25121] petroleum; price DEPARTMENT 6-10-05 [FR 05-11548] competitive sale; standard Natural Resources DEFENSE DEPARTMENT Air quality implementation sales provisions; Conservation Service Acquisition regulations: plans; approval and published 7-7-05 Reports and guidance Pilot Mentor-Protege promulgation; various INTERIOR DEPARTMENT documents; availability, etc.: Program; Open for States: comments until further Fish and Wildlife Service National Handbook of California; comments due by Conservation Practices; notice; published 12-15-04 7-14-05; published 6-14- Endangered and threatened Open for comments until [FR 04-27351] 05 [FR 05-11718] species: further notice; published EDUCATION DEPARTMENT Pennsylvania; correction; Critical habitat 5-9-05 [FR 05-09150] Grants and cooperative comments due by 7-11- designations— COMMERCE DEPARTMENT agreements; availability, etc.: 05; published 6-16-05 [FR Munz’s onion; published International Trade Vocational and adult C5-11548] 6-7-05 Administration education— Environmental statements; TRANSPORTATION Worsted wool fabric imports; Smaller Learning availability, etc.: DEPARTMENT tariff rate quota Communities Program; Coastal nonpoint pollution Federal Aviation implementation; comments Open for comments control program— Administration due by 7-15-05; published until further notice; Minnesota and Texas; Airworthiness directives: 5-16-05 [FR 05-09494] published 2-25-05 [FR Open for comments Empresa Brasileira de COMMERCE DEPARTMENT E5-00767] until further notice; Aeronautica, S.A. National Oceanic and ENERGY DEPARTMENT published 10-16-03 [FR (EMBRAER); published 6- Atmospheric Administration Meetings: 03-26087] 22-05 Fishery conservation and Environmental Management Hazardous waste program Hoffmann Propeller GmbH & management: Site-Specific Advisory authorizations Co. KG; published 6-22- Alaska; fisheries of Board— Louisiana; comments due by 05 Exclusive Economic Oak Ridge Reservation, 7-11-05; published 6-10- Class D airspace; published 4- Zone— TN; Open for comments 05 [FR 05-11469] 4-05 Bering Sea and Aleutian until further notice; Pesticides; tolerances in food, Class E airspace; published 3- Islands groundfish; published 11-19-04 [FR animal feeds, and raw 7-05 comments due by 7-15- 04-25693] agricultural commodities: Correction; published 5-25- 05; published 7-6-05 ENERGY DEPARTMENT Dimethenamid; comments 05 [FR 05-13260] Energy Efficiency and due by 7-11-05; published Federal airways; published 5- Atlantic highly migratory Renewable Energy Office 5-11-05 [FR 05-09399] 6-05 species— Commercial and industrial Water pollution control: IFR altitudes; published 6-16- Atlantic shark; comments equipment; energy efficiency National Pollutant Discharge 05 due by 7-11-05; program: Elimination System—
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Concentrated animal Skilled nursing facilities; 05; published 5-11-05 [FR Cirrus Design Corp.; feeding operations in prospective payment 05-09121] comments due by 7-14- New Mexico and system and consolidated INTERIOR DEPARTMENT 05; published 6-9-05 [FR Oklahoma; general billing; update; comments Permanent program and 05-11456] permit for discharges; due by 7-12-05; published abandoned mine land McDonnell Douglas; Open for comments 5-19-05 [FR 05-09934] reclamation plan comments due by 7-11- until further notice; HEALTH AND HUMAN submissions: 05; published 6-14-05 [FR published 12-7-04 [FR SERVICES DEPARTMENT 05-11710] 04-26817] Virginia; comments due by Food and Drug 7-14-05; published 6-14- Pilatus Aircraft Ltd.; Water pollution; effluent Administration 05 [FR 05-11706] comments due by 7-13- guidelines for point source 05; published 6-14-05 [FR Human drugs: NATIONAL CREDIT UNION categories: 05-11703] Radioactive drugs for ADMINISTRATION Meat and poultry products Airworthiness standards: processing facilities; Open research uses; meeting; Fair credit reporting medical for comments until further comments due by 7-11- information regulations; Special conditions— notice; published 9-8-04 05; published 5-10-05 [FR comments due by 7-11-05; Boeing Model 737-200/ [FR 04-12017] 05-09326] published 6-10-05 [FR 05- 200C/300/400/500/600/ FEDERAL Reports and guidance 11356] 700/700C/800/900 COMMUNICATIONS documents; availability, etc.: NUCLEAR REGULATORY series airplanes; COMMISSION Evaluating safety of COMMISSION comments due by 7-15- 05; published 6-15-05 Committees; establishment, antimicrobial new animal Environmental statements; [FR 05-11762] renewal, termination, etc.: drugs with regard to their availability, etc.: Technological Advisory microbiological effects on Tiger AG-5B airplane; Fort Wayne State comments due by 7-14- Council; Open for bacteria of human health Developmental Center; comments until further concern; Open for 05; published 6-14-05 Open for comments until [FR 05-11669] notice; published 3-18-05 comments until further further notice; published [FR 05-05403] notice; published 10-27-03 5-10-04 [FR 04-10516] Transport category Common carrier services: [FR 03-27113] airplanes— PERSONNEL MANAGEMENT Medical devices— Front row passenger Interconnection— OFFICE Incumbent local exchange Dental noble metal alloys seats; acceptable Federal Workforce Flexibility carriers unbounding and base metal alloys; methods of compliance; Act of 2004; implementation: obligations; local Class II special comments due by 7-11- competition provisions; controls; Open for Recruitment, relocation, and 05; published 6-9-05 wireline services comments until further retention incentives; [FR 05-11410] offering advanced notice; published 8-23- supervisory differentials; Area navigation routes; telecommunications 04 [FR 04-19179] and extended assignment comments due by 7-11-05; capability; Open for incentives; comments due published 5-25-05 [FR 05- HOMELAND SECURITY by 7-12-05; published 5- comments until further DEPARTMENT 10413] notice; published 12-29- 13-05 [FR 05-09550] Coast Guard Class E airspace; comments 04 [FR 04-28531] SMALL BUSINESS due by 7-11-05; published Anchorage regulations: Telephone Consumer ADMINISTRATION 5-25-05 [FR 05-10374] Maryland; Open for Protection Act; Disaster loan areas: VOR Federal airways; comments until further implementation— Maine; Open for comments comments due by 7-11-05; notice; published 1-14-04 California Consumer Legal until further notice; published 5-25-05 [FR 05- [FR 04-00749] Remedies Act; interstate published 2-17-04 [FR 04- 10376] Ports and waterways safety: telephone calls; 03374] Correction; comments due declaratory ruling Gulf Gateway Deepwater OFFICE OF UNITED STATES by 7-11-05; published 5- petition; comments due Port, Gulf of Mexico; TRADE REPRESENTATIVE 25-05 [FR 05-10414] by 7-15-05; published safety zone; comments 6-15-05 [FR 05-11910] due by 7-11-05; published Trade Representative, Office TREASURY DEPARTMENT Radio stations; table of 5-11-05 [FR 05-09432] of United States Comptroller of the Currency Generalized System of assignments: Ports and waterways safety; Fair credit reporting medical Preferences: New Jersey; comments due regulated navigation areas, information regulations; by 7-11-05; published 6-1- safety zones, security 2003 Annual Product comments due by 7-11-05; 05 [FR 05-10863] zones, etc.: Review, 2002 Annual published 6-10-05 [FR 05- Country Practices Review, FEDERAL DEPOSIT Huntington, WV; Ohio River; 11356] and previously deferred INSURANCE CORPORATION comments due by 7-13- TREASURY DEPARTMENT product decisions; Fair credit reporting medical 05; published 6-13-05 [FR petitions disposition; Open Internal Revenue Service information regulations; 05-11589] for comments until further Income taxes comments due by 7-11-05; INTERIOR DEPARTMENT published 6-10-05 [FR 05- notice; published 7-6-04 Foreign entities; 11356] Fish and Wildlife Service [FR 04-15361] classification; comments Endangered and threatened TRANSPORTATION due by 7-13-05; published FEDERAL RESERVE 4-14-05 [FR 05-06855] SYSTEM species permit applications DEPARTMENT Practice and procedure: Fair credit reporting medical Recovery plans— Federal Aviation information regulations; Paiute cutthroat trout; Administration Residence and source rules; comments due by 7-11-05; Open for comments Airworthiness directives: comments due by 7-11- 05; published 4-11-05 [FR published 6-10-05 [FR 05- until further notice; Boeing; Open for comments 05-07088] 11356] published 9-10-04 [FR until further notice; HEALTH AND HUMAN 04-20517] published 8-16-04 [FR 04- TREASURY DEPARTMENT SERVICES DEPARTMENT Endangered and threatened 18641] Thrift Supervision Office Centers for Medicare & species: Bombardier; comments due Fair credit reporting medical Medicaid Services Gila trout; reclassification; by 7-14-05; published 6- information regulations; Medicare: comments due by 7-15- 14-05 [FR 05-11709] comments due by 7-11-05;
VerDate jul 14 2003 20:56 Jul 06, 2005 Jkt 205001 PO 00000 Frm 00004 Fmt 4712 Sfmt 4711 E:\FR\FM\07JYCU.LOC 07JYCU Federal Register / Vol. 70, No. 129 / Thursday, July 7, 2005 / Reader Aids v
published 6-10-05 [FR 05- 6043. This list is also Garza and Filemon B. Vela 11356] available online at http:// United States Courthouse’’. www.archives.gov/ VETERANS AFFAIRS (June 29, 2005; 119 Stat. Public Laws Electronic DEPARTMENT federal—register/public—laws/ 338) Notification Service Adjudication; pensions, public—laws.html. S. 643/P.L. 109–17 (PENS) compensation, dependency, The text of laws is not To amend the Agricultural etc.: published in the Federal Credit Act of 1987 to Rights and responsibilities of Register but may be ordered reauthorize State mediation claimants and in ‘‘slip law’’ (individual programs. (June 29, 2005; beneficiaries; plain pamphlet) form from the 119 Stat. 339) PENS is a free electronic mail notification service of newly language rewrite; Superintendent of Documents, H.R. 1812/P.L. 109–18 comments due by 7-11- U.S. Government Printing enacted public laws. To Patient Navigator Outreach 05; published 5-10-05 [FR Office, Washington, DC 20402 subscribe, go to http:// and Chronic Disease 05-09230] (phone, 202–512–1808). The Prevention Act of 2005 (June listserv.gsa.gov/archives/ text will also be made publaws-l.html available on the Internet from 29, 2005; 119 Stat. 340) LIST OF PUBLIC LAWS GPO Access at http:// H.R. 3021/P.L. 109–19 www.gpoaccess.gov/plaws/ TANF Extension Act of 2005 Note: This service is strictly This is a continuing list of index.html. Some laws may (July 1, 2005; 119 Stat. 344) for E-mail notification of new public bills from the current not yet be available. H.R. 3104/P.L. 109–20 laws. The text of laws is not session of Congress which available through this service. have become Federal laws. It H.R. 483/P.L. 109–16 Surface Transportation PENS cannot respond to may be used in conjunction To designate a United States Extension Act of 2005, Part II with ‘‘PLUS’’ (Public Laws courthouse in Brownsville, (July 1, 2005; 119 Stat. 346) specific inquiries sent to this Update Service) on 202–741– Texas, as the ‘‘Reynaldo G. Last List July 5, 2005 address.
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